IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60608

TREY CLAYTON, a minor, by and through his natural mother Dana 

Hamilton,

Plaintiff - Appellant

v.

TATE COUNTY SCHOOL DISTRICT; JAMES MALONE, in his official 

capacity as Conservator of Tate County Schools and in his individual 

capacity; JEROME MARTIN, in his official capacity as Assistant Principal 

and in his individual capacity,

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 2:11-CV-181

Before DENNIS and PRADO, Circuit Judges, and BROWN, District Judge.

∗

PER CURIAM:**

After being corporally punished by Jerome Martin (“Martin”)—an 

assistant principal at Independence High School and one of the defendants in 

this case—Trey Clayton (“Clayton”), through his mother, brought suit against 

∗ District Judge of the Eastern District of Louisiana, sitting by designation.

** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 25, 2014

Lyle W. Cayce

Clerk

 

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the school district, the conservator of the school district, and Martin, asserting, 

as relevant here, violations of Clayton’s Eighth Amendment, procedural due 

process, substantive due process, and equal protection rights. The defendants 

moved to dismiss for failure to state a claim, which the district court ultimately 

granted. Additionally, Clayton moved to recuse the judge based on his conduct 

in the present litigation and in two other cases over which the judge presided 

and in which Clayton’s counsel represented the plaintiffs in those cases. The 

district court denied the motion. For the reasons that follow, we AFFIRM.

BACKGROUND

I.

The following facts are drawn from Clayton’s complaint. During the 

2010–2011 academic year, Clayton was an eighth-grade student at 

Independence High School, part of the Tate County School District. On March 

10, 2011, Clayton arrived at his second-period English class and discovered 

that another student was occupying Clayton’s assigned seat. Because Clayton 

was not in his assigned seat, his teacher sent him to the library. Martin noticed 

Clayton sitting in the library and approached him, stating that his bad 

behavior was going to stop. Martin appeared angry and agitated.

Martin told Clayton to follow Martin to his office. Martin, with another 

of the school’s assistant principals as a witness, then struck Clayton three 

times on the buttocks with a paddle and “with excessive and great force.” The 

paddling left visible bruising and welts on Clayton’s buttocks, which were 

visible for days thereafter. Additionally, seconds after being paddled, Clayton 

fainted and fell, face first, onto the concrete floor in the hallway immediately 

outside Martin’s office. When Clayton regained consciousness, he was 

bleeding, five of his teeth were shattered, and, it was later determined, his jaw 

was broken.

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II.

Clayton, through his mother, brought suit against the school district, 

Tate County School District Conservator James Malone (“Malone”), and 

Martin, the assistant principal, asserting, inter alia, violations of his Eighth 

and Fourteenth Amendment rights. The defendants moved to dismiss for 

failure to state a claim. Initially, the district court denied the motion but 

directed Clayton to either amend his complaint or face sanctions for advancing 

what the district court suggested were meritless claims. Clayton moved to 

reconsider and further moved to recuse the judge. The district court 

reconsidered the order directing Clayton to file an amended complaint, denied 

the motion to recuse, and granted the defendants’ motion to dismiss. Clayton 

timely appealed.

STANDARD OF REVIEW

“This court reviews a district court’s grant of a motion to dismiss de 

novo.” Whitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 2013). “We accept all 

well-pleaded facts as true and view those facts in the light most favorable to 

the plaintiff.” Id. “The facts taken as true must, however, ‘state a claim that 

is plausible on its face.’” Id. at 637-38 (quoting Amacker v. Renaissance Asset 

Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011)). “A claim has facial plausibility 

when the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” 

Id. at 638 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal 

quotation marks omitted). “We review the denial of a recusal motion for abuse 

of discretion.” Garcia v. City of Laredo, 702 F.3d 788, 793-94 (5th Cir. 2012).

DISCUSSION

I.

In Ingraham v. Wright, the Supreme Court rejected an Eighth 

Amendment challenge to corporal punishment in schools, concluding that the 

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Amendment is inapplicable in that context. 430 U.S. 651, 683 (1977). Before 

beginning its analysis, however, the Court said that “[i]n addressing the scope 

of the Eighth Amendment’s prohibition on cruel and unusual punishment th[e] 

Court has found it usual to refer to . . . the ‘attitude[s] which our society has 

traditionally taken.’” Id. at 659 (quoting Powell v. Texas, 392 U.S. 514, 535 

(1968) (plurality opinion)). It was in this context that the Supreme Court 

stated:

Despite the general abandonment of corporal punishment as a 

means of punishing criminal offenders, the practice continues to 

play a role in the public education of school children in most parts 

of the country. Professional and public opinion is sharply divided 

on the practice, and has been for more than a century. Yet we can 

discern no trend toward its elimination.

Id. at 660-61 (emphasis added) (footnotes omitted). Clayton describes this last 

sentence as an “escape hatch” that lower courts may utilize to revisit binding 

Supreme Court precedent in the event that society’s attitudes toward corporal 

punishment change. We disagree.

