The opinion of the court was delivered by: HERBERT HUTTON, District Judge
Presently before the Court are Defendants' Motion for Summary
Judgment (Docket No. 44), Plaintiffs' response and Cross-Motion for
Partial Summary Judgment (Docket No. 52), and Defendants' reply thereto
(Docket No. 54).
This case arises out of the School District of Philadelphia's ("School
District" or "District") alleged violations of the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et
When this suit was filed on May 16, 2001, Valentino was a 14 year old
boy residing in Philadelphia. In May 1998, Valentino was classified by
the School District as a student eligible for services under the IDEA.
Valentino was diagnosed with multiple disabilities, including attention
deficit hyperactivity disorder,
oppositional defiant disorder, mixed developmental learning
disorder, and depression. As a result, an Individualized Education Plan
("IEP") was issued for the school year 1998-1999 ("1998 IEP").*fn2
In the 1998-1999 school year, Valentino was enrolled in the eighth
grade at the Julio De Burgos Bilingual Middle School ("De Burgos"), which
is part of the Philadelphia public school system. According to
Plaintiffs, Valentino was not placed in a full time emotional support
class of eight students, as required by his IEP, but rather, was placed
in a part-time learning support class of twenty or more students. During
the spring of 1999, Valentino3 was assigned to the homeroom of an
apprentice teacher, Jay W. Lane.
On April 28, 1999, Valentino approached Lane's desk, and searched or
appeared to search through papers on the desk. Lane approached the desk
and ordered Valentino to stop. According to Defendants, Valentino picked
up a student desk and moved toward Lane, as if to strike him. In his
affidavit, Valentino states that he picked up a chair, not a desk,
because he was frightened of Lane. See Valentino Aff. at ¶
2 (Docket No. 52). Both left the
classroom and went to the school's main office. In accordance with
School District policy, the police were called and Valentine was
arrested. That afternoon, Lane filed a police incident report complaining
that Valentino assaulted him by picking up the desk and threatening him
At the police district headquarters, Valentine was placed in a holding
cell, where he allegedly remained for twenty-one hours. Plaintiffs allege
that the school failed to send Valentine's student records or medical
records to the Police Department. See PL's Am. Compl. at ¶
20a (Docket No. 47, Ex. A). Lane never pressed charges and Valentine
returned to school the next day. See Pl's Am. Compl. at ¶
23; Eduardo Cortes Dep. at 23 (Docket No. 47, Ex. 8). No charges were
brought against Valentino.
A second incident occurred on June 8, 1999. Plaintiffs offer two
different accounts of the events. According to their Amended Complaint,
school security officer Cross struck Valentino while he was standing in
the hallway of his school. According to Valentino himself, he was
standing in the main office when Cross came up behind him and struck him
in the back of his head. See Valentino C. Dep. at 38-40 (Docket
No. 47, Ex. 11).
On June 18, 1999, a due process hearing convened to address Valentine's
parents' concerns regarding Valentine's IEP for the 1999-2000 school
year. Both parents had signed School District consent forms to
re-evaluate Valentine. See Docket No. 47, Exs. 14 & 15. The
matter was resolved between the parties and an Agreement
and Order was issued incorporating the terms of the agreement. As a
result, a new IEP was developed for Valentino over several meetings
ending on August 12, 1999 ("1999 IEP"). Valentino's parents consented to
the new IEP. The 1999 IEP provided for, among other things, monthly or as
needed counseling for Valentino for one year, and a "behavior shapist,
psychologist, visitations as needed by parents." See Pl.'s Am.
Compl. at ¶ 37; Valentino C. IEP dated Aug. 12, 1999, at § V
(Docket No. 52).
