J.S. v. The Houston County Board of Education et al

Filing 120

MEMORANDUM OPINION AND ORDER as follows: 1. The Houston County Board of Education's 90 Motion for Summary Judgment is GRANTED, and Plaintiffs' ADA and § 504 claims as alleged in Count I of the amended complaint are DISMISSED WITHOUT PREJUDICE. This ruling resolves all pending claims in this action, and the Clerk of Court is DIRECTED to close the file. 2. The Houston County Board of Educations 88 Motion to Exclude the Expert Opinion and Testimony of Don Mosley and 86 Fed. R. Civ. P. 56(c)(2) Objection to Evidence are DENIED as MOOT. 3. The pretrial hearing and trial in this matter are CANCELLED. A final judgment consistent with this Memorandum Opinion and Order is forthcoming. Signed by Honorable Judge Mark E. Fuller on 7/8/2014. Copies furnished to calendar group, WR. (dmn, ) (Deadlines terminated: Final Pretrial Conference set for 7/10/2014 and Jury Trial set for 8/18/2014.)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
J.S., III, a minor, by and through J.S., Jr.
and M.S., his parents and next friends,
Plaintiff,
v.
THE HOUSTON COUNTY BOARD OF
EDUCATION, et al.,
Defendants.

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CASE NO. 1:12-cv-666-MEF
(WO -- Do Not Publish)

MEMORANDUM OPINION AND ORDER
This is a particularly sad case involving allegations of abuse against a disabled
elementary school student by his special education teacher and teacher’s aide. Before the
Court is a Motion for Summary Judgment (Doc. #90) filed by Defendant The Houston
County Board of Education (the “Board”) on March 28, 2014. After careful consideration
of the motion and the evidentiary submissions, and with the benefit of oral argument, the
Court finds that the Board’s motion is due to be GRANTED.
I. JURISDICTION AND VENUE
The Court has federal question jurisdiction over the claims in this case under 28
U.S.C. § 1331.1 The parties do not claim that the Court lacks personal jurisdiction over them,
nor do they dispute that venue is proper under 28 U.S.C. § 1391(b), and the Court finds

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The Court also had supplemental jurisdiction over the state law claims in this action
pursuant to 28 U.S.C. § 1367. However, because the state law claims have already been dismissed
from this action, as discussed herein, the only claims remaining are those brought under federal
statutes pursuant to the Court’s “federal question” subject matter jurisdiction.

adequate allegations supporting both.
II. FACTUAL AND PROCEDURAL BACKGROUND
The Court has carefully considered the submissions of the parties in support of and
in opposition to the motion. The submissions of the parties, viewed in the light most
favorable to the non-moving party, establish the following material facts:
A.

Relevant Facts
1.

The Parties

J.S., III is a minor child with cerebral palsy and low cognitive functioning. J.S., III
is unable to walk or stand without assistance, and he uses either a wheelchair or rolling
walker to ambulate. J.S., III requires significant assistance with many daily life activities,
including eating, toileting, dressing, bathing, and getting in and out of his wheelchair. J.S.,
III can communicate orally, complete schoolwork, and express his needs to adults.
The Houston County Board of Education has jurisdiction over the provision of
educational services in Houston County, Alabama (except for the City of Dothan). The
Board receives money from the federal government to ensure that schools in its system,
including Wicksburg High School (“Wicksburg”), provide a free, appropriate public
education (“FAPE”) to handicapped children under the Individuals with Disabilities
Education Act (“IDEA”), a federal statute that regulates the provision of public education to
children with disabilities by state and local school systems that receive federal funding. See
20 U.S.C. § 1412. It is undisputed that J.S., III qualifies to receive a FAPE, including special
education and related services, under the IDEA, and that he qualifies as a handicapped
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individual for purposes of the Americans with Disabilities Act (“ADA”) and § 504 of the
Rehabilitation Act.
2.

