1

The Honorable Lyle E. Strom, then Chief Judge of the United

States District Court for the District of Nebraska.

___________

No. 94-2691

 ___________

Angela Larson, a minor, by *

Joseph and Gail Larson, her *

father and mother and next * 

friends, *

 *

Plaintiff - Appellant, *

 * Appeal from the United States

 v. * District Court for the District

* of Nebraska.

Roger Miller; George Spilker; *

Harvey Bulli; The Papillion- *

LaVista School District, a *

Political Subdivision, *

 *

Defendants - Appellees. *

__________________________

Submitted: September 11, 1995

 Filed: February 20, 1996 __________________________

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, McMILLIAN,

FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS

SHEPPARD ARNOLD, and MURPHY, Circuit Judges, en banc. 

HANSEN, Circuit Judge.

Joseph and Gail Larson, individually and on behalf of their

daughter Angela, who was sexually abused by a school van driver,

brought suit against three school officials and the PapillionLaVista School District (PLSD). The suit alleged a 42 U.S.C.

§ 1983 claim for violations of Angela's constitutional rights, a 42

U.S.C. § 1985(3) claim for injury arising from a conspiracy to

violate the Larsons' constitutional rights, and a pendent state

negligence claim. The Larsons appeal the district court's1 order
2

granting the school officials' and PLSD's posttrial motion for

judgment as a matter of law on the Larsons' constitutional claims

and dismissing their pendent state negligence claim. 

A panel of this court initially affirmed the judgment on the

§ 1983 claim and reversed both the judgment on the § 1985(3)

conspiracy claim and the dismissal of the pendent state negligence

claim. We vacated the panel's opinion and granted the school

officials' and PLSD's suggestion for rehearing en banc. We now

affirm the judgment of the district court in all respects.

I. BACKGROUND

Viewing the evidence and reasonable inferences from the

evidence in the light most favorable to the party prevailing at

trial, McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1400 (8th

Cir. 1994), a jury could reasonably find the following facts.

Angela Larson was born on December 3, 1979, and was diagnosed as

anophthalmic in her left eye and microthalmic in her right eye,

meaning she had no left eye and her right eye was extremely small.

Because of Angela's disability, her family relocated to the Omaha

metropolitan area in order to take advantage of Omaha's medical and

special educational facilities. At age two, Angela began receiving

home services arranged for her by George Spilker, PLSD's Director

of Special Services. Those home services continued until she was

five years old. When Angela reached kindergarten age, her school

district, PLSD, contracted Angela's special educational services

out to the Omaha Public Schools due to the severity of her

impairment.

When Angela was nine years old and not progressing to her

parents' satisfaction in her placement in the Omaha public schools,

Mr. Spilker arranged for an outside vision consultant to observe

and evaluate Angela. Mr. Spilker then arranged for her to begin

attending District 66's Oakdale school, where Angela did quite well
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in a special educational program devised in part by Mr. Spilker.

The Larsons and Mr. Spilker lived in the same neighborhood and have

known each other for years. Mr. Spilker has spent more than 25

years as an educator of special needs children, he supervises the

education of over 600 special education students, and as indicated

he has been personally involved in developing and implementing

Angela's individual education plan since she was two years old. 

Angela's parents dropped her off each morning at the

Children's Corner Day Care Center, where she was transported in a

PLSD van driven by a PLSD employee to Oakdale school. After

school, a PLSD van would transport Angela back to the Children's

Corner, where she waited for her parents. The only other student

on the van was a severely and profoundly handicapped youth who

possessed minimal communicative abilities. The van driver, Eugene

Szynskie, had been a part-time PLSD employee for three years before

he was hired as a van driver in 1986. Three PLSD supervisory

personnel interviewed Szynskie when he was first hired but did not

conduct a background check. 

In the spring of 1988, Angela told her teacher, Jennie Grieb,

that Szynskie had been asking her whether she had been breast fed

and whether she was wearing silk panties. Ms. Grieb, a District 66

employee, promptly apprised Mr. Spilker of these inappropriate

comments. Mr. Spilker passed this information on to Harvey Bulli,

PLSD Director of Transportation, who in turn warned Szynskie not to

engage in improper conversations with students. Szynskie continued

to transport Angela to and from Oakdale without further complaint

until January of 1989.

