Carey v. Maine School Administrative Dist. No. 17, 90-0060-P.

• Decision Date: 18 December 1990
• Docket Number: No. 90-0060-P.,90-0060-P.
• Citation: Carey v. Maine School Administrative Dist. No. 17, 754 F.Supp. 906 (D. Me. 1990)
• Parties: Nelson CAREY ON BEHALF OF Craig CAREY, Nelson Carey and Faye Carey, Plaintiffs, v. MAINE SCHOOL ADMINISTRATIVE DISTRICT # 17; Board of Directors of Maine School Administrative District # 17; Kenneth Smith; Herbert Adams; Sue-Ellen Myers, Alfred LeClerc, Virginia Rice, Vince Collins, Ronald Kugell, Ronald Springer, Eugene Whitney, Donald Gouin, Walter Lang, Reginald Dews, Bradley Cummings, James Johnston, Robert Stimson, Suzanne Uhl-Myers, Edward Whittier and Russell Giasson, individually and in their representative capacities, Defendants.
• Court: U.S. District Court — District of Maine

754 F. Supp. 906

Nelson CAREY ON BEHALF OF Craig CAREY, Nelson Carey and Faye Carey, Plaintiffs, v. MAINE SCHOOL ADMINISTRATIVE DISTRICT # 17; Board of Directors of Maine School Administrative District # 17; Kenneth Smith; Herbert Adams; Sue-Ellen Myers, Alfred LeClerc, Virginia Rice, Vince Collins, Ronald Kugell, Ronald Springer, Eugene Whitney, Donald Gouin, Walter Lang, Reginald Dews, Bradley Cummings, James Johnston, Robert Stimson, Suzanne Uhl-Myers, Edward Whittier and Russell Giasson, individually and in their representative capacities, Defendants.

No. 90-0060-P.

United States District Court, D. Maine.

December 18, 1990.

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Thomas F. Hallett, Portland, Me., for plaintiffs.

Jonathan S. Piper, Jill M.P. Allen, Portland, Me., for defendants.

Steven J. Mogul, Bangor, Me., for insurer.

MEMORANDUM OF DECISION AND ORDER

GENE CARTER, Chief Judge.

This matter comes before the Court on Defendants' Motion to Dismiss and/or Motion for Summary Judgment, pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56. For the reasons discussed below, the Motion to Dismiss will be granted in part and denied in part, and the Motion for Summary Judgment will be granted in part and denied in part. In addition, the Court is without jurisdiction to decide two of Plaintiffs' claims; therefore, those claims will be dismissed without prejudice.

Defendants have also filed a Motion to Order Plaintiffs to Submit to a Mental Examination, and a Motion to Compel Answers to Interrogatories/Production of Documents. Both of these discovery motions are made moot by this decision and, as a result, will be dismissed.

I. FACTS AND BACKGROUND

Craig Carey was adopted by Nelson and Faye Carey (hereinafter collectively Plaintiffs) when he was four years old. Craig had been the victim of child abuse by his biological parents and was placed in several foster care homes before being permanently situated with the Careys. These traumatic early childhood experiences have caused Craig serious, recurring emotional problems. One manifestation of Craig's emotional disorder is the great difficulty he experiences in adapting to traditional school settings. Although extremely bright, Craig has regularly engaged in "oppositional behavior," including temper tantrums, manipulative treatment of his peers, fantasizing and outrageous story telling, and general negative attention seeking. He is apparently plagued by the belief, born of his abuse and subsequent adoption, that the world is victimizing and threatening him. See generally Discharge Summary by Sweetser Children's Home (Plaintiffs' Exhibit No. 1) (hereinafter Discharge Summary); Intake Evaluation by Sweetser Children's Home (Plaintiffs' Exhibit No. 2); Psychological Evaluation, Berwyn Wetter, Ph.D. (Defendants' Exhibit No. 4) (hereinafter Psychological Evaluation); Supplementary Psychological Evaluation Comment, Berwyn Wetter, Ph.D. (Plaintiffs' Exhibit No. 10).

The Defendants herein are the Maine School Administrative District # 17 (hereinafter MSAD # 17), the school district in which Craig was enrolled; the Board of Directors of MSAD # 17 (hereinafter Board or Board of Directors); Dr. Kenneth Smith, the superintendent of MSAD # 17; Dr. Herbert Adams, the principal of Oxford Hills Junior High School where Craig was enrolled; and sixteen members of the Board of Directors of MSAD # 17 (hereinafter Board Members).

Craig's persistent behavioral problems in his local public school required his admission in 1984 for residential treatment at the Sweetser Children's Home. See Pupil Evaluation Team Referral (Defendants' Exhibit No. 2); Pupil Evaluation Team Notice, Report, and Associated Materials, May 30, 1984 (Defendants' Exhibit No. 3); Psychological Evaluation; Pupil Evaluation Team Report, June 21, 1984 (Defendants' Exhibit No. 5). Craig successfully completed the third and fourth grades at the Sweetser Home. He attended the Saco Public Schools for the fifth grade under the supervision of the Sweetser Home, and was successful enough in controlling his behavior to be released to the Careys and permitted to return to his home community's public schools for the sixth grade. See Discharge Summary; Pupil Evaluation Team Report, May 29, 1986 (Defendants' Exhibit No. 8) (hereinafter PET Report '86). The Sweetser Children's Home recommended upon his release that Craig be placed in a regular classroom, but that he also receive counselling to address his continuing emotional problems. See Discharge Summary.

