By Lorraine M. Girolamo, of Gordon Rees Scully Mansukhani, LLP
(The following appeared in Concussion Defense Reporter. Subscriptions are available on a complimentary basis at Concussion Defense Reporter.)
When we think of Section 1983 lawsuits, although they can certainly involve personal injuries, we typically envision cases involving excessive police force or matters involving a prison inmate’s medical neglect, by way of example. Recently, an Oregon District Court analyzed a “garden variety” concussion suit, which we would typically see plead as a negligence case, brought as a civil rights violation.
In reality, a “Section 1983[1]” claim is nothing more than a procedural device, based on a federal statute, that gives federal courts jurisdiction to hear civil rights cases. Section 1983 provides an individual the right to sue state government employees and others acting “under color of state law” for civil rights violations. Section 1983 does not provide civil rights; rather, it is a means to enforce civil rights that already exist. Since a party cannot be liable under Section 1983 alone, a constitutional violation has to be simultaneously plead.
In Martin v. Hermiston School District. 8R, 2020 U.S. Dist. LEXIS 208287 (D. Or. Nov. 4, 2020), the plaintiffs brought an action under §1983 alleging that the defendants (a public school district, athletic director, football coaches and athletic trainer) violated the 14th Amendment rights of a high school sophomore when he suffered a serious head injury while playing football on a public high school junior varsity team. Specifically, the plaintiffs claim that the infant plaintiff, “C.M.,” sustained a head injury in a September 2016 football game, and that school district/coaches did not follow the proper concussion protocols prior to his return to play. The school, coaches and athletic trainer deny that C.M. sustained an injury in the September 2016 game, but that alternatively, if he did, they had no knowledge of it. C.M. sustained a second head injury during an October 2016 game, and claims that he now suffers from headaches, diminished cognitive functioning, memory loss, and emotional issues, which include four suicide attempts. His parents allege that these injuries have ruined their emotional and physical connection with C.M. They claim that their relationship with him now consists of trying to get him to eat and preventing further suicide attempts.
To prove a claim under 42 USC §1983, a plaintiff must establish both (1) the deprivation of a right secured by the constitution or statutory law, and (2) that a person acting under color of state law committed the deprivation. The defendants, as a public school district and its employees, concede they were acting under color of state law, but they moved to dismiss the case arguing that the plaintiffs failed to establish as a matter of law, that they suffered a constitutional violation.
C.M. argues that the defendants conduct violated hisfundamental right to bodily autonomy protected by the 14th Amendment’s Due Process Clause when they returned him to practice and play after his September 2016 concussion, without proper medical clearance. The Supreme Court, in the landmark case of Roe v. Wade[2], held that the right to bodily autonomy is a fundamental right protected by substantive due process[3]. The fundamental right to bodily autonomy includes the right to be free from physical injury, bodily restraint, and bodily intrusions[4].
To establish a Due Process violation, plaintiffs must show that an official’s actions “shocks the conscience” and violates the “decencies of civilized conduct,” or interferes with the rights implicit in the concept or ordered liberty.”[5] In general, states (or those acting under the color of state law) are not liable for omissions under the 14th Amendment. However, a state’s omission or failure to act may give rise to a 1983 claim when the state “affirmatively places the plaintiff in danger by acting with deliberate indifference to a known or obvious danger.[6]” Plaintiffs argue that defendants acted with deliberate indifference to the known or obvious danger that C.M. could become seriously injured when they returned him to practice and play following his September 2016 concussion, without medical clearance and while he still had concussion symptoms. Again, the defendants deny knowledge of the September 2016 head injury.
The Court reasoned that coaches direct the players in every aspect of the game and therefore act affirmatively when they place players on the field. Coaches determine when to take the field; what position the players play; what plays they run; how long they play, etc. Based upon the facts specific to this case, the Court found that plaintiffs put forward sufficient evidence, to put to the jury, the question of whether Defendants affirmatively placed C.M. in danger. The relevant inquiry will be whether the defendants left the C.M. “in a situation that was more dangerous than the one in which they found him.” This just appears to be another way of saying that the defendants had a duty not to affirmatively increase the risk of harm to C.M.
The Court also found a question of fact as to whether the coaches acted with “deliberate indifference.” To establish deliberate indifference, plaintiff must show that the defendant recognized the unreasonable risk and actually intended to expose the plaintiff to such risks without regard to the consequences to the plaintiff (i.e., it requires a culpable state of mind).
Ultimately, the jury will have to decide if there was deliberate indifference on the part of the coaches/district, and whether that deliberate indifference “shocked the conscience” in order to rise to the level of a due process violation. The jury will also examine whether the School District’s decision, not to implement a procedure for tracking player head injuries and ensuring that a player who sustained a concussion did not return to practice or play without proper medical clearance, was so obviously deficient that it establishes the school district’s “deliberate indifference” to its players’ constitutional rights.
The parents of C.M. have also brought civil rights violations claims under the 14th Amendment, which gives parents a fundamental right to a “familial relationship with their child.[7]” The Courts have held that that familial relationship includes the right to companionship and society of the child.[8] The Court in Martin determined that the jury will similarly have to decide whether the plaintiffs have produced sufficient evidence to demonstrate that C.M.’s injuries have interfered with that fundamental familial right.
It will be interesting to see how this case plays out at trial. There will be additional arguments made at trial about negligence, negligence per se, and entitlement to qualified immunity. Nonetheless, the real question is, by opening these types of personal injury lawsuits to constitutional 14th Amendment scrutiny, simply because the defendant is acting under the “color of law” – are we not, in actuality, putting targets on the back of all public schools that have interscholastic athletics? By having sports teams where students can be injured in any capacity (which is almost guaranteed when playing youth sports), do the schools now have to worry about violating their players’ civil rights? Talk about opening Pandora’s Box…
[1] 42 U.S.C §1983.
[2] 410 US 113 (1973).
[3] See also, Lawrence v. Texas, 539 US 558, 564 (2003).
[4] Ingraham v. Wright, 430 IS 651, 673 (1977).
[5] US v. Salerno, 481 US 739, 746 (1987).
[6] This is referred to as the “state created exception.”
[7] Smith v. City of Fontana, 818 F.2d 1411, 1418 (9th Cir. 1987).
[8] Id.
