Miller v. Monroe Sch. Dist.

Decision Date03 February 2016
Docket NumberCASE NO. C14-1946-JCC
Citation159 F.Supp.3d 1238
Parties Erica Miller, individually and as guardian for minor child I.M., Plaintiff, v. Monroe School District, et al., Defendants.
CourtU.S. District Court — Western District of Washington

Brian H. Krikorian, Erica Anne Krikorian, Creer Legal, Lynnwood, WA, for Plaintiff.

Donald F. Austin, Joseph P. Derrig, Michael Alexander Patterson, Patterson, Buchanan, Fobes & Leitch PS, Seattle, WA, for Defendants.

ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

John C. Coughenour

, UNITED STATES DISTRICT JUDGE

This matter comes before the Court on the motions for summary judgment by Defendants individual Board members (Dkt. No. 65) and Defendants District, Board, and individual District employees (Dkt. No. 73). Having thoroughly considered the parties' briefing and the relevant record, the Court hereby GRANTS in full the individual Board members' motion (Dkt. No. 65) and GRANTS in part and DENIES in part the motion by the District, Board, and individual District employees (Dkt. No. 73) for the reasons explained herein.

I. BACKGROUND

Many of the facts in this case are disputed. The following are the facts viewed in a light most favorable to Plaintiff, as is appropriate on summary judgment review. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)

.

I.M. was diagnosed with autism

at the age of five. (Dkt. No. 1 at 8.) At the time of the events relevant to this case, I.M. was eight years old and a third grade Monroe School District student. (See Dkt. No. 90-1 at 2, 4; Dkt. No. 90-3 at 2.) To address I.M.'s disability, a multidisciplinary team—including various school employees and I.M.'s mother, Erica Miller—created an individualized education plan (IEP), an aversive intervention plan (AIP), and a behavior intervention plan (BIP) (collectively referred to as “the Plans”). (See Dkt. No. 90-1 at 2, 4.) The Plans created in May 2013 were in effect when the present conflict began. (See Dkt. No. 76 at 3.)

I.M.'s May 2013 Plans described when, how, and which aversive interventions may be performed. (Dkt. No. 90-1 at 2, 5.) Aversive interventions are “the systematic use of stimuli or other treatment which a student is known to find unpleasant for the purpose of discouraging undesirable behavior on the part of the student.” (Dkt. No. 90-1 at 2.) Under I.M.'s AIP, aversive interventions could be utilized “if I.M. becomes unsafe to himself or others.” (Dkt. No. 90-1 at 2.) The AIP permitted three kinds of aversive interventions: time out, seclusion, and Right Response techniques for physical management. (Dkt. No. 90-1 at 2.) Time outs could last a maximum of five minutes; seclusions could last up to 20 minutes. (Dkt. No. 90-1 at 2.) The use of aversive interventions was limited to “Right Response trained individuals.” (Dkt. No. 90-1 at 3.) Right Response training is a four-day, 14-hour course designed to teach staff how to respond to escalating unsafe behaviors and how to implement physical safety techniques and interventions. (Dkt. No. 90-3 at 18, 22.) The course was required for school staff members who worked with special education students with AIPs. (Dkt. No. 90-3 at 22.)

I.M.'s BIP also set forth “crisis management strategies” that were to be utilized when I.M. exhibited unsafe behavior. (Dkt. No. 90-1 at 5.) The strategies grew progressively more severe if the previous step was unsuccessful: first, asking I.M. to take a time out at his desk with his head down; then, asking I.M. to take a time out in a more secluded area of the classroom; next, asking I.M. to take a time out in the seclusion room with the door open and an adult in the doorway; and, finally, closing the door to the seclusion room and monitoring I.M. through the window. (Dkt. No. at 5.)

In September 2013, I.M. began third grade at Chain Lake Elementary School. (Dkt. No. 76 at 1, 3.) His teacher was Melissa Hart, who was trained in special education. (Dkt. No. 76 at 1-2.) Hart was hired six days before she began teaching and was not able to participate in the Right Response training prior to becoming I.M.'s teacher. (Dkt. No. 76 at 2.) During the course of Hart's interview, she was not asked whether she had Right Response training. (C15-1323, Dkt. No. 30-2 at 732.) Hart was provided an overview of the Right Response training at the end of the first day of school. (Dkt. No. 76 at 2-3.) She did not complete the Right Response course until October 2013, after I.M. left Chain Lake. (See Dkt. No. 76 at 3.)

I.M. attended Chain Lake for six days, during which he was subjected to aversive interventions on 10 occasions. (Dkt. No. 76 at 3, 5.) The aversive interventions were as follows:

September 4 at 9:45 a.m. : When I.M. was asked to write his name, he became aggressive towards Hart, hitting and kicking her. He was taken to the quiet room in a two-person escort by Hart and paraeducator Vanessa Ostler. He remained in the quiet room for five minutes. The entire time he was in the quiet room, an adult was outside the door and could see I.M. through the window in the door. (See Dkt. No. 90-3 at 2; Dkt. No. 76 at 5-6.)

