A.B. v. Adams–Arapahoe 28J Sch. Dist.

• Decision Date: 28 November 2011
• Docket Number: Civil Action No. 09–cv–00715–WJM–MJW.
• Citation: 279 Ed. Law Rep. 913,831 F.Supp.2d 1226
• Parties: A.B. a minor, through her parent and next friend, B.S., and B.S., individually, Plaintiffs, v. ADAMS–ARAPAHOE 28J SCHOOL DISTRICT; Aurora Public Schools Board of Education; John L. Barry, Superintendent, in his individual and official capacity; Laura Munro, Director, Exceptional Student Services, in her individual and official capacity; Barbara Rice, Elementary/Preschool Consultant in her individual and official capacity; Jean Burke, Principal, in her individual and official capacity; Vicki Michaels, Special Education Teacher, in her individual and official capacity; Donna Trowbridge and Odessa Hubbard, Paraprofessionals, in their individual and official capacities, Defendants.
• Court: U.S. District Court — District of Colorado

831 F.Supp.2d 1226

279 Ed. Law Rep. 913

A.B. a minor, through her parent and next friend, B.S., and B.S., individually, Plaintiffs,

v.ADAMS–ARAPAHOE 28J SCHOOL DISTRICT; Aurora Public Schools Board of Education; John L. Barry, Superintendent, in his individual and official capacity; Laura Munro, Director, Exceptional Student Services, in her individual and official capacity; Barbara Rice, Elementary/Preschool Consultant in her individual and official capacity; Jean Burke, Principal, in her individual and official capacity; Vicki Michaels, Special Education Teacher, in her individual and official capacity; Donna Trowbridge and Odessa Hubbard, Paraprofessionals, in their individual and official capacities, Defendants.

Civil Action No. 09–cv–00715–WJM–MJW.

United States District Court, D. Colorado.

Nov. 28, 2011.

Jack David Robinson, Janet R. Spies, Gregory Miles Moore, Spies, Powers & Robinson, PC, Denver, CO, for Plaintiffs.

William J. Kowalski, William Stuart Stuller, Alyssa C. Burghardt, Caplan and Earnest, LLC, Boulder, CO, Jenna L. Mazzucca, Laura A. Tighe, Marianne K. Lizza–Irwin, Peter M. Spiessbach, Bayer & Carey, P.C., Jon F. Sands, William Blair Stanton, Sweetbaum Sands Anderson, P.C., Denver, CO, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

WILLIAM J. MARTÍNEZ, District Judge.

In this civil rights action, Plaintiffs A.B., a minor, and her parent, B.S., bring a multitude of federal and state law claims against current and former employees of the Adams–Arapahoe School District related to A.B.'s treatment while a student at Lansing Elementary School. Before the Court are the following motions: (1) Defendant Donna Trowbridge's Motion for Summary Judgment (ECF No. 74); (2) Defendant Vicki Michaels's Motion for Summary Judgment (ECF No. 76); and (3) the Motion for Summary Judgment filed by Defendants Adams–Arapahoe School District 28J, Aurora Public School Board of Education, John Barry, Jean Burke, Barbara Rice, Odessa Hubbard, and Laura Munro (collectively the “Motions”).¹ For the reasons set forth below, the Motions are granted in part and denied in part.

I. STANDARD OF REVIEW

Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir.1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Kaiser–Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir.1989). A factual dispute is “genuine” and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett–Packard Co., 305 F.3d 1210, 1213 (10th Cir.2002).

Where the moving party does not have the burden of production at trial, the movant must demonstrate the absence of sufficient evidence in the record to establish one or more elements of each challenged claim or defense. The burden then shifts to the respondent to come forward with sufficient competent evidence to demonstrate a genuine dispute of material fact with regard to each challenged element. If the respondent fails to produce sufficient competent evidence that, if accepted by the factfinder, would establish its claim or defense, the claim or defense must be dismissed as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

II. FACTUAL BACKGROUND

The facts of this case are highly disputed. However, on the instant Motions, the Court must view the facts in the light most favorable to Plaintiffs. Walker v. City of Orem, 451 F.3d 1139, 1155 (10th Cir.2006). Accordingly, for purposes of the pending Motions, the facts are as follows:

Plaintiff A.B. has been diagnosed with a seizure disorder and developmental delays. (Levisohn Dep. at 28, 40.) In April 2006, the Adams–Arapahoe 28J School District (“District”) performed an evaluation of A.B. and determined that she was eligible for special education services. (ECF No. 79–19.) In the fall of 2006, A.B. was a kindergarten student in Lansing Elementary School's Life Skills program, which serves students with severe and profound needs, including medically fragile students. (Hall Dep. at 17; Burke Dep. at 33.) Vicki Michaels was the lead teacher in the Life Skills program; LeDeanna Lloyd, Odessa Hubbard, and Donna Trowbridge were paraprofessionals in the program. (Burke Dep. at 33; Hubbard Dep. at 12–13; Michaels Dep. at 33.) Jean Burke was principal of Lansing Elementary. (Burke Dep. at 13.) Barbara Rice was a consultant employed by the District to develop programming and provide oversight for the Life Skills program. (Rice Dep. at 22–24.) Laura Munro was the District's Director of Student Achievement for Diverse Learners and John Barry was the District's Superintendent. (Munro Dep. at 12; Barry Dep. at 10.)

