M.J. v. Akron City Sch. Dist Bd. of Educ.

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0135p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
20-3461 ┐
M.J., a minor, by and through his guardian, S.J.; S.J., │
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Plaintiffs-Appellants,
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v. > Nos. 20-3461/3462
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AKRON CITY SCHOOL DISTRICT BOARD OF EDUCATION; AKRON │
CITY SCHOOL DISTRICT; DAVID W. JAMES, Superintendent of │
Akron City School District, in his official capacity; PHILOMENA │
VINCENTE, JENNIFER RAMON, and CHRISTOPHER HENDON, in │
their official and individual capacities, │
Defendants-Appellees. │
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20-3462
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M.H., legal custodian and next best friend of minor child, W.H.; │
W.H., by and through his guardian, M.H., │
Plaintiffs-Appellants, │
│
v. │
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AKRON CITY SCHOOL DISTRICT BOARD OF EDUCATION; AKRON │
CITY SCHOOL DISTRICT; DAVID W. JAMES, Superintendent of │
Akron City School District, in his official capacity; PHILOMENA │
VINCENTE, TRACI MORRISON, and CHRISTOPHER HENDON, in │
their official and individual capacities, │
Defendants-Appellees. │
┘
Appeal from the United States District Court for the Northern District of Ohio at Akron.
Nos. 5:18-cv-00577 (20-3461); 5:18-cv-00870 (20-3462)—Sara E. Lioi, District Judge.
Argued: January 27, 2021
Decided and Filed: June 15, 2021
Before: SUTTON, Chief Judge; BOGGS and NALBANDIAN, Circuit Judges.
Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 2
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COUNSEL
ARGUED: Edward L. Gilbert, EDWARD L. GILBERT CO., L.P.A., Akron, Ohio for all
Appellants. Steven D. Strang, GALLAGHER SHARP LLP, Cleveland, Ohio, for all Appellees.
ON BRIEF: Edward L. Gilbert, EDWARD L. GILBERT CO., L.P.A., Akron, Ohio for
Appellants M.J., S.J., M.H., and W.H. Steven D. Strang, Richard C.O. Rezie, GALLAGHER
SHARP LLP, Cleveland, Ohio, for all Appellees.
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OPINION
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NALBANDIAN, Circuit Judge. The Constitution does not guarantee a remedy for every
wrong. That is unfortunately true in this strange case. Christopher Hendon impersonated a
police officer to gain access to Leggett Elementary, a public school in Akron, Ohio. His plan
was to restart the city’s Scared Straight Program—a program in which unruly children and teens
are exposed to arrest and imprisonment in hopes that the process will scare them into behaving
well.1 By dressing and acting like a legitimate police officer, Hendon convinced Leggett’s
administration and teachers that he worked for the Akron Police Department. This enabled him
to roam the school’s halls freely.
But Hendon heaped abuse on top of his fraud. He used his freedom to navigate Leggett
to place children in handcuffs and force students to exercise. He even violently battered and
verbally assaulted one child. Now, some of Hendon’s victims are suing the Akron City School
District, its Board of Education, and a few of Leggett’s employees. They bring a variety of
federal constitutional and statutory claims, as well as some state-law claims. The district court
granted defendants summary judgment on the federal claims and dismissed the state-law claims
without prejudice. Plaintiffs now appeal, and we AFFIRM.
1
The original “Scared Straight!” documentary aired in the late 1970s and involved juvenile offenders
exposed to inmates at Rahway State Prison in New Jersey. The film won an Academy Award for Best Documentary
Feature in 1978 and spawned later documentaries, television shows, and copycat programs in other communities.
Scared Straight!, Wikipedia, https://en.wikipedia.org/wiki/Scared_Straight! (last accessed Mar. 15, 2021).
Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 3
I.
A.
The day Christopher Hendon first arrived at Leggett Elementary was chaotic. It began
when a misbehaving child was sent to the front office. Leggett’s principal, Philomena Vincente,
called the child’s mother to come pick him up. But instead of personally coming, the mother
told the school that her “boyfriend who is a policeman” would come. That boyfriend turned out
to be Christopher Hendon.
In the meantime, a mother of two of Leggett’s students called to warn the school that the
students’ father, who was high on drugs, was coming to the school to try to kidnap the children.
The mother feared that the father would kill himself in front of them. Naturally, the school
called the police and summoned Akron Board of Education police officer Don Good, a reserve
officer with the Akron Police Department. Though the father beat the police to the school,
Vincente intervened in time to prevent him from taking his children, and when a marked police
cruiser arrived, the father fled until police apprehended him.
While all this was going on, Christopher Hendon showed up. He was there to pick up the
unruly child, who remained in the office as Vincente and the school tried to deal with the
disruptive parent. After Hendon pulled up to the school, Vincente saw him speak with the Akron
police officer who had arrived in response to the still-ongoing incident. Then, as he entered
Leggett, he also talked briefly with Officer Good.
