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January 30, 2004.

VALENTINO C., et al.

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 seq.

  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, Page 2 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 Page 3 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 with it.

  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 Page 4 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 year.

  Plaintiffs, Valentino and his parents, filed suit on May 16, 2001 against the School District, the Superintendents of the Page 5 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. Catrett, Page 6 477 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 Cir. 1992).

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 Page 7 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. Page 8

  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 . . . IEP).
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 Page 9 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, Page 10 453 (3d Cir. 1981) (emphasis added). Thus, the student is to "stay-put" in the "then-current educational placement" while due process or judicial ...

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