744 Fed.Appx. 769 (4th Cir. 2018), 17-1290, Z.G. v. Pamlico County Public Schools Board of Education
|Citation:||744 Fed.Appx. 769|
|Opinion Judge:||BARBARA MILANO KEENAN, Circuit Judge:|
|Party Name:||Z.G., BY AND THROUGH his mother and next friend, C.G.; C.G., on behalf of herself; J.G., on behalf of himself, Plaintiffs-Appellants, v. PAMLICO COUNTY PUBLIC SCHOOLS BOARD OF EDUCATION; Lisa Jackson, Superintendent, in her official capacity; Sheriff Chris Davis, Pamlico County Sheriff, in his official capacity as the chief administrator of the...|
|Attorney:||Stephon John Bowens, Saleisha Nadia Averhart, BOWENS & AVERHART LLC, Raleigh, North Carolina, for Appellants. Rachel B. Hitch, SCHWARTZ & SHAW, P.L.L.C., Raleigh, North Carolina; Christopher J. Geis, WOMBLE BOND DICKINSON (U.S.) LLP, Winston-Salem, North Carolina, for Appellees. Rachel P. Nichola...|
|Judge Panel:||Before GREGORY, Chief Judge, and MOTZ and KEENAN, Circuit Judges.|
|Case Date:||July 16, 2018|
|Court:||United States Courts of Appeals, Court of Appeals for the Fourth Circuit|
Argued: May 9, 2018
Unpublished opinions are not binding precedent in this circuit. (See Federal Rule of Appellate Procedure Rule 32.1)
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Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Dever III, Chief District Judge. (4:15-cv-00183-D)
Stephon John Bowens, Saleisha Nadia Averhart, BOWENS & AVERHART LLC, Raleigh, North Carolina, for Appellants.
Rachel B. Hitch, SCHWARTZ & SHAW, P.L.L.C., Raleigh, North Carolina; Christopher J. Geis, WOMBLE BOND DICKINSON (U.S.) LLP, Winston-Salem, North Carolina, for Appellees.
Rachel P. Nicholas, SCHWARTZ & SHAW, P.L.L.C., Raleigh, North Carolina, for Appellees Pamlico County Public Schools Board of Education and Lisa Jackson.
Before GREGORY, Chief Judge, and MOTZ and KEENAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished opinion. Judge Keenan wrote the opinion, in which Chief Judge Gregory and Judge Motz joined.
Unpublished opinions are not binding precedent in this circuit.
BARBARA MILANO KEENAN, Circuit Judge:
At the time this suit was filed, Z.G. was a six-year-old child diagnosed with numerous conditions affecting his behavior and academic performance, including Attention Deficit Hyperactivity Disorder1 and Autism Spectrum Disorder.2 Throughout Z.G.s year in kindergarten in a North Carolina public school, Z.G.s parents informed the school on multiple occasions of Z.G.s suspected disabilities. However, the school failed to identify or evaluate Z.G.s eligibility for special education services. After this year-long failure to provide Z.G. with appropriate accommodations, early during his first-grade year Z.G. began behaving erratically in the classroom and attempted to abscond from school on three separate occasions. The school called the Pamlico County Sheriffs Department (the Sheriffs department) and, at the school superintendents request, a Sheriffs deputy transported Z.G. to a hospital in a patrol car without his parents consent. At the hospital, Z.G. was committed and given medication involuntarily. He remained in the hospital for two days.
Z.G.s parents filed an amended complaint on their own behalf and on behalf of
Z.G. (collectively, the plaintiffs), against the Pamlico County Public Schools Board of Education (the Board), the Sheriffs department, and Superintendent Lisa Jackson (Jackson) in her official capacity. Also named as defendants in the complaint were Pamlico County Sheriff Chris Davis (Davis) and an incorrectly identified Sheriffs deputy, each in his official capacity. The plaintiffs alleged that the defendants violated the Individuals with Disabilities Education Improvement Act (IDEA), 20 U.S.C. § 1400 et seq., and related federal statutes, as well as various provisions of North Carolina common law.
The district court dismissed the complaint in its entirety, concluding that the plaintiffs had failed to exhaust their administrative remedies with respect to the IDEA and other education-related claims, and that the plaintiffs other unrelated federal allegations, including the challenge to Z.G.s involuntary commitment, failed to state a claim. The court declined to exercise supplemental jurisdiction over the state law claims, and denied the plaintiffs motion to amend their complaint a second time.3 For the reasons that follow, we affirm in part, and vacate and remand in part, the district courts judgment.