En route home from piano lessons on Thursday evening, January

26, 1989, Angela informed her mother that Szynskie had fondled her

vaginal area while putting on her seat belt. On Friday morning,

January 27, Mrs. Larson called Mr. Bulli, PLSD's Transportation

Director and the van driver's supervisor, to tell him that Angela
-4-

would not be riding the van that day. She did not tell Mr. Bulli

why. Mrs. Larson then called Mr. Carr, the principal of Angela's

Oakdale School, and informed him of the touching incident. Knowing

that Mr. Spilker would be at a meeting in Lincoln, Nebraska, that

day, Mr. Carr arranged for a colleague of his who was also

attending the Lincoln meeting to relay Mrs. Larson's information to

Mr. Spilker. 

When Mr. Spilker returned to Omaha on Friday evening, he

called Mrs. Larson, who informed him of Angela's complaint. Mr.

Spilker cautioned the Larsons about broadcasting the allegations,

which he said might bring on a slander suit by the driver, and told

the Larsons that the matter was a serious one which pitted Angela's

word against the driver's. Mr. Spilker indicated that bringing

charges against Szynskie might also cause problems for the family

and for Angela's brother, Eric, who was a sophomore at the local

high school. He told the Larsons that he would contact the local

Chief of Police (also a neighbor). He called Chief Engberg that

night and, without divulging any names, discussed the matter in

general terms. 

On Monday morning, the PLSD superintendent, Roger Miller, held

his regular staff conference at 9:00 a.m. Mr. Spilker informed him

of Angela's allegations and of the need for a criminal records

check. Mr. Miller gave orders that immediately removed Szynskie

from his van driving job and assigned him to warehouse duty pending

further investigation. He also directed the assistant

superintendent for personnel to provide Szynskie's name, date of

birth, and social security number to the Chief of Police for a

records check. He told Mr. Spilker to tell the Larsons what was

being done, and Mr. Spilker did so in a 9:30 a.m. phone call to
-5-

Mrs. Larson. Specifically, Mr. Spilker told Mrs. Larson that

Szynskie had been taken off the van and that a criminal records

check had been ordered. He reiterated that it was Angela's word

against Szynskie's. Mr. Spilker called a second time on Monday to

tell Mrs. Larson that the other van drivers had reported that

Angela had made sexual comments to them. Mrs. Larson became irate

and called her husband, who became "equally irate" (Trial Tr. at

380) when he learned of Spilker's second call. The Larsons

concluded that "the tables were turning" on Angela (id. at 485)

because she was a handicapped female who was making a complaint of

sexual abuse. 

Mrs. Larson called Mr. Spilker at home about 7:00 p.m. on

Monday night to tell him that they would not be using the school

van until the matter was settled. Mr. Spilker once again told her

it was Angela's word against the driver's and that there was the

risk of a slander suit by Szynskie. The Larsons then called their

personal attorney who told them that the Nebraska child abuse

reporting statute gave them protection from civil suits for

reporting the matter to police authorities. The Larsons decided

then to call the prosecuting authorities the next morning. 

Early Tuesday morning, Mr. Larson called the Sarpy County

Attorney's office. That office refused to take the complaint and

told him to call the police. Mrs. Larson then called a local

police officer whom she knew and made a report of the touching

incident. The officer immediately deduced that the touching had

occurred at a location outside of his jurisdiction, and he called
 2

About three weeks later, the state charged Szynskie with

sexual abuse. Ultimately, a jury convicted him, and he was

sentenced to jail for the crime.

-6-

the sheriff's office, which sent investigators.2 

While Mrs. Larson was reporting the matter to the police

department on Tuesday morning, the PLSD was terminating Szynskie's

employment. The Chief of Police had reported back that Szynskie

had a previous arrest but no conviction for an alleged sexual

assault on his stepdaughter. The Chief had also told the school

authorities that the arrest information was confidential.

Superintendent Miller instructed Mr. Spilker to tell the Larsons

that the school had terminated the driver, that the police had done

a records check (without revealing the results), and that the law

enforcement authorities would have to prosecute the case, not the

school district. Mr. Spilker did so. 

Six months after the incident, Mr. Spilker asked Chief Engberg

to approve a press release stating that PLSD had reported the

alleged abuse on Friday, January 27, 1989. Engberg refused to

approve the release, stating that, in his view, their conversation

that night did not constitute a report.

Angela and her parents sued PLSD, Mr. Miller, Mr. Spilker, and

Mr. Bulli, alleging that PLSD and the school officials deprived

Angela of her civil rights, 42 U.S.C. § 1983, and conspired to deny

Angela's and her family's civil rights, 42 U.S.C. § 1985(3). The

complaint also included a pendent state negligence claim. After a

trial on the Larsons' constitutional claims, the jury returned a

verdict in favor of the Larsons, awarding $80,002 in compensatory
 3

A motion for judgment as a matter of law now encompasses

all motions labeled as motions for judgment notwithstanding the

verdict or motions for a directed verdict. Fed. R. Civ. P. 50

(subdiv. (a), cmt. to 1993 amend.). Consequently, we will apply

cases discussing the standard of review for a motion

notwithstanding the verdict interchangeably with cases discussing

motions for judgment as a matter of law. McKnight, 36 F.3d at

1400 n.1.

