McCarthy v. Scottsdale Unified Sch. Dist. No. 48

Decision Date23 August 2019
Docket NumberNo. CV18-1351-PHX-DGC,CV18-1351-PHX-DGC
Citation409 F.Supp.3d 789
Parties Sean MCCARTHY, a Student, Individually and by and Through his Parents John McCarthy and Mary McCarthy, Individually, Plaintiffs, v. SCOTTSDALE UNIFIED SCHOOL DISTRICT NO. 48, a Political Subdivision of the State of Arizona; et al., Defendants.
CourtU.S. District Court — District of Arizona

Aaron Thomas Martin, Martin Law & Mediation PLLC, Rachael Marie Peters Pugel, Robert Francis Kethcart, Rebekah Lee Wallace Elliott, Snell & Wilmer LLP, Daniel Edward Fredenberg, Jason Michael Kelly, Fredenberg Beams, Phoenix, AZ, for Plaintiffs.

Georgia A. Staton, Gordon Lewis, Ravi Vasishta Patel, Jones Skelton & Hochuli PLC, Phoenix, AZ, Kyle Aaron Mabe, Robert D. Haws, Shelby Mae Exposito, Brittany Jae Reed, Gust Rosenfeld PLC, Phoenix, AZ, for Defendants.

ORDER

David G. Campbell, Senior United States District Judge

Plaintiff Sean McCarthy and his parents, John and Mary (together "the McCarthys"), sued Defendants Scottsdale Unified School District No. 48 ("the District"), Christopher Satterlie, and others on various constitutional and state law causes of action. Doc. 1 at 1-2. Satterlie moved for partial summary judgment on four of Plaintiffs' claims. Doc. 43. The remaining Defendants joined Satterlie's motion and moved for partial summary judgment on seven of Plaintiffs' claims. Docs. 44, 46.1 Satterlie joined this motion. Doc. 45. All motions are fully briefed (Docs. 53, 54, 55, 59), and oral argument will not aid in the Court's decision. Fed. R. Civ. P. 78(b) ; LRCiv 7.2(f). For the reasons set forth below, the Court will grant Satterlie's motion and grant the District's motion in part.

I. Background.

The following facts are largely undisputed. Where there is a dispute, the evidence will be viewed in the light most favorable to Plaintiffs, the nonmoving parties, and all justifiable inferences will be drawn in their favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

A. The Parties.

Sean McCarthy is the 18-year-old son of John and Mary McCarthy. He has been diagnosed with Pervasive Developmental Disorder

, part of the autism spectrum. Doc. 1 at ¶¶ 2, 40. Sean cannot communicate orally. Id. ¶ 3.

Defendants are or were employees of the District and Desert Mountain High School ("the School") and served various roles related to Sean's education. Doc. 1 ¶¶ 17-34. These roles include the District superintendent (Dr. Denise Birdwell), the District's general counsel (Michelle Marshall), the District's director of special education services (Dawn Schwenckert), the District's assistant superintendent of personnel and specialized services (Pam Sitton), the District's executive director of special education (Diane Bruening), the District's director of special education – compliance (Tara Gonyer), the District's executive director of student and community services (Milissa Sackos), the School principal (Nikki Wilfert), the School's assistant principals (David Vines and Kristopher Alexander), the School's special education teachers (Marjorie Richards, Cindy Guillaume, Laural Onstott, Brian Akmon, and Christoper Satterlie), and the School's psychologist (Andrea Mijak) and paraprofessionals (Marc Telep and Carlos Lopez). Id. ¶¶ 17-31. For most of the relevant time, Satterlie served as Sean's special education teacher and was responsible for Sean's "day-to-day education, assessment, and supervision." Id. Telep and Lopez were also responsible for Sean's assessment, support, and supervision. Id. ¶¶ 33-34. Plaintiffs sue all Defendants in their official capacities and the following Defendants in their individual capacities: Birdwell, Schwenckert, Wilfert, Vines, Alexander, Richards, Onstott, Akmon, Satterlie, Telep, and Lopez.

B. Relevant Facts.

In February 2015, Sean's individual education plan ("IEP") team agreed to send him to a self-contained autism

program at the School. Id. ¶ 49. Between IEP meetings in March 2015 and January 2016, the McCarthys contacted Sackos, Satterlie, and other Defendants regarding concerns with the adequacy of services provided to Sean. Id. ¶ 69. At the January 2016 IEP meeting, the team created a communication goal for Sean. Id. ¶ 71. At the May 2016 IEP meeting, the McCarthys became aware that Sean was lashing out in class and had exposed himself on at least one occasion. Id. ¶ 78. In October 2016, the McCarthys agreed to allow the District's behavior intervention team to observe Sean for development of a behavior intervention plan ("BIP"). Id. ¶ 94. The BIP was created in November 2016. Id. ¶ 95.

