O. v. Hinds Cty Sch Dist, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-60650
Summary Calendar

S.O., individually and on behalf of her minor son, B.O.,

Plaintiff - Appellant

v.

HINDS COUNTY SCHOOL DISTRICT; PRINCIPAL BEN LUNDY, in his
individual and official capacities; ASSISTANT PRINCIPAL TOMMY
BRUMFIELD, in his individual and official capacities; ASSISTANT
PRINCIPAL MICHELLE RAY, in her individual and official capacities,

Defendants - Appellees

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:17-CV-383

Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
JAMES C. HO, Circuit Judge:
S.O. brought this suit on behalf of her then twelve-year old son, B.O. She
claims that Timothy Brumfield, an assistant principal at B.O.’s school, violated
her son’s Fourth Amendment rights by searching his pockets after a teacher
caught him selling contraband candy.
When she first filed this suit, S.O. initially alleged that Brumfield had
grabbed her son’s genitalia. So the district court denied Brumfield qualified
immunity. But undisputed record evidence later demonstrated that, at most,
United States Court of Appeals
Fifth Circuit
FILED
February 7, 2020

Lyle W. Cayce
Clerk
Case: 19-60650 Document: 00515302215 Page: 1 Date Filed: 02/07/2020

No. 19-60650
2
Brumfield had only searched the boy’s pocket and did not grab his genitalia.
Accordingly, the district court granted Brumfield qualified immunity.
On appeal, S.O. complains that the district court misunderstood her
earlier argument. She contends that she never claimed that Brumfield
grabbed her son’s genitalia—only that Brumfield unreasonably searched his
pockets. But accepting her contention as true, it only means that the district
court should have granted qualified immunity to Brumfield even earlier.
On the face of the appeal, then, it is patently obvious that there is no
relief to which S.O. is entitled. We accordingly affirm.
1

1
In addition, Judge Ho would have directed S.O.’s counsel to explain why she should
not be sanctioned for filing a frivolous appeal, see F
ED. R. APP. P. 38—if not also for “conduct
unbecoming a member of the bar,” see F
ED. R. APP. P. 46(b)–(c). As explained above, the
appeal is demonstrably frivolous on the face of counsel’s briefs. Moreover, those briefs not
only contain countless misspellings and grammatical errors—they also appear to appeal to
prejudice. Counsel’s opening brief repeatedly contends that “Brumfield was touching around
in minors [sic] pocket, making minor believe the Defendant was gay.” Her reply brief then
concludes that B.O. “believed that . . . Broomfield [sic] was gay, making the touch of the
minor’s privacy area that more offensive.” That is circular logic: Brumfield searched B.O.’s
pockets, so he must be gay—and because he is gay, he shouldn’t have searched B.O.’s pockets.
And the demonstrable failure of counsel’s logic makes one wonder why counsel bothers to
bring up sexual orientation at all. It should go without saying that members of the bar are
expected to engage in legal argument—not prejudice. But cf. Glass v. Paxton, 900 F.3d 233,
238 (5th Cir. 2018) (quoting a professor’s declaration, which counsel urged district court to
review, that she feared “religiously conservative” and “libertarian” students because they
hold “extreme views,” are prone to “anger and impulsive action,” and are “more likely to own
guns given their distaste for government”).
Case: 19-60650 Document: 00515302215 Page: 2 Date Filed: 02/07/2020