G.C. v. School Bd. of Seminole County, Florida, Case No. 6:07-cv-808-Orl-28GJK.

• Decision Date: 10 June 2009
• Docket Number: Case No. 6:07-cv-808-Orl-28GJK.
• Citation: 639 F.Supp.2d 1295
• Parties: G.C., a minor, by Denise Marie COSCO, his next friend, mother, and natural guardian, Plaintiff, v. The SCHOOL BOARD OF SEMINOLE COUNTY, FLORIDA and Kathleen Mary Garrett, Defendants.
• Court: U.S. District Court — Middle District of Florida

639 F.Supp.2d 1295

G.C., a minor, by Denise Marie COSCO, his next friend, mother, and natural guardian, Plaintiff, v. The SCHOOL BOARD OF SEMINOLE COUNTY, FLORIDA and Kathleen Mary Garrett, Defendants.

Case No. 6:07-cv-808-Orl-28GJK.

United States District Court, M.D. Florida, Orlando Division.

June 10, 2009.

COPYRIGHT MATERIAL OMITTED

Michael Ciocchetti, Theodore R. Doran, Doran, Wolfe, Ansay & Kundid, Daytona Beach, FL, for Plaintiff.

Ramon Vazquez, Walter A Ketcham, Jr., Grower, Ketcham, Rutherford, Bronson, Eide & Telan, PA Charissa McIntosh, Thomas F. Egan, PA, Darryl L. Gavin, Lauren Fackender Carmody, Rumberger, Kirk & Caldwell, PA, Orlando, FL, J. Richard Caldwell, Jr., Rumberger, Kirk & Caldwell, PA, Tampa, FL, for Defendants.

ORDER

JOHN ANTOON, II, District Judge.

Kathleen Garrett ("Garrett") was tried in state court on charges of abusing autistic students in her middle school class.¹ In the instant civil action,² one of her former students, G.C., asserts a claim against Garrett under 42 U.S.C. § 1983 (Count II), alleging that Garrett deprived him of his "constitutional civil rights and his Fourteenth Amendment due process liberty interest." (Am. Compl., Doc. 43, ¶ 49). Additionally, G.C. asserts claims against the School Board of Seminole County (the "School Board"), alleging two counts: § 1983 (Count I) and a state-law claim for negligence in hiring, supervision, and retention (Count III). (Id. ¶¶ 39, 56-70). Before the Court is Garrett's Motion for Summary Judgment (Doc. 81) and the School Board's Motion for Summary Judgment (Doc. 79).

I. Facts³

G.C. was born on December 30, 1988 and lived in Maryland until moving to Florida in 2000. (Doc. 93 at 5). During the 2001-2002 and 2002-2003 school years, G.C. was a special education student in Garrett's class at South Seminole Middle School ("South Seminole"). (Id.). In the Amended Complaint, Plaintiff alleges that Garrett subjected G.C. to various acts of physical, emotional, and psychological abuse and that he witnessed the severe conduct that Garrett directed towards his fellow classmates, much of which has been documented elsewhere, see J.V. ex rel. L.O. v. Seminole County Sch. Bd., No. 6:04-cv-4889, Doc. 164 (M.D. Fla. filed Mar. 21, 2007), resulting in emotional and psychological trauma to G.C. (Am. Compl. ¶¶ 32-33). Garrett was removed from South Seminole in October 2004—approximately eighteen months after G.C. last attended class with Garrett—due to the allegations of abuse which resulted in Garrett's eventual arrest and prosecution.

G.C.'s mother, Denise Cosco ("Mrs. Cosco"), first noticed that G.C. was not developing properly when he was approximately three or four months old. (Cosco Dep. at 10). G.C. was later diagnosed with having autistic features at the age of two, (id. at 11), and formally diagnosed with Pervasive Developmental Delay and Attention Deficit Disorder at the age of five, (Ex. B to Doc. 81, at 1). Despite his developmental disability, G.C. has been described by his mother as "verbal" and capable of carrying on a conversation. (Cosco Dep. at 28).

In the Amended Complaint, Plaintiff claims that Garrett physically and emotionally abused G.C. in a myriad of ways, including "routinely strik[ing] G.C. on the knees, leaving bruises," (Am. Compl. ¶ 33(a)), "physically grab[bing] G.C., forcing him face first into a brick wall while ordering he [sic] `lick the bricks,'" (id. ¶ 33(c)), "routinely curs[ing] at G.C.," (id. ¶ 33(d)), and "physically hurt[ing] G.C. many times, leaving bruises on his arms and side," (id. ¶ 33(e)).⁴ Plaintiff also claims that G.C. suffered psychological abuse as a result of witnessing numerous acts of Garrett's abuse and intimidation upon G.C.'s classmates.⁵

Mrs. Cosco alleges that Garrett's conduct caused G.C. to regress, to become more aggressive towards adults and authority figures, and to suffer long-term emotional and psychological trauma. (Cosco Dep. at 51; Am. Compl. ¶ 34). Plaintiff offers the reports of expert witnesses Deborah O. Day, Psy.D.; Bennett Leventhal, M.D.; and Catherine Trapani, Ph.D. in support of her claim that Garrett's conduct had a negative impact upon G.C.'s behavior.

