Moore ex rel. Bell v. Hamilton Se. Sch. Dist., No. 1:11-cv-01548-SEB-DML

CourtUnited States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
Writing for the CourtSARAH EVANS BARKER
PartiesNATALIE MOORE Individually, and as Mother, Natural Guardian and Next Friend of JAMARCUS BELL, Plaintiff, v. HAMILTON SOUTHEASTERN SCHOOL DISTRICT, DR. BRIAN SMITH, TIGE BUTTS, BILLY STACY, JR., Defendants.
Decision Date29 August 2013
Docket NumberNo. 1:11-cv-01548-SEB-DML

NATALIE MOORE Individually, and as Mother, Natural Guardian
and Next Friend of JAMARCUS BELL, Plaintiff,

No. 1:11-cv-01548-SEB-DML


Dated: August 29, 2013


This cause is before the Court on Defendants' Motion for Summary Judgment [Docket No. 65], filed on December 20, 2012 pursuant to Federal Rules of Civil Procedure 56. Defendants seek summary judgment on all counts of Plaintiff Moore's complaint: (1) common-law negligence under the Indiana Child Wrongful Death statute, (2) negligence per se for violation of the federal Individuals with Disabilities Education Act (IDEA), (3) negligence per se for violation of the federal Rehabilitation Act, (4) recovery under 42 U.S.C. § 1983 for violations of the IDEA, the Rehabilitation Act, and the Due Process Clause of the U.S. Constitution, and (5) violation of Title IX of the Education Amendments Act of 1972.1 Plaintiff has abandoned Count Five since filing her complaint; summary judgment is accordingly GRANTED on her

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Title IX claim.2 Regarding the other claims, for the reasons set forth below, the Motion for Summary Judgment is GRANTED in part and DENIED in part.

Factual Background

Plaintiff Natalie Moore is the mother of Jamarcus Bell ("Jamarcus"), a child who tragically committed suicide on October 20, 2010.3 Compl. ¶ 31.4 During his sixth grade year, Jamarcus enrolled at Fishers Junior High School (FJHS), a public school within the Hamilton Southeastern School District (HSE). ¶ 10. The following year, Jamarcus began experiencing disciplinary problems at school, and these problems continued throughout his years at FJHS; in total, he was cited for 36 separate disciplinary infractions in less than two years. Butts Dep. Ex. 2. His misbehavior usually consisted of inappropriate physical contact with other students, such as slapping, spitting, punching, kicking, or placing gum in another student's hair. Id. Tige Butts, the Assistant Principal at FJHS, was the school official primarily in charge of disciplining Jamarcus and communicating with his parents about disciplinary issues. ¶¶ 4, 12. On several occasions, Jamarcus was punished for acts of retaliation he perpetrated against other students who had provoked him, but his parents say they were nonetheless left with the impression that he was the instigator. N. Moore Aff. ¶ 4, 5.

Jamarcus's problems with self-control worsened in seventh grade. He received 15 disciplinary referrals when in "unstructured settings" (i.e. outside of the classroom), leading

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Butts to express concern about his overall ability to control himself. Butts Dep. 126; HSE Dep. Ex. 2, at 9. Butts described Jamarcus as a "likable kid" and a "pretty intelligent guy," but frustrating to an administrator because of the volatility of his behavior: "One minute he'd be your friend and giving you high fives, and the next he'd turn around and do something he shouldn't have been doing as soon as you're out of eyesight." He characterized this behavior as unusual, even within the smaller group of students with whom he regularly interacted for disciplinary reasons. Butts Dep. 104-105.

In an essay in the spring of his seventh grade year, Jamarcus related that he had "cut himself," run away from home, and attempted to overdose on pills; he explained that he did "not know what's wrong with [him]" and felt unable to control his impulsive behavior. HSE Dep. Ex. 2, at 72-72, 75. On April 21, 2009, Jamarcus made an apparent suicide attempt in a closet at school, leaving a note in which he expressed fear of punishment by his stepfather as his primary motive. N. Moore Dep. Ex. 2. After the suicide attempt, Jamarcus's mother admitted him to the hospital for nine days where he underwent intensive psychiatric treatment. Id. at 66. When he returned to school from the hospital, Jamarcus received no additional attention or supervision from school officials. Id.

