IN THE SUPREME COURT OF MISSISSIPPI

NO. 95-CA-00268-SCT

ELEMETRIC BROWN

v.

THE HOUSTON SCHOOL DISTRICT; FRANK

ALFORD, BETTY ATKINSON, JOE HARPER, BILL

KLAUSER AND ROBIN MATHIS, MEMBERS OF THE

SCHOOL BOARD OF TRUSTEES; BETTY

HOLCOMBE AND LISA HESTER, INDIVIDUALLY

AND IN THEIR OFFICIAL CAPACITIES; AND C. L.

STEVENSON, SUPERINTENDENT, INDIVIDUALLY

AND IN HIS OFFICIAL CAPACITY

DATE OF JUDGMENT: 02/17/95

TRIAL JUDGE: HON. R. KENNETH COLEMAN

COURT FROM WHICH APPEALED: CHICKASAW COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: BARBARA LEE CLARK

ATTORNEY FOR APPELLEES: REX F. SANDERSON

NATURE OF THE CASE: CIVIL - TORTS (OTHER THAN PERSONAL

INJURY AND PROPERTY DAMAGE)

DISPOSITION: AFFIRMED - 12/18/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 2/12/98

EN BANC.

DAN LEE, CHIEF JUSTICE, FOR THE COURT:

SUMMARY

¶1. Elemetric Brown appeals a February 21, 1995, order of the Chickasaw County Circuit Court

granting the Houston School District's motion for summary judgment in a wrongful death action, as

well as for claims made pursuant to 42 U.S.C. § 1983 and the Individuals with Disabilities Education

Act, 20 U.S.C. § 1400. The circuit court found that her claims were barred by as a matter of law by

sovereign immunity and qualified immunity. Brown has provided no basis for the federal claims

raised, and her wrongful death claim is barred by sovereign immunity. Accordingly, we affirm the
decision of the Chickasaw County Circuit Court granting summary judgment to the Houston School

District and its employees.

STATEMENT OF THE FACTS

¶2. Eight-year-old Corey Lynn Jones ("Corey") was a special education student at the Houston

Elementary School. Corey had a history of behavior problems which, although improved since he

started kindergarten, continued to be addressed by his teachers.

¶3. On the morning of April 29, 1991, Corey was more "boisterous" in class than usual. His teacher,

Lisa Hester ("Hester"), stated in her affidavit that he then started throwing things and threatened to

hit Hester and take her glasses. As Hester was holding Corey's hands to keep him from hitting her,

the acting principal, Betty Holcombe ("Holcombe"), came in to help. They took him to Holcombe's

office, where he was paddled. Holcombe kept him in her office, as was her practice when he was

upset.

¶4. While Corey was in the principal's office, Holcombe heard a car horn blowing and went to see

what was wrong. Before going outside, she told him to stay in the chair where he was seated and

asked the secretary to watch him. Moments later Holcombe went back inside, where she learned from

the secretary that Corey had just snuck out of the office.

¶5. Teresa Oswalt ("Oswalt"), a teacher's assistant who was acquainted with Corey, saw him run out

of the principal's office as she was walking down the hall to get supplies. She grabbed his arm, but he

broke away, laughing and looking back to see if she was following him. She noted that Corey was

very strong for his age and size and doubted that she could have caught up with him. Oswalt said that

he ran down to the end of the hall and out the door to the south side of the building. She went on to

the principal's office, where she advised Holcombe that Corey had gotten away from her. The day

was very rainy and they immediately began looking for Corey, both inside and outside the building.

¶6. The search for Corey continued throughout the rest of the day and into the night. The next

morning, Corey's body was found in a creek not far from the school. The record does not indicate

any other circumstances surrounding the child's death.

¶7. Brown filed a complaint in the Chickasaw County Circuit Court on April 29, 1992, against the

Houston Municipal Separate School District, members of its Board of Trustees and various District

employees for the April 29, 1991, death of her son, Corey Lynn Jones. She sought damages for the

wrongful death of the child as well as for emotional distress. Brown raised federal court claims

pursuant to 42 U.S.C. § 1983, for violation of the child's civil rights, and 20 U.S.C. § 1400, et seq.,

for failure to meet his needs under the Individuals with Disabilities Education Act (IDEA). She

further sought punitive damages.

