H.M. v. Bd. of Educ. of the Kings Local Sch. Dist.

• Decision Date: 03 August 2015
• Docket Number: CASE NO.: 1:14–cv–64
• Citation: 117 F.Supp.3d 992
• Parties: H.M., a minor by and through her guardian and next of friends, M.M. and A.M., et al., Plaintiffs, v. Board of Education of the Kings Local School District, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

117 F.Supp.3d 992

H.M., a minor by and through her guardian and next of friends, M.M. and A.M., et al., Plaintiffs,

v.Board of Education of the Kings Local School District, et al., Defendants.

CASE NO.: 1:14–cv–64

United States District Court, S.D. Ohio, Western Division.

Filed August 3, 2015

Christopher P. Finney, Bradley Michael Gibson, Finney Law Firm, LLC, Curt Carl Hartman, Richard Ganulin, Cincinnati, OH, for Plaintiffs.

Ralph Gary Winters, Ian R. Smith, McCaslin, Imbus & McCaslin, Cincinnati, OH, Beverly Ann Meyer, Cooper, Gentile & Washington Co., Dayton, OH, for Defendants.

OPINION AND ORDER

MICHAEL R. BARRETT, District Judge

This matter is before the Court on the Motion to Dismiss of Defendants Kings Local School District Board of Education, Jerry Gasper, and Shelley Bogaert (collectively, "Defendants"). (Doc. 17). Plaintiffs filed a response in opposition (Doc. 20) and subsequently filed an amended response in opposition (Doc. 26). Defendants have filed a reply. (Doc. 23).

I. GENERAL OVERVIEW

The basic facts, as alleged in the First Amended Complaint (Doc. 14) and construed in favor of Plaintiffs, are as follows.

Plaintiffs are five multi-handicapped children and their parents and guardians. (Doc. 14, PageId 214). Plaintiff H.M. has the physical condition of CDG la (Cogential Disorders of Glycosylation), as well as the physical condition of cerebellar hypoplasia, which is characterized by symptoms of reduced muscle tone, poor fine motor skills, and intellectual disability. (Id., PageId 218–19). She uses a Rifton walker and ankle-foot orthotic for mobility as well as a Rifton Compass Chair for bodily support. (Id., PageId 219). S.P. is a child with Down Syndrome, severe childhood apraxia of speech, severe receptive and expressive language disorders, and other delays. (Id., PageId 225). M.J. has cerebral palsy, and significant challenges with respect to cognition, communication, fine and gross motor skills, adaptive needs, and other delays. (Id.). D.A. has multiple disabilities that present challenges in the areas of communication, fine and gross motor skills, adaptive skills, and other delays. (Id.). J.K. has cerebral palsy, a seizure disorder, and various developmental delays. (Id.).

The five children were students in Defendant Amanda Kitcho's classroom at Columbia Elementary School, a school operated by the Board of Education of the Kings Local School District. (Id., PageId 216–18, 220, 225). Plaintiffs have alleged that Kitcho physically and/or emotionally abused each of the five multi-handicapped children in a variety of ways without any pedagogical purpose while they were in her classroom.¹ For example, Kitcho often screamed at H.M. and told H.M. she "hated" her, forced H.M. to crawl to the bathroom and elsewhere, despite her known medical need to use her Rifton Walker at all times, secluded H.M. in the bathroom (a/k/a "the torture chamber") and continued to scream at her, walled H.M. off from the classroom to isolate her, provoked H.M. into escalating behaviors, threatened to take her possessions, and deprived her of rewards. (Id., PageId 220–22). On one occasion, Kitcho allowed H.M. to attend the library without an aide, which resulted in H.M. falling and hitting her head. (Id., PageId 222). Kitcho also frequently put H.M. in the bathroom in her seatbelted Rifton Compass Chair, closed the door, and left her there for "periods of time for punitive reasons unrelated to any possible pedagogical purpose" while H.M. cried and screamed. (Id.). When H.M. learned how to unbuckle her seatbelt and crawl to the bathroom door to try to get back into the classroom, Kitcho would stand in front of the door and prevent her from exiting. (Id., PageId 223). One day, Kitcho put duct tape on the seatbelt of the Rifton Compass Chair to make it impossible for H.M. to break free, slid H.M. into the bathroom, and left her in the chair, crying and screaming, for a significant period of time. (Id., PageId 223). H.M. also screamed that she had to go to the restroom. (Id.).

With respect to S.P., M.J., D.A., and J.K., Kitcho also is alleged to have physically and/or emotionally abused them without a pedagogical purpose. (Id). Some conduct included startling them into escalating behaviors, throwing possessions into the trash, walling them off behind dividers, depriving them of snacks, taking food from their lunches, making S.P. stand in front of the class for extended periods of time, physically turning M.J. for no reason, and depriving them of and/or intentionally ignoring their basic needs. (Id., PageId 221, 225–26). Other conduct of Kitcho included intentionally knocking a table into the mouth of a student, pushing a student during a camp outing, and pushing another student at school in front of other children. (Id., PageId 226).

