Sherer v. Waier

• Decision Date: 12 June 1978
• Docket Number: No. 77-0594-CV-W-4.,77-0594-CV-W-4.
• Citation: 457 F. Supp. 1039
• Parties: Cheryl SHERER et al., Plaintiffs, v. Raymond D. WAIER, Superintendent of Schools, North Kansas City School District, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

457 F. Supp. 1039

Cheryl SHERER et al., Plaintiffs, v. Raymond D. WAIER, Superintendent of Schools, North Kansas City School District, et al., Defendants.

No. 77-0594-CV-W-4.

United States District Court, W. D. Missouri, W. D.

November 2, 1977.

As Amended June 12, 1978.

Millard F. Aldridge, Kansas City, Mo., for plaintiffs.

Randall E. Hendricks, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Mo., for defendants.

MEMORANDUM AND ORDER

ELMO B. HUNTER, District Judge.

This is a civil action brought by Cheryl and Wayne Sherer, individually and on behalf of their infant daughter, Kimber Sherer, for declaratory and injunctive relief and money damages against officials of the North Kansas City, Missouri, School District. Plaintiffs seek an Order of this Court compelling defendants to provide intermittent catheterization services to plaintiff Kimber Sherer, which they allege are necessary for her to benefit fully from her education. In addition, plaintiffs seek to prevent defendants from segregating Kimber Sherer in a special school for the orthopaedically handicapped and to compel defendants to place her in a regular classroom for instruction with normal children. Plaintiffs also seek compensatory damages for the alleged deprivation of the rights of plaintiff Kimber Sherer, and for the loss of income of plaintiff Cheryl Sherer allegedly necessitated by her performance of services that allegedly were the responsibility of defendants.

Plaintiffs allege that they are seeking to enforce rights guaranteed by the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution, and by the Rehabilitation Act of 1973, 29 U.S.C. § 794. Jurisdiction is alleged under 28 U.S.C. § 1331(a), 28 U.S.C. § 1343(3) and (4), 28 U.S.C. § 2201 and § 2202, and 42 U.S.C. § 1983.

The facts alleged in the complaint are as follows. Plaintiffs all are residents of the North Kansas City, Missouri, School District. Plaintiff Kimber Sherer is eight years old and the infant child of plaintiffs Cheryl and Wayne Sherer. Defendants are the Superintendent, Director of Pupil Services, and Board of Education members of the North Kansas City School District, and the principal of the Briarcliff Elementary School.

Plaintiff Kimber Sherer suffers from a physical condition known as spina bifida, commonly known as "open spine." The complaint alleges that she is mentally competent to attend regular public schools, but because of her physical handicap she was enrolled in the fall of 1975 in the Briarcliff Elementary School in a program for the orthopaedically handicapped. In order to effectively drain her bladder, which is medically necessary to preserve her kidney function, plaintiff Kimber Sherer was placed in October 1975 on a program of intermittent catheterization of the bladder.

In the fall of 1976, the plaintiff parents were advised by their daughter's physicians that it was mandatory for Kimber to be catheterized at least once a day during school hours. Plaintiffs then contacted defendant Johnson, Director of Pupil Services, and requested that the teacher, aide, or school nurse catheterize Kimber Sherer at school. According to the complaint, defendant Johnson denied plaintiffs' request. Plaintiffs then allegedly requested that the North Kansas City School Board consider the matter. The complaint alleges, on information and belief, that the matter was discussed by the School Board in a closed session in December 1976, in the absence of plaintiffs. Thereafter, the School Board allegedly advised plaintiffs that "as a solution to this problem, the School District would provide homebound instruction" for Kimber Sherer.

Because homebound instruction was unacceptable to plaintiffs, plaintiff Cheryl Sherer quit her job so that she could attend on a daily basis to the catheterization needs of her daughter at Briarcliff Elementary School. Cheryl Sherer continued the daily catheterization throughout the remainder of the school year which ended in May 1977, despite loss of income and the inconvenience of travelling to the school.

