Finch v. Texarkana School Dist. No. 7

• Decision Date: 03 April 2008
• Docket Number: No. 4:05-CV-4070.,4:05-CV-4070.
• Citation: 557 F.Supp.2d 976
• Parties: Linda FINCH, as Next Friend of Johnny Ebert, Plaintiff, v. TEXARKANA SCHOOL DISTRICT NO. 7 OF MILLER COUNTY, Defendant.
• Court: U.S. District Court — Western District of Arkansas

Page 976

557 F.Supp.2d 976

Linda FINCH, as Next Friend of Johnny Ebert, Plaintiff, v. TEXARKANA SCHOOL DISTRICT NO. 7 OF MILLER COUNTY, Defendant.

No. 4:05-CV-4070.

United States District Court, W.D. Arkansas, Texarkana Division.

April 3, 2008.

Lori A. Watson, Law Offices of Windle Turley, P.C., Dallas, TX, for Plaintiff.

G. William Lavender, Lavender Law, Ned A. Stewart, Jr., Autrey Autrey & Stewart, Texarkana, AR, for Defendant.

MEMORANDUM OPINION

HARRY F. BARNES, District Judge.

Before the Court is a Motion for Summary Judgment filed on behalf of Defendant Texarkana School District No. 7 of Miller County. (Doc. 27). Plaintiff Linda Finch, as Next Friend of Johnny Ebert, has responded. (Doc. 30). Defendant has replied to Plaintiffs response. (Doc. 33). Plaintiff filed a Sur-Reply to Defendant's reply. (Doc. 37). The matter is ripe for consideration.

I. BACKGROUND

Plaintiff Linda Finch ("Plaintiff or "Finch") brings this lawsuit as next friend of her son, Johnny Ebert, against Defendant Texarkana School District No. 7 of Miller County (the "School District"). Ebert attended the School District's Arkansas High School, where he qualified for special education services due to his autism and mentally challenged status. On November 14, 2001, the School District appointed Ebert a personal aide to assist him with his daily activities at Arkansas High School.

Due Process Records (Doc. 32-11) show that the School District determined, at a conference on April 25, 2002, that Ebert had made progress with regard to his independent functioning and no longer needed an aide. Consequently, the School District removed Ebert's aide. Factual disputes regarding the April 25, 2002 conference exist, including whether Finch was provided notice of the decision to remove her son's personal aide. The School District's procedures require parental consent for the appointment or removal of a personal aide to a special education student. (Doc. 32-13, pg.36).

The School District appointed a new personal aide, Susan Dansby, to assist Ebert beginning in the fall semester of 2002. Finch was aware that Dansby was her son's new personal aide. While Dansby served as Ebert's personal aide, she remained in his presence at all times, except when he was changing clothes following physical education class. During those times, Dansby would stand directly outside the locker room door to make sure Ebert was alone inside the locker room while changing clothes. To further assure that he was able to change clothes in the locker room in private, Ebert was dismissed five minutes prior to the other students in his physical education class.

The School District removed Dansby from her position as Ebert's aide during the spring semester of 2003. The School District did not conduct a hearing concerning the removal of Dansby from her position as Ebert's full-time personal aide. Dansby testified at her deposition that she was told that Finch decided that Ebert no longer needed an aide. (Doc. 32-6, pg.22). However, Finch's affidavit, attached to her response to the summary judgment motion, reveals that: (1) she did not request Dansby's removal; (2) she did not receive notice that her son's aide was being removed; (3) she would have objected to Dansby's removal; and (4) she would have immediately withdrawn her son from school until an aide was re-assigned to him. (Doc. 32-3, pgs.1-2).

