686 F.Supp. 620 (1988)
Timothy MARTIN, Plaintiff,
v.
CITY OF EASTLAKE, William DePledge, etc., Thomas Doyle, etc., Robert Jaksa, etc., Defendants.
No. C86-3969.
United States District Court, N.D. Ohio, E.D.
May 18, 1988.
*621 *622 Gary D. Zeid, Sternberg & Zeid Co., L.P.A., Mentor, Ohio, for plaintiff.
Theodore R. Klammer, Law Director, City of Eastlake, Mentor, Ohio, for defendants.

MEMORANDUM OF OPINION
KRENZLER, District Judge.
The plaintiff, Timothy Martin ("Martin"), commenced the instant action pursuant to 42 U.S.C. § 1983 ("§ 1983") against defendants, City of Eastlake ("City"), William DePledge, Chief of Police for the City ("DePledge"), Thomas Doyle, police officer for the City ("Doyle"), and Robert Jaksa, police officer for the City ("Jaksa"). Martin alleges deprivation of his constitutional rights under color of state law. The amended complaint, in essence, alleges that defendants Doyle and Jaksa, acting as police officers under color of state law, violated plaintiff's constitutional right to be free from illegal search and seizure. The amended complaint further alleged that the City maintained a policy and practice of illegal search and seizures. Finally, the amended complaint alleges a pendent state claim for assault and battery. Defendants responded with general denials as well as affirmative defenses, including that of qualified immunity.
This matter came on for a hearing on the issue of qualified immunity. At the hearing, the parties engaged in oral argument and presented evidence.

I. Facts

A review of the pleadings, depositions, exhibits, and hearing testimony, reveals the following facts. On May 2, 1986, Tammy Poldiak ("Tammy"), a mentally retarded 15-year-old girl, reported to her teacher that she had been raped the previous night. After her teacher contacted the Lake County Department of Human Services and the Eastlake Police Department, Tammy was taken to the Lake County Memorial Hospital. At the Hospital, Tammy was examined by a doctor utilizing the Dew's Expert Rape Kit. The examination revealed that some sexual activity may have occurred, although it was unclear whether such activity *623 was self-inflicted or through intercourse.
Detective Leon Hodkey ("Detective Hodkey"), a police officer for the City, arrived at the Hospital between 3:30 and 4:00 p.m. Detective Hodkey's initial information regarding the case was conveyed by Rene Friedrich of the Lake County Human Services Department. Detective Hodkey was informed that Tammy was mentally retarded and had the mentality of a third grader. Detective Hodkey interviewed Tammy, Tammy's mother, and a friend of Tammy's.
According to Tammy, the alleged rape took place at the home of a neighbor. At approximately 8:00 or 9:00 p.m. the previous night, Tammy had gone over to the neighbor's home to play with one of the children who lived in the house. Subsequently, Tammy's friend was taken shopping, leaving Tammy in the yard. Tammy then told Detective Hodkey that she had been invited into the house by a male. It was at this time that the alleged rape occurred. Tammy told Detective Hodkey that she had been taken into the basement of the house, shown nude pictures, and then had been sexually assaulted. Tammy identified her assailant as a man having big muscles and curly yellow hair. Tammy also described the interior of the residence and described the television shows that she had watched at the house the previous night.
Certain inconsistencies developed in Tammy's statement. She originally stated that her assailant was wearing a black mask, that he was not wearing underwear, and that he injected Tammy with drugs. However, Tammy later stated that her assailant was wearing a red mask and that he was wearing underwear. In addition, the medical examination found no evidence that Tammy had been injected with drugs. These inconsistencies, with the exception of the information regarding the drugs, were conveyed to other officers on the case.
While Detective Hodkey was still at the Hospital gathering information, he was in contact with Detectives Jaksa and Doyle by telephone. Hodkey informed Jaksa and Doyle of the basic alleged facts of the case. After conferring with Detective Hodkey, Detectives Jaksa and Doyle went to plaintiff's residence where they interviewed Cathy Dennis ("Dennis"), the owner of the house where the alleged rape took place. Dennis lived in the house with three children and a boarder, the plaintiff. Dennis identified the plaintiff as matching the physical description given by Tammy. Dennis told the Detectives that Tammy had been at the house the previous evening. Dennis had left Tammy alone in the yard when Dennis had left the house with her children to go to the store. When Dennis returned later in the evening, plaintiff and Tammy were watching television. Dennis also told the Detectives that Tammy had been in the house on one or two prior occasions. There was a common room in the house which contained nude pictures but that, to Dennis' knowledge, Tammy had never been in that portion of the house. Dennis also informed the Detectives that plaintiff was presently at his place of employment.
Detectives Jaksa and Doyle next proceeded to the plaintiff's place of employment. The detectives identified themselves as police officers and informed plaintiff's employer that they were conducting an investigation and needed assistance from the plaintiff. Plaintiff was summoned by his employer and met the officers outside. The officers informed plaintiff of Tammy's allegations against him. At approximately 4:30 p.m., the officers placed plaintiff in custody and, after stopping for coffee, took him to the police station. At no time was a warrant for plaintiff's arrest obtained by any officer of the Eastlake Police Department. At the station, the plaintiff was "booked," informed of his constitutional rights, and questioned. Plaintiff offered his full cooperation and consented to a search of his residence and the taking of blood and pubic hair samples. Plaintiff was held at the station for approximately three hours and was released at approximately 7:00 p.m.
Detective Jaksa searched plaintiff's residence and seized several items of clothing belonging to the plaintiff.
*624 In his statement to the police, plaintiff acknowledged that Tammy had come to the house the previous evening looking for her friend. When informed that her friend was not there but would be returning shortly, Tammy asked if she could wait inside and watch television. The plaintiff allowed Tammy to wait inside. He stressed that no sexual activity occurred.
After plaintiff's arrest and the completion of the investigation, it was concluded that no charges would be filed against plaintiff. The physical evidence gathered by the detectives, the inconsistent statements made by Tammy, and the results of the medical examination did not support Tammy's allegations of rape. A report from the Lake County Forensic Lab, received on May 15, 1986, confirmed the lack of evidence that a rape had occurred. Consequently, no charges were ever filed against the plaintiff. Plaintiff then commenced the instant action.

