KENNETH A. MARRA, District Judge.
THIS CAUSE is before the Court upon the Official-Capacity Defendants' Motion for Summary Judgment [DE 42] and Defendants' Motion for Summary Judgment on State Law Tort Claims [DE 43]. The motions are on behalf of Defendant Palm
This matter is about an autistic Exceptional Student Education ("ESE") student enrolled in the Palm Beach County School District. His initials are C.M. C.M.'s parents, J.P.M. and R.G.M., are the Plaintiffs. Plaintiffs allege violations of C.M.'s rights under federal and state laws. They seek compensatory and punitive damages, as well as injunctive relief, against the School Board for allegedly subjecting C.M. to years of excessive and improper restraints while attending Lantana Middle School. Plaintiffs contend C.M. was placed in a residential facility for psychological treatment to overcome the trauma of being restrained. The School Board moves for summary judgment as to all federal and state claims.
1. At all times material to this case, C.M. was enrolled as a student in the Palm Beach County School District and was designated early on in his life by the School Board as being "educable mentally handicapped." First Amended Complaint ("Compl."), DE 26 at ¶¶ 6, 19.
2. C.M. suffers from a genetic disability called Cornelia de Lange Syndrome, which affects physical and mental development, as well as autism, obsessive compulsive disorder, social anxiety, sensory disorder, simple and complex motor and vocal tics,
3. "C.M. is small in stature, underweight, physically delayed, and pretty frail." DE 48-1, ¶ 27.
4. C.M. started exhibiting behavior issues in early elementary school (in school only). DE #s 42, 48-1. In the sixth grade, C.M. was having significant incidents of self-injurious behavior (i.e., biting his own arm) and physical aggression (i.e., hitting and kicking) teachers, staff and students. Pam Tepsic
5. School records indicate that it was necessary to restrain C.M. to avoid injury to himself or others. Ex. I. Each time C.M. was restrained, it was due to a perceived crisis, rather than part of his behavioral management plan. 4/24/12 Hearing Transcript at 17, 71-73; Ex. 8. C.M. was first restrained on March 17, 2004, when C.M. was in sixth grade. Tepsic Depo., Ex. 3 at 15. The restraint logs from C.M.'s sixth grade are missing. Ex. A at 129-30; Ex. L at 166. The only evidence of C.M. being restrained is the PCM Physical Assistance Logs found in Ex. K. At oral argument, it was stated by way of explanation that all instances of restraint consisted of someone holding CM, for instance, either his hands and/or his feet (without twisting his arms), and no mechanical restraint was ever used on C.M. 4/24/12 Hearing Transcript at 14.
6. For purposes of this motion only, the School Board concedes that, over a 14 month period of time, there were 89 incidents of restraint with 27 prone restraints being documented.
7. After three restraints are performed within one month, a child's Functional Behavioral Assessment ("FBA") must be reviewed, and updated if appropriate. Ex. G; Thornton Depo. Ex. C at 174-75. After three restraints were placed on C.M., a new FBA was not conducted because "we knew what the function was for him ... but we did meet to go over the plan to see what was working and what wasn't working. After awhile we also-I requested that we have Merrill Winston come in the capacity of a certified behavior analyst to help us out." Thornton Depo. Ex. C at 174-75.
8. The form of the majority of restraints performed on C.M. was taken from the theories and instructions of the Professional Management Crisis Association ("PCMA").
9. C.M. "started going downhill" in the middle of seventh grade. He did not want to go to school and was crying a lot. He regressed academically and behaviorally. He had sleep problems, phobias and fears, and lost a lot of his communication skills. He started being aggressive at home. Ex. A at 67-71.
10. Pursuant to an Individual Educational Plan ("IEP"), C.M. attended Lantana Middle School for sixth and seventh grades and part of eighth grade. DE #s 42, 48-1. A Behavior Intervention Plan ("BIP"), in effect as of April 2004, states: "County approved restraints (TEAM) policies may
11. Performing a TEAM restraint (now known as VITAL) is a crisis management procedure used by the school police to insure safety and de-escalate target behavior in emergency situations. Tepsic Depo. at 18-20.; Ex. 7 at 177, Ex. 3 at 17-18, 59. Thornton recommended that the TEAM restraint technique not be performed on C.M. Thornton Depo. at 178-79.
12. During the time period of 2004 through 2007, both PCM and TEAM techniques were used to restrain ESE students. Tepsic Depo. at 13. The School Board preferred to use PCM techniques with ESE students, although the written policies did not preclude TEAM techniques. Exs. H, F, G.
13. The PCM method does not preclude a horizontal restraint for someone such as C.M., who has gastrointestinal reflux, however, it is contraindicated.
14. The BIP became a part of C.M.'s IEP and was given to all of C.M.'s teachers and para-professionals. Tepsic Depo. at 17-18. It is unknown which version of the BIP was distributed.
