UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-1009

H.H., a minor, by and through her mother and next friend, 

H.F.; H.F., 

 Plaintiffs – Appellees, 

 v. 

WANDA MOFFETT, individually and in her official capacity as 

an employee of the Chesterfield County School Board; ANN 

MINGUZZI, individually and in her official capacity as an 

employee of the Chesterfield County School Board, 

 Defendants – Appellants, 

 and 

CHESTERFIELD COUNTY SCHOOL BOARD; MARCUS J. NEWSOME, in his 

official capacity as Superintendent of Chesterfield County 

Schools, 

 Defendants. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Richard L. Williams, Senior 

District Judge. (3:07-cv-00223-RLW) 

Argued: December 4, 2008 Decided: July 7, 2009 

Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges. 

Affirmed and remanded by unpublished opinion. Judge Gregory 

wrote the opinion, in which Judge Michael joined. Judge 

Niemeyer wrote a dissenting opinion. 
ARGUED: Steven Latham Micas, COUNTY ATTORNEY’S OFFICE FOR THE 

COUNTY OF CHESTERFIELD, Chesterfield, Virginia, for Appellants. 

William Henry Hurd, TROUTMAN SANDERS, L.L.P., Richmond, 

Virginia, for Appellees. ON BRIEF: Stylian P. Parthemos, 

COUNTY ATTORNEY’S OFFICE FOR THE COUNTY OF CHESTERFIELD, 

Chesterfield, Virginia, for Appellants. Kevin W. Mottley, 

Stephen A. Northup, Siran S. Faulders, Stephen C. Piepgrass, 

TROUTMAN SANDERS, L.L.P., Richmond, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit. 

2 
GREGORY, Circuit Judge: 

This case concerns the treatment of a severely disabled 

little girl, H.H., by the Appellants, a special education 

teacher and a teaching assistant. H.H. and her mother, the 

Appellees, have alleged, in an action brought under 42 U.S.C. 

§ 1983 (2000), that Appellants maliciously kept H.H. restrained 

in her wheelchair for hours at a time during the school day, 

while they ignored her, verbally abused her, and schemed to 

deprive her of educational services. The evidence taken in the 

light most favorable to the Appellees demonstrates that 

Appellants’ conduct violated H.H.’s clearly established right to 

freedom from undue restraint under the Fourteenth Amendment, and 

Appellants are therefore not entitled to qualified immunity as a 

matter of law. 

I. 

Since we are asked to review the district court’s handling 

of the Appellants’ motion for summary judgment, we present the 

facts in the light most favorable to the Appellees. H.H., age 

seven at the time of the filing of briefs in this appeal, was 

born with cerebral palsy and a neurological condition known as 

polymicrogyria, a seizure-causing disorder. According to her 

mother, H.F., although H.H. is disabled, she “can crawl around 

and is very mobile,” engaging in activities like “looking at 

3 
books, playing with musical instruments/toys, swinging, being 

with other children, playing on the computer and crawling on 

playgrounds.” (J.A. 368.) But, because she cannot yet walk on 

her own, H.H. is transported in a wheelchair equipped with a 

safety strap that prevents her from falling out. 

From September 2002 until June 2005, H.H. was enrolled in 

pre-school at Marguerite Christian Elementary School in 

Chesterfield County, Virginia. According to H.F., H.H. was 

happy at Marguerite Christian and was always an active 

participant in her class. At the end of the 2004-2005 school 

year, H.H. graduated from pre-school and was assigned to a 

kindergarten program at Chesterfield County’s O.B. Gates 

Elementary School (“O.B. Gates”) for the 2005-2006 school year. 

O.B. Gates is a magnet school that serves both general education 

students and students with special needs and disabilities. 

There is some dispute about whether H.H. had an Individual 

Education Plan (“IEP”) in place for her time at O.B. Gates, in 

accordance with the Individuals with Disabilities in Education 

Act. However, it is undisputed that, whether by IEP or 

otherwise, H.H.’s schedule was supposed to include the following 

activities outside of her wheelchair: 60 minutes of individual 

physical therapy every 2 weeks to help her strengthen her legs; 

group and individual speech therapy (both in and out of her 

chair) for 1 hour every week; group physical education training 

4 
for 25-30 minutes every week; hygiene instruction, including 

toilet training, 3 times a day every day; floor play, at least 

twice a day; mobility training for 30 minutes every day; and 

recess (where she played both in and out of her chair) for 30 

minutes every day. Scheduled activities in which H.H. generally 

was to remain seated included: 90 minutes of individual 

occupational therapy every 2 weeks; group music training for 20 

minutes every week; group library training for 20 minutes every 

week; group art training for 20 minutes every week; lunch in the 

cafeteria for 30 minutes every day; and classroom group circle 

time for an hour every day. 