J.S., III’s Attendance at Wicksburg

J.S., III attends Wicksburg, a kindergarten through twelfth grade school within the
Houston County school system. During the relevant time period, Defendant Timothy
Pitchford (“Pitchford”) was the Superintendent for the Houston County school system and
Defendant Cheryl Smith (“Smith”) was the principal of Wicksburg.
J.S., III began attending kindergarten at Wicksburg in 2006. In accordance with the
IDEA, J.S., III received Individualized Education Plans (“IEP”) outlining his educational
goals for each of his school years at Wicksburg. J.S., III is assigned an IEP “team,” which
consists of his parents, teachers, and school administrators, and they meet and develop his
IEP.
Relevant to this case is J.S., III’s 2011-2012 school year, which was his fourth grade
year at Wicksburg. Defendant Alicia Brown (“Brown”) was J.S., III’s special education
teacher and Defendant Andrew Faircloth (“Faircloth”) was his special education aide for the
2011-2012 school year. J.S., III’s regular education teacher for the 2011-2012 school year
was Angie Boatwright (“Boatwright”). Brown and Faircloth were involved in developing
J.S., III’s IEP for the 2011-2012 school year, and both signed and were responsible for
implementing his IEP for that school year.
J.S., III’s IEP for the 2011-2012 school year specified that he was to spend 80% of
his school day in the regular education environment with Boatwright and the other 20% in
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the special education classroom with Brown. J.S., III’s IEP for the 2011-2012 school year
did not provide that he was to spend any portion of his school day outside of Boatwright’s
and Brown’s classrooms, except for lunch and physical education.
In the fall of 2011, Brown learned that Faircloth was taking J.S., III out of
Boatwright’s classroom and into the locker/weight room where the coaches were. Faircloth
removed J.S., III from Boatwright’s classroom during these times because, according to
Faircloth, J.S., III was distracting other students in the class and was getting distracted
himself.2 Faircloth testified that the locker/weight room gave J.S., III a quiet place to
complete his work and a private bathroom. Some time in October 2011, Brown informed
Smith that Faircloth was taking J.S., III out of Boatwright’s classroom and into the
locker/weight room in contravention of his IEP. Smith told Brown she would take care of
it. Smith met with Faircloth shortly thereafter and instructed Faircloth not to take J.S., III to
the locker/weight room anymore. Faircloth indicated to Smith that he would comply with
her instructions. At some point in late 2011/early 2012, Brown learned that Faircloth was
again taking J.S., III out of Boatwright’s classroom and into the locker/weight room. Brown
informed Smith a second time that Faircloth was taking J.S., III to the locker/weight room
when he should be in Boatwright’s classroom, but Smith did not counsel Faircloth against
this conduct a second time.3
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J.S., III’s IEP for the 2011-2012 school year, however, did not indicate that he exhibited
any discipline or behavior problems, nor did it contain a behavior modification plan.
3

Smith disputes that Brown told her a second time about Faircloth taking J.S., III to the
locker/weight room in contravention of his IEP, but since the Court is obligated at this stage of the
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3.

The Events of March 2012

In March 2012, R.T., one of J.S., III’s neighbors who was also in Boatwright’s
classroom, told her parents that she had witnessed Faircloth being mean to J.S., III.
Specifically, R.T. claimed that (1) J.S., III had dropped his pencil and Faircloth refused to
pick it up; (2) Faircloth, while sitting on a stool, kicked the wheel of J.S., III’s wheelchair
and told him to be quiet; and (3) Faircloth told J.S., III that he was getting the answers to his
classwork all wrong and that it was “first grade work.” All of this occurred during the same
class period on the same day. That afternoon, M.S., J.S., III’s mother, went to R.T.’s house
and R.T. told M.S. what happened with Faircloth that day. Later that same day, J.S., III’s
parents talked to J.S., III about these incidents, and J.S., III confirmed dropping his pencil
and getting his classwork wrong but did not remember Faircloth kicking his wheelchair.
J.S., III’s parents, M.S. and J.S., Jr., decided to place a hidden tape recorder on his
wheelchair to get an idea of what a real school day was like for J.S., III. J.S., III’s parents
obtained recordings from J.S., III’s school days on Thursday, March 15, 2012, and Monday,
March 19, 2012. J.S., III’s parents obtained these audio recordings without first notifying
Wicksburg administrators or J.S., III’s teachers of their intent to record them.
Unsurprisingly, there is much dispute over the general admissibility of the audio
recordings and whether the Court should consider them at summary judgment. The Court
finds it unnecessary, however, to recount or rely on the specific contents of the recordings