In the allegations against the School Board, G.C. contends that the School Board had actual or constructive knowledge of Garrett's propensity to use excessive force because there were complaints of abuse against her at Indian Trails, the school she taught in before she was transferred to South Seminole.⁶ Thus, G.C. contends that the School Board was on notice of the risk that Garrett posed to students, the disregard of which equates to reckless and deliberate indifference to G.C.'s substantive due process rights.

Despite Plaintiff's claims that G.C. regressed and developed problems with authority figures as a result of Garrett's alleged abuse, G.C.'s various behavioral problems prior to enrolling at South Seminole have been well documented. While in preschool, it was noted that G.C. was "highly distractable, self directed, and impulsive," "often unable to control impulsive behaviors," and "unaware of dangerous situations." (Ex. A to Doc. 81, at 2). In 1994, G.C. was documented as "difficult to handle at home" and "impulsive . . . and will dash off quickly without warning." (Ex. B to Doc. 81, at 1). A 1994 Social and Developmental Assessment conducted by Rockaway Township Public Schools Child Study Social Team described G.C. as "impulsive at times" and noted that G.C. had begun to swear in inappropriate situations. (Ex. C to Doc. 81, at 3). Because G.C. walked on desks in the classroom and engaged in destructive behavior in his room when sent there for punishment, G.C. began treatment at Kennedy Krieger Institute in May 1996. (Cosco Dep. at 19-20). Dr. Elaine Tierney of the Kennedy Krieger Institute reported that G.C. "has no self-injurious behavior," is "rarely aggressive to others," "will scream, stomp and verbally lash out and will curse," and "previously used to hit individuals but no longer does this." (Ex. D to Doc. 81, at 6). Dr. Tierney also noted that G.C. would "elope" and that "[h]is parents have to be extremely careful or he will run away . . . and possibly run into traffic." (Id.). A February 1997 Educational Assessment Report by the Howard County Public School System noted that G.C. displayed an "increase in aggressive behaviors . . . and a regression in academics" since November 1996. (Ex. E to Doc. 81, at 8). The report also documented that G.C. tended to "hit, kick, bite and throw property." (Id.). G.C.'s 1999 Personalized Student Plan from Worthington Elementary states that "[o]ther than a few incidents of kicking at his adult supervisor," G.C. had not been aggressive towards either staff or students during the 1998-1999 school year and that G.C. needed to be "closely supervised" to keep him from running off the playground. (Ex. F to Doc. 81, at 1). After arriving in Florida, G.C. received an Individual Education Plan from Exceptional Student Support Services that defined specific goals for G.C., including the reduction of "running away" episodes and disruptive vocalizations. (Ex. G to Doc. 81, at 1).

Despite Plaintiff's numerous allegations, the only admissible evidence to support the claims of abuse consists of bruising found on G.C.'s knees, the deposition testimony of Sabina Nowik ("Nowik"), Garrett's teacher's aide during the 2001-2002 school year and a portion of the 2002-2003 school year, and G.C.'s statements to Dr. Roy H. Lubit during a court-ordered independent medical exam.⁷

Plaintiff provides evidence of one instance of physical injury to G.C. allegedly caused by Garrett. Mrs. Cosco described one incident where G.C. returned from school with "red and slightly swollen knees" that left bruises that took approximately one week to fade. (Cosco Dep. at 32, 65-66). Though unsure of the date, Mrs. Cosco believes that the incident happened during the 2001-2002 school year. (Id. at 63). When Mrs. Cosco questioned Garrett about G.C.'s bruised knees, Garrett told her that G.C. banged his knees against the door and stated "you know how these children are." (Id. at 30). Mrs. Cosco also spoke with Assistant Principal Josephine Opisso, who confirmed Garrett's story that G.C.'s had probably injured himself. (Id.). Mrs. Cosco never took G.C. to see a doctor regarding the bruises, never bandaged G.C.'s knees in any manner, and never noticed any scabbing on the knees.⁸ (Id. at 32). Plaintiff provides no evidence that the injury to G.C.'s knees was caused by any abusive conduct of Garrett.⁹

Plaintiff also provides the deposition testimony of Nowik in support of her opposition to Garrett's motion for summary judgment. Though Nowik admits that she and G.C. were rarely in Garrett's classroom,¹⁰ she does provide additional details of the interactions between Garrett and G.C. (Nowik Dep. at 30). Regarding the allegations of verbal abuse by Garrett, Nowik claims that Garrett would "yell at G.C." at the bus stop, but she clarifies that she felt that this was not done "to put them down, hurt them or anything like that, it was more corrective verbal than anything. It was more I told you to do this, more commanding verbal instead of . . . stupid, and stuff like that. She wasn't a name caller or anything." (Id. at 32, 34). During the limited time that Nowik and G.C. were both present in Garrett's classroom, Nowik recalls no use of profanity in the presence of G.C. (Id. at 64-65).

Nowik also details Garrett's physical restraint of G.C. on several occasions. (Id. at 77). Without describing Garrett's reason for the restraint, Nowik states that Garrett on several occasions "had to put [G.C.'s] arms behind him and walk him out" of the cafeteria. (Id.). Additionally, Nowik describes the need to restrain G.C. at times because G.C. "was a runner." (Id. at 87). At the bus stop, Garrett would sit next to G.C. and place her leg over his legs to keep him next to her when he "was in the running mood." (Id. at 77,...