John Doe, a Minor, (Born 01/28/90) by His Next Friend Jane Doe Jane Doe, Individually v. State of Hawaii Department of Education, and David Keala

This is a 42 U.S.C. § 1983 case against an elementary school vice principal who taped a second grade student’s head to a tree for disciplinary purposes. .The district court correctly denied the vice principal’s motion for summary judgment on the basis of qualified immunity. Indeed, our decision in P.B. v. Koch, 96 F.3d 1298 (9th Cir.1996), compelled that result. We publish this opinion to clarify the issue that we left open in Koch regarding whether claims of excessive force by a school official generally should be decided under the Constitution’s Fourth Amendment or under the Due Process Clause. See Koch, 96 F.3d at 1303 n. 4. We now hold that Doe is entitled to proceed under the Fourth Amendment, in light of the Supreme Court’s direction to analyze § 1983 claims under more specific constitutional provisions, when applicable, rather than generalized notions of due process. See Graham v. Connor, 490 U.S. 386, 395 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989).

The facts are not complicated. In February 1998, Plaintiff John Doe was a second-grader at Pukalani Elementary School. Doe’s teacher sent him to the defendant, Vice Principal David Keala, to be disciplined for fighting, but Doe…