proceedings to view the evidence in the light most favorable to Plaintiffs, the Court will credit
Brown’s version of events.
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themselves to resolve the Board’s summary judgment motion.4 It suffices to say that
Plaintiffs allege that the audio recordings capture Brown and Faircloth addressing J.S., III
in an abusive and inappropriate manner, that there are periods of “dead space” on the
recordings, when no instruction is given or words are spoken to J.S., III, and that certain
noises on the recordings are J.S., III being physically struck.
After listening to the recordings, M.S. contacted Wicksburg’s special education
coordinator, Denise Whitfield (“Whitfield”), by phone on the afternoon of Monday, March
19, 2012. M.S. told Whitfield about the recordings and stated that she did not want J.S., III
around either Brown or Faircloth, but she did not specifically request that they be removed
from Wicksburg’s campus entirely. Whitfield offered to meet with M.S. the afternoon of
March 19, 2012, but M.S. scheduled a meeting for the following morning.
On Tuesday, March 20, 2012, M.S. and J.S., Jr. met with Whitfield.5 Whitfield
listened to the recordings during that meeting and followed along with an index that M.S.
provided.6 That same day, Pitchford instructed Whitfield to assign J.S., III a new special
education teacher and a new special education aide, which she did that same day. On
Wednesday, March 21, 2012, M.S. and J.S., Jr. met with J.S., III’s IEP team, and they revised

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As a result, and in light of the Court’s ruling on the Board’s summary judgment motion,
as discussed herein, the Board’s Motion to Exclude the Expert Opinion and Testimony of Don
Mosley (Doc. #88) and its Fed. R. Civ. P. 56(c)(2) Objection to Evidence (Doc. #86) are DENIED
as moot.
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R.T.’s parents, T.T. and V.T., were also at this meeting.

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The recordings themselves last approximately 20 hours.
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his 2011-2012 IEP to reflect the changes in his special education teacher and aide. That same
morning, Pitchford instructed Smith to place Faircloth and Brown on administrative leave,
which she did. J.S., III’s parents were “satisfied” with the Board’s handling of the matter at
that point.
However, on Thursday, March 22, 2012, Pitchford listened to the recordings and
decided to take Brown and Faircloth off administrative leave and to assign them to new
positions in the school with instructions not to interact with J.S., III. Brown and Faircloth
returned to work at Wicksburg in new positions on Friday, March 23, 2012. When M.S.
learned of this, she withdrew J.S., III from Wicksburg and contacted the media. That
following Monday, March 26, 2012, Faircloth and Brown were placed back on administrative
leave and neither returned to work at Wicksburg.7 J.S., III then returned to Wicksburg and
completed his fourth grade year.
There is no dispute that J.S., III’s parents received Wicksburg’s Special Education
Rights document on several occasions during J.S., III’s attendance at Wicksburg, including
on March 21, 2012, the day of the IEP meeting that revised J.S., III’s special education
teacher and aide assignments. M.S. also testified to having read the document. Still, J.S.,
III’s parents never pursued a due process hearing under the IDEA through the Alabama
Department of Education and never attempted to secure additional services for J.S., III in
connection with the events made the basis of this lawsuit. Plaintiffs instead claim they were

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Faircloth resigned from his position at Wicksburg, and Brown’s teaching contract was not
renewed at the end of the school year.
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satisfied with the changes made to J.S., III’s IEP and were not interested in additional
remedies provided through the IDEA.
B.

Procedural Background
On August 6, 2012, J.S., III, by and through his parents, J.S., Jr. and M.S.

