Novit v. Metro. Sch. Dist. of Warren Twp.

• Decision Date: 03 January 2023
• Docket Number: 1:21-cv-02168-TWP-TAB
• Parties: COLLEEN NOVIT, and DANIEL NOVIT, individually and on behalf their Minor Child, E.N., Plaintiffs, v. METROPOLITAN SCHOOL DISTRICT OF WARREN TOWNSHIP, Defendant.
• Court: U.S. District Court — Southern District of Indiana

COLLEEN NOVIT, and DANIEL NOVIT, individually and on behalf their Minor Child, E.N., Plaintiffs,
v.
METROPOLITAN SCHOOL DISTRICT OF WARREN TOWNSHIP, Defendant.

No. 1:21-cv-02168-TWP-TAB

United States District Court, S.D. Indiana, Indianapolis Division

January 3, 2023

ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Hon. Tanya Walton Pratt, Chief Judge.

This matter is before the Court on a Motion for Partial Summary Judgment filed by Defendant Metropolitan School District of Warren Township ("Warren Township") pursuant to Federal Rule of Civil Procedure 56 (Filing No. 34). Plaintiffs Colleen and Daniel Novit, individually and on behalf of their minor child, E.N. (collectively, the "Novits"), initiated this action to redress physical injuries suffered by E.N., a wheelchair bound disabled student, while being transported home on a school district bus. The Novits' eight-count Amended Complaint seeks monetary damages pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq., § 504 of the Rehabilitation Act ("RHA"), 29 U.S.C. § 794, the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., the U.S. Constitution, the Fourteenth Amendment to the U.S. Constitution, 42 U.S.C. § 1983, and state tort law (the "Amended Claims") (Filing No. 1-2 at 27-40). Warren Township argues that partial summary judgment on the Amended Claims is appropriate because the Novits failed to exhaust administrative remedies, and the Amended Claims are time barred and do not relate back to the initial Complaint (Filing No.

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37; Filing No. 53). For the reasons set forth below, the Court grants Warren Township's Motion for Partial Summary Judgment.

I. FACTUAL BACKGROUND

The following facts are not necessarily objectively true, but, as required by Federal Rule of Civil Procedure 56, the facts are presented in the light most favorable to the non-moving party. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

A. E.N.'s Individual Education Plan

The Novits' minor child, E.N., is a non-verbal, wheelchair bound student who suffers from cerebral palsy, microcephaly, seizures, fetal alcohol syndrome, epilepsy, refeeding syndrome, failure to thrive, and post-traumatic stress disorder (Filing No. 1-2 at ¶ 28).^[1] E.N.'s parents enrolled him at a Warren Township school during the 2017-2018 school year. (Filing No. 35-1). Warren Township held a "move-in" case conference committee ("CCC") meeting with Plaintiff Colleen Novit and other stakeholders to plan and create E.N.'s Individual Education Plan ("IEP") (Filing No. 35-2 at 1-12).

The CCC determined E.N. was eligible to receive special education services (Filing No. 35-2 at 4) and special transportation (Filing No. 35-2 at 8; Filing No. 35-3). The CCC also determined that E.N. required adult supervision, had a seizure disorder that impacted transportation, had communication concerns because he was non-verbal, had special equipment including a wheelchair, had medication to be transported and/or administered, that his condition posed a potential 9-1-1 emergency, and that E.N. was non-ambulatory. (Filing No. 19 at ¶ 30; Filing No. 35-3.)

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The CCC met again on October 30, 2017 (Filing No. 35-5) and Colleen Novit participated along with her attorney (Filing No. 35-5 at 17). The CCC discussed E.N.'s transportation needs among other topics (Filing No. 35-5 at 13) and agreed that E.N.'s "bus driver and monitor [would] be trained in his Diastat^[2] protocol, [and that] he [would] be transported in [a] wheelchair, door to door." (Filing No. 35-5 at 13). Warren Township was to "mak[e] sure appropriate staff [] watched videos on Diastat and seizures, [and] mak[e] sure [the] Health Care Coordinator [had] a date to train appropriate staff (including bus staff) on training materials...." (Filing No. 35-5 at 15.)

B. The April 19, 2018-Bus Incident

On April 19, 2018, E.N.'s regular bus monitor was absent, and a substitute bus monitor was assigned to his bus route (Filing No. 19 at ¶ 63). The bus driver was unfamiliar with E.N.'s needs as outlined in his IEP and the bus monitor was unfamiliar with E.N.'s seizure action plan and had not received hands-on training on administering Diastat (Filing No. 1-2 at ¶ 78). While being transported home, E.N. suffered a seizure episode for approximately twenty minutes on a Warren Township school bus (the "Bus Incident"). Id. at ¶ 80-111. Neither the bus driver nor the bus monitor ever administered Diastat to E.N, id. at ¶ 119, or fully complied with his seizure action plan. As a result, E.N. suffered "neurological and physical regression, an overall regression in his medical state, and personal injuries." Id. at ¶ 120.