H.H. was assigned to Wanda Moffett’s multi-aged class of 

students with severe disabilities at O.B. Gates. Ann Minguzzi 

was Moffett’s teacher’s aide that year. According to H.F., 

Moffett displayed hostility towards her and her daughter from 

the beginning of the year. Moffett was allegedly especially 

resistant to H.H. spending time outside of her wheelchair, even 

though H.F. informed Moffett that her daughter hated to be 

confined in the wheelchair and was a very active child. 

H.F. began to notice that her daughter was becoming 

increasingly distressed, anxious, and angry about her 

experiences at O.B. Gates. Every day as they approached the 

school, H.H. would begin to cry or scream. Often when H.F. 

returned to pick H.H. up from school, her daughter would be 

5 
screaming. H.H.’s time at home after school and on the weekends 

was generally “calm and happy” by contrast. (J.A. 371.) 

According to H.F., H.H. also began to experience an increasing 

number of “grand mal” seizures1 during the 2005-2006 school year, 

to the point where her doctor contemplated performing major 

corrective brain surgery. 

Based on the changes she noticed in her daughter, H.F. 

became suspicious about the kind of treatment H.H. was receiving 

at O.B. Gates, so she placed a small recording device on H.H.’s 

wheelchair from April 18-20, 2006.2 According to H.F., the 

recordings “establish that H.H. spent most of her time confined 

in the wheelchair,” based on the noises H.H. makes throughout 

the recordings and based on the proximity of H.H.’s voice to the 

microphone.3 H.F. also claims that the recordings show that H.H. 

 1

 “Grand mal” seizures are ones involving the entire body. 

They are characterized by a loss of consciousness and violent 

muscle contractions. 

2

 In the district court, Appellants have challenged the 

admissibility of evidence from the recording device as a 

violation of the Federal Wiretapping Act, 18 U.S.C. § 2510 et 

seq. (2006). For the limited purpose of this appeal, we will 

assume admissibility. 

3

 This Court has been provided with copies of the audio 

recordings obtained by H.F.; however, the quality of the 

recordings and the amount of environmental noise make it 

difficult to hear clearly what transpired. Because this comes 

to us on summary judgment, we will assume H.F.’s interpretation 

of the recordings. 

6 
received almost no educational services.4 Instead, Moffett and 

Minguzzi kept H.H. in her chair and ignored her, spending their 

time gossiping, making fun of both H.H. and other children in 

the school, and conspiring about how to prevent H.H. from 

receiving extended school-year services. The audio recordings 

allegedly capture adult voices telling H.H. that she is “gross,” 

“coddled,” and “has a face only a mother could love.” The 

recordings also suggest that Appellants may have been planning 

to sabotage an upcoming IEP meeting by instructing other school 

employees to say as little as possible at the meeting so that 

H.H. would not be offered extended school year services. At one 

point, when H.H. screamed or cried to get the adults’ attention, 

H.F. claims the audiotape indicates that an adult voice 

responded, “HEY! Shut the f--- up!”5 (J.A. 372.) After hearing 

the recordings, H.F. immediately removed H.H. from O.B. Gates. 

H.H. has not experienced a “grand mal” seizure since then. 

 4

 At the start of the school year, Moffett’s class had six 

children in it, but as the year progressed, some of the students 

transferred or left because of illness, leaving only two 

students (including H.H.) who regularly attended, and one other 

who was on the class roll but was frequently absent. On the 

days when the audio recording device was active, H.H. was often 

the only child in the classroom. 

5

 Both Moffett and Minguzzi deny ever making this statement. 

The audio recording is rather muffled at this point, and Moffett 

suggests that the statement may have been, “[P]ut the stuff up.” 

(Appellants’ Reply Br. at 16 n.10.) 

