PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-1020

KIMBERLY BURNS-FISHER,

Plaintiff - Appellee,

v.

ANNA MARIA ROMERO-LEHRER, in her individual and official capacity,

Defendant – Appellant,

and

PENDER COUNTY BOARD OF EDUCATION; STEVE HILL, Superintendent, in his individual and official capacity,

Defendants.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:21-cv-00068-D)

Argued: December 6, 2022 Decided: January 13, 2023

Before NIEMEYER, THACKER, and RICHARDSON, Circuit Judges.

Reversed and remanded by published opinion. Judge Thacker wrote the opinion, in which Judge Niemeyer and Judge Richardson joined.

ARGUED: Norwood Pitt Blanchard, III, CROSSLEY MCINTOSH COLLIER HANLEY & EDES PLLC, Wilmington, North Carolina, for Appellant. Bruce W. Berger, KNOTT & USCA4 Appeal: 22-1020 Doc: 31 Filed: 01/13/2023 Pg: 2 of 9

BOYLE, PLLC, Raleigh, North Carolina, for Appellee. ON BRIEF: W. Ellis Boyle, KNOTT & BOYLE, PLLC, Raleigh, North Carolina, for Appellee.

2 USCA4 Appeal: 22-1020 Doc: 31 Filed: 01/13/2023 Pg: 3 of 9

THACKER, Circuit Judge:

Kimberly Burns-Fisher (“Appellee”) was a middle school teacher in Pender County,

North Carolina when she was physically attacked by a special education student in her

language arts class. There is no dispute that the student was known to have been violent

on prior occasions. At the time of the incident involving Appellee, Anna Maria Romero-

Lehrer (“Appellant”) was the principal of the school where the attack occurred.

After the incident, Appellee brought this action, and Appellant moved to dismiss

the claims against her. In a brief, single-page order, the district court denied Appellant’s

motion to dismiss, which was based on, among other arguments, her qualified immunity

defense. Because Appellee failed to sufficiently allege that Appellant violated her

constitutional rights, we hold that Appellant is entitled to qualified immunity. Therefore,

we reverse and remand for further proceedings consistent with this opinion.

I.

On April 19, 2018, Appellee was designated to teach an “‘inclusion class,’ meaning

that it included both special education and ‘mainstream’ students.” J.A. 9. 1 According to

the complaint, Pender County Board of Education policy requires that “when a class has

ten of thirty students with [Individualized Education Plans (“IEPs”)], two teachers must be

present.” Id. at 10. In addition, one of those two teachers must be certified and trained as

an exceptional child (“EC”) teacher. Appellee maintains that Appellant frequently

condoned the teaching of inclusion classes without the required second teacher present.

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

3 USCA4 Appeal: 22-1020 Doc: 31 Filed: 01/13/2023 Pg: 4 of 9

On the day of the incident, 10 of the 30 students in Appellee’s language arts class had IEPs,

but there was no EC teacher present in the classroom. Appellee alleges that Appellant

knew that she was the only teacher in he

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