Hendon wore what looked like full SWAT garb—all black, with a vest and badge that
said “officer,” and his name on his uniform. Dressed this way, Hendon would not stand out on a
normal day at Leggett. Uniformed police officers regularly roamed the school’s halls at least a
couple of times a month. They would interact with students and staff to show the students that
“policemen are your friends.” And when police showed up, it was usually unannounced—even
the specific officer often varied. Staff identified a visitor as an officer simply by his or her
uniform—although some said they did not expect officers to discipline students. Still, under an
agreement between the Akron City School Board and the Akron Police Department, police
officers could respond to “unruly behavior” and were “expected to assist school administrators in
Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 4
situations where the officers’ training and background experience may be useful.” (R. 92-6,
Agreement at 9–10, PageID # 2791–92).
When Hendon entered the office, the secretaries assumed he was a police officer and did
not require him to sign in. They so assumed not only because of his clothing and interactions
with police officers, but also because the boy Hendon was picking up had identified him as his
mother’s “policeman” boyfriend.
Hendon approached the boy and asked Vincente what kind of trouble he was in. He and
Vincente then talked briefly about Hendon’s efforts with the Akron City Council to restart the
Scared Straight Program. Hendon and Vincente did not interact anymore that day, though
Hendon hung around Leggett until the end of the day to speak with staff. He also spoke for the
first time with one of our plaintiffs, M.J., who was a student at Leggett.
The next morning, Hendon showed up again, uninvited. And again, he was dressed in
what looked like SWAT gear. He and Vincente spoke a second time about the Scared Straight
Program. But this time, Vincente was explicit that she would not allow Hendon to run the
program at Leggett or present the idea to parents. Still, Hendon was committed to his ruse—he
showed Vincente a photo of himself posing with Akron’s mayor.
Later that same day, M.J.’s teacher, Jennifer Ramon, called Leggett “administration”
because M.J. had become aggressive in class. But instead of a school employee, Hendon showed
up. He took M.J. out of the classroom and brought him to the office to ask Vincente for a room.
Vincente directed them to a room near the office, where Hendon threw M.J. against a wall, table,
and chairs and verbally abused him. After leaving the room, Hendon asked the office secretary
for M.J.’s report card, and M.J. gave Hendon his mother’s phone number. Then, Hendon
returned M.J. to class—though M.J. did not tell Ramon or any other school employee about what
happened.
Hendon was not finished with M.J. yet. After the first incident, M.J. and another student
were misbehaving at recess. Observing this, a special education teacher retrieved Hendon, who
took the two students inside to an empty cafeteria and brought them behind a curtain. He then
Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 5
forced them to perform exercises and sent them back to class. Again, M.J. did not tell Ramon
about what happened.
One last interaction between Hendon and M.J. bears mentioning. M.J. and a group of
students began to act out in class. As she did earlier, Ramon called for administration. And also
like the first incident, Hendon showed up instead. He took the boys from class but returned them
a few minutes later. The boys apologized to their teacher, and class proceeded. It is unclear
from the record what happened between the students and Hendon during their brief absence.
Hendon did not target only M.J. His time at Leggett also included an episode with W.H.,
another student at the school. W.H. was a student in Theresa Morrison’s class when Hendon
showed up at Leggett. Morrison first met Hendon in the front office, where Hendon introduced
himself and told Morrison he was with the Scared Straight program. At the time, Hendon was
dressed in his typical dark “uniform,” which Morrison likened to that worn by other officers who
visit Leggett. Because Morrison assumed Hendon was a police officer, she asked him if he
worked for Akron and if he knew a friend of hers, who was also an Akron police officer.
Hendon told Morrison that he indeed worked for Akron and that he knew her friend.
After this initial interaction, Morrison believed Hendon was a police officer. And
Hendon reinforced her belief by showing her photos like those he showed Vincente. These
included photos of Hendon with the mayor of Akron, a group of children at the Juvenile
Detention Center, other police officers, and one of Hendon in uniform presenting to a group of
children.
Some time later, W.H. got into a fight with another student during gym class. Morrison
went to retrieve her class from gym, and when she arrived, the fight was still ongoing. After she
separated the brawlers, Morrison brought W.H. to the office. There, Vincente told Morrison to
call M.H., W.H.’s mother, to tell her to come pick W.H. up from school; Morrison obliged.
While she was on the phone, Hendon approached her and asked to speak with M.H. Again,
Morrison obliged because “[h]e was a police officer.” She handed Hendon the phone, and he
walked away to talk to M.H.
Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 6
During the call, Hendon told M.H. that he was an officer with the Scared Straight
program. And he explained to M.H. that W.H. was acting up in school. The two finished their
call, and M.H. came to the school immediately. When she got there, she, Morrison, Hendon, and
W.H. congregated in the hallway outside Morrison’s classroom. Hendon told M.H. that he
planned to handcuff W.H. and bring him to the office. M.H., assuming Hendon was a police
officer, consented and even filmed the episode.