In the spring of 2009, Jamarcus became a patient of psychiatrist Syed Khan, who treated him on a monthly basis until May 2010 and prescribed two medications to control his moods and depression. Khan Dep. 9; Defs.' Rep. 8. Jamarcus was additionally diagnosed with attention deficit hyperactivity disorder (ADHD), major depressive disorder, and oppositional defiant disorder. ¶ 16. In the fall semester of 2010 alone—his eighth-grade year—Jamarcus received 14 disciplinary referrals. HSE Dep. Ex. 16. Butts reached the conclusion that Jamarcus's behavior was intractable, and, after another disciplinary incident in December 2009, he recommended to

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the administration that Jamarcus be expelled. Butts Dep. 212-214. Around the same time, Jamarcus's mother had him evaluated by a neuropsychologist, Dr. Christopher Sullivan, who concluded that Jamarcus's receiving adjustments to his learning environment was "critical" to his well-being. Sullivan Dep. 44. Dr. Sullivan recommended that Jamarcus be evaluated for special education services, and his mother in turn requested an evaluation from HSE. ¶ 18. She asserts that this was the first time she had known of the possible availability of special education intervention for Jamarcus. ¶ 19.

On February 2, 2010 HSE convened a Case Conference Committee (CCC) to evaluate Jamarcus's eligibility for special education, staying his expulsion process until the CCC made its decision. ¶ 22. Participants included teacher Amy Godbout, coordinator of special programs Barbara Walters, school psychologist Callie Mathers, HSE special education director Thomas Bell, Tige Butts, and Jamarcus's mother, Natalie Moore. Dr. Mathers reported the results of evaluations including a cognitive ability test—in which Jamarcus scored at or above average in all subject areas—an adaptive functioning evaluation, and a "functional behavioral assessment." HSE Dep. Ex. 3, at 106, 222, 223. Dr. Mathers reported the overall scores of the adaptive functioning evaluation to the CCC; more specific results not presented to the CCC gave Jamarcus low scores for "school living," "health and safety," and "functional academics." Mathers Dep. 17-18, 20-21. The "functional behavioral assessment" drew on input from Jamarcus's teachers, at least some of whom rated him as "clinically significant" in the following behaviors: hyperactivity, aggression, conduct problems, attention problems, and "atypicality." HSE Dep. Ex. 3, at 222. He was also rated as "at risk" (a level of concern below "clinically significant") for depression, attention problems, and study skills. Id. This kind of behavioral

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evaluation ordinarily includes classroom observation, but such observation was not conducted in Jamarcus's case.

Dr. Mathers also conducted an interview with Jamarcus for use in the evaluation. In the interview, Jamarcus said in a sentence-completion exercise that, "I wish...I could stay out of trouble." Mathers Dep. 74. He also expressed frustration about feeling picked on by fellow students and teachers and feeling "infuriated" when provoked by other students. Id. Finally, Tige Butts made a presentation of Jamarcus's disciplinary history to the CCC, discussing Jamarcus's lengthy history of behavioral issues and his frustration at Jamarcus's lack of improvement. HSE Dep. Ex. 3, at 206.

The CCC concluded that Jamarcus demonstrated "inappropriate behaviors under normal circumstances," one of the five criteria sufficient to establish "emotional disability" status for a student—a finding that usually triggers a special education placement if the disability produces an adverse educational impact for a "long time." Bell Dep. 129; HSE Dep. Ex. 3, at 207. However, the CCC concluded that Jamarcus did not qualify for disability status, reasoning that his "C average" grades were evidence that he was "successful" in the normal environment and was not suffering an adverse educational impact from his behavioral problems. Id. Plaintiff received notice of the CCC proceedings and was present during the final evaluation; she and her husband both assert that, although they did not interpose objections on the record regarding the decision reached, they were ill-informed and confused about what special education services would entail. N. Moore Dep. 103-104; N. Moore Aff. ¶ 20. Although she signed a form informing her of the availability of the "procedural safeguards notice" detailing her rights to pursue an appeal or due process hearing if she disagreed with the CCC determination, Plaintiff

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contends that she never received the actual notice, and that she was unaware of her procedural rights in the aftermath of the decision. HSE Dep Ex. 3, at 9; N. Moore Aff. ¶ 21.

After the CCC reached its decision denying him special education status, Jamarcus was expelled from FJHS. ¶ 26. Following his expulsion, Jamarcus attended Shelter Care, which provided a more structured learning environment. N. Moore Dep. 63. According to both his mother and Dr. Khan, he showed signs of improvement during this period. Id.; Khan Dep. Ex. 1. In the fall of 2010, Jamarcus enrolled as a freshman at Hamilton Southeastern High School, which, like FJHS, is a part of the HSE public district. Officials at Hamilton Southeastern were not made aware of Jamarcus's history of behavioral problems, including the suicide attempt. Simmons Dep. 137-138. During his brief time in high school, Jamarcus was involved in four disciplinary referrals to school administration; even more than at FJHS, however, it seems that Jamarcus was predominantly the victim of other students' actions. Simmons Dep. 125. Plaintiff recalls that Jamarcus had his clothes stolen, had his backpack dumped in the hallway, was physically harassed by other students and was subjected to epithets such as "flamer" and "faggot." ¶ 29, 30; N. Moore Dep. 41-44. Reggie Simmons, the dean of the high school,...

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