School District records show that Valentino was absent for 88 school
days, was late twice, and was suspended for a total of six days during
the 1998-1999 school year. During the 1999-2000 school year, Valentino
was once again enrolled in the eighth grade at De Burgos. In contrast to
the previous academic year, Valentino missed only 29 days, was not late,
and was suspended only once. The next academic year, 2000-2001, Valentino
was assigned to Thomas A. Edison High School as a ninth grader but was
absent for 174 days, all of which were unexcused. See History
Profile of Valentino C., dated Apr. 24, 2002 (Docket No. 47, Ex. 7).
According to Valentino's father, Valentino was enrolled in a charter
school, Nueva Esperanza, at the beginning of the 2000-2001 school year.
See Eduardo Cortes Dep., at 29-30 (Docket No. 47, Ex. 8).
Valentino did not attend a District school during the 2001-2002 school
Plaintiffs, Valentino and his parents, filed suit on May 16, 2001
against the School District, the Superintendents of the
Schools of the City of Philadelphia ("Superintendents"), teacher
Jay W. Lane, school security officer Andrea Cross, and De Burgos school
principal Nellie Hooks. On June 23, 2003, this Court granted Defendants'
motion for summary judgment for alleged violations under
42 U.S.C. § 1983 and denied, with leave to renew, Defendants' motion for
summary judgment as to Plaintiffs' state law claims. Further, the Court
granted Plaintiffs' motion to amend their complaint to add two claims under
the IDEA. See Valentino C. v. School District of Philadelphia, No.
01-2097, 2003 WL 177210 (E.D. Pa. Jan. 23, 2003). In their Amended
Complaint, Plaintiffs allege the following causes of action: (1)
violation of the IDEA; (2) violation of the IDEA'S stay-put provision,
20 U.S.C. § 1415(j); (3) false imprisonment of Valentino; (4) battery
upon Valentino; (5) intentional infliction of emotional distress upon
Valentino; (6) negligent infliction of emotional distress upon all
Plaintiffs; and (7) assault upon Valentino. Defendants now move for
summary judgment against all claims.
Summary judgment is appropriate "if 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." Fed.
R. Civ. P. 56(c). The party moving for summary judgment has the initial
burden of showing the basis for its motion. See Celotex Corp. v.
477 U.S. 317, 323 (1986). Once the movant adequately supports its motion
pursuant to Rule 56(c), the burden shifts to the nonmoving party to go
beyond the mere pleadings and present evidence through affidavits,
depositions, or admissions on file showing a genuine issue of material
fact for trial. See id. at 324. The substantive law determines
which facts are material. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). If the evidence is such that a reasonable jury
could return a verdict for the nonmoving party, then there is a genuine
issue of fact. See id.
When deciding a motion for summary judgment, all reasonable inferences
are drawn in the light most favorable to the non-moving party. See
Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d
Cir. 1992), cert. denied, 507 U.S. 912 (1993). Moreover, a
court may not consider the credibility or weight of the evidence in
deciding a motion for summary judgment, even if the quantity of the
moving party's evidence far outweighs that of its opponent. See
id. Nonetheless, a party opposing summary judgment must do more than
just rest upon mere allegations, general denials, or vague statements.
See Trap Rock Indus., Inc. v. Local 825, 982 F.2d 884, 890 (3d
III. DEFENDANTS MOTION FOR SUMMARY
A. Count I: Violation of the IDEA
Plaintiffs allege that the School District has not implemented the
August 12, 1999 IEP in violation of the IDEA. The School
District argues that Plaintiffs are barred from bringing this claim
because they have not yet exhausted their administrative remedies.
Plaintiffs respond that exhaustion would be futile in this instance. The
Court agrees with Plaintiffs.
The Individuals with Disabilities Education Act requires states which
accept federal funding for the education of disabled children to insure
that those children receive a "free appropriate public education."