¶8. In response to the state court claims, the District raised the defenses of sovereign immunity and

qualified immunity on behalf of itself and the other defendants. As to the federal court claims, the

District affirmatively stated that Corey Lynn Jones was properly placed in the Houston Elementary

School and that the school was in compliance with the IDEA in providing for his education and

instructional needs.
¶9. On February 21, 1995, after reviewing the pleadings, affidavits, discovery materials and briefs

submitted by the parties in support of the various motions, the circuit court granted the District's

motion for summary judgment. Specifically, the circuit court found that Brown's complaint contained

"allegations of acts of the Defendants on April 1 [sic], 1991, at a time when Section § 11-46-1 et seq.

of Mississippi Code of 1972 Annotated barred claims against the Houston School District." It further

found that the complaint was barred by the defendants' qualified immunity and that the pleadings and

discovery material showed no genuine issue of material fact. Accordingly, the circuit court granted

the District's Motion to Dismiss or for Summary Judgment and its Supplemental Motion for

Summary Judgment.

DISCUSSION OF THE LAW

¶10. Brown construes the circuit court's order as finding that all of her claims, both state and federal,

are barred by either sovereign immunity or qualified immunity. The District focuses on Brown's

failure to appeal what it considers to be the circuit court's primary reason for granting summary

judgment -- the finding that there was no genuine issue of material fact raised by the pleadings or the

discovery materials filed with the court.

A. The Wrongful Death Claim

¶11. Miss. Code Ann. § 11-46-1 et seq. provides legislative sovereign immunity to the State and its

political subdivisions, including local school districts. Richardson v. Rankin County School District,

540 So. 2d 5, 8 (Miss. 1989). Thus, Brown's claim against the School District is barred by sovereign

immunity. Apparently Brown concedes this point when she states in her brief that "[t]he plaintiff

asserts that §46-46-1 et Seq (sic) of Mississippi Code of 1972 Annotated only immunizes the State

and its political subdivisions as well as its employees, trustees, officers, or agents from liability and

suit for torts and torts of employees." Additionally, we take this opportunity to reinforce our

"prospective only" application of Presley v. Mississippi State Highway Comm'n, 608 So. 2d 1288

(Miss. 1992). In Robinson v. Stewart, 655 So. 2d. 866 (Miss. 1995), we held that Presley was to be

applied prospectively only, announcing that "[w]hat we have stated indirectly we now say directly.

Presley has no retroactive application." Robinson, 655 So. 2d at 868 (emphasis added). The

incident giving rise to Elemetric Brown's wrongful death claim occurred prior to our decision in

Presley, thereby making Presley inapplicable to the instant case. The Houston School District was

under the protective umbrella of sovereign immunity, thereby ending our inquiry and making

summary judgment appropriate.

¶12. As to her assertion that the circuit court erred in granting summary judgment on grounds of

qualified immunity, Brown refers only to language in Pruett v. City of Rosedale, 421 So. 2d 1046,

1051-52 (Miss. 1982), which discusses the applicability of the reasonable man standard to

governmental decision-making in the context of sovereign immunity. She provides absolutely no

authority to support either side of the question she raises of whether qualified immunity should be

extended to public school teachers. Absent any meaningful argument or citation of authority, this

Court will not consider the assignment of error. Smith v. Dorsey, 599 So. 2d 529, 532 (Miss. 1992);

R.C. Petroleum, Inc. v. Hernandez, 555 So. 2d 1017, 1023 (Miss. 1990).

B. The § 1983 Action
¶13. 42 U.S.C. § 1983 (1994) provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom or usage, of any

State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of

the United States or other person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding for redress.