Once they got to the office, Hendon placed W.H. next to another boy. At the time,
multiple other children were handcuffed there. Hendon left W.H. there for a few hours. When
the day ended, Hendon removed W.H.’s handcuffs at M.H’s request and asked M.H. if he could
take W.H. home in his “cruiser car.” M.H. again gave Hendon her permission, and Hendon
drove W.H. home.
B.
Eventually, the Akron police caught on to Hendon. They investigated and then arrested
him, charging him with more than fifty crimes. And once his actions at Leggett became public,
S.J. (M.J.’s mother) and M.H., on behalf of themselves and their sons (together, plaintiffs), sued.
S.J. sued Vincente, Ramon, Hendon, the Akron City School District, the Akron City School
District’s Board of Education, and David James, superintendent of the Akron City School
District. M.H. sued the same parties but substituted Morrison for Ramon. Each brought a slew
of claims. They sued under § 1983, claiming deprivations of substantive due process and equal
protection and asserting supervisory liability for failure to train. They also sued under the
Rehabilitation Act, the ADA, and Title VI and brought some state law claims.
After discovery, defendants moved for summary judgment in both cases. The district
court granted the motions in a single opinion. Now, plaintiffs appeal. Like the district court, we
decide the cases in a single opinion. We affirm.
Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 7
II.
Plaintiffs object to several of the district court’s rulings.2 To start, they say the district
court erred by ignoring on summary judgment transcripts of school officials’ interviews with
police. The court ignored this evidence because it was hearsay and was unsworn. “Whether the
proffered evidence is hearsay under the Federal Rules of Evidence is a question of law that we
review de novo.” Carter v. Univ. of Toledo, 349 F.3d 269, 274 (6th Cir. 2003).
Plaintiffs also say that the district court erred in dismissing their many substantive claims.
We review the district court’s grant of summary judgment on these claims de novo. Id. at 272.
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). We draw reasonable inferences in favor of the nonmoving party. Carter, 349 F.3d at 272.
But once a party moves for summary judgment and identifies record materials showing no
genuine dispute of material fact, the nonmoving party “must make an affirmative showing with
proper evidence in order to defeat the motion.” Alexander v. CareSource, 576 F.3d 551, 558
(6th Cir. 2009). It must point to “materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations . . . , admissions,
interrogatory answers, or other materials” that show a genuine dispute of material fact. Fed. R.
Civ. P. 56(c)(1)(A).
III.
We begin with the evidence the district court refused to consider: the police interview
transcripts.3 The Akron police, while investigating Hendon, interviewed members of Leggett’s
staff and recorded these interviews. Later, a notary public transcribed the interviews from the
2
There were also several rulings plaintiffs do not challenge here. For instance, they do not appeal the
court’s dismissal of their equal-protection and state-law claims or several of their bases for municipal liability. They
thus abandon those claims. See United States v. Johnson, 440 F.3d 832, 845–46 (6th Cir. 2006).
3
The district court also excluded an affidavit that M.H. (W.H.’s mother) filed to the extent that it
contradicted her deposition testimony. Plaintiffs spend a single sentence objecting to this ruling. They say only that
the district court “failed to consider evidence from M.H.’s affidavit that was consistent with her prior testimony.”
(20-3462 Appellant Br. at 27.) Given this bare-bones briefing, plaintiffs forfeit their argument. See, e.g., Bard v.
Brown County, 970 F.3d 738, 750 (6th Cir. 2020).
Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 8
audio file. And plaintiffs cited these transcripts in their response brief opposing defendants’
motions for summary judgment. Then, in their reply to that brief, defendants “moved” to strike
citations to those transcripts because they constituted unsworn hearsay.
Agreeing with defendants, the district court ignored the transcripts when deciding the
summary judgment motion. It reasoned that the statements were unsworn and constituted
inadmissible hearsay.4 It did not err in ignoring the transcripts on the hearsay ground.
At the outset, defendants claim plaintiffs forfeited the argument that the transcripts are
not hearsay by failing to raise it before the district court. But defendants themselves did not
“move” to strike references to the transcripts until the final brief on the summary judgment
motion. So plaintiffs, under defendants’ theory, would have had to ask for leave to file a
surreply just to preserve the issue. But a party need not “seek leave to file a sur-reply in order to
preserve an argument for purposes of appeal.” Hardrick v. City of Bolingbrook, 522 F.3d 758,
763 n.1 (7th Cir. 2008). Otherwise, “arguments before the district court would proceed ad
infinitum making litigation unruly and cumbersome.” Id. Plaintiffs therefore did not forfeit their
argument that the court should consider the interview transcripts.
Of course, that does not mean plaintiffs win this issue on its merits. “[E]vidence
submitted in opposition to a motion for summary judgment must be admissible.” U.S.
Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1189 (6th Cir. 1997). And hearsay—an
out-of-court statement offered for its truth, Fed. R. Evid. 801(c)—is inadmissible unless the
Federal Rules of Evidence or a federal statute provides otherwise. Fed. R. Evid. 802. Thus, at
summary judgment, hearsay “must be disregarded.” U.S. Structures, Inc., 130 F.3d at 1189.
4
The district court’s (and defendants’) focus on the fact that the interviewees’ initial statements to police
were unsworn appears to rely on an old line of cases holding that “a court may not consider unsworn statements
when ruling on a motion for summary judgment.” Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 968–69 (6th
Cir. 1991). But those cases arose from the old Rule 56—which required that “[i]f a paper or part of a paper is
referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit.” Fed. R. Civ. P.
56(e)(1) (old rule). In 2010, though, Rule 56 underwent revision. And “the amended rule specifically ‘omit[s] as
unnecessary’ ‘[t]he requirement that a sworn or certified copy of a paper referred to in an affidavit or declaration be
attached to the affidavit or declaration.’” Ganesh v. United States, 658 F. App’x 217, 220 (6th Cir. 2016) (quoting
Fed. R. Civ. P. 56(c) advisory committee’s note to 2010 amendment). So the fact that the interviewees’ statements
to police were themselves unsworn is not a basis under Rule 56 for ignoring them on summary judgment.
Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 9
Heeding the call of Federal Rule of Evidence 802, plaintiffs point to the hearsay
exemption in Rule 801(d)(2)(D) to try and get the police transcripts in. Rule 801(d) treats certain
statements that might otherwise be hearsay as “not hearsay.” And under 801(d)(2)(D), a
statement is not hearsay if it is “offered against an opposing party” and “was made by the party’s
agent or employee on a matter within the scope of that relationship and while it existed.”
Plaintiffs say that the interview transcripts satisfy 801(d) because the interviewees—Philomena
Vincente,5 Patricia Derita, and Holly DeLisi—were defendants’ employees.6
We have not spent much time discussing the contours of Rule 801(d)(2)(D) and its
“scope” requirement. On its face, it requires that the statement be “made on a matter within the
scope of” the employment relationship. Fed. R. Evid. 801(d)(2)(D). The “matter” the
interviewees discussed was their observation of Christopher Hendon’s criminal activity on
Leggett’s grounds. So the question is whether this was within the scope of the interviewees’
employment.
We assume that it was. Akron City Schools’ administrative guidelines state that when
“the police conduct a criminal investigation in a school building,” and they “want to question the
staff,” then “they should be permitted to do so.” (R. 92-21, Akron City Schools Administrative
Guidelines at 1, PageID # 3918.) School employees have no official duty to speak to police, but
the school encourages them to do so. And it would be odd for the school to encourage its
employees in an official policy statement to cooperate with police and then disclaim their words
as outside of their employment when they do so.
In any event, the real problem is that plaintiffs have failed to show that they suffered any
prejudice from the transcripts’ exclusion. “A party may claim error in a ruling to admit or
exclude evidence only if the error affects a substantial right of the party.” Fed. R. Evid. 103(a);
5
Vincente is herself a defendant. But plaintiffs do not capitalize on Rule 801(d)(2)(A), which treats as not
hearsay statements made by an opposing party in her individual or official capacity and offered against her. And the
burden of showing that a statement fits an 801(d) exception is on the party introducing the statement. Wright &
Miller, Federal Practice & Procedure: Evidence § 6776.
6
One other individual whom police interviewed, Angel Schliskey, does not work at Leggett. She
sometimes volunteers at the school. Though in some cases a volunteer might qualify as an “agent” under Rule
801(d), see EEOC v. Watergate at Landmark Condo., 24 F.3d 635, 639–40 (4th Cir. 1994), nothing in this record
suggests that she is an “agent or employee” of the District or Board of Education. See Fed. R. Evid. 801(d)(2)(D).
Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 10
see also Tompkin v. Philip Morris USA, Inc., 362 F.3d 882, 900 (6th Cir. 2004). But plaintiffs
deposed most of the same witnesses (including the named individual defendants) whose police
interviews they now try to cite. And plaintiffs have been unable to articulate what exactly sets
the transcripts apart from the depositions they took. So it is unclear what the transcripts can add
to our resolution of this case that the record does not already contain. See Tompkin, 362 F.3d at
900 (“Assuming that this testimony was relevant . . . and also assuming that the testimony was
not inadmissible hearsay, Tompkin has not shown that she was prejudiced by the exclusion of
this testimony.” (footnotes omitted)); see also In re Air Crash Disaster, 86 F.3d 498, 526 (6th
Cir. 1996) (noting that there is no prejudice from the exclusion of evidence if substantially
similar evidence was admitted or if the excluded evidence would not have affected the outcome).