-7-

damages and $395,001 in punitive damages. The district court took

the pendent negligence claim under submission, pursuant to Neb.

Rev. Stat. § 13-907 (Reissue 1991) (requiring that such suits be

heard by the court without a jury). 

The defendants filed a timely posttrial motion for judgment

notwithstanding the verdict or judgment as a matter of law pursuant

to Fed. R. Civ. P. 50(b).3 The district court granted the motion,

set aside the jury verdicts, and entered judgment in favor of the

defendants on the constitutional claims. The district court also

entered judgment in favor of the defendants on the pendent state

law tort claim, dismissing the Larsons' complaint. The Larsons

appeal.

II. DISCUSSION

We review the district court's entry of judgment as a matter

of law "in the light most favorable to the party who prevailed

before the jury." City of Omaha Employees Betterment Ass'n v. City

of Omaha, 883 F.2d 650, 651 (8th Cir. 1989). This standard

requires this court to:

(1) resolve direct factual conflicts in favor of the

nonmovant, (2) assume as true all facts supporting the

nonmovant which the evidence tended to prove, (3) give

the nonmovant the benefit of all reasonable inferences,

and (4) deny the motion if the evidence so viewed would

allow reasonable jurors to differ as to the conclusions

that could be drawn.
 4

42 U.S.C. § 1983 provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

. . . subjects, or causes to be subjected, any citizen

of the United States . . . 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. 

-8-

Pumps and Power Co. v. Southern States Indus., 787 F.2d 1252, 1258

(8th Cir. 1986) (quotation omitted). We are not, however, entitled

to give a party "the benefit of unreasonable inferences, or those

at war with the undisputed facts." City of Omaha Employees

Betterment Ass'n, 883 F.2d at 651. "A mere scintilla of evidence

is inadequate to support a verdict," and judgment as a matter of

law is proper when the record contains no proof beyond speculation

to support the verdict. Id. at 651-52. 

A. The Larsons' 42 U.S.C. § 1983 Claim.

Angela's § 19834 claim alleges that PLSD and the individual

defendants denied Angela's civil rights by failing to receive,

investigate, and act upon Angela's prior complaint and by failing

to adequately train its employees in the prevention and reporting

of the abuse of handicapped children. We address each argument in

turn.

1. Failure to Receive, Investigate, and Act.

The individual defendants are subject to personal liability

under § 1983 for failure to adequately respond to the known risk of

physical and emotional harm presented by Szynskie if the Larsons

proved that the defendants: 

(1) Received notice of a pattern of unconstitutional acts

committed by subordinates; 
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(2) Demonstrated deliberate indifference to or tacit

authorization of the offensive acts; 

(3) Failed to take sufficient remedial action; and 

(4) That such failure proximately caused injury to the

child[]. 

Jane Doe A By and Through Jane Doe B v. Special Sch. Dist., 901

F.2d 642, 645 (8th Cir. 1990). PLSD, a local governmental entity,

may be found liable for "a governmental custom of failing to

receive, investigate and act upon complaints of sexual misconduct

of its employees" if the Larsons proved the existence of an

official custom of such conduct and if that custom caused them

constitutional harm. Thelma D. by Dolores A. v. Board of Educ.,

934 F.2d 929, 932 (8th Cir. 1991). To prove such a custom, the

Larsons must show: 

1) The existence of a continuing, widespread, persistent

pattern of unconstitutional misconduct by the

governmental entity's employees; 

2) Deliberate indifference to or tacit authorization of

such conduct by the governmental entity's policymaking

officials after notice to the officials of that

misconduct; and 

3) That plaintiff was injured by acts pursuant to the

governmental entity's custom, i.e., that the custom was

the moving force behind the constitutional violation. 

Jane Doe A, 901 F.2d at 646. 

