### 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 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED March 25, 2014 Lyle W. Cayce Clerk Case: 13-60608 Document: 00512572390 Page: 1 Date Filed: 03/25/2014No. 13

- 60608 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, pa rt 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. Marti n 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. Additionall y, 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 det ermined, his jaw was broken.

2 Case: 13-60608 Document: 00512572390 Page: 2 Date Filed: 03/25/2014No. 13

- 60608 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 sugg ested 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 d ismiss. 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)) (inte rnal quotation ma rks omitted). “ We rev iew the denial of a recusal motion for abuse of discretion. ” Garcia v. City of Laredo , 702 F.3 d 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 3 Case: 13-60608 Document: 00512572390 Page: 3 Date Filed: 03/25/2014No. 13

- 60608 Amendment is inapplicable in that context. 430 U.S. 651, 683 (1977)

. Before beginning its analysis, however, the Court said that “[i]n addre ssing 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 (19 68) (plurality opinion)). It was in this context that the Supreme Court stated: Despite the general abandonment of corporal punishment as a means of p unishing 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 shar ply divided on the practice, and has been for more than a century. Yet we can discern no trend toward i ts 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
pu nishment 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. Seco nd, 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

4 Case: 13-60608 Document: 00512572390 Page: 4 Date Filed: 03/25/2014No. 13

- 60608 district court therefore correctly dismissed Clayton’s Eighth Amendment claims as foreclosed by Ingr aham

. II.

“ To state a Fourteenth Amendment [procedural] d ue 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 int erest,” 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 deprivatio n 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 c orporally 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 state

law remedies satisfied due process. See id. at 675

- 82. Specificall y, 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 Missi ssippi law. See M ISS

. C ODE A NN

. § § 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

.

5 Case: 13-60608 Document: 00512572390 Page: 5 Date Filed: 03/25/2014No. 13

- 60608 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 post

deprivation state

- law remedies available in Mississippi provide an a dequate 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 M ISS

. C ODE

. A NN

. §§ 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 dismiss ed Clayton’s substantive due process claim as foreclosed by binding circuit precedent. 1 IV
.

“ To maintain an equal protection claim, a plain tiff typically alleges that he ‘ received treatment different from that received by similarly situated

1 We acknowledge that t he 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 t hat 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 Puni shment in Schools , 102 G EO

. 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. 6 Case: 13-60608 Document: 00512572390 Page: 6 Date Filed: 03/25/2014No. 13

- 60608 individuals and that the unequal treatment stemme d 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 pa rty 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 stemm ed 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 t o 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 go t in more trouble than girls.” See Dan Frosch, Schools Under Pressure To Spare the Rod Forever , N.Y. T IMES , 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 th an 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, t here 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 7 Case: 13-60608 Document: 00512572390 Page: 7 Date Filed: 03/25/2014No. 13

- 60608 therefore that school officials use gender as an invidious criterion for det erminin g 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 har bor doubts concerning the judge’ s impartiali ty. ” 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 Tallahatchi e 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 c orporal 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 a re referred to in the plaintiff’ s complaint a nd 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

— administer s corporal punishment and is motivated to do so based on W alker’s belief, as suggested by Clayton, that boys should be subject to corporal punishment because of their testosterone levels

. 8 Case: 13-60608 Document: 00512572390 Page: 8 Date Filed: 03/25/2014No. 13

- 60608 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 rea sonable 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 fore going reasons, we AFFIRM the judgment of the district court.

9 Case: 13-60608 Document: 00512572390 Page: 9 Date Filed: 03/25/2014