(collectively, “Plaintiffs”) filed a complaint in this Court asserting various federal and state
law claims against the Board, Faircloth, Brown, Pitchford, and Smith. (Doc. #1.) Plaintiffs
amended their complaint on March 22, 2013, again asserting various federal and state law
claims against the defendants.8 Plaintiffs seek compensatory and punitive damages.
Based upon the representations and agreements of the parties, Plaintiffs have
dismissed all of their claims in this case except for Count I of the Amended Complaint,
which asserts claims against the Board under the ADA and § 504 of the Rehabilitation Act.9
(Doc. #40, Count I.) Thus, this Memorandum Opinion and Order will address only the
merits of those remaining claims against the sole remaining defendant.
III. STANDARD OF REVIEW
Summary judgment should be rendered “if the movant shows that there is no genuine

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Specifically, Plaintiffs’ Amended Complaint asserted the following claims against the
following defendants: (1) claims under § 504 of the Rehabilitation Act and the ADA against the
Board (Count I); (2) a substantive due process claim under 42 U.S.C. § 1983 against all Defendants
(Count II); (3) another substantive due process claim under 42 U.S.C. § 1983 against Faircloth
(Count III); (4) an equal protection claim under 42 U.S.C. § 1983 against all Defendants (Count IV);
(5) claims for negligent, wanton, and willful conduct against Pitchford, Smith, Brown and Faircloth
(Count V); (6) a claim for assault and battery against Faircloth (Count VI); and (7) a claim for false
imprisonment against Faircloth (Count VII). (See Doc. #40.)
9

