J.P.M. v. Palm Beach Cnty. Sch. Bd.
| Decision Date | 30 January 2013 |
| Docket Number | Case No. 10–80473–CIV. |
| Court | U.S. District Court — Southern District of Florida |
| Parties | J.P.M., individually, and as next best friend for C.M., R.G.M., individually, and as next best friend for C.M., and C.M., a minor, Plaintiffs, v. PALM BEACH COUNTY SCHOOL BOARD, a political subdivision or agency, Arthur Johnson, Ph.D., in his official [capacity] as Superintendent of Palm Beach County Schools, Laura Pincus, in her official capacity of Director of Exceptional Student Services, Joanne Thornton, in her official and individual capacities, Defendants. |
916 F.Supp.2d 1314
J.P.M., individually, and as next best friend for C.M., R.G.M., individually, and as next best friend for C.M., and C.M., a minor, Plaintiffs,
v.
PALM BEACH COUNTY SCHOOL BOARD, a political subdivision or agency, Arthur Johnson, Ph.D., in his official [capacity] as Superintendent of Palm Beach County Schools, Laura Pincus, in her official capacity of Director of Exceptional Student Services, Joanne Thornton, in her official and individual capacities, Defendants.
Case No. 10–80473–CIV.
United States District Court,
S.D. Florida.
Jan. 30, 2013.
[916 F.Supp.2d 1315]
Leonel Rafael Plasencia, Leonel R. Plasencia, P.A., Paul Bennett Sopp, Paul Bennett Sopp, P.A., West Palm Beach, FL, for Plaintiff.
Dale Lyn Friedman, David S. Rothenberg, Scott Darryl Krevans, Conroy Simberg Ganon Krevans & Abel, Hollywood, FL, for Defendants.
KENNETH A. MARRA, District Judge.
THIS CAUSE is before the Court upon the Official–Capacity Defendants' Motion for Summary Judgment [DE 42] and Defendants' Motion for Summary Judgment on State Law Tort Claims [DE 43]. The motions are on behalf of Defendant Palm Beach County School Board (“the School Board”).1 The Court has carefully considered the motions, responses, replies, entire court record, oral argument of counsel, the School Board's Motion for Reconsideration, and is otherwise fully advised in the premises.
This matter is about an autistic Exceptional Student Education (“ESE”) student enrolled in the Palm Beach County School District. His initials are C.M. C.M.'s parents, J.P.M. and R.G.M., are the Plaintiffs. Plaintiffs allege violations of C.M.'s rights under federal and state laws. They seek compensatory and punitive damages, as well as injunctive relief, against the School Board for allegedly subjecting C.M. to years of excessive and improper restraints while attending Lantana Middle School. Plaintiffs contend C.M. was placed in a
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residential facility for psychological treatment to overcome the trauma of being restrained. The School Board moves for summary judgment as to all federal and state claims.
1. At all times material to this case, C.M. was enrolled as a student in the Palm Beach County School District and was designated early on in his life by the School Board as being “educable mentally handicapped.” First Amended Complaint (“Compl.”), DE 26 at ¶¶ 6, 19.
2. C.M. suffers from a genetic disability called Cornelia de Lange Syndrome, which affects physical and mental development, as well as autism, obsessive compulsive disorder, social anxiety, sensory disorder, simple and complex motor and vocal tics,2 and gastrointestinal reflux (“acid reflux”). DE 26, ¶ 21; DE # s 42, 48–1. While C.M. is verbal and can engage in a short conversation, his disabilities present problems with expressive language and prohibit him from communicating clearly. Compl. ¶ 21; Ex. O at 37–38.
3. “C.M. is small in stature, underweight, physically delayed, and pretty frail.” DE 48–1, ¶ 27.
4. C.M. started exhibiting behavior issues in early elementary school (in school only). DE # s 42, 48–1. In the sixth grade, C.M. was having significant incidents of self-injurious behavior ( i.e., biting his own arm) and physical aggression ( i.e., hitting and kicking) teachers, staff and students. Pam Tepsic 3 (“Tepsic”) Depo., Ex. 3 at 20; Joann Thornton 4 (“Thornton”) Depo., Ex. C at 233. “C.M.'s aggression towards others is a learned behavior.” DE 48–1, ¶ 29.
5. School records indicate that it was necessary to restrain C.M. to avoid injury to himself or others. Ex. I.
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Each time C.M. was restrained, it was due to a perceived crisis, rather than part of his behavioral management plan. 4/24/12 Hearing Transcript at 17, 71–73; Ex. 8. C.M. was first restrained on March 17, 2004, when C.M. was in sixth grade. Tepsic Depo., Ex. 3 at 15. The restraint logs from C.M.'s sixth grade are missing. Ex. A at 129–30; Ex. L at 166. The only evidence of C.M. being restrained is the PCM Physical Assistance Logs found in Ex. K. At oral argument, it was stated by way of explanation that all instances of restraint consisted of someone holding CM, for instance, either his hands and/or his feet (without twisting his arms), and no mechanical restraint was ever used on C.M. 4/24/12 Hearing Transcript at 14.
