EC v. Cnty. of Suffolk

• Decision Date: 30 March 2012
• Docket Number: No. 08–CV–3227 (TCP).,08–CV–3227 (TCP).
• Citation: 882 F.Supp.2d 323
• Parties: EC, an infant under the age of 18 years by his Mother and Natural Guardian, RC and RC individually, Plaintiffs, v. The COUNTY OF SUFFOLK, Huntington Union Free School District, Huntington Intermediate School, Mary Stokkers, David Zimmerman, the Suffolk County Police Department and Police Officer Andrew Fiorillo, Defendants.
• Court: U.S. District Court — Eastern District of New York

882 F.Supp.2d 323

EC, an infant under the age of 18 years by his Mother and Natural Guardian, RC and RC individually, Plaintiffs,

v.The COUNTY OF SUFFOLK, Huntington Union Free School District, Huntington Intermediate School, Mary Stokkers, David Zimmerman, the Suffolk County Police Department and Police Officer Andrew Fiorillo, Defendants.

No. 08–CV–3227 (TCP).

United States District Court, E.D. New York.

March 30, 2012.

Danielle J. Seid, Law Offices of Anthony A. Capetola, Anthony A. Capetola, Williston Park, NY, for Plaintiffs.

Arlene S. Zwilling, Susan A. Flynn, Suffolk County Attorney's Office, Hauppauge, NY, Christopher Mestecky, Kelly A. Reape, Guercio & Guercio, Farmingdale, NY, for Defendants.

MEMORANDUM AND ORDER

PLATT, District Judge.

Before the Court is Huntington Union Free School District's, Huntington Intermediate School's, Mary Stokkers' and David Zimmerman's (“District defendants”) motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 on plaintiffs' Amended Complaint. Also before the Court is County of Suffolk's, Suffolk County Police Department's and Police Officer Andrew Fiorillo's (“County defendants”) motion for summary judgment on said complaint. For the following reasons, the District defendants' motion is GRANTED. The County defendants' motion is GRANTED. Plaintiffs' New York State law claims are dismissed without prejudice to renew.

I. BACKGROUND

A. The School District Defendants

On May 14, 2007, infant plaintiff EC was an eleven year-old sixth grade student in the intermediate school in the Huntington Union Free School District (“District”).¹ Dist. Def. 56.1 Stmt. ¶ 1. At all times relevant to this matter, defendant Mary Stokkers (“Stokkers”) was principal of the District's intermediate school. Id. at ¶ 2. EC was classified as a student with a disability pursuant to the Individuals with Disabilities Education Act (“IDEA”). Id. at ¶ 3. EC has severe cognitive and developmental delays, speech and language impairments and a medical condition that requires a feeding tube. Id. at ¶ 4. Plaintiffs note that the foregoing is not a complete characterization of EC's illness, diagnosis and/or symptoms related to his medical, emotional, psychological and/or bio-physical condition. Plt. 56.1 Dist. Ctr. Stmt. ¶ 4. In addition to his feeding tube, EC has a mediport near his left shoulder. Dist. Def. 56.1 Stmt. ¶ 5. The school nurse's notes state that EC has “a permanent Medi-port inserted under his skin on the Left side” of his chest. Plt. 56.1 Dist. Ctr. Stmt. ¶ 5.

EC has a genetic metabolic condition called Very Long Chain Acyl–Coenzyme Dehydrogenese Deficiency (“VCLAD”). Dist. Def. 56.1 Stmt. ¶ 6. EC was assigned a one-on-one aide and was placed in a life-skills special education class taught by Sarah Valente (“Valente”) who was his classroom teacher for the 2006–2007 school year. Id. at ¶ 7; Plt. 56.1 Dist. Ctr. Stmt. ¶ 7. The life-skills special education class was a class for students with severe developmentaldelays who functioned at a very low cognitive level. Dist. Def. 56.1 Stmt. ¶ 8. The class is composed of severely disabled students requiring basic skills training in terms of hygiene, hand washing, hair combing and teeth brushing. Valente testified that the class works on appropriate social skills such a taking turns and greeting others appropriately. Plt. 56.1 Dist. Ctr. Stmt. ¶ 8. During the 2006–2007 school year, the class had eight students, one classroom aide and five individual aides; one new student was added in April 2007 bringing the student total to nine. Id. at ¶ 9.

The individual aides assigned to EC's class were Deanne Boccard, Paula Ferraiolo, Sonia Frazier, Janet Sloan and Anna Melrose. Dist. Def. 56.1 Stmt. ¶ 10. Sonia Frazier (“Frazier”) was EC's individual aide on May 14, 2007. Id. at ¶ 11. David Zimmerman (“Zimmerman”) was the teacher's assistant assigned to EC's class. Id. at ¶ 12. As the teacher's assistant, Zimmerman was responsible for teaching designated lessons, accompanying students when they left the classroom and supporting the students' academic, social and behavioral progress. Id. at ¶ 13.

During the 2006–2007 school year, the District instituted a behavioral intervention plan (“BIP”) for EC. Id. at ¶ 14. The purpose of a BIP is to target certain behaviors of a student that the District wishes to change, improve or reduce the frequency of and to provide positive reinforcement. Id. at ¶ 15. The purpose of a BIP is to achieve a positive outcome. Id. at ¶ 16. Thus, a BIP does not address whether a student should be restrained in response to various behaviors. Id. at ¶ 18. When necessary, however, a student might be restrained to keep the student safe. Id. at ¶ 17; Aff. Reape, Exh. B, Tr. Stokkers 76:3–7.

