D.D.T. v. Rockdale Cnty. Pub. Sch.
| Decision Date | 30 September 2021 |
| Docket Number | CIVIL ACTION NO. 1:20-cv-4666-AT |
| Parties | D.D.T., BY AND THROUGH his natural parents and guardians, S.C. and D.T., Plaintiff, v. ROCKDALE COUNTY PUBLIC SCHOOLS, Randy Goerner, Dona Pollard and David Lesesne, Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
Carson Modrall, Berman Fink Van Horn, Atlanta, GA, David S. Fried, Joseph Alan White, Fried Bonder White, LLC, Atlanta, GA, for Plaintiff.
Jeffrey Robert Daniel, Sherry Hall Culves, Parker, Poe, Adams & Bernstein, LLP, Atlanta, GA, for Defendants.
Plaintiff's parents and guardians in this case seek damages on behalf of their son, a non-verbal autistic student with disabilities, for his alleged abuse at the hands of his special education teacher and paraprofessional. Through his parents, D.D.T. brings claims under the United States Constitution and 42 U.S.C. § 1983, the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. , Section 504 of the Rehabilitation Act (" Section 504"), and under a variety of state law tort theories. This case is before the Court on Defendants’ Motion to Dismiss [Doc. 12].
For the following reasons, the Motion is GRANTED IN PART and DENIED IN PART.
Plaintiff D.D.T. is a disabled, non-verbal minor child who suffers from autism
, attention-deficit/hyperactivity disorder ("ADHD"), and intellectual disability. (Compl., Doc. 1 ¶¶ 2, 30.) Plaintiff's disabilities and mental impairments substantially limit his ability to eat, speak, read, learn, interact with others, and perform manual tasks, among other things. (Id. ¶ 31.) At the time of the events at issue in this case, D.D.T. was a student at the General Ray Davis Middle School ("GRDMS") in the Rockdale County School District2 ("RCSD").
Given his disabilities, Plaintiff is eligible to receive special education services, as provided under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et. seq. (Id. ¶ 33.) At all times relevant to Plaintiff's Complaint, he was on an Individual Education Plan ("IEP") designed to meet his specific needs. (Id. ¶ 35.) His IEP recognized his "exceptionalities" as "Significant Developmental Delay," "Autism
," and "Speech/Language Impairment." (Id. ¶¶ 35-36.) Plaintiff's IEP services also provided for a Behavioral Intervention Plan ("BIP") because the IEP noted that D.D.T. had demonstrated "aggression toward teachers, paraprofessionals and peers." (Id. ¶¶ 39-40.)
During the 2018-2019 school year, Plaintiff was a student at GRDMS, where his special education teacher was Dona Pollard ("Pollard"). (Id. ¶ 17, 45, 47.) David Lesesne ("Lesesne") was assigned as a special education paraprofessional in Pollard's classroom. (Id. ¶ 19.) Randy Goerner ("Principal Goerner") served as the principal at GRDMS during the time that Plaintiff was assigned to Pollard's class. (Id. ¶ 11, 105.) When Plaintiff started at GRDMS, he weighed approximately 110 pounds. (Id. ¶ 46.)
Pollard began working for RCSD in approximately 2012. (Id. ¶ 48.) Pollard allegedly had no special education teaching experience when she began working for RCSD, though she worked with non-ambulatory special education students prior to Plaintiff joining her class. (Id. ¶¶ 49-50.) Lesesne began working for RCSD in approximately 2006. (Id. ¶ 52.) Plaintiff alleges that both Pollard and Lesesne were the subject of one or more complaints to RCSD and/or GRDMS about their treatment of special education students prior to Plaintiff joining their class — Lesesne for "verbal abuse, physical abuse, and intimidating and threatening behavior" and Pollard for "her refusal to utilize special needs equipment for students which required her to physically move the students." (Id. ¶¶ 51, 53.)
In approximately September 2018, K.W., another paraprofessional employed by RCSD, joined Pollard's class. (Id. ¶¶ 21, 65.) Upon joining the class, K.W. began observing Pollard and Lesesne physically and verbally abusing students, primarily Plaintiff and another disabled boy. (Id. ¶ 66.) Lesesne would brandish a stick-like object and physically threaten Plaintiff and the other boy, (id. ¶ 68), and would spray or dump water on the pair (id. ¶ 69). Lesesne would also throw objects, including shoes, at the boys. (Id. ¶ 70.) Pollard did nothing to correct or prevent Lesesne's conduct. (Id. ¶ 71.) Pollard also participated at times, including "threatening, intimidating, and abusing the boys," along with Lesesne, while referring to the pair as "Frick and Frack" and by other unspecified derogatory terms. (Id. ¶ 67.)
K.W. verbally complained to GRDMS administrators and to human resources personnel with the RCSD board about the behavior she witnessed in Pollard's classroom. (Id. ¶¶ 73-74.) Neither RCSD nor GRDMS, including Principal Goerner, took any action in response to K.W.’s complaints. (Id. ¶ 75.) Instead, GRDMS administrators instructed K.W. to submit any additional complaints in writing. (Id. ¶ 76.)