Plaintiffs contend that rather than implement Sean's BIP, the District and its employees used physical restraints and seclusion techniques to control Sean's behavior. Id. ¶ 98.2 On January 11, 2017, the McCarthys submitted a public records request to the District to obtain Sean's discipline records. Id. ¶ 145. Sometime during January 2017, the McCarthys reviewed these documents and learned that the School's employees were using crisis prevention intervention ("CPI") holds on Sean.3 Id. ¶ 148; Doc. 53 at 19 ¶¶ 5, 32 (noting CPI holds on October 7 and December 7, 2016). The McCarthys filed a complaint with the Department of Education Office of Civil Rights ("OCR"). Id. ¶ 149. After failing to receive requested documents, the McCarthys filed a second OCR complaint in April 2017. Id. ¶ 154.

On April 13, 2017, the McCarthys and the District participated in a mediation and signed a Settlement Agreement ("the Settlement"). Id. ¶ 156. The Settlement resolved all issues and disputes relating to the McCarthys' two OCR complaints. See Doc. 43 at 16. The parties agreed that Sean would be placed at Sierra Academy until he graduates or turns 22. Id. The District also agreed to pay the McCarthys' legal bills and provide Sean compensatory services in the form of: (1) 208 hours of compensatory education to focus on functional life and job skills; (2) an in-home functional behavioral assessment, a BIP, and 20 hours of parent training; (3) community based services up to $1,500; and (4) consultation with the District's transition specialist to revise Sean's transition plan and address post-secondary employment opportunities. Id. at 16-17. The District agreed to provide training to special education staff and administrators on the proper use of restraint and seclusion techniques, reporting requirements, and implementation of IEPs. Id. at 17. The District also agreed to provide the McCarthys with all emails related to Sean exchanged between January and May 2016 and March and December 2015. Id. The McCarthys agreed that they received adequate consideration to resolve all of their IDEA, ADA, and Section 504 claims against the District. The McCarthys also released the District, its Board members, employees, agents, representatives, successors, assigns, insurers and attorneys from any and all liability, rights, actions, claims, obligations, demands, fees, and costs that arise from or relate to claims under the IDEA. Doc. 43 at 17.

Following execution of the Settlement, the McCarthys learned about an incident on January 19, 2017, where Telep performed multiple CPI holds on Sean and pinned Sean against the wall before "tackling him" to the floor. Docs. 1 ¶ 128, 53 at 50. A draft incident report described Sean as being extremely upset and unable to be calmed by various techniques. Doc. 53 at 50. The report states that Sean got out of his chair and ran towards Telep swinging his fists. Id. Telep turned Sean away, so he was facing the wall. Id. Sean turned around again, swinging at Telep, who then backed Sean to the corner of the room while shielding himself, and then "turned Sean gently to the floor to prevent him from going after anyone else [nearby]." Id. Once Sean calmed down and was ready to stand back up, Telep took him to the nurse. Id. On the way out of the room and down the stairs, Sean lunged at another student coming up the stairs and Telep deflected the swings. Id. Attached to the report is an e-mail from Onstott to Sean's math teacher – the author of the incident report – asking her to take out the part that says "he was up against the wall." Doc. 53 at 49. The McCarthys claim to have received a copy of the draft incident report from a private party, not from the document requests sent to the School and District. Doc. 1¶ 162.

The McCarthys contend that if they had known about the January 19 incident before the OCR complaint mediation, they would not have signed the Settlement. Doc. 1 ¶ 167. After the Settlement, the McCarthys went back and forth with the School and District to obtain more information about Sean's classroom experiences and discipline, but they never initiated an IDEA due process complaint. Docs. 1 ¶¶ 156-66, 43 at 21.

C. The Claims.

Plaintiffs filed this suit on May 1, 2018. Doc. 1 at 43. Sean asserts the following causes of action individually: (1) a § 1983 claim for violation of Fourth Amendment rights against all Defendants (Count 1); (2) a § 1983 claim for violation of Fifth Amendment rights against all Defendants (Count 2); (3) a § 1983 claim for violation of Fourteenth Amendment rights against all Defendants (Count 3); (4) a § 1985 action for conspiracy to interfere with civil rights against the District, Birdwell, Marshall, Schwenckert, Sitton, Bruening, Gonyer, Sackos, Wilfer, Vines, and Alexander (Count 4); (5) assault against Satterlie, Telep, Akmon, and Lopez (Count 8); (6) battery against Satterlie, Telep, Akmon, and Lopez (Count 9); (7) aiding and abetting tortious conduct against the District, Birdwell, Marshall, Schwenckert, Sitton, Bruening, Gonyer, Sackos, Wilfert, Vines, Alexander, Richards, Onstott, Guillaume, and Mijak (Count 10); (8) negligence against all Defendants (Count 11); and (9) negligent hiring, training, and supervision against the District, Birdwell, Schwenckert, Sitton, Bruening, Gonyer, Sackos, Wilfert, Richards, Onstott, and Guillaume (Count 13). The complaint alleges four...

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    ...public education (“FAPE”) by means of an [individual education program (“IEP”)].” McCarthy v. Scottsdale Unified Sch. Dist. No. 48, 409 F.Supp.3d 789, 801 (D. Ariz. 2019) (citations omitted). A FAPE is defined as special education and related services that: (1) have been provided at public ......

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