Hurry v. Jones

• Decision Date: 24 March 1983
• Docket Number: Civ. A. No. 78-0714.
• Citation: 560 F. Supp. 500
• Parties: George HURRY and Maureen Hurry, Parents, Guardians, and Next Friends of George Hurry v. Dr. Jerome B. JONES, Superintendent of Schools, Providence; James Healy, Supervisor of Public Transportation, Providence; Josephine DiRuzzo, Patrick O'Ragan, Mary Ross, Roberto Gonzalez, Diane Brosofski, Vincent DiNicola, and Joseph Duffy, Members of the Providence School Committee; Bernice Graser, John McKenna, Individually and in their official capacities.
• Court: U.S. District Court — District of Rhode Island

560 F. Supp. 500

George HURRY and Maureen Hurry, Parents, Guardians, and Next Friends of George Hurry v. Dr. Jerome B. JONES, Superintendent of Schools, Providence; James Healy, Supervisor of Public Transportation, Providence; Josephine DiRuzzo, Patrick O'Ragan, Mary Ross, Roberto Gonzalez, Diane Brosofski, Vincent DiNicola, and Joseph Duffy, Members of the Providence School Committee; Bernice Graser, John McKenna, Individually and in their official capacities.

Civ. A. No. 78-0714.

United States District Court, D. Rhode Island.

March 24, 1983.

COPYRIGHT MATERIAL OMITTED

Thomas A. Tarro, III, Providence, R.I., for plaintiffs.

Vincent J. Piccirilli, Providence, R.I., for defendants.

OPINION

FRANCIS J. BOYLE, Chief Judge.

This is a civil action in which plaintiffs seek reimbursement, money damages, costs, and attorneys fees for alleged violations of the Fifth and Fourteenth Amendments of the United States Constitution, 42 U.S.C. § 1983, the Education for All Handicapped Children Act of 1975, and the Rehabilitation Act of 1973. Jurisdiction is asserted under 28 U.S.C. §§ 1331, 1343, 2201, 2202, and 42 U.S.C. § 1983. In addition, Plaintiffs have urged this Court to exercise pendent jurisdiction over a related state claim based on violations of Article 12, Section 1 of the Constitution of the State of Rhode Island, R.I.Gen.Laws §§ 16-24-1, -4, -11, and applicable regulations promulgated under these statutes.

Plaintiffs are George and Maureen Hurry, the parents and next friends of George Hurry, a minor. Defendants are Dr. Jerome B. Jones, Superintendent of Schools for the City of Providence; James Healy, Supervisor of Public Transportation for the City of Providence; Josephine DiRuzzo, Mary Ross, Patrick O'Ragan, Roberto Gonzalez, Diane Brosofski, Vincent DiNicola, and Joseph Duffy, as Members of the Providence School Committee; John McKenna, Segment Administrator for Special Education of the Providence School Department and Bernice Graser, his Administrative Assistant.

George Hurry hereinafter George is a physically and mentally handicapped child as defined by both federal and state law. George has cerebral palsy, evidence of spastic quadriplegia, and a degree of mental retardation. He is confined to a wheelchair, and according to medical testimony will never be ambulatory. He will probably need some physical therapy for the rest of his life due to his spastic muscle condition, and he needs occupational therapy in order to develop self-help skills in activities of daily living.

George was born on October 21, 1966. From the time he was three to four years old to the present, he has been placed in various special education programs at Pleasant View School, Meeting Street School, Cranston Center for the Retarded, and The Learning Center, Inc. Prior to January of 1976, the City of Providence provided assistance to George from the entrance of his home to the school bus, and transportation to and from school. Bus drivers for the school department would carry George from the front door of his home down approximately twelve steps to the street level and into the bus. By January of 1976, however, George had gained weight and was so heavy (160 lbs.) that the bus drivers would no longer carry him. In addition to the child being overweight, the concrete steps were steep and cracked in some places, making it somewhat unsafe for anyone to attempt to carry George down to the street. As a result, Mr. and Mrs. Hurry made what arrangements they could in order to transport George to school in 1976 and 1977. Mr. Hurry, who was attending college until April of 1976, would carry George from their home to his van at approximately 7:30 every morning. Mr. or Mrs. Hurry would then drive George to school. At the end of each school day, the Hurrys would return to the school, bring George home, and lift him out of the van and up the stairs to the house.