In January 2015, Z.G. enrolled in kindergarten at Pamlico County Primary School (PCPS) after transferring mid-year from a public charter school that was "ill equipped to meet his special educational needs."4 PCPS was the only public non-charter elementary school in the district. Upon Z.G.s transfer, his father, plaintiff J.G., informed the schools principal, Ms. Potter,5 that Z.G. had experienced disciplinary and educational problems at the charter school. Potter advised J.G. that PCPS would help identify Z.G.s educational needs under Section 504 of the Rehabilitation Act of 19736 (Section 504), but that Z.G.s parents would be responsible for obtaining and paying for an evaluation of Z.G. Potter also stated that while Z.G.s evaluations were taking place, Z.G. would be permitted to ride the "Exceptional Childrens" bus, a school bus for students with special needs.
Z.G.s mother, plaintiff C.G., submitted to PCPS a special education referral form for Z.G. On April 2, 2015, Julie Rowe, the psychologist retained by Z.G.s parents to perform the evaluation of Z.G., sent PCPS
her preliminary report. In her report, Rowe requested that the school provide Z.G. with a Section 504 Accommodation Plan (504 Plan), which is a plan detailing services under the Rehabilitation Act to be provided to a disabled student. See 29 U.S.C. § 794. Rowes report also stated that Z.G. presented numerous symptoms, such as being "restless, inattentive, [and] anxious," that are "commonly seen in Aspergers7 children." In light of her evaluation, Rowe recommended that Z.G. have access to a special room at school "to manage his outbursts," and access to alternative classroom placements if he became overstimulated in the regular classroom environment. Around this time, Z.G.s classroom teacher submitted a "504 Teacher Referral Form," noting that although Z.G. was intelligent, he struggled with maintaining focus and completing assignments, and could be uncooperative, argumentative, and destructive, as well as "disrespectful to adults and children, [and] occasionally violent."
Despite these reports and recommendations, PCPS failed to hold any meeting to identify or evaluate Z.G. or to provide him with special education services while he was a kindergartner during the 2014-15 school year. Instead, Z.G. spent "most school days" during his kindergarten year in the principals office with Potter.
In July 2015, C.G. met with Crystal Dixon, the new principal of PCPS, and informed her of Z.G.s educational and behavioral needs. Dixon later advised C.G. that the school had no documentation showing Z.G.s entitlement to ride the Exceptional Childrens bus.
On August 24, 2015, the first day of Z.G.s first-grade year, Dixon contacted C.G. to "pick up" Z.G. from school early. Dixon told C.G. that Z.G. was "hysterical and screaming in the classroom," and eventually had fallen asleep on the floor of the principals office. The following day, Dixon again called C.G., instructing her to pick up Z.G. early.8 On August 26, Dixon and Z.G.s classroom teacher once more requested that C.G. pick up Z.G. early. When C.G. arrived at PCPS, Dixon, Jackson, and another school official also were present with Z.G. in the principals office. The officials told C.G. that on August 24, 25, and 26, Z.G. had run into the school parking lot in an attempt to leave school in order "to harm himself," and that Dixon had placed Z.G. in "therapeutic holds" when Z.G. attempted to escape. C.G. also learned that PCPS had failed to prepare a 504 Plan for Z.G.
Jackson offered to drive C.G. and Z.G. to the hospital, but C.G. declined. A Pamlico County Sheriffs deputy, later correctly identified as Deputy Blayney,9 arrived to transport Z.G. to the hospital. The plaintiffs alleged that without C.G.s consent, the deputy forced Z.G. into the rear of the patrol car and transported him to a nearby medical center.
At the hospital, Z.G. was committed involuntarily, and was held at the hospital for two days without his parents consent. On August 27, a Craven County Sheriffs Department deputy transported Z.G. to another hospital for further evaluation.
Medical personnel at that hospital diagnosed Z.G. with autism and informed C.G. that involuntary commitment was unnecessary. After Z.G. was discharged from the hospital, J.G. submitted another referral form to PCPS requesting special education services for Z.G.
In September 2015, PCPS personnel held a meeting to prepare for Z.G. both a 504 Plan and an Individualized Education Program (IEP).10 The Plan included accommodations such as support from a teachers assistant, exemption...
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