J.H. ex rel. Her Minor Child J.P. v. Bernalillo Cnty. & J.M. Sharkey

• Decision Date: 08 July 2014
• Docket Number: No. CIV 12-0128 JB/LAM,CIV 12-0128 JB/LAM
• Parties: J.H. on behalf of her minor child J.P., Plaintiffs, v. BERNALILLO COUNTY and J.M. SHARKEY, Bernalillo County Deputy, Defendants.
• Court: U.S. District Court — District of New Mexico

J.H. on behalf of her minor child J.P., Plaintiffs, v. BERNALILLO COUNTYand J.M. SHARKEY, Bernalillo County Deputy, Defendants.

No. CIV 12-0128 JB/LAM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

DATED: July 8, 2014

UNSEALED MEMORANDUM OPINION¹

THIS MATTER comes before the Court on the County Defendants' Motion for Partial Summary Judgment No. II: Dismissal of Counts II, V and VI of Plaintiffs' Second Amended Complaint, filed July 30, 2013 (Doc. 93)("MSJ"). The Court held a hearing on September 6, 2013. The primary issues are: (i) whether the Court should grant summary judgment on the claim of Plaintiffs J.H. on behalf of her minor child J.P. that the Defendant J.M. Sharkey used excessive force when he handcuffed J.P. following an altercation at Roosevelt Elementary Schoolin Bernalillo County, New Mexico, thereby violating the Fourth Amendment to the Constitution of the United States of America; and (ii) whether the Court should grant summary judgment on the Plaintiffs' claims against Sharkey and Defendant Bernalillo County (collectively "the County Defendants") under the Americans with Disabilities Act, 42 U.S.C. §§ 12201-12213 ("ADA"). The Court will grant the MSJ. The Court concludes that Sharkey did not violate J.P.'s rights under the Fourth Amendment, because he had probable cause to arrest J.P., and because, given her recent attack on a student and on a school employee, he was entitled to handcuff her. The Court also concludes that, when Sharkey arrested J.P., he did not deprive her of any right that the ADA secures; further, there is no evidence that Bernalillo County acted with deliberate indifference, as the Plaintiffs must show to recover compensatory damages. Accordingly, the Court will grant summary judgment as to the Plaintiffs' claims under the ADA.

FACTUAL BACKGROUND

The Court will discuss the factual background in multiple parts. First, the Court needs to point out several formatting notes. The parties incorporated by reference most of the basic facts underlying the MSJ from Defendant J.M. Sharkey's Motion for Partial Summary Judgment No. I: Dismissal of Plaintiffs' Fourth Amendment Illegal Seizure Claim (Count I) Based on Qualified Immunity, filed July 30, 2013 (Doc. 92)("MSJ No. 1"), from the Plaintiff's Response to Defendant Sharkey's Motion for Partial Summary Judgment No. I: Plaintiff's Fourth Amendment Illegal Seizure Claim (Count I) Based on Qualified Immunity, filed August 16, 2013 (Doc. 103)("Response to MSJ No. 1"), and from the Reply to Plaintiffs' Response to J.M. Sharkey's Motion for Partial Summary Judgment No. I: Dismissal of Plaintiffs' Fourth Amendment Illegal Seizure Claim (Count I) Based on Qualified Immunity, filed September 3,2013 (Doc. 115)("Reply to Response to MSJ No. 1"). The parties added only a few additional facts in the MSJ, in the Plaintiff's Response to Defendants' Motion for Partial Summary Judgment No. I: Dismissal of Counts II, V, and VI of Plaintiffs' Second Amended Complaint, filed August 16, 2013 (Doc. 102)("Response"), and in the County Defendants' Reply to Plaintiffs' Response to County Defendants' Motion for Partial Summary Judgment No. II: Dismissal of Counts II, V and VI of Plaintiffs' Second Amended Complaint, filed September 3, 2013 (Doc. 117)("Reply"). Where the parties took their facts from the more extensive discussion in MSJ No. 1, the Court will cite the MSJ No. 1, the Response to MSJ No. 1, and the Reply to Response to MSJ No. 1. Where the parties added additional facts in the MSJ, the Court will cite the MSJ, Response, and Reply.

Confusion over the parties' names plagues the briefing. Sometimes the parties -- including the Plaintiffs -- refer to J.H. on behalf of her minor child J.P. as a singular Plaintiff, see, e.g., Response to MSJ No. 1 at 1 ("Plaintiff, J.H. on behalf of J.P., a minor, hereby responds to" MSJ No. 1), and sometimes the parties refer to J.H. and J.P. as plural Plaintiffs, see, e.g., Response to MSJ at 2 ("Plaintiffs hereby respond to Defendants' 'undisputed' numerical material facts."). Given that even the Plaintiffs' briefing does not clearly prefer one name over the other, the Court will refer to J.H. on behalf of her minor child J.P. in the plural as Plaintiffs, because the caption refers to them in the plural. Where the Court quotes briefing, however, it will not change the parties' naming conventions, because changing the parties' naming conventions would confuse the reader more than it would illuminate.

