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O.F. v. CHESTER UPLAND SCHOOL DIST.

September 10, 2002

O.F. A MINOR BY AND THROUGH HER GUARDIAN AND NEXT FRIEND, N.S., PLAINTIFF,
V.
CHESTER UPLAND SCHOOL DISTRICT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ronald L. Buckwalter, District Judge

      MEMORANDUM

Plaintiff O.F. ("O.F." or "Plaintiff"), a minor by and through her guardian and next friend, N.S., brings this action against Chester Upland School District ("CUSD") and the Pennsylvania Department of Education ("PDE") (together, "Defendants"), alleging violations of the Individuals with Disabilities Education Act ("IDEA"), § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("§ 504"), and the Americans with Disabilities Act, 42 U.S.C. § 12101 ("ADA") by denying her a free appropriate public education ("FAPE"). Plaintiff also maintains a claim pursuant to 42 U.S.C. § 1983 against CUSD only for violations of the above statutes.

Plaintiff seeks (1) an award of compensatory damages, (2) injunctive relief requiring immediate implementation of crisis intervention procedures for O.F. and other similarly situated students, (3) attorney's fees and costs, and other relief as deemed appropriate by the Court. Presently before the Court are both CUSD's and PDE's Motions for Summary Judgment. For the reasons stated below, CUSD's Motion is denied, and PDE's Motion is granted in part and denied in part.

I. FACTS

O.F. was born July 7, 1988. In approximately October 1989, amidst allegations of substance abuse and neglect on the part of her mother, custody of O.F. was transferred to her paternal grandparents. At that time, she was observed as unusually withdrawn, silent and still. Three years later, she came into her father's care, and began the 1992-93 school year in preschool. A few months later, in January 1993, her caregiver was switched to her a paternal cousin.

The next Fall, in September 1993, O.F. began attending a special needs kindergarten at Wetherhill Elementary School, within the CUSD. At the time, an Individualized Education Plan ("IEP") was apparently in place for O.F. that recognized her need for some level of special education.

By September 1994, O.F. had been returned to the care of her paternal grandparents, and was moved to a different school district. She started first grade at the Scenic Hills Elementary School in the Springfield School District. Early that school year, she overturned a desk in a fit of anger. A subsequent comprehensive evaluation report ("CER") recommended her for eligibility for special education based on her language development and emotional needs.

One year later, O.F.'s caregivers changed once again. By September 1995, she was transferred for the first time into the care of her maternal grandparents, amidst allegations that she had witnessed her paternal grandfather sexually abuse her half-sister. Again, her change of caregiver resulted in a change of school districts, this time back into the CUSD. This year, O.F. repeated the first grade at Columbus Elementary School in the CUSD. There is no evidence that anyone at Columbus knew about (1) her earlier IEP or prior attendance in the Wetherhill's special needs kindergarten within the CUSD, or (2) her CER in the Springfield School District that recommended her for special education eligibility. No special education services were apparently provided to O.F. Nevertheless, she successfully completed first grade this year without incident.

The next school year O.F. returned to Columbus for second grade. Her teacher first noticed a change in her behavior in January 1997, culminating in a violent temper-tantrum she threw in the latter part of that month. Personnel at Columbus then learned about her prior IEP and participation in the special needs kindergarten at Wetherhill by consulting CUSD files, and sought to evaluate O.F. to determine her eligibility for special education. Her maternal grandparents briefly refused permission to do so, but granted permission on February 3. In March, O.F. and her maternal grandparents moved within the CUSD. In connection with that move, on March 7, O.F. was transferred to William Penn Elementary School. O.F.'s psychological evaluation (which concluded that further testing was necessary to determine the reason for her behavioral problems) as well as a draft CER, were forwarded to William Penn within a week or so of her transfer.

During the period from January to March 1997, O.F.'s behavior became increasingly alarming and erratic. For example, she cut up her teddy bear with a razor blade at home, claiming that it had been threatening to kill her. As a result, O.F. began to see a therapist on an out-patient basis. Finally, in April, she left William Penn and was admitted to the Horsham Clinic for intensive therapy in the partial hospital program. She was discharged on May 23 and returned to William Penn. Her discharge report notes multiple concerns regarding her ability to return to a classroom without one-on-one supervision. The Horsham Clinic's recommendations for O.F. upon discharge included extensive therapeutic staff support, mobile therapy, work with a behavioral specialist, and placement in a small classroom with a high degree of structure and a teacher skilled at dealing with children with emotional and behavioral difficulties.

