Heidemann v. Rother
| Decision Date | 01 July 1996 |
| Docket Number | 95-1136,Nos. 94-4112,s. 94-4112 |
| Citation | 84 F.3d 1021 |
| Parties | Cherry HEIDEMANN, a minor child, June Heidemann, mother and next friend, Nebraska Advocacy Services, Inc., a Nebraska Corporation, Appellees, v. Thomas L. ROTHER, individually and in his official capacity as the Superintendent of Schools for Tecumseh Public Schools; Colleen S. Naber, individually and in her official capacity as the Special Education Administrator for Tecumseh Public Schools; Donna Defreece, individually and in her official capacity as Special Education Teacher for Tecumseh Public Schools; Robyn Faris, individually and in her official capacity as Special Education Teacher for Tecumseh Public Schools; Linda Stone, individually and in her official capacity as Special Education Aide for Tecumseh Public Schools; Kathy Philippi, individually and in her official capacity as Special Education Aide for Tecumseh Public Schools; Karen Casey, individually and in her official capacity as Special Education Aide for Tecumseh Public Schools; Joe Grof, individually and in official capacity as member of School Board for Tecumseh Public Schools; Stacey Goodrich, individually and in official capacity as member of the School Board for Tecumseh Public Schools; Carla Meints, individually and in official capacity as member of the School Board for Tecumseh Public Schools; Rosemary Pella, individually and in official capacity as member of the School Board for Tecumseh Public Schools; Judy Vance, individually and in official capacity as member of the School Board for Tecumseh Public Schools; Howard Buethe, individually and in official capacity as member of the School Board for Tecumseh Public Schools; Tecumseh Public Schools, of Johnson County, Nebraska; Appellants. Sharon Joy, individually, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Brien M. Welch, Omaha, NE, argued (Terry J. Grennan, Omaha, NE, on the brief), for appellants Thomas L. Rother, et al., in No. 94-4112.
J. Michael Coffey, Omaha, NE, argued, for Sharon Joy in No. 95-1136.
Tania Diaz, Lincoln, NE, argued (Bruce G. Mason, Omaha, NE and Shirley Mora James Lincoln, NE, on the brief), for appellees in Nos. 94-4112 and 95-1136.
Before WHITE, Associate Justice (Ret.), * and McMILLIAN and LOKEN, Circuit Judges.
This civil action was brought pursuant to 42 U.S.C. § 1983 by Cherry Heidemann (hereinafter Cherry), a minor, along with her mother, June Heidemann, and Nebraska Advocacy Services, Inc. (collectively plaintiffs), alleging violations of Cherry's constitutional rights to due process and equal protection and federal statutory rights under the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. (formerly the Education of the Handicapped Act (EHA)). The case is presently on interlocutory appeal from two collateral orders filed simultaneously by the district court on December 9, 1994. In the first order, the district court denied a motion for partial summary judgment on qualified immunity grounds brought by all but one of the defendants, including: the Tecumseh Public Schools, a/k/a School District # 49-0032 of Johnson County, Nebraska (the District); various individuals employed by the Tecumseh Public Schools, sued in their individual and official capacities; and members of the board of education of the Tecumseh Public Schools, sued in their individual and official capacities (collectively the school defendants). Heidemann v. Rother, No. 8:CV93-540 (D.Neb. Dec. 9, 1994) (Heidemann I ). In the second order, the district court denied a motion for partial summary judgment based on qualified immunity and other grounds brought by the remaining defendant, Sharon Joy, a licensed physical therapist whom plaintiffs sued individually because she provided services to Cherry under a contract with the Tecumseh Public Schools. Id. (Heidemann II ). For reversal, all of the defendants, including Joy, argue that they are entitled to qualified immunity as a matter of law because plaintiffs have failed to allege a violation of any clearly established constitutional or federal statutory rights. Upon careful de novo review, and for the reasons discussed below, we reverse the orders of the district court and remand the case for further proceedings.
Cherry is a nonverbal, mentally and physically disabled girl who was nine years old at the time this action was filed, but functioned at approximately a one-year-old level. Joint Appendix at 331. Her disabilities include severe mental retardation, visual and hearing impairment, epilepsy, and learning disabilities. Prior to October 1993, she was enrolled in the District's special education programs. She attended school in the nearby School District of Elk Creek, Nebraska, which contracted with the District to provide special services to Cherry.
At times, Cherry's teachers used a treatment on her referred to as "blanket wrapping." The blanket wrapping involved binding her body with a blanket such that she could not use her arms, legs, or hands. Defendant Joy, a licensed physical therapist who operated under a contract with the District to provide physical therapy and related services to special education students, recommended the use of the blanket wrapping technique for Cherry. According to defendant Joy's affidavit, she
recommended for the years 1992/1993 and 1993/1994 that the Tecumseh Public School educators of Cherry Heidemann consider blanket wrapping to provide said Cherry Heidemann with security and comfort and that the use of this treatment would also provide said Cherry Heidemann with warmth and stability and would have a calming effect on her.
Joint Appendix at 121. Plaintiffs agree that defendant Joy recommended the use of the blanket wrapping technique. Brief for Appellees at 44.
Defendants maintain that the blanket wrapping was therapeutic and calmed Cherry by giving her a sense of warmth and security. They allege that sometimes Cherry would fall asleep while blanket wrapped because it calmed her. Defendants further claim that June Heidemann approved the use of blanket wrapping for Cherry and never voiced any objections to its use until on or about October 18, 1993, approximately one week before she removed Cherry from the District's special education programs.
Plaintiffs, by contrast, allege that the blanket wrapping was used as a means of physical restraint. They allege that it was administered as a substitute for educational and habilitative programming, merely for defendants' convenience. They allege that Cherry was wrapped against her will for periods of one and a half hours or more. On October 6, 1993, June Heidemann allegedly found Cherry blanket wrapped on the floor, with flies crawling in and around her mouth and nose 1; the blanket was so tightly wrapped, according to June Heidemann, that she needed assistance to remove it. She allegedly did not know that the blanket wrapping was being used in this manner. One week later, June Heidemann again found Cherry blanket wrapped on the floor and was again unable to remove the blanket without assistance. Shortly thereafter, June Heidemann removed Cherry from the Tecumseh public school system and enrolled her elsewhere.
Plaintiffs filed this § 1983 action in federal district court alleging that each of the defendants was directly or indirectly responsible for Cherry's blanket wrapping treatment and, accordingly, violated her constitutional rights to substantive and procedural due process and equal protection (among other constitutional rights) and her federal statutory rights under the IDEA and the Rehabilitation Act. The school defendants and defendant Joy separately filed motions for partial summary judgment seeking qualified immunity for their actions. In denying each of the two motions, the district court stated: Heidemann I, slip op. at 1; Heidemann II, slip op. at 2. The school defendants and defendant Joy separately appealed, and this court consolidated their appeals for purposes of oral argument. We now reverse the orders of the district court and remand this case to the district court for further proceedings consistent with this opinion.
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