S.S. v. Eastern Kentucky University

• Decision Date: 19 May 2006
• Docket Number: No. CIV.A. 5:03-20-JMH.,CIV.A. 5:03-20-JMH.
• Citation: 431 F.Supp.2d 718
• Parties: S.S., Plaintiff, v. EASTERN KENTUCKY UNIVERSITY, et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

431 F.Supp.2d 718

S.S., Plaintiff, v. EASTERN KENTUCKY UNIVERSITY, et al., Defendants.

No. CIV.A. 5:03-20-JMH.

United States District Court, E.D. Kentucky, Lexington.

May 19, 2006.

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Christopher S. Turner, Yunker & Associates, J. Dale Golden, Golden & Walters PLLC, Katherine S. Sanford, Yunker & Associates, Katherine K. Yunker, Yunker & Associates, Oran S. McFarlan., III, Yunker & Associates, Lexington, KY, for S.S. a minor, by and through his Parents and Next of Friends Next Friend James Stutts Next Friend Carol Stutts, Plaintiff.

Douglas L. McSwain, Sturgill, Turner, Barker & Moloney PLLC, Joshua Michael Salsburey, Sturgill, Turner, Barker & Moloney PLLC, Merrie Kristin Winfrey, Sturgill, Turner, Barker & Moloney PLLC, Patricia T. Bausch, Sturgill, Turner, Barker & Moloney PLLC, Stephen Lewis Barker, Sturgill, Turner, Barker & Moloney PLLC, Lexington, KY, for Eastern Kentucky University, Jacqueline Vance Individually, Ellen Rini Individually, Defendants.

MEMORANDUM OPINION AND ORDER

HOOD, District Judge.

This matter is before the Court on Defendants' motion for summary judgment [Record No. 189].¹ All responses and replies having been filed, this matter is now ripe for review.

I. FACTUAL BACKGROUND

A. Introduction

At the time this case was filed, Plaintiff was a student enrolled at the Model Laboratory Middle School ("Model"), which is operated by Defendant Eastern Kentucky University ("EKU") to train student teachers under the supervision of certified teachers. Plaintiff has since enrolled at another school. Plaintiff has been diagnosed with cerebral palsy, attention deficit/hyperactivity disorder, dyslexia, pervasive developmental disorder, and post traumatic stress disorder. As a result of his physical and mental disabilities, his education was directed by an Individual Education Plan ("IEP") developed by the Admissions and Release Committee ("ARC") at Model. Defendant Vance serves as the Director of Model, and Defendant Rini is Model's school psychologist.

This action arises out of a long and unfortunate string of incidents that occurred during Plaintiffs time at Model. While the particulars of Plaintiffs legal claims will be discussed in Section IV, infra, the core of all of Plaintiffs allegations is the failure of Model and its administrators, particularly Vance and Rini, to adequately respond to those incidents and maintain a safe educational environment for Plaintiff. The parties tell markedly different versions of many events, but as also discussed in Section IV, infra, for the most part those differences are not material. Therefore, the incidents and responses need only be described in sufficient detail to provide context for the discussion that follows.

B. Incidents in Sixth Grade

Plaintiff entered Model as a sixth-grader in 2000. In August of 2000, students threw wet paper towels at Plaintiff in the school's locker room. Plaintiff claims that the paper towels were soaked with urine and that the students who threw the paper towels also taunted him by calling him a "mental retard," "gay," and "queer." First Plaintiff, and a few days later his parents, informed Rini of the incident. Model conducted an investigation, and two students admitted throwing paper towels soaked with water at Plaintiff. The two students were told to stop and their parents were notified.

Also in August of 2000, Plaintiff claimed that someone had written "[Plaintiff] is gay" on a blackboard in the school library, and that someone had slammed his head into the blackboard. The school investigated, and a witness stated that Plaintiff had written the message on the board himself and then accidentally rammed his own head into the board. Gene Wolf, Plaintiffs special education teacher, saw the board and indicated that he believed that the handwriting was Plaintiffs. Nevertheless, the school responded by individually counseling students in Plaintiffs grade about name-calling, and telling them to stop whatever name-calling they may have been doing. During the process, several students told the administrators that there were frequent problems with Plaintiff instigating name-calling.

