The opinion of the court was delivered by: Judge Caputo
Presently before the Court is the report and recommendation of Magistrate William T. Prince. (Doc. 164.) The report recommends granting summary judgment in defendants' favor on all but one claim. For the reasons explained below, the report's recommendations will be adopted in part and rejected in part.
During the time period relevant to this action, Adam C. was a minor student who resided in Scranton School District (SSD). Adam has an autism spectrum disorder and received special education services. Adam's difficulties led to his placement at Lourdesmont School, a private school with a partial-hospitalization program.*fn2
The record reflects that fights were not at all uncommon at Lourdesmont. Deposition testimony from staff suggested that "kids were always getting hurt," (Doc. 144-8 at 10), and that "there were fights every day," (Doc. 144-3 at 22). The police were frequently called to Lourdesmont. (Gerrity Aff; Doc. 144-3 at 1, 2.) Despite the frequency of fights, many of the staff were not trained in behavior management techniques or how to intervene in disputes.
During his time at Lourdesmont, Adam was involved in approximately twenty fights with other children. On April 27, 2005, he became involved in a series of verbal exchanges with another student who had a history of behavior problems. The staff in the room could not redirect them, and the confrontation escalated to threats. Finally, the other child punched Adam, and both students exchanged blows.
Following the fight, Adam's mother was called to pick him up. She noticed that one side of his face was swollen, and she took him to the emergency room. Eventually, Adam suffered an aneurism which he claims arose from the incident. Other injuries included headaches, eye damage, and a decrease in cognitive functioning.
On March 30, 2007, Adam and his parents filed this action against Scranton School District, the Northeastern Educational Intermediate Unit (NEIU), and Lourdesmont. Adam brings statutory claims under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. He also brings common law claims of loss of consortium, breach of contract, and negligence. The three defendants each moved for summary judgment. These motions were referred to a magistrate judge for a report and recommendation. The magistrate judge recommends granting summary judgment in defendants' favor on all claims except the plaintiffs' negligence claim against Lourdesmont. The magistrate judge recommends permitting the negligence claim to go forward, but recommends granting Lourdesmont partial immunity so that liability must be predicated on gross negligence.
Adam and Lourdesmont timely filed their objections to the magistrate judge's report. The parties have responded to the objections, and they are ripe for review.
A. Legal Standard for Reviewing a Report and Recommendation
Where objections to the magistrate judge's report are filed, the court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6--7 (3d Cir. 1984). In making its de novo review, the court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675--76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376--77 (M.D. Pa. 1998).
Here, the court reviews the portions of the report and recommendation which Banks objects to de novo. The remainder of the report and recommendation is reviewed for clear error.
B. Legal Standard for Summary Judgment
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2). Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Anderson, 477 U.S. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id. Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See 2D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the court that "the nonmoving party has failed to make a sufficient showing on an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988).
Once the moving party has satisfied its initial burden, the burden shifts to the non-moving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256--57. The court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
C. The Rehabilitation Act and ADA Claims Survive Summary Judgment
The report describes the evidence regarding Adam's educational environment at length. Below is an excerpt from the report's discussion:
[T]he environment at Lourdesmont was, in many senses, awful. Fights occurred daily; students perpetrated violence against each other and against teachers, walked out of classes, and damaged school property. With a maximum of three staff members available to respond to fights, and only one being on duty at times, Lourdesmont had a demonstrated, perpetually inadequate system for crisis management. Other shortcomings at Lourdesmont only compounded these problems: NEIU teachers were forbidden from intervening in fights; teachers and therapists alike had little to no training in defusing students' aggression; and numerous Lourdesmont personnel, including the principal and Adam's primary therapist, were manifestly unqualified for their positions . . . . All students at Lourdesmont were subject to the same woeful educational environment . . . . (R & R; Doc. 164 at 30--32).
The report notes that the evidence permits the inference that "the extent of instructional and managerial dysfunction at Lourdesmont was such that Adam was denied [a free appropriate public education] while he attended there." (Doc. 164 at 31). Because no objections are raised to this legal conclusion, and it is not clearly erroneous, the Court presumes that the evidence permits an inference that Adam was denied an appropriate education.
Despite this conclusion, the magistrate judge recommends dismissing the plaintiffs' claims under the Rehabilitation Act (RA) and the Americans with Disabilities Act (ADA). In part, this recommendation is based on the fact that "the record does permit contrary inferences [about Adam receiving an appropriate education]-based on evidence like Adam's report that he enjoyed Lourdesmont and Ms. Krieg-Grace's recollection that Adam was doing well, as well as the lack of positive evidence that Adam derived no academic benefit from being at ...