Thus, we affirm the district court’s exclusion of these interview transcripts in deciding
the summary judgment motion.
IV.
A.
We turn next to plaintiffs’ substantive claims, starting with due process.7 Section 1983
provides a statutory cause of action for the deprivation of federal rights, privileges, or immunities
by those acting under color of state law. 42 U.S.C. § 1983. Plaintiffs claim through § 1983 that
defendants deprived them of due process by creating the danger to which they were exposed—an
impostor police officer with access to their school, which he used to, among other things, batter
and falsely imprison them.
7
Plaintiffs say defendants never moved for summary judgment on a host of their claims, and so those
claims must go to trial. This argument fails for four reasons. First, in both cases, defendants incorporated related
summary judgment motions, listed all of plaintiffs’ counts and argued individually why they all failed, then asked
the court to “dismiss the claims against them with prejudice.” So defendants asked the district court for summary
judgment on all claims and for all defendants, whether in their individual or official capacities. See Apache Corp. v.
W & T Offshore, Inc., 626 F.3d 789, 798–99 (5th Cir. 2010). Second, the district court dismissed “[a]ll federal
claims” with prejudice in both the M.J. and M.H. cases. (R. 127, Mem. Op. & Order at 49, PageID # 5560.) Third,
plaintiffs responded to the motions for summary judgment and discussed the causes of action they say defendants
did not address in their motions. See C.G. v. Gann, 231 F. App’x 851, 853 n.1 (11th Cir. 2007). And finally,
plaintiffs in those responses failed to argue that defendants did not move for summary judgment as to all their
claims. See, e.g., Frazier v. Jenkins, 770 F.3d 485, 497 (6th Cir. 2014) (“Generally, we will not address arguments
raised for the first time on appeal.”).
Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 11
Plaintiffs rely on the substantive component of the Fourteenth Amendment. That
amendment provides that no state can deprive a person of life, liberty, or property without due
process. U.S. Const. amend. XIV, § 1. “But nothing in the language of the Due Process Clause
itself requires the State to protect the life, liberty, and property of its citizens against invasion by
private actors.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989).
So the clause does not “impose an affirmative obligation on the State to ensure that those
interests do not come to harm through other means.” Id. And, in general, “a State’s failure to
protect an individual against private violence simply does not constitute a violation of the Due
Process Clause.” Id. at 197.
At the same time, “in certain limited circumstances the Constitution imposes upon the
State affirmative duties of care and protection with respect to particular individuals.” Id. at 198.
One such instance is when the state renders a person “more vulnerable to” the dangers that befell
him. Id. at 201. Thus, we have held that “when the State ‘cause[s] or greatly increase[s] the risk
of harm to its citizens . . . through its own affirmative acts,’ it has established a ‘special danger’
and a duty to protect its citizens from that risk.” Jones v. Reynolds, 438 F.3d 685, 690 (6th Cir.
2006) (alterations in original) (quoting Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th
Cir. 1998)).
This is known as the state-created danger doctrine. And it imposes a demanding
standard. To succeed with it, plaintiffs must show three things. First, they must show “an
affirmative act by the state which either created or increased the risk that [they] would be
exposed to an act of violence by a third party.” Cartwright v. City of Marine City, 336 F.3d 487,
493 (6th Cir. 2003). Next, they must establish “a special danger to [them] wherein the state’s
actions placed [them] specifically at risk, as distinguished from a risk that affects the public at
large.” Id. And finally, they must show that the state was aware of the “substantial risk of
serious harm” and responded in a way that was “conscience shocking.” Doe v. Jackson Local
Sch. Bd. of Educ., 954 F.3d 925, 934 (6th Cir. 2020).
Both sets of plaintiffs bring § 1983 claims against Vincente. W.H. also makes a § 1983
claim against Morrison, and M.J. against Ramon. They allege that Vincente gave Hendon access
to Leggett, which allowed him to perpetrate his crimes, that she allowed Hendon to use school
Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 12
facilities to deal with children, and that she witnessed Hendon abuse children and place them in
handcuffs. M.J. alleges that Ramon called for assistance, and when Hendon showed up, she
allowed him to take M.J. out of class. Finally, W.H. alleges that Morrison let Hendon interact
with W.H.’s mother and allowed Hendon to handcuff W.H. But because none of these
allegations suffices to make out a state-created danger, we affirm the grant of summary judgment
on these claims.
1.
We can dispense in short order with the claim against Ramon. The most that can be said
about her is that she did not prevent Hendon from taking M.J. from her class. But a “failure to
act is not an affirmative act under the state-created danger theory.” Id. So even if Ramon “stood
by and did nothing when suspicious circumstances dictated a more active role for” her, this is not
enough. DeShaney, 489 U.S. at 203; see also Chigano v. City of Knoxville, 529 F. App’x 753,
757 (6th Cir. 2013) (“Generally . . . the failure to protect a person from violence at the hands of a
third party is not a constitutional violation.”). M.J.’s claim against Ramon thus fails at the first
step of the state-created danger doctrine.