Accordingly, on October 29, 2018, K.W. emailed Principal Goerner, three GRDMS assistant principals employed by RCSD (Kecia Thomas, Kimberly Kammerer, and Cathleen Young), and GRDMS's lead teacher (Sabrina McCray) regarding a situation in which Pollard threw a projector remote at a student and hit him. (Id. ¶¶ 12-15, 77, 79.) Although email communications indicated that Principal Goerner would investigate the complaint, K.W. was not contacted or interviewed. (Id. ¶ 80.) Neither Principal Goerner nor any other administrator investigated the incident, and neither Pollard nor Lesesne were reprimanded or disciplined. (Id. ) No changes were implemented in Pollard's classroom. (Id. )
In November 2018, K.W. sent another email to Principal Goerner, the three assistant principals, and GRDMS's lead teacher complaining about abuse in Pollard's class, including abuse specifically of Plaintiff. (Id. ¶ 81.) Again, K.W. was not contacted, no investigation was conducted, Pollard and Lesesne were not reprimanded or disciplined, and no changes were implemented in Pollard's classroom. (Id. ¶ 82.)
On December 20, 2018, K.W. sent another email to Principal Goerner, the three assistant principals, and GRDMS's lead teacher, and this time also included GRDMS's Learning Support Coordinator (Jessica Walls), also employed by RCSD. (Id. ¶¶ 16, 83.) In the December email, K.W. reported that: (1) "Pollard attempted to pull a disabled student off the top of a bookshelf before K.W. intervened"; (2) "Pollard then grabbed the same student by the back of his neck and his wrist and shoved him against the wall"; and (3) "Lesesne threw a shoe ‘3 or 4 times’ at a disabled student, who was ‘curled up in the floor in the corner.’ " (Id. ¶ 84.) Though not specified in Plaintiff's Complaint, one of those incidents involved Plaintiff. (Id. ¶ 83.) In response to this email, GRDMS administrators, including Principal Goerner, completed an "Investigation Report" concerning the incident based on statements only from Pollard and Lesesne. (Id. ¶ 86.) GRDMS administrators did not interview or speak with K.W. (Id. ) And although emails responsive to K.W.’s complaint indicated that the incidents called for a "mandatory DFCS referral," Plaintiff alleges, on information and belief, that no GRDMS administrator reported the incident to the Georgia Division of Family and Children Services ("DFCS"). (Id. ¶ 85.) Instead, Pollard received a "letter of correction" because GRDMS's investigation concluded that Pollard "inappropriately restrained but did not injure the student." (Id. ¶ 87.) Lesesne denied throwing shoes at the student, and so, the accusation against him was deemed unsubstantiated by GRDMS administrators. (Id. ¶ 88.)
In December 2018, K.W. witnessed another incident involving Plaintiff and recorded the incident on her cell phone. (Id. ¶¶ 89-90.) The video allegedly depicts Lesesne brandishing a stick-like object in his hand, which he used to threaten Plaintiff, and using his foot to pin Plaintiff to the ground. (Id. ¶ 91.) Each time Plaintiff tried to get up, Lesesne forced him back on the ground using his foot. (Id. ¶ 91.) Instead of immediately reporting this incident to GRDMS administrators, K.W. showed Plaintiff's mother the video recording of the incident when she encountered her at a retail establishment later that month. (Id. ¶ 92-93.) Prior to that encounter, Plaintiff's parents were unaware of any alleged verbal or physical abuse in Pollard's classroom. (Id. ¶ 94.)
In late December 2018 or early January 2019, K.W.’s video recording was given to DFCS, prompting a criminal investigation by the Rockdale County Sheriff's Department. (Id. ¶ 101.) The results of that investigation are presently unknown. .) However, Pollard and Lesesne were removed from Plaintiff's classroom so that, when Plaintiff returned to school following his holiday break, he had a new teacher and paraprofessional. (Compl. ¶¶ 102, 104.) On February 4, 2019, Principal Goerner submitted his resignation and indicated that he would retire effective March 29, 2019, before the end of the school year. (Id. ¶ 105.) On March 8, 2019, Pollard submitted her resignation, which became effective on May 28, 2019. (Id. ¶ 106.) K.W. was let go by RCSD. (Id. ¶ 103.) In October 2019, Plaintiff's parents withdrew him from GRDMS. (Id. ¶ 109.)
As a result of his alleged abuse, Plaintiff's parents assert that he "regress[ed] noticeably [in his education, development, and behavior], los[t] a considerable amount of weight, and develop[ed] permanent and severe anxiety, loss of appetite and post-traumatic stress for which he is currently being treated with, among other things, prescription drugs." (Id. ¶ 2.) More specifically, beginning in September 2018, Plaintiff started refusing food and eventually dropped...
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Pope v. Spokane Sch. Dist.
...similarly recognized that § 1415(1) is not applicable to state law claims. See, e.g., D.D.T. ex rel. S.C. v. Rockdale Cnty. Pub. Sch., 580 F.Supp.3d 1314, 1328, n.3 & 1330 (N.D.Ga. 2021) (exhaustion not required for state law claims by the express terms of § 1415(l)); Williams ex rel. Willi......