20 U.S.C. § 1415 (a). The heart of the entitlement to a "free
appropriate public education" is provided through the IEP. See
Joseph M. v. Southeast Delco School District, No. 99-4645, 2001 WL
283154, at *1 (E.D. Pa. Mar. 19, 2001) (citing Michael C., 202
F.3d at 646 n.2 (3d Cir. 2000)). Before a plaintiff can bring a claim for
an IDEA violation, he must exhaust his administrative remedies, including
a local due process hearing and an appeal to the state educational
agency. See 20 U.S.C. § 1415(f). Although the policy of
requiring exhaustion of remedies is a strong one, the exhaustion
requirement is excused where recourse to IDEA administrative proceedings
would be futile or inadequate. See W.B. v. Matula, 67 F.3d 484,
495 (3d Cir. 1995); Komninos v. Upper Saddle River Board of
Education, 13 F.3d 775, 778 (3d Cir. 1994).
Courts have found futility in cases in which a school district failed
to implement the services promised in an IEP. In Joseph M.,
plaintiffs alleged that a school district violated the IDEA because it
failed to implement the agreed upon recommendation in the IEP.
The district court concluded that exhaustion was not required in this
instance. See Joseph M., 2001 WL 283154, at *6-7; see also
O.F. v. Chester Upland School District, No. 00-779, 2000 WL 424276
(E.D. Pa. Apr. 19, 2000) (waiving exhaustion requirement where school
district allegedly did not comply with student's IEP); McKellar v.
Commonwealth of Pennsoylvania, No. 98-4161, 1999 WL 124381 (E.D. Pa.
Feb. 23, 1999) (same).
Moreover, the legislative history of the IDEA supports the conclusion
that failure to implement an IEP renders the exhaustion of administrative
remedies futile. A Report submitted to the U.S. House of Representatives
during consideration of revisions to the IDEA states in relevant part:
Typically, a parent is required to exhaust
administrative remedies where complaints involve
the identification, evaluation, education,
placement, or the provision of a free appropriate
public education to their handicapped child.
However, there are certain situations in which it
is not appropriate to require the use of due
process and review procedures . . . before
filing a law suit. These include complaints
that . . . it would be futile to use due process
procedures (e.g., an agency has failed to
provide services specified in the child's . . .
H.R. Rep. No. 99-296, at 7 (1985) (emphasis added).
Thus, contrary to the School District's assertion, Plaintiffs are not
required to exhaust their administrative remedies before bringing a claim
based on the District's alleged failure to implement an IEP.*fn3 As
Defendant's only argument for summary
judgment as to this claim is Plaintiffs' failure to exhaust
administrative remedies, and because issues of material fact may exist as
to the implementation of the 1999 IEP, Defendant's motion is denied.
B. Count II: Violations of Stay-Put Provision
Plaintiffs also allege several violations of the IDEA's stay-put
provision, 20 U.S.C. § 1415(j), by defendants Nellie Hooks, the
Superintendents of Schools, and the School District. The conduct of
Defendants will be addressed in three parts: (1) before April 28, 1999;
(2) on April 28, 1999; and (3) after April 28, 1999.
The stay-put provision states:
Except as provided in subsection (k)(7), during
the pendency of any proceedings conducted pursuant
to this section, unless the State or local
educational agency and the parents or guardians
otherwise agree, the child shall remain in the
then-current educational placement of such child,
or if applying for initial admission to a public
school, shall, with the consent of the parents, be
placed in the public school program until all such
proceedings have been completed.
20 U.S.C. § 1415(j). The provision applies to "disputes between
parents and a school district about the appropriateness of a placement to
address a student's disabilities." School District of Philadelphia
v. Stephan M., No. 97-1154, 1997 WL 109586, at *2 (E.D. Pa. Mar. 10,
1997). The stay-put provision was "clearly designed to minimize the
detrimental effects of delay in resolving disputes over educational
programs . . .[and] ensures that a school cannot eject a child
without complying with due process requirements." Tokarcik v. Forest
Hills Sch. Dist., 665 F.2d 443
453 (3d Cir. 1981) (emphasis added). Thus, the student is to
"stay-put" in the "then-current educational placement" while due process
or judicial ...