A federal judge from the Western District of Oklahoma has given new life to a lawsuit brought by the mother of a high school athlete, who claimed his coaches, the defendants, put him in a football game before his knee had healed, causing him to re-injure his knee.
By way of background, the high school athlete (D.W.) sustained an injury to his right knee while playing for the Shawnee High School football team in 2020. The injury required surgery and months of physical therapy. On September 13, 2021, D.W. had completed physical therapy, but was not medically cleared to resume playing football. In addition, Plaintiff had not signed a form granting parental consent for him to play. Nevertheless, defendants Tyler Harrison and Darrin Dean, Shawnee High School football coaches, put D.W. in to play in a junior varsity game, allegedly “in violation of school policies.” In the course of that game, D.W.’s right knee was re-injured, resulting in another surgery.
The mother of D.W., the plaintiff, sued Harrison and Dean, as well as defendant Shawnee Public Schools in state court, alleging three causes of action: (1) negligence; (2) deprivation of constitutional rights in violation of 42 U.S.C. § 1983; and (3) violation of rights under the Oklahoma Constitution. The case was removed to federal court because of the § 1983 claim, where the defendants filed their motion to dismiss, pursuant to Fed. R. Civ. P. 12(b), or failure to state a claim.
In response, the plaintiff attached evidence that was not part of the complaint.
The court noted that a document central to the plaintiff’s claim and referred to in the complaint may be considered in resolving a motion to dismiss, at least where the document’s authenticity is not in dispute. The evidence—plans and policies governing school sports promulgated by Shawnee Public Schools and the Oklahoma Secondary Schools Activities Association—are referenced in the complaint and central to at least the plaintiff’s negligence claim. Neither party disputed the authenticity of these documents, thus the court considered whether they were relevant.
Section 1983 provides that any person acting under color of law who deprives a United States citizen of “any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.”
To hold an entity or person accountable, a plaintiff generally must show that the alleged violative actions were “representative of an official policy or custom” or “taken by an official with final policy-making authority.” Liability may also attach in circumstances where “a state actor affirmatively acts to create, or increases a plaintiff’s vulnerability to, or danger from private violence.” To state a prima facie case for “danger creation” in violation of substantive due process rights, a plaintiff must show that:
“(1) state actors created the danger or increased the plaintiff’s vulnerability to the danger in some way, (2) the plaintiff was a member of a limited and specifically definable group, (3) the defendants’ conduct put the plaintiff at substantial risk of serious, immediate, and proximate harm, (4) the risk was obvious or known, (5) the defendant acted recklessly in conscious disregard of that risk, and (6) the conduct, when viewed in total, shocks the conscience.” Robbins v. Oklahoma, 519 F.3d 1242, 1251 (10th Cir. 2008)
The plaintiff’s complaint alleges that the defendants deprived D.W. of “his right to a safe school environment and right to an education free from physical harm,” as well as a general “deprivation of constitutional rights under the 14th Amendment.” Notably, the plaintiff relied almost exclusively on a danger creation theory.
The defendants raised two primary challenges to the plaintiff’s danger creation claim. First, they say that the plaintiff “has failed to allege any affirmative action on the defendants’ part, a necessary precondition for the theory to apply at all. In the defendants’ framing, Harrison and Dean’s disregard of the defendant school district’s policies in deciding to play D.W. in the football game was merely negligent. Second, the defendants argue that the alleged conduct falls short of shocking the conscience. Surveying other cases involving athlete injuries, the defendants conclude that playing a medically ineligible student in a football game is not so “egregious, outrageous or fraught with unreasonable risk” as to clear the high bar of conscience shocking. Ruiz v. McDonnell, 299 F.3d 1173, 1184 (10th Cir. 2002)
Of course, the plaintiff viewed “things differently,” according to the court. “From her perspective, the defendants made the decision to play D.W. in the game, with full knowledge that he was not eligible under the applicable policies. That decision, she says, was an affirmative action sufficient to bring the danger creation doctrine into play. As for shocking the conscience, the plaintiff simply restates some of her factual allegations and concludes that the element is satisfied. The plaintiff cites no case law to support her contention, nor does she attempt to distinguish or contextualize the precedents cited by the defendants.
“Accepting the alleged facts as true, and taking all reasonable inferences in favor of the plaintiff, the court finds that, for defendants Harrison and Dean, the plaintiff has pleaded an affirmative action leading to private violence, satisfying the preconditions to consider the danger creation elements.” The court acknowledged “the line of cases cited by the defendants that hold that a failure to act or mere negligence is not enough. But here, the plaintiff does not merely allege that the defendants Harrison and Dean made the decision to play D.W. while negligently failing to check his eligibility. Rather, she alleges that they made that decision with full knowledge that he was ineligible under the school policies. At this early stage, that alleged reckless disregard is enough. As for the defendant school district, the court finds no allegation of affirmative conduct that could open the door for danger creation liability.
“Turning then to the danger creation elements, the court finds that the conduct alleged, viewed as a whole, does not shock the conscience. The Tenth Circuit, and other courts to apply the standard, have made clear that shocking the conscience of a federal judge is no mean feat. Indeed, it applies only in “exceptional circumstances.” Ruiz, 299 F.3d at 1184. “[A] plaintiff ‘must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.'” Conduct must be “egregious, outrageous, or fraught with unreasonable risk,” something “more than an ordinary tort.”
The alleged conduct of defendants Harrison and Dean “simply does not rise to a level of outrageousness that shocks the conscience,” according to the court. “D.W. was a former student athlete who had recently completed physical therapy for his prior injury. Even accepting as true that D.W. had not been attending practice, and that Harrison and Dean knew that he was not medically cleared to play and that Plaintiff had not consented to him participating, their decision to put him into the game was not so egregious as to violate the Constitution. Especially in the area of school sports, where there exists an accepted baseline risk of injury, conduct must be truly heinous, greatly increasing the magnitude of potential harm, before it will shock the conscience.”
The plaintiff “has failed to plausibly allege a § 1983 claim on a state-created danger basis,” the court continued. “She has alleged no affirmative action proximately resulting in injury on the part of the defendant school district, and the conduct alleged on the part of defendants Harrison and Dean does not rise to the level of shocking the conscience.”
However, “for the first time” in her response, the plaintiff argued that she herself suffered due process injuries, in that she was deprived of her constitutional right as a parent to direct the care, upbringing, and education of her child. “This argument is wholly divorced” from the complaint, “which alleges constitutional injuries only on the part of D.W.”
The plaintiff, thus, asked the court for leave to amend her complaint.
“Although the Court has its doubts, it cannot say for certain that any such amendment would be futile.” Thus, it granted leave to amend the complaint with the due process argument.
Monica Williams, individually and as parent and next friend of D.W., a minor v. Shawnee Public Schools, Tyler Harrison, and Darrin Dean; W.D. Ok.; Case No. CIV-23-123-PRW; 3/25/24