O.F. returned to William Penn for classes in May and June with at least some of these support structures in place. However, there were numerous incidents of violent conduct on her part requiring her to be physically restrained, including one incident in which five adults were apparently unable to get her under control. She was described as "destroying the school office, grabbing onto other children, and screaming and crawling around the floor."

In September 1997, O.F. returned to William Penn to start third grade. Contact with her therapeutic staff support had been broken during the summer, so CUSD assigned her a personal care aide while contact was being re-established. On September 9, O.F. was cited for refusal to do her work and threatening teachers and other students. On September 18, CUSD requested that O.F.'s maternal grandparents attend a meeting on September 22 to discuss her multi-disciplinary evaluation in order to make a determination as to whether she was eligible for special education. However, her maternal grandparents apparently did not attend the meeting. In a letter dated November 20, CUSD again requested their presence at such a meeting on November 25.

On November 25, a CER was completed for O.F. The CER concluded that O.F. was eligible for special education as a student who is seriously emotionally disturbed. At that time CUSD recognized O.F. as a member of the Duane B. class.*fn1 The CER noted that William Penn was not able to meet O.F.'s emotional and social needs without additional support. The CER recommended to the IEP team that she be placed in a small, highly structured classroom with a teacher skilled at dealing with children with emotional and behavioral disabilities. The CER further recommended that specially-designed instruction be developed for O.F., including a Behavioral Management Plan that included training in crisis management. Finally, the CER recommended that a formal transition plan be developed to assist O.F. in moving to a special education class.

On February 11, 1998, O.F. became upset and could not be calmed down while at school. She became increasingly disorderly, and hurled objects against the walls. There are slightly conflicting accounts regarding some of the specifics of this incident. The police report states that O.F. punched Ms. Newland, a behavior specialist. However, in her deposition, Ms. Newland denied being punched. The police report also states that numerous school personnel were sitting on O.F. to restrain her when they arrived. However, those present later denied that anyone sat on her. In any case, there is no dispute that as a result of her actions, O.F. was forcibly restrained on the classroom floor by at least two adults for a period of time. School officials attempted to contact her grandparents, but they could not be reached. Finally, school officials summoned police and emergency medical personnel. According to the police report, upon their arrival school personnel told the police that if she were released, O.F. would "tear them apart." The police ordered her release, wherein she attempted to escape and threatened to kill the officers. The officers then handcuffed O.F. After O.F. continued kicking them, the officers restrained her legs with nylon restraints as well. O.F. was then transported to the hospital by emergency medical personnel.

Soon after this incident, O.F. was re-admitted to the Horsham Clinic, and apparently never returned to the CUSD. She presently attends school and resides in Philadelphia during the week, and spends weekends with her paternal grandfather in Morton, Pennsylvania.

II. LEGAL STANDARD

A motion for summary judgment shall be granted where all of the evidence demonstrates "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." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.

If the moving party establishes the absence of the genuine issue of material fact, the burden shifts to the nonmoving party to "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

When considering a motion for summary judgment, a court must view all inferences in a light most favorable to the nonmoving party. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The nonmoving party, however, cannot "rely merely upon bare assertions, conclusory allegations or suspicions" to support its claim. Fireman's Ins. Co. v. Du Fresne, 676 F.2d 965, 969 (3d Cir. 1982). To the contrary, a mere scintilla of evidence in support of the nonmoving party's position will not suffice; there must be evidence on which a jury could reasonably find for the nonmovant. Liberty Lobby, 477 U.S. at 252. Therefore, it is plain that "Rule 56(c) mandates the entry of summary judgment, 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 such a situation, "[t]he moving party is "entitled to a judgment as a matter of law' because the non-moving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id. at 323 (quoting Fed.R.Civ.P. 56(c)).

III. DISCUSSION

A. CUSD's Motion for Summary Judgment

1. IDEA

Congress enacted IDEA to assist states in educating disabled children. Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999). In order to receive funding under IDEA, a state must provide all disabled students with FAPE. Id. This education must be tailored to the unique needs of the disabled student through an IEP. See Board of Educ. v. Rowley, 458 U.S. 176, 181-82, (1982). CUSD argues that the facts of record do not demonstrate a denial of FAPE. However, on the record before the Court, the clearest evidence of a denial of FAPE to O.F. is the length of time that CUSD took to evaluate her and ...


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