Moore ex rel. Estate of A.M. v. Chilton Cnty. Bd. of Educ.

• Decision Date: 03 March 2014
• Docket Number: Case No. 2:12–CV–424–WKW.
• Parties: Jill MOORE and Jim Moore, as Statutory Beneficiaries of A.M., and on behalf of the Estate of A.M., Plaintiffs, v. CHILTON COUNTY BOARD OF EDUCATION, Defendant.
• Court: U.S. District Court — Middle District of Alabama

1 F.Supp.3d 1281

Jill MOORE and Jim Moore, as Statutory Beneficiaries of A.M., and on behalf of the Estate of A.M., Plaintiffs,

v.CHILTON COUNTY BOARD OF EDUCATION, Defendant.

Case No. 2:12–CV–424–WKW.

United States District Court,

M.D. Alabama,

Northern Division.

Signed March 3, 2014.

Jeffrey Douglas Ressetar, Michael A. Zimmerman, The Zimmerman Law Firm, John Lejeune, Zimmerman, Zimmerman, Cotner & Lejeune, Steven Gregory White, Attorney At Law, Waco, TX, Martin J. Cirkiel, Cirkiel & Associates, P.C., Round Rock, TX, for Plaintiffs.

Katherine Hortberg Watkins, Boardman, Carr, Hutcheson & Bennett, PC, Mark Seymour Boardman, Boardman, Carr, Bennett, Watkins, Hill & Gamble, P.C., Chelsea, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

KEITH WATKINS, Chief Judge.

The parents of A.M., Jim and Jill Moore, have sued the Chilton County Board of Education, the governing board of the high school where their teenaged daughter attended until May 12, 2010, when tragically she jumped to her death from an interstate overpass. This action proceeds on a claim under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, and Section 504(a) of the Rehabilitation Act, 29 U.S.C. § 794(a), that the Board had actual notice of peer-on-peer disability harassment against A.M. but acted with deliberate indifference to the harassment. Before the court is the Board's motion for summary judgment (Doc. # 35), which has been fully briefed (Docs. # 36–46, 56–57, 60). After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that the motion is due to be granted.

I. JURISDICTION AND VENUE

Subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1331. Personal jurisdiction and venue are uncontested.

II. STANDARD OF REVIEW

To succeed on summary judgment, the movant must demonstrate “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). On a Rule 56 motion, the court views the evidence and the inferences from that evidence in the light most favorable to the nonmovant. Jean–Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir.2010).

The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant can fulfill its initial burden by identifying the portions of the record illustrating the absence of a genuine dispute of material fact or, alternatively, by showing that the materials cited by the non-movant do not establish the presence of a genuine dispute or that the non-movant “cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). If the movant meets its evidentiary burden, the burden shifts to the nonmoving party to establish—with evidence beyond the pleadings—that a genuine dispute material to each of its claims for relief exists. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. A genuine dispute of material fact exists when the nonmoving party produces evidence allowing a reasonable factfinder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir.2001).

III. FACTS AND PROCEDURAL HISTORY

A. Facts

On Wednesday, May 12, 2010, the Moores suffered every parent's worst nightmare when they learned that earlier that morning, their daughter had not gone to school but had taken her own life by jumping from an overpass bridge above Interstate 65 in Chilton County, Alabama. A.M. was fifteen years old at the time and in the tenth grade at Jemison High School. A suicide note, typed on the family computer, read:

Dear Mom and Dad,

I'm leaving today. I'm taking my own life. I'm killing myself because I can't take this crap anymore.

Eli, the local law enforcement, Lola, Leslie, Joab, etc.—this is all the crap that's making me do this.

Don't try to stop me. By the time you find this letter, I'll be dead. It's not your fault. But do not worry. Rejoice because I will be with Him.

Soon, I will return, but in a different form.

(Compl. ¶ 16; Jim Moore's Dep. 63–67; Jill Moore's Dep. 48–50, 74–76.) ¹

The Moores were shocked by the unfathomable loss of their child. They had no idea that A.M. had suicidal tendencies, and they had no idea that anything at school was troubling her. Save one instance during her tenth-grade year when A.M. told her dad that students had been “pick[ing] on” her on the school bus, A.M. had never complained to her parents of any peer-on-peer bullying. (Jill Moore's Dep. 162.) Rather, A.M. typically responded with a perfunctory “fine” when her parents asked about her day at school. (Jim Moore's Dep. 163; Jill Moore's Dep. 25.) But after A.M.'s death, the Moores began to suspect that their daughter had become despondent based upon persistent teasing from her peers about her weight and the fact that she walked with a limp. (Jim Moore's Dep. 163.)