C. The Procedural History

On May 7, 2018, the Novits withdrew E.N. from Warren Township (Filing No. 35-4) and on April 17, 2019-nearly one year following the incident-filed a Complaint in Marion Superior Court ("State Court")^[3]alleging two counts of state negligence against Eastridge Elementary

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School, Metropolitan School District of Warren Township Transportation Department, Metropolitan School District of Warren Township Board of Education, Dr. Dena Cushenberry- the superintendent, Sheila Ramirez-the bus drive, Jane Doe Monitor-later learned to be Laura Jane Thompson (collectively, "Dismissed Defendants"), and Warren Township. (Filing No. 1-1.) The Complaint alleged negligence in the reasonable supervision and care of E.N., the training and hiring of the bus driver and monitor, and an unsafe environment. Id. at ¶ 43. On April 26, 2021, the Novits filed a Motion for Leave to file an Amended Complaint, (Filing No. 1-2), which the State Court granted on July 14, 2021 (Filing No. 1-3).

On The Novits filed their Amended Complaint on August 3, 2021. The Amended Complaint contains six new counts-Counts II, IV, V, VI, VII, and VIII-against only Warren Township^[4] pursuant to the IDEA, ADA, RHA, the Fourteenth Amendment to the U.S. Constitution, and § 1983 (Filing No. 1-2 at 4). The claims in the Amended Complaint are:

Count I-Negligence (state law claim)

Count II-based on Negligence per se by Colleen Novit and Daniel Novit on behalf of Minor child E.N. against Warren Township for allegedly violating the IDEA, § 504 of the RHA, and the ADA (Filing No. 1-2 at ¶ 140-43);

Count III- Negligence-Loss of Services (state law claim)

Count IV-based on Negligence per se by Colleen Novit and Daniel Novit Individually against Warren Township for allegedly violating the IDEA, § 504 of the RHA, and the ADA (Filing No. 1-2 at ¶ 149-53);

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Count V-under the IDEA, Fourteenth Amendment, and § 1983 by Colleen Novit and Daniel Novit on behalf of Minor child, E.N., against Warren Township for allegedly "failing to conduct an appropriate evaluation of E.N.'s transportation needs and failing to properly plan for, coordinate, communicate, disseminate, and provide E.N. with a proper safe, and free appropriate public education, special education, related services, travel training, medical training, and all entitlements provided by IDEA including but not limited to a safe, proper, and appropriate transportation to and from school." (Filing No. 1-2 at ¶ 156);

Count VI-under § 504 of RHA, Fourteenth Amendment, and § 1983 by Colleen Novit and Daniel Novit on behalf of Minor child, E.N., against Warren Township based on the same factual allegations as found in Count V and allegedly "failing to accommodate properly and safely E.N.'s handicap and disabilities, thus excluding E.N. from participation in, denying E.N., the benefits of and subjecting E.N. to discrimination." (Filing No. 1-2 at ¶ 162);

Count VII-under the ADA, Fourteenth Amendment, and § 1983 by Colleen Novit and Daniel Novit on behalf of Minor child, E.N., against Warren Township based on the same factual allegations as counts V and VI (Filing No. 1-2 at ¶ 167); and

Count VIII-under the Fourteenth Amendment and § 1983 by Colleen Novit and Daniel Novit on behalf of Minor child, E.N., against Warren Township for allegedly "improperly supervis[ing] [E.N.] on the school bus with an inadequately trained and/or untrained bus monitor and/or driver during his drive home from school," and also impeding E.N.'s "right to freedom from harm, right to safe and proper school bus transportation, his liberty interest in protecting and preserving [his] life and safety.. .and protecting E.N.'s personal bodily integrity." (Filing No. 1-2 at ¶ 172-73). This count also incorporates the factual allegations found in Counts V-VII. Id. at ¶ 174.

Warren Township later removed the matter to federal court (Filing No. 1) and filed the instant Motion seeking a partial summary judgment as to all six of the federal claims in the Amended Complaint-Counts II, IV-VIII (the "Amended Claims"). (Filing No. 34). The Novits responded and Warren Township replied (Filing No. 45; Filing No. 53). The Novits have petitioned the Court for leave to file a surreply (Filing No. 54) and Warren Township has filed a response in opposition (Filing No. 56).

II. SUMMARY JUDGMENT STANDARD

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A motion for summary judgment asks the court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Federal Rule of Civil Procedure 56(a). The Court views the record in the light most favorable to the non-moving party-the Novits-and draws all reasonable inferences in that party's favor. Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018). However, inferences supported by only speculation or conjecture will not defeat a summary judgment motion. Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007) (citation and quotation marks omitted). The court cannot weigh evidence or make credibility determinations on...