Lopez v. Metropolitan Government
| Decision Date | 07 July 2009 |
| Docket Number | Case No. 3:07-0799. |
| Parties | Kimberly LOPEZ, as guardian, next friend and parent of Gilberto Lopez, a minor, Plaintiff, United States of America, Plaintiff-Intervenor, v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, and Genesis Learning Centers, Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
John R. Clemmons, Malcolm L. McCune, William Gary Blackburn, Blackburn & McCune, PLLC, Nashville, TN, for Plaintiff.
Amy I. Berman, Department of Justice-Civil Rights Division, Jonathan Fischbach, Luke A. McLaurin, Department of Justice, Educational Opportunities Section, Washington, DC, Mark H. Wildasin, Office of the United States Attorney, Nashville, TN, for Plaintiff-Intervenor.
Francis Howard Young, James W.J. Farrar, Metropolitan Legal Department, Jason M. Bergeron, R. Dale Bay, Lewis, King, Krieg & Waldrop, P.C., Keith W. Blair, Thomas F. Mink, II, Taylor, Pigue, Marchetti & Mink, PLLC, Benjamin M. Rose, James K. Simms, IV, Jay N. Chamness, Cornelius & Collins, LLP, Nashville, TN, for Defendants.
MEMORANDUM
This is an action brought by Plaintiff Kimberly Lopez ("Ms. Lopez") on behalf of her disabled son Gilberto Lopez ("Gilberto"1) who was allegedly raped by another student while riding a public school bus for special needs children. Presently pending before the Court are Plaintiff's Motion for Summary Judgment (Docket Entry No. 183), and a Motion for Summary Judgment filed by Plaintiff-Intervenor United States of America (Docket Entry No. 164). Also pending are cross-Motions for Summary Judgment filed by Defendants Metropolitan Government of Nashville and Davidson County ("Metro") (Docket Entry Nos. 174 & 1782), and Genesis Learning Centers ("GLC") (Docket Entry No. 169). The parties have also filed Motions related to the Summary Judgment filings, including Motions for Oral Argument (Docket Entry Nos. 218 and 225), Motions to Strike (Docket Entry Nos. 257, 259, and 266), Motions for Leave to File Excess Pages (Docket Entry Nos. 204 and 246), and Motions for Leave to File Reply Memorandums (Docket Entry Nos. 273 and 276).
In addition, the Plaintiff-Intervenor has filed a Motion for Review (Docket Entry No. 279) of a discovery Order issued by the Magistrate Judge. Finally, Plaintiff has filed a Motion to Remand (Docket Entry No. 280) the claims she brought against Defendant Metro under the Tennessee Governmental Tort Liability Act ("TGTLA").
Gilberto is a nine year old special needs child who suffers from an array of disabilities, including autism, mental retardation, emotional disturbance, speech impairment, and language impairment. In August 2006, Gilberto moved from Chicago to Nashville and enrolled in the Metropolitan Nashville Public School System ("Metro" or "MNPS"). Metro and MNPS receive federal financial assistance.
Shortly after the beginning of the 2006-07 school year, Gilberto was assigned to Genesis Academy ("Genesis" or "Academy") in Nashville, Tennessee. The Academy is a part of GLC, a private, non-profit corporation, which was founded by Terry Adams ("Mr. Adams"), GLC's Executive Director, and his wife, Melissa Adams ("Mrs. Adams"), GLC's Assistant Executive Director.
Metro assigns students with severe behavioral problems to Genesis. In fact, only students identified as engaging in problematic behavior that requires modification through a Severe Behavior Intervention Program ("SBI") are assigned to Genesis.
The contract between Metro and Genesis specifies that Metro is responsible for providing transportation services to the students who attend Genesis. Specifically, the contract in force during the relevant period provided:
Duties and Responsibilities. Contractor shall provide special education and related services to students placed by Metro Nashville Public Schools (MNPS). Services shall be provided in accordance with the Individualized Education Plan ("IEP") of each student. Services will be provided by appropriately licensed, or certified personnel. The Contractor shall implement an IEP program which will meet the unique needs of each child enrolled, with provision for all support materials and services necessary for their education. If the Contractor cannot provide the direct and related services called for in the IEP, the Contractor has the obligation not to accept the student. By accepting the student, the Contractor agrees to provide all services and program components including related services required by the IEP with the following exceptions: transportation to and from school, foreign language and hearing interpreters, vision-, hearing-itinerant services and hearing interpreters.