See Docs. ## 78, 104, 117, and the Court’s oral Order dated May 22, 2014.
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dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The moving party bears the burden of establishing that no genuine
disputes of material fact remain. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
When faced with a properly supported motion for summary judgment, the non-moving
party must come forward with specific factual evidence, presenting more than mere
allegations. See Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). “A
nonmoving party, opposing a motion for summary judgment supported by affidavits [or other
relevant evidence] cannot meet the burden of coming forth with relevant competent evidence
by simply relying on legal conclusions or evidence which would be inadmissible at trial.”
Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991) (alteration to original).
In ruling on a motion for summary judgment, the district court must construe the facts
and all reasonable inferences therefrom in the light most favorable to the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “[A]t the summary judgment
stage 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.” Id. “Some degree of
factual dispute is expected, but to defeat a motion for summary judgment the factual dispute
must be material and genuine.” D.N. ex rel. Newborn v. Sch. Bd. of Seminole Cnty., Fla., No.
6:07-cv-1494-ORL, 2009 WL 2178898, at *4 (M.D. Fla. July 21, 2009). “That is, the factual
evidence must ‘affect the outcome of the suit’ and must be ‘such that a reasonable jury could
return a verdict for the nonmoving party.’” Id. (quoting Anderson, 477 U.S. at 248).
IV. DISCUSSION
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In the Board’s motion for summary judgment and Plaintiffs’ opposition thereto, the
parties raise multiple grounds in support of and in opposition to the entry of summary
judgment on Plaintiffs’ ADA/§ 504 claims. (Docs. ## 90, 91, 103, 104, 108.) The Court,
however, need only address the merits of just one of those proffered grounds–failure to
exhaust administrative remedies–as it is dispositive of Plaintiffs’ remaining ADA/§ 504
claims.
The primary purpose of the IDEA is “to ensure that all children with disabilities have
available to them a free appropriate public education that emphasizes special education and
related services designed to meet their unique needs and prepare them for further education,
employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A). The IDEA does not
prevent plaintiffs from bringing claims for relief under other federal laws protecting the
rights of children with disabilities, such as the ADA or § 504. See M.T.V. v. DeKalb Cnty.
Sch. Dist., 446 F.3d 1153, 1158 (11th Cir. 2006). However, prior to bringing suits under
other federal laws, the IDEA requires plaintiffs to exhaust their administrative remedies
under § 1415(l) of the IDEA when those claims relate to the evaluation and education of a
disabled child. See 29 U.S.C. § 1415(l); Babicz v. Sch. Bd. of Broward Cnty., 135 F.3d 1420,
1421 n.3 (11th Cir. 1998); J.P. v. Cherokee Cnty. Bd. of Educ., 218 Fed. App’x 911 n.3 (11th
Cir. 2007) (“The exhaustion requirement applies to claims asserting the rights of disabled
children under not only the IDEA, but also the ADA, § 504 . . . , and the Constitution.”)
(citation omitted).
In this case, Plaintiffs do not contest that the IDEA’s administrative exhaustion
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requirements apply to their ADA/§ 504 claims. (See Doc. #104, p. 23.) Indeed, those claims
allege that the Board failed to accommodate J.S., III’s disabilities and that it discriminated
against him based on his disabilities by, among other things, (1) failing to develop and to
follow appropriate policies; (2) allowing unqualified personnel to teach J.S., III; (3) allowing
corporal punishment to be administered to J.S., III; (4) failing to adequately supervise its
special education instructors; (5) failing to adequately supervise its special education
students; and (6) allowing J.S., III to be removed from his regular and special education
classrooms for purposes unrelated to his education. All of this conduct, according to
Plaintiffs, “effectively excluded J.S., III from participating in, and receiving full access to,
the benefits of the programs and activities of [the Board].” (Doc. #40.) Thus, because the
crux of these allegations relate to the education and evaluation of J.S., III, a disabled child,
Plaintiffs’ ADA and § 504 claims are subject to the exhaustion requirements of the IDEA.
Having made that determination, the question now turns to whether Plaintiffs have
adequately exhausted their administrative remedies under the IDEA. The answer to that
question is no. In fact, Plaintiffs readily concede that they failed to file for a due process
hearing or otherwise exhaust any administrative remedies under the IDEA with respect to the
events made the basis of this lawsuit. Normally, such an admission would end this dispute.
However, in this case, Plaintiffs contend that their failure to exhaust should be excused
because “an administrative proceeding under the IDEA would [have been] a waste of time
and resources due to the fact that J.S., Jr. and M.S. feel that they have secured all the relief
for J.S., III that the IDEA provides.” (Doc. #40, ¶ 11.) Put differently, Plaintiffs argue that
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pursuing an administrative remedy under the IDEA was futile, and, therefore, their ADA/§
504 claims should be allowed to proceed.10
Plaintiffs are correct that “[e]xhaustion under the IDEA is not required where
resorting to administrative remedies would prove futile . . . .” Pope ex rel. Pope v. Cherokee
Cnty. Bd. of Educ., 562 F. Supp. 2d 1371, 1376 (N.D. Ga. 2006) (citing N.B. v. Alachua
Cnty. Sch. Bd., 84 F.3d 1376, 1379 (11th Cir. 1996); M.T.V., 446 F.3d at 1159). However,
“[t]he burden of demonstrating futility is on the party seeking exemption from the exhaustion
requirement,” M.T.V., 446 F.3d at 1159, and Plaintiffs have not met their burden of
demonstrating that exhaustion is futile in this case.
The only reason offered by Plaintiffs for not pursuing a due process hearing in this
case was that Plaintiffs were satisfied with the relief they obtained before they filed this
lawsuit and were not interested in obtaining any additional relief under the IDEA.11
However, the law is clear that simply being satisfied with the type of pre-lawsuit relief
obtained does not render exhaustion futile. See N.B., 84 F.3d at 1379; C.T. ex rel. Trevorrow

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In addition to their futility argument, Plaintiffs also argued at summary judgment that their
ADA/§ 504 claims were not barred by their failure to exhaust administrative remedies under the
IDEA because the Board had waived a “failure to exhaust” defense. However, at oral argument on
May 22, 2014, the Court specifically found that the Board had raised “failure to exhaust” as an
affirmative defense in its answer and had also pursued such a defense in discovery and, therefore,
had not waived this defense. Because the Court has already found that Plaintiffs’ waiver argument
lacks merit, the undersigned will not address it further herein.
11