15. One PCM record reveals no reason why C.M. was restrained, who restrained him, or what type of restraint was performed. Ex. 3 at 27-28.
16. Another group of school records called "ABC Records," shows the antecedent occurrence ("A"), the behavior ("B"), and the consequence ("C"). One ABC record does not document the antecedent behavior, so it is not possible to tell what conduct of C.M. precipitated the restraint, or what de-escalation techniques were attempted. Ex. 3 at 23-24. Other ABC records show numerous instances of aggressive behavior by C.M. and what was done to de-escalate the situation; for example, whether C.M. was restrained or removed from the situation. Ex. J. One of these records show a TEAM technique was used.
17. Actual restraint logs show that every restraint performed was in response to C.M.'s physical aggression (continuous), high magnitude disruption (continuous), and/or self-injury (continuous). Def. Exs. J & K.
18. School Board policy states, "[i]nterventions used in emergency situations to prevent a student from endangering self or others do not constitute management procedures and do not require parental consent." Ex. G, Bates stamp P005472.
19. Drs. Durgin and Myers diagnosed C.M. with post traumatic stress disorder, with the initial traumatizing event believed to be the restraints C.M. experienced at Lantana Middle School. Ex. 1 at 42, 107-12; Ex. 13 at 10-111; Ex. 10 at 34-35.
20. In 2009, Plaintiffs commenced an administrative due process proceeding. The
Administrative Law Judge ("ALJ") granted the School Board's motion to dismiss some of the claims that had been pled. The parties later entered into a
Summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Fed.R.Civ.P. 56(c). The applicable substantive law identifies which facts are material in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial responsibility of showing the Court, by reference to the record, that there are no genuine issues of material fact that should be decided at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). When the non-moving party has the burden of proof at trial, the moving party may carry its burden at summary judgment either by presenting evidence negating an essential element of the non-moving party's claim or by pointing to specific portions of the record which demonstrate that the non-moving party cannot meet its burden of proof at trial. Clark, 929 F.2d at 606 608 (explaining Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
In ruling on a motion for summary judgment, the Court construes the facts and all reasonable inferences therefrom in the light most favorable to the non-moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). However, when faced with a properly supported motion for summary judgment, the burden then shifts to the non-moving party who must "go beyond the pleadings," and, by its own affidavits or by "depositions, answers to interrogatories, and admissions on file," designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir.1997).
Plaintiffs make two statements in their Additional Statements of Undisputed Material Facts which merit highlighting: "The issue on restraints is not whether the restraints were performed correctly, but why [they] were continuing to be used when it made C.M. worse." DE 48-1, ¶¶ 48, 50. They also state it is undisputed that "[n]o restraint was performed on C.M. for purposes of punishment or discipline." DE 48-1 ¶ 61, Ex. 6 at 18.
Count I alleges violation of § 504 of the Rehabilitation Act, which provides in pertinent part, "[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(a) (emphasis supplied). The elements of a claim under the Rehabilitation Act are, therefore,: "(1) that [he] is a `handicapped individual'
Plaintiffs allege that the School Board intentionally discriminated against C.M. by refusing to investigate his individual needs, excluding him from participating in educational activities with other non-disabled students, and purposefully provoking him to de-compensation by subjecting him to prolonged and unwarranted restraints. DE 26 ¶ 81. Plaintiffs assert the School Board acted in bad faith, with gross misjudgment, and deliberate indifference, and they seek an injunction barring the School Board from continuing its policy and practice of performing restraints to address behavioral issues, as well as compensatory and punitive damages, fees and expenses.
The School Board moves for summary judgment as to Count I stating that even if the Court completely accepts Plaintiffs' version of the facts, there is no evidence of intentional discrimination or deliberate indifference. Under the standard of deliberate indifference, a plaintiff must prove that the defendant knew that harm to a federally protected right was substantially likely and that the defendant failed to act on that likelihood. T.W. ex rel. Wilson v. School Bd. of Seminole County, Fla. 610 F.3d 588, 604 (11th Cir.2010) ("T.W.").
The first question that must be decided is whether the School Board, as the moving party, has carried its initial burden of production, and thus whether Plaintiffs, as the non-moving parties, had an obligation to produce any evidence in response. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Accordingly, if the School Board wishes to prevail, it must present evidence negating an essential element of Plaintiffs' claim or by pointing to specific portions of the record which demonstrate that Plaintiffs cannot meet their burden of proof at trial. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991).
