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Barry v. Cedar Rapids Community School District

United States District Court, N.D. Iowa, Cedar Rapids Division

March 15, 2019

MEGAN BARRY, as parent and next friend of A.P., a minor child, Plaintiff,


          Leonard T. Strand, Chief Judge


         This matter is before me on a motion (Doc. No. 35) for summary judgment filed by defendants Cedar Rapids Community School District (the District), Gary Hatfield and Cecelia Lane. Plaintiff Megan Barry, as parent and next friend of A.P., a minor child, has filed a resistance (Doc. No. 47)[1] and defendants have replied (Doc. No. 52). Oral argument is not necessary. See N.D. Iowa L.R. 7(c).


         The complaint (Doc. No. 1), which was filed October 27, 2017, asserts several claims under federal and Iowa law against the District and the individual defendants. The claims arise from an incident on March 21, 2017, when A.P., a child with cerebral palsy who uses a wheelchair, was allegedly injured by a slap to the face from District employee Lane as he was exiting a school bus. The complaint contains the following claims:

Count 1: Excessive Use of Force (Fourth Amendment, 42 U.S.C. § 1983) against Lane[2]
Count 2: Discrimination (Americans with Disabilities Act, 42 U.S.C. § 12132) against the District
Count 3: Discrimination (Rehabilitation Act, 29 U.S.C. § 504) against the District
Count 4: Negligence (Iowa Law) against all defendants
Count 5: Battery (Iowa Law) against Lane
Count 6: Conspiracy to Violate Constitutional Rights (42 U.S.C. § 1985) against all defendants

See Doc. No. 1. Defendants filed an answer (Doc. No. 10) on November 16, 2017, denying liability and raising various affirmative defenses. They filed their motion for summary judgment on November 19, 2018. Trial is scheduled to begin August 12, 2019.


         Any party may move for summary judgment regarding all or any part of the claims asserted in a case. Fed.R.Civ.P. 56(a). Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         A material fact is one “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, “the substantive law will identify which facts are material.” Id. Facts that are “critical” under the substantive law are material, while facts that are “irrelevant or unnecessary” are not. Id. “An issue of material fact is genuine if it has a real basis in the record, ” Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), or “when ‘a reasonable jury could return a verdict for the nonmoving party' on the question, ” Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248). Evidence that only provides “some metaphysical doubt as to the material facts, ” Matsushita, 475 U.S. at 586, or evidence that is “merely colorable” or “not significantly probative, ” Anderson, 477 U.S. at 249-50, does not make an issue of material fact genuine. Put another way, “[e]vidence, not contentions, avoids summary judgment.” Reasonover v. St. Louis Cnty., 447 F.3d 569, 578 (8th Cir. 2006) (citation omitted). The parties “may not merely point to unsupported self-serving allegations.” Anda v. Wickes Furniture Co., 517 F.3d 526, 531 (8th Cir. 2008).

         As such, a genuine issue of material fact requires “sufficient evidence supporting the claimed factual dispute” so as to “require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249 (quotations omitted). The party moving for entry of summary judgment bears “the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323). Once the moving party has met this burden, the nonmoving party must go beyond the pleadings and by depositions, affidavits, or otherwise, designate specific facts showing that there is a genuine issue for trial. Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir. 2005). The nonmovant must show an alleged issue of fact is genuine and material as it relates to the substantive law. Id. If a party fails to make a sufficient showing of an essential element of a claim or defense with respect to which that party has the burden of proof, then the opposing party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 322.

         To determine whether a genuine issue of material fact exists, I must view the evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88. Further, I must give the nonmoving party the benefit of all reasonable inferences that can be drawn from the facts. Id. However, “because we view the facts in the light most favorable to the nonmoving party, we do not weigh the evidence or attempt to determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir. 2004) (citing Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir. 1996)). Instead, “the court's function is to determine whether a dispute about a material fact is genuine.” Quick, 90 F.3d at 1377.


         Except as otherwise noted, the parties do not dispute the following facts:

         A. The Parties

         A.P., a minor, has been diagnosed with cerebral palsy, hydrocephalus, epilepsy, a cortical vision impairment, sensory processing disorder and behavior disorder. Doc. No. 42-3 at 15, 18. As a result of cerebral palsy, A.P. has limited use of his limbs and uses a wheelchair. Id. He receives constant injections of Baclofen through a pump. Id. at 17. Megan Barry is A.P.'s mother. Doc. No. 1 at ¶ 5.

         The District is a public entity incorporated under Iowa law as a school district. Doc. Id. at ¶ 7. The District's schools include Taft Middle School, where A.P. is a student. Gary Hatfield is the Principal at Taft and was a witness to the incident. Id. at ¶ 8. Cecelia Lane was a special education bus driver for the District during the 2016-17 school year and is alleged to have slapped A.P. Id. at ¶ 9.