A.M. was a “little overweight,” as described by her father. (Jim Moore's Dep. 135.) At the time of her death, A.M. weighed approximately 225 pounds (Avery's Dep. 15) at an estimated height of 64 inches (Jill Moore's Dep. 51). A.M.'s friend described her as a “big girl,” somewhere “in the middle range of skinny and big.” (Virginia's Dep. 17.) The assistant principal said that A.M. “was perhaps clinically overweight,” but she “was not severely obese.” (Assistant Principal Donna Giles's Aff. 3; see also Joann Lewis's Dep. 20 (A.M.'s bus driver who describes A.M. as “heavy but not extremely heavy”).)

In addition to being overweight, when A.M. was eight or nine years old, she was diagnosed with Blount's Disease. (Jim Moore's Dep. 86, 89.) Blount's Disease is a “progressive disorder of the proximal growth plate of the tibia, resulting in a range of bowing deformity of the legs.” (Report of Michael D. Freeman, Ph.D., at 2 (Doc. # 48–1).) A.M.'s medical records confirm that A.M. had “progressive juvenile onset tibia vera,” also known as Blount's Disease, and that at age ten—the summer before her fifth grade year—she underwent surgery for her tibia vera to treat her “rapidly progressive bowleggedness” and “obvious stance deformity of the left knee.” (Medical Records 37, 86–87.) During the beginning of her fifth grade year, as a result of the surgery, A.M. used a wheelchair and then a walker. (Jill Moore's Dep. 43–45.) It is undisputed that, after her fifth-grade year, A.M. did not require the use of any walking aid, such as a leg brace, cane, crutches, walker, or wheelchair.

Mr. Moore, A.M.'s father, testified, however, that, even after the surgery up until the time of her death, A.M. “walked with an unusual gait because of her knee” and that A.M. “could not run and jump.” (Jim Moore's Dep. 173; see also Jim Moore's Dep. 177 (A.M. “walked with a limp.”).) One of A.M.'s friends at school, Virginia, described A.M. as having “big legs” that were “a little outward instead of ... inward and straight,” and said that A.M. walked with a noticeable limp as if “one of [her] legs was shorter than the other.” (Virginia's Dep. 19–22; see also Lewis's Dep. 20 (observing that A.M.'s “hips were kind of stiff” when she walked).)

In 2008, when A.M. entered Jemison High School in the ninth grade, other students began teasing her because of her weight and her awkward way of walking. Two of A.M.'s peers at Jemison High School, Virginia and Brandon, describe the harassment that A.M. endured. Virginia became good friends with A.M. when Virginia was in the eleventh grade and A.M. was in ninth grade. (Virginia's Dep. 16, 93, 96.) They had several classes together and would sit together in the cafeteria when their schedules permitted. (Virginia's Dep. 16, 96–97, 139–40.) According to Virginia, during A.M.'s ninth—and tenth-grade years, students made fun of A.M. because of the way she walked and “especially [because of] her weight.” (Virginia's Dep. 24.) These students mainly were cheerleaders and football players. (Virginia's Dep. 41, 60.) The cheerleaders would call A.M. “ugly names,” such as “fat ass” and “fat bitch.” (Virginia's Dep. 41, 104.) The name-calling “happened a lot, just about every day” during the two school years preceding A.M.'s death. (Virginia's Dep. 41, 48.) Virginia identifies by name one cheerleader who made fun of A.M., but she knows that there were more “than just this one.” (Virginia's Dep. 102, 108.) Additionally, Virginia observed football players and “some boy basketball players” call A.M. a “fat ass” and “fat bitch” and make “fun of her walk.” (Virginia'sDep. 41–42.) Virginia identified by name a few of these alleged bullies. (Virginia's Dep. 79–81, 102, 147–48.)

Virginia recalled that in A.M.'s ninth-grade year, “a couple of times” when the two of them would walk together down the hallway and would pass “big groups” of students, those students “would talk about [her] and A.M.,” but Virginia could not remember the names of those students nor did she indicate what these students said. (Virginia's Dep. 145–46.) Virginia did recount some specific incidents, however, and named some students who harassed A.M. (Virginia's Dep. 79, 80.) For instance, on one occasion, a male student, whom Virginia identified by name, was standing in the hallway with a “big group” of students and made fun of A.M. as they walked by. That student made fun of A.M.'s limp and called her fat. (Virginia's Dep. 147–48.) On several other occasions, another male student would tease A.M. about her limp and her “look [s]” as she and Virginia passed by him in the hallway. (Virginia's Dep. 149–50.) On another occasion during A.M.'s tenth-grade year, a female student, who was hanging out with a group of students in the hallway, harassed A.M. about the “way [she] walked and the way she talked.” (Virginia's Dep. 152.) In response to the constant name-calling, A.M. would either ignore it or tell the perpetrators to “shut up” or “mind their own...