Norris By Norris v. Board of Educ.

Citation797 F. Supp. 1452
Decision Date01 May 1992
Docket NumberNo. IP 90-1340-C.,IP 90-1340-C.
PartiesJason NORRIS, a minor by next friends, Carolyn Norris and Gerald Norris, and Carolyn Norris and Gerald Norris, Plaintiffs, v. The BOARD OF EDUCATION OF GREENWOOD COMMUNITY SCHOOL CORPORATION, et al., Defendants.
CourtU.S. District Court — Southern District of Indiana

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Michael S. Reed, Indianapolis, Ind., for plaintiffs.

Donald S. Smith, Riley Bennett & Egloff, Indianapolis, Ind., for defendants.

MEMORANDUM ENTRY DISCUSSING ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, ENTERING JUDGMENT IN FAVOR OF DEFENDANTS ON COUNTS I THROUGH V, AND DISMISSING COUNTS VI THROUGH XIV

TINDER, District Judge.

Plaintiffs' Amended Complaint contains fourteen Counts stating claims for monetary damages for alleged wrongdoing by various combinations of the named Defendants. Defendants' Motion for Summary Judgment challenged the viability of each count. For the reasons discussed below, this Court will enter judgment in favor of Defendants on Counts I, II, III, IV and V. Counts VI, VII, VIII, IX, X, XI, XIII and XIV fail to state claims upon which relief can be granted and must be dismissed. Count XII must be dismissed because it states a claim over which this Court lacks subject matter jurisdiction. Defendants Clark Pleasant School Corporation's Motion for Summary Judgment will be denied as moot.

BACKGROUND

Plaintiffs' Amended Complaint names the following persons and entities as Defendants: Greenwood Community School Corporation ("GCSC"), Johnson County Special Services Cooperative ("JCSSC"), Dr. Donald Strobel ("Strobel") (Superintendent of GCSC), Dr. Roger Brenton ("Brenton") (Asst. Superintendent of GCSC), Elbert Martin ("Martin") (Director of JCSSC), Sue Rice ("Rice") (Asst. Dir. of JCSSC), Roger Kinsey ("Kinsey") (Principal of Southwest Elementary School), Theresa Mandery ("Mandery") (teacher at Southwest Elementary School), Paul Velez ("Velez") (Principal of Greenwood Middle School), Mary Boand ("Boand") (teacher at Greenwood Middle School), Donna Anders ("Anders") (teacher at Greenwood Middle School), Linda Begley ("Begley") (Guidance Chairperson at Greenwood Middle School), Kenneth Nierman ("Nierman") (Asst. Principal of Greenwood Middle School), Judy Shockley ("Shockley") (Asst. Dir. of Johnson County Special Education), Angela Hornsby ("Hornsby") (teacher's aide for Southwest Elementary School), Stephanie Westcott ("Westcott") (School Psychologist for Special Services for Johnson County), Mattie Alger ("Alger") (aide for Southwest Elementary School), Clark Pleasant School Corporation ("CPSC"), Franklin Community School Corporation ("FCSC"), Edinburg School Corporation ("ESC"), Ninehav Hinsley Jackson School Corporation ("NHJSC") and Center Grove Community School Corporation ("CGCSC").

Plaintiff Jason Norris ("Jason") is an emotionally handicapped minor; Carolyn and Gerald Norris (collectively "Norris'") are Jason's legal guardians. Jason attended classes at some of the Defendant school corporations and had direct or indirect contact with the natural persons named as Defendants. The Facts section of the Amended Complaint alleges that Defendants moved Jason between different programs and schools in a failed attempt to satisfy the requirements of the Individuals with Disabilities Education Act ("IDEA" or "the Act"), 20 U.S.C.A. §§ 1401 et seq. (West 1988 & Supp.1992).1 Jason was diagnosed as having Attention Deficit Hyperactivity Disorder. Believing that the schools were not adequately or lawfully taking care of Jason's educational needs, the Norris' filed a request with the Indiana Department of Education, Division of Special Education; the request sought review of Jason's individual education plan ("IEP") and requested that a Hearing Officer review Jason's recent suspensions.

The type of hearing requested by the Norris' is called an Indiana Rule S-1 Hearing ("S-1 Hearing"), because it is provided by Rule S-1, which is located at 511 Ind.Admin.Code tit. 7-1, et seq. Plaintiffs allege that Defendants filed an Indiana Rule S-5 Application ("Rule S-5") in retaliation for Plaintiffs' request for the S-1 Hearing. Rule S-5 provides the procedures by which a minor is removed from his or her home and placed in a residential or institutional psychiatric facility. 511 Ind.Admin.Code tit. 7-5, et seq. Without Plaintiffs' knowledge or consent, four persons convened a Local Coordinating Committee ("LCC") to proceed with the Rule S-5 application; the LCC voted to submit a Rule S-5 application to the Indiana Department of Education.

