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McKenzie v. Talladega City Board of Education

United States District Court, N.D. Alabama, Eastern Division

March 6, 2017

SHIRLENNA MCCKENZIE, as next friend of C.M., a minor, Plaintiff,
TALLADEGA CITY BOARD OF EDUCATION; JENNIFER JACKSON, in her individual capacity; and JEWELL MONROE, in her individual capacity, Defendants.



         This case originates in a school bus evacuation drill during which C.M., a special needs student at Graham Elementary School in Talladega, Alabama, fell and was injured. C.M.'s mother, Shirlenna McKenzie (the “Plaintiff”), has filed suit on behalf of her daughter against the Talladega City Board of Education (the “Board”); Jennifer Jackson, C.M.'s classroom teacher; and Jewell Monroe, the bus driver who conducted the evacuation drill (collectively, the “Defendants”). Her claims include a claim under 42 U.S.C. § 1983 against all of the Defendants for violating C.M.'s “substantive due process rights” and creating a “dangerous situation” when they forced C.M. to participate in the bus evacuation drill (Count I); a § 1983 claim against the Board for failing to adequately train and supervise Jennifer Jackson and maintaining a custom or practice that exhibited “deliberate indifference” to C.M.'s “constitutional rights” (Count II); a claim against the Board for negligence (Count III); a claim against Jennifer Jackson for negligence and wantonness (Count IV); and a claim against Jewell Monroe for negligence and wantonness (Count V). (Doc. 31(“Am. Complaint”)).

         The case in now before the Court on motions for summary judgment by Jackson and Monroe (doc. 56) and the Board (doc. 58). The Defendants have also filed a motion to strike two affidavits submitted by the Plaintiff in opposition to the motions for summary judgment. (Doc. 64). For the reasons discussed below, the Defendants' motion to strike the affidavits will be granted in part and denied in part; the Defendants' motions for summary judgment will be granted as to the Plaintiff's § 1983 claims; and the Plaintiff's state law claims will be dismissed without prejudice.


         The Plaintiff initially filed this action against only the Board and Jennifer Jackson. (Doc. 1). She subsequently amended her complaint and added Jewell Monroe as a defendant. (Doc. 31). The Defendants then filed a motion for judgment on the pleadings, arguing (in part) that the Court lacked subject matter jurisdiction over the case because the Plaintiff had not exhausted her administrative remedies under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.[1] (Doc. 48). The Plaintiff opposed the motion for judgment on the pleadings, asserting in her opposition that “[t]his is simply not an IDEA case.” (Doc. 51 at 5). She stated that she “has no issue and has made no claim regarding the sufficiency of C.M.'s IEP or access to a Free and Appropriate Public Education (FAPE), ” noting that “IDEA's primary purpose is to ensure a FAPE, not to serve as a tort-like mechanism for compensating personal injury.” (Id. at 3-4). The Court agreed with the Plaintiff and denied the Defendants' motion. (Doc. 55).

         Following the completion of discovery, the Defendants filed the present motions for summary judgment. (Docs. 56 & 58). In response to the summary judgment motions, the Plaintiff has submitted (among other evidentiary support) the Affidavit of Bernadine Jackson (doc. 62-4) and the Affidavit of Robin Dates (doc. 62-12), two co-employees who witnessed the bus evacuation drill at issue here. The Defendants have moved to strike the two affidavits because they were not produced by the Plaintiff during discovery. (Doc. 64). The Court will first address the Defendants' motion to strike the affidavits, and will then turn to the motions for summary judgment.


         Bernadine Jackson is a paraprofessional who worked in Jennifer Jackson's classroom at Graham Elementary. She also drove the special needs bus that C.M. regularly rode. Robin Dates worked as a special education aide in teacher Amy Crowe's classroom at Graham Elementary. She also served as Bernadine Jackson's bus driver aide.

         As noted, the Plaintiff's opposition to the Defendants' motions for summary judgment includes an affidavit from Bernadine Jackson and an affidavit from Robin Dates. (Docs. 62-4 & 62-12). In the affidavits, Jackson and Dates provide background information regarding their employment by the Board, the training they have received over the years, and their familiarity with C.M., and describe what they witnessed on the date of the bus evacuation drill. Both affidavits were Dated: April 16, 2015, during the discovery phase of this action. Pursuant to Fed.R.Civ.P. 37(c) the Defendants have moved the Court to strike the affidavits as a sanction for the Plaintiff's failure to produce the affidavits during discovery.[2]They argue that the Court should strike the affidavits in their entirety or, at a minimum, strike certain portions of the affidavits because they contain improper testimony as to causation and inadmissible hearsay. The Plaintiff did not respond to the motion to strike.