7 
On April 17, 2007, H.F. filed a complaint in the United 

States District Court for the Eastern District of Virginia, on 

behalf of her daughter and herself, against Moffett, Minguzzi, 

the Chesterfield County School Board (“CCSB”), and 

Superintendent of Chesterfield County Schools Marcus Newsome. 

The complaint included a claim under 42 U.S.C. § 1983 (2000), 

alleging a violation of H.H.’s Fourteenth Amendment rights, as 

well as common law claims of intentional infliction of emotional 

distress and false imprisonment, and claims of violations of the 

Americans with Disabilities Act and the Rehabilitation Act. On 

September 7, 2007, Moffett and Minguzzi filed a motion for 

summary judgment, in which they asserted that they were entitled 

to qualified immunity on Appellees’ § 1983 claim. H.H. 

responded with a motion for a continuance pursuant to Federal 

Rule of Civil Procedure 56(f) to allow her to obtain additional 

discovery to support her opposition to Moffett and Minguzzi’s 

motion for summary judgment. Moffett and Minguzzi filed a 

motion for a protective order on October 26 to suspend discovery 

on grounds of qualified immunity. 

After a hearing on the motions, the district court entered 

an order granting the plaintiffs’ motion for a continuance under 

Rule 56(f), holding Moffett and Minguzzi’s motion for summary 

judgment in abeyance until plaintiffs “have completed 

discovery,” and denying Moffett and Minguzzi’s motion for a 

8 
protective order.6 (J.A. 556.) The district court found that 

the parties disputed material facts regarding defendants’ 

treatment of the plaintiffs that would affect the outcome of the 

case, and that much of the relevant evidence was in the control 

of defendants. Thus, in the district court’s view, defendants’ 

motion for summary judgment was “premature” and the court would 

defer ruling on it until plaintiffs had “adequate time to 

conduct discovery.” (J.A. 551-52.) The district court went on 

to find that plaintiffs had alleged “the violation of a 

constitutional right . . . [that] was clearly established at the 

time of the alleged violation.” (J.A. 553.) 

Moffett and Minguzzi now appeal this order, arguing that 

the district court did not have the authority to hold their 

motion for summary judgment in abeyance because they were 

entitled to qualified immunity as a matter of law. 

II. 

Before we consider the merits of Moffett and Minguzzi’s 

appeal, we must first resolve a threshold jurisdictional 

 6

 The district court also granted Newsome’s motion to 

dismiss and granted in part and denied in part CCSB’s motion to 

dismiss. The court found that CCSB was entitled to sovereign 

immunity on Appellees’ state tort claims, but that additional 

discovery was needed to determine whether the school board could 

be held liable for its employees’ conduct under § 1983. 

9 
question raised by the Appellees. Appellants claim that we have 

jurisdiction to hear this appeal under Mitchell v. Forsyth, 472 

U.S. 511 (1985). Appellees counter, however, that a decision to 

hold a motion for summary judgment in abeyance is not an 

immediately appealable final decision, even under Mitchell. 

Section 1291 of Title 28 of the United States Code vests 

courts of appeals with “jurisdiction of appeals from all final 

decisions of the district courts of the United States.” Denials 

of motions for summary judgment are generally not considered 

“final decisions” and are therefore not appealable. See Smith 

v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 966 (10th 

Cir. 2002). But, in Mitchell, the Supreme Court recognized that 

denials of qualified immunity at the summary judgment stage fell 

within the scope of the collateral order doctrine and were 

properly appealable “final decisions” under 28 U.S.C. § 1291.7 

472 U.S. at 524-30. 

 7

 The collateral order doctrine, as articulated in Cohen v. 

Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949), 

allows for interlocutory review of certain issues within a case 

where those issues “finally determine claims of right separable 

from, and collateral to, rights asserted in the action, too 

important to be denied review and too independent of the cause 

itself to require that appellate consideration be deferred until 

the whole case is adjudicated.” Essentially there are three 

criteria necessary for Cohen’s collateral order exception to 

apply: the order over which review is sought must conclusively 

determine the disputed questions; it must be independent of the 

merits of the underlying action; and it must regard a claim that 

would be effectively unreviewable if appeal was delayed until 

(Continued) 

10 
The Mitchell Court recognized that, because qualified 

immunity is “an immunity from suit rather than a mere defense to 

liability,” the entitlement “is effectively lost if a case is 

erroneously permitted to go to trial.” Id. at 526. Thus a 

denial of summary judgment “conclusively determines the 

defendant’s claim of right not to stand trial on the plaintiff’s 

allegations.” Id. at 527 (emphasis omitted). Moreover, a 

qualified immunity determination presents a discrete question of 

law -- “whether the legal norms allegedly violated by the 

defendant were clearly established at the time of the challenged 

actions” –- that does not require the court to “consider the 

correctness of the plaintiff’s version of the facts, nor even 

determine whether the plaintiff’s allegations actually state a 

claim.” Id. at 528. 

If Moffett and Minguzzi were appealing an outright denial 

of qualified immunity then their appeal would plainly be 

reviewable under Mitchell. But here, the district court has 

placed Appellants’ motion for summary judgment in abeyance until 

plaintiffs “have completed discovery.” (J.A. 556.) Thus, 

 

the termination of district court proceedings. Id. at 546. In 

Mitchell, the Court found that a denial of qualified immunity 

meets all three of the Cohen collateral order criteria. 

Mitchell, 472 U.S. at 524-30. 

11 
Appellees argue, “the district court never made any sort of 

final ruling.” (Appellees’ Br. at 3.) 

Whatever the technical merits of this argument, it is 

indisputable that the district court has effectively decided the 

discrete question of law that is now being appealed –- whether, 

under the facts alleged by Appellees, Moffett and Minguzzi have 

violated Appellees’ clearly established constitutional rights. 

In its Memorandum Opinion, the district court says plainly that 

it has “determined that plaintiff’s complaint does allege the 

violation of a constitutional right, and that the right was 

clearly established at the time of the alleged violation.” 

(J.A. 553.) The district court only placed the motion for 

summary judgment in abeyance so that Appellees could take 

additional discovery in order to demonstrate that, as a factual 

matter, Moffett and Minguzzi had violated their constitutional 

rights. 

Allowing Appellees to now force Moffett and Minguzzi into 

discovery, without recourse to appeal the district court’s legal 

finding, would contravene the spirit of the Supreme Court’s 

decision in Mitchell. Mitchell underscored that “even such 

pretrial matters as discovery are to be avoided if possible.” 

472 U.S. at 526. “Unless the plaintiff’s allegations state a 

claim of violation of clearly established law, a defendant 

pleading qualified immunity is entitled to dismissal before the 

12 
commencement of discovery.”8 Id. (emphasis added); see also

Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other 

grounds by Pearson v. Callahan, 129 S. Ct. 808 (2009) (“[W]e 

repeatedly have stressed the importance of resolving immunity 

questions at the earliest possible stage in litigation.” 

(internal citation and quotations omitted)); Harlow v. 

Fitzgerald, 457 U.S. 800, 818 (1982) (“Until this threshold 

immunity question is resolved, discovery should not be 

allowed.”); cf. Johnson v. Jones, 515 U.S. 304, 313 (1995) 

(limiting Mitchell to allow only qualified immunity appeals that 

are based on a claim that the judge, taking the facts as given, 

erred as a matter of law in finding a violation of clearly 

established law); Winfield v. Bass, 106 F.3d 525, 529-30 (4th 

Cir. 1997) (en banc) (same). 

 8

 Appellees observe that, even if qualified immunity 

protects Moffett and Minguzzi from the § 1983 claim, it is no 

defense to Appellees’ state law claims of intentional infliction 

of emotional distress and false imprisonment. Thus, Appellees 

argue that a ruling on the qualified immunity issue would be 

premature “[b]ecause the burden of discovery will fall on the 

government and its agents no matter what the outcome of the 

qualified immunity question.” (Appellees’ Br. at 48.) In 

Behrens v. Pelletier, 516 U.S. 299, 312 (1996), the Supreme 

Court rejected just such an argument, noting that the “right to 

[qualified] immunity is a right to immunity from certain claims, 

not from litigation in general; when immunity with respect to 

those claims has been finally denied, appeal must be available, 

and cannot be foreclosed by the mere addition of other claims to 

the suit.” 

