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Mulkey v. Board of Education

November 22, 2006


The opinion of the court was delivered by: District Judge Susan J. Dlott

Order Granting Defendants' Motion for Summary Judgment

This matter is before the Court on Defendants' motion for summary judgment (doc. 16), Plaintiff's memorandum in opposition thereto (doc. 18), Defendants' reply in support of their motion (doc. 19), Plaintiff's submission of supplemental authority in support of her opposition to Defendants' motion (doc. 20), Defendants' submission of supplemental authority in support of their motion (doc. 21), and Plaintiff's response to Defendant's submission of supplemental authority (doc. 22). For the reasons that follow, the Court grants Defendants' motion for summary judgment.


Plaintiff Brenda Mulkey filed this lawsuit, individually and in her capacity as mother and legal guardian of Charles Littlejohn, against the Rock Hill Local School District Board of Education (the "Board") and the school's superintendent, Lloyd Evans, in his official and individual capacities. Mulkey made the following claims in her complaint: (1) violation of her and her son's First Amendment rights to free expression and privacy, (2) slander, (3) intentional infliction of emotional distress, and (4) invasion of privacy. (Doc. 1.) Mulkey has dismissed the three state law claims (doc. 18 at 3) leaving only the First Amendment claims, brought pursuant to 42 U.S.C. § 1983, for the Court's consideration.

Mulkey's son Charles was diagnosed with Type I diabetes in January 2003. (Mulkey dep. 24.) Charles' first day of school at Rock Hill Elementary was approximately three weeks later. Mulkey's Complaint is founded on actions taken by Rock Hill Elementary School's nurse, Marsha Wagner, concerning Charles during his two-month period of enrollment at the school. Specifically, Mulkey complains that between February 4, 2003, and April 4, 2003, Nurse Wagner called her "every day telling [her] that [Charles'] sugar was high, that I needed to come and get him or he wasn't feeling well." (Mulkey dep. 54.) The record reflects that Nurse Wagner did not call Mulkey "every day" but rather called her on twelve days for the purposes of notifying Mulkey that Charles was sick or that he needed insulin and necessary medical supplies.*fn1 Mulkey claims that there were several occasions when Charles should not have been sent home. (Mulkey dep. 129.) However, upon reviewing Nurse Wagner's notes, Mulkey was unable to specify an incident where Nurse Wagner should not have called her. (Id. at 135.)

On March 18, 2003, one of the occasions on which Charles was sick and vomiting and needed to go home, Nurse Wagner attempted to call Mulkey but was unable to do so because Mulkey's phone had been shut off. (Mulkey dep. Ex. F at 24; Mulkey dep. 107; Wagner dep. 100.) Nurse Wagner considered Charles' situation to be a medical emergency, and she called the Lawrence County Department of Job and Family Services (hereafter "Family Services") to report Mulkey for neglecting Charles' medical needs. (Wagner dep. 101.) Nurse Wagner testified that she made the report to Family Services in part because of Mulkey's failure to provide the school with Charles' medication and supplies. (Id. at 102.)*fn2

The Family Services intake officer who took Nurse Wagner's call made the following notes based on that call: "ACV [alleged child victim] is sick. He is diabetic and insulin dependent. Reporter tried to get a hold of mom and the phone was disconnected. ACV has threw up three times and is sick all the time. Reporter cannot get a hold of anyone in the family. Child did not get insulin for one to two days because he left shots at dad's house." (Martin dep. 25-26, Ex. 7.)

Family Services investigator Rich Blankenship responded to Nurse Wagner's call by visiting Mulkey at her home. (Mulkey dep. 117.) Blankenship told Mulkey that the school needed to be able to get in contact with her or a neighbor in the event Charles became ill at school. (Id. at 117-118.)*fn3 Family Services never filed a complaint against Mulkey, and Mulkey incurred no expense as a result of Nurse Wagner's complaint. (Id. at 118.) Nonetheless, Mulkey characterizes Nurse Wagner's call to Family Services as harassment, testifying that "it upset me pretty much for the simple fact of it is, you know, they had no right turning me in to Children Services regardless of whether I had a phone or not, you know. I mean I can understand them, you know, trying to get a hold of me, you know, about my son but to take and turn me in to Children Services. I mean get real." (Mulkey dep. 124.)

Mulkey also alleges in her Complaint that Defendants "attempted to cause Plaintiff to remove the minor from the District." (Doc. 1 at 3.) In her deposition, Mulkey elaborated on this allegation explaining that Superintendent Evans suggested that Mulkey home school Charles until his health condition stabilized. (Mulkey dep. 69, 79.) Evans never demanded that Mulkey remove Charles from the school district, and Mulkey did not agree to home school Charles. (Id. at 80.) Charles stopped attending Rock Hill because Mulkey moved onto her father's property, which was located in a different school district. (Mulkey dep. 51-52.) Mulkey's move was motivated by financial reasons. (Id.)

Rounding out her Complaint is Mulkey's objection to the fact that Nurse Wagner asked Charles to eat his breakfast and lunch in her office rather than in the school cafeteria. (Mulkey dep. 65.) Mulkey admitted, however, that she never told Nurse Wagner that she did not want Charles to have his meals in the nurse's office. (Id. at 66.) Mulkey alleges that she complained to Superintendent Evans that Nurse Wagner was calling her and telling her that Charles was sick when he really wasn't. (Id. at 66.) Mulkey alleges she believes Nurse Wagner called Family Services in retaliation for Mulkey's complaint to Superintendent Evans but admits that she has no information that causes her to have this belief. (Id. at 73.) Mulkey never contacted any Rock Hill School District board member to discuss her objections to Nurse Wagner's conduct. (Mulkey dep. 135-36.)


Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). On a motion for summary judgment, the movant has the burden of showing that no genuine issues of material fact are in dispute, and the evidence, together with all inferences that can permissibly be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). The moving party may support the motion for summary judgment with affidavits or other proof or by exposing the lack of evidence on an issue for which the nonmoving party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). In responding to a summary judgment motion, the nonmoving party may not rest upon the pleadings but must go beyond the pleadings and "present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). The nonmoving party "must set forth specific facts showing there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The task of the Court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 249.


A. Failure to Exhaust Remedies ...

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