S.E. v. Grant County Bd. of Educ.

• Decision Date: 19 October 2007
• Docket Number: Civil Action No. 2006-124(WOB).
• Citation: 522 F.Supp.2d 826
• Parties: S.E., as Next Friend of A.E.; T.E., as Next Friend of A.E.; and A.E., A minor By and Through her Next Friends, S.E. and T.E., Plaintiffs, v. GRANT COUNTY BOARD OF EDUCATION; Donald Martin, in his Capacity as Superintendent and Individually; Ronald Livinggood, in his Capacity as Principal of Grant County Middle School and Individually; James Lacey, in his Capacity as Assistant Principal of Grant County Middle School and Individually; and Celisa Edmondson, in her Capacity as Health Nurse of Grant County Middle School and Individually, Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

522 F.Supp.2d 826

S.E., as Next Friend of A.E.; T.E., as Next Friend of A.E.; and A.E., A minor By and Through her Next Friends, S.E. and T.E., Plaintiffs, v. GRANT COUNTY BOARD OF EDUCATION; Donald Martin, in his Capacity as Superintendent and Individually; Ronald Livinggood, in his Capacity as Principal of Grant County Middle School and Individually; James Lacey, in his Capacity as Assistant Principal of Grant County Middle School and Individually; and Celisa Edmondson, in her Capacity as Health Nurse of Grant County Middle School and Individually, Defendants.

Civil Action No. 2006-124(WOB).

United States District Court, E.D. Kentucky, Northern Division, at Covington.

October 19, 2007.

Kenneth J. Henry, Laurence J. Zielke, Pedley, Zielke, Gordinier & Pence PLLC, Louisville, KY, for Plaintiffs.

Donald J. Ruberg, O'Hara, Ruberg & Taylor, Ft. Mitchell, KY, Suzanne Cassidy, O'Hara, Ruberg, Taylor, Sloan & Sergent, Covington, KY, for Defendants.

OPINION & ORDER

BERTELSMAN, District Judge.

INTRODUCTION

This matter is before the court on the parties' cross-motions for summary judgment. Oral argument was held on August 3, 2007. At that hearing, Plaintiffs were represented by Kenneth Henry and Hays Lawson. Defendants were represented by Suzanne Cassidy. Official court reporter, Lisa Wiesman, recorded the proceedings.

Following said hearing, additional briefing was ordered and the pending motions were taken under submission. The court, having heard the parties and being otherwise advised, hereby issues the following Memorandum Opinion and Order.

FACTUAL BACKGROUND

A.E., the subject Plaintiff in this lawsuit, was a seventh-grade student at Grant County Middle School in May of 2006. A.E. is bi-polar and suffers from Attention Deficit Hyperactivity Disorder (ADHD). To manage these conditions, she takes Adderall. During the 2004-2005 school year, A.E. received the medication daily at lunchtime. Pursuant to school policies and procedures, A.E.'s medication was maintained in the school nurse's office, where she went each day to receive it.

On May 26, 2005, the last day of school, A.E. went to the nurse's office for her lunchtime administration of Adderall, as she had done for the entire school year. At that time, there were four Adderall tablets left. The school nurse, defendant Edmondson, returned the remaining four tablets to A.E. in the original container. A.E. requested to return at the end of the school day to pick up the remaining tablets rather than take them to class with her. The nurse told A.E. to take the remaining medicine with her, even though it was the middle of the school day, and advised A.E. not to give any of the tablets to anyone else.

A.E. had nowhere to keep the medication because she no longer had access to her locker and had neither a purse nor a backpack. Therefore, she gave the medication to her teacher, Mrs. Moore, for safekeeping. The students left the classroom at that time to engage in outside activities. When they returned to the classroom, the teacher returned the medicine to A.E. The students then went to their last class of the day, where there was a different teacher, Ms. Babel. Ms. Babel showed a movie and served refreshments. Ms. Babel was in and out of the classroom during the movie.

It was during this class that another student, S.W., noticed A.E.'s medication container and asked what was in it. S.W. asked for one of the pills. At first, A.E. refused. After continued pressure, however, A.E. relented and gave S.W. one of her Adderall pills.

Approximately two days later, the Assistant Principal, Defendant James Lacey, called T.E. (A.E.'s mother) and asked if she was aware of the events. She responded that A.E. had told her about them when she came home from school that day. Assistant Principal Lacey then informed T.E. that a deputy sheriff would be coming to interview A.E. about this incident over the summer break. However, T.E. was never contacted by law enforcement over the summer.

School resumed on August 11, 2005, and A.E. returned to Grant County Middle School to begin her eighth-grade year. On the first day of school, Assistant Principal Lacey (a Defendant here in his individual capacity) called A.E. to his office and asked her about what happened on the last day of school, May 26, 2005. He was. aware at this time that a sheriffs deputy had not contacted A.E. over the summer break.