In its memorandum opinion, the district court concluded that,

giving the Larsons the benefit of all reasonable inferences, "the

evidence presented at trial simply does not suggest that any

pattern of unconstitutional behavior existed and the verdict must

be overturned against both the school district and the individual

defendants." (Appellants' Addend. at 6.) We agree. 
-10-

The Larsons can point only to one prior complaint regarding

Szynskie's behavior toward Angela. In previous § 1983 actions

against school officials, we have held far more extensive records

of unheeded prior complaints insufficient to constitute a pattern

of unconstitutional behavior. See Jane Doe A, 901 F.2d at 644, 646

(holding that receiving complaints over the course of two years of

isolated incidents -- including that bus driver had used foul

language, physically restrained and assaulted children, kissed a

child, placed his hand down a boy's pants, and touched boys'

crotches -- was insufficient to show persistent pattern of

unconstitutional misconduct); Thelma D., 934 F.2d at 933 ("[F]ive

complaints scattered over sixteen years cannot, as a matter of law,

be said to comprise a persistent and widespread pattern of

unconstitutional misconduct."). Accordingly, we believe that the

district court correctly found that there was no evidence of a

pattern of unconstitutional behavior in this case. Finding no

widespread pattern of unconstitutional behavior, it is unnecessary

for us to consider whether deliberate indifference existed or

whether injury resulted. 

2. Failure to Train.

To establish liability on the part of PLSD for its failure to

adequately train its employees to report and to prevent the sexual

abuse of handicapped children, the Larsons must prove that PLSD's

"failure to train its employees in a relevant respect evidences a

`deliberate indifference' to the rights of the students." Thelma

D., 934 F.2d at 934 (quoting City of Canton v. Harris, 489 U.S.

378, 389 (1989)). The Larsons must prove that PLSD "had notice

that its procedures were inadequate and likely to result in a

violation of constitutional rights." Id. As the Larsons

accurately point out, notice of a pattern of unconstitutional

behavior need not be shown where the failure to train employees "is

so likely to result in a violation of constitutional rights that

the need for training is patently obvious." Id. 
-11-

In this case, we find no evidence to support the Larsons'

claim that PLSD employees received inadequate training. The

evidence is uncontroverted that PLSD required its employees to

report all suspected cases of child abuse to the proper

jurisdictional law enforcement authority pursuant to Nebraska's

rigid reporting statute. In addition, PLSD repeatedly held

meetings between its employees and law enforcement officers from

all five law enforcement agencies serving PLSD in order to enhance

communication between PLSD and law enforcement, to develop

strategies for reporting child abuse, and to determine how to

follow up on reports of alleged child abuse. Faced with similar

facts in Jane Doe A, this court found no evidence of "deliberate

indifference to the rights of the handicapped children in the

District's training program for bus drivers, teachers, supervisors,

and bus aides." 901 F.2d at 646. We conclude that the Larsons

have not produced sufficient evidence to support a § 1983 action

based on PLSD's failure to train its employees. 

B. The Larsons' 42 U.S.C. § 1985(3) Claim.

The Larsons' § 1985(3) claim alleges that the individual

defendants, animated by an invidiously discriminatory animus

against handicapped females, conspired to deny the Larsons' rights

under the First and Fourteenth Amendments by preventing them from

reporting Angela's abuse. In order to prove the existence of a

civil rights conspiracy under § 1985(3), the Larsons must prove:

(1) that the defendants did "conspire," (2) "for the purpose of

depriving, either directly or indirectly, any person or class of

persons of equal protection of the laws, or equal privileges and

immunities under the laws," (3) that one or more of the

conspirators did, or caused to be done, "any act in furtherance of

the object of the conspiracy," and (4) that another person was

"injured in his person or property or deprived of having and

exercising any right or privilege of a citizen of the United
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States." 42 U.S.C. § 1985(3). See also City of Omaha Employees

Betterment Ass'n, 883 F.2d at 652.

The "purpose" element of the conspiracy requires that the

plaintiff prove a class-based "invidiously discriminatory

animus." Moreover, the plaintiff must allege with

particularity and specifically demonstrate with material

facts that the defendants reached an agreement. She can

satisfy this burden by "point[ing] to at least some facts

which would suggest that appellees `reached an

understanding' to violate [her] rights." 

Id. (internal citations omitted) (alterations in original). 

The jury returned special verdicts against Mr. Spilker and Mr.

Miller, but the district court granted their posttrial motion for

judgment as a matter of law. The district court concluded that the

Larsons had failed to present "any evidence from which the jury

could infer that Spilker and Miller agreed to deprive the Larsons

of their rights under the [F]irst or [F]ourteenth [A]mendments." 

(Appellants' Addend. at 7.) The court also concluded, "Nor does

the evidence support the jury's finding that Spilker and Miller

were motivated by an invidiously discriminatory animus toward

handicapped females." (Id. at 7-8.) Alternatively, the district

court concluded that even if there were sufficient evidence to

support the Larsons' conspiracy allegations, their claim was barred

by the intracorporate conspiracy doctrine. 