At Lansing, A.B. had significant behavioral difficulties. (Lloyd Dep. at 40; Michaels Dep. at 65–69.) Therefore, early in the school year, Consultant Rice spent two days in the Life Skills classroom working one-on-one with A.B. (Rice Dep. at 41.) After determining that A.B. was acting out to seek attention from the adults in the room, Rice developed a three-stage behavior modification plan (the “Plan”). ( Id.) The staff was first to send A.B. to sit in a regular chair for a time-out. If A.B. would not comply and stay seated, the staff was to utilize a modified “baskethold”, which involved the teacher sitting behind the chair and loosely holding A.B. down to help her try and stay still. If A.B. had not de–escalated her behavior in five minutes, the teachers were to place A.B. in a wooden high-backed chair (the “Restraint Chair”) and strap A.B. to the chair. The staff was then to set a timer so that A.B. would be in the Restraint Chair for no longer than five minutes. ( Id. at 42–43.) The purpose of the Plan was to get A.B. to refocus on classroom activities. ( Id. at 61.) Rice did not intend for the Restraint Chair to be used punitively. ( Id.) Rice trained Lead Teacher Michaels on the Plan; Michaels regarded the Plan as “district policy.” ( Id. at 67–69, 87–88.)

Though A.B. had an Individualized Education Plan (“IEP”), the Plan was not a part of the IEP. A.B.'s IEP talked about the use of “time outs” but did not mention restraining A.B. or using a strap to hold her in a chair. (Rice Dep. at 67.) Around the time that the Plan was designed, Rice had a meeting with A.B.'s mother, B.S. (B.S. Dep. at 78.) Rice explained that they were going to use a device similar to a high chair with A.B. in the classroom, that A.B. would come to regard the chair as her “special place”, and that A.B. would be allowed to participate in classroom activities while in the chair. ( Id. at 78–81.) There was “not much talk of” straps and there was no mention of the term restraint. ( Id. at 81–82.) At this meeting, B.S. wrote the following: “I give promission [sic] for teacher to use hight [sic] with strap.” ² (ECF No. 110–1.)

Between early September and October 10, 2006, A.B. was strapped into the Restraint Chair on a daily basis.³ (Lloyd Dep. 16–17.) Michaels was almost always the person who put A.B. into the Restraint Chair. (Lloyd Dep. at 21.) A.B. would be let out of the Chair to go to “specials” such as art and physical education, which were about 30 to 45 minutes long. (Lloyd Dep. at 22.) However, while A.B. was in the Life Skills classroom, she was strapped into the Restraint Chair from shortly after she arrived until about five minutes before her mother returned to pick her up. (Lloyd Dep. at 22–23.) Paraprofessional Lloyd saw A.B. run around the classroom on two or three occasions but otherwise could not recall any particular behavior that precipitated Michaels putting A.B. into the Restraint Chair. ( Id. at 40.) Lloyd believed that Michaels restrained A.B. because she “just didn't like the child.” ( Id. at 17.)

When A.B. was in the Restraint Chair, straps were placed around her waist and her chest. (Lloyd Dep. at 20.) Sometimes A.B.'s arms were free (Lloyd Dep. at 20) and sometimes they were strapped to her sides. (Trowbridge Dep. at 44.) A.B. frequently cried while she was in the Restraint Chair. (Lloyd Dep. at 33.) In response to A.B.'s crying, Michaels would raise her voice and tell A.B. to “shut up.” (Lloyd Dep. at 33, 42.) Two or three times a week, Michaels would turn the Restraint Chair so that it faced away from the rest of the class and would erect barriers behind and to the side of A.B. (Lloyd Dep. 34.) The staff could see over the barriers but A.B. could not see out. (Trowbridge Dep. at 46.)

Between early October and mid-December 2006, A.B. was strapped into the Restraint Chair on four or five occasions for anywhere from approximately five minutes to a maximum of about forty minutes. (Trowbridge Dep. 43, 92–95; Hubbard Dep. 12–13; Michaels Dep. 63, 92.) The parties dispute who put A.B. into the Restraint Chair but, at most, Paraprofessionals Trowbridge and Hubbard each placed A.B. into the Chair once or twice. (Hubbard Dep. at 35–36; Baskfield Aff. ¶ 17.) Again, Michaels was the primary user of the Restraint Chair.

During this time frame, when A.B. was put in the Restraint Chair, her arms were strapped to her...