Defendants have continued to refuse to provide daily catheterization services to Kimber Sherer, according to plaintiffs' complaint, and "are unwilling to discuss this matter any further." Plaintiff Cheryl Sherer no longer is able to provide this service to her daughter, yet without her mother's services, plaintiff Kimber Sherer allegedly will be excluded from attending public school.

Although the complaint has subdivided them into more numerous categories without benefit of separate counts, plaintiffs essentially assert four causes of action herein. First, plaintiffs assert that by segregating plaintiff Kimber Sherer in a classroom for the orthopaedically handicapped and by refusing to provide her daily catheterization services, defendants have violated the Rehabilitation Act of 1973, 29 U.S.C. § 794. Second, plaintiffs contend that defendants have violated Kimber Sherer's right to equal protection of the laws by denying her the same free public education granted to other children without a "compelling justification." Plaintiffs next invoke this Court's pendent jurisdiction over two related state claims by asserting that defendants' actions in denying special catheterization services to Kimber Sherer and in segregating her in a classroom for the orthopaedically handicapped violate her rights under Article IX, Section 1(a) of the Missouri Constitution, and § 162.670, R.S.Mo. (1973).

Defendants have responded to plaintiffs' complaint with a Motion to Dismiss and, in the alternative presumably, a Motion for More Definite Statement and Separation of Plaintiffs' Claims. Defendants' motion and accompanying suggestions assert that plaintiffs' complaint should be dismissed because they have failed to exhaust adequate and available administrative remedies; that the claims under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, should be dismissed because that section does not create a private right of action; and that plaintiffs' claims for money damages should be dismissed because of the qualified immunity possessed by all the defendants. In addition, defendants object to plaintiffs' noncompliance with Rule 10(b) of the Federal Rules of Civil Procedure by joining in one count claims arising out of separate occurrences and based upon both federal and state constitutions and federal and state laws.

Plaintiffs have filed suggestions in opposition to defendants' motion to dismiss. Plaintiffs' suggestions argue that exhaustion of administrative remedies is not required, essentially because those remedies allegedly are inadequate and assert that § 504 of the Rehabilitation Act does create an implied private right of action. In addition, plaintiffs contend that their damage claim should not be stricken until such time as there is a full evidentiary hearing in this action "for Plaintiffs to determine whether Defendants individually or as a group acted in bad faith or with malicious intent." No hearing has yet been held in this action.

The Rehabilitation Act of 1973 prohibits discrimination against handicapped persons by recipients of federal financial assistance. Section 504, 29 U.S.C. § 794, provides:

No otherwise qualified handicapped individual in the United States, as defined in Section 706(6), shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.¹

The regulations further amplify the prohibition of the statute. 45 C.F.R. 84.4(b), 42 Fed.Reg. 22678-22679, provides:

(1) A recipient, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap:

(iv) Provide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others . .

(3) Despite the existence of separate or different programs or activities provided in accordance with this part, a recipient may not deny a qualified handicapped person the opportunity to participate in such programs or activities that are not separate or different.

45 C.F.R. 84.33(c)(1), 42 Fed.Reg. 22682, provides:

. . . the provision of a free education is the provision of educational and related services without cost to the handicapped person or to his or her parents or guardian, except for those fees that are imposed on non-handicapped persons or their parents or guardian.

45 C.F.R. 84.34(a), 42 Fed.Reg. 22682, provides:

A recipient to which this subpart applies shall educate, or shall provide for the education of, each qualified handicapped person in its jurisdiction with persons who are not handicapped to the maximum extent appropriate to the needs of the handicapped person in the regular educational environment operated by the recipient unless it is demonstrated by the recipient that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily.

The regulations implementing Section 504 require that each school district establish administrative procedures under which persons aggrieved may obtain a hearing and review of the School District's actions taken with regard to the evaluation and placement of handicapped children. 45 C.F.R. 84.36; 42 Fed.Reg. 22683. The regulations further require that the administrative procedures include the due process guarantees of notice, opportunity to examine relevant records, an impartial hearing with opportunity for participation by the aggrieved persons and their counsel, and review of any adverse decision. The regulations make specific reference to the provisions of § 615 of the Education for All Handicapped...