We find it difficult even to discern precisely what

constitutional rights the Larsons contend that the alleged

conspiracy deprived them of. The only claim we can identify is

that the Larsons allege a conspiracy to deprive them of their right

as citizens to report the January 1989 incident. (See Jury Instr.

17 & 19, Jt. App. Vol. I at 71, 73.) We agree with the district

court that, even giving the Larsons the benefit of every inference,

the record in this case does not show that their ability or

opportunity to report the incident to law enforcement was impeded
-13-

by any of the defendants in any significant way.

The Larsons first brought the incident to Oakdale (not PLSD)

school officials' attention on Friday morning, and Mr. Spilker,

having received the information thirdhand, contacted them as soon

as he returned from his out-of-town meeting. Mr. Spilker's nonlawyer legal advice to the Larsons "not to go out on the streets

and tell everybody" because "[y]ou will be sued for slander" by the

van driver and "things like this could be hard on the family," as

Angela's father recounted it (Trial Tr. at 376), or "that we cannot

run out and start telling just anyone about this -- that we have to

be very careful," as Mrs. Larson testified (Id. at 478), contained

no advice not to report the matter to law enforcement authorities.

Nebraska Revised Statute § 28-716 (Reissue 1989) provides for

immunity from civil liability for reporting suspected child abuse,

but this immunity extends only to persons who participate in an

investigation of child abuse or who actually make a report to law

enforcement authorities of suspected child abuse upon reasonable

cause to believe a child has been subjected to abuse. The statute

provides no protection for the kind of general publication of the

allegations that Mr. Spilker warned might trigger a slander suit by

Szynskie. Mr. Larson testified that Mr. Spilker told him to

proceed with caution not only because of the risk of a slander suit

but also because "this is tough for families and it could be tough

for Eric [in high school]." (Trial Tr. at 376.) This statement,

to the effect that making the incident public could cause

difficulties for their son at the high school, might be stretched

far enough to be construed as some sort of threat or intimidation.

Nevertheless, we find it insufficient in itself to constitute a

constitutional deprivation. Mr. Spilker expressly told the Larsons

they were free to report the incident when he told them that the

school district was not going to press the charges.

Both of the Larsons testified that they made no report

themselves to law enforcement officials until Tuesday morning, and
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that they had waited over the weekend to see what the school

authorities would do. Mr. Larson testified that their main concern

was that the accused driver not be permitted to be in contact with

school children, a result accomplished the first thing Monday

morning when Mr. Spilker informed Mr. Miller of the matter and Mr.

Miller immediately ordered Szynskie off of van duty and into the

warehouse. The Larsons decided to report the matter themselves

after conferring with their attorney at about 9:00 p.m. on Monday

night. They reported the incident to authorities on Tuesday

morning. There simply is no evidence that the school officials

deprived the Larsons of their opportunity to report the incident.

Even if we were to assume that all of the four-day delay here was

somehow caused by the school officials, the Larsons do not allege

that any further injury occurred to Angela as a result of this

delay. Thus, we conclude that any delay in reporting this incident

does not rise to the level of a constitutional deprivation. 

Even if the Larsons had demonstrated a constitutional

violation, after carefully considering the entire record, we agree

with the district court that there was simply inadequate evidence,

either direct or circumstantial, of a conspiracy between Mr.

Spilker and Mr. Miller to support the jury's verdict. There is no

doubt that Mr. Spilker, Mr. Bulli, and Mr. Miller attended meetings

where the incident was discussed, and the school district's

response to it was determined. However, there is no evidence from

which to reasonably infer that a conspiracy to deprive the Larsons

of their right to report the incident was formed at these meetings.

Mr. Spilker, at Superintendent Miller's explicit instructions,

informed the Larsons of all of the school's actions on the matter.

The only information that Mr. Miller directed Mr. Spilker not to

pass on to the Larsons was the information about Szynskie's prior

arrest -- information that Mr. Miller reasonably believed was
 5

The Larsons actually learned about Szynskie's prior arrest

at about the same time that the school officials learned of it

from the Chief of Police. 

-15-

obtained in confidence from the Chief of Police.5 In all other

respects, Mr. Miller directed Mr. Spilker to inform the Larsons of

everything that the school authorities had done and were doing, and

Mr. Spilker did so. 