Craig entered the Guy E. Rowe School, an elementary school in MSAD # 17, for the 1986-87 school year. The intention was to "mainstream" Craig in the sixth grade, meaning that he would not be placed in a special education class. See Discharge Summary at 3; PET Report '86; Affidavit of Bruce Tyner at ¶ 5 (Defendants' Exhibit No. 10) (hereinafter Tyner Affidavit). The Careys believed that Craig would require some special services to be successful in public school; however, they strongly objected to Craig being placed in a "special education room." Affidavit of Nelson Carey at ¶¶ 7-9 (Plaintiffs' Exhibit No. 31) (hereinafter Nelson Carey Affidavit); Affidavit of Faye Carey at ¶¶ 5-6 (Plaintiffs' Exhibit No. 30) (hereinafter Faye Care Affidavit).¹

Craig apparently benefitted from the close supervision and careful attention of his sixth grade teacher. Tyner Affidavit at ¶¶ 9-11; Nelson Carey Affidavit at ¶ 7. He received passing grades throughout the sixth and seventh grades, and the beginning of eighth grade. Craig was never placed in special education nor subjected to any special education evaluation during these years. Affidavit of Dr. Kenneth Smith at ¶¶ 5-7 (Defendants' Exhibit No. 12) (hereinafter Smith Affidavit); Tyner Affidavit at ¶ 11; Faye Carey Affidavit at ¶¶ 9-14; List of Craig Carey's Grades (Plaintiffs' Exhibit No. 4).

After Craig entered the seventh grade at the Oxford Hills Junior High School, the Careys requested that Craig's teachers be notified of Craig's behavioral problems. Mr. Carey avers that he met with Craig's teachers three or four months before the incidents which resulted in this action to explain how best to handle Craig during an "emotional tailspin." Faye Carey Affidavit at ¶¶ 5, 7, 16, 17; Nelson Carey Affidavit at ¶¶ 5-10. One result of that meeting was a purported policy of giving Craig "time outs" whenever his behavior in class became disruptive. Faye Carey Affidavit at ¶ 10. Nonetheless, Craig manifested continuing behavioral problems throughout the seventh and eighth grades. See Faye Carey Affidavit at ¶¶ 9-14; Chronology of Craig Carey's Behavioral Problems (Plaintiffs' Exhibit No. 6).

The particular incidents at issue herein began on February 2, 1989 when Craig returned a test paper (a blank map of the United States) to his teacher with the word "DIE" written dozens of times across the page and the circled letter "A" drawn into each of the states. The back of the page was similarly covered with the word "DIE" surrounding what appear to be song lyrics. Test Paper (Defendants' Exhibit No. 13); Letter from Superintendent Smith to Careys (Defendants' Exhibit No. 18); Nelson Carey Affidavit at ¶ 11. Mr. Carey was called to the school the next day to meet with Assistant Principal Moore and guidance counsellor Alice DeCato to discuss Craig's test paper. At the suggestion of Ms. DeCato and Assistant Principal Moore, and fearing that his son might harm himself, Mr. Carey agreed to seek professional help for Craig. Nelson Carey Affidavit at ¶ 11; Smith Affidavit at ¶ 5. Mr. Carey endeavored unsuccessfully to find psychiatric care for his son, and returned to the school on February 10, 1989 to seek assistance from Ms. DeCato and Principal Herbert Adams. Ms. DeCato called the Crisis Unit at Maine Medical Center on Mr. Carey's behalf to arrange for Craig to be examined. Nelson Carey Affidavit at ¶ 11; Affidavit of Dr. Herbert Adams at ¶ 6 (Defendants' Exhibit No. 12) (hereinafter Adams Affidavit); Memorandum from Alice DeCato, February 15, 1989 (Defendants' Exhibit No. 14 & Plaintiffs' Exhibit No. 5). The Crisis Unit determined that Craig was not a danger to himself or others, and released him to his parents' care. Nelson Carey Affidavit at ¶ 11.

Unknown to his parents or school authorities at the time, Craig had brought his father's forty-five caliber semi-automatic handgun and a loaded ammunition clip to school in his bookbag on February 10, 1989. Adams Affidavit at ¶ 9. While walking near a local cemetery after school that same day, Craig allegedly encountered two fellow students to whom he allegedly showed his father's gun. These two students later reported that Craig threatened to shoot someone, perhaps a teacher, and then himself. One of the students allegedly took the ammunition clip from Craig. After some discussion, the two students convinced Craig to join them in attending the school basketball game that afternoon. Statements of Tim Burbank and Adam Chadbourne (Defendants' Exhibit No. 15).

Several students reported seeing the gun during the course of the basketball game, although there is some dispute as to who was holding the gun. See Plaintiffs' Statement of Material Facts to Which They Contend There Exists a Genuine Issue to be Tried at 10 (Docket No. 8) (hereinafter Plaintiffs' Statement). See also Deposition of Kenneth Smith at 97 (Plaintiffs' Exhibit No. 34) (hereinafter Smith Deposition) ("another" student displayed the gun at the game). A high school age boy allegedly handled the gun at the game and allegedly encouraged Craig to wave the gun around. The other students at the game who claim to have seen the gun reported becoming so alarmed that they fled the bleachers for the hallway outside the gym. Craig allegedly entered that hallway at some point, albeit without his bookbag or the gun, and allegedly made jokes about shooting people using his fingers as a mock gun....