6. For purposes of this motion only, the School Board concedes that, over a 14 month period of time, there were 89 incidents of restraint with 27 prone restraints being documented.
7. After three restraints are performed within one month, a child's Functional Behavioral Assessment (“FBA”) must be reviewed, and updated if appropriate. Ex. G; Thornton Depo. Ex. C at 174–75. After three restraints were placed on C.M., a new FBA was not conducted because “we knew what the function was for him ... but we did meet to go over the plan to see what was working and what wasn't working. After awhile we also—I requested that we have Merrill Winston come in the capacity of a certified behavior analyst to help us out.” Thornton Depo. Ex. C at 174–75.
8. The form of the majority of restraints performed on C.M. was taken from the theories and instructions of the Professional Management Crisis Association (“PCMA”).5 PCM is a behaviorally-based system using natural physical positioning that avoids awkward movements. Ex. H at 45. PCM was adopted as the School Board's policy on restraints or immobilization and PCMA has trained the School Board's personnel to perform PCM techniques on students for 17 years. Ex. 7 at 172–73. Under PCM, if a student tries to hit, punch, or kick another, staff attempts to deflect and transport, rather than restrain the student. Ex. 3 at 24. Sometimes, however, the student's physical aggression escalates quickly, requiring the child to be restrained. Ex. 3 at 57–58.
9. C.M. “started going downhill” in the middle of seventh grade. He did not want to go to school and was crying a lot. He regressed academically and behaviorally. He had sleep problems, phobias and fears, and lost a lot of his communication skills. He started being aggressive at home. Ex. A at 67–71.
10. Pursuant to an Individual Educational Plan (“IEP”), C.M. attended Lantana Middle School for sixth and seventh grades and part of eighth grade. DE # s 42, 48–1. A Behavior Intervention Plan (“BIP”), in effect as of April 2004, states: “County approved restraints (TEAM) policies may be used if [C.M.] displays continuous ag[g]ression or high magnitude disruption.”
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Ex. D, Bates stamp P005555. There is another copy of the BIP with the word “TEAM” blacked out. A BIP is a working document and changes are usually made by hand. Tepsic Depo. at 16–17.
11. Performing a TEAM restraint (now known as VITAL) is a crisis management procedure used by the school police to insure safety and de-escalate target behavior in emergency situations. Tepsic Depo. at 18–20.; Ex. 7 at 177, Ex. 3 at 17–18, 59. Thornton recommended that the TEAM restraint technique not be performed on C.M. Thornton Depo. at 178–79.
12. During the time period of 2004 through 2007, both PCM and TEAM techniques were used to restrain ESE students. Tepsic Depo. at 13. The School Board preferred to use PCM techniques with ESE students, although the written policies did not preclude TEAM techniques. Exs. H, F, G.
13. The PCM method does not preclude a horizontal restraint for someone such as C.M., who has gastrointestinal reflux, however, it is contraindicated.6 Ex. 5 at 200–02. C.M.'s reflux condition could impose discomfort or pain when the prone restraint is imposed. Ex. 5 at 205.
14. The BIP became a part of C.M.'s IEP and was given to all of C.M.'s teachers and para-professionals. Tepsic Depo. at 17–18. It is unknown which version of the BIP was distributed.
15. One PCM record reveals no reason why C.M. was restrained, who restrained him, or what type of restraint was performed. Ex. 3 at 27–28.
16. Another group of school records called “ABC Records,” shows the antecedent occurrence (“A”), the behavior (“B”), and the consequence (“C”). One ABC record does not document the antecedent behavior, so it is not possible to tell what conduct of C.M. precipitated the restraint, or what de-escalation techniques were attempted. Ex. 3 at 23–24. Other ABC records show numerous instances of aggressive behavior by C.M. and what was done to de-escalate the situation; for example, whether C.M. was restrained or removed from the situation. Ex. J. One of these records show a TEAM technique was used.
17. Actual restraint logs show that every restraint performed was in response to C.M.'s physical aggression (continuous), high magnitude disruption (continuous), and/or self-injury (continuous). Def. Exs. J & K.
18. School Board policy states, “[i]nterventions used in emergency situations to prevent a student from endangering self or others do not constitute management procedures and do not require parental consent.” Ex. G, Bates stamp P005472.
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19. Drs. Durgin and Myers diagnosed C.M. with post traumatic stress disorder, with the initial traumatizing event believed to be the restraints C.M. experienced at Lantana Middle School. Ex. 1 at 42, 107–12; Ex. 13 at 10–111; Ex. 10 at 34–35.
20. In 2009, Plaintiffs commenced an administrative due process proceeding. The Administrative Law Judge (“ALJ”) granted the School Board's motion to dismiss some of the claims that had been pled. The parties later entered into a settlement. Among other things, the Settlement and Release Agreement entered into between the parties provided:
9. RESOLUTION OF DOAH CASE 09–1799E: This AGREEMENT resolves all matters currently at issue and pending in DOAH Case No. 09–1799E; the only issues that can be raised between and among the PARTIES are either: (a) claims for future educational services, or (b) the claims raised by C.M. in the first amended due process petition...
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