S.R. et al v. Kenton County Sheriff's Office et al

Filing 59

MEMORANDUM OPINION & ORDER; that defendants' joint motion to dismiss 29 be, and is hereby, DENIED WITHOUT PREJUDICE to renewing their arguments on summary judgment, after discovery has been completed. Signed by Judge William O. Bertelsman on 12/28/2015.(KRB)cc: COR

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON

CIVIL ACTION NO. 2:15-cv-143 (WOB-JGW)
S.R., ET AL.

VS.

PLAINTIFFS

MEMORANDUM OPINION AND ORDER

KENTON COUNTY SHERIFF’S OFFICE,
ET AL.

DEFENDANTS

This matter is before the Court on defendants’ joint
motion to dismiss (Doc. 29).

The Court previously heard oral

argument on this motion and took it under submission.

(Doc.

55).
Having given this matter further study, the Court now
issues this Memorandum Opinion and Order.
Factual and Procedural Background1
Plaintiffs S.R. and L.G. are two elementary schoolchildren
with disabilities who were ages eight and nine respectively at
the time of the events at issue.

(Compl. ¶ 2).

Defendant Kevin

Sumner, an employee of the Kenton County Sheriff’s Office, is a
School Resource Officer (SRO) assigned to plaintiffs’ schools.
(Id.).

The Sheriff’s Office is also a defendant herein.

1

The facts are as alleged in the complaint.

A. The Handcuffing of S.R.
In the Fall of 2014, S.R. was enrolled in the third grade
at Latonia Elementary School.
and weighed 52 pounds.
traumatic

stress

disorder (ADHD).

He was approximately 3½ feet tall

(Compl. ¶ 21).

disorder

and

S.R. suffers from post-

attention

(Compl. ¶ 12).

deficit

hyperactive

Due to these disorders, S.R.

experiences a variety of behavioral problems.
On November 13, 2014, S.R. experienced disability-related
difficulties complying with directives from his teacher and the
Vice Principal, so he was removed from the classroom and taken
to the Vice Principal’s office.

(Compl. ¶ 26).2

While in the

office, S.R. tried to leave the room, but school personnel held
the door closed.

(Compl. ¶ 28).

S.R. was restrained by the

Vice Principal and a special education teacher twice for about
four to five minutes each time.

The teacher then telephoned

S.R.’s mother, and S.R. spoke with her for several minutes.
Having

calmed

down,

S.R.

stated

that

he

needed

to

use

the

restroom, and his mother requested that he be allowed to do so.
(Compl. ¶ 29).

2

Portions of the events in the Vice Principal’s office were
captured on a video recording made by school personnel. (Docs.
3, 27).
2

Defendant Sumner, who had just arrived at the school, took
S.R.

to

the

bathroom.

When

they

returned

to

the

Vice

Principal’s office, S.R. did not follow Sumner’s instruction to
sit down.
attempted

Sumner would later state that S.R. “swung his arm and
to

strike

[him]

with

his

elbow.”

(Compl.

¶

30).

Sumner then handcuffed S.R. behind his back, placing the cuffs
on S.R.’s biceps above the elbows.

On the video, Sumner can be

heard stating, “You can do what we ask you to or you can suffer
the consequences.

S.R. can be heard saying, “Oh, God.

hurts.”

S.R.

remained

minutes.

(Compl. ¶ 31).

handcuffed

for

Ow, that

approximately

fifteen

When S.R.’s mother arrived, Sumner

told her that S.R. would be handcuffed again if he did not
behave.

(Compl. ¶ 36).

A. The Handcuffing of L.G.
In the fall of 2014, L.G was enrolled in the fourth grade
at John G. Carlisle Elementary School in Covington.
about 56 pounds.

(Compl. ¶ 39).

She weighed

L.G. suffers from ADHD and

mental health problems that cause her behavioral problems.

She

has an Individualized Education Plan (“IEP”) under the IDEA,
which includes strategies for assisting with her behavior.
On August 21, 2104, Sumner, who was assigned to L.G.’s
school, was contacted by school personnel to assist with L.G.,
who had been put in the school suspension room.
3

(Compl. ¶ 42).

According to Sumner, L.G. had been screaming and disrupting the
classroom.

He placed L.G. in the back of his cruiser and took

her home, where they waited more than an hour for her mother to
arrive.

(Id.).

On October 3, 2014, L.D. experienced difficulties complying
with

her

teacher’s

instructions,

so

she

was

placed

in

suspension room and then in the school isolation room.

the
When

L.G. tried to leave the isolation room, she was restrained by
the Principal and Vice Principal.
School

personnel

(Compl. 43).

contacted

Sumner,

who

went

to

the

isolation room, where he handcuffed L.G. behind her back by
placing

the

cuffs

(Compl. ¶ 44).

around

her

biceps

and

above

her

elbows.

In a report prepared sometime later, Sumner

stated that he handcuffed L.R. because she was attempting to
“injure” the school staff while being restrained.