II. The Law of Qualified Immunity

42 U.S.C. § 1983 provides for the redress of constitutional violations committed by state actors while acting under the color of state law. There are no affirmative defenses explicitly included in § 1983. However, the Supreme Court of the United States has determined that, in 1871 when Congress enacted § 1983, it was the congressional intent that certain common law immunities from liability apply in cases brought under § 1983. See generally Scheuer v. Rhodes, 416 U.S. 232, 241-49, 94 S.Ct. 1683, 1689-93, 40 L.Ed.2d 90 (1974). One such immunity is absolute immunity, most commonly asserted by judges and prosecutors, in which a defendant, despite committing a constitutional violation, is held immune from liability if the act was committed within the scope of defendant's official duties. See, e.g., Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 331 (1978) (A judge has absolute immunity in his actions, even if done maliciously, unless the actions were taken in total absence of all jurisdiction.).
The most commonly asserted immunity under § 1983 is qualified immunity. This immunity is almost always asserted by law enforcement officials in cases which allege that they have violated a plaintiff's constitutional rights.[1] Unlike absolute immunity, qualified immunity does not provide total protection to a defendant in a § 1983 case. Although courts talk in general terms about whether a defendant is entitled to qualified immunity, they often do not attempt to define qualified immunity, or to state its basic purpose. Qualified immunity, in its simplest terms, is given to an officer who may have violated a constitutional right of a person, if the officer's actions are such that a reasonable officer could have believed that the actions were lawful, in light of clearly established law and the information the officer possessed. In effect, qualified immunity may shield from liability, an officer who violates another's constitutional rights.
The extent to which qualified immunity protects a defendant from liability, the standard for applying the qualified immunity defense, and the procedural and case management issues arising out of the qualified immunity defense, have undergone several major changes recently. These changes have occurred because of both the increasing number of § 1983 cases filed against public officials, particularly law enforcement officers, and because of the increasing burden the large number of § 1983 cases places on the courts.
Prior to 1982, the standard or test for the qualified immunity defense included both an objective and a subjective element. The objective element "involved a presumptive knowledge of and respect for `basic unquestioned constitutional rights.' The subjective component refer[red] to `permissible *625 intentions.'" Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2737, 73 L.Ed. 2d 396 (1982) (citations omitted). A defendant was entitled to qualified immunity unless, "he knew or reasonably should have known that the actions he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights ..." Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975) (emphasis added). See also Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978) ("... [i]t is not unfair to hold liable the official who knows or should know that he is acting outside the law....").
The courts, however, began to realize that a subjective standard for qualified immunity was not conducive to an early termination of cases in which law enforcement officials were entitled to the qualified immunity defense. This inability to terminate cases prior to extensive discovery or trial came from the necessity of a court having to decide the defendant's motives and intent. Determination of such motive and intent often created a material issue of fact. Therefore, because there was a material issue of fact, a court could not decide the qualified immunity issue on a pretrial motion. See infra. The courts found that defendants in § 1983 cases were, therefore, being burdened by being forced to expend excessive amounts of time conducting discovery and preparing for trial. See Harlow v. Fitzgerald, 457 U.S. at 817, 102 S.Ct. at 2737-38 ("Judicial inquiry into subjective motivation ... may entail broad-ranging discovery and the deposing of numerous persons, including an official's professional colleagues. Inquiries of this kind can be peculiarly disruptive of effective government.").
In 1982, in the case of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed. 2d 396 (1982), the Supreme Court changed the standard for the qualified immunity defense in order to eliminate the need to determine the defendant's state of mind or motive. Id. at 815-16, 102 S.Ct. at 2737. Basically, the Supreme Court simply deleted the subjective element of the prior subjective/objective test. The standard enunciated in Harlow gave qualified immunity to those officials whose "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818, 102 S.Ct. at 2738. The Court, in Harlow, stated that, "[r]eliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment." Id.
An analysis of the qualified immunity standard established in Harlow demonstrates that not only did the Supreme Court change the standard for qualified immunity but also that arguably the Supreme Court, in effect, eliminated much of the protection the immunity gave to defendants. Under the Harlow standard, upon a court determining that the constitutional right which the defendant allegedly violated was clearly established, the defendant was not entitled to qualified immunity. Put simply, if a defendant did not violate a clearly established constitutional right, the defendant was entitled to qualified immunity. If a defendant did violate a clearly established constitutional right, he was not entitled to qualified immunity. Accordingly, under the Harlow standard, there was really no need for qualified immunity because under this standard a defendant was entitled to qualified immunity only if he could have shown that he did not violate a clearly established constitutional right.[2]
*626 The Supreme Court, in 1987, although not stating that it was changing the standard for qualified immunity, altered the standard in Anderson v. Creighton, ___ U.S. ___, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). See 107 S.Ct. 3034, 3043-49 (Stevens, J. dissenting). In Creighton, the Supreme Court held that a law enforcement officer claiming the defense of qualified immunity is entitled to such immunity if "a reasonable officer could have believed [the defendant's actions] to be lawful, in light of clearly established law and the information the ... officer possessed." Id. at 3040. Once again, as in Harlow, the defendant's subjective beliefs were held to be irrelevant. Id.[3]
In comparing the Harlow standard with the Creighton standard, the changes made by the Supreme Court are apparent. An official is entitled to qualified immunity if:
"[his] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.
"a reasonable officer could have believed [his conduct] to be lawful, in light of clearly established law and the information the ... officer possessed." Creighton, 107 S.Ct. at 3040.
As was previously stated, in the Harlow standard, the Supreme Court equated the qualified immunity defense with a violation of a clearly established constitutional right and thereby basically negated the qualified immunity defense. Under the Creighton standard, an officer may be able to successfully assert the qualified immunity defense even though he violated a clearly established constitutional right. The focus of the qualified immunity defense in Creighton is not on whether the constitutional right was established or not, but is on whether a reasonable police officer would have believed that the actions violated clearly established constitutional rights.
Courts and defendants are often reluctant to admit that a law enforcement official can violate a constitutional right and not be held liable for the violation. Therefore, most of the time such statements are not made. However, the courts have recognized that police officers do make mistakes. See Malley v. Briggs, 475 U.S. 335, 343, 106 S.Ct. 1092, 1097, 89 L.Ed.2d 271 (1986) (defense of qualified immunity gives officer "ample room for mistakes."). The courts have made the policy judgment, through the qualified immunity defense, that if a mistake made by a law enforcement official is reasonable and not gross or aggravated, the official will not be held liable, despite the official having violated the plaintiff's constitutional rights.
The Supreme Court has stated that district courts are to terminate § 1983 cases where the defendants are entitled to qualified immunity as early in the litigation process as possible. See Creighton, 107 S.Ct. at 3038 (The "substantial social costs, including the risk of personal monetary liability and harrassing litigation will unduly inhibit officials in the discharge of their duties...."); see also Harlow, 457 U.S. at 817, 102 S.Ct. at 2737-38 ("[B]road-ranging discovery and the deposing of numerous persons ... can be peculiarly disruptive of effective government."). In conjunction with the recent changes in the standard for applying qualified immunity, see supra, courts have turned their attention to the procedural aspects of the raising and the deciding of the issue of qualified immunity. The courts, in their concern for following the mandate for resolving the issue of qualified immunity at an early stage of the litigation have altered some of the regular procedural practices followed in cases not containing a qualified immunity defense issue.
A case can be disposed of at least four times by a court during the course of litigation. A case may be disposed of by a court on a motion to dismiss. Fed.R.Civ.P. *627 12(b), on a motion for summary judgment, Fed.R.Civ.P. 56, on a motion for a directed verdict, Fed.R.Civ.P. 50(a), and on a motion for judgment notwithstanding the verdict, Fed.R.Civ.P. 50(b).

A. Motion to Dismiss

It is well established that qualified immunity is an affirmative defense, Harlow, 457 U.S. at 815, 102 S.Ct. at 2736-37, and that failure to raise the defense of qualified immunity constitutes a waiver of that defense. Kennedy v. City of Cleveland, 797 F.2d 297, 299 (6th Cir.1986). The general rule is that a defendant has the burden of proving an affirmative defense. Yet, in an effort to terminate cases in which the defendant is clearly entitled to a qualified immunity defense, several courts have stated that this general rule is not applicable.
In Dominique v. Telb, 831 F.2d 673 (6th Cir.1987), the Sixth Circuit Court of Appeals stated that it was error to place the entire burden of proving the qualified immunity defense onto the defendant. The Court stated that it is incumbent upon a plaintiff to plead
such ... facts or allegations that show not only violations of his constitutional rights, but also that these rights were so clearly established when the acts were committed that any officer in the defendant's position, measured objectively, would have clearly understood that he was [violating the plaintiff's constitutional rights].
Id. at 676 (citing Creighton, 107 S.Ct. at 3039). Therefore, if a plaintiff fails to allege sufficient allegations to withstand the qualified immunity defense, a court may grant a motion to dismiss the complaint.

B. Motion for Summary Judgment

If a plaintiff has pled sufficient allegations to withstand a motion to dismiss, the defendant may next assert the qualified immunity defense by filing a motion for summary judgment, pursuant to Fed.R.Civ.P. 56. The Supreme Court in its desire to see "qualified immunity questions ... resolved at the earliest possible stage of a litigation," Creighton, 107 S.Ct. at 3042, n. 6, has limited the general rule that a motion for summary judgment should be ruled upon only after the opposing party has completed discovery.
The Supreme Court, although desiring not to place the burden of extensive discovery upon a defendant claiming the qualified immunity defense, does recognize that allowing a plaintiff to conduct limited discovery may be necessary prior to deciding the issue of qualified immunity.
[I]t should first be determined whether the actions the [plaintiff] allege[s the defendant] to have taken are actions that a reasonable officer could have believed lawful. If they are, then [the defendant] is entitled to dismissal prior to discovery. If they are not, and if the actions [the defendant] claims he took are different from those the [plaintiff] allege[s] [and are actions that a reasonable officer could have believed lawful], then discovery may be necessary before [the defendant's] motion for summary judgment on qualified immunity grounds can be resolved. Of course, any such discovery should be tailored specifically to the question of [the defendant's] qualified immunity.

