United States District Court, N.D. Alabama, Middle Division
CAMERON D., individually and as father and next friend of J.D., a minor, Plaintiffs,
ARAB CITY BOARD OF EDUCATION, et al., Defendants.
ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE.
matter comes before the court on Defendants' motion for
summary judgment. (Doc. 45).
in this case are a minor, J.D., who is developmentally
delayed, and his father, Cameron D. Based on events that took
place during J.D.'s second year of kindergarten at the
Arab Primary School, Plaintiffs filed suit against the Arab
City Board of Education, Dr. Leah Keith, Patrick Crowder,
Callie Cranford, Tracey Putman, and Margaret Eddie. Dr. Keith
was the principal of the Arab Primary School; Mr. Crowder was
the school's special education coordinator; Ms. Cranford
was J.D.'s kindergarten teacher during at least part of
the 2015-2016 school year; Ms. Putman was J.D.'s
paraprofessional aide during the 2014-2015 and 2015-2016
school years; and Ms. Eddie was the school's head
custodian. (Doc. 47-20 at 2; Doc. 47-22 at 2; Doc. 47-23 at
2; Doc. 49-39 at 63-64; Doc. 47-21 at 1).
Plaintiffs filed against the Board of Education an
administrative complaint under the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1400
et seq., they moved to Mississippi, where J.D. now
attends school. A hearing officer denied Plaintiffs'
administrative complaint against the Board, and Plaintiffs
appeal that decision, while also raising claims under the
Americans with Disabilities Act (ADA), 42 U.S.C. §
12132; Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794; and Alabama law.
in addition to their IDEA appeal, Plaintiffs assert that:
(1) the Board of Education violated the ADA and Section
(2) the Board of Education is liable for negligence, false
imprisonment, harassment, assault, and battery;
(3) Ms. Cranford and Ms. Putman, in their individual
capacities, are liable for false imprisonment, harassment,
assault, and battery;
(4) Ms. Eddie, in her individual capacity, is liable for
assault and battery; and
(5) Dr. Keith and Mr. Crowder, in their individual
capacities, are liable for negligence.
the parties briefed the motion and the court held a motion
hearing, the court took the motion under submission. The
court WILL GRANT the motion for summary
judgment. The court WILL DISMISS AS MOOT
Plaintiffs' appeal of the IDEA complaint because J.D. is
no longer a student at the Arab Primary School. The court
WILL DISMISS WITHOUT PREJUDICE the state law
claims against the Board of Education because sovereign
immunity bars those claims. The court WILL DISMISS
WITHOUT PREJUDICE the state law claims against Ms.
Cranford, Ms. Putman, Ms. Eddie, Dr. Keith, and Mr. Crowder
because those defendants are entitled to state agent
immunity. The court WILL GRANT SUMMARY
JUDGMENT in favor of the Board of Education and
against Plaintiffs on the ADA and Section 504 claims because
Plaintiffs have presented no evidence creating a genuine
dispute of material fact about whether Defendants
intentionally discriminated against J.D.
allege the Board of Education violated the IDEA. The IDEA has
many purposes, but relevant to this case, it was enacted
“to ensure that all children with disabilities have
available to them a free appropriate public education that
emphasizes special education and related services designed to
meet their unique needs and prepare them for further
education, employment, and independent living, ” and
“to ensure that the rights of children with
disabilities and parents of such children are
protected.” 20 U.S.C. § 1400(d)(1)(A)-(B). To
accomplish that purpose, the school and the parents of a
disabled child develop what is known as an individualized
education program that describes, among other information,
the child's current levels of academic achievement and
functional performance and “an explanation of the
extent, if any, to which the child will not participate with
nondisabled children in the regular class.” 20 U.S.C.
§§ 1414(d)(1)(A)(i), 1414(d)(1)(B); see also
Ortega v. Bibb Cty. Sch. Dist., 397 F.3d 1321, 1324
(11th Cir. 2005).
parent may file an administrative complaint about “any
matter relating to the identification, evaluation, or
educational placement of the child, or the provision of a
free appropriate public education to such child.” 20
U.S.C. § 1415(b)(6). Once a parent has filed an
administrative complaint, “the parents or the local
educational agency involved in such complaint shall have an
opportunity for an impartial due process hearing, which shall
be conducted by the State educational agency or by the local
educational agency, as determined by State law or by the
State educational agency.” 20 U.S.C. §
1415(f)(1)(A). In Alabama, the State Superintendent of
Education appoints a hearing officer to conduct the due
process hearing. Ala. Admin. Code R. 290-8-9-.08(9)(c)4.
Parents may appeal the decision of the administrative hearing
office to the district court, where the court will review
de novo the complaint and may hear additional
evidence if necessary. 20 U.S.C. § 1415(i)(2)(A).
other federal statutes that Plaintiffs say Defendants
violated are Title II of the Americans with Disabilities Act
and Section 504 of the Rehabilitation Act. Title II of the
ADA provides that “no qualified individual with a
disability shall, by reasons of such disability, be excluded
from participation in, or be denied the benefits of the
services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42
U.S.C. § 12132. Section 504 of the Rehabilitation Act
provides in relevant part that “[n]o otherwise
qualified individual with a disability in the United States .