13 
Several of our sister circuits have found that similar 

deferrals of decision on an immunity claim were immediately 

appealable. In X-Men Security, Inc. v. Pataki, 196 F.3d 56, 64, 

67 (2d Cir. 1999), for example, the Second Circuit determined 

that it had jurisdiction to review a district court’s rejection 

of the defendant’s claim of qualified immunity which was found 

to be “premature in advance of discovery.” The court explained: 

Where the district court bases its refusal to 

grant a qualified-immunity motion on the premise that 

the court is unable to, or prefers not to, determine 

the motion without discovery into the alleged facts, 

that refusal constitutes at least an implicit decision 

that the complaint alleges a constitutional claim on 

which relief can be granted. That purely legal 

decision does not turn on whether the plaintiff can in 

fact elicit any evidence to support his allegations; 

it thus possesses the requisite finality for immediate 

appealability under the collateral order doctrine. 

. . . A district court’s perceived need for discovery 

does not impede immediate appellate review of the 

legal questions of whether there is a constitutional 

right at all and, if so, whether it was clearly 

established at the time of the alleged conduct . . . . 

Id. at 66-67; see also Summers v. Leis, 368 F.3d 881, 887 (6th 

Cir. 2004) (“This Court finds that the district court’s refusal 

to address the merits of the defendant’s motion asserting 

qualified immunity constitutes a conclusive determination for 

the purposes of allowing an interlocutory appeal.”); cf. Wicks 

v. Miss. State Employment Servs., 41 F.3d 991, 995 (5th Cir. 

1995) (reversing a district court’s denial of a protective order 

intended to prevent discovery prior to consideration of a 

14 
defendant’s motion to dismiss on qualified immunity grounds); 

Valiente v. Rivera, 966 F.2d 21, 23 (1st Cir. 1992) (finding 

immediately appealable a district court’s refusal to entertain a 

qualified immunity claim on summary judgment); Smith v. Reagan, 

841 F.2d 28, 31 (2d Cir. 1988) (“By holding the decision [on the 

State’s Eleventh Amendment immunity motion] in abeyance pending 

the completion of all discovery in the case, the district court 

effectively denied that right.”). 

Here the district court plainly decided that, as a matter 

of law, Moffett and Minguzzi’s alleged conduct violated 

Appellees’ clearly established constitutional rights. The fact 

that this decision was made in the context of placing Moffett 

and Minguzzi’s motion for summary judgment in abeyance does not 

place it outside the realm of the collateral order doctrine. We 

find, therefore, that we have jurisdiction to review this 

discrete question of law. 

III. 

Turning now to the merits of the appeal, Appellants are 

entitled to qualified immunity if they can show that they have 

not violated Appellees’ clearly established constitutional 

rights. Harlow, 457 U.S. at 818. Appellees argue that Moffett 

and Minguzzi violated H.H.’s clearly established substantive due 

process right to freedom from undue restraint by keeping her 

15 
physically restrained in her wheelchair for hours at a time. We 

agree inasmuch as the facts alleged by Appellees create a 

reasonable inference that the Appellants’ conduct was motivated 

by malice. 

We have long recognized that “‘[liberty] from bodily 

restraint . . . [lies at] the core of the liberty protected by 

the Due Process Clause [of the Fourteenth Amendment].’” 

Youngberg v. Romeo, 457 U.S. 307, 316 (1982) (quoting Greenholtz 

v. Nebraska Penal Inmates, 442 U.S. 1, 18 (1979) (Powell, J., 

concurring in part and dissenting in part)). Because restraint 

cases require us to balance an individual’s liberty interest 

against a state interest in using the restraint, “[t]he question 

. . . is not simply whether a liberty interest has been 

infringed but whether the extent or nature of the restraint 

. . . is such as to violate due process.” Id. at 320. In 

Youngberg, for example, we found that a state mental institution 

could “not restrain residents except when and to the extent 

professional judgment deems this necessary . . . .” Id. at 324. 

In this case, conceivable legitimate justifications exist 

for keeping H.H. strapped into her wheelchair. It is undisputed 

that, because of her disabilities, H.H. could not be seated 

16 
safely in her chair without the use of some sort of restraint.9 

Furthermore, during the course of a normal school day, H.H. 

would often need to be seated while being instructed. However, 

on Appellees’ facts, it was not educational or safety concerns 

that motivated Appellants’ conduct. Nor even was it merely 

laziness or incompetence. Instead, Appellees suggest that 

Appellants made the decision to keep H.H. restrained “for long 

periods of time . . . . with malice . . . [and] with callous and 

deliberate indifference toward the rights of H.H.”10 (J.A. 19.) 

