M.K. ex rel. Mrs. K. v. Sergi

• Decision Date: 12 May 2008
• Docket Number: No. 3:96CV00482 (WIG).,3:96CV00482 (WIG).
• Citation: 554 F.Supp.2d 175
• Court: U.S. District Court — District of Connecticut
• Parties: M.K., by and through his Mother and Next Friend, MRS. K., Plaintiffs, v. Theodore SERGI, et al., Defendants.

554 F.Supp.2d 175

M.K., by and through his Mother and Next Friend, MRS. K., Plaintiffs, v. Theodore SERGI, et al., Defendants.

No. 3:96CV00482 (WIG).

United States District Court, D. Connecticut.

May 12, 2008.

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Andrew Alan Feinstein, David C. Shaw, Law Offices of David C. Shaw, Bloomfield, CT, for Plaintiffs.

Ralph E. Urban, Thomas M. Fiorentino, Paula D. Sullivan, Susan T. Pearlman, Attorney General's Office, Frederick L. Dorsey, Paul H. Gamache, Siegel, O'Connor, Zangari, O'Donnell & Beck, Hartford, CT Jody Pagano Benbow, Siegel, O'Connor, Zangari, O'Donnell & Beck, New Haven, CT, for Defendants.

RULING ON THE DCF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [# 230]

WILLIAM I. GARFINKEL, United States Magistrate Judge.

Mrs. K., on behalf of and as next friend of her son, M.K., (collectively "plaintiffs"), has brought this action alleging that defendants violated the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482; the Americans With Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq.; § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794; and plaintiffs' rights under the Due Process Clause of the Fourteenth Amendment to United States Constitution, made actionable by 42 U.S.C. § 1983. Named as defendants are Theodore Sergi, the former Commissioner of the Department of Education ("DOE"); Darlene Dunbar, the Commissioner of the Connecticut Department of Children and Families ("DCF"), who is sued in her official capacity; Karl Kemper, the Regional Administrator of the Eastern Region of DCF,¹ who is sued in his individual capacity; Carissa LeBrun,² Kemper's subordinate, who is also sued in her individual capacity;³ the Putnam Board of Education ("Putnam"); John Shea, the former Director of Student Services for Putnam; and Patricia Kline, his successor as Putnam's Director of Student Services.

Plaintiffs' consolidated complaint⁴ sets forth seven counts, five of which contain claims against one or more of the DCF defendants. Count I is a claim for"costs, attorney's fees, and expert fees" based on plaintiffs' alleged status as prevailing parties at the due process hearings, Case Nos. 95-353 and 03-087. Count II alleges that the Hearing Officer's decisions in these cases were erroneous in certain respects. Count III claims that DCF's alleged policy and practice of placing "arbitrary time limits" on certain home-based services as compared to institutional services violates 28 C.F.R. § 35.130(b) and the principles articulated in Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), and Jackson v. Fort Stanton Hospital & Training School, 757 F.Supp. 1243 (D.N.M.1990), rev'd in part, 964 F.2d 980 (10th Cir.1992), and that DCF's placement of arbitrary time limits on the provision of services designed to prevent the breakdown of the family unit violates 28 C.F.R. § 35.130(b)(3)(h). Both practices, they claim, discriminate against children based on the severity of their disabilities. Count IV alleges that defendants Kemper and LeBrun violated plaintiffs' rights secured by the ADA, § 504 of the Rehabilitation Act, and § 1983 by acting intentionally and/or in reckless disregard of plaintiffs' federal rights with respect to the following actions: (a) threatening to terminate DCF support if Mrs. K. did not surrender her right to mandatory Protective Services and apply for Voluntary Services; (b) by threatening to terminate DCF support if Mrs. K. did not authorize the DCF treatment team to use restraints and seclusion on M.K. while he was hospitalized; (c) by contacting her employer, Quinebaug Valley Youth and Family Services, and suggesting that she was unfit to work on DCF-funded cases because she had filed a lawsuit against DCF, and by refusing to take action to remediate the harm to Mrs. K. after she complained to defendant Kemper about these retaliatory acts; (d) by refusing to release information to a potential employer because of the lawsuit; (e) by designating M.K. a "voluntary" DCF case in the face of Mrs. K.'s opposition; and (f) by threatening to terminate DCF funding if Mrs. K. continued to challenge the separate services provided to the family. Count IV further challenges the following alleged actions of defendants Dunbar and Kemper as violating the ADA and § 504 of the Rehabilitation Act: (a) by establishing and implementing policies and practices which permit nearly unlimited funding for institutional placements for M.K. but only time-limited services that were limited in for home-based children; (b) by establishing and implementing arbitrary time limitations on the length of time support services would be provided to the K. family when it was clear that Mrs. K. could not keep M.K. at home without substantial in-home and community-based programs and/or residential support; (c) by terminating and/or threatening to terminate DCF-funded supports that were necessary to enable M.K. to receive an appropriate education; and (d) by failing and/or refusing to cooperate with Putnam to develop and implement a transition plan for M.K. The fifth count is addressed to the Putnam defendants. The sixth count is addressed to the Commissioner of the Department of Education. The last count, Count VII, is brought pursuant to § 1983 for defendant Kemper and LeBrun's alleged violation of plaintiffs' due process rights by virtue of their alleged intentional and/or reckless acts of intimidation and retaliation set forth above, as well as (a) by forcing Mrs. K. to surrender her parental rights or her entitlement to mandatory DCF services in order to obtain necessary services for M.K.; (b) by failing to provide written notice prior to the termination of DCF services; (c) by failing to provide plaintiffs with a reasonable opportunity to participate in the decision-making as to what services would be funded by DCF; and (d) by subjecting M.K. to restraints and seclusion without informed consent.