The Rule S-1 hearing was held before a Hearing Officer, who determined that Jason was not a candidate for a residential or institutional placement. The Hearing Officer issued findings and a decision, which required the schools to change Jason's IEP to conform to the IDEA. Plaintiffs allege that Defendants made a "systematic effort to circumvent" that order. At the beginning of the 1989-90 academic year, Plaintiffs placed Jason in a hospital and then enrolled him in Indiana Public School # 31 two days later.

Plaintiffs' allegations and claims arise from the battle waged between the parties regarding Jason's education. Plaintiffs allege that Defendants failed to provide Jason Norris with the type of education required by State and federal law and by specific orders of the Hearing Officer. Plaintiffs also claim that Defendants improperly attempted to remove Jason from his guardians and attempted to force Jason from the school system. These acts were allegedly done in retaliation for Plaintiffs' lawful attempts to force Defendants to provide a proper education. Finally, Plaintiffs allege that Defendants violated State and federal law by communicating confidential information to other administrators and other students.

In resolving Defendants' Motion, the Court has examined the evidence submitted by the parties, which includes affidavits by John C. Ehrmann, Carolyn Norris, Gerald Norris, Betty Firth, Sue Rice and Paul Velez.

DISCUSSION

Defendants' challenges to Plaintiffs' Amended Complaint may be broken down into discrete sections. The subsections below discuss and determine the legal status of each claim stated in the Amended Complaint.

COUNT I — STATE LAW TORT OF MALICIOUS PROSECUTION

Count I alleges that GCSC, JCSSC, Strobel, Brenton, Martin, Rice, Hornsby, Kinsey, Mandery, ESC, NHJSC, CPSC, FCSC and CGCSC are liable for committing the Indiana common law intentional tort of malicious prosecution. Plaintiffs allege that Defendants are liable under this tort theory because Defendants unlawfully initiated a Rule S-5 proceeding to remove Jason from the home of his grandparents in bad faith retaliation for Plaintiffs' request for a Rule S-1 hearing. (Pls.' Am. Compl., Count I ¶¶ 2, 5.)2

A claim of malicious prosecution requires proof of four elements: (1) that the defendant instituted or caused to be instituted a prosecution against the plaintiff; (2) defendant acted with malice in doing so; (3) prosecution was instituted without probable cause; and (4) the prosecution terminated in plaintiff's favor. Strutz v. McNagny, 558 N.E.2d 1103, 1106 (Ind.Ct.App.1990) (trans. denied); Lazarus Dept. Store v. Sutherlin, 544 N.E.2d 513, 519 (Ind.Ct.App.1989); F.W. Woolworth Co. v. Anderson, 471 N.E.2d 1249 (Ind.Ct. App.1984) (trans. denied). Defendants argued that even if Plaintiffs have stated a proper claim for this tort, the Defendants enjoy statutory immunity from liability for this kind of tortious conduct. As state governmental entities and state governmental employees, the Defendants are covered by sovereign immunity except for liability allowed expressly by statute. Indiana allows liability for some kinds of torts, but has expressly excluded liability for the tort of malicious prosecution. Ind. Code Ann. § 34-4-16.5-3(5) (Burns Supp. 1991) ("Tort Claims Act"). The Torts Claims Act provides that:

A governmental entity or an employee acting within the scope of his or her employment is not liable if a loss results from:
....
(5) The initiation of a judicial or administrative proceeding;

Id. This statute applies plainly to make the school corporation Defendants immune from liability for initiating a Rule S-5 administrative proceeding.

Plaintiffs argued that the Defendants ought not to enjoy immunity because Defendants brought the S-5 proceeding in bad faith. Bad faith, in the form of malice, is the very element of the malicious prosecution tort that makes the conduct wrongful. Board of Comm'rs of Hendricks County v. King, 481 N.E.2d 1327, 1331 (Ind.Ct.App.1985). Because the primary tort arising from initiating legal proceedings necessarily includes the element of bad faith, the presence of bad faith cannot remove the conduct from the very protection the Tort Claims Act envisioned. Jacobs v. City of Columbus, 454 N.E.2d 1253, 1261 (Ind.Ct.App.1983). The tortious conduct alleged in Count I is within the scope of immunity provided by Ind.Code Ann. § 34-4-16.5-3(5).

Vainly attempting to get around the Tort Claims Act, Plaintiffs argued that the natural person Defendants' acts were outside scope of their employment because the S-5 proceeding was not lawful and because they initiated the proceeding in bad faith.3 This argument is incorrect; the employees' acts were well within the scope of their employment. The acts constituting the alleged malicious prosecution were referring Jason's case to the LCC and initiating the subsequent S-5 proceeding. The statute creating and governing LCCs makes plain that a school corporation has the privilege and duty of referring cases to the LCC. Ind.Code Ann. §§ 31-6-14-3(2) to XX-X-XX-X (Burns 1987). Thus, Indiana statutes provide specifically that school corporations, through their employees, may initiate LCC proceedings.

Plaintiffs seem to believe that because they have alleged that Defendants initiated the S-5...

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