Brown concedes that for a plaintiff to succeed in a § 1983 action, she must show the violation of a

clearly established constitutional right under color of state law. She has not done so. Despite vague

references to the Fourteenth Amendment of the United States Constitution, Brown has not shown

any facts suggesting a violation of the child's substantive due process rights. Moreover, she has

alleged no "special relationship" between the State and Corey arising from taking him into custody

and holding him against his will as required by DeShaney v. Winnebago County Department of

Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), so as to impose some duty

for his safety and well-being. DeShaney, 489 U.S. at 199-200.

C. The IDEA Claim

¶14. The Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., requires states, as a

prerequisite to obtaining federal funding, to provide all disabled children with "a free appropriate

public education which emphasizes special education and related services designed to meet their

unique needs." 20 U.S.C. § 1400(c) (1994). Natchez-Adams School District v. Searing, 918 F.

Supp. 1028, 1030-31 (S.D. Miss. 1996). See also W.B. v. Matula, 67 F.3d 484, 499 (3d Cir. 1995).

To determine whether the IDEA has been violated, the United States Supreme Court set forth a twopart test in Board of Education of the Hendrick Hudson Central School District v. Rowley, 458

U.S. 176, 102 S.Ct. 3034, 73 L.Ed. 2d 690 (1982): "'First, has the State complied with the

procedures set forth in the Act? And second, is the individualized educational program developed

through the Act's procedures reasonably calculated to enable the child to receive educational

benefits?'" Salley v. St. Tammany Parish School Board, 57 F.3d 458, 466 (5th Cir. 1995) (quoting

Rowley, 458 U.S. at 206-07, 102 S.Ct. at 3051). "The primary means of assuring that each disabled

child is given a meaningful opportunity to benefit educationally under the IDEA is the 'individualized

education program' or IEP." Searing, 918 F. Supp. at 1031.

¶15. The record contains copies of the IEPs developed for Corey while he was a student at Houston

Elementary School. They indicate that Brown approved of his placement in the special education

program, that she agreed with the program developed for her son, and that the child was meeting the

goals set for him. Further, the record indicates that Brown had met with Corey's teachers only three

days before he died to discuss his progress. While the IDEA "'confers upon disabled students an

enforceable substantive right to public education in participating States . . . ,'" there simply are no

facts in the record to support an IDEA claim. W.B., 67 F.3d at 499 (quoting Honig v. Doe, 484 U.S.

305, 310, 108 S.Ct. 592, 98 L.Ed. 2d 686 (1988)).

¶16. To overcome the defense of qualified immunity in an IDEA claim, "a plaintiff must show more

than that he or she was denied a free, appropriate public education in a general sense; rather, a

plaintiff must demonstrate 'that the particular actions taken by defendants were impermissible under

law established at that time.'" W.B. v. Matula, 67 F.3d 484, 499-500 (3d Cir. 1995) (quoting P.C. v.
McLaughlin, 913 F.2d 1033, 1040 (2d Cir. 1990)). Brown has presented no evidence that her child

was denied a free, appropriate public education in any sense.

CONCLUSION

¶17. Looking as we must at the evidence in a light most favorable to Brown, the non-moving party,

summary judgment was appropriate in this case. Brown's wrongful death claim is barred by sovereign

immunity, and Brown has provided no factual basis for the § 1983 or IDEA claims. We therefore

affirm the circuit court's grant of summary judgment.

¶18. AFFIRMED.

PRATHER, P.J., PITTMAN, ROBERTS, SMITH AND MILLS, JJ., CONCUR. McRAE, J.,

DISSENTS WITH SEPARATE WRITTEN OPINION. BANKS, J., DISSENTS IN PART

WITH SEPARATE WRITTEN OPINION JOINED BY SULLIVAN, P.J. McRAE, J., JOINS

THIS OPINION IN PART.

McRAE, JUSTICE, DISSENTING:

¶19. This Court's recent decisions on sovereign immunity have pushed us back to the common law as

it existed prior to Pruett v. City of Rosedale, 421 So. 2d 1046 (1982), denying the citizens of our

State the opportunity to seek redress from wrongs committed against them by public entities,

contrary to the provisions of art. 3, § 24 of the Mississippi Constitution. I therefore disagree with the

majority's finding that Brown's wrongful death claim against the School District and its employees is

barred by sovereign immunity. Further, Brown's affidavits raise questions of material fact as to

whether District employees were negligent in allowing the child to escape from the school building.