         The Court declines to grant the Defendants' motion to strike the affidavits in toto, for two primary reasons. First, Bernadine Jackson and Robin Dates are not surprise witnesses whose identities were kept hidden from the Defendants. To the contrary, the Plaintiff's amended complaint alleges that “C.M.'s bus driver Bernadine Jackson (who is also a para-professional) and another para-professional, Robin Dates, witnessed the entire incident from their nearby classroom windows.” (Am. Complaint at ¶ 42). The Court also notes that the Defendants do not argue that the Plaintiff failed to identify Jackson and Dates as “individual[s] likely to have discoverable information … that the disclosing party may use to support its claims or defenses, ” as required by Fed.R.Civ.P. 26(a).[3] The Defendants' assertion in their motion to strike that they “would have deposed B. Jackson and Dates had they known Plaintiff intended to rely on B. Jackson['s] and Dates' testimony” (doc. 64 at 5) rings hollow, given the Plaintiff's identification of Jackson and Dates as witnesses in her amended complaint and, presumably, in her Rule 26 disclosures. Indeed, the Court finds it surprising that the Defendants elected not to depose Jackson and Dates during discovery. Regardless of whether their affidavits had or had not been produced, the Court would have anticipated that the Defendants would want to depose two disclosed witnesses to the underlying incident.

         Second, the Plaintiff did not conceal the existence of the two affidavits. As the Defendants acknowledge, the Plaintiff identified both affidavits in her privilege log and asserted that they were “attorney work product and therefore not discoverable.” (Doc. 64-3 at 4). The Plaintiff provided the privilege log to the Defendants on October 15, 2015, more than a month and a half before the discovery cutoff date of November 30, 2015. (Doc. 64-3 at 2). The Court appreciates the Defendants' position that the affidavits are not attorney work product and should not have been withheld, but the Defendants had ample time to either file a motion to compel production of the affidavits under Fed.R.Civ.P. 37(a) or notice Jackson's and Dates's depositions and elicit their testimony that way. The Defendants did neither.

         In support of their motion to strike, the Defendants cite Moore v. Corp. Facilities Mgt., L.L.C., Case No. 2:10-cv- 3354-SLB, 2012 WL 4329288 (N.D. Ala. Sept. 17, 2012). In Moore, Chief District Judge Sharon Blackburn granted the plaintiff's motion to strike a witness declaration submitted by the defendant in support of a motion for summary judgment. Unlike here, however, the identity of the witness in Moore had not been disclosed to the plaintiff prior to the deadline for updating the parties' Rule 26 disclosures and prior to the close of discovery. Judge Blackburn determined that “[c]learly, plaintiff was prejudiced by defendant's failure to disclose [the identity of the witness] and the documents attached to his Declaration, which form the basis of defendant's defense to plaintiff's claims; due to the failure to disclose plaintiff had no opportunity to depose [the witness] within the time allowed by the court's scheduling order.” Moore, 2012 WL 4329288 at *5. Under those circumstances, Judge Blackburn found that “defendant's failure to disclose within the time set forth in the court's Scheduling Order was not harmless” and granted the plaintiff's motion to strike. Id.

         Here, in contrast, the Plaintiff disclosed the identity of Bernadine Jackson and Robin Dates as witnesses early in the litigation and disclosed the existence of their affidavits prior to the close of discovery, affording the Defendants ample opportunity to depose them within the time allowed by the Court's Scheduling Order. Although the Court does not condone the Plaintiff's withholding of the affidavits on questionable (at best) work product grounds, the Court finds, with some reluctance, that the Plaintiff's failure to produce the affidavits was harmless, given that the Defendants filed no motion to compel production of the affidavits and could have, in any event, deposed both witnesses.

         The Court does, however, agree with the Defendants that certain portions of the affidavits should be stricken. Specifically, the Court agrees that the 16th paragraph of Bernadine Jackson's affidavit and the10th paragraph of Robin Dates's affidavit should be stricken, because both paragraphs contain speculative and conclusory testimony regarding what would have happened if the evacuation drill had been conducted differently, as well as conclusory testimony that the Defendants' conduct violated mandatory Board policies. The Court also agrees that the 8th paragraph of Jackson's affidavit and the 5th and 7th paragraphs of Dates's affidavit contain inadmissible hearsay, and to that extent those paragraphs are due to be stricken as well. The Court has not considered any of the stricken testimony in ruling on the Defendants' motions for summary judgment.



         Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant summary judgment if the movant shows 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). In other words, summary judgment is proper “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Chapman v. AI Transport, 229 F.3d 1012, 1023(11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving party are not unqualified, however. “[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir.1983) (alteration supplied). Moreover,

[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.

         Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”).

         II. FACTS[4]

         The bus evacuation drill giving rise to this action was conducted in February 2013. At that time, C.M. was 14 years old and a student at Graham Elementary.

         C.M. suffers from cytomegalovirus, cerebral palsy, seizures, asthma, osteopenia, and arthritis. During the 2012-2013 school year, she had the mental capacity of a preschooler. She is non-verbal, other than a few words such as “hey” and “mom.” She is right-hand dominant, and is able to point at things she wants as a means of communication. She is able to complete her school work with “hand over hand” and “hand under hand” assistance.

         C.M. uses a wheelchair, although she is able to walk short distances. The Plaintiff testified that it is “fine” for C.M. to walk as long as there is “somebody beside her, because her ...

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