In June of 1976, Mr. Hurry was able to find employment, which required that he work from approximately 7:30 a.m. to 5:15 p.m. each day. This change in circumstances caused further complications with George's transportation to and from school. Mrs. Hurry could not lift George in and out of the van without assistance. According to the Hurrys' testimony at trial, someone on the school premises helped lift George in and out of the van before and after his classes. In the afternoons, however, George and his mother would drive to Mr. Hurry's place of employment, where they had to wait several hours until he could leave work. They would then drive home together where Mr. Hurry would lift George out of the van and up the stairs. During the summer and winter months, George frequently did not attend school because it was either too hot or too cold for him to wait in the van for his father each afternoon.

In December of 1977, Mr. and Mrs. Hurry stopped transporting George to school altogether. They testified that George began to complain of pain in his legs as a result of sitting in the van every afternoon. In addition, he started crying in the van, and having difficulty sleeping at night.

The Hurrys testified that they began calling the Providence School Department in 1976, and had numerous conversations with Defendants John McKenna and Bernice Graser of the Special Education Department in an effort to resolve George's transportation problem. In a memorandum to Mr. McKenna dated September 14, 1978, Ms. Graser acknowledged that she had been aware of the situation for over a year and that the Hurrys had been very patient with the school department until then. She described her efforts to involve community agencies and the Mayor's office in constructing a wheelchair ramp for George, and indicated that the Rhode Island Protection and Advocacy System hereinafter RIPAS had become involved in trying to help the Hurrys.

Although there was much discussion, a wheelchair ramp for George was not constructed by the Mayor's office allegedly due to a number of liens on the Hurry property. Attorneys from RIPAS had by now embarked upon a course of conferences and correspondence with the Providence School Department. On September 15, 1978, RIPAS Legal Assistant David Allen requested a hearing from the School Department. The School Department did not respond to this request within the statutory time limit, and this lawsuit was filed by RIPAS on behalf of the Hurrys and their son George on December 19, 1978. At that time, George had not been to school for more than a year.

Due to a number of problems, and allegedly the liens on the Hurry property, the wheelchair ramp was not built. RIPAS, the Hurrys, and the School Department developed a mutually acceptable alternative plan, however, and as of October 29, 1979 this claim was resolved as to the Plaintiffs' claim for injunctive relief. George returned to school pursuant to an Individual Educational Program developed for him by the Special Education Department of the Providence Public Schools on May 2, 1979.

On November 15, 1979, the Hurrys' family attorney entered an appearance in the case, and on November 26, 1979, RIPAS withdrew as named Plaintiff in the action. In light of the intransigent manner in which the Providence School Department mishandled George's transportation problem, and the fact that George did not attend school at all from January of 1978 to June of 1979, the Hurrys have pursued their claim for damages for the period of time from September, 1977 through June, 1979. They base their claim for damages on 20 U.S.C. § 1415(e)(2) (1976), 29 U.S.C. § 794 (Supp. V 1981), 42 U.S.C. § 1983 (1976), the Fifth and Fourteenth Amendments of the United States Constitution, Section 1 of Article 12 of the Constitution of Rhode Island, and Title 16, Chapter 24 of the General Laws of Rhode Island.

Plaintiffs claimed damages under the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6001-6081 (1976) claiming generally that the Defendants had violated George's rights under the Act. Plaintiffs did not allege any specific violation of the Act in either their pre-trial or post-trial memorandum of law, and they now concede that damages are not recoverable under the Developmentally Disabled Assistance and Bill of Rights Act in light of the decision of the Supreme Court in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), and the United States District Court, District of New Hampshire, in Garrity v. Gallen, 522 F.Supp. 171 (D.N.H.1981).

Next, Plaintiffs seek damages pursuant to the Education for All Handicapped Children Act EAHCA, which provides that in order for a State to qualify for assistance under the Act, "a State shall demonstrate to the Commissioner that ... the State has in effect a policy that assures all handicapped children the right to a free appropriate public education." 20 U.S.C. § 1412(1). Plaintiffs contend that George was deprived of a free appropriate education as guaranteed by the special education laws because the Providence School Department did not provide transportation to and from school for George from January of 1976 to June of 1979. Clearly, Plaintiffs' contentions are supported by the evidence. The Defendants completely failed to carry out their unambiguous responsibilities to George under state and federal law. The significant issue is whether § 1415(e)(2) of the EAHCA, which authorizes the court to "grant such relief as ... is appropriate," entitles Plaintiffs to damages for personal suffering, and reimbursement for the costs his parents incurred in transporting George to and from school.¹

In order to maintain a claim under the EAHCA, Plaintiffs must first establish that they have exhausted the administrative remedies created under the Act or that exhaustion would have been futile, wasteful of resources, harmful to the litigants, or that the controversy involved purely a matter of law. Ezratty v. Puerto Rico, 648 F.2d 770, 774 (1st Cir.1981).

In this...