Summary judgment, therefore, was not appropriate. Accordingly, I dissent.

¶20. Miss. Code Ann. § 11-46-1 et seq. provides legislative sovereign immunity to the State and its

political subdivisions, including local school districts. Richardson v. Rankin County School District,

540 So. 2d 5, 8 (Miss. 1989). However, in Presley v. Mississippi State Highway Commission, 608

So. 2d 1288, 1294-1296 (Miss. 1992), a plurality of this Court found that § 11-46-6 of the Sovereign

Immunity Act was unconstitutional and remanded the case for further proceedings. The same

language found unconstitutional in Presley was still in effect at the time of Corey Brown's death in

April, 1991. See Presley, 608 So. 2d at 1294 n. 6. Thus, Brown's claim against the School District is

not barred by sovereign immunity.

¶21. Although the majority opinion states that Brown is procedurally barred from raising the issue of

qualified immunity, it concludes that the wrongful death claims against the school officials and

teachers, like those against the Board, are barred by sovereign immunity. However, sovereign

immunity is not available to them and is not applicable to the facts of the case sub judice. As this

Court explained in Womble v. Singing River Hospital, 618 So. 2d 1252 (Miss. 1993), "[c]ommon

law qualified immunity has traditionally sought to protect the discretion of public officials so that
those officials would not be deterred by the threat of suit from making decisions and formulating

policies that are in the public good." Womble, 618 So. 2d at 1263. The Court further found that day

to day decisions regarding medical treatment were not inherently governmental and did not involve

the formulation or implementation of public policy and therefore, should be judged "on the same

standards as if made by private providers." Id. at 1263, 1265. See also T.M. v. Noblitt, 650 So. 2d

1340, 1346 (Miss. 1995) (Banks, J., concurring) ("the teaching of Womble is that qualified immunity

applies to governmental 'policy-making' activity, not to general administrative or executive activity by

one who happens to be a governmental [sic] employee."). Revisiting decisions by this Court as well

as from other jurisdictions, the Womble court determined that medical personnel in public hospitals

were not entitled to blanket qualified immunity; rather, "[d]ecisions made by medical personnel

engaged in public service will continue to be protected to the extent that they involve the formulation

and implementation of public policy." Id. at 1265. By the same token, the issue of whether Corey was

adequately supervised by school personnel at the time of his disappearance does not raise any

questions about decisions that were either inherently governmental in nature or involved either the

formulation or implementation of public policy. Qualified immunity, therefore, is not available as a

defense.

¶22. Brown stated in her affidavit that she and her father, Robert Jones, were told that Corey was

allowed to leave the school building when he became upset and that he would go out in the

playground to "cool off." School officials and Corey's teachers deny that such a practice existed and

assert that the child ran off before they could catch him. We have stated that "the school is not an

insurer of the safety of pupils, but has the duty as variously described, of exercising ordinary care, of

reasonable prudence, or of acting as a reasonable person would act under similar circumstances."

Levandoski v. Jackson County School District, 328 So. 2d 339, 342 (Miss. 1976). Given Corey's

developmental disabilities and his history of behavioral problems, a jury question exists as to whether

his teachers and school officials exercised the requisite care in supervising and controlling him. "All

motions for summary judgment should be viewed with great skepticism and if the trial court is to err,

it is better to err on the side of denying the motion." Daniels v. GNB, Inc., 629 So.2d 595, 599

(Miss. 1993). In this case, I would find that the circuit court should have erred on the side of denying

the motion by the School District and its employees for summary judgment.

¶23. After all the years of delay by the legislature, which had somewhat attempted to provide a small

window in which persons injured by the negligence of government employees could seek redress, the

majority now slams the window shut. I would not. Brown's wrongful death claim against the School

District and its employees was not barred by sovereign immunity and there were questions of fact to

be resolved by a jury. Accordingly, I dissent.