(Docket Entry No. 169-1, Exh. 1 at GLC0470) (emphasis added).
When he was first enrolled at Genesis, Gilberto was assigned to ride a regular school bus to and from school. According to Ms. Lopez, Gilberto was repeatedly harassed by other students while riding the regular school bus. That harassment took several forms, including stolen items being placed in Gilberto's clothes and backpack for which Gilberto was blamed, Gilberto being thrown down the bus steps on several occasions, and Gilberto being pressured into "throwing gang signs."
On April 10, 2007, Ms. Lopez contacted Metro's customer service hotline to voice her concerns about the treatment that Gilberto was receiving while riding on the school bus. The person who fielded the call recorded the following concerns:
Parent called very upset and concerned about her child. The parent states her son is being assaulted on the Special Ed bus on a daily basis and he is coming home with bruises from other children assaulting him on the bus. The parent states the driver is not able to keep an eye on the kids and drive the bus and has no control. The request that a bus monitor be added to this bus route [is] not only for her child's safety but also for the other children being assaulted. (Docket Entry No. 166-23 at 3). Ten days after this report, April 20, 2007, a student on Gilberto's bus threatened to shoot Gilberto and his parents. Ms. Lopez claims that she contacted MNPS's transportation and special education departments on approximately five occasions in an effort to have a monitor placed on her son's school bus.
Sometime around this period, Ms. Lopez contacted Linda DePriest ("DePriest"), a MNPS special education coordinator, to see about having a monitor placed on Gilberto's bus, or to have him moved to a smaller bus. During their conversation, Ms. Lopez told DePriest that Gilberto "had been frequently threatened by some of the older students and she was fearful that he was on the verge of a mental collapse." (Ms. Lopez Aff. ¶ 9).
At an Individualized Education Plan ("IEP")3 meeting for Gilberto held April 17, 2007, Ms. Lopez requested that a bus monitor be placed on Gilberto's bus. However, the IEP, as formulated, did not include a monitor, in spite of Ms. Lopez's expressed concerns. Ms. Lopez signed the IEP as an "IEP Team Member."
When Gilberto enrolled in the Metro school system, Metro reviewed Gilberto's most recent IEP from the Chicago Public School System. The Chicago IEP mandated that Gilberto receive a bus aide as an accommodation for his disabilities.
Following the IEP meeting, Mrs. Adams, on Thursday, April 26, 2007, sent an e-mail to Sandra Burton ("Burton"), who was employed by Metro as a special education bus route coordinator and was responsible for bus assignments and routes. The e-mail stated:
(Docket Entry No. 252-24). In response, Burton asked that Mrs. Adams supply a list of students who rode on bus driver Christopher Gaines' ("Gaines") bus. Mrs. Adams supplied a list that consisted of four students, one of which was Kolby ("Kolby") Harris. Gilberto was transferred to Gaines' bus on April 29, 2007.
Bus drivers generally receive "information sheets" for students assigned to their buses. However, a student's behavioral history is not described on these information sheets. Gaines never received an information sheet for Gilberto.
Gaines also did not receive an information sheet on Kolby, another passenger on the bus to which Gilberto was assigned. Kolby is ten years older than Gilberto, and was 19 years old at the time of the events which precipitated the filing of this lawsuit.
On May 7, 2007, Gloria Smith ("Smith"), a substitute driver, was driving Gaines's bus. Smith had no information about the passengers, and no monitor was on the bus. However, the passengers were filmed by a video camera placed at the front of the bus. The video camera, which is pointed towards the back of the bus, is a static camera showing both rows of seats.
The videotape, which lasts approximately 20 minutes, shows that on the way home from school, Gilberto was riding in the front seat on the passenger side, while Kolby was sitting in the next-to-the-last seat on the driver's side. Gilberto left his seat and went and sat down in the seat next to Kolby. After Gilberto sat down, Kolby continued a conversation he was having with Smith.
Shortly thereafter, it appears that Kolby removed his sweater or some sort of other outer garment. Gilberto then ducked down, towards Kolby's lap.4 This occurred on several occasions. During this period Kolby's conversation with Smith ceased. As Gilberto ducked his head down on the last occasion, Kolby began to grunt or moan. Smith (who sounded startled) then asked what was going on, to which Kolby replied that he, Gilberto, was "eating cookies." ...
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