Id. (emphasis added) (citations omitted). Therefore, when a defendant files a motion for summary judgment prior to the completion, or even the beginning of the discovery period, a court must limit a plaintiff's discovery to the narrow issue of the qualified immunity defense.
Although the plaintiff may be permitted to conduct limited discovery, a court may still decide the qualified immunity issue on a motion for summary judgment early in the course of litigation. Yet, it must be remembered that under Fed.R.Civ.P. 56, a court may grant summary judgment only upon a showing that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The ability to grant summary judgment only upon undisputed facts, does limit the number of cases which will be able to be disposed of at this stage of the litigation. This is particularly true in light of the fact that a court must look to *628 the "fact-specific" question of whether a "reasonable officer could have believed [the defendant's actions] to be lawful, in light of clearly established law and the information the searching officer's possessed." Creighton, 107 S.Ct. at 3040. See supra, note 3. Thus, despite the admonition toward the courts to resolve the qualified immunity issue at an early stage of the litigation, if a material issue of fact is present in the case, the case must proceed to trial.
A court, in following the mandate of the Supreme Court, must change its traditional role in case management, particularly in the earlier stages of litigation. Generally, a court relies on the parties to plead as they wish and to file or not file dispositive motions on their own initiative. However, this role does not comport with the goal of the early resolution of the qualified immunity defense issue.
The Fifth Circuit Court of Appeals, in Elliott v. Perez, 751 F.2d 1472 (5th Cir. 1985), placed an affirmative duty on the district courts to take the initiative and force the parties to present the court with the information needed to decide the qualified immunity question.
Probably of greatest importance is that the burden of being able to ascertain what the real facts are in order to determine the defense of immunity is placed squarely on the district judge. The trial judge may not wait on motions or other actions by the parties or counsel. Fortunately, trial judges have the tools to carry out this mission.
Id. at 1480.
This Court, in an attempt to resolve the qualified immunity issue in § 1983 cases, has not waited for defendants who plead the qualified immunity defense to file dispositive motions, but has, sua sponte, called the cases for qualified immunity hearings. At these hearings, this Court has taken evidence and listened to the arguments of counsel as if the parties were presenting a motion for summary judgment.[4]
For example, in another case presently pending before this Court, Lowery v. City of Cleveland, Case No. C87-2347, one of the plaintiffs alleges that he was the victim of excessive force by law enforcement officials. The officials then raised the defense of qualified immunity. This Court, sua sponte, set the matter for a qualified immunity hearing. At the hearing, conflicting testimony was presented regarding the events alleged in the complaint. In this situation, the Court could not determine whether the defendant is entitled to qualified immunity at this stage of the proceedings. Rather, the case must proceed to trial where the trier of fact will determine the facts of the case and will be instructed to draw the appropriate legal conclusions.
Despite the directives of the Supreme Court and the court of appeals, this Court *629 has concluded that the theory and the reality of making an early decision on whether a defendant is entitled to qualified immunity are entirely different. This Court has concluded that the attorneys for the plaintiffs have seen the necessity of creating a material issue of fact in order to stop courts from possibly granting a defendant qualified immunity and thereby shield the defendant from liability. The material issue of fact can be created through the submission of an affidavit or by sworn testimony at a qualified immunity hearing. The present case, which does not contain a material issue of fact is a rarity. Therefore, the well-intentioned goal of the early termination of frivolous cases against law enforcement officials is generally ineffective because of the realities of the practice of law. Accordingly, this Court will no longer hold qualified immunity hearings, but will require the parties to submit, in writing, their evidence and arguments relating to qualified immunity. This will permit this Court to review the documents and determine whether a question of fact exists early in the proceedings, without the necessity of a time- and resource-consuming qualified immunity hearing.
The denial by a court of the qualified immunity defense to a defendant on a motion to dismiss or on a motion for summary judgment does not necessarily automatically move the case into the next phase of litigation, however. The general rule is that the denial of a motion to dismiss or a motion for summary judgment is not appealable. However, in Kennedy v. City of Cleveland, 797 F.2d 297 (6th Cir.1986), the Court stated that a denial of the defense of qualified immunity on either a motion to dismiss or a motion for summary judgment is appealable to the court of appeals. During this appeal, the action in the district court is stayed. Id. at 299. "Therefore, it is possible that the progress of civil rights actions ... may be interrupted by not one but two interlocutory appeals." Id. The Sixth Circuit Court of Appeals, in Kennedy, recognized the possible case management problem involved with permitting appeals of the denial of the qualified immunity defense; however, it found the compelling interest to resolve the qualified immunity issue prior to discovery and trial of greater concern.
We recognize the opportunity for abusive delay inherent in the protections afforded by the [doctrine] of ... qualified immunity, but we believe that it can be minimized by diligent administration of trial proceedings in the district court and the effective use of procedures for expediting the resolution of insubstantial appeals in the court of appeals.
Id. at 301.

C. Trial Motions

In the event a § 1983 case containing a qualified immunity defense proceeds to trial, there are two more times the court may grant qualified immunity. The first occurs following the presentation of the plaintiff's case or at the end of both the plaintiff's and the defendant's case. Generally, at both of these times, the defendant will move for a directed verdict pursuant to Fed.R.Civ.P. 50(a). See supra, Note 4. At this stage, a defendant may move for a directed verdict on either or both grounds that the plaintiff has failed to prove a constitutional violation or that the plaintiff has failed to prove sufficient facts to deny the defendant the qualified immunity defense.
If the plaintiff succeeds in withstanding a motion for a directed verdict, the Court submits the issue of liability to the jury. In charging a jury on the qualified immunity defense, this Court sees no compelling reason to deviate from the normal instructions used in charging a jury on an affirmative defense. The Court should instruct the jury to first decide the issue of whether the defendant violated a plaintiff's constitutional right. The jury should then be instructed that if it finds a constitutional violation it should then determine whether the defendant is entitled to the defense of qualified immunity. This Court reaches this conclusion because although the Supreme Court and the courts of appeals have placed the qualified immunity doctrine in a special category for pretrial procedures, the reason for the special categorization, *630 the prevention of defendants from being burdened by extensive discovery and preparation for trial, is no longer valid.
The fourth and final time a court may grant the defendant qualified immunity is on a motion for judgment notwithstanding the verdict, pursuant to Fed.R.Civ.P. 56(b).
In summation, it is clear that the recent changes involving both the standard for applying qualified immunity and the procedural and case management issues arising out of an assertion by a defendant of qualified immunity, were made to accomplish the goal of permitting the resolution of the qualified immunity question as soon as possible in the course of litigation. It is with this goal in mind that the courts and the parties should proceed in a case where the qualified immunity defense has been raised.

III. Application

A. Detectives Doyle and Jaksa

Detectives Doyle and Jaksa raise the affirmative defense of qualified immunity. They defend on the grounds that they are protected from civil liability on the grounds of qualified immunity. As previously stated, whether a police officer is protected by qualified immunity for an alleged unlawful, official action generally turns on the "objective legal reasonableness" of the action, Harlow, 457 U.S. 800, 819, 102 S.Ct. 2727, 2739, assessed in light of the legal rules that were "clearly established" at the time it was taken. "The relevant question is the objective (albeit fact-specific) question whether a reasonable officer could have believed ... [his actions] to be lawful in light of clearly established law and the information the ... officers possessed." Creighton, 107 S.Ct. 3034. The Court shall focus upon whether the police officers are entitled to qualified immunity and need not examine the merits of the § 1983 claim. If the Court finds the police officers are entitled to qualified immunity, the § 1983 action is over as to the claims against the officers granted qualified immunity.
The Court held a hearing on the issue of qualified immunity at which Detectives Jaksa and Doyle both testified. After a review of the oral testimony, depositions, exhibits, and answers to interrogatories, the Court concludes that Detectives Jaksa and Doyle are entitled to qualified immunity.
Under clearly established law, an arrest is lawful if it is based upon probable cause. Probable cause must exist that a crime has been committed and that the one arrested committed the crime. United States v. Pollack, 739 F.2d 187 (5th Cir. 1984). In the instant action, reasonable police officers could have believed that they arrested plaintiff with probable cause. First, the officers had probable cause to believe that a crime had been committed. The officers possessed statements by Tammy, the victim, and Tammy's mother, that the rape had occurred. The medical evidence also confirmed that sexual activity may have occurred. Second, the detectives had probable cause to believe the plaintiff had committed the crime. The alleged rape took place at plaintiff's residence and plaintiff matched the physical description given by the victim. Tammy also accurately described the interior of the house in question. Dennis' statements to the officers also linked plaintiff to the alleged rape, in that she had returned home on the previous night to find plaintiff and Tammy alone together and that Tammy had never been to the portion of the house containing nude pictures. At the hearing, the detectives testified that their decision to arrest was also influenced by the violence of the offense and the possibility of destruction of evidence. Based upon a review of the entire record, the Court concludes that Detectives Jaksa and Doyle, acting as reasonable officers, could have believed that their actions in arresting plaintiff were lawful in light of clearly established law and the information possessed by the Detectives at the time of the arrest. Upon consideration of all of the facts and circumstances of the case, the Court concludes that Detectives Jaksa and Doyle are entitled to the defense of qualified immunity. Accordingly, this Court shall enter judgment in favor of defendants Jaksa and Doyle.