September 4 at 12:40 p.m. : I.M. attempted to play with a gaming device. When asked to put it away, he became physically and verbally aggressive towards Hart and his fellow students. He was taken by a two-person escort to the quiet room. He remained there for two five-minute periods. An adult was outside the door and could see and hear I.M. through the window throughout the seclusion. (See Dkt. No. 90-3 at 3; Dkt. No. 76 at 6-7.)

September 4 at 3:20 p.m. : I.M. became frustrated at another student and pushed the student into a wall. He was taken to the quiet room in a two-person escort by Hart and Ostler. I.M. remained in the quiet room for five minutes. An adult was outside the door and could see and hear I.M. throughout the seclusion. (See Dkt. No. at 4; Dkt. No. 76 at 7.)

I.M. came home after school on September 4 with feces in his pants. (Dkt. No. 90-6 at 3.)

September 5 at 9:13 a.m. : When asked to write his name, I.M. lashed out at Hart. Paraeducator Brennan escorted I.M. to the quiet room, where he remained for three five-minute periods. Brennan was outside the door and could see and hear I.M. throughout the seclusion. (See Dkt. No. at 5; Dkt. No. 76 at 7-8.)

September 5 at 12:53 p.m. : While in music class, I.M. began disrupting and kicking his fellow students. I.M. then tried to leave the class and hit and kicked Ostler when she tried to stop him. Brennan put I.M. in a Right Response sitting hold to calm him down. (See Dkt. No. at 6; Dkt. No. 78 at 5-6.)

September 5 at 1:57 p.m. : I.M. was asked to participate in a group activity, but did not want to do so. He kicked a classmate and was escorted to the quiet room where he remained for five minutes. An adult staff member could see and hear I.M. throughout the seclusion. (See Dkt. No. at 8; Dkt. No. 76 at 8.)

September 6 at 9:32 a.m. : When I.M. was asked to sit safely in his chair, he pushed the chair at Hart, kicked her, and tried to hit her. Brennan escorted him to the quiet room, where he stayed for four minutes. Brennan observed him throughout the seclusion. (See Dkt. No. at 9; Dkt. No. 76 at 8.)

September 6 at 12.45 p.m. : I.M. became annoyed at and punched another student. Brennan put her arms around I.M. from behind and I.M. bit Brennan. Hart and Brennan escorted I.M. to the quiet room where he remained for five minutes with Brennan watching him through the window. (See Dkt. No. at 10; Dkt. No. 76 at 8-9.)

September 10 at 11:35 a.m. : I.M. was asked to stop disrupting music class. He stopped and took a deep breath, then ran out of the room. When Hart caught him and escorted him back, he kicked and punched her. Hart restrained I.M. on the floor in a hold, during which I.M. bit Hart's thumb. (See Dkt. No. at 11; Dkt. No. 76 at 9.)

September 11 at 9:46 a.m. : I.M. became annoyed at and hit another student. He was escorted to the time out chair. When the chair hold did not work, he was put in a floor hold for three minutes. (See Dkt. No. at 12; Dkt. No. 76 at 9.)

Miller observed the quiet room on September 11. (Dkt. No. 90-6 at 23.) On the wall, she saw streaks of brown matter that she believed to be feces. (See Dkt. No. 90-6 at 24.) She also saw streaks of “clear type fluid.” (Dkt. No. 90-6 at 24.) Miller removed I.M. from school that day. (See Dkt. No. 90-6 at 24.)

Miller requested an IEP meeting to address her concerns about the lack of compliance with I.M.'s Plans, including her fear that aversive interventions were being overused. (See Dkt. No. 74 at 7.) She asked that Lara Cole, Director of Student Services, attend the meeting. (Dkt. No. 74 at 7.) Cole was unable to attend the September 16 meeting due to a scheduling conflict. (Dkt. No. 74 at 7.) A second IEP meeting was held on September 19 with Cole in attendance. (Dkt. No. at 4.)

At the September 19 meeting, the District proposed an amended BIP and AIP. (Dkt. No. 74 at 8.) The amended Plans removed the Right Response training requirement. (Dkt. No. 74 at 8-9.) The amended Plans also expanded the situations in which aversive interventions would be appropriate: both when I.M. posed a clear and present danger of serious harm to himself or others, and also when he posed a serious harm to property or of seriously disrupting the learning environment. (Dkt. No. 74 at 9.) Miller objected to this provision, seeking to remove aversive interventions from the Plans entirely. (See Dkt. No. 74 at 9; Dkt. No. 90-4 at 6.) School staff informed Miller why they believed aversive interventions were necessary. (Dkt. No. 74 at 9.) The Plans were also amended to state that seclusions would occur in the front office and would not exceed 20 minutes. (Dkt. No. 90-2 at 5.) After 20 minutes, Miller would be called and I.M. would be given the opportunity to change locations and use the bathroom. (Dkt. No. 90-2 at 5.)

On September 20, Cole sent a copy of the amended Plans to Miller. (Dkt. No. 90-2...

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