Doe v. Aberdeen Sch. Dist., 1:18-CV-01025-CBK

• Decision Date: 20 September 2021
• Docket Number: 1:18-CV-01025-CBK
• Parties: JANE DOE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, A.A.; JOHN DOE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, A.A.; JESSICA DOE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, B.B.; JAMES DOE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, B.B.; JILL DOE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, C.C.; AND JEFF DOE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, C.C.; JANET DOE, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, D.D.; AND JULIE DOE, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, E.E., Plaintiffs, v. ABERDEEN SCHOOL DISTRICT, BECKY GUFFIN, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; CAMILLE KAUL, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; RENAE RAUSCH, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; COLLEEN MURLEY, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; MICHAEL NEUBERT, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; CARRIE WIESENBURGER, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; AND DOES 1-2, Defendants.
• Court: U.S. District Court — District of South Dakota

JANE DOE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, A.A.; JOHN DOE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, A.A.; JESSICA DOE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, B.B.; JAMES DOE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, B.B.; JILL DOE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, C.C.; AND JEFF DOE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, C.C.; JANET DOE, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, D.D.; AND JULIE DOE, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, E.E., Plaintiffs, v. ABERDEEN SCHOOL DISTRICT, BECKY GUFFIN, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; CAMILLE KAUL, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; RENAE RAUSCH, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; COLLEEN MURLEY, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; MICHAEL NEUBERT, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; CARRIE WIESENBURGER, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; AND DOES 1-2, Defendants.

No. 1:18-CV-01025-CBK

United States District Court, D. South Dakota, Northern Division

September 20, 2021

MEMORANDUM AND ORDER

CHARLES B. KORNMANN, UNITED STATES DISTRICT JUDGE

INTRODUCTION

This matter is before the Court on defendants' Aberdeen School District ("ASD"), Becky Guffin, Camille Kaul, Renae Rausch, Colleen Murley, Michael Neubert, and Carrie Weisenburgers' ("defendants") six motions for summary judgment, five motions related to plaintiffs' claims under the United States Constitution, via 42 U.S.C § 1983, the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 etseq., the Rehabilitation Act of 1973, 29 U.S.C §§ 794, et seq., the South Dakota Human Rights Act ("SDHRA"), SDCL Chapter 20, § 13 and negligence under South Dakota Law, and one motion shielding defendants from any liability under Monell v. Department of Social Services, 436 U.S. 658 (1978) and under qualified immunity.

At the outset, in this very lengthy opinion, as the attorneys well know, this Court is not finding facts. Nor do I find that any defendant is liable. I am dismissing some claims, granting or denying motions, and determining which claims are to be decided by a jury because genuine material issues of fact exist.

This lawsuit has caused the destruction of a small forest. Hopefully, we can end this and proceed to trial.

I. BACKGROUND

The alleged events giving rise to this action transpired over the course of two school years, 2014/15 and 2015/16, in the Enrich II classroom at May Overby Elementary ("May Overby") in Aberdeen, South Dakota. May Overby is a South Dakota public school and is part of ASD. Plaintiffs' minor children are all students with disabilities that require special care. Three of the five children are non-verbal and none of the five could verbalize any problems or alleged abuse at May Overby to parents or loved ones. Throughout all relevant times, each minor child has had an individualized education program ("IEP") as required by State and Federal law. While at May Overby, each minor child was taught by defendant Weisenburger.

Plaintiffs Jane and John Does' minor child, A.A., has been diagnosed with autism spectrum disorder and moderate cognitive disability. While verbal, A.A. is unable to directly communicate experiences from school to parents. A.A. was in the third and fourth grade during the 2014/15 and 2015/16 school years, respectively. Plaintiffs allege that A.A. regularly endured physical and emotional abuse at the hands of defendant Weisenburger and her education aides. While there was an amendment to A.A.'s behavior plan which allowed for the use of seclusion in a separate room, it was discontinued after Jane Doe expressed concern with how many hundreds of times A.A. was subjected to the small, windowless room. Despite the U.S. Department of Education only recommending the seclusion room when a child is an imminent danger to herself or others, A.A. would be placed into the room despite no evidence she was a threat to herself or anybody else at May Overby, including for minor infractions such as not properly hanging up her coat and pushing a cabinet.

Plaintiff Jessica Doe's^[1] minor child B.B. was in the third and fourth grade during the 2014/15 and 2015/16 school years, respectively. B.B. has been diagnosed with autism, attention deficit hyperactivity disorder, and chronic anxiety. He is non-verbal. Plaintiffs have alleged that B.B. was the subject of physical and emotional abuse in defendant Weisenburger's classroom, including being forced into a pool against his will. Like A.A., B.B. would be forced into the small seclusion room without reports he was a danger to himself or others.