The first question must be answered in the negative. The School Board has not produced any evidence whatsoever regarding whether the para-professionals or teachers who restrained C.M. intended
Neither party deposed any of the para-professionals or teachers who restrained C.M. or signed the restraint logs, although the School Board reports two of them are still employed by the School Board. 4/24/12 Hearing Transcript at 27. The School Board did not submit a single affidavit from any of its staff to support its contention that it did everything in its power to help and support C.M. While the School Board is correct that Plaintiffs have not produced evidence of intentional discrimination or deliberate indifference, this argument places the initial burden on the wrong party for purposes of this motion. As the moving party on a summary judgment motion, the School Board must support its argument with evidence showing an absence of intentional discrimination or deliberate indifference on its part. Having failed to meet its burden on summary judgment, the motion on Count I alleging a violation of § 504 of the Rehabilitation Act will be denied.
Count II alleges that C.M. had a liberty interest in his bodily integrity that is protected under the Due Process Clause of the Fourteenth Amendment. Plaintiffs claim that the School Board's acts of repeated physical restraints and acts of seclusion
Plaintiffs burden at trial for this claim will be to convince a reasonable jury to infer that C.M. was restrained based on an intent to discriminate against him because he has a disability. It will not be enough to show that C.M. has a disability, the disability caused a problem that had to be addressed, and the School Board responded to the problem dissatisfactorily, or even harmfully. Liability under the due process clause does not arise merely because someone cloaked with state authority causes harm. "As a general rule, to prevail on a claim of a substantive due-process violation, a plaintiff must prove that a defendant's conduct `shocks the conscience.'" Nix, 311 F.3d at 1375 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 836, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). Allegations that a party failed to train, supervise, and discipline its employees do not rise to the level of an "omission that can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense." Collins v. City of Harker Heights, Tex., 503 U.S. 115, 128, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). Nor do allegations of "deliberate indifference" when they are made in a non-custodial setting such as a classroom. See Nix, 311 F.3d at 1377; Wyke v. Polk County Sch. Bd., 129 F.3d 560, 569 (11th Cir.1997) (school children are not in a custodial relationship with the state).
Evidence that records were lost, that a few records are incomplete, that the School Board did not follow policy by failing to conduct a FBA after three restraints were performed on C.M., and that the School Board knew of non-physical means to stop C.M. but restrained him instead, thereby disregarding their own consultant's advice to ignore C.M.'s slapping, does not come close to the required constitutional level of shocking the conscious. Nor do the other examples Plaintiffs cite.
While the School Board acknowledges that C.M. was restrained a significant number of times, a substantive due process claim is not a valid attack of Defendant's conduct. Viewing all inferences that could be drawn from all alleged actions or inactions in the light most favorably to Plaintiffs, as a matter of law, these facts do not rise to the requisite conscience shocking level. There is no record evidence to support the claim that the use of restraints was arbitrary, egregious or excessive in the constitutional sense. As no reasonable jury could conclude that the School Board's use of restraints was arbitrary,
Count IV alleges that the School Board conspired to deprive C.M. of his right to a free and appropriate public education under the Individuals with Disabilities Education Act ("IDEA") by perpetuating and applying an unlawful policy and practice of implementing violative restraints into C.M.'s BIP/IEP, and failing to conduct the necessary and proper assessments and evaluations to determine the necessary and proper accommodations and/or services required under the IDEA to address his disabilities. DE 26. The School Board does not attack this count on the basis of Plaintiff's lack of evidence, but relies on two other arguments: (1) it was not preserved by the parties' Settlement and Release Agreement; and (2) a § 1983 claim may not be brought for violations of the IDEA. This argument fails on both accounts.
In 2009, Plaintiffs initiated a state administrative due process proceeding. The complaint filed in the administrative proceeding included a § 1983 claim based on alleged excessive restraining of C.M. On February 12, 2010, Plaintiffs and the School Board entered into a Settlement and Release Agreement ("Agreement"). Ex. V. Paragraph 9 of that Agreement provides as follows, verbatim:
Ex. V at 7. According to the parties, the § 1983 claim asserted by Plaintiffs in the DOAH case was based solely on the alleged excessive number of times C.M. was restrained. The § 1983 claim being asserted here, on the other hand, derives from an alleged IDEA violation. Therefore, while the legal authority for each claim arises under § 1983, the facts and legal basis supporting the claims are different.
The School Board asserts that the IDEA based § 1983 claim was not raised in the first amended due process petition and is therefore not preserved by the language "the only issues that can be raised between and among the parties are ... claims raised by C.M. in the first amended due process petition and dismissed." Plaintiffs disagree and argue that the Settlement Agreement only resolved those claims "at issue and pending in DOAH Case No. 09-1799E." Since a § 1983 claim based upon a violation of the IDEA was not asserted in the administrative proceeding, Plaintiffs
The Court finds that the School Board construes the Settlement Agreement too broadly. The School Board ignores the language of the release that states: "[t]his AGREEMENT resolves all matters currently at issue and pending in DOAH Case No. 09-1799E." This language limits the scope and breadth of the settlement provision. The language following this introductory sentence must be read in light of this limitation. Thus, it is clear that the parties only intended to resolve matters at issue in the administrative proceeding. They did not intend the settlement to constitute a general release of all claims that could have been brought.