Notably, while the IDEA does provide various types of remedies, such as restitution for
some parental expenses, compensatory education for students, and procedural remedies, it does not
provide for aggrieved parties to obtain monetary relief. See Moore v. Chilton Cnty. Bd. of Educ.,
936 F. Supp. 2d 1300, 1306 (M.D. Ala. 2013) (“[T]he IDEA does not provide a cause of action for
tort-like relief.”) (quoting Ortega v. Bibb Cnty. Sch. Dist., 397 F.3d 1321, 1326 (11th Cir. 2005)).
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v. Necedah Area Sch. Dist., 39 Fed. App’x 420, 422 (7th Cir. 2002) (holding that parties’
argument “that they are not interested in IDEA remedies . . . is insufficient to excuse the
exhaustion requirement”); Jennifer B. v. Chilton Cnty. Bd. of Educ., 891 F. Supp. 2d 1313,
1322 (M.D. Ala. 2012); Pope ex rel. Pope, 562 F. Supp. 2d at 1376 (stating “Plaintiffs’
claims and alleged injuries are educational based, and the fact that Plaintiffs contend that the
current educational plan is sufficient does not render exhaustion futile” and that “the informal
steps taken by Plaintiffs are not the statutory equivalent of exhaustion”). The ultimate
dispute here concerns the Board’s failure to sufficiently provide a public education to J.S.,
III and the adverse consequences of that failure. Requiring Plaintiffs to proceed under the
IDEA’s administrative process in such a case is not futile. See Pope ex rel. Pope, 562 F.
Supp. 2d at 1376 (citing cases).
This result may seem somewhat nonsensical when, as here, there is no dispute that,
after the events of March 2012 came to light, Plaintiffs and the Board worked cooperatively
and diligently to provide J.S., III with new or additional educational services, to revise his
IEP accordingly, and to prepare him for his upcoming fifth grade year. One could ask why
then, in cases like this, when the parents voluntarily work with the educational providers
outside the due-process administrative framework and are satisfied with the remedies
provided to their disabled child, are they still required to go through the motions of a dueprocess hearing before they can pursue their claims in federal court? The simple answer is
the “[p]arties cannot know if adequate relief is unavailable unless they ask for it and go
through the process.” C.T. ex rel Trevorrow, 39 Fed. App’x at 423. Indeed, as the
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undisputed evidence in this case has shown, J.S., III could have obtained additional services
and benefits other than those currently provided to him, such as counseling, if he had pursued
a due-process hearing. Finally, as the Eleventh Circuit has explained, state administrative
agencies, like the Alabama Department of Education, are better equipped and possess the
expertise necessary to address these types of situations; therefore, they should be given the
first opportunity to correct the type of educational errors presented here, as opposed to a
federal court. See, e.g., Jennifer B., 891 F. Supp. 2d at 1322 (citing Ass’n for Retarded
Citizens of Ala., Inc. v. Teague, 830 F.2d 158, 160 (11th Cir. 1987)). Accordingly, the
Board’s motion for summary judgment is due to be GRANTED, and Plaintiffs’ ADA/§ 504
claims are due to be DISMISSED WITHOUT PREJUDICE for failure to exhaust their
administrative remedies.

V. CONCLUSION
Based on the foregoing, it is hereby ORDERED as follows:
1.

The Houston County Board of Education’s Motion for Summary Judgment

(Doc. #90) is GRANTED, and Plaintiffs’ ADA and § 504 claims as alleged in Count I of the
amended complaint are DISMISSED WITHOUT PREJUDICE. This ruling resolves all pending
claims in this action, and the Clerk of Court is DIRECTED to close the file.
2.

The Houston County Board of Education’s Motion to Exclude the Expert Opinion

and Testimony of Don Mosley (Doc. #88) and Fed. R. Civ. P. 56(c)(2) Objection to Evidence (Doc.
#86) are DENIED as MOOT.
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3.

The pretrial hearing and trial in this matter are CANCELLED.

A final judgment consistent with this Memorandum Opinion and Order is
forthcoming.
DONE this the 8th day of July, 2014.

/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

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