2.
The claim against Morrison also fails. Recall that Morrison called M.H. after W.H. got
into a fight with one of his classmates. And while they were speaking, Hendon interjected and
insisted that Morrison allow him to speak to M.H., a request Morrison granted. That is the extent
of Morrison’s involvement here.
Whether this phone exchange is an “affirmative act” within our state-created danger
jurisprudence is a close question. Normally, to answer such a question, we ask “whether [the
victim] was safer before the state action than he was after it.” Cartwright, 336 F.3d at 493. But
we need not resolve this close call. We can reasonably infer, as we must at this stage of the
litigation, that W.H. was safer before Morrison handed Hendon the phone because Hendon may
have used the opportunity to convince M.H. that he was a police officer with authority to
handcuff her son.
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But M.H.’s substantive due process claim still fails. “[I]n addition to showing the
requisite state action, [plaintiffs] must show the requisite state culpability necessary for a Due
Process Clause action.” Bukowski v. City of Akron, 326 F.3d 702, 710 (6th Cir. 2003). This is
the third prong of the state-created danger doctrine. It requires a showing of at least deliberate
indifference. And “[t]he government’s conduct must be so egregious that it can be said to be
arbitrary in the constitutional sense.” McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 469 (6th
Cir. 2006) (quotations omitted). This is a high bar—one that surpasses mere negligence. Doe,
954 F.3d at 932. “[O]nly extreme misconduct”—conduct that shocks the conscience—“will
violate the [Due Process] clause.” Id. at 933.
The requisite level of culpability depends on the nature of the government’s act. The
“deliberate-indifference standard is appropriate in ‘settings [that] provide the opportunity for
reflection and unhurried judgments,’ but . . . a higher bar may be necessary when opportunities
for reasoned deliberation are not present.” McQueen, 433 F.3d at 469 (first alteration in original)
(quoting Bukowski, 326 F.3d at 710). Thus, “an actual intent to injure is required when public
actors must make hasty decisions.” Doe, 954 F.3d at 933; see also County of Sacramento v.
Lewis, 523 U.S. 833, 852–53 (1998). But when the official has time for reflection, deliberate
indifference requires that he “must be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.” Doe, 954
F.3d at 933 (quotations omitted). Once the official learns of facts allowing him to infer a risk of
harm, “the official next must act or fail to act in a manner demonstrating reckless or callous
indifference toward the individual’s rights.” Id. (quotations omitted).
But there is no evidence here that Morrison was deliberately indifferent when she handed
Hendon the phone. She—along with other school officials and parents—thought Hendon was a
legitimate police officer. And she did not listen to Hendon’s conversation with M.H. or
otherwise see Hendon place other children in handcuffs. In fact, up to the time Hendon took the
phone from Morrison, her interactions with him were all positive. He passed Morrison’s class in
the halls and encouraged her students to behave well and get good grades. So the record
discloses no facts that would have allowed Morrison to infer that a substantial risk of serious
harm to W.H. existed—let alone that Morrison drew that inference. Doe, 954 F.3d at 933.
Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 14
Besides, when Hendon approached Morrison and asked her for the phone, Morrison did not have
time for reflection and unhurried judgment, so a stricter level of culpability applies. Id.;
McQueen, 433 F.3d at 469. And nothing here suggests Morrison acted with an intent to injure
W.H. when she let Hendon speak to M.H. Doe, 954 F.3d at 933. So W.H.’s substantive due
process claim against Morrison fails.
3.
That just leaves Vincente. Both sets of plaintiffs sue her. But W.H. alleges only that
Vincente did not stop Hendon from walking around Leggett and interacting with students. This
type of inaction fails to meet the first requirement in the state-created danger doctrine.
Cartwright, 336 F.3d at 493; see also DeShaney, 489 U.S. at 203. Thus, for W.H.’s claim
against Vincente, we affirm the district court’s grant of summary judgment.
M.J.’s claim against Vincente is a bit more complicated. By way of reminder, Vincente
directed Hendon to a room so that he could discipline M.J. This qualifies as an affirmative act
under the state-created danger doctrine. Cartwright, 336 F.3d at 493. And in that room, Hendon
allegedly battered M.J. and called him derogatory names.
Noting this, the district court refused to grant summary judgment on the merits of the
claim. The court reasoned that Vincente knew Hendon wanted to restart the Scared Straight
program, knew handcuffing children constituted corporal punishment, and knew Hendon had
been handcuffing children. And it is disputed when Vincente learned all these facts in relation to
her decision to allow Hendon a private room to discipline M.J. Thus, the court refused to grant
Vincente summary judgment on the merits of M.J.’s due process claim. It did, however, grant
her summary judgment in the end because it found she was entitled to qualified immunity.