Appellees have supported these allegations with evidence of 

Appellants’ animus, namely their early hostility towards H.H., 

their cruel and verbally abusive remarks to the child, and their 

comments suggesting that they were conspiring to prevent from 

her getting educational services to which she might otherwise 

have been entitled. Appellees’ allegations are all the more 

concerning given H.H.’s limited ability to communicate verbally, 

 9

 H.H.’s wheelchair is equipped with a lap belt for just 

this reason. H.H.’s other seating option in her classroom was a 

Rifton chair -- a chair adapted especially to provide extra 

upper body support to children with severe disabilities. The 

chair employs a belt system to keep a disabled child upright and 

also comes with a tray attachment. (See J.A. 307.) 

10 We need make no judgment as to whether H.H.’s substantive 

due process rights would be implicated if Appellants had acted 

out of laziness or incompetence because Appellees have alleged 

that Appellants acted out of malice. 

17 
meaning that she could neither report nor reject the Appellants’ 

conduct. 

 Where the use of a restraint is “so inspired by malice 

. . . that it amount[s] to a brutal and inhumane abuse of 

official power literally shocking to the conscience,” we cannot 

but find that it violates an individual’s substantive due 

process rights. Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 

1980) (emphasis added). Here, if Moffett and Minguzzi were 

physically restraining H.H. for hours on end, and using that 

time to verbally abuse her and strategize against her, that 

behavior certainly shocks the conscience. In such 

circumstances, we also must conclude that Appellants violated 

clearly established law, as a reasonable teacher would plainly 

recognize that maliciously restraining a child for long periods 

of time was unlawful. See Jefferson v. Ysleta Independent 

School District, 817 F.2d 303 (5th Cir. 1987) (affirming denial 

of qualified immunity where teacher tied an eight-year-old child 

to her chair with a jump rope for almost two full school days); 

cf. Heidemann v. Rother, 84 F.3d 1021, 1029 (8th Cir. 1996) 

(granting qualified immunity where teachers used a blanket 

restraint on a developmentally disabled child at the direction 

of a physical therapist). 

The dissent would find Moffett and Minguzzi entitled to 

qualified immunity because “we have not found any case that 

18 
holds that a teacher, who straps a disabled child in her 

wheelchair in the classroom, violates the child’s constitutional 

right to be free from restraint.” (Diss. Op. at 1-2). Yet we 

need not identify a case that is “factually on all-fours” in 

order to find that a clearly established right has been 

violated. Jefferson, 817 F.2d at 305; see also Hope v. Pelzer, 

536 U.S. 730, 739 (2002). Rather, “[f]or a constitutional right 

to be clearly established, its contours ‘must be sufficiently 

clear that a reasonable official would understand that what he 

is doing violates that right.’” Hope, 536 U.S. at 739 (quoting 

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). 

We have little difficulty finding that a reasonable teacher 

would know that maliciously restraining a child in her chair for 

hours at a time interferes with that child’s constitutional 

liberty interests. In Jefferson, the court found that, where 

plaintiffs alleged that a teacher had tied an eight-year-old 

student to a chair with a jump rope for an entire school day, 

the teacher was not entitled to a defense of qualified immunity. 

817 F.2d 303. The use of the jump rope restraint was found to 

violate the child’s right to freedom from undue bodily restraint 

even though it was supposedly being employed “as part of an 

instructional technique imposed by school policy.” Id. at 304. 

Jefferson thus reinforced the point made in Hall: even where a 

teacher may have a conceivably permissible justification for use 

19 
of a restraint, her actions will not be protected by qualified 

immunity when they amount to an “abuse of official power 

literally shocking to the conscience.” Hall, 621 F.2d at 613. 

The Eighth Circuit’s decision in Heidemann is not to the 

contrary. In that case, a disabled child’s special education 

teachers received qualified immunity for their use of a blanket 

restraint because the court found that the restraint was 

employed at the advice of a licensed physical therapist under 

contract with the school. Heidemann, 84 F.3d at 1029. The 

facts of Heidemann are a far cry from the “abuse of official 

power,” Hall, 621 F.2d at 613, that is alleged here. 