Assistant Principal Lacey asked A.E. if she remembered the events of the last day of school and required her to write a statement, which she was then required to date and sign. Thereafter, A.E. was sent back to class. Plaintiff claims that she was not informed that she was free to leave the office or that her written statement would be turned over to the police for purposes of charging her with criminal activity. A copy of the statement was not placed in A.E.'s school file.

Approximately one week after Assistant Principal Lacey met with A.E., he called both A.E. and S.W. to his office. He asked them what had happened on May 26, 2005. A.E. remained silent during this meeting. Assistant Principal Lacey then issued each girl a one-day suspension and told them they would be subject to a six-month probation through the juvenile justice system. This second meeting was held after A.E. had submitted the written statement that was later given to Officer Osborne.

A.E. and her mother were contacted by a court-designated worker (CDW) and notified of a meeting at juvenile court to be held on October 3, 2005. At that time, A.E. was given the option to enter into a diversion agreement or face formal court proceedings. A.E. chose the diversion program. The record does not detail who was present at the meeting or who presented the options to A.E.

Plaintiffs claim that, as a result of the stress of the above described events, A.E. suffered extreme physical pain as well as emotional distress. Plaintiffs also claim that, due to the extent of A.E.'s emotional suffering, her parents requested that she be placed on homebound instruction for the remainder of the 2005-2006 school year.

Plaintiffs also allege disability discrimination in violation of § 504 of the Rehabilitation Act of 1973. A.E. had been tested and determined to be eligible for services and accommodation under § 504. Grant County Middle School developed a "504 Plan" for A.E. to address her needs. However, A.E. and her mother, T.E., claim that the plan was never fully implemented. Plaintiffs claim that A.E. was not consistently given her Adderall and T.E. was not advised of when and why the medication was not given. Plaintiffs also claim that the required annual "504 Plan" review meetings either did not happen, or happened too late in the school year to be of benefit to A.E.

Plaintiffs further claim that the alleged failure of Grant County Schools to provide notice and a hearing, prior to causing a juvenile complaint to be filed against A.E., violated her rights under the Rehabilitation Act. Plaintiffs claim that the juvenile complaint constituted a change in her educational placement. Such a change without due process constitutes a failure of Grant County Schools to provide A.E. with a Free and Appropriate Public Education (FAPE).

Plaintiffs have conceded that discovery has revealed that several of their counts in the Complaint should be dismissed, including Counts I, II, VII, VIII, XI, XIII, XIV, and XV. The counts that remain are Count III (disability discrimination under 29 U.S.C. § 794, § 504 of the Rehabilitation Act), Count IV (violation of Fourth Amendment right to be free from unreasonable search and seizure), Count V (violation of Fifth Amendment right not to incriminate oneself), Count VI (conspiracy to commit the above), and Count IX (refusing or neglecting to prevent the above). Also remaining are the state law claims of Count X (negligence) and Count XII (negligent supervision).

ANALYSIS

Plaintiffs' Federal Fourth and Fifth Amendment Claims are Barred by the doctrine of Heck v. Humphrey

Plaintiffs bring a 42 U.S.C. § 1983 action against the defendants for damages caused by an alleged violation of her Fourth Amendment rights, by reason of being called to the Assistant Principal's office and being required to remain there, and her Fifth Amendment rights, by reason of the Assistant Principal's taking A.E.'s statement, without giving her Miranda warnings, knowing it would be used in state juvenile proceedings against her. Upon initiation of the matter in the juvenile court on the basis of the statement, plaintiff entered into a diversion program.

Such programs have different names in different jurisdictions, but they are all a form of anticipatory probation. If the diversion program is successfully completed by the defendant's good conduct for the diversion period (and perhaps by the fulfillment of other conditions), the prosecution is dropped without record. See discussion in Cissell v. Hanover Ins. Co., 647 F.Supp. 757, 758 (E.D.Ky.1986) (malicious prosecution). In Cissell, this court held that entry in a diversion program was not a favorable termination, as is required for a cause of action for malicious prosecution and for the § 1983 action analogous to the same. Id.

The doctrine of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), was unnecessary to the analysis in Cissell, but must be adverted to here because this is not a malicious prosecution action. In Heck, the Supreme Court held that, where a § 1983 action to succeed requires the court to make a finding that a conviction underlying the action was invalid, the § 1983 action is barred. Rather, the plaintiff in the § 1983 action must proceed by habeas corpus. As stated in Heck v. Humphrey:

The common-law cause of action for malicious prosecution provides the closest analogy to [§ 1983] claims....

One element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the...