C.C, daughter of Jill and Jeff Doe, was diagnosed with mild to moderate inner ear hearing loss and is non-verbal. C.C. was in the third and fourth grades during the 2014/15 and 2015/16 school years, respectively. Plaintiffs also claim that C.C. would be regularly subjected to physical and emotional abuse at the hands of defendant Weisenburger and aides, including on one instance being forcibly stripped by Weisenburger at the Aberdeen YMCA locker room, resulting in C.C. screaming so loudly that a concerned passerby came into the changing area to ensure the safety of whoever yelled.

Plaintiff Janet Doe's minor child, D.D., is a non-verbal boy who was in the third and fourth grades during the 2014/15 and 2015/16 school years, respectively. D.D. has a rare genetic disorder which impacts his development and inhibits his capacity to pursue common tasks like toileting and wiping away excess salivation. D.D. would often be left - alone - in the hallway, where staff contended they could still watch him from the classroom. On one occasion, defendant Weisenburger told D.D. that he smelled, that he was disgusting, and informed him that "even his spit was gross and it smelled." Weixel transcript, Doc. 104-9 at 63-64. Because of his disability, D.D. struggled with basic bodily functions like excess salivation, which would not be wiped off him until he was "really wet," and instead would sit for long lengths of time in spittle. Id. at 73. Janet Doe also reported that he would often come home with unchanged diapers, urine-soaked clothing, and developed a rash and sores around his mouth due to how salivation was wiped away by ASD staff

Lastly, Julie Doe's daughter E.E. is verbal, but holds only limited language skills and was not able to communicate the experiences she had at May Overby to her mother. E.E. has been diagnosed with a moderate cognitive disability. Like A.A., B.B. and C.C., E.E. was often subjected to the seclusion room. When E.E. would act out and try to stand out of her chair during class, defendant Weisenburger repeatedly tied an exercise belt around her stomach. The belt would be tied behind her back and behind the chair so she could not "wiggle or anything." Bellefuille transcript, Doc. 104-1 at 47-48. On other occasions defendant Weisenburger would gossip about E.E.'s parents, referring to them as "drug users and losers." Id., at 24. Plaintiffs also allege that defendant Weisenburger would check E.E.'s underwear and report whether they were the same as the previous day loudly enough for the class to hear.

Plaintiffs' claims center around the experiences these minor children endured in defendant Weisenburger1 s classroom at May Overby, as well at other locations. Plaintiffs filed suit against the other individually named defendants due to their supervisory responsibilities within ASD, their alleged inaction in responding to allegations of misconduct by Weisenburger, the alleged lack of meaningful oversight of Weisenburger's conduct, and the lack of policies surrounding restraint and seclusion within the school. On January 28, 2016, defendant Weisenburger was placed on a plan of assistance because "it was revealed student behavior plans and classroom expectations were not being effectively communicated to the aides, creating inconsistency in how staff addressed teaching and student behaviors." Defendants Statement of Undisputed Material Facts Regarding Student CC, Doc. 83 at 4. Three months later, in April 2016, A.A.'s mother observed defendant Weisenburger and her aides forcing a child to swim at the Aberdeen YMCA. Upon investigation by defendant Kaul, defendant Weisenburger and her aides were reprimanded for improper restraint when forcing the child to swim despite protestations. Shortly thereafter defendant Weisenburger resigned.

In early August 2016, C.C.'s sign language interpreter Ms. Ava Weixel met with A.A.'s parents outside of May Overby to discuss her concerns about the treatment students were enduring in Enrich II. A few weeks later on August 31, after being apprised of the reports made to A.A.'s parents, Emily Garcia, Director of Protection and Advocacy for Developmental Disabilities, filed a complaint with the Office of Civil Rights ("OCR") at the United States Department of Education and the United States Department of Justice, Civil Rights Division. On August 9, 2018, the Office of Civil Rights issued its letter summarizing the preliminary information gathered, which highlighted the fact that "ASD did not have a district-wide policy regarding the appropriate use of restraint and seclusion .. . The joint investigation also revealed that ASD did not provide training on the appropriate use of seclusion. Accordingly, various school personnel were utilizing seclusion as a disciplinary measure to routinely address behaviors that were a manifestation of a disability." See OCR Report, Doc. 114-28 at 1-2 (explaining prior findings).

This suit commenced on December 21, 2018, for A.A., B.B., and C.C Doc. 1. On September 27, 2019, the Court denied defendants' motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), with defendants arguing because pla...