We stress that Appellees’ facts make this an unusual case, 

and our opinion is one that no reasonable teacher who errs in 

judgment ought to fear. Qualified immunity is intended to 

protect officials who make reasonable mistakes about the law. 

Saucier, 533 U.S. at 206. But the immunity simply does not 

extend protection to an official motivated by the kind of bad 

faith alleged here.11

 11 Today’s opinion does not, as the dissent worries, 

“creat[e] a right of public school children either to be 

instructed or to be free to roam the classroom as they wish.” 

(Diss. Op. at 6.) It simply recognizes that a teacher who 

maliciously employs physical restraints to keep a student in her 

seat for long periods of time violates that child’s clearly 

established constitutional rights. 

20 
21 

IV. 

This appeal came to us as a challenge to the district 

court’s decision to hold Appellants’ motion for summary judgment 

in abeyance, grant the Appellees’ motion for a Rule 56(f) 

continuance, and deny the Appellants’ motion for a protective 

order. The Appellants have argued that they were entitled to 

qualified immunity and that we should accordingly reverse these 

three rulings. Because we have found that, on the facts taken 

in the light most favorable to Appellees, the Appellants are not 

entitled to qualified immunity as a matter of law, and because 

Appellants have raised no other question of error on the part of 

the district court, we affirm and remand to the district court 

for further proceedings consistent with this opinion. 

AFFIRMED AND REMANDED
22 

NIEMEYER, Circuit Judge, dissenting: 

 H.H., a severely disabled seven-year old girl -– she can 

neither walk nor talk -– and her mother commenced this action 

against two public school teachers for strapping H.H. into a 

wheelchair for too extensive a time, even though strapping H.H. 

into the chair was necessary to enable her to sit up in her 

chair. As the majority notes, “It is undisputed that, because 

of her disability, H.H. could not be seated safely in her chair 

without the use of some sort of restraint.” While the 

educational undertaking, and indeed her Individual Education 

Plan, required that H.H. be strapped in her chair for most of 

the school day, H.H.’s mother contends that the teachers 

strapped her in too long in furtherance of their own convenience 

and that the teachers maliciously mocked the child’s disability 

while she was in her chair. Based on these allegations, H.H. 

and her mother contend that the teachers violated H.H.’s 

constitutional right to be free from undue restraint. 

 The teachers contend that H.H. and her mother have not 

alleged a violation of a constitutional right, much less a wellestablished constitutional right of which they should have been 

aware. Accordingly, they claim that the complaint should be 

dismissed, based on their qualified immunity, and I agree. 
23 

 To begin with, we have not found any case that holds that a 

teacher, who straps a disabled child in her wheelchair in the 

classroom, violates the child’s constitutional right to be free 

from restraint, even if the child is strapped in her chair a few 

hours longer than anticipated by the educational program and 

even if the restraint is imposed for improper motives. Any 

assumption that such a constitutional right exists as a well 

established right so that a reasonable teacher would know that 

she is violating the constitution has no basis in any Supreme 

Court case or Fourth Circuit case. Indeed, the closest case 

decided in our circuit involved a claim that police officers, 

who handcuffed a prisoner to a light pole in the middle of a 

deserted parking lot and left the prisoner there for hours until 

the police officers from another county could pick the prisoner 

up, violated the prisoner’s constitutional rights. See Robles 

v. Prince George’s County, Md., 302 F.3d 262 (4th Cir. 2002). 

In that case, we held that the police officers did not violate a 

well-established constitutional right. Id. at 270. 

 The most analogous decision we could find is the Eighth 

Circuit’s decision in Heidemann v. Rother, 84 F.3d 1021 (8th 

Cir. 1996), where the plaintiff, a nine-year old nonverbal child 

with severe mental and physical disabilities, claimed her 

teachers violated her constitutional rights when they used a 
24 

therapeutic treatment referred to as “blanket wrapping.” Under 

the procedure, the child was bound with a blanket so that she 

could not use her arms, legs, or hands for hours at a time. 