*631 B. City of Eastlake

The plaintiff seeks to recover from the City on the basis that the City maintained a policy and practice of allowing police officers to violate the constitutional rights of its citizens. Section 1983 is available to redress constitutional violations that result directly from a municipal policy or custom. Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, the plaintiff, in open court, acknowledged that he would be unable to prove such a policy or custom. Accordingly, there is no basis of liability on which to hold the City liable. Accordingly, the City shall be dismissed from the present action.

C. William DePledge

Two possible theories of liability exist with regard to DePledge, Chief of Police for the City. One such theory is that DePledge acted as a policymaker and promoted a policy in the City whereby police officers would violate the constitutional rights of its citizens. As previously mentioned, the plaintiff, in open court, indicated that no such policy existed. Thus, the policymaker theory is not an available basis on which to attach liability to DePledge. The second theory on which to hold DePledge liable is that DePledge was an actor and acted under color of state law to violate the plaintiff's constitutional rights. However, the plaintiff has failed to allege any facts indicating that DePledge directly participated in the events in question. Therefore, the actor theory is not an available basis on which to attach liability to DePledge.
Accordingly, DePledge shall be dismissed from the present action.

IV. Conclusion

Defendants Jaksa and Doyle are entitled to qualified immunity and cannot be held liable in this action. Accordingly, judgment shall be entered in favor of defendants Jaksa and Doyle. The Court shall dismiss, with prejudice, defendants City and DePledge on the basis that the plaintiff has failed to state a claim upon which relief can be granted against either of these defendants. Because no federal claims remain, this Court declines to exercise its pendent jurisdiction over the pending state law claim and shall dismiss it, without prejudice. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).
NOTES
[1]  This Court shall use the term "law enforcement officials or officers" in its discussion of the qualified immunity defense. However, the defense is available to a myriad of defendants who have allegedly violated a plaintiff's constitutional rights. See, e.g., Spencer v. Staras, 507 F.2d 554 (7th Cir.1974) (state hospital employees entitled to assert qualified immunity defense); Gonzalez v. Leonard, 497 F.Supp. 1058 (D.C.Conn.1980) (immigration official entitled to assert qualified immunity defense).
[2]  The foregoing argument has merit unless the added language "that a reasonable person knows or should have known" has some significant meaning. To give this phrase significant meaning, however, would place a burden on the defendant to demonstrate which law a reasonable person would not know. This burden of proof would be extremely difficult to prove and would place a high degree of uncertainty into whether a defendant would be granted qualified immunity.
[3]  The Supreme Court, in Creighton, further clarified the term "clearly established law" as it is used in the standard for qualified immunity. Basically, "clearly established law" refers to the law as it related to the specific facts in each case. Each case is to be decided on its own particular facts. Creighton, 107 S.Ct. at 3039.
[4]  This Court, in the qualified immunity hearings, has applied the standard for granting a motion for summary judgment, pursuant to Fed.R.Civ.P. 56(c), and rendered judgment for the defendant only if the evidence shows that "there is no genuine issue as to any material fact and that [the defendant] is entitled to [qualified immunity] as a matter of law." Fed.R.Civ. P. 56(c). In ruling on the issue of whether the defendant is entitled to qualified immunity, this Court "construe[s] the evidence in its most favorable light in favor of the [plaintiff] and against the [defendant]." Bohn Aluminum & Brass Corp., 303 F.2d 425, 427 (6th Cir.1962). It has been argued before this Court that the proper standard which should be applied is the standard for the granting of a directed verdict, Fed. R.Civ.P. 50(a), or whether a reasonable jury could find for the nonmoving party, viewing the evidence with all reasonable inferences in favor of the nonmoving party. See Sove v. Smith, 355 F.2d 264, 268 (6th Cir.1966). In support of the argument, the cases of Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), have been cited. This Court does not find the argument persuasive. First, there has been no explicit statement by the Supreme Court that the standard for granting summary judgment has been changed to that of the standard for granting a directed verdict. Second, although the Supreme Court does state that the standards for granting a motion for summary judgment and a motion for a directed verdict are "mirrors" of each other, this Court does not deem this statement to mean that the standards are identical and therefore interchangeable. Accordingly, this Court shall continue to apply the standard for summary judgment as stated in Fed.R.Civ.P. 56(c).


             Case: 15-14306     Date Filed: 10/02/2017   Page: 1 of 25

                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 15-14306
                           ________________________

                    D.C. Docket No. 1:14-cv-01196-WHA-WC

J.S., III,
a minor, by and through J.S. Jr. and M.S., his parents
and next friends,

                                                  Plaintiff - Appellant,

versus

THE HOUSTON COUNTY BOARD OF EDUCATION,

                                                  Defendant - Appellee.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Alabama
                         ________________________

                                 (October 2, 2017)
               Case: 15-14306      Date Filed: 10/02/2017      Page: 2 of 25

Before WILLIAM PRYOR, JORDAN, and RIPPLE, * Circuit Judges.

PER CURIAM:

       J.S., III is an elementary school student with severe physical disabilities and

cognitive impairments. Through his parents, J.S., Jr. and M.S., he appeals the

district court’s grant of summary judgment in favor of the Houston County Board

of Education on his claims under Title II of the Americans with Disabilities Act, 42

U.S.C. § 12131 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. J.S.

alleges that he was discriminated against on the basis of his disability while

attending Wicksburg High School, a kindergarten through twelfth-grade school in

Houston County, Alabama. Following oral argument and a review of the record,

we affirm in part and reverse in part the district court’s order, and remand for

further proceedings.

                                              I

       When J.S. was in the third grade (2010 to 2011) and fourth grade (2011 to

2012), he received individual education plans (IEPs), under which he was assigned

to regular and special education classrooms. The IEPs noted that J.S. had poor

balance, used a walker and a wheelchair at school, needed help with using the

restroom, and received physical and occupational services while at school. The

IEPs specified that J.S. was to spend 80 percent of his time in the regular

*
 The Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit, sitting
by designation.

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classroom and 20 percent of his time in the special education classroom.

Alicia Brown was J.S.’ special education teacher during his third-grade year and

part of his fourth-grade year and Angie Boatright was his regular classroom

teacher during his fourth-grade year. Drew Faircloth was assigned to work with

J.S. as a teacher’s aide/special education paraprofessional starting J.S.’ third-grade

year. Mr. Faircloth helped J.S. with going to the restroom, getting around the

school campus, going to lunch and recess, participating in physical education, and

completing class work.

      In late 2011 and early 2012, Mr. Faircloth began taking J.S. out of his

regular classroom and bringing him to the school’s weight room, purportedly

because J.S. was disruptive in the classroom and because they could do physical

therapy and use the private restroom there. Ms. Boatright testified that she never

instructed Mr. Faircloth to take J.S. out of the classroom for being a distraction to

others or being distracted himself. See Boatright Dep., D.E. 28-20 at 24–25, 58.

      Matt Barton and Brandon Sunday, both elementary physical education

teachers and coaches at Wicksburg, observed Mr. Faircloth and J.S. in the weight

room. Coach Barton testified that Mr. Faircloth brought J.S. into the weight room

“fairly often” and that on some days J.S. completed class work and worksheets in

the weight room, while on other days he would be just “kind of . . . hanging out”

while Mr. Faircloth was sitting in the coach’s office using the computer. See

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Barton Dep., D.E. 28-22 at 23–27. Coach Sunday said that he saw J.S. and

Mr. Faircloth in the weight room at least once a week generally, sometimes twice a

week. He testified that J.S. would often be doing class work at a small desk, while

Mr. Faircloth was on the other side of the window inside the coach’s office talking

with Coach Barton, occasionally helping J.S. if he had a question. See Sunday

Dep., D.E. 28-23 at 32–33.

      Ms. Brown testified that she heard from other teachers that Mr. Faircloth

was taking J.S. to the weight room and informed Wicksburg Principal

Cheryl Smith at least twice. See Brown Dep., D.E. 28-26 at 25, 30–31, 38.

Principal Smith testified that she spoke with Mr. Faircloth and asked him to stop

taking J.S. to the weight room. See Smith Dep., D.E. 28-27 at 72. Mr. Faircloth

continued to remove J.S. from the classroom.