. . shall, solely by reason of her or his disability, 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.” 29
U.S.C. § 794(a). “Discrimination claims under the
ADA and the Rehabilitation Act are governed by the same
standards, and the two claims are generally discussed
together.” J.S., III by & through J.S. Jr. v.
Houston Cty. Bd. of Educ., 877 F.3d 979, 985 (11th Cir.
distinction between an IDEA claim and an ADA/Section 504
claim is that “[t]he IDEA guarantees individually
tailored educational services, whereas Title II and §
504 promise non-discriminatory access to public institutions-
specifically aiming to root out disability-based
discrimination, enabling each covered person to participate
equally to all others in public facilities and federally
funded programs.” Id. at 987 (quotation marks
and alteration omitted).
deciding a motion for summary judgment, the court must first
determine if the parties genuinely dispute any material
facts, and if they do not, whether the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P.
56(a). Under Rule 56, the court “draw[s] all inferences
and review[s] all evidence in the light most favorable to the
non-moving party.” Hamilton v. Southland Christian
Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012)
(quotation marks omitted).
parties submitted evidence in relation to this motion for
summary judgment. Plaintiffs' brief in opposition to
summary judgment, however, also relies on materials that the
court cannot consider in deciding the motion. Most notably,
Plaintiffs argue that the court should conclude that disputes
of material fact exist because one witness, Melanie Collier,
made statements to plaintiffs' counsel that contradict
her sworn deposition testimony. (Doc. 50 at 12-13). But
Plaintiffs present nothing other than allegations in their
brief that Ms. Collier made those contradictory statements,
and the court cannot consider allegations in a brief as
evidence at the summary judgment stage. See Fed. R.
Civ. P. 56(c)(1) (“A party asserting that a fact . . .
is genuinely disputed must support the assertion by . . .
citing to particular parts of materials in the record . . .
.”); Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986). The court has drawn its description of the facts
from the evidence submitted in support of and
opposition to Defendants' motion for summary judgment.
Taken in the light most favorable to Plaintiffs, those facts
are as follows.
beginning of the 2014-2015 school year, J.D., then a
four-year-old who lived with his grandmother, Janet Thompson,
began kindergarten at the Arab Primary School. (Doc. 46 at
10; see Doc. 47-26 at 11). The Arab City Board of
Education (“Board”) soon determined that J.D. was
eligible for special education and related services because
he was developmentally delayed, and assigned Abby Brown to be
J.D.'s special education teacher. (Doc. 49-17 at 14; Doc.
49-38 at 37, 40; Doc. 49-39 at 35). Near the end of the
school year, J.D.'s IEP team decided that J.D. would
repeat kindergarten during the 2015-2016 school year because
he had not mastered the standards required to be promoted to
first grade. (Doc. 49-38 at 37, 49-50; Doc. 49-39 at 35-37;
Doc. 49-53 at 37).
beginning of the 2015-2016 school year, Defendant Callie
Cranford was assigned as J.D.'s special education
teacher; Angela Hill was assigned as his general education
teacher; and Defendant Tracey Putman was assigned as his
aide. (Doc. 49-39 at 61, 63-64; Doc. 49-48 at 21, 22-23; Doc.
47-22 at 2). From October 2015 through March 2016, teachers
and staff at Arab Primary School documented disciplinary
problems with J.D., such as him hitting, punching, kicking,
head-butting, pulling hair of teachers and students; spitting
at people; throwing rocks and chairs; rolling on the ground;
screaming; and on one occasion, exposing himself. (Doc. 49-18
at 14-16, 23-35; Doc. 49-19 at 1-31).
case concerns what happened during the 2015-2016 school year-
J.D.'s second year of kindergarten-and primarily involves
Ms. Cranford's method of putting J.D. in timeout, the
school reassigning J.D. from Ms. Cranford's classroom to
Ms. Brown's, the school's use of “transport
restraint” to move J.D. from one place to another, and
one particular incident which eventually led J.D.'s
family to take him out of school and place him on homebound
services for the rest of the school year.
Timeouts in the Rifton Chair
Cranford testified that she occasionally had J.D. sit in a
child-sized Rifton chair for a two-minute timeout when he was
misbehaving. (Doc. 49-47 at 45-46). A Rifton chair is a
wooden adaptive chair meant to be used by people with certain
physical disabilities. It has a cloth strap with a
three-prong buckle at the waist. (Id. at 46; Doc.
47-19 at 7). Although J.D. had no physical need for a Rifton
chair, Ms. Cranford would have him sit in it because when he
sat in a normal chair, he would “slump out of the
sides, ” and he had a tendency to “rock the
chairs and flip them over.” (Doc. 49-47 at 45-47).
Arab Primary School had two Rifton chairs, one that had been
modified to be more stable and one that was unmodified. (Doc.