Despite the fact that the plaintiff alleged that the “blanket 

wrapping was used as a means of physical restraint . . . [and] 

that it was administered as a substitute for educational and 

habilitative programming merely for defendants’ convenience,” 

id. at 1026, the Eighth Circuit held that the teachers’ conduct 

did not amount to a constitutional violation and that the 

teachers were entitled to qualified immunity. The court 

concluded that “even if the blanket wrapping treatment did 

constitute a substantial departure from professional norms, . . 

. a reasonable official would not have known that to be true.” 

Id. at 1029. 

 H.H. and her mother have struggled both in their briefs and 

at oral argument to define a precise constitutional right that 

the teachers in this case allegedly violated. Ultimately they 

settled on the teachers’ “purposeless physical restraint” of 

H.H. in her chair, contending that it violated H.H.’s right to 

be free from unjustified bodily restraint, as protected by the 

Due Process Clause of the Fourteenth Amendment. They argued 

that the teachers violated H.H.’s protected liberty interest by 
25 

keeping her “unnecessarily strapped and restrained in her 

wheelchair for hours at a time.” 

 On the record in this case, however, I simply cannot 

understand how one can contend that the physical restraint of 

H.H. was “purposeless.” The lap belt on H.H.’s chair had a very 

clear purpose, as her mother recognized, because H.H. could not 

be seated safely in her chair without being strapped in it. 

When we take the lap belt itself out of the calculus, we are 

left with a claim that keeping H.H. in her chair “for hours at a 

time” without instruction was in effect a purposeless and a 

constitutionally violative governmental restraint. Stated 

otherwise, H.H. and her mother must, of necessity, be contending 

that H.H. had a constitutional right to be instructed or to be 

out of her wheelchair. But school children are routinely 

required to sit in their chairs “hours at a time,” at the sole 

judgment of the teacher. Surely if a teacher required a 

classroom of students to be seated for a full school day because 

the teacher did not wish to teach the students or to interact 

with them, she would not be depriving the students of 

constitutionally protected liberty. I therefore, cannot 

understand how H.H. and her mother can claim a constitutional 

right for H.H. not to be kept in her chair for hours at a time 
26 

when similarly situated non-disabled children do not have such a 

right. 

 By denying the teachers in this case qualified immunity, 

the majority seems to insist (1) that the teachers should have 

knowledge of some constitutional right that has not yet been 

defined by the Supreme Court or by the Fourth Circuit, and (2) 

that the teachers deliberately violated that constitutional 

right. Qualified immunity protects public school teachers “from 

liability for civil damages insofar as their conduct does not 

violate clearly established statutory or constitutional rights 

of which a reasonable [school teacher] would have known.” 

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). And the 

“relevant, dispositive inquiry in determining whether a right is 

clearly established is whether it would be clear to a reasonable 

[school teacher] that [her] conduct was unlawful in the 

situation [she] confronted.” Saucier v. Katz, 533 U.S. 194, 202 

(2001) (emphasis added) (citing Wilson v. Layne, 526 U.S. 603, 

615 (1999) (“[A]s we explained in Anderson, the right allegedly 

violated must be defined at the appropriate level of specificity

before a court can determine if it was clearly established” 

(emphasis added))). 

 Neither the plaintiffs nor the majority have identified any 

case that would instruct the teachers in this case that their 
27 

conduct, even if improperly motivated, violated H.H.’s 

constitutional rights. The closest they come is a single, 

factually distinguishable case out of the Fifth Circuit, in 

which a teacher punished a nine-year old child by tying her to a 

chair with a jump rope for almost two school days, not allowing 

her even to use the restroom. See Jefferson v. Ysleta Indep. 

Sch. Dist., 817 F.2d 303, 304-5 (5th Cir. 1987). Of course, the 

jump rope was not required for any safety consideration, as 

here, but rather was used to punish the child. Id.

 In sum, the majority seems to be creating a right of public 

school children either to be instructed or to be free to roam 

the classroom as they wish. While H.H. and her mother may have 

claims for alleged failures to educate H.H. properly, they 

should not be allowed to morph those claims into constitutional 

claims against teachers in their personal capacity. I submit 

that the implication of the majority’s holding, which plows 

entirely new ground, is far-reaching and leaves public school 

teachers exposed to constitutional claims in circumstances where 

they may have simply exercised poor judgment, even for 

unacceptable reasons. Because we erroneously deny these school 

teachers qualified immunity, I dissent.