Joseph M. v. Northeastern Ed. Intermediate Unit 19

• Decision Date: 15 May 2007
• Docket Number: No. 3:06-CV-01903.,3:06-CV-01903.
• Citation: 516 F.Supp.2d 424
• Parties: JOSEPH M. and Judith M., as Parents and Natural Guardians of a Minor, B.M., Plaintiffs, v. NORTHEASTERN EDUCATIONAL INTERMEDIATE UNIT 19, Susan Comerford Wzorek, The School District of Abington Heights, Fred R. Rosetti, Ed.D, Clarence Lamanna, Ed.D., David Arnold, Ed.D., William McNulty, and Mariellen Sluko, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

516 F.Supp.2d 424

JOSEPH M. and Judith M., as Parents and Natural Guardians of a Minor, B.M., Plaintiffs, v. NORTHEASTERN EDUCATIONAL INTERMEDIATE UNIT 19, Susan Comerford Wzorek, The School District of Abington Heights, Fred R. Rosetti, Ed.D, Clarence Lamanna, Ed.D., David Arnold, Ed.D., William McNulty, and Mariellen Sluko, Defendants.

No. 3:06-CV-01903.

United States District Court, M.D. Pennsylvania.

May 15, 2007.

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Christina A. Coury, Lawrence. J. Moran, Edwin A. Abrahamsen, Jr., James J. Conaboy, Abrahamsen, Moran & Conaboy, P.C., Scranton, PA, for Plaintiffs.

John E. Freund, III, King Spry Herman Freund & Faul, LLC, Bethlehem, PA, Richard A. Polachek, Stephen Molitoris, Polachek & Associates, P.C., Wilkes-Barre, PA, Robin B. Snyder, Angela Januski, Marshall Dennehey Warner Coleman & Goggin, Scranton, PA, for Defendants.

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

Presently before the Court are three motions to dismiss. The first was filed by Defendant Susan Comerford Wzorek. (Doc. 5.) The second was filed by Defendants Northeastern Educational Intermediate Unit 19, Fred R. Rosetti, Ed.D. and Clarence Lamanna, Ed.D. (Doc. 6:) The third motion was filed by Defendants The School District of Abington Heights, David Arnold, Ed.D., William McNulty, and Mariellen Sluko. (Doc. 7.)

For the reasons stated below, the motions to dismiss will be granted in part and denied in part, as described in the attached order. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 ("federal question"). This is a removal action for which federal jurisdiction is predicated upon the counts of Plaintiffs' Complaint that allege violations of the United States Constitution and the Individuals with Disabilities Education Act, codified at Title 20 of the United States Code, sections 1400, et seq. The Court exercises supplemental jurisdiction over Plaintiffs' state-law tort claims pursuant to 28 U.S.C. § 1367.

BACKGROUND

The allegations of Plaintiffs' Amended Complaint are as follows.

Defendant Susan Comerford Wzorek ("Wzorek") was, at all times relevant to this action, employed by Defendant Northeastern Educational Intermediate Unit 19 ("NEIU") as an autistic support teacher. (Compl. ¶ 2.) NEIU is part of the public school system of the Commonwealth of Pennsylvania and provides statutorily-mandated educational services to school districts in Lackawanna County, including, inter alia, Defendant The School District of Abington Heights ("Abington" or "the School District"), who cannot provide these specialized services themselves. (Id. ¶ 13, 5.) Defendant Fred R. Rosetti, Ed.D. ("Rosetti"), at all times relevant to this action, was a policymaker of NEIU, and was authorized by NEIU to perform the duties and functions of NEIU's Executive Director. (Id. ¶ 7.) Defendant Clarence Lamanna Ed.D. ("Lamanna"), at all times relevant to this action, was employed by NEIU as Director of Special Education. (Id. ¶ 8.) Defendant David Arnold, Ed.D. ("Arnold"), at all times relevant to this action, was employed as Superintendent of the School District, and was authorized as a policymaker therefor. (Id. ¶ 9.) Defendant William McNulty ("McNulty"), at all times relevant to this action, was employed as the Supervisor of Special Education for the School District. (Id. ¶ 10.) Defendant Mariellen Sluko ("Sluko"), at all times relevant to this action, was employed by Abington as the Principal of Clarks Summit Elementary School ("CSES"). (Id. ¶ 11.) It was within the scope of responsibilities of Defendants Rosetti, Lamanna, Arnold, McNulty, and Sluko to supervise and monitor Defendant Wzorek at the time of the events outlined herein below. (Id. ¶¶ 7-11.) Additionally, it was within the responsibilities and duties of Defendant Arnold, as Superintendent of the School District, to supervise the school property where Defendant Wzorek worked and the care and custody of the children being taught there. (Id. ¶ 9.)

