Lichtenstein v. Lower Merion Sch. Dist.

• Decision Date: 28 June 2018
• Docket Number: CIVIL ACTION NO. 16–5366
• Parties: Matthew LICHTENSTEIN v. LOWER MERION SCHOOL DISTRICT, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

316 F.Supp.3d 855

Matthew LICHTENSTEIN

v.LOWER MERION SCHOOL DISTRICT, et al.

CIVIL ACTION NO. 16–5366

United States District Court, E.D. Pennsylvania.

Signed June 28, 2018

Andrew Neuwirth, Neuwirth Law Office LLC, David G. C. Arnold, King of Prussia, PA, for Plaintiff.

Diana P. Cortes, Jane Ennis Kane, Joseph J. Santarone, Jr., Marshall Dennehey Warner Coleman & Goggin, Philadelphia, PA, for Defendant.

MEMORANDUM RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Baylson, District Judge.

I. Introduction

At issue in this civil rights case is whether the Court should grant a motion for summary judgment filed by Defendants, Lower Merion School District ("LMSD"), Ryan Sankey ("Sankey"), and Frederick Agostini ("Agostini"), pursuant to Fed. R. Civ. P. 56. Plaintiff Matthew Lichtenstein ("Lichtenstein"), a special needs student who attended Lower Merion High School ("LMHS"), alleges that his substantive due process rights were violated as a result of injuries he suffered after a chair used to transport him from the LMHS pool collapsed and he was carried into the locker room (the "incident").

For reasons discussed below, the Motion for Summary Judgment will be GRANTED.

II. Background

A. Procedural History

This case began on October 13, 2016, with Plaintiff Matthew Lichtenstein filing a Complaint against Defendants Agostini, LMSD, Sankey, and Pat Guinnane ("Guinnane"). (ECF, "Compl."). The Complaint alleges three counts, all brought pursuant to 42 U.S.C. § 1983.

Count I seeks damages against LMSD for violating the Fourteenth Amendment, based on the "special relationship" exception. Count II seeks damages against all Defendants for violating the Fourteenth Amendment, based on the "state-created danger" exception. Count III asserts a Monell claim against LMSD, for failure to properly train or supervise Defendants Agostini and Sankey.

Defendants filed a joint motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6) (ECF 8, "MTD"), which this Court granted in part on February 8, 2017 (ECF 11), in order to dismiss, without prejudice, all claims against Guinnane. Plaintiff thereafter proceeded only on his claims against Agostini, Sankey, and LMSD (hereinafter, "Defendants"). Defendants answered the complaint on March 15, 2017 (ECF 15), and filed their Motion for Summary Judgment on February 28, 2018. (ECF 29, "MSJ"). Defendants also submitted, consistent with this Court's Rules, a "statement of undisputed facts," with twenty-nine attachments as exhibits. (ECF 30, "Def. SOUF"). Plaintiff filed a Response to the Motion on March 14, 2018 (ECF 33, "Response"), together with a "response to statement of undisputed facts," (ECF 33–3, "Pl. Resp. to Def. SOUF") and his own "statement of undisputed facts ("Pl. SOUF"). Defendants then filed a Reply brief in support of the Motion on March 20, 2018 (ECF 36, "Reply"), with three additional exhibits as attachments (ECF 36–1–36–3), as well as a "response to Plaintiff's statement of undisputed facts." (ECF 37, "Def. Resp. to Pl. SOUF"). The Motion for Summary Judgment has been fully and ably briefed for this Court's consideration, and this Court heard oral argument from the parties on June 7, 2018 (ECF 41).¹

B. Factual Background

1. Plaintiff Lichtenstein

Plaintiff has cerebral palsy

, has been handicapped since birth, and has required the use of a wheelchair since childhood. (Def. SOUF ¶ 3). He also has vision limitations and speech deficits. (Id. ). He attended school in the LMSD from kindergarten until the time of the incident on October 16, 2014, although he was frequently absent from school, including the entire 2010–2011 school year. (Id. ¶¶ 4–5).

Due to his multiple disabilities, while a student at Lower Merion, Plaintiff was eligible for special education services pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et. seq. ("IDEA"), and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("Section 504"). (Compl. ¶ 15). Plaintiff's special education was provided pursuant to an Individualized Education Program ("IEP"). (Id. ¶ 18). During the 2014–2015 schoolyear, Plaintiff's governing IEP provided that he take swimming lessons, and that, while swimming, he would be assisted by two "2:1 assistants." (Def. SOUF ¶¶ 7–8).² Sankey and Agostini were the two 1:1 assistants who provided assistance during swimming class for Plaintiff. (Id. ¶ 9).

From December 17, 2013 to January 31, 2014, Plaintiff did not participate in swimming class. (Id. ¶ 27). During the first scheduled session, the heater was shut down and Plaintiff decided not to swim when given the option. (Id. ). For all other scheduled swim classes, Plaintiff was either absent or not prepared with his swim suit. (Id. ).