The Court has also adopted a naming convention with respect to the County Defendants. The Court refers to Sharkey and Bernalillo County collectively as "the County Defendants,"because they refer to themselves that way in their briefing, and to distinguish them from other Defendants formerly in the lawsuit. In the MSJ, the parties incorporated by reference their briefing from the MSJ No. 1, the Response to MSJ No. 1, and the Reply to Response to MSJ No. 1, regarding approximately 150 proposed undisputed facts. The MSJ No. 1 was, however, filed only on Sharkey's behalf, and the MSJ was filed on Sharkey and Bernalillo County's collective behalf. Where the Court draws facts from the MSJ No. 1 and discusses the parties' positions regarding those facts, it will refer only to Sharkey, because, again, the alternative would require rewriting substantial portions of the parties' briefing, which would confuse the reader. The Court will, in its analysis, treat the facts and arguments as applying to the County Defendants.

The facts proceed in eight parts. First, the Court provides background on J.P. Second, the Court discusses Sharkey's background, his training, and his role at Roosevelt Middle School. Third, the Court discusses the procedure for handling a de-escalation event. Fourth, the Court discusses the September 26, 2011, events. Fifth, the Court discusses J.P.'s booking at the Bernalillo County Detention Center. Sixth, the Court discusses the arrest's effects on J.P. Seventh, the Court discusses the charges against J.P., her competency evaluation, and the circumstances surrounding the dropping of her charges. Eighth and finally, the Court discusses matters that the parties addressed only in the MSJ and not in the MSJ No. 1; those matters relate primarily to Sharkey's training and to the exhaustion of remedies.

1. Background on J.P.

"J.P. has qualified as emotionally disturbed since at least 2008." Response to MSJ No. 1 ¶ A, at 9 (setting forth this fact). See Unidentified Report at 5-6 (taken July 19, 2013), filedAugust 16, 2013 (Doc. 103-1)("Unidentified Report").²

According to John King, Ph. D., who diagnosed J.P. after the incident underlying this case, her present condition is such that

[s]he doesn't think about the consequences. And she just kind of reacts, instead of thinks about it. So if some other child upsets her, instead of being able to step back and think about and analyze the situation, she just reacts right away. And her reaction is with anger and aggression.

Deposition of John H. King, Ph. D. at 36:25-37:6 (taken July Depo. at 36:25-37:6), filed August 16, 2013 (Doc. 103-1)("King Depo."). See Neuropsychological Evaluation Report at 1 (dated April 5, 2012), filed September 3, 2013 (Doc. 115-1).³

J.P. received special education services because "she has the eligibility of Emotional Disturbance. She has difficulty regulating her emotions. Her mood can vary from one minute to the next. At her best, she can be a very cooperative, helpful girl who is a natural leader. However, she also has had episodes of violent verbal and physical acting out towards other students and adults. More commonly, J[.P.] can also shut down and refuse to interact with anyone for hours at a time."

MSJ No. 1 ¶ 1, at 4 (setting forth this fact). See Response to MSJ No. 1 ¶ 1, at 2 (not disputingthis fact); Individualized Education Program at 3, dated October 19, 2010, filed July 30, 2013 (Doc. 91-1)("IEP").

J.P. "requires specific, direct 1:1 or small group instruction in the area of academics and social emotional issues to compensate for social emotional deficits. This instruction cannot be appropriately or adequately addressed in the regular education setting because J[.P.] is unable to maintain her emotions in the larger group setting and impedes the learning of herself and other[s]."

MSJ No. 1 ¶ 2, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶ 2, at 3 (not disputing this fact); IEP at 10. "J.P.'s IEP team also prepared a [Behavioral Intervention Plan ("BIP")] for J.P. because she exhibited frequent verbal and physical aggression towards fellow students and staff, and interventions were needed to redirect her behavior." MSJ No. 1 ¶ 3, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶ 3-7, at 3 (not disputing this fact)⁴; Behavior InterventionPlan (dated March 3, 2011), filed July 30, 2013 (Doc. 92-3)("BIP"). "J.P.'s behavior had resulted in physical harm to both peers and staff." MSJ No. 1 ¶ 4, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶ 3-7, at 3 (not disputing this fact);⁵ BIP at 1.

The BIP indicated that the following is the targeted behavior for J.P.: "J[.P.] will frequently lash out at peers and adults in the classroom. This behavior manifests as cussing, throwing objects and furniture with the intent to cause harm, as well as physical and verbal aggression to cause harm to peers and/or adults."

MSJ No. 1 ¶ 5, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 3-7, at 3 (not disputing this fact);⁶ BIP at 1. "According to her BIP, J.P.'s behavior is a performance deficit, meaning she 'knows how to perform the desired behavior, but does not consistently do so.'" MSJ No. 1 ¶ 6, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 3-7, at 3 (not disputing this fact);⁷ BIP at 1. "The presumed reason for J.P.'s behavior was 'task/consequence avoidance.'" MSJ No. 1 ¶ 7, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 3-7, at 3 (not disputing this fact);⁸ BIP ...