A.K.B. v. Indep. Sch. Dist. 194, Case No. 19-cv-2421 (SRN/KMM)

• Decision Date: 26 March 2020
• Docket Number: Case No. 19-cv-2421 (SRN/KMM)
• Parties: A.K.B., By and Through Her Mother and Guardian Marquette Silva; Marquette Silva; and Kenyatta Bowen; Plaintiffs, v. Independent School District 194 and Debra Murphy, Defendants.
• Court: U.S. District Court — District of Minnesota

A.K.B., By and Through Her Mother and Guardian Marquette Silva;Marquette Silva; and Kenyatta Bowen; Plaintiffs, v. Independent School District 194 and Debra Murphy, Defendants.

Case No. 19-cv-2421 (SRN/KMM)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

March 26, 2020

MEMORANDUM OPINION AND ORDER

Richard E. Student, and Steven J. Meshbesher, Meshbesher & Associates, P.A., 10 S 5th St Ste 225, Minneapolis, MN 55402, for Plaintiffs.

Mark A Fredrickson, Joao C.J.G. De Medeiros, and Susan E Stokes, Lind Jensen Sullivan & Peterson, P.A., 901 Marquette Ave. S., Ste. 1300, Minneapolis, MN 55402, for Defendant Independent School District 194.

Allison N. Krueger, and Sally J. Ferguson, Arthur, Chapman, Kettering, Smetak & Pikala, PA, 81 S 9th St Ste 500, Minneapolis, MN 55402, for Defendant Debra Murphy.

SUSAN RICHARD NELSON, United States District Judge

I. INTRODUCTION

This matter comes before the Court on Defendants Independent School District 194 ("the District") and Debra Murphy's Motion to Dismiss the Complaint ("Motion to Dismiss") [Doc. No. 10] for lack of subject matter jurisdiction and for failure to state a claim. Plaintiffs commenced this action against the District and Ms. Murphy alleging violations of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, the Rehabilitation Act, 29 U.S.C § 794 (known as "§ 504" of the Rehab Act), the Minnesota Human Rights Act ( "MHRA"), Minn. Stat. § 363A.12-.13, and Minnesota common law for medical malpractice.

After carefully considering the parties' arguments at oral argument, the Court ruled from the bench on November 25, 2019. (Nov. 25, 2019 Hr'g Tr. [Doc. No. 25].) Specifically, the Court denied Defendants' motion, except with respect to the claims alleging violations of the ADA and the Rehab Act against Ms. Murphy. (Id.) Both claims were dismissed against Ms. Murphy in her individual and official capacity. (Id.) The Court then stated it would follow its ruling with a written order. (Id.) For the reasons stated on the record and more fully set forth below, Defendants' Motion to Dismiss is granted in part and denied in part.

II. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from a tragic asthma attack suffered by an eighth-grade student, A.K.B., at a school located within the District. (Compl. [Doc. No. 1] ¶¶ 1, 7, 12.) A.K.B.'s mother, Marquette Silva, appears to serve as A.K.B.'s primary legal guardian and brings this action on behalf of A.K.B. for damages she directly sustained.¹ (Id. ¶¶ 4-5.) At all relevant times, A.K.B. and her parents, Plaintiffs Marquette Silva and Kenyatta Brown, resided in Minnesota. (Id. ¶¶ 3, 5-6.) Moreover, during the relevant time period, Ms.Murphy was a school nurse for the District.² (Id. ¶ 9.)

A.K.B. was recognized as, and known to be a student with disabilities because of her history of severe asthma and related breathing problems. (Id. ¶¶ 1, 13-14, 47; Decl. of Joao C.J.G. Medeiros ("Medeiros Decl.") [Doc. No. 13], Ex. 4 (A.K.B. v. Lakeville Public Sch. Dist., Minn. Dep't of Educ., MDE 19-013-H (July 30, 2019)) at 2-3.) Defendants specifically "knew that A.K.B. required reasonable accommodations for her disability, including close respiratory monitoring and medical excuses from class during asthma exacerbations." (Compl. ¶ 36.) On several occasions, Plaintiffs communicated to the District the need for such accommodations and details about A.K.B.'s asthma. (Id. ¶ 16.) A.K.B. had frequently presented to Defendants at the school nurse's office for treatment of asthma exacerbations. (Id. ¶ 17.)

In an administrative proceeding about this dispute, the District previously contended that it had a "plan for responding to A.K.B.'s asthma exacerbation."³ (Medeiros Decl., Ex. 4 at 2-3.) Plaintiffs allege, on the other hand, that Defendants "failed to formulate a [] plan to address A.K.B.'s disability and need for accommodations[.]" (Compl. ¶ 18.) It appears, nonetheless, that at least as of April 16, 2019, A.K.B.'s treating pulmonologist provided an "updated Asthma Control Plan" to Defendants. (Id. ¶ 16.)

The pulmonologist indicated, in writing, specific instructions for A.K.B.'s treatment during asthma exacerbations:

During asthma exacerbations, [A.K.B.] requires frequent neb treatments and close respiratory monitoring until back to her baseline.