Minor-Plaintiff, BM, was born on September 19, 1991. (Id. ¶ 12.) He has been diagnosed as having autism, a disorder that falls under the umbrella of Pervasive Developmental Disorders, and which is a complex developmental disability that impacts development in the areas of social interaction and communication skills. Children with autism, although typically exhibiting difficulty as far as language development and ability to interact socially, can learn and function normally, with appropriate treatment and education. (Id. ¶¶ 13-14.) BM's specific condition renders him non-verbal, and his level of functioning ranges from low to average. (Id. ¶ 15.)

BM, at all times relevant to this action, was enrolled in the NEIU, and the School District, specifically their Special Education Autistic Support Division, whose purpose is to meet the needs of students with specific interactive/social impairments. (Id. ¶ 16.) At all times relevant hereto, Defendants NEIU and the School District exercised supervisory responsibilities over the autistic support teachers, including Defendant Wzorek. (Id. ¶¶ 17-18.) At all times material and relevant hereto, Defendant Wzorek was minor Plaintiff BM's autistic support teacher, and was an employee of both NEIU and the School District. (Id. ¶¶ 24-25.)

As special needs institutions the School District and NEIU, along with their special education teachers, are required to follow the Regulations for Special Education devised by the State Department of Education, codified at Title 22 of the Pennsylvania State Code, Chapter 14. These regulations govern the treatment and education of special needs public school children, including behavior management. (Id. ¶ 19.) The Boards of Directors of both NEIU and the School District have adopted the Child Protective Services Law of 1990 ("CPSL"), codified at 23 PA.CONS. STAT.ANN. § 6301, et seq., to affirm the obligation of their respective employees to assist in identifying possible child abuse, as well as victimization of students by other employees, and to establish procedures for supporting such in compliance with the CPSL and its amendments. (Id.¶¶ 20-21.) The Pennsylvania Department of Education ("PDE") must approve both the School District and NEIU's annual plans as assurance that they will adhere to the aforementioned regulations and statutes regarding the education of students with disabilities. (Id. ¶ 22-23.)

At all times relevant and material hereto, Defendant Wzorek held a teaching certificate issued by the PDE. (Id. ¶ 29.) As a special education teacher, Defendant Wzorek was required by the PDE to maintain her teaching certification active by earning a required number of continued education credits every five years. (Id. ¶ 26.) The PDE, through its Teacher Certification Bureau, ensures that special education teachers are properly trained, and have taken part in an initiative to train special education teachers specifically on autism. (Id. ¶ 27.) At all times material and relevant hereto, Defendant Wzorek's immediate employers and supervisors, i.e., NEIU and the School District, were responsible for ensuring that each teacher, including Wzorek, was adequately trained. (Id. ¶ 28.)

As an autistic support teacher, Defendant Wzorek's duties included, inter alia, keeping safe and secure the autistic children in her care, custody, and control, and attending to all of the daily classroom needs of her autistic students, which include feeding, toileting, academic training, and assisting in independent learning, as well as routinely accompanying NEIU students to Abington's library, gym, cafeteria, art class, music class, computer training center, and mainstream classrooms within the School District. (Id. ¶ 30.) During the course of performing the aforementioned daily duties, Defendant Wzorek continuously and systematically employed the use of aversive techniques, which are deliberate activities designed to establish a negative association with a specific behavior, and which techniques are specifically excluded from the list of positive approaches to behavior management found in Title 22 of the Pennsylvania School Code (PSC), section 14.133(e). (Id. ¶ 31.) Defendant Wzorek used aversive techniques to redirect her autistic students' behavior, including that of Minor-Plaintiff BM. Specifically, these techniques included, but were not limited to: (a) strapping BM to a Rifton Chair with silver duct tape around his legs, rendering him unable to move, (b) punishing BM by depriving him of his "Picture Exchange System," which book served as BM's main means of communicating his basic needs and necessities, including, but not limited to bathroom use and hunger, (c) backhanding BM in the face, causing blood to gush from his nose and lips, (d) pinching BM, leaving fingermark bruising on his arms, (e) hitting BM, leaving cuts on his face, legs, back, and pelvis, and (f) stepping on BM's insteps, causing bruising to the tops of his feet. (Id. ¶ 32.)

Additionally, Defendant Wzorek employed the use of restraints on her autistic students, the proper use of which is specifically reserved for instances where there is a clear and present immediate threat of danger of injury to self or to others, as per Title 22 of the PSC, § 14.133(c). A lawful use of restraints shall cause a meeting of the IEP team to review the current Individualized Educational Program, or IEP, for appropriateness and effectiveness. An IEP is a statement of educational services prepared collaboratively by the local education agency, the parents, teachers, and if applicable, related service providers (e.g., occupational or physical therapists, or speech and language pathologists) for each student. This group is known as the IEP team. (Id. ¶ 33.)

During the relevant time period from September 2001 through June 2002, three Rifton Chairs were kept in Defendant Wzorek's classroom, in full and open view of the...