      In March of 2012, a fellow student, R.T., witnessed Mr. Faircloth kick J.S.’

wheelchair, while telling him to be quiet, refusing to pick up his pencil for him,

and otherwise berating him. R.T. told her parents, who then informed J.S.’ parents

about what R.T. had witnessed. In response, J.S.’ parents placed an audio recorder

underneath J.S.’ wheelchair for several days. According to J.S.’ parents, the device

captured verbal abuse by Mr. Faircloth and Ms. Brown, and possible physical

abuse by Mr. Faircloth.

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      J.S.’ parents contacted the school district’s special education coordinator,

Denise Whitfield, to report what they had heard on the recordings. Mr. Faircloth

and Ms. Brown were placed on administrative leave and received written

reprimands from Principal Smith. Mr. Faircloth ultimately resigned from his

position and the School Board decided not to renew Ms. Brown’s contract.

      J.S., through his parents, originally filed an action in 2012 against the

School Board, Mr. Faircloth, Ms. Brown, and others. He settled his claims against

Mr. Faircloth and Ms. Brown. The district court granted summary judgment to the

School Board because J.S. had failed to exhaust his administrative remedies, but

dismissed the suit without prejudice. J.S. subsequently filed an administrative due

process complaint with the Alabama Department of Education pursuant to the

Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., and J.S. and

the School Board resolved that dispute. J.S. then filed this action against the

School Board, alleging Title II and § 504 violations relating to his removal from

the classroom and the verbal and physical abuse.

      The district court granted summary judgment in favor of the School Board,

concluding that (1) regarding his removal from the classroom, J.S. had not shown

more than a failure to provide a free appropriate public education (FAPE) under

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the IDEA; and (2) J.S. had not provided any evidence that the School Board had

notice of future verbal and physical abuse. This appeal followed.1

                                               II

       We review the grant of summary judgment de novo, applying the same legal

standard used by the district court and drawing all factual inferences in the light

most favorable to the nonmoving party. See Johnson v. Bd. of Regents of Univ. of

Georgia, 263 F.3d 1234, 1242–43 (11th Cir. 2001). Summary judgment is

appropriate when “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits . . . show that there is no genuine

issue as to any material fact and that the nonmoving party is entitled to judgment as

a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.

R. Civ. P. 56(c)). In order to overcome a motion for summary judgment, the

moving party must present more than a mere scintilla of evidence supporting his

position, and must make a sufficient showing that a jury could reasonably find in

his favor. See Brooks v. Cty. Comm’n of Jefferson Cty., Ala., 446 F.3d 1160, 1162

(11th Cir. 2006).

1
 The district court denied J.S.’ motion to alter or amend the judgment based on a Department of
Justice Letter of Finding and a decision by this Court that were both issued after the motion for
summary judgment was briefed. J.S. does not appear to challenge that ruling.

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                                         III

      Title II of the ADA and § 504 of the Rehabilitation Act forbid discrimination

on the basis of disability in the provision of public services. 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. Similarly, § 504 states that “[n]o otherwise

qualified individual with a disability in the United States, . . . shall, 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.

      Discrimination claims under the ADA and the Rehabilitation Act are

governed by the same standards, and the two claims are generally discussed

together. See Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000). To state a claim

under Title II and § 504, a plaintiff must demonstrate “(1) that he is a qualified

individual with a disability; (2) that he was either excluded from participation in or

denied the benefits of a public entity’s services, programs, or activities, or was

otherwise discriminated against by the public entity; and (3) that the exclusion,

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denial of benefit, or discrimination was by reason of the plaintiff’s disability.”

Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1083 (11th Cir. 2007). 2

          J.S. argues that the district court erred by mischaracterizing his Title II and

§ 504 claim regarding his removal from his regular classroom as merely a claim

that he was denied a FAPE, a right guaranteed under the IDEA. The IDEA

“guarantees individually tailored educational services,” whereas Title II and § 504

“promise non-discriminatory access to public institutions”—specifically aiming “to

root out disability-based discrimination, enabling each covered person . . . to

participate equally to all others in public facilities and federally funded programs.”

Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 756 (2017). Courts have recognized

that there is often “some overlap in coverage” across these statutes and that “[t]he

same conduct might violate all three statutes.” Id.

          The district court reasoned that, in order to demonstrate discrimination in the

education context, a plaintiff must show more than a simple failure to provide a

FAPE; he must also demonstrate bad faith or gross misjudgment by the school, or

show that he suffered discrimination solely because of his disability. The district

court concluded that J.S. had not presented evidence that the departure from his

IEP amounted to gross misjudgment, and had not demonstrated that he was treated

differently or excluded from something that other students received. We agree that

2
    It is undisputed that J.S. is a qualified individual with a disability.

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“[t]o prove discrimination in the education context, something more than a mere

failure to provide the ‘free appropriate education’ required by [IDEA] must be

shown,” Sellers v. Sch. Bd. of City of Mannassas, Va., 141 F.3d 524, 529 (4th Cir.

1998) (internal quotation marks and citation omitted), but disagree with the district

court’s conclusion that J.S. merely set out an IDEA claim.

      In the context of determining whether a claim under Title II or § 504 seeks

relief that is also available under the IDEA and is therefore also subject to the

IDEA’s exhaustion requirement, the Supreme Court has stated that “[w]hat matters

is the crux—or, in legal-speak, the gravamen—of the plaintiff’s complaint, setting

aside any attempts at artful pleading.” Fry, 137 S. Ct. at 755. Although we are not

examining the issue of exhaustion under the IDEA, we find this guidance

instructive.

      To determine whether a claim seeks relief available under the IDEA, the

Supreme Court has proposed that courts ask a pair of hypothetical questions: first,

whether the claim could have been brought if the alleged conduct occurred at a

public facility outside of a school (such as a public theater or library); and second,

whether it could have been brought by an adult at the school. If the answer to these

questions is no, then the complaint likely concerns a FAPE violation under the

IDEA. See id. For example, an allegation that a school building lacks access to

ramps would likely state a claim under Title II, whereas an allegation that a student

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with a learning disability was not provided remedial tutoring in mathematics would

likely assert a claim only for the denial of a FAPE. See id. at 756–57. Another

factor to consider is the history of the proceedings and whether a plaintiff has

previously invoked the IDEA’s formal procedures to handle the dispute. See id. at

757.3

         The cause of action here does not fit neatly into Fry’s hypotheticals. The

complaint here specifically alleges that the School Board “allowed J.S. [ ] to be

removed from his regular classroom, based on discriminatory reasons and for no

purpose related to his education.” Compl., D.E. 1 at 46. Unlike the examples in

Fry, here we cannot as easily divorce J.S.’ claim of isolation from the context of

him being an elementary student at a school. Although this claim could be brought

as a FAPE violation for failure to follow J.S.’ IEP, we conclude that it is also

cognizable as a separate claim for intentional discrimination under the ADA and

§ 504.

         In Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), the Supreme Court

concluded that unjustified institutional isolation of persons with disabilities is a

form of discrimination based on disability under Title II. See id. at 599–600. The

Court considered two important factors in coming to this conclusion: one, that
3
  Justice Alito’s concurrence in Fry took issue with the majority’s hypotheticals, noting that
these “misleading clues” “make sense only if there is no overlap between the relief available
under” the IDEA and Title II and § 504. Id. at 759 (Alito, J., concurring) (internal quotation
marks omitted and alteration adopted). As we explain, this may be one of those circumstances in
which Fry’s hypotheticals could “lead [us] astray.” Id.

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“institutional placement of persons who can handle and benefit from community

settings perpetuates unwarranted assumptions that persons so isolated are incapable

or unworthy of participating in community life”; and, two, that “confinement in an

institution severely diminishes the everyday life activities of individuals.” Id. at

600–01.

      Isolation via institutionalization is admittedly a more extreme and restrictive

action than removal from a school classroom, but the reasoning in Olmstead seems

to apply here. J.S. has alleged—and has provided evidence tending to show—that

he was, with some frequency, excluded and isolated from his classroom and peers

on the basis of his disability. Although the circumstances alleged here do involve a

violation of J.S.’ IEP, they also implicate those further, intangible consequences of

discrimination contemplated in Olmstead that could result from isolation, such as

stigmatization and deprivation of opportunities for enriching interaction with

fellow students. These injuries reach beyond a misdiagnosis or failure to provide

appropriate remedial coursework. Compare K.M. ex rel. D.G. v. Hyde Park Cent.

Sch. Dist., 381 F. Supp. 2d 343, 360 (S.D.N.Y. 2005) (recognizing that

“unnecessary social isolation has been considered a form of actionable

discrimination” and concluding that, in light of Olmstead, a disabled student’s

isolation during lunch appears to be such a claim), with Sellers, 141 F.3d at 529

(concluding that allegations that a school board failed to recognize a student’s

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disability based on test scores were insufficient to state a claim under § 504).

