IK EX REL. EK v. SYLVAN UNION SCHOOL DIST.

Decision Date20 January 2010
Docket NumberNo. 09-CV-01115-OWW-SMS.,09-CV-01115-OWW-SMS.
Citation681 F. Supp.2d 1179
PartiesI.K., by and through his parents and guardians E.K. and M.K., and E.K. and M.K. individually, Plaintiffs, v. SYLVAN UNION SCHOOL DISTRICT, Tracy Barries, in his individual and official capacity and Russ Antracoli, in his individual and official capacity, Defendants.
CourtU.S. District Court — Eastern District of California

Tamara Lynn Loughrey, Justin Daniel Arnold, Robert Lawrence Woelfel, Loughrey & Associates, Oakland, CA, for Plaintiffs.

Amy Rose Levine, Miller Brown & Dannis, San Francisco, CA, for Defendants.

MEMORANDUM DECISION AND ORDER RE: DEFENDANTS' MOTION TO STAY PROCEEDINGS (Doc. 11)

OLIVER W. WANGER, District Judge.

I. INTRODUCTION

The parents of "I. K.," a minor child and former student in the Sylvan Union School District, initiated this federal lawsuit months after they filed a state court lawsuit in Stanislaus County Superior Court. Before the court is a motion to stay brought by Defendants Sylvan Union School District ("SUSD" or "School District"), Tracy Barries and Russ Antracoli (collectively, "Defendants"). Defendants request a stay of this federal lawsuit while the state court lawsuit proceeds. The following background facts are taken from the parties' submissions in connection with the motion and other documents on file in this case.

II. BACKGROUND
A. State Court Lawsuit

On March 25, 2009, I.K.'s parents filed a civil lawsuit against Defendants SUSD, Barries and Antracoli in Stanislaus County Superior Court. Defendants filed a demurrer to the original complaint. In response to the demurrer, on June 22, 2009, Plaintiffs filed a first amended complaint (Doc. 13, Ex. A) which is now the operative state court pleading.

1. General Allegations Of The State Court Complaint

a. The Parties

I.K., born December 5, 1995, is a student with a disability, autism. At all relevant times I.K. was a student at Mary Ann Sanders Elementary School, a school in the SUSD. Defendant SUSD is a public school district in California. Defendant Barries is a learning assistant formerly assigned to I.K. and employed by the School District. Defendant Antracoli is the principal of Mary Ann Sanders Elementary School.

b. Background On I.K. And His Autism

I.K. was born and resided in Finland until July 2005 when he and his family moved to Modesto, California. While in Finland, I.K. was diagnosed with Attention Deficit Hyper Disorder and prescribed medication.

In September 2005, I.K. began schooling in the SUSD in a special education class. On September 21, 2006, a physician diagnosed I.K. with autism. As part of I.K.'s autism, he exhibited several maladaptive behaviors in the school setting including noncompliance with authority and temper tantrums. To address these behaviors, a Board Certified Behavior Analyst ("BCBA") with Genesis Behavior Services conducted a Functional Behavioral Assessment ("FBA") of I.K. At the behest of the School District, this analyst also wrote a Behavior Support Plan ("BSP") for I.K. The BSP contained preventive techniques such as "Don't reinforce maladaptive behavior." On March 5, 2007, the BSP was presented at an Individualized Education Program ("IEP") meeting. On March 13, 2007, I.K.'s parents agreed to implementation of the plan.

On May 12, 2008, Genesis developed an additional BSP for I.K.'s non-compliant behavior. This BSP called for certain consequences if I.K. exhibited non-complaint behavior including withholding preferred items and positive attention. Genesis also developed a BSP for I.K.'s aggressive behaviors.

c. I.K.'s Behavior In The 2008-09 School Year

During the start of the 2008-09 school year, I.K. was introduced to his learning assistant, Barries, who was supposed to be trained for roughly 30 hours on behavior intervention techniques by Genesis Behavior Center, Inc. Barries, however, only received between 25-28 hours of training. Genesis was called multiple times to re-train Barries on how to implement I.K.'s BSPs and how to work with I.K. The complaint specifies various incidents involving I.K.'s behavior and Barries's response.

i. The Mrs. Forcade Incident

At the start of the 2008-09 school year, Antracoli and Mrs. Forcade, I.K.'s then former 4th grade teacher, gave I.K. advance permission to visit Forcade and "say hello." On August 7, 2008, when I.K. tried to visit Forcade's classroom to say hello, Barries stated that I.K. could not do so and blocked the entryway into Forcade's classroom. I.K. became very upset. I.K. spit on and hit Barries who then grabbed and restrained I.K.

ii. The School Assembly Incident

SUSD contracts with the Stanislaus County Department of Education ("SCOE") to provide autism and behavior services and assessments for the School District's students. On August 28, 2008, Deb Brown, autism specialist from SCOE and Patty Giron, an "inclusion teacher" from SCOE, conducted an observation and assessment of I.K. Brown and Giron were under contract with SUSD to perform the observation and assessment.