In fact, on various occasions after January 31, 2014, Plaintiff chose not to swim or was absent. (Id. ¶ 61). Plaintiff determined how long he swam in the pool. (Id. ¶ 100). There was no order providing that Plaintiff had to swim on October 16, 2014. (Id. ¶ 108). On any day that Plaintiff did not want to swim, Sankey honored Plaintiff's decision not to swim, such that the choice to swim was solely Plaintiff's to make. (Id. ). Plaintiff was not forced to attend swimming class. (Id. ¶ 207).

Plaintiff's strengths included advocating for his physical needs. (Id. ¶ 31). Plaintiff was permitted breaks throughout the school day as needed, and when requested by Plaintiff. (Id. ¶ 34). His IEP encouraged Plaintiff to be a self-advocate. (Id. ¶ 38). Plaintiff was never forced to take any action at high school. (Id. ¶ 231). Instead, he directed his own care and was an advocate for the positions he took. (Id. ).

While in school, the nurse administered medication to Plaintiff, twice daily, pursuant to the protocol issued by Plaintiff's physician. (Id. ¶ 29). LMSD made no medical decisions regarding Plaintiff. (Id. ¶ 230).

Plaintiff was twenty (20) years old at the time of the incident, which is over the compulsory school age required by Pennsylvania statute. (Id. ¶ 1.). See 24 Pa.C.S. §§ 13–1326 and 13–1327.

2. The Day of the Incident

On the day of the incident giving rise to this litigation, October 16, 2014, Sankey and Agostini took Plaintiff to the LMHS pool area for swimming class. (Id. ¶ 13). They placed Plaintiff in a chair to transport Plaintiff from the locker room into the pool. (Id. ¶ 14).³ After Plaintiff's swimming lesson, Sankey and Agostini placed Plaintiff back into the chair to transport Plaintiff from the pool to the locker room. (Id. ¶ 15). While Plaintiff was seated in the chair, the chair broke and either Sankey or Agostini "grabbed" Plaintiff to prevent him from falling onto the pool deck. (Id. ¶ 16). Sankey then carried Plaintiff to the locker room, with Plaintiff under his arms in an upright position. (Id. ¶¶ 18, 106, ECF 30–3 ("incident video").⁴ Once in the locker room, Sankey called and informed his supervisor, Bonnie Fox, of the incident. (Id. ¶ 111).⁵ Fox recommended that Sankey and Agostini take Plaintiff to the nurse for a professional evaluation, which they did. (Id. ).

Right after the incident, Jeremy O'Boyle, a Healthy and Physical Education Teacher at LMHS, asked Plaintiff if he was okay and Plaintiff stated that he was fine. (Id. ¶ 21). On the afternoon of the incident, Christina Costello, a licensed Physical Therapist who works for the LMSD as an independent contractor, encountered Plaintiff and Sankey in the hallway, who informed her about the incident. Costello asked Plaintiff whether he was hurt, and Plaintiff replied, "No." (Id. ¶ 62).⁶ Prior to the end of the school day, Plaintiff's mother was notified of the incident. (Id. ¶ 22). Plaintiff returned home at the end of the school day on the school bus. (Id. ¶ 24).

3. Plaintiff's Injuries

Although Plaintiff had experienced back pain prior to the incident, he began experiencing pain in his neck on the night of the incident. (Id. ¶¶ 153–154). That night, he could not sleep and his arms were numb. (Id. ¶ 154). He would later experience various serious injuries (Pl. SOUF, Ex. 1–3), which Plaintiff claims arose out of the incident.

4. The Chair

Plaintiff was only the third student to use the chair, which was purchased by LMSD around 2000. (Def. SOUF, ¶¶ 45, 59, 240). The chair was intended for use in a shower room to maneuver residents. (Id. ¶ 248). The chair was not intended for use in a pool. (Id. ).

In September, 2013, Plaintiff was placed into the chair to ensure that it properly supported him. (Id. ¶ 51). Physical Therapist Christina Costello did not detect any issue with the chair at that time, instead determining that the chair was stable. (Id. ). The chair was used to transport Plaintiff for all swim classes at Lower Merion High School. (Id. ¶ 139).

Plaintiff's aids, Sankey and Agostini, performed a visual inspection of the chair each time it would be used, prior to placing Plaintiff in the chair. (Id. ¶ 53).

Approximately one or two weeks after the incident, the broken chair was observed with tape on its joints. (Id. ¶ 52). In fact, on the day of the accident, all chair joints were taped, although no witness testified that they knew who placed the tape on the chair joints or why. (Id. ¶¶ 94–95, 227). The tape had been present on the chair for at least several weeks before the incident. (Id. ¶ 97). However, before the incident, no one reported that the chair was dangerous. (Id. ¶ 129).

III. Legal Standard

A district court should grant a motion for summary judgment if the movant can show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "material" if it "might affect the outcome of the suit under the governing law." Id.

A party seeking summary judgment always bears the initial responsibility for informing the district court of the...