Accordingly, the district court erred in analyzing this claim as merely a FAPE

violation under the IDEA.

                                        IV

      Having concluded that J.S. has stated a claim of intentional discrimination,

we must next determine whether the School Board can be held liable for such

discrimination under Title II and § 504. We have held that it is appropriate to look

to Title IX case law for guidance in examining discriminatory intent under § 504.

See Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 347 (11th Cir. 2012).

Under Title IX (and, by extension, Title II and § 504), a plaintiff may establish

intentional discrimination by showing deliberate indifference. See id. at 347–48.

“Deliberate indifference is an exacting standard; school administrators will only be

deemed deliberately indifferent if their response . . . or lack thereof is clearly

unreasonable in light of the known circumstances.” Doe v. Sch. Bd. of Broward

Cty., Fla., 604 F.3d 1248, 1259 (11th Cir. 2010) (internal quotation marks and

citation omitted). We may, on a motion for summary judgment, determine that a

response was not “clearly unreasonable” as a matter of law. See Davis v. Monroe

Cty. Bd. of Educ., 526 U.S. 629, 649 (1999).

      Title IX is “predicated upon notice to an ‘appropriate person’ and an

opportunity to rectify any violation.” Gebser v. Lago Vista Indep. Sch. Dist., 524

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U.S. 274, 290 (1998). So, “[f]or an organization to be liable for Title IX purposes,

[a plaintiff must show] the deliberate indifference of ‘an official who at a minimum

has authority to address the alleged discrimination and to institute corrective

measures on the organization’s behalf and who has actual knowledge of

discrimination in the organization’s programs and fails adequately to respond.’”

Liese, 701 F.3d at 349 (alterations adopted) (quoting Gebser, 524 U.S. at 290).

      “[T]he ultimate question of who is an appropriate person is necessarily a

fact-based inquiry because officials’ roles vary among school districts.” Broward

Cty., 604 F.3d at 1256 (internal quotation marks and citation omitted). “An

‘appropriate person’ . . . is, at a minimum, an official of the recipient entity with

authority to take corrective action to end the discrimination.” Gebser, 524 U.S. at

290. “[T]he official with notice . . . must be ‘high enough up the

chain-of-command that his [or her] acts constitute an official decision by the

school district itself not to remedy the misconduct.’” Broward Cty., 604 F.3d at

1255 (quoting Floyd v. Waiters, 171 F.3d 1264, 1264 (11th Cir. 1998)).

      J.S. argues that Principal Smith, Ms. Brown (his special education teacher),

Ms. Boatright (his regular education teacher), and Coach Barton and

Coach Sunday (both physical education teachers), were all appropriate persons

who had the authority to take measures to correct Mr. Faircloth’s conduct, and that

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they were each deliberately indifferent to actual notice that Mr. Faircloth was

removing J.S. from his regular classroom. We address each individual in turn.

                                          A

      J.S. first argues that Principal Smith was an appropriate person who failed to

adequately respond to actual notice that Mr. Faircloth was bringing him into the

weight room regularly. In Broward County, we held that a principal was an

“appropriate person” to receive Title IX actual notice because that principal, as

“the highest-ranking school official on site” at the school, was “equipped with

many . . . means of deterring or stopping sexual harassment of students, such as

admonishing the teacher, conducting a thorough preliminary investigation, swiftly

reporting the abuse, and monitoring the teacher’s behavior.” 604 F.3d at 1255,

1257. Indeed, we noted that the Supreme Court’s decisions in Gebser and Davis

“appeared to presume that the principal could be an appropriate person” and that

“the majority of our sister circuits addressing the issue have interpreted [those]

opinions as standing for the proposition that at least in some circumstances, if not

generally, a principal enjoys ample authority to ‘take corrective measures’ in

response to allegations of teacher or student . . . harassment.” Id. at 1256.

      Principal Smith specifically testified that she was Mr. Faircloth’s immediate

supervisor. See Smith Dep. at 109. A Houston County high school principal has

“direct and primary responsibility for his/her school and [he/she] serves as the

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administrative and supervisory head of the school.” See High School Principal Job

Description, D.E. 28-25 at 5. The principal is tasked with “[s]upervis[ing] assigned

personnel,   conduct[ing]     annual      performance    appraisals,   and    mak[ing]

recommendations      for    appropriate     employment     actions,”   as    well   as

“[i]mplement[ing] school board policy, state statutes, and federal regulations.” Id.

at 3. Given our precedent generally recognizing principals as appropriate persons,

as well as Principal Smith’s responsibilities in supervising staff and implementing

regulations, the record establishes, at minimum, that a reasonable jury could

determine that Principal Smith, as the “highest-ranking official” at Wicksburg, was

an appropriate person with authority to address the alleged discrimination.

      As for the failure to adequately respond to actual notice of discrimination,

Principal Smith testified that she was informed by Ms. Brown only once, in

approximately October of 2011, that Mr. Faircloth was taking J.S. to the weight

room. She stated that she told Mr. Faircloth that she would “rather him not take

[J.S.] back to that weight room” and that she was never subsequently informed that

he had taken J.S. back to the weight room. See Smith Dep. at 72. But

Principal Smith did not follow up to see if Mr. Faircloth followed her instructions.

She acknowledged, moreover, that she did not inform J.S.’ parents that he had been

removed from the classroom, and did not ask J.S. directly what was happening

while they were in the weight room because she believed Mr. Faircloth and his

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explanation seemed reasonable. Ms. Brown, however, testified that when she later

learned Mr. Faircloth was continuing to take J.S. into the weight room, she again

told Principal Smith. The record does not show that Principal Smith took any

action following the second notice, though she maintains that she was informed of

Mr. Faircloth’s behavior only that one time in October of 2011.

      Viewing the evidence in the light most favorable to J.S., a jury could find

that Principal Smith was deliberately indifferent in failing to follow up with

Mr. Faircloth, or speak to J.S. or his parents after her discussion with

Mr. Faircloth, and in failing to take adequate action when she was informed a

second time that J.S. was being removed from the classroom. There is a genuine

issue of material fact as to whether Principal Smith had actual knowledge and

whether her response was clearly unreasonable, i.e., deliberately indifferent.

                                         B

      J.S next argues that both Ms. Brown and Ms. Boatright had the authority to

take corrective measures in response to his removal from the classroom, and that

they responded to Mr. Faircloth’s actions in a manner that was clearly

unreasonable. We agree.

                                          1

      We have yet to determine whether a schoolteacher can serve as an

appropriate person with authority to take corrective measures so as to constitute an

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official decision from the school district itself. See, e.g., Hawkins v. Sarasota Cty.

Sch. Bd., 322 F.3d 1279, 1287–88 (11th Cir. 2003) (declining to address issue of

notice and deliberate indifference based on teacher’s actions and resting decision

instead on denial of access issue). Based on the record before us, we conclude that

a teacher can serve as an appropriate person and an issue of fact remains as to

whether Ms. Brown and Ms. Boatright were appropriate persons.

      In Houston County, both regular and special education teachers are

responsible for “instruct[ing] and supervis[ing] the work of volunteers and aides

when assigned.” See Elementary Teacher Job Description, D.E. 28-30 at 6; Special

Education Teacher Job Description, D.E. 28-11 at 2. Although Mr. Faircloth was

assigned specifically to J.S., and not to a particular classroom, this fact, viewed in

the light most favorable to J.S., supports the argument that the teachers held some

supervisory authority over Mr. Faircloth as an aide. See Denise Whitfield 6-29-15

Dep., D.E. 28-29 at 31–32. Both teachers were also expected to “assist in [the]

enforcement of school rules, administrative regulations[,] and [school board]

policy.” Elementary Teacher Job Description at 6; Special Education Teacher Job

Description at 2.

      The School Board’s expert and special education director, Ms. Whitfield,

testified that Ms. Brown was not “totally responsible” for Mr. Faircloth’s

supervision, but that she was responsible in part as J.S.’ case manager, who had to

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ensure the implementation of the IEP. See Whitfield Dep. at 32–33. See also Smith

Dep. at 109–10, 115–16 (explaining that Ms. Brown did not have any immediate

supervisory authority over Mr. Faircloth, but that she was responsible for the

implementation, compliance, and enforcement of J.S.’ IEPs, including informing

school personnel, such as Mr. Faircloth, of their responsibilities under the IEP).