There were two incidents in January 2001. On January 22, Plaintiff alleges that he was verbally harassed and physically assaulted in the lunchroom and a hallway. According to Plaintiff, Model teachers responded at the scene, but Defendants state that they never received any complaint or report of any incident on or around that date. On January 26, Plaintiff alleges that a student hit him in the head and slammed his head into a heater. He states that he notified the school, but again, Defendants state that they never received a complaint or report of any incident.

In February of 2001, Plaintiff claimed that a student tackled him in the hall and rammed textbooks into his chest. Model investigated, the other student was sent home with a half-day suspension, and the school's Disciplinary Committee was convened. The Disciplinary Committee found neither student blameless and gave both warnings.

C. Incidents in Seventh Grade

In September of 2001, Plaintiff had what the complaint refers to as the "cerebral events," and what Defendants refer to as Plaintiff violently attacking students, teachers, and administrators. Plaintiff claims that following the events he was punished by not being allowed to participate in lunch or recess for a period of several weeks. Defendants claim that it was not punishment, but rather that the ARC had a meeting, in which Plaintiffs parents participated, and that it was agreed for the sake of safety that Plaintiff would not join the rest of the class for lunch or recess, and that he would leave each class five minutes early.

In October of 2001, Plaintiffs mother reported to Vance that she had heard someone tell Plaintiff, "You are dead." There is no evidence of a response by the school. Also in October, according to Plaintiff, a student kicked him in the presence of a teacher. Defendants state that they have no knowledge of the incident.

Sometime during the fall of 2001, Plaintiff told Rini that a student had sexually assaulted him in the locker room by grabbing Plaintiff's genitals and saying, "Now I'll see if you are a woman." The school investigated, but the other student denied the accusations, and the school could not determine who to believe. Plaintiff's parents asked that the locker room be monitored while students were changing, but instead, the school changed the other student's schedule and allowed Plaintiff to use a separate locker room to change for gym class.

In February of 2002, Model had a problem with three or four boys, including Plaintiff, engaging in flatulence during class. Plaintiff's mother informed Model that Plaintiff experienced involuntary flatulence as a side effect of one of his medications, and that he was being teased and harassed as a result. The school looked into the matter, and Plaintiff was moved to a seat near a window and told that he was free to leave class if he felt the need. The other students were told not to egg Plaintiff on.

Also in February of 2002, Plaintiff claimed that two students attacked him. A teacher witnessed the altercation and sent all three students to Vance's office. An investigation could not determine who started the violence. Vance attempted to resolve the matter through a mediation session between Plaintiff and one of the other students, but the session was terminated because Plaintiff began insulting and taunting one of the other students. As the other student left the room, Plaintiff tried to trip him.

In March of 2002, Plaintiff claims that his mother was informed that he would not be allowed to play on the school baseball team. An email to Plaintiff's mother indicated that the coach wanted Plaintiff to play, but wanted reassurance that it was safe, based on his slow reflexes and the potential danger of being hit with a ball. The school asked Plaintiff's parents to sign a waiver, which they apparently did, because Plaintiff was allowed to join the team.

On April 29, 2002, Plaintiff claimed that he was attacked in the cafeteria, and that the altercation culminated with his head being thrown through a glass sneezeguard. Plaintiff's parents took him to an emergency room and filed a police report. Witnesses differed on the details of the incident, with some saying that Plaintiff instigated the conflict. All agreed that the other student had pushed Plaintiff into the glass, although some said that Plaintiff's arm, rather than his head, had gone through the glass. Plaintiffs father took him to the hospital, where he was treated for a sprained neck. Plaintiff and the other student each received a one-day suspension and were not allowed to go on a school trip to Washington, D.C. and Virginia. The other student also received Saturday detention. Plaintiff's father filed a police complaint; the other student went to trial and was acquitted.

On May 2, 2002, Plaintiff claimed that the same student involved in the prior incident had pulled Plaintiff's chair out from under him, causing him to fall and hit his head. A teacher who witnessed the incident stated that Plaintiff pushed the chair out himself and then falsely accused the other student.

On May 21, 2002, Plaintiff was, in Vance's office as a result of some minor disciplinary issues and he was told to speak with an administrator. When he tried to use the phone to call his mother, the phone was taken away from him. About ten minutes later, he was allowed to call his mother.

D. Incidents in Eight Grade

On August 15, 2002, following a school picnic attended by Plaintiff and his mother, Plaintiffs mother reported to the school that he had been bullied, that a student had called him a "bastard," and that other students had not allowed him to sit at their table. A teacher who had been assigned to monitor Plaintiff during the...