(Id.) (citing medical note from pulmonologist dated November 1, 2018). The pulmonologist's orders for A.K.B. were in Ms. Murphy's "Health Office Visit Report." (Id. ¶ 17.) It is alleged, however, that Ms. Murphy failed to engage in any respiratory monitoring on any of the occasions A.K.B. went to the school nurse's office for asthma exacerbations. (Id. ¶ 17; see also Medeiros Decl., Ex. 3 (Health Office Visit Report) at 1-4.) Indeed, between November 1, 2018 and April 16, 2019, A.K.B presented to Ms. Murphy for asthma-related care at least sixteen times. (Id.)

On April 16, 2019, A.K.B. went to the school nurse's office. (Id. ¶ 19.) She needed treatment for an asthma exacerbation. (Id.) A.K.B. was administered "albuterol nebulizer inhalation therapy," but her "resting pulse rate remained dangerously elevated at 124 beats per minute." (Id.) Despite an elevated heart rate, Ms. Murphy allegedly instructed A.K.B. to report to physical education class. (Id.) Before sending A.K.B. away, Ms. Murphy neither administered a peak flow meter test nor conducted other tests to check A.K.B.'s respiratory condition. (Id.)

A.K.B.'s asthma exacerbation worsened during her physical education class. (Id. ¶ 20.) Her airways eventually narrowed to the point that she could not breathe, and she lost consciousness. (Id.) A.K.B then suffered "oxygen deprivation and cerebral hypoxia/anoxia" for nearly thirty minutes while she waited for first responders to intubateher.⁴ (Id. ¶¶ 21-22.)

Because of her prolonged oxygen deprivation, A.K.B. suffers from extensive, permanent brain damage. (Id.) She tragically remains in a persistent vegetative state. (Id.) Although discharged to home care, A.K.B. has required emergency medical intervention "on one or more occasions because of complications relating to her brain injury." (Id. ¶ 22.) This required medical intervention also lead to secondary abdominal and gastrointestinal injuries and symptoms. (Id. ¶ 23.) Because of these injuries, A.K.B. has "required and will continue to require daily and around-the-clock medical treatment for her condition, as well as professional caretaking for assistance with all of her activities of daily living, including but not limited to bathing, grooming, moving, transferring and eating." (Id. ¶ 24.) Plaintiffs further allege that, because A.K.B. will remain in a persistent vegetative state for the rest of her life, she will sustain a "complete loss of her lifetime earning capacity," and "incur significant medical expenses" for treatments for her brain and other injuries. (See id. ¶¶ 23-28.)

A. Administrative Proceeding

Prior to this lawsuit, Plaintiffs filed a due process hearing request and special education complaint against the District through the Minnesota Department of Education. (See Medeiros Decl., Ex. 4 at 2.) Plaintiffs specifically requested a due process hearing over concerns about the "dangers of issue and claim preclusion in other statutory orcommon law causes of action."⁵ (Id. at 3, 5) ("The Parents candidly state that they filed this due process complaint to exhaust their administrative remedies in anticipation of filing other civil claims against the School District.").

Plaintiffs requested that the administrative law judge ("ALJ") address "[1] whether A.K.B. was a student with a disability under the [Individuals with Disabilities Education Act] ("IDEA") prior to April 16, 2019; and [2] whether the District violated the IDEA by not having an Individual Education Plan ("IEP") in place for A.K.B." (Id. at 3.) If the ALJ concluded the District violated the IDEA, Plaintiffs requested a determination of the appropriate relief under the IDEA. Plaintiffs asserted that the ALJ "lack[ed] jurisdiction to decide claims and issues beyond the IDEA[.]" (Id. at 3.)

Following the ALJ's grant of the District's motion to dismiss the initial complaint, Plaintiffs filed an amended complaint in the administrative proceeding. (Id.) The District sought again to dismiss the amended due process complaint. (Id.)

On July 30, 2019, the ALJ dismissed the amended due process complaint without prejudice. In relevant part, the ALJ noted that a due process hearing was unnecessary because A.K.B.'s parents did not seek a remedy under IDEA. (Id. at 4-5) (concluding further that "there is nothing to be gained at this time by having a hearing[.]")). Indeed, by arguing that Plaintiffs' requested relief was unavailable under IDEA, the District itself urged this outcome:

"[T]he [] District argues that the Parents' Complaint is not, and never has been, an IDEA matter. The [] District emphasizes that the Parents brought their Amended Complaint only to exhaust their IDEA remedies before proceeding to other litigation. The School District points out that the Parents continue to demand monetary relief, although they have been told that such relief is not available to them under the IDEA."

(Id. at 2.)

The ALJ agreed that the scope of the administrative proceeding precluded consideration of issues relating to, among others, compensatory damages. (Id. at 4) (finding that scope of due process proceeding precludes consideration of issues relating to both compensatory damages and medical causation, "which are beyond the reach of the IDEA and its remedies."). The ALJ ultimately dismissed the complaint without prejudice because the ALJ held that A.K.B.'s parents were "free to bring the [IDEA] claim again, should they wish to seek a remedy that might include compensatory education and related services relating to a period of time before April 16, 2019." (Id. at 5.) A.K.B.'s parents could "also seek services from the School District in the future, based on [A.K.B.'s]...