Ms. Whitfield also said that Ms. Brown “could have told” Mr. Faircloth that J.S.

was not supposed to be in the weight room and that she “had the authority to say

whatever she wanted to say.” Id. at 34–35. When asked whether Mr. Faircloth

would have had to comply with Ms. Brown’s instruction or admonition,

Ms. Whitfield answered that “he should have complied if she told him that she

didn’t want him to take [J.S.] to the weight room [and that] if he didn’t [comply]

she could have gone to her supervisor.” Id. at 36–37.

      As for Ms. Boatright, Ms. Whitfield testified that Mr. Faircloth “should

have” been required to follow an instruction by Ms. Boatright to not take J.S. to the

weight room, if one had been given. See id. at 49. When asked whether

Ms. Boatright had the authority by virtue of her position as J.S.’ teacher to give

such an instruction to Mr. Faircloth, Ms. Whitfield responded “[c]ertainly, I think

she could have said that, yes.” Id. at 49–50.

      Viewing this evidence in the light most favorable to J.S., a reasonable jury

could find that Ms. Boatright and Ms. Brown had authority to take corrective

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action to stop Mr. Faircloth from removing J.S. from the classroom. In Broward

County, we rejected the notion that “final employment decisions such as

suspending, terminating, or reassigning an offending [individual] [are] the only

corrective measures giving an official the power to remedy” harassment under

Title IX. 604 F.3d at 1257. Instead, we recognized that there are “many other

means of deterring or stopping [ ] harassment of students, such as admonishing the

[individual], conducting a thorough preliminary investigation, swiftly reporting the

abuse, and monitoring the [individual’s] behavior.” Id.

      A reasonable jury could find that Ms. Brown and Ms. Boatright both held

some sort of supervisory authority over Mr. Faircloth given their job descriptions

and their designation as persons responsible for the implementation and

enforcement of J.S.’ IEP, and that they had the ability and authority to take such

actions as those contemplated in Broward County. J.S., accompanied by

Mr. Faircloth, was to spend approximately 80 percent of his time in

Ms. Boatright’s classroom, leaving her arguably the best-positioned school official

to take action to remedy J.S.’ removal from her classroom. And although

Ms. Brown stated that she did not believe that it was her job to supervise

Mr. Faircloth and that she could not have reprimanded or corrected him, the

testimony of Ms. Whitfield and Ms. Smith suggests otherwise, particularly given

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her role as J.S.’ case manager and the individual responsible for informing school

personnel of their responsibilities under the IEP.

                                          2

      The record also contains sufficient evidence from which a reasonable jury

could find that both Ms. Brown and Ms. Boatright had knowledge of J.S.’ removal

from the classroom and that their respective responses were deliberately indifferent

under the circumstances.

      Although Mr. Faircloth did not usually accompany J.S. to her classroom,

Ms. Brown testified that Ms. Boatright told her that J.S. and Mr. Faircloth were not

in her classroom when they were supposed to be. See Brown Dep. at 22–23.

Ms. Brown asserts that she told Principal Smith at least twice that J.S. was being

removed from the classroom, but there remains an issue of fact as to whether

Ms. Brown spoke with Principal Smith again after learning from Coach Barton,

Coach Sunday, and Angela Brockman, another special education teacher, that it

was an “ongoing habit.” See Id. at 30–31; Smith Dep. at 72 (denying that

Ms. Brown informed her a second time that Mr. Faircloth was continuing to bring

J.S. to the weight room). Ms. Brown testified that she spoke with Mr. Faircloth and

informed him that taking J.S. to the weight room was against his IEP, but that she

did not speak with him again because she did not feel it was her responsibility to

reprimand him. See Brown Dep. at 26, 30–32, 80–81. Moreover, Ms. Brown did

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not ask J.S. what was happening in the weight room and, although she was in

“constant,” daily contact with J.S.’ mother, she did not inform J.S.’ parents of what

was happening. See id. at 33–34, 118–19. Given these factual disputes and her

apparent failure to follow up with Mr. Faircloth or speak with J.S. or his parents,

there is sufficient evidence from which a reasonable jury could conclude that

Ms. Brown’s actions were clearly unreasonable.

      As for Ms. Boatright, she testified that J.S. and Mr. Faircloth were often “in

and out” of her classroom. See Boatright Dep. at 21–23. Although it is unclear

whether Ms. Boatright knew that Mr. Faircloth was taking J.S. to the weight room

specifically, see Boatright Dep. at 29, 43–44, 54, she knew J.S. was often not in

her classroom as required. According to Ms. Brown, she and Ms. Boatright had a

conversation about the fact that J.S. was not in Ms. Boatright’s classroom and

Ms. Boatright agreed that she should speak with Principal Smith because she was

responsible for teaching J.S. See Brown Dep. at 71–72. But Ms. Boatright did not

report J.S.’ removal from the classroom to Principal Smith. Nor did she ever ask

J.S. about what occurred when Mr. Faircloth took him out of the classroom, or

speak with Mr. Faircloth about it. See Boatright Dep. at 45–46, 85. Viewing the

evidence in the light most favorable to J.S., a reasonable jury could conclude that

Ms. Boatright had knowledge that J.S. was being removed from the classroom and

that she reacted in a manner that was clearly unreasonable under the circumstances.

                                         21
             Case: 15-14306      Date Filed: 10/02/2017   Page: 22 of 25

                                          C

      J.S. also argues that Coach Barton and Coach Sunday were appropriate

persons that could bind the school district, arguing that they “could have, at the

very least, tried to deter Mr. Faircloth from bringing J.S. . . . to the weight room”

and that they had authority to instruct Mr. Faircloth to return J.S. to his regular

classroom. See Br. of Appellant at 58. Unlike the classroom teachers, however, the

record does not contain sufficient evidence from which a reasonable jury could

conclude that Coach Barton and Coach Sunday had the authority to take corrective

actions to stop Mr. Faircloth.

      Ms. Whitfield testified that the coaches had supervisory authority over

Mr. Faircloth “to the extent that they were providers of [J.S.’] IEP, and the services

in his IEP.” See Whitfield Dep. at 54. She also testified that either coach “could

have” told Mr. Faircloth to take J.S. back to his regular classroom, and that she

believed that—based on her “own personal ethical and moral principles”—

Mr. Faircloth “should have” complied with such instructions. Id. at 50–53. But J.S.

has not pointed to any evidence suggesting that physical education teachers and

coaches in the school district, like general and special education teachers,

maintained a supervisory role over assigned aides. Coach Barton, for his part,

testified that he was never told that he was responsible for communicating with

J.S.’ parents directly. See Barton Dep. at 78–79. And although each coach was

                                          22
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listed on at least one of J.S.’ IEPs, J.S. has not presented evidence that they served

a supervisory role similar to, or with the same level of involvement as,

Ms. Boatright, the teacher responsible for 80 percent of J.S.’ school day, or

Ms. Brown, J.S.’ case manager.

      We recognize that Coach Barton and Coach Sunday could have—and

indeed, likely should have—informed someone that they had frequently observed

Mr. Faircloth and J.S. in the weight room. But the record does not reflect that they

were “high enough up the chain-of-command” for their actions to “constitute an

official decision by the school district itself not to remedy the misconduct.”

Broward Cty., 604 F.3d at 1255 (quoting Floyd, 171 F.3d at 1264).

                                          V

      As for J.S.’ assertion that the School Board is liable for Mr. Faircloth’s

alleged verbal and physical abuse of J.S., we again borrow from Title IX deliberate

indifference case law to guide our analysis. See Liese, 701 F.3d at 347. Having

already concluded that there remains a genuine issue of fact as to whether

Principal Smith, Ms. Brown, and Ms. Boatright were appropriate persons with

actual notice of J.S.’ removal from his classroom and whose responses were

clearly unreasonable, we must determine whether the “substance of that actual

notice [was] sufficient to alert the school official of the possibility” of the verbal

and physical abuse. Broward Cty., 604 F.3d at 1254.

                                         23
             Case: 15-14306     Date Filed: 10/02/2017    Page: 24 of 25

      J.S. argues that his removal from the classroom created the opportunity for

Mr. Faircloth to abuse him. In the Title IX context, we have held that “lesser

harassment may still provide actual notice of [ ] violent conduct, for it is the risk of

such conduct that the Title IX recipient has the duty to deter.” Id. at 1258. For

example, in Broward County, we held that knowledge of prior instances of sexual

harassment of two students by a teacher served as actual notice of the possibility of

that teacher’s sexual assault of another student. See id. at 1259. Similarly, in

Williams v. Board of Regents of University System of Georgia, 477 F.3d 1282

(11th Cir. 2007), the prior groping of female employees by a college basketball

player was sufficient to allege actual notice of the possibility of a later violent

sexual assault that occurred in that player’s dorm room. See id. at 1294–95; id. at

1304–05 (Jordan, District Judge, concurring). In contrast, comments made to a

group of students during class did not serve as sufficient notice of the possibility of

a teacher’s sexual relationship with a student. See Gebser, 524 U.S. at 291–92. Nor

was there actual notice of potential sexual molestation based on prior allegations of

a teacher’s touching during a touch football game and perceived imminent

touching at a public water fountain. See Davis v. DeKalb Cty. Sch. Dist., 233 F.3d

1367, 1372–73 (11th Cir. 2000).