All of the children are alleged to have displayed severe regressive behaviors while in Kitcho's classroom. (Id., PageId 226–27).

The children's parents were not informed of Kitcho's conduct while it was ongoing even though multiple individuals purportedly were aware that such behavior was occurring. (Id., PageId 228–30). Defendant Bogaert, the assistant principal of Columbia at the time who eventually became the principal for portions of the relevant period, is alleged to have entered Kitcho's classroom on at least one occasion when H.M. was isolated in the bathroom crying and screaming to be let out. (Id., PageId 224, 227). Rather than intervene, she exited the classroom, allowing Kitcho's conduct to continue that day and beyond. (Id.).

Several aides in Kitcho's classroom expressed concerns about Kitcho's conduct to the principals, who allegedly have "final authority to remedy the problem." (Id., PageId 227–29). Prior to the 2010–2011 school year, two aides approached Defendant Gasper, the principal at the time, with concerns about Kitcho's adverse treatment of her students. (Id., PageId 229). Defendant Gasper allegedly responded that Kitcho "went to college for this; she knows what she's doing; you're just the aide so you kind of follow the lead...." (Id.). A teacher's aide in Kitcho's classroom also "repeatedly reported" Kitcho's conduct to various principals at Columbia. (Id., PageId 223, 227). Plaintiffs allege that Defendant Gasper advised that aide not to worry about Kitcho's conduct. (Id., PageId 227). That teacher's aide eventually resigned her position and told the then-principal at Columbia, Defendant Bogaert: "I no longer want to feel ashamed that I went to work and watched kids being mistreated. My lead teacher [Kitcho] goes against everything that we learn each summer at our aide training and lacks all the qualities that are found in a decent and caring teacher." (Id, PageId 228). Defendant Bogaert provided the information to Kings' Superintendent Valerie Browning who expressed concern about the resignation. (Id., PageId 233). A second teacher's aide in Kitcho's classroom also reported to the principals that Kitcho treated H.M. inappropriately in different ways. (Id., PageId 228).

The Columbia librarian likewise complained regularly to the principals that students in Kitcho's classroom were not being properly treated and supervised. (Id.). A Kings' teacher also opined that Defendant principals did not want to hear anything more when she informed them how Kitcho treated the multi-handicapped students in the years prior to H.M.'s placement in Kitcho's classroom. (Id.).

Plaintiffs allege that Defendants refused to act despite having notice of Kitcho's conduct until several events occurred: (1) the persistent teacher's aide who resigned on January 6, 2012 threatened to take the information about Kitcho to the district superintendent, the board of education, and the media; (2) the teacher aide's husband wrote a letter to Kings Superintendent Valerie Browning within a week of that resignation demanding action; and (3) the teacher aide's husband personally met with the Kings Board of Education about the issues and demanded they be addressed, in response to which the Board adjourned into executive session rather than allow a public airing of the matter. (Id., PageId 230).

Following those events, Kings conducted several depositions of various staff and administrators, which were attended by Kings' counsel, the deponent, at least one union representative representing Kitcho, and the Assistant Superintendent. (Id., PageId 230–31). Neither the administration nor any Kings personnel reported the alleged abuse by Kitcho to law enforcement authorities until the librarian reported it to the Warren County Sheriff's Office on or about February 3, 2012. (Id., PageId 231). From February 9, 2012 through the end of March 2012, the Child Abuse Unit of the Warren County Sheriff's Office conducted its investigation. (Id.).

The Warren County Prosecutor's Office later determined it would not criminally indict Kitcho for felony charges or criminally prosecute Kings administrators for their failure to report the alleged abuse as required by Ohio Rev.Code § 2151.421.(Id.). While Kitcho thereafter was permitted to resign with a severance payment, no negative reference, and a favorable letter of recommendation, no administrator at Kings was reprimanded for the failure to timely report the alleged abuse. (Id., PageId 232–33). The Ohio Department of Education also initiated an investigation. (Id., PageId 232).

The children's parents contend they were not informed of Kitcho's conduct while it was ongoing or while it was being investigated. (Id., PageId 228–30, 233). Kings has a policy that expressly forbids school employees from informing the parents or legal guardians of any child suspected of being abused. (Id., PageId 234). The parents assert that they were falsely told by Defendant Bogaert that Kitcho was out on leave after she had been permitted to resign, that S.P.'s parents later were told falsely by Defendant Bogaert that Kitcho's conduct was not the reason she allowed her to resign with pay, and that S.P.'s parents were...