We see no evidence from which a jury could conclude that a

conspiracy existed among the school officials to deprive the

Larsons of any constitutional rights, and we see no evidence of any

acts from which a jury could conclude that any injury to or

deprivation of the Larsons' constitutional rights actually

occurred. The jury's verdict in this case appears to have been the

product of pure speculation and understandable sympathy for a

little girl who was indisputably harmed. Our decision is not

intended to belittle the harm she has suffered, but rather to

prevent the injustice of burdening persons who committed no

unconstitutional misconduct with liability for that harm. Absent

some evidence of a conspiracy and absent some evidence that the

actions of these defendants either caused injury to the plaintiffs

or intentionally prevented the plaintiffs from exercising a right

or privilege granted them as United States citizens, there can be

no liability under § 1985. 

Because the evidence was insufficient to allow a reasonable

jury to find the existence of a civil rights conspiracy among the

school officials, we conclude that the jury awards of compensatory

and punitive damages were properly set aside. Given this

conclusion, we need not reach the Larsons' contention that the

school officials harbored an invidiously discriminatory animus

toward handicapped females. We likewise need not reach the

propriety of the district court's alternate holding that the

intracorporate conspiracy doctrine also bars the punitive damage
 6

According to the intracorporate conspiracy doctrine, a

corporation cannot conspire with itself through its agents when

the acts of the agents are within the scope of their employment. 

Runs After v. United States, 766 F.2d 347, 354 (8th Cir. 1985). 

The intracorporate conspiracy doctrine is equally applicable to

governmental entities such as school districts. Id. 

-16-

award.6 

C. The Larsons' Pendent State Law Negligence Claims.

The Larsons also alleged that the defendants were negligent

under state law for failing to properly screen, supervise, and

reprimand Szynskie, the van driver, and for failing to follow the

school district's guidelines. The district court dismissed the

Larsons' pendent negligence claim, concluding that it was barred by

the discretionary function exception to the Nebraska Political

Subdivisions Tort Claim Act. We review the district court's

determination of state law de novo. Salve Regina College v.

Russell, 499 U.S. 225, 231, 238 (1991). 

The Nebraska Political Subdivision Tort Claims Act, Neb. Rev.

Stat. § 13-905 to § 13-926 (Reissue 1991) (the Act), provides a

limited waiver of governmental immunity that allows a plaintiff to

recover for injuries caused by the negligence of a subdivision's

officers, agents, and employees. Under the discretionary function

exception, however, a plaintiff may not recover for a claim "based

upon the exercise or performance of or the failure to exercise or

perform a discretionary function or duty on the part of the

political subdivision or an employee of the political subdivision,

whether or not the discretion is abused." Neb. Rev. Stat. § 13-

910(2) (Reissue 1993). In other words, the "[p]erformance or

nonperformance of a discretionary function cannot be the basis for

liability under the Political Subdivisions Tort Claims Act." Lemke

v. Metropolitan Util. Dist., 502 N.W.2d 80, 87 (Neb. 1993). 
-17-

Under Nebraska law, "[t]he discretionary-function exemption

extends only to the basic policy decisions and not to ministerial

acts arising therefrom." Koepf v. County of York, 251 N.W.2d 866,

870 (Neb. 1977). An element of judgment or choice is "essential

and indispensable" for discretionary conduct to be exempted from

liability. Lemke, 502 N.W.2d at 87. The Act thus protects "`the

discretion of a governmental executive or administrator to act

according to one's judgment of the best course to be taken.'"

Security Inv. Co. v. State, 437 N.W.2d 439, 444 (Neb. 1989)

(quoting Wickersham v. State, 354 N.W.2d 134, 138 (Neb. 1984)).

The type of discretion protected "`includes determinations or

judgments made in establishing plans. Where policy judgment

exists, there also exists discretion exempted from liability under

the State Tort Claims Act.'" Id. (quoting Wickersham, 354 N.W.2d

at 138). A ministerial act, on the other hand, is "one which a

person performs in a given state of facts, in a prescribed manner,

in obedience to the mandate of legal authority, without regard to,

or the exercise of, his own judgment upon the propriety of the act

being done." Jasa By and Through Jasa v. Douglas County, 510

N.W.2d 281, 290 (Neb. 1994) (internal quotations and citation

omitted).

We conclude that the district court properly relied on the

discretionary function exception to the Political Subdivision Tort

Claims Act in this case. We agree with the district court's

assessment that decisions to "investigate, hire, fire, and retain"

employees are generally discretionary. Thus, these decisions fall

within the discretionary function exception and cannot be the basis

for liability on the part of the school district. 