      The record does not establish (or create a jury issue) that knowledge that

Mr. Faircloth was removing J.S. from his classroom and bringing him into the

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weight room would apprise his teachers or the principal of the possibility that

Mr. Faircloth was also abusing J.S. See Boatright Dep. at 51, 53–54, 60–61; Barton

Dep. at 26, 29, 40, 70, 84–85; Sunday Dep. at 33–34. At most, the facts

demonstrate that any school officials who could be deemed “appropriate persons”

were aware that Mr. Faircloth was inattentive, or even careless, with J.S. But,

similar to the incidental touching and inappropriate comments in Davis and

Gebser, no reasonable jury would find that this conduct alerted those school

officials to the possibility of abuse.

                                          VI

      There are genuine issues of fact as to whether the School Board was

deliberately indifferent to discrimination regarding J.S.’ removal from the

classroom, but there is insufficient evidence from which a reasonable jury could

conclude that the School Board had notice of the possibility of alleged verbal and

physical abuse against J.S. Accordingly, we affirm in part and reverse in part the

district court’s order granting summary judgment to the School Board, and remand

for further proceedings consistent with this opinion.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

                                          25


363 S.W.2d 277 (1963)
Algle SMITH, Appellant,
v.
The STATE of Texas, Appellee.
No. 35147.
Court of Criminal Appeals of Texas.
January 2, 1963.
C. C. Divine, Houston, for appellant.
Frank Briscoe, Dist. Atty., Carl E. F. Dally and Carol S. Vance, Asst. Dist. Atty., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The offense is conspiracy to commit a felony (Article 1622, V.A.P.C.); the punishment, two and a half years in the penitentiary.
The indictment alleged in the first count that on or about the 24th day of August, 1960, the appellant and Frank Brown, Charles King, Robert Swain, Alfred Swain, and Odell Pyles did unlawfully
"conspire, combine, confederate and agree and did enter into a positive agreement together and between themselves, to unlawfully and fraudulently take and steal checks and current money of the United States of over the value of fifty dollars, from various persons, whose name, identity and descriptions were then unknown * *."
Upon the granting of a severance, appellant was separately tried and convicted under the first count of the indictment.
At the trial, the state introduced in evidence a written statement made by appellant to Officer E. R. Williams on December 18, 1960, after having been duly warned.
In the statement appellant related that on August 24, 1960, the date alleged in the indictment, his friend Charlie King called him "to come over to his house that there was a deal on" and asked him if he "wanted to be in on it," to which question appellant replied "yes" and that he would be over. Appellant thereafter went to King's house and he and King then met his *278 other co-indictees at a Weingarten's store. After this meeting and after one of the group made a telephone call and came back to the table and said "Come on; let's go," they all got into King's car and started driving around town. When they reached Austin Street they had an accident with a truck belonging to the Warren Plumbing Company. After the accident, one of the party talked with the driver of the truck and obtained his signature to a paper stating that the accident was his (the truck driver's) fault. The group immediately made claim to an insurance company and each was paid a certain amount for his alleged injury sustained in the accident. The appellant was paid $500.
After a meeting of almost the same group on September 13, 1960, they got together again the next day at Weingarten's and co-defendant King told appellant "* * we had a deal going on" and asked him if he wanted to go and appellant replied "`Yes.'" Appellant stated that they then got in King's car and after driving around a short time he saw a "vegetable truck backing into a parking place" and that "Then all of a sudden we hit it." One of the group obtained the information as to what insurance company carried the insurance on the vegetable truck, and after contacting the insurance company they were each paid $200. Each of the group paid King one-third of the money obtained, because "he was the one that had made the deal up."
Appellant, in the statement, related:
"What I mean by deal is that we would get together and go do some odd jobs and later have a wreck and collect on the insurance. I knew the accidents we were having were on purpose to collect the insurance."
Appellant further stated that on October 11, 1960, after borrowing a car, almost the same group of persons were told by one of the co-defendants, Robert Swain: "* * * we had a deal on," and while driving down Milam Street they hit a red truck. One of the group "did all of the talking," the police were called to make an investigation, and appellant went home. He was later picked up by Robert Swain and taken to the insurance company in order to collect on their claim.
To corroborate the confession, the state called various witnesses.
Daniel Carpenter, the driver of the Warren Plumbing Company truck, testified to his involvement in the collision on August 24, stating that after the accident and while excited he did sign a statement in which he admitted striking the King car and acknowledged that he was in the wrong but that, after time for reflection, he realized that he was in the right.
Oscar Avera, claim superintendent for Commercial Union North British Group, representing the insurance carrier for the Warren Plumbing Company, testified that on August 20, 1960, the appellant came to his office to make a claim arising out of the accident with the Warren company vehicle; that appellant was accompanied by the five other men who were riding in the car with him; and that King gave him the handwritten note of the driver of the Warren truck. He further testified that appellant was paid $500 on his claim and the others were paid amounts ranging from $400 to $900, each.
John R. Saur, insurance adjuster for the American Surety Insurance Company, testified that in connection with the accident, on September 14, with the vegetable truck appellant was paid on his claim $258 and the various other occupants of the automobile in collision with the truck were paid different amounts.
Willis T. McBride, employed as an insurance adjuster for the Hartford Insurance Group, testified that his company carried the liability insurance on Watson Bros. vehicles. Shortly after October 12, 1960, the appellant, with four or five others, presented to the witness's company a claim arising out of an accident with one of the *279 Watson Bros. trucks, on Milam Street. The insurance company did not pay the claim made by appellant nor the claims made by the others. The witness took a statement from the appellant regarding the accident, but appellant would not sign it.
Testifying as a witness in his own behalf, appellant denied having entered into any conspiracy or agreement to steal any money or checks, and stated that the accidents in which he was involved were bona fide accidents and were not planned. In his testimony he repudiated his written confession, stating that he signed it because he was scared by reason of threats made by Officer Williams.
Appellant's sole contention on appeal is that the evidence is insufficient to sustain the conviction. With such contention we agree.
There is no evidence, outside of appellant's written confession, showing his guilt of the offense charged.
It is well settled that a confession, alone, is not sufficient to support a conviction. It must be corroborated. There must be proof that the offense was committed that is, the corpus delicti must be proved. The confession may be used to aid in proving the corpus delicti but is not alone sufficient. Watson v. State, 154 Tex.Cr.R. 438, 227 S.W.2d 559; Ellison v. State, 155 Tex.Cr.R. 336, 235 S.W.2d 157; Board v. State, Tex.Cr.App., 320 S.W.2d 668; and Marsh v. State, Tex.Cr.App., 342 S.W.2d 435.
The extrinsic evidence offered by the state in the instant case only shows that appellant was involved in the automobile collisions and was paid claims which he made to the insurance companies for injuries alleged to have been sustained. There was no proof, outside of appellant's confession, that the claims for insurance were fraudulent.
While such evidence corroborates that portion of appellant's written confession relating to the automobile collisions, it does not corroborate his admission in the confession of the conspiracy to commit the crime of theft.
The crime of conspiracy is complete when the unlawful agreement is entered into. Witt v. State, 146 Tex.Cr.R. 627, 177 S.W.2d 781.
The mere showing by extrinsic evidence that after the conspiracy was alleged to have been entered into appellant was involved in the automobile collisions and was paid insurance claims is not sufficient to corroborate his admission in the confession of an agreement and conspiracy entered into to steal checks and money.
The judgment is reversed and the cause is remanded.
Opinion approved by the court.


207 P.3d 288 (2009)
THOMPSON
v.
STATE.
No. 100033.
Court of Appeals of Kansas.
May 22, 2009.
Decision without published opinion. Affirmed.


537 U.S. 1045
WILD ET UX.v.SUBSCRIPTIONS PLUS, INC., ET AL.
No. 02-316.
Supreme Court of United States.
December 2, 2002.

1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

2
C. A. 7th Cir. Certiorari denied. Reported below: 292 F. 3d 526.