First, such a reading of Ingraham ignores the Court’s text-, history-, 

precedent-, and policy-based reasons for concluding that the Eighth 

Amendment does not apply to corporal punishment in schools. See id. at 664-

70. Second, the Ingraham Court implicitly rejected Clayton’s reading when it 

explained, in a subsequent footnote, that changing social norms may affect the 

Court’s determination that a particular form of punishment is “cruel and 

unusual” but do not affect whether the Eighth Amendment is applicable in the 

first instance. See id. at 668 n.36 (“Our Eighth Amendment decisions have 

referred to ‘evolving standards of decency’ only in determining whether 

criminal punishments are ‘cruel and unusual’ under the Amendment.”)

(citation omitted). Third, to the extent that Ingraham left open an escape 

hatch, it is available for the Supreme Court, and not this court, to use. The 

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district court therefore correctly dismissed Clayton’s Eighth Amendment 

claims as foreclosed by Ingraham.

II.

“To state a Fourteenth Amendment [procedural] due process claim under 

§ 1983, ‘a plaintiff must first identify a protected life, liberty or property 

interest and then prove that governmental action resulted in a deprivation of 

that interest.’” Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting 

Baldwin v. Daniels, 250 F.3d 943, 946 (5th Cir. 2001)). In Ingraham, the 

Supreme Court concluded that “corporal punishment in public schools 

implicates a constitutionally protected liberty interest,” namely “freedom from 

bodily restraint and punishment,” 430 U.S. at 672-74, which is necessarily 

deprived when a school official corporally punishes a student.

“In procedural due process claims,” however, “‘what is unconstitutional 

is the deprivation of such an interest without due process of law.’” Morris v. 

Livingston, 739 F.3d 740, 750 (5th Cir. 2014) (quoting Zinermon v. Burch, 494 

U.S. 113, 125 (1990)). In Ingraham, the Court concluded that there is no 

procedural due process violation when a corporally punished student is not 

given the opportunity to be heard pre-deprivation. See 430 U.S. at 680. 

Instead, the Court determined that the availability, post-deprivation, of statelaw remedies satisfied due process. See id. at 675-82. Specifically, the Court 

noted that under Florida law—which was at issue in Ingraham—school 

officials who administer corporal punishment later deemed to be excessive may 

be held civilly or even criminally liable. Id. at 676-77. The same is true with 

respect to Mississippi law. See MISS. CODE ANN. §§ 11-46-9(1)(x), 37-11-57(1)-

(2). We therefore conclude that the district court correctly dismissed Clayton’s 

procedural due process claim as foreclosed by Ingraham.

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III.

This court “ha[s] held consistently that, as long as the state provides an 

adequate remedy, a public school student cannot state a claim for denial of 

substantive due process through excessive corporal punishment, whether it be 

against the school system, administrators, or the employee who is alleged to 

have inflicted the damage.” Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 

874 (5th Cir. 2000). Furthermore, this court has specifically held that postdeprivation state-law remedies available in Mississippi provide an adequate 

remedy, barring a student subject to corporal punishment from asserting a 

substantive due process claim. See Scott v. Smith, 214 F.3d 1349, 1349 (5th 

Cir. 2000) (unpublished) (per curiam); see also MISS. CODE. ANN. §§ 11-46-

9(1)(x), 37-11-57(1)-(2); M.C. ex rel. Thurman v. Dorsey, 909 F. Supp. 2d 568, 

571-75 (S.D. Miss. 2012); Bell v. W. Line Sch. Dist., Civil Action No. 4:07CV004-

P-B, 2007 WL 2302143, at *3 (N.D. Miss. Aug. 7, 2007). We therefore conclude 

that the district court correctly dismissed Clayton’s substantive due process 

claim as foreclosed by binding circuit precedent.1

IV.

“To maintain an equal protection claim, a plaintiff typically alleges that 

he ‘received treatment different from that received by similarly situated 

1 We acknowledge that the Supreme Court has said that “[a] plaintiff . . . may invoke

§ 1983,” with respect to a substantive due process claim, “regardless of any state-tort remedy 

that might be available to compensate him for the deprivation of these rights.” Zinermon, 

494 U.S. at 125. Moreover, “the majority of the circuits have held that students affected by 

corporal punishment may raise [substantive due process] claims,” with most circuits using 

the “shocks the conscience” test. Nicole Mortorano, Note, Protecting Children’s Rights Inside 

of the Schoolhouse Gates: Ending Corporal Punishment in Schools, 102 GEO. L.J. 481, 489-

90 (2014); see also id. at 489-90 nn.54-64 (collecting cases). Nevertheless, “[i]t is a well-settled 

Fifth Circuit rule of orderliness that one panel of our court may not overturn another panel’s 

decision, absent an intervening change in the law, such as by a statutory amendment, or the 

Supreme Court, or our en banc court.” Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 

378 (5th Cir. 2008). We are therefore bound to apply this circuit’s precedent.