47-19 at 3). The parties dispute several facts relating to
these Rifton chairs, including: (1) which teachers used a
Rifton chair for timeouts; (2) which of the two chairs stored
at the school were used for J.D.'s timeouts, (3) how many
times J.D. was made to sit in a Rifton chair for a timeout,
and (4) whether J.D. could unbuckle himself or get out of the
chair on his own. (See Doc. 46 at 1; Doc. 50 at 12).
allege that Ms. Brown and Ms. Crawford used the modified
Rifton chair for J.D.'s timeouts. (See Doc. 50
at 11-13). But they present no evidence that Ms. Brown ever
put J.D. in a timeout at all; that anyone other than Ms.
Cranford put J.D. in timeouts; or that when Ms. Cranford and
Ms. Putman put J.D. in a timeout, they used the modified
Rifton chair. Even viewing the evidence in the light most
favorable to Plaintiffs, the court cannot find that a genuine
dispute exists about who put J.D. in a Rifton chair or which
chair was used. See Hamilton, 680 F.3d at 1318.
Instead, all of the evidence indicates that Ms. Cranford and
Ms. Putman used the unmodified chair for J.D.'s timeouts.
(See Doc. 47-19 at 3; Doc. 49-18 at 1, 10; Doc. 50-1
at 20-21; Doc. 50-3 at 12-13).
Plaintiffs allege that J.D. was put in the Rifton chair ten
to twenty times; but again, they present no evidence in
support of that allegation, relying instead on statements
made in their brief. (See Doc. 50 at 12). The court
cannot consider those statements in determining whether a
genuine dispute of material fact exists. See Fed. R.
Civ. P. 56(e). Instead, the undisputed evidence shows that
Ms. Cranford and Ms. Putman had J.D. sit in the Rifton chair
for a timeout on three occasions. (Doc. 49-46 at 75; Doc.
49-47 at 1, 45-46; Doc. 50-1 at 22).
first two times Ms. Cranford used the Rifton chair were in
October or November 2015, and the last time was in January
2016. (Doc. 49-47 at 45-46.). Ms. Cranford testified
that on the first occasion, she buckled J.D. into the chair;
on the second occasion, he buckled himself in; and on the
third occasion, the strap was not buckled. (Doc. 49-47 at 47;
Doc. 48-48 at 4). In addition, Ms. Putman, J.D.'s
paraprofessional aide, testified that she assisted in
strapping J.D. into the Rifton chair three times. (Doc. 49-47
at 2). Accordingly, Plaintiffs have failed to meet their
burden of establishing a genuine dispute of material fact
about the number of times J.D. was put in the Rifton chair
for a timeout.
Plaintiffs allege that J.D. could not unbuckle the chair or
remove himself from it without help. (Doc. 50 at 11-12). Ms.
Putman testified that J.D. was “easily” able to
unbuckle the chair, and both Ms. Cranford and Ms. Putman
testified that J.D. could “freely” get himself
out of the chair. (Doc. 49-47 at 4, 14; Doc. 49-48 at 8). But
another paraprofessional aide, Ms. Collier, testified that
although J.D. “might could unbuckle himself, . . . that
chair was too small for him. . . . So he-he would have turned
it over or he had to have help to get out of that. Now,
I'm sure he could unbuckle it. . . . But getting out was
a different- was altogether different.” (Doc. 50-1 at
22). Because a conflict exists about whether J.D. could get
out of the chair by himself, the court accepts as true the
evidence that although J.D. could unbuckle the strap, he
could not extricate himself from the chair without help.
to a letter prepared by Dr. Keith, Ms. Thompson contacted Dr.
Keith on February 6, 2016, and stated that “she did not
want [J.D.] to have access to or be placed in the [Rifton]
chair . . for any reason.” (Doc. 49-59 at 40). As a
result, Dr. Keith had the chair removed from J.D.'s
special education classroom and she instructed the teachers
that “the chair at issue (or any such chair orthopedic
or medical support chair [sic]) could under no circumstances
be utilized to address behavioral issues with a
Reassignment to Ms. Brown's “Self-Contained”
he had some disciplinary problems beginning in October 2015,
Ms. Cranford-J.D.'s special education teacher at the
time-testified that his behavioral issues began escalating in
February 2016. (Doc. 49-47 at 27-28). On March 8, 2015, Dr.
Keith sent a number of school employees an email stating:
I spoke with Janet [Thompson] [J.D.'s grandmother] this
afternoon. We discussed having [J.D.] moved to Abby
Brown's self-contained classroom instead of the regular
education classroom to manage his behavior since we
experienced success with the approach last year. She was
agreeable; therefore, we will try it. If we are successful,
we will change his case manager to Abby. He will need to
complete the same classwork as Ms. Hill's other students.
(Doc. 49-19 at 29). Several teachers testified that a
“self-contained classroom” is one in which the
students remain all day. (Doc. 49-48 at 20; see also
Doc. 49-40 at 14-15). Ms. Brown testified that, despite the
reference to her classroom being self-contained, it was not
actually self-contained because the students come and go
between their special education classes and their general
education classes. (Doc. 49-38 at 46-48).
after Dr. Keith sent that email, the school assigned Ms.
Brown as J.D.'s special education teacher, and she
remained his teacher ...