The language upon which the School Board relies
The School Board's argument that a § 1983 claim may not be brought for violations of the IDEA is rejected. The School Board has not convinced the Court that it should recede from its earlier ruling which recognized such a claim. See, IMP v. The School Board of Broward County, Case No. 05-60845-CIV-MARRA, DE #122 (S.D.Fla. Sept. 29, 2006) (under the law in this district, a plaintiff may proceed with a § 1983 claim under the IDEA after exhausting administrative remedies). Having failed to meet their burden of persuasion as to Count IV, Plaintiffs may proceed at trial with this claim.
Count VI alleges that the School Board violated the Americans with Disabilities Act ("ADA") by excluding C.M. from participation in or denying the benefits of, services, programs, or activities of the School Board by reason of his disability, or subjecting him to discrimination by reason of his disability. Section 12132 of the ADA states "[s]ubject to the provisions of this subchapter, 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.
To establish a prima facie case of discrimination under the ADA, plaintiffs will have to show (1) that C.M. is a qualified individual with a disability; (2) that he was excluded from participation in or denied the benefits of the services, programs, or activities of the School Board or otherwise discriminated against by the School Board; (3) by reason of such disability. L.S. v. School Bd. of Broward County, Fla., No. 06-61245-CIV-KAM, 2007 WL 2827575, *7 (S.D.Fla. Sept. 26, 2007) quoting Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001); Miller v. King, 384 F.3d 1248, 1265 (11th Cir.2004). Summary judgment for this count is not appropriate because, as explained earlier in the section addressing Plaintiffs' claim under the Rehabilitation Act, the School Board has failed to support its motion with evidence negating an essential element of the Plaintiffs' claim or by pointing to specific portions of the record which demonstrate that Plaintiffs cannot meet their burden of proof at trial.
Count VII alleges Violation of Florida Civil Rights Act, Fla. Stat. § 760.01, et seq. The School Board argues that this claim was not preserved in the parties' Settlement and Release Agreement and asserts the same arguments it made against Counts I and VI. For the same reasons the Court rejected the School Board's earlier arguments on this issue, they are rejected here. Summary judgment is denied as to Count VII.
Count VIII alleges Intentional Infliction of Emotional Distress. The School Board has not shown that there is no genuine issue of material fact as to this claim, and the motion for summary judgment is denied as to this count.
Count IX alleges battery. The School Board has not shown that there is no genuine issue of material fact as to this claim, and Plaintiffs may proceed on this claim. Summary judgment is denied as to this count.
Count X alleges negligence. The sole ground for summary judgment as to this count is that it was not preserved by the parties' Settlement and Release Agreement. For the same reasons stated earlier in this Order in the section addressing the Settlement and Release Agreement, the motion for summary judgment is denied as to this count and Plaintiffs may proceed with it.
Count XIII alleges false imprisonment. The School Board argues that § 1012.75, Fla. Stat. forecloses liability on C.M.'s teachers, and if an employee is immune for tort liability by virtue of a state statute, the employee's governmental employer cannot be held liable. The School Board cites Brown v. City of Huntsville, Ala., 608 F.3d 724 (11th Cir. 2010) for this proposition.
The Plaintiffs respond that Defendant's reliance on § 1012.75, Fla. Stat. is waived since it was not plead as an affirmative defense. The Court agrees. See Order Denying Motion to Amend Affirmative Defenses [DE 65]. Accordingly, summary judgment is denied as to this count.
The School Board correctly asserts that punitive damages may not be awarded in private suits brought under § 202 of the ADA and § 504 of the Rehabilitation Act. Barnes v. Gorman, 536 U.S. 181, 189-190, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002). The Court reserves ruling on the question of punitive damages under § 1983. Therefore, in accordance with the findings made herein, it is hereby
The Court agrees with the School Board that Youngberg, dealing with the rights of an involuntarily committed retarded child, is not the appropriate standard for this case. "Youngberg and its progeny firmly established that mentally retarded individuals in state custody have, under the Fourteenth Amendment, liberty interests in `reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests.'" F.A. ex rel. Sims v. Hansen, 2011 WL 4529463, *1 (N.D.Fla. Sept. 29, 2011) quoting Youngberg, 457 U.S. at 324, 102 S.Ct. 2452. "[I]in a classroom setting, courts have not allowed due-process liability for deliberate indifference, and, moreover, will only allow recovery for intentional conduct under limited circumstances." Nix v. Franklin County Sch. Dist., 311 F.3d 1373, 1378 (11th Cir.2002) (instructing courts to remain vigilant in policing the boundaries separating tort law from constitutional law).