But in denying Vincente summary judgment on the merits of the Fourteenth Amendment
claim, the district court misconstrued the “demanding” culpability standard our precedent lays
out. Doe, 954 F.3d at 933. Indeed, “[t]o be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, a public official must know of more than
a general risk of harm.” Id. at 933–34 (quotations and citation omitted). Instead, “[t]he official
must know of the specific risk that later develops.” Id. at 934; see McQueen, 433 F.3d at 469.
Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 15
So even if a jury could fault an official’s response to certain facts, there is no constitutional
violation if the official was unaware of facts from which she could infer a risk of harm of the
type that actually happened. Range v. Douglas, 763 F.3d 573, 591 (6th Cir. 2014).
But here, the facts the district court laid out as allowing Vincente to infer a risk of harm
do not translate into the actual harm that befell M.J. The court pointed to Vincente’s knowledge
that Hendon was handcuffing students—a prohibited practice. But this is not the harm that befell
M.J. as a result of Vincente’s affirmative act. Instead, Hendon threw M.J. against a wall, tables,
and chairs and used racial epithets against him. And “nothing about the ‘kind and degree of
risk’” arising from Hendon handcuffing students suggested that he “also posed a risk of”
violently throwing students around a room. Doe, 954 F.3d at 935 (quoting Range, 763 F.3d at
591). Indeed, Vincente “had no knowledge of [Hendon] ever attacking students.” Id.8
And it is not enough that handcuffing students and throwing them around rooms both
constitute battery. Consider McQueen. There, a student had a history of violently attacking
students with a pencil. 433 F.3d at 462. But his teacher’s knowledge of this history did not
translate into knowledge that the same student might later bring a gun to school and shoot
another student. Id. at 469–70. And if knowledge of violent battery with a pencil cannot
establish subjective awareness of a risk of battery with a gun, neither can knowledge of
handcuffing students establish subjective awareness of a risk of violent battery and verbal abuse.
Id.; see Doe, 954 F.3d at 935.
The actual harm that M.J. experienced because of Vincente’s affirmative act is not the
type that Vincente could have inferred from known facts. Because we may affirm on any ground
supported by the record, we affirm the district court’s grant of summary judgment. See, e.g.,
Wallace v. Oakwood Healthcare, Inc., 954 F.3d 879, 886 (6th Cir. 2020).
B.
Plaintiffs also sue the Akron City School District and its Board of Education. They say
these defendants are liable under § 1983 for failing to train their employees in spotting dangers to
8
Here again, we note that plaintiffs have failed to identify whether there are any statements that Vincente
made during her interview by the Akron police that would affect this analysis.
Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 16
students. The district court disagreed, and so do we. A municipality “can only be held liable if
there is a showing of an underlying constitutional violation by” its officials. Andrews v. Wayne
County, 957 F.3d 714, 725 (6th Cir. 2020) (quoting Burkey v. Hunter, 790 F. App’x 40, 41 (6th
Cir. 2020)). In other words, “[t]here can be no . . . municipal liability under § 1983 unless there
is an underlying unconstitutional act.” Wilson v. Morgan, 477 F.3d 326, 340 (6th Cir. 2007).
And here, none of the school employees is liable under plaintiffs’ substantive due process theory.
So the district court correctly granted summary judgment for defendants on this claim.
C.
Plaintiffs also claim that the school and its employees9 violated the Rehabilitation Act
and the ADA. They note that both W.H. and M.J. are disabled, and they argue that school
officials targeted the students because of these disabilities. “Given the similarities in the two
statutory provisions, we long have merged our analyses under the ADA and Rehabilitation Act.”
Qiu v. Univ. of Cincinnati, 803 F. App’x 831, 836 (6th Cir. 2020).
Both the ADA and the Rehabilitation Act combat discrimination against disabled
individuals. Gohl v. Livonia Pub. Schs. Sch. Dist., 836 F.3d 672, 681 (6th Cir. 2016). Title II of
the ADA provides that “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132. And the Rehabilitation Act provides that a qualified individual with a disability shall
not, “solely by reason of her or his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving Federal
financial assistance.” 29 U.S.C. § 794(a). Both Acts allow disabled individuals to sue school
districts that discriminate against them because of their disability. Gohl, 836 F.3d at 681.
Plaintiffs can defeat summary judgment here through either a direct or indirect showing
of discrimination. Id. at 682. “Direct evidence explains itself.” Martinez v. Cracker Barrel Old
9
Neither the ADA nor the Rehabilitation Act supports a claim against a public official acting in his or her
individual capacity. See, e.g., Everson v. Leis, 556 F.3d 484, 501 n.7 (6th Cir. 2009); Lee v. Mich. Parole Bd., 104
F. App’x 490, 493 (6th Cir. 2004). So plaintiffs can only lodge these claims against the school officials in their
official capacities and the District and Board of Education.
Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 17
Country Store, Inc., 703 F.3d 911, 916 (6th Cir. 2013). It does not require the factfinder to make
any inferences before concluding that unlawful discrimination happened. Id. But plaintiffs’
evidence of discrimination here requires the inferential leap that the teachers sought Hendon’s
assistance because of their students’ disabilities, and that the students acted out because of their
disabilities. This is not direct evidence; there is “no smoking gun.” Gohl, 836 F.3d at 683.
Plaintiffs’ chain of reasoning requires us to infer that the students’ disabilities caused both their
misbehavior and the teachers’ responses to it. So plaintiffs cannot succeed on a direct showing.
Nor can they succeed on an indirect showing. To move forward on an indirect showing,
plaintiffs “must meet the requirements of the familiar McDonnell Douglas test,” which we apply
to both statutes. Id. at 682. This requires plaintiffs to make out a prima facie case of
discrimination. Id. They must show that (1) they are disabled; (2) they are “otherwise qualified”
to participate in the public program; (3) they were subject to discrimination because of their
disabilities; and (4) the program receives federal funding (for the Rehabilitation Act only). Id.
Plaintiffs say, and defendants do not contest, that M.J. and W.H. are disabled. The only
point of contention is causation. And to establish the causation that both Acts require, “the
plaintiff must establish a but-for relationship between the protested act and the individual’s
disability.” Id. So under the ADA, plaintiffs must present “sufficiently ‘significant’ evidence of
animus toward the disabled that is a but-for cause of the discriminatory behavior.” Id. (quoting
Anderson v. City of Blue Ash, 798 F.3d 338, 357 (6th Cir. 2015)). And showing causation under
the Rehabilitation Act is even harder. Plaintiffs must show that the school and its employees
discriminated against them “solely by reason of” their disability. 29 U.S.C. § 794(a). At any
rate, under each Act, plaintiffs must present evidence of how the school treated comparable, non-
disabled students. Mitchell v. Toledo Hosp., 964 F.2d 577, 582–83 (6th Cir. 1992); see also
Gohl, 836 F.3d at 683.
But plaintiffs here fail to point to any comparators.10 They note that Hendon handcuffed
a few other students to bring them home or reprimand them. And they say Hendon forced one of
10
This is especially difficult to do against Theresa Morrison. As we have pointed out, McDonnell Douglas
is of “little help in the context of a claim involving a teacher who works only with individuals in a protected group.”
Gohl, 836 F.3d at 683. And Morrison works only with students with learning disabilities.
Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 18
M.J.’s classmates to exercise alongside him. But they say nothing about whether these students
were also disabled. And they introduced no evidence detailing which students the school
mistreated and which they did not. So “there is no evidence in the record about how
any ‘comparable non-protected’ people were treated.” Gohl, 836 F.3d at 683. And “[i]n the
absence of evidence of a well-treated comparator, [plaintiffs] cannot prove that discrimination
against the disabled was the reason for” their mistreatment. Id.
Without comparators, plaintiffs cannot make an indirect showing of discrimination. And
because plaintiffs have not offered direct evidence of discrimination, their ADA and
Rehabilitation Act claims fail.
D.
Plaintiffs present one last cause of action: Title VI. They say that because Hendon
targeted only African American children, a jury could infer that the students’ race motivated the
harassment. But the district court rejected this theory, noting there was no evidence of race
discrimination by defendants. We agree.11
Title VI prohibits any “program or activity receiving Federal financial assistance” from
discriminating against any person “on the ground of race, color, or national origin.” 42 U.S.C.
§ 2000d. And it provides a private cause of action for injunctive relief and damages. Alexander
v. Sandoval, 532 U.S. 275, 279 (2001). But it proscribes only intentional discrimination. Id. at
280.
And for that reason, plaintiffs’ Title VI claim fails. They have not identified a single
piece of record evidence suggesting intentional discrimination. At most, they claim Hendon
targeted only African American children, and the school could not identify any white children
whom Hendon targeted. But even that is not an allegation of intentional discrimination by school
officials. And plaintiffs’ contention that school officials knew about Hendon’s harassment of
11
“[T]here is no vicarious liability under Title VI.” Foster v. Michigan, 573 F. App’x 377, 389 (6th Cir.
2014). And plaintiffs have not established that the District, the Board of Education, or Superintendent James
“participated in, [were] aware of, or [were] deliberately indifferent to any discriminatory acts.” Id. So the Title VI
claim against them fails.
Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 19
several students does not suffice, either. They must allege intentional discriminatory acts by a
public official and support that allegation with evidence. See id. at 280. They do not.
V.
The events that triggered this lawsuit are undoubtedly upsetting. And perhaps plaintiffs
can look to state law to find some relief. But, for the reasons given, they cannot succeed on their
federal claims. We AFFIRM the district court’s grant of summary judgment.