         B. A.P.'s Education and Behavioral Plans at School

         A.P. had an Individualized Education Plan (IEP) in place concerning special education services. See Doc. No. 42-4 a 14-25, Doc. No. 42-5 at 1-10. Prior to the alleged incident, the IEP was most recently updated on January 30, 2017. Subsequent progress reports to the IEP indicate that A.P. was making progress in reading, math and writing, and that his behavior had been steadily improving. A.P.'s IEP also includes specialized transportation to and from school. Doc. No, 42-5 at 5.

         A.P. also had a Functional Behavior Assessment (FBA) and a Behavior Intervention Plan (BIP) which addressed certain aggressive behaviors (i.e., hitting, biting and spitting) and disruptive behavior (i.e., ripping items, knocking over books, yelling and being off-task). Doc. No. 42-5 at 11-15. During the January 30, 2017, meeting regarding A.P.'s education, the school team reported “a huge increase” in A.P.'s negative behaviors:

[A.P.] is really struggling to be on-task and there has been an increase in the physically aggressive behavior (hitting and biting). The surgeon and doctors have shared that this may be a side effect of his surgery (hemispherectomy). He now has a lack of impulse control.
There was some discussion about the ABC's of his behavior and not being sure what the antecedents are at this time. The suggestion was made to make a referral to the district Challenging Behavior team.

Id. at 10. During this same meeting, there was discussion of A.P. having issues with transportation to and from school:

[A.P.] has had a few issues getting on the bus this past few weeks. The team discussed engaging the bus driver in a token economy system with [A.P.] to help develop their relationship and to help get him on to the bus.


         C. The Incident

         In December 2016, about three months before the alleged slap, A.P. underwent a hemispherectomy to treat his epilepsy. Doc. No. 47-3 at 15-16. The parties agree that after the surgery, A.P.'s negative behaviors increased, apparently due to a lack of impulse control resulting from the surgery. On December 15, 2016, Barry sent a guide titled “Education after Hemispherectomy” to Hatfield and to A.P.'s teacher, Joshua Goff. Id. at 16-23. There is no evidence to suggest that Lane received this guide, or any specific instructions regarding A.P.'s recovery.

         On January 30, 2017, after the surgery but before the alleged slap, A.P.'s increased behaviors were noted in his IEP and BIP and school officials were on notice that A.P. was having issues on the school bus. Id. at 26. The school was also on notice at this time that A.P. had a new health plan to mitigate the risks of hydrocephalus following his surgery. Id. Lane was not present at that meeting and did not have any specific knowledge of A.P.'s IEP or BIP. Doc. No. 42-7 at 10.

         Barry testified to the normal procedure for getting A.P. off the bus:

A. The attendant would roll him to the ramp. He would come down off the ramp when the bus driver would lower him, and then I would take him off the ramp into my home.
Q. And was it - Was the normal procedure when [A.P.] was being lowered on the ramp that the bus driver would be on one side and you would be on the other?
A. Typically, because I or my husband would go out and get him off the bus, so one of us would be right there by the ramp, yes.
Q. But was it typical for the bus driver operating the lift to be on one side and you to be on the other?
A. Or direct - or me directly in front of the ramp. But yes, right there in that general vicinity.

Doc. No. 42-5 at 5. Barry did not typically have to get on the bus to assist moving A.P. to the lift. Id.

         On March 21, 2017, when it was time for A.P. to get off the bus, he began yelling that he did not want to go home, locking and unlocking his wheelchair brakes, and spitting at those around him. Lane was driving the bus with A.P. that day.[3] Doc. No. 42-6 at 21, 42-7 at 10. Hatfield was on the bus, serving as A.P.'s paraprofessional and training A.P.'s new paraprofessional, Paula Kelly.[4] Doc. No. 42-6 at 15. Kayla Nichols, a paraprofessional for another student, was also on the bus, as well as Bob O'Brien, the bus attendant.

         When the bus arrived at Barry's home on March 21, 2017, Barry was able to observe through the bus window that A.P. “was having a behavior.” Doc. No. 42-4 at 6. After a few minutes, Hatfield asked Barry to come onto the bus to assist with offloading A.P. Id. Barry came onto the bus to help Hatfield and O'Brien. She described the scene as follows:

Q. And when you got onto the bus and went up to - did you go up to [A.P.]?
A. Yes.
Q. Was the seatbelt or strap that held the seatbelt on to the bus still connected?
A. I don't recall because I was helping to block while they unbuckled everything, while I believe Mr. Hatfield and Bob were both unbuckling things. I was tending to [A.P.'s] behaviors so that they didn't get injured.
Q. Okay. And what were the behaviors that he was exhibiting while you were on the bus?
A. He was yelling, he was attempting to hit, he was spitting, and he was attempting to bite. And I - He was also attempting to kick, because when he's trying to hit, he's also always typically trying to kick.
Q. So did you stand in the aisle?
A. I stood in the aisle and directly in front of his chair, and then we walked him to the ramp. So I was all over that area.
Q. And do you recall there being on the other side or the right ide of the bus a student that had a tracheotomy?
A. I don't recall the trach, but I know there was a student because I was helping to hold his left hand down and block spit so that his other student - and I believe there was an adult over there too - so that they didn't get hit with his spit or aggressions.