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individuals and that the unequal treatment stemmed from a discriminatory 

intent.’” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 212 (5th Cir. 2009) (quoting 

Taylor v. Johnson, 257 F.3d 470, 473 (5th Cir. 2001)). “[D]isparate impact 

alone” is not enough; rather, “a party who wishes to make out an Equal 

Protection claim must prove ‘the existence of purposeful discrimination’ 

motivating the state action which caused the complained-of injury.” Johnson 

v. Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997). Clayton alleges that the school 

district administers its corporal-punishment policy in a gender-biased manner 

because male students are disproportionately punished. We conclude, 

however, that Clayton has failed to plausibly allege how the putatively 

disparate treatment stemmed from discriminatory intent.

In his complaint, Clayton alleges that the purported disparate impact 

“stems from an institutionalized bias[] that male students misbehave more 

frequently than female students.” In support of his argument, Clayton 

attached to his complaint a New York Times article in which one of the 

individual defendants, Malone, refused to comment on the Clayton litigation 

“but [reportedly] said boys typically got in more trouble than girls.” See Dan 

Frosch, Schools Under Pressure To Spare the Rod Forever, N.Y. TIMES, Mar. 

29, 2011, http://www.nytimes.com/2011/03/28/education/30paddle.html?_r=0. 

Assuming arguendo that this statement is sufficient to plausibly allege that 

Malone believes boys should be subject to corporal punishment more than girls 

because boys act out more—rather than that, as an empirical matter, boys get 

into trouble more often than girls do—that one school official believes this does 

not plausibly demonstrate that other school officials—much less Martin, who 

paddled Clayton—believe the same. In other words, given the discretionary 

nature of the school district’s corporal-punishment policy, there is no allegation 

that Clayton or any other male student was subject to corporal punishment 

because of a biased belief that troublesome boys should be punished more and 

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therefore that school officials use gender as an invidious criterion for 

determining who should be paddled. Consequently Clayton has failed to state 

a claim for a violation of the Equal Protection Clause, and the district court 

correctly dismissed this claim. 2

V.

“Any . . . judge . . . of the United States shall disqualify himself in any 

proceeding in which his impartiality might reasonably be questioned.” 28 

U.S.C. § 455(a). “Courts have interpreted this statute to require recusal if a 

reasonable person, knowing all of the facts, would harbor doubts concerning 

the judge’s impartiality.” Sensley v. Albritton, 385 F.3d 591, 599 (5th Cir. 2004) 

(citing Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 860-61 (1988)). 

Clayton asserts that Chief Judge Mills abused his discretion by failing 

to recuse himself based on his conduct in three cases in which Clayton’s 

attorney represented the plaintiff and over which the judge presided: (1) 

Thacker v. Prentiss County School District, No. 1:09-cv-46 (N.D. Miss. 2010); 

(2) Blevins v. East Tallahatchie School District, No. 2:09-cv-151 (N.D. Miss. 

2 On appeal, Clayton argued that discriminatory purpose may also be gleaned from 

the deposition of Tate County School District Superintendent Gay Walker (“Walker”), which 

was taken in a separate suit against the school district and which also arose out of corporal 

punishment at Independence High School. “[I]n deciding whether to grant a motion to 

dismiss,” however, “a district court may not ‘go outside the complaint.’” Gines v. D.R. Horton, 

Inc., 699 F.3d 812, 820 (5th Cir. 2012) (quoting Scanlan v. Tex. A&M Univ., 343 F.3d 533, 

536 (5th Cir. 2003)). “There is one recognized exception to that rule: a district court may 

consider documents attached to the motion to dismiss if they are referred to in the plaintiff’s 

complaint and are central to the plaintiff’s claim.” Id. (citing Scanlan, 343 F.3d at 536). The 

deposition testimony here was not “referred to in [Clayton’s] complaint” and may therefore 

not be considered. See id. 

Regardless, reliance on Walker’s testimony—in which the superintendent said that

“boys are going to be more unruly. . . . Probably [because of] testosterone”—suffers from the 

same fatal flaw: it is not plausible to say that any other school official—much less Martin—

administers corporal punishment and is motivated to do so based on Walker’s belief, as 

suggested by Clayton, that boys should be subject to corporal punishment because of their 

testosterone levels.

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2009); and (3) Clayton v. Tate County School District, No. 2:11-cv-181 (N.D. 

Miss. 2013), the present litigation. On review of the circumstances and the 

challenged conduct in each case, we conclude that a reasonable person, 

knowing all of the facts, would not harbor concerns about the judge’s 

impartiality. Sensley, 385 F.3d at 599. Accordingly, the judge did not abuse 

his discretion in denying Clayton’s motion to recuse.

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

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