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K.G. v. Sergeant Bluff-Luton Community School District

United States District Court, N.D. Iowa, Western Division

March 23, 2017

K.G., a minor, by and through his parents and next friends, SUZANNE GOSCH and KEVIN GOSCH, Plaintiffs,
v.
SERGEANT BLUFF-LUTON COMMUNITY SCHOOL DISTRICT, MIRANDA RIEDIGER, KELLY ADAMS, and DOES 1-30, Defendants.

          OPINION AND ORDER REGARDING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          MARK W. BENNETT U.S. DISTRICT COURT JUDGE.

         TABLE OF CONTENTS

         I. INTRODUCTION ........................................................................... 3

         A. Factual Background ............................................................... 3

         1. The parties ................................................................... 3

         2. KG's education and behavioral plans at school ...................... 4

         3. The incident ................................................................. 5

         4. The aftermath ............................................................... 7

         B. Procedural Background ........................................................... 7

         1. Administrative proceedings ............................................... 7

         2. Judicial proceedings ....................................................... 8

         a. The pleadings ....................................................... 8

         b. Subsequent proceedings .......................................... 9

         II. LEGAL ANALYSIS ........................................................................ 9

         A. Standards For Summary Judgment ........................................... 10

         B. Failure To Exhaust Claims ..................................................... 11

         1. Arguments of the parties ................................................ 11

         2. Analysis .................................................................... 12

         a. The test established in Fry ..................................... 12

         b. The Circuit's application of Fry .............................. 20

         c. Application of Fry here ......................................... 23

         C. The § 1983 Claims ................................................................ 28

         1. Arguments of the parties ................................................ 28

         2. Analysis .................................................................... 30

         a. The Fourth Amendment “seizure” claim .................... 30

         b. The Fourteenth Amendment “substantive due process” claim .................................................... 33

         c. Qualified immunity .............................................. 35

         D. The Disability Discrimination Claims ......................................... 37

         E. The Common-Law Claims ...................................................... 38

         1. The negligence claim .................................................... 38

         2. The battery claim ......................................................... 40

         3. The “intentional infliction of emotional distress” claim ........................................................................ 41

         III. CONCLUSION ............................................................................ 41

         This litigation arises from an incident in which a special education teacher allegedly “dragged” a seven-year-old autistic child across a classroom floor causing him serious carpet burns. The parties dispute not only the reasonableness of the teacher's conduct in the circumstances, but whether the parents' claims on the child's behalf are merely repackaged versions of unexhausted claims under the Individuals with Disabilities Education Act (IDEA) or viable claims of violations of the Fourth and Fourteenth Amendments to the United States Constitution, Title II of the Americans with Disabilities Act (ADA), § 504 of the Rehabilitation Act, and state common-law. Thus, one of the key issues is the proper application of the United States Supreme Court's recent clarification, in Fry v. Napoleon Community Schools, No. 15-497, 2017 WL 685533 ( S.Ct. Feb. 22, 2017), of the test to determine when ostensibly non-IDEA claims require exhaustion of administrative remedies under the IDEA.

         I. INTRODUCTION

         A. Factual Background

         This statement of the factual background does not necessarily set out all the parties' factual allegations in support of and resistance to the defendants' Motion For Summary Judgment. Rather, it focuses on the key facts to put the parties' disputes in context. To that end, I have also supplemented this factual statement with some facts drawn from the Complaint and Answer, where I deemed it appropriate to do so. Unless otherwise indicated, the following facts are undisputed.

         1. The parties

         Plaintiffs Kevin and Suzie Gosch were married in 1999 and have three children: Lexie (age 17), Ella (a fourth-grader), and KG (born November 5, 2006). KG was placed with Kevin and Suzie Gosch as foster parents to adopt. KG had health issues from birth and, as he progressed into a toddler, he showed signs of autism. Ella and KG were in the same classroom in Mapleton, Iowa, for pre-school and kindergarten. At some point, the Gosches moved to Sergeant Bluff, Iowa, to take advantage of available services. Ella and KG were in the same classroom, again, for the first semester of first grade in Sergeant Bluff.

         The defendants are the Sergeant Bluff-Luton Community School District (the District), Miranda Riediger, who was a special education teacher at the District's Primary School during the 2013-2014 school year, and Kelly Adams, who was the Principal at the District's Primary School during the 2013-2014 school year. The parties agree that Riediger has special training and certification to teach special education classes, but the Gosches deny that she had all necessary training. Specifically, the Gosches point out that Riediger did not have “Mandt training” relating to handling of problem behaviors until after the incident giving rise to their claims.

         2. KG's education and behavioral plans at school

         The Gosches contend that KG had few problems in school in Mapleton, although they admit that there were times when he would just lay down on the floor and cry. The Gosches also allege that, prior to moving to Sergeant Bluff, no one at home or at school had ever held KG down or forced him to move when he was displaying behavioral problems. The defendants admit only that this is the Gosches' testimony. The Gosches contend that, at the Sergeant Bluff Primary School, KG liked his first semester teacher and classroom, but hated being pulled out for the last ten minutes of the day to go to the special education room with defendant Riediger, because he said that she was “mean” to him. The defendants deny this allegation. The Gosches contend that there were three instances, prior to the incident giving rise to their claims, during which a paraprofessional, a school resource officer, and Principal Adams, respectively, had allegedly grabbed, dragged, or held down KG, but the defendants dispute the facts concerning these incidents.