Id. at 7. Barry continued to hold A.P.'s hands and block him from spitting others on the bus as O'Brien rolled A.P.'s wheelchair to the lift. Id.

         Barry testified that, as she exited the bus using the pedestrian stairs at the front of the bus, she could hear Lane telling A.P. to “stop being naughty” and that “he needed to be good on the bus.” Id. at 8. Barry walked over to the lift, where she stood on the right side. Hatfield was on the bus behind the lift, and Lane was to the left of the lift to operate the lift controls. Id. at 8. A.P. continued his behaviors on the lift, unlocking his wheelchair brakes and attempting to kick those near him. Id. at 9. Barry attempted to redirect A.P. using the words “calm hands, calm feet.” Id. Barry was also attempting to re-direct Lane, who she contends was yelling at A.P. in a way that would cause him to escalate his behaviors. Id. As the lift lowered, Barry testified that A.P. looked at her, spit at her, then turned to Lane and smiled. Id. Barry then saw Lane reach up and slap A.P., swinging her hand and stepping into it. Id. at 10. Once A.P. was removed from the lift, Barry called Hatfield off of the bus and called the Cedar Rapids Police Department. Id.

         Other witnesses described the event differently. Hatfield, who was standing on the bus behind the lift, testified that Lane was not yelling at A.P., but rather asking him to stop messing with his brakes as the lift moved because it was dangerous. Doc. No.

         42-6 at 16. He testified that he saw A.P. spit at Barry clearly, because A.P. had been eating M&M candies and there was chocolate in the spittle. Id. When A.P. turned towards Lane, Barry stated that it looked like he was winding up to spit again. Regarding the slap itself, Hatfield testified:

A. In this particular case by what I saw, not by what I thought, it looked to be a reaction to [A.P.'s] motion towards her. And reactions like that are kind of involuntary. I think we've all been in a case where like we're driving down the road and a bird flies at our windshield. We jerk even though we know that bird's not going to his us. It's just an involuntary reaction that happens. And I think that's what this was. From what I saw, he jerked towards her, looked like he was going to spit at her, the hand came up.
Q. And what happened after that?
A. Well, from what I saw from my vantage point, and which I thought was a pretty good vantage point, by the way, she was holding the remote in this hand (indicating).
Q. Her right hand?
A. In her right hand. And I know some of this contradicts with some things she said, but I got to tell you what I saw. She kind of had it in both hands and was adjusting things as she passed it back and forth. She had it in this hand (indicating) and this hand (indicating) was close. As he started to spit at her, this hand (indicating) turned around, it started from about her chin level, and she leaned back as, you know, he lunged towards her. And I felt like her hand moved forward slightly but not a lot. A lot of that motion was, you know, her going backwards.

Id. at 12. Hatfield agreed that “the contact was with her left hand to his face.” Id. He described it as a “defensive act” that “came from chest out as a block.” Id. at 18.

         Lane agreed that she was standing to the left of the lift while A.P. was being lowered down from the bus. She explained that she operates the lift controls with both her left and right hands - she may grab the controls with her right hand, but while a child is on the lift she operates the controls with her left hand and holds onto part of the lift with her right hand. Doc. No. 42-8 at 4. She described the incident as follows:

Q. What process - What step in the process of unloading [A.P.] were you in at the time that the physical contact occurred?
A. The lift was on its way down.
Q. Okay. So he's on the lift - The wheelchair is totally on the lift?
A. Correct.
Q. Who is behind the lift - or behind the wheelchair? Excuse me.
A. You mean on the bus?
Q. Yes.
A. I - I think Gary [Hatfield] was there. I didn't see him though. I didn't know that anyone was there at that point.
Q. Was Bob O'Brien there too?
A. No.
Q. He was somewhere else?
A. I - I am assuming. I didn't see him.
Q. And where was Megan at the time?
A. She was on the ground to the - to the left of the lift.
Q. Okay. So it's about a 3 foot drop from the top point to getting to the ground?
A. Pretty close.
Q. And he would have been about midpoint of that or about a foot and a half below the top - below the floor of the bus and about a foot and a half above the ...

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