Additionally, as to the DCF defendants, plaintiffs allege that defendant Dunbar, as Commissioner of DCF, was aware of M.K.'s need for residential, therapeutic, and other professional support services to maintain him in his home community but failed to take action to put those services in place so that M.K. could live and receive education other than in segregated residential institutions. (Consol.Compl.¶ 8.) As to defendant Kemper, the Regional Administrator for the Eastern Region of DCF, plaintiffs allege that he, too, was aware of M.K.'s needs but, rather than providing the necessary services, he authorized the maintenance of M.K.'s out-of-state placement for so long that M.K. lost the chance to develop a healthy relationship with his family. (Id. at ¶ 9.) Plaintiffs also claim that he took specific actions in retaliation for Mrs. K.'s attempts to enforce her federal rights, including having his subordinates contact Mrs. K.'s employer to suggest that she was an unfit employee to work on DCF-funded programs. (Id.) As to defendant LeBrun, plaintiffs allege that she was Kemper's subordinate and participated in the decision to force plaintiff to switch from mandatory Protective Services to Voluntary Services and maintain M.K. as a "voluntary" client of DCF. (Id.)

As relief, plaintiffs seek an order, inter alia, requiring defendants to fully and faithfully implement the Hearing Officer's decisions; requiring them to pay attorney's fees, costs, and expert witness fees; finding that defendants are responsible for the costs of all of the residential and support services provided to M.K., which were necessary for him to benefit from his education; ordering defendants to maintain funding for M.K.'s therapeutic foster placement until transition planning is completed; ordering defendants to provide an appropriate array of support services in the community and school so that M.K. can continue to live in the community and attend public school; reversing the Hearing Officer's decision to the extent that she concluded she did not have jurisdiction over DCF, that, funding for M.K.'s therapeutic placement is not required by the IDEA and ADA, and that she did not have jurisdiction to hold Mrs. K. and M.K. harmless from claims for reimbursement of amounts paid by DCF for educational services; permanently enjoining DCF from reducing or terminating services to M.K. without prior notice and an opportunity to be heard; and awarding plaintiffs compensatory and punitive damages. (Consol.Compl. § V.)

SUMMARY JUDGMENT STANDARD

The standard governing motions for summary judgment is well-settled. A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must resolve all ambiguities and draw all inferences in favor of the non-moving party. Id. at 255, 106 S.Ct. 2505. If there is any evidence in the record from which a reasonable inference could be drawn in favor of the non-moving party on a material issue of fact, summary judgment is improper. See Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir.1994).

The IDEA provides that "[a]ny party aggrieved by the findings and decision" made by a hearing officer "shall have the right to bring a civil action with respect to the complaint presented ... in a district court of the United States." 20 U.S.C. § 1415(i)(2)(A). The district court "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) bas[e] its decision on the preponderance of the evidence." 20 U.S.C. § 1415(i)(2)(B); see 34 C.F.R. § 300.512. Thus, "[f]ederal courts assess IDEA petitions based on the `preponderance of the evidence developed...