Following Dansby's removal as Ebert's personal aide, Ebert was anally raped by Willie Jackson, a mentally retarded student. The rape took place on April 16, 2003, in the locker room immediately following physical education class. Willie Jackson had transferred to the School District from the Hope School District in Hope, Arkansas, (the "Hope District") where he had been a special education student. When Jackson transferred to the School District in April of 2002, the School District requested and obtained from the Hope District the most current information available on Jackson, including his most recent annual review and his most current Individual Education Program ("IEP"). The annual review obtained by the School District revealed that while in the Hope District, Jackson had engaged in inappropriate physical conduct — including "feeling and touching a young lady" on a school bus. (Doc. 32-9, pgs.2-4). The Hope District considered the incident "very severe" and placed Jackson under a Behavioral Plan as a part of his IEP. Jackson's 2001 annual review attested that, subsequent to the institution of the behavioral plan, Jackson had made improvements regarding inappropriate physical contact. (Doc. 32-8, pg. 10). Despite these prior incidents and the effectiveness of the Hope District's behavioral plan for Jackson, the School District employee in charge of reviewing Jackson's transfer documents, Claudette Spillyards, never saw or requested a copy of Jackson's behavioral plan from the Hope District. In addition, Spillyards did not discuss incidents of Jackson's inappropriate physical conduct with anyone from the Hope District. At her deposition, Spillyards testified that she was not aware of the incident involving Jackson's inappropriate touching and feeling of another student on a Hope District bus. (Doc. 32-8, pg.5).

After he was raped by Jackson, Ebert had great difficulty returning to his classes at the School District. Upon the recommendation of the School District's counselor, Ebert transferred to Fouke High School, where he experienced further problems learning and concentrating on schoolwork. Finch filed the present suit for damages against the School District on September 28, 2005. The matter is now before the Court on the School District's Motion for Summary Judgment.

II. SUMMARY JUDGMENT STANDARD

The standard of review for summary judgment is well established. The Federal Rules of Civil Procedure provide that when a party moves for summary judgment:

The judgment sought shall be rendered forthwith if the pleadings, dispositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c); Krenik v. County of LeSueur, 47 F.3d 953 (8th Cir.1995). The Supreme Court has issued the following guidelines for trial courts to determine whether this standard has been satisfied:

The inquiry performed is the threshold inquiry of determining whether there is a need for trial — whether, in other words, there are genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). See also AgriStor Leasing v. Farrow, 826 F.2d 732 (8th Cir.1987); Niagara of Wisconsin Paper Corp. v. Paper Indus. Union-Management Pension Fund, 800 F.2d 742, 746 (8th Cir.1986). A fact is material only when its resolution affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505. A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. Id. at 252, 106 S.Ct. 2505.

The movant's burden has two distinct components: an initial burden of production, which shifts to the nonmoving party if satisfied by the moving party; and an ultimate burden of persuasion, which always remains on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court need not decide whether the moving party has satisfied its ultimate burden of persuasion unless and until the Court finds that the moving party has discharged its initial burden of production. Celotex Corp., 477 U.S. at 330-331, 106 S.Ct. 2548 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-161, 90 S.Ct. 1598, 1608-10, 26 L.Ed.2d 142 (1970)). The Court must view the evidence and the inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996). The nonmoving party must then demonstrate the existence of specific facts in the record that create a genuine issue for trial. Krenik v. County of LeSueur, 47 F.3d at 957. A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505.

III. DISCUSSION

Plaintiff Linda Finch brings claims against the School District pursuant to 1) 42 U.S.C. § 1983; 2) Title IX of the Education Amendments of 1972; 3) the Individuals with Disabilities Education Act, 20 U.S.C. § 1400-1419; and 4) Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Finch also brings causes of action against the School District for negligence and intentional infliction of emotional distress. The Court will address each in turn.

a. Plaintiffs § 1983 Claim

Finch proceeds against the School District pursuant to 42 U.S.C.A. § 1983, which provides, in relevant part:

Every person who, under color of any ... custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Section 1983 is a remedial statute. It "`is not itself a source of substantive rights but [rather] a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994)(quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). Finch alleges that as a result of the School District's conduct, her son was rendered vulnerable and subjected to a...