The Larsons also contend that the school district failed to

follow PLSD's established policy with regard to child abuse
 7

REPORTING OF SUSPECTED ABUSE/NEGLECT OF STUDENTS (5015)

The District recognizes its responsibility in

helping prevent abuse. The District and its employees

will follow applicable state laws in the reporting of

suspected cases of abuse or neglect.

The superintendent is responsible for formulating

a procedure to be followed by District employees to be

followed in suspected cases of child abuse or neglect.

-18-

reporting. PLSD's policy7 required compliance with the Nebraska

state child abuse reporting law and required the superintendent to

formulate a procedure to be followed in cases of suspected child

abuse. We believe that the grant of responsibility to formulate

procedures involves the type of policy-making judgment that is

exempted from the Act. Furthermore, the decision of whether to

report the 1988 inappropriate conversation by Szynskie pursuant to

the state child abuse reporting statute turned upon an exercise of

personal discretionary judgment. The Nebraska child abuse

reporting law requires any person to report suspected child abuse

if that person has "reasonable cause to believe a child has been

subjected to abuse." Neb. Rev. Stat. § 28-711 (Reissue 1989).

Whether or not "reasonable cause" exists within the meaning of the

statute requires an exercise of discretion and personal judgment,

which takes the matter out of the realm of a ministerial act. In

other words, the conditions of the statute describing when child

abuse reporting is required are not so specifically designated and

devoid of personal judgment as to render this a ministerial act. 

III. CONCLUSION

After carefully reading the testimony offered at trial, we

conclude that the experienced district judge's granting of the

defendants' posttrial motion for judgment as a matter of law was

correct. There is woefully insufficient evidence from which a

reasonable jury could find a § 1983 violation or a civil rights

conspiracy to deprive Angela or her parents of any constitutional
-19-

rights. We also conclude that the district court properly

dismissed the pendent state negligence claim. Accordingly, we

affirm the judgment of the district court.
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FLOYD R. GIBSON, Circuit Judge, with whom McMILLIAN, Circuit Judge,

joins, concurring in part and dissenting in part. 

I agree with the majority's analysis of the Larsons' 42 U.S.C.

§ 1983 claim. I write separately, however, to express my

disagreement with its treatment of the Larsons' 42 U.S.C. § 1985(3)

conspiracy claim and pendent tort claim. 

I believe the Larsons produced sufficient evidence to allow a

reasonable jury to find that Roger Miller and George Spilker, in an

effort to save face and avoid potential liability, conspired to

intimidate Angela Larson and her family into not reporting her

abuse to the proper authorities. City of Omaha Employees

Betterment Ass'n v. City of Omaha, 883 F.2d 650, 651 (8th Cir.

1989) (We review the district court's entry of judgment as a matter

of law in the light most favorable to the party who prevailed

before the jury). This Court has defined a civil conspiracy as "a

combination of two or more persons acting in concert to commit an

unlawful act, or to commit a lawful act by unlawful means, the

principal element of which is an agreement between the parties to

inflict a wrong against or injury upon another, and an overt act

that results in damage." Rotermund v. United States Steel Corp.,

474 F.2d 1139, 1145 (8th Cir. 1973) (quotations omitted). In order

to prove the existence of a conspiracy under § 1985(3), the Larsons

"must allege with particularity and specifically demonstrate with

material facts that the defendants reached an agreement." City of

Omaha Employees Betterment Ass'n, 883 F.2d at 652 (citation

omitted). That may be accomplished by "pointing to at least some

facts which would suggest that [the defendants] reached an

understanding to violate [the Larsons] rights." Id. (quotations

omitted). The Larsons need not show that each participant knew the

"exact limits of the illegal plan . . . ." Hampton v. Hanrahan,

600 F.2d 600, 621 (7th Cir. 1979) (quotation omitted), rev'd in

part on other grounds, 446 U.S. 754, 759 (1980). The question of

the existence of a conspiracy to deprive the plaintiffs of their
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constitutional rights "should not be taken from the jury if there

is a possibility the jury could infer from the circumstances a

'meeting of the minds' or understanding among the conspirators to

achieve the conspiracy's aims." Putnam v. Gerloff, 701 F.2d 63, 65

(8th Cir. 1983) (quoting Hampton, 600 F.2d at 621). 