BANKS, JUSTICE, DISSENTING IN PART:

¶24. While I agree that the summary judgment granted in this case should be affirmed as to the

federal claims and as to the school district, trustees and superintendent on state claims under the

doctrine of sovereign and qualified immunity, I do not agree that qualified immunity applies to the

action of the defendants Holcombe and Hester, and the order granting summary judgment should

therefore be reversed as to those two defendants.

¶25. As this Court explained in Womble v. Singing River Hospital, 618 So. 2d 1252 (Miss. 1993),
"[c]ommon law qualified immunity has traditionally sought to protect the discretion of public officials

so that those officials would not be deterred by the threat of suit from making decisions and

formulating policies that are in the public good." Womble, 618 So. 2d at 1263. The Court further

found that day to day decisions regarding medical treatment were not inherently governmental and

did not involve the formulation or implementation of public policy and therefore, should be judged

"on the same standards as if made by private providers." Id. at 1265. See also T.M. v. Noblitt, 650

So. 2d 1340, 1346 (Miss. 1995) (Banks, J., concurring) ("the teaching of Womble is that qualified

immunity applies to governmental "policy-making" activity, not to general administrative or executive

activity by one who happens to be a governmental [sic] employee"). Revisiting decisions by this

Court, as well as from other jurisdictions, the Womble court determined that medical personnel in

public hospitals were not entitled to blanket qualified immunity; rather, "[d]ecisions made by medical

personnel engaged in public service will continue to be protected to the extent that they involve the

formulation and implementation of public policy." Id. at 1265. By the same token, the issue of

whether Corey was adequately supervised by school personnel at the time of his disappearance does

not raise any questions about decisions that were either inherently governmental in nature or that

involved either the formulation or implementation of public policy. Qualified immunity, therefore, is

not available as a defense.

¶26. Brown and school officials provide differing accounts of the supervision Corey received. In

Levandoski v. Jackson County School District, 328 So. 2d 339 (Miss. 1976), this Court found that

there was an insufficient causal relationship between the teacher's and school officials' alleged failure

to supervise and a student's disappearance from school, where the student was found floating in the

Tchouticabouffa River with a knife wound in her back. As such, this court affirmed the circuit court's

dismissal of the case. Id. at 342. The Levandoski Court stated that "the school is not an insurer of

the safety of pupils, but has the duty as variously described, of exercising ordinary care, of reasonable

prudence, or of acting as a reasonable person would act under similar circumstances." Id. (quoting

Allan Korpela, Tort Liability of Public Schools and Institutions of Higher Learning for Injuries

Resulting from Lack or Insufficiency of Supervision, 38 A.L.R. 3d 830, 834 (1971)).

¶27. A motion for summary judgment should be granted only where there is no genuine issue of

material fact. In reviewing the grant or denial of summary judgment, this Court determines only

whether there are issues to be tried. Brown v. Credit Center, Inc., 444 So. 2d 358, 362 (Miss. 1983).

In making this determination, this Court conducts a de novo review. Mantachie Natural Gas Dist. v.

Mississippi Valley Gas Co., 594 So. 2d 1170, 1172 (Miss. 1992). "All motions for summary

judgment should be viewed with great skepticism and if the trial court is to err, it is better to err on

the side of denying the motion." Daniels v. GNB, Inc., 629 So. 2d 595, 599 (Miss. 1993) (quoting

Mink v. Andrew Jackson Casualty Ins. Co., 537 So. 2d 431, 433 (Miss. 1988)). We review all the

evidentiary matters in a light most favorable to the nonmoving party, and if, in this view, the moving

party is entitled to judgment as a matter of law, summary judgment in his favor is appropriate. Clark

v. Moore Memorial United Methodist Church, 538 So. 2d 760, 762 (Miss. 1989).

¶28. Therefore, giving Mrs. Brown every benefit of the doubt, and looking, as we must, at the

evidence in a light most favorable to her, I find that there is sufficient evidence to raise questions of

whether Corey received adequate supervision from school personnel on the scene and if school

officials Holcombe and Hester acted reasonably in attempting to stop his flight from the school.
SULLIVAN, P.J., JOINS THIS OPINION. McRAE, J., JOINS IN PART.