On May 14, 2007, the students in EC's class were taken outside to the playground area in order to participate in an adaptive physical education class. Dist. Def. 56.1 Stmt. ¶ 19. The playground area is located behind the school cafeteria. Id. at ¶ 20. The playground area is a large grassy field located near a road with a soccer field in the middle; swings, monkey bars and slides are on one side; areas for softball and kickball are on another side; and a basketball court is on another side. Id. at ¶ 21. The playground area is fenced, with an opening at the entrance to the parking lot. Id. at ¶ 22. Plaintiffs contend that there was conflicting testimony regarding the description of the playground, whether or not it was fenced in, its location with respect to the incident and the location of the parking lot. They argue that the veracity of the testimony is for a jury to decide. Plt. 56.1 Dist. Ctr. Stmt. ¶¶ 21, 22. School nurse Elizabeth Scannello identified the incident playground as the “one behind the school near the, there's playground equipment ... a swing set.” Aff. Reape, Exh. E, Tr. Scannello 61:2–4. Valente described the incident playground as the “fifth and sixth grade playground,” located on the “[r]ight side of the building if it's facing Lowndes Avenue.” Id. at Exh. C, Tr. Valente 81:16–21. Valente testified that the playground is enclosed by a fence. Id. at 81:22–24. She also testified that the “playground faces the right side of the school, and there are parking lots on either side in the front and the back.” Id. at 83:3–6.

Zimmerman and Frazier and the other aides accompanied the students to the adaptive physical education class. Dist. Def. 56.1 Stmt. ¶ 23; Aff. Reape, Exh. G, Tr. Triolo 15:20–16:22 & Exh. C, Tr. Valente 77:17–20. EC's adaptive physical education teacher, Eric Triolo, testified that EC began throwing rocks while he was on the playground; teacher's assistant Zimmermanand EC's aide Frazier also so testified. Dist. Def. 56.1 Stmt. ¶ 24. Frazier testified that first EC was throwing pebbles when she told him to put down the rocks so as not to injure anyone. Id. at ¶ 25. EC then threw some pebbles, almost hitting another child. Id. at ¶ 26. Triolo testified that he told EC to stop throwing rocks. Id. at ¶ 27. Plaintiffs deny the foregoing on the basis that the credibility of the testimony must be determined by a jury. Plt. 56.1 Dist. Ctr. Stmt. ¶¶ 24–26.

Physical education teacher Triolo testified that EC became agitated and defiant and he brought EC's classmates back inside the building for their safety.² Dist. Def. 56.1 Stmt. ¶¶ 28, 29. Stokkers testified that Triolo told her he was taking the class inside because EC was out of control. Id. at ¶ 30.

EC remained outside with a number of other people including his aide Frazier. Id. at ¶ 31. EC picked up a large rock in the playground area. Id. at ¶ 32. Zimmerman testified that the rock was oval-shaped and approximately eight or nine inches long. Aff. Reape, Exh. F, Tr. Zimmerman 49:4–9. During his deposition, EC described the rock as approximately one foot long. Aff. Reape, Exh. K, Tr. EC 45:14–20. Plaintiffs dispute Zimmerman's testimony with regard to the size of the rock and contend it is an issue of fact for a jury. Plt. 56.1 Dist. Ctr. Stmt. ¶ 32. Plaintiffs further note that defendants are not in possession of the rock and, for this proposition, broadly cite to “Defendants' A–O” which encompasses hundreds of pages of testimony and plaintiffs' complaint. ¶ 33. General citations to reams of pages of testimony by different witnesses and plaintiffs' complaint, however, do not specifically controvert District defendants' statements as required by Local Rule 56(b).

Frazier testified that EC held the rock over his head. Id. at ¶ 36; Aff. Reape, Exh. H, Tr. Frazier 30:4–15. Zimmerman asked EC to put the rock down more than once. Dist. Def. 56.1 Stmt. ¶ 34. Plaintiffs point out that EC's Individualized Education Program (“IEP”) states that he needs to be told verbal commands more than once. Plt. 56.1 Dist. Ctr. Stmt. ¶ 34. EC became angry at Zimmerman and refused to put the rock down. Dist. Def. 56.1 Stmt. ¶ 35. Frazier testified that Zimmerman took the rock from EC at which time EC became upset and began yelling and running. Id. at ¶¶ 40, 43; Aff. Reape, Exh. H, Tr. Frazier 32:18–24. Plaintiffs contend, on the other hand, that EC became angry after Zimmerman threw the rock down and EC was restrained for what he thought was “hours.” Plt. 56.1 Dist. Ctr. Stmt. ¶ 35.

Frazier testified that she was afraid EC would throw a rock at her. Dist. Def. 56.1 Stmt. ¶ 37. Frazier stated that she heard the teachers calling her name and telling her to watch out because EC appeared to be coming after her with his two hands up in a boxing stance as though he was going to hit her. Valente then told Frazier to leave. Dist. Def. 56.1 Stmt. ¶ 45; Aff. Reape, Exh. H, Tr. Frazier at 32:25–33:11.

In May 2007, as EC's mother testified, EC weighed approximately 156 pounds. Dist. Def. 56.1 Stmt. ¶ 39. Zimmerman testified that he took the rock away from EC to prevent him from injuring himself, that EC became very upset and began yelling, screaming and running. Id. at ¶¶ 41–43....