During Brown and Giron's visit they assisted Barries in removing I.K. from his classroom to a school assembly. They held I.K.'s wrists and forced him to walk. I.K. became very upset by these actions and was unable to express his desire to be freed. I.K. attempted to break out of the hold, and spat and yelled at his captors, but they continued to restrain him. I.K. escaped their grasp and put water on Brown and Giron with his water bottle. I.K. then took off his shirt. Brown and Giron instructed I.K. to put on his shirt but he refused and took off his pants as well. Brown and Giron instructed I.K. to go the bathroom and get dressed, which he did. I.K.'s mother was contacted to pick up I.K. from school. According to Barries's behavioral log, I.K.'s episode resulted in a suspension. I.K.'s parents, however, never received a formal suspension form from the School District and I.K. returned to school the next day.

In a September 10, 2008, letter addressed to I.K.'s parents, Antracoli stated "we are working with Genesis to revise the current BSP, and have the authority to do a Functional Behavioral Analysis; however with the seriousness of the current behaviors that are new this year and in order to get the best possible picture and information for I.K. we need to do an Functional Analysis Assessment" ("FAA"). I.K.'s parents consented to a FAA.

iii. Mr. Barries Spitting Incident

On September 15, 2008, I.K. came home from school and informed his mother that he had spit on Barries and that Barries spat on him. I.K. was upset, cried, and had difficulty processing why someone would spit on him. No incident report was filed on behalf of the school nor did Barries include data on the incident in I.K.'s behavioral log.

When I.K. returned to school on September 16, 2008, I.K. asked Barries why Barries had spit on him. According to I.K., Barries apologized. I.K. apparently told his swim coach that Barries apologized and I.K.'s mother also learned of the apology. The next day, I.K.'s mother thanked Barries for apologizing to I.K. but Barries denied issuing an apology. This greatly confused and upset I.K.

I.K.'s mother wrote a letter to Antracoli detailing the spitting incident on September 15, 2008. She requested that the school investigate and report back. She also expressed concern about SUSD's failure to properly use the communication log, which was part of I.K.'s October 26, 2007, IEP. Antracoli responded to I.K.'s mother stating "in response to your oral concerns regarding Mr. Barries, I gave you the District Uniform Complaint Form to submit a formal complaint if you chose to do so." Antracoli provided no data on the spitting incident.

iv. The Leg Pulling Incident

On September 18, 2008, while inside an office room, I.K. jumped on a table. Without first instructing I.K. to get down, Barries pulled I.K. by his leg and I.K. fell to the floor, hitting his tailbone. I.K. then pulled down his pants and Antracoli locked the door and closed the blinds.

Upon retrieving I.K. from school, I.K.'s mother noticed I.K. hunched over and holding his lower back. I.K. told his mother about the incident. I.K.'s mother took I.K. to the doctor to have his back examined. The doctor confirmed that I.K. would be sore in that area and a bruise would form on his tailbone. The doctor contacted the police, and I.K.'s parents filed a police report against Barries. I.K. was suspended from school for this incident. When I.K.'s mother requested a copy of the incident report prepared by Barries, Antracoli indicated there was no such report.

v. The Sunglasses Incident

Also on September 18, 2008, Barries purposely broke I.K.'s sunglasses to punish I.K. for his actions. Barries knew that I.K. needed these sunglasses because of his sensitivity to light and that I.K. fixated on them as part of his autism.

d. The Uniform Complaints

I.K.'s parents filed Uniform Complaints with the SUSD regarding the leg pulling incident and the school assembly incident. The SUSD determined that the complaints lacked merit and declined to take disciplinary action. The investigation, however, revealed that a student witnessed "two employees holding I.K. in a manner ... more firm than necessary."

e. L.K.'s Trip To Finland, Principal's Antracoli's Alteration Of The Absent Dates, And The Truancy Notice

I.K. has a sister, L.K., who was also a student in the SUSD. On December 1, 2008, the father informed the School District that L.K. would be going to Finland to visit her grandmother who was diagnosed with cancer. Apparently I.K. would remain behind. The father filled out a short-term independent study contract with the SUSD which allowed L.K. to complete her assignments away from school. The father wrote that L.K. would be absent for a total of fifteen (15) days from December 1, 2008, through December 19, 2008. Antracoli, however, purportedly altered the independent study contract to reflect that L.K. would be absent from December 4, 2008,...

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