Colon v. Colonial Intermediate Unit 20, 3:02CV2123.

Citation443 F.Supp.2d 659
Decision Date04 August 2006
Docket NumberNo. 3:02CV2123.,3:02CV2123.
PartiesBrandon COLON, a minor by his mother and legal guardian, Maria Jacqueline DISEN-COLON, and Maria Jacqueline Disen-Colon, Individually Plaintiffs v. COLONIAL INTERMEDIATE UNIT 20, Jeffrey Karpen, Cheryl Berry and Joseph Mickley, Defendants
CourtUnited States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania

Frederick M. Stanczak, Law Offices of Frederick M. Stanczak, Doylestown, PA, for Plaintiffs.

John E. Freund, III, King Spry Herman Freund & Faul, LLC, Bethlehem, PA, Robin B. Snyder, Marshall Dennehey Warner Coleman & Goggin, Scranton, PA, for Defendants.


MUNLEY, District Judge.

Before the court for disposition is the report and recommendation of Magistrate Judge Malachy E. Mannion that provides a suggested disposition for the: (1) motion for summary judgment filed on behalf of Defendants Colonial Intermediate Unit 20, ("CIU20") and Joseph Mickley; (2) motion for summary judgment filed on behalf of Jeffrey Karpen; and (3) cross-motion for summary judgment filed on behalf of the plaintiffs, Brandon Colon and Maria Disen-Colon. Defendants CIU20 and Jeffrey Karpen filed objections to the report and recommendation.


Plaintiff Brandon Colon (hereinafter "Brandon") is a resident of the Pocono Mountain School District which is within the service area of CIU20. Brandon suffers from serious emotional disturbance, and he is an eligible exceptional student1 entitled to special education and related services pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1401, et seq. He is also a child with a disability within the meaning of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a)(2) and the Americans with Disabilities Act, (hereinafter "ADA"), 42 U.S.C. § 12101. Plaintiff Maria Jacqueline Disen-Colon (hereinafter "Maria") is Brandon's mother and natural guardian.

Defendant CIU20 is responsible for providing special education and related services to students with disabilities who are placed in Intermediate Unit programs by local school districts. Defendant Joseph Mickley, PhD, is the Executive Director of CIU20. Defendant Cheryl Berry is a mental health treatment specialist with CIU20. Defendant Jeffrey Karpen is a CIU20 teacher who taught Brandon.

When Plaintiff Brandon began the third grade at Pocono Mountain School District, the school district evaluated him because he lacked success in the classroom. The school district performed a multidisciplinary evaluation that resulted in the production of a comprehensive evaluation report ("CER"). The CER concluded that a serious emotional disturbance caused plaintiff's lack of success in the classroom.

The school then developed an individual education program ("IEP") for Brandon based upon the CER. At the beginning of the 2000-2001 school year, third grade for the plaintiff, the district placed him in the Barrett Elementary Center within the district. He attended this center until February 2001 at which time, the school district assigned him to the Pocono Mountain Elementary Center North. During the school year, Brandon "exhibited serious behavior problems which included banging his head, slapping his face, threatening and hitting other students, throwing furniture, and leaving the classroom without permission." Amended Complaint, at ¶ 26. During this time, school district personnel used passive restraints on Brandon.

On September 27, 2001, Dr. Martha Turnberg performed a psychiatric evaluation on Brandon for the district. She recommended that his placement be changed to a partial hospitalization program to address his academic, behavioral and emotional needs. Subsequently, the school district placed Brandon in the CIU20's partial hospitalization program. The CIU20's treatment of Brandon while he participated in this program is the basis of the instant law suit.

Brandon participated in the partial hospitalization program from October 2001 through December 11, 2001. During his time in the program, Brandon continued verbal and physical abuse of others and self-injurious behaviors. According to the Amended Complaint, CIU20 personnel who were assigned to work with him, including Defendants Berry and Karpen, repeatedly subjected him to punishment for behavior that was a manifestation of his disability. CIU20 personnel utilized the following in dealing with Plaintiff Brandon: use of physical restraints; placement in a "time out" room for an entire day; and deprivation of benefits generally available to students in the program, such as hot lunches, bathroom privileges and regular breaks.

On December 11, 2001, the CIU 20 informed Maria that Brandon was immediately discharged from the partial hospitalization program and his placement changed to "homebound" placement.

Based upon the above allegations, plaintiffs commenced the instant action. On April 8, 2003, plaintiffs filed an amended complaint alleging the following causes of action: 1) deprivation of Brandon's rights under the IDEA, 34 C.F.R. Part 300 and 22 Pa.Code § 14.133; 2) deprivation of Maria's rights to due process under IDEA, 34 C.F.R. Part 300 and 22 Pa.Code § 14.133; 3) deprivation of Brandon's rights under § 504 of the Rehabilitation Act of 1973; 29 U.S.C. § 729; 4) deprivation of Maria's rights to remain free from discrimination because of her association with Brandon, a person with a disability, under § 504 of the Rehabilitation Act of 1973; 29 U.S.C. § 729; 5) deprivation of Brandon's rights under the ADA, 42 U.S.C. 12101; 6) deprivation of Maria's rights to remain free from discrimination because of her association with Brandon, a person with a disability, under the ADA, 42 U.S.C. 12101; 7) deprivation of rights under the IDEA, the Rehabilitation Act and the ADA, in violation of the civil rights under 42 U.S.C. § 1983, against the individual defendants and 8) violation, by Defendant CIU20, of Brandon's rights in the adoption of a policy or practice of failing to assure that children such as Brandon are provided with appropriate individualized educational programming as a means of preventing the imposition of punishment for behavior that is a manifestation of disability.

Plaintiffs seek a declaration from the court that the defendants violated their rights under the IDEA, ADA and Rehabilitation Act. In addition, plaintiffs seek compensatory and punitive damages, costs and attorney's fees.

In July 2004, Defendants CIU20 and Karpen filed motions to dismiss. On November 18, 2004, Magistrate Judge Mannion issued a report and recommendation recommending the disposition of the motions to dismiss. The parties filed no timely objections to the report and recommendation. Therefore, we adopted it on December 13, 2004, and granted the motions to dismiss in part and denied them in part.

After the close of discovery, the parties filed several motions for summary judgment. The instant report and recommendation addresses these motions. Defendants Jeffrey Karpen and CIU20 filed objections to the report and recommendation, bringing the case to its present posture.


As this case is brought pursuant to the IDEA, ADA, Rehabilitation Act, and section 1983, we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). We have supplemental jurisdiction over the plaintiff's state law claims pursuant to 28 U.S.C. § 1367.

Standard of review

In disposing of objections to a magistrate's report and recommendation, the district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636(b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir.1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. Id.

Magistrate Mannion's report and recommendation addresses motions for summary judgment. Granting summary judgment is proper 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 judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n. 4 (3d Cir.1997) (citing FED. R. Civ. P. 56(c)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original).

In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir.1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 4548, 91 L.Ed.2d 265 (1986). Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or...

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