The evidence is clear that, beginning on Monday, January 30th,

Spilker and Miller were in constant communication regarding

Angela's allegations. Miller repeatedly directed Spilker to pass

certain information on to the Larsons while withholding other

information. Following each meeting, Spilker reiterated what could

reasonably be interpreted as thinly-veiled threats regarding

slander liability as well as the effect that going public with the

charges would have on Angela's school-age brother. He also

disparaged Angela's credibility, repeatedly emphasizing that the

issue would ultimately come down to Angela's word against that of

the van driver. Spilker also told Gail Larson that he had learned

in the course of a meeting with Bulli and Miller that Angela was

the one instigating the sexual comments. Giving the Larsons the

benefit of all reasonable inferences, Pumps & Power Co. v. Southern

States Indus., 787 F.2d 1252, 1258 (8th Cir. 1986), I believe they

produced sufficient evidence to allow the jury to reasonably infer

that Miller and Spilker had reached an understanding to violate the

Larsons' civil rights.

The evidence adduced at trial also indicates that this

administrative browbeating successfully prevented the Larsons from

reporting Angela's abuse to the proper legal authorities over the

weekend beginning on Friday, January 27, until Tuesday, January 31.

In doing so, Miller and Spilker successfully conspired to deprive

the Larsons of both their First Amendment right to report Angela's

abuse and their right to equal protection under the law, albeit

temporarily. The record indicates that the Larsons decided to

report the incident only after a family meeting in which they

collectively decided to brave Spilker's threats. Miller and
 1

REPORTING OF SUSPECTED ABUSE/NEGLECT OF STUDENTS (5015)

The District recognizes its responsibility in

helping prevent abuse. The District and its employees

will follow applicable state laws in the reporting of

suspected cases of abuse or neglect.

The superintendent is responsible for formulating

a procedure to be followed by District employees to be

followed in suspected cases of child abuse or neglect.

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Spilker's conspiracy was, admittedly, only temporarily successful

in muzzling the Larsons. I do not, however, believe that a

temporary violation of constitutional rights is the equivalent of

no violation whatsoever. For these reasons, I would reverse the

district court's grant of judgment as a matter of law on the

Larsons' conspiracy claim.

I would also remand the pendent negligence claim to the extent

that it alleges a failure to follow and comply with PLSD's

established policy on the prevention and reporting of suspected

cases of child abuse or a failure to comply with the Nebraska child

abuse reporting statute. Neb. Rev. Stat. § 28-711 (Reissue 1989).

The Larsons' negligence claim necessarily raises the issue of

whether Miller negligently failed to follow PLSD's established

policy in effect since 1987 on the reporting of suspected child

abuse.1 That policy directs the superintendent to formulate a

procedure to be followed by PLSD officials in the reporting of

suspected child abuse or neglect. At trial, Miller flatly admitted

that he had failed to develop any such procedures whatsoever. 

The majority immunizes Miller's nonfeasance by concluding that

the responsibility of formulating the type of procedures mandated

by PLSD's policy requires the type of decision-making and policy

judgment safeguarded by the discretionary function exception to the

Nebraska Tort Claims Act. I disagree. This case is not about

second-guessing the merits of any procedures developed by Miller,
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but rather his admitted and uncontroverted failure to formulate any

procedures whatsoever in direct contravention of that policy's

mandate. As the Nebraska Supreme Court observed, "the

discretionary function exception will not apply when a . . .

statute, regulation, or policy specifically prescribes a course of

action for an employee to follow." Jasa ex rel. Jasa v. Douglas

County, 510 N.W.2d 281, 289 (Neb. 1994). Consequently, I believe

Miller's failure to follow PLSD's established directive implicates

the violation of a ministerial duty, not the type of incorrect

policy decision protected by the discretionary function exception,

and is therefore actionable under the Nebraska Tort Claims Act. 

The Larsons' tort claim also raises the issue of whether the

defendants' failure to properly respond to Angela's complaint

violated Nebraska's reporting statute. That law requires all

persons "having reasonable cause to believe that a child has been

subjected to conditions or circumstances which reasonably would

result in abuse or neglect" to "report such incident or cause a

report to be made to the proper law enforcement agency . . . . "

Neb. Rev. Stat. § 28-711 (Reissue 1989). While the determination

of "reasonable cause" certainly qualifies as a discretionary

function, the duty to report the suspected abuse to the proper

authorities once such reasonable cause has been established is a

purely ministerial act, utterly devoid of any discretion or policy

judgment. I believe that PLSD officials clearly had reasonable

cause as a matter of law to report Angela's abuse as early as

Friday, January 27, 1989, and certainly once the background check

revealed Szynskie's sordid past. As such, I believe that PLSD's

failure to follow the clear mandate of the Nebraska reporting

statute despite the existence of "reasonable cause" represents the

dereliction of a ministerial duty. At the very least, I would

remand this issue to the district court for further consideration

of whether or not such reasonable cause existed from January 27,

1989, to January 31st of that year. 
-24-

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.