         KG had an Individualized Education Plan (IEP) in place concerning special education services. He also had a Functional Behavior Assessment (FBA), which identified behaviors of concern, including crying, hitting, kicking, and screaming. KG also had a Behavior Intervention Plan (BIP) after he began to act out in the Sergeant Bluff school, but the defendants deny the Gosches' contention that the BIP was put in place as a result of KG acting out because he did not like going to Riediger's room. The first BIP was put in place in the middle of the first semester of KG's first year at Sergeant Bluff, on October 21, 2013, and was written by Riediger. The BIP stated, in part, that the “special education teacher/general education teacher/paraeducator” will be responsible to implement the BIP's “Safety Plan.” The “Safety Plan” stated, in part, that, when KG's behaviors escalated, “. . . students will be removed and furniture will be repositioned to keep [KG] and others safe.”

         3. The incident

         The incident giving rise to the Gosches' claims occurred on January 30, 2014, when KG was in the second semester of first grade. Three adults were present in the classroom at the time: Riediger and paraprofessionals Sandra Vondrak and Luann Johnson. When it was time for KG to switch from drawing to writing sentences, KG did not want to, so he got down on the floor. Riediger first tried a technique called the “Incredible Five Point Scale, ” where she told KG that he was at a “3” and asked him what he could do to get back to a “1.” KG did not respond, so Riediger got down to his level and tried to talk to him. Again, KG did not respond, so Riediger tried to use his “first/then” cards, explaining that if he did his writing first, then he could move to a preferred activity. That also did not work. The Gosches contend that KG's behavior, consisting of flailing around and whining, was consistent the whole time he was on the floor. The defendants agree that KG was flailing and whining, but contend that KG's behavior then “escalated.” The parties agree that, at some point, KG was also kicking.

         Riediger stepped away from KG in the hope that he would begin to “de-escalate” on his own, but he did not. Vondrak, and at some point Riediger, stood between KG and other students to keep KG from potentially making physical contact with any of them. The parties dispute at what point the other children should have been removed from the classroom, but do not dispute that they never were removed during this incident. KG's shirt rode up more than once during the incident, and Riediger pulled it back down, although the parties dispute whether she did so to cover his body or to keep him safe. At some point, Riediger also tried to return to the “Incredible Five Point Scale” to try to de-escalate KG's behavior, but, again, without success. The parties dispute precisely how much KG moved from his original location on the floor, but apparently agree that any movement was gradual. They also dispute how close KG was getting to the teacher's heavy desk, but do no dispute that Riediger did not believe that she could move the desk out of the way. The incident continued in this manner for ten minutes.

         Riediger says that she became concerned that KG was moving closer to the heavy desk, so she stepped behind him and tried to slide her arms under his armpits, hoping to walk him into an open area of the classroom (or to an area sometimes described as a “chill out zone”). KG responded by throwing his head back, flailing his arms and continuing to kick. Riediger then went around KG and grabbed his legs, planning to move him to an open area. The defendants contend that Riediger took no more than two steps backward, moving KG approximately four feet, but the Gosches contend that, based on Riediger's height, Riediger “dragged” KG for a distance that could have been more than four feet. The parties agree that KG yelled something like, “ow, my back, ” and Riediger stopped moving him. KG had not complained about his back or any pain prior to that time.

         KG was taken to the school nurse. Eventually, school officials were able to contact Kevin Gosch, and he picked up KG from school.[1]

         4. The aftermath

         The Gosches took photographs of KG's back at home, either the evening after the incident or the next morning. Medical professionals at Mercy Medical Center examined KG the day after the incident. One medical professional opined,

[T]hese injuries are consistent with inflicted forceful dragging [and] are consistent with partial thickness skin burns from excessive force in dragging the child on a carpeted surface. It would be my opinion that these injuries are significant and indicative of inflicted injuries beyond what is considered normal care and discipline of a 7-year-old child.

         The defendants do not dispute that this is what the medical opinion states, but dispute that any injury was “inflicted” on KG.

         Principal Adams agreed with the statement that KG was a “pretty high functional autistic kid” when he started with the District. Although the defendants admit that their own expert has stated that KG's misbehaviors increased in intensity, duration, and frequency after the incident, the defendants dispute that the incident was the cause of these changes. The defendants also deny that the incident was the cause of KG's behavioral changes described by his family members, including being depressed, withdrawn, fearful, angry, violent, and flinching when they mention school. The Gosches have offered expert opinions that KG now suffers from Post-Traumatic Stress Disorder (PTSD) and other psychological and behavioral issues as a result of the incident.

         The Gosches have enrolled KG in a different school district.

         B. Procedural Background

         1. Administrative proceedings

         The defendants described the administrative proceedings in their statement of material facts, but the Gosches contend that it is improper to include the findings from the administrative proceedings as part of the factual background on claims being litigated in court. As will become clear, in the legal analysis to follow, the fact of the administrative proceedings and the nature of the claims asserted therein are of some relevance to the defendants' argument that the Gosches failed to exhaust administrative remedies as to their claims.

         On or about February 17, 2014, Gosches filed an administrative complaint with the Iowa Department of Education, (IDOE), in which they alleged that the District had violated the requirements of Part B of the federal IDEA with respect to the January 30, 2014, incident involving KG. In their administrative complaint, the Gosches alleged the following:

1. [O]n January 30, 2014, K.G.'s special education teacher drug K.G. by his feet across the carpeted classroom floor to stop him from possible [sic] causing injury to another student[;]
2. K.G.'s special education teacher did not follow K.G.'s Behavior Intervention Plan (“BIP”) in regard to removing other students from the classroom as outlined in the Safety Plan section of his BIP[;] and 3. [S]chool officials failed to contact either parent or an emergency contact following the incident.

         Defendants' Appendix at 43 (Decision, State Complaint 14-04, p. 2). The Gosches also alleged that KG “was thereby denied a free appropriate public education (‘FAPE')[, ]” and they claimed that their son's procedural safeguards were violated. The IDOE denied their administrative complaint on July 7, 2014. Neither party sought judicial review.

         2. ...


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