L.G remained

handcuffed for twenty minutes.

(Id.)

The handcuffing caused

L.G.

crisis

and

to

have

a

mental

health

ambulance from the school to the hospital.

she

was

taken

by

(Compl. ¶ 45).

About three weeks later, on October 23, 2014, Sumner again
handcuffed L.G.

That morning, L.G. was walking the hallways

when she was supposed to be in the cafeteria.

The Principal

directed her to go to the cafeteria, and L.G. proceeded in that
direction

but

did

not

enter.

(Compl.
4

¶

48).

Sumner

then

approached L.G. and told her to go into the cafeteria, but L.G.
panicked and ran away.

(Compl. ¶ 49).

At about 7:45 a.m., Sumner and the Principal restrained
L.G., who resisted and struggled.

(Compl. ¶ 50).

Sumner then

handcuffed L.G. behind her back in the same fashion as before.
She remained handcuffed, kneeling on the floor, for about 30
minutes until her mother arrived.

(Id.).

In a report written

months later, Sumner stated that he handcuffed L.G. because she
was attempting to assault him.
When

L.G.’s

mother

arrived,

she

saw

L.G.

crying

and

screaming and witnessed Sumner holding L.G.’s hands over her
head in a shoulder “hyperextension” position.

(Compl. ¶ 51).

B. This Lawsuit
Plaintiffs filed this lawsuit on August 3, 2015, against
Sumner,

in

both

his

official

and

individual

capacities,

and

Charles Korzenborn, the Kenton County Sheriff, in his official
capacity only.3

(Doc. 1).

The Complaint alleges the following

causes of action: (1) Unreasonable Seizure and Excessive Force

3

The Complaint also names Kenton County Sheriff’s Office as a
defendant.
Plaintiffs acknowledged during a preliminary
pretrial conference on August 18, 2015, that the Sheriff’s
office is not a legal entity capable of being sued under § 1983
and that the Sheriff in his official capacity is the proper
defendant as to any claims for municipal liability. However, as
will be discussed below, plaintiffs assert that the Sheriff’s
Office is a proper defendant as to the ADA claim.
5

in violation of the Fourth and Fourteenth Amendments (against
all

defendants);

Americans

with

(2)

Disability

Disabilities

Act

Discrimination
(ADA),

42

under

U.S.C.

§

the
12132

(against Kenton County Sheriff’s Office only); and (3) Failure
to Accommodate under the ADA (against Kenton County Sheriff’s
Office

only).

Plaintiffs

seek

damages

and

declaratory

and

injunctive relief.
Analysis
This case has several unusual aspects.

First, the

plaintiffs seek relief in their complaint on two theories which
have differing standards for recovery: 42 U.S.C. § 1983 and the
Americans with Disabilities Act.

Id.

Second, the defendants

want to treat this as a law enforcement matter, arguing for
qualified immunity on that basis, while plaintiffs focus on the
fact that the handcuffing at issue was performed on young,
disabled children at school, which they contend violates the
ADA.
With these observations, the Court will analyze each cause
of action.
A.

Section 1983 Claim
“To state a claim under § 1983, a plaintiff must set forth

facts

that,

when

favorably

construed,

establish:

(1)

the

deprivation of a right secured by the Constitution or laws of
6

the United States; (2) caused by a person acting under the color
of state law.”

Baynes v. Cleland, 799 F.3d 600, 607 (6th Cir.

2015) (citing Sigley v. City of Parma Heights, 437 F.3d 527, 533
(6th Cir. 2006)).
1.
Here,

Violation of Constitutional Right
plaintiffs

allege

that

they

were

subjected

to

unreasonable seizures and excessive force in violation of the
Fourth Amendment.

(Compl. ¶¶ 55-64).

“Unlawful seizure and

excessive force are distinct claims.”

Hoskins v. Cumberland

Cnty. Bd. Of Educ., No. 2:13-cv-15, 2014 WL 7238621, at *7 (M.D.
Tenn. Dec. 17, 2014) (citing Humphrey v. Mabry, 482 F.3d 840,
848-51 (6th Cir. 2007)).

Here, plaintiffs’ Fourth Amendment

claim appears to be based on the theory that the handcuffing was
per se illegal under the circumstances, such that the claims
effectively merge, rather than on a theory that otherwise lawful
handcuffing was carried out in an excessive manner.

Thus, the

issue is whether the handcuffing constituted an unlawful seizure
under the Fourth Amendment.

See, e.g., Gray v. Bostic, 458 F.3d

1295, 1304 (11th Cir. 2006) (noting that where plaintiff, an
elementary school student, alleged that SRO had no right to
detain her at all under the circumstances, claim for excessive

7

force arising out of handcuffing “is not an independent claim,
but rather is subsumed in her illegal seizure claim”).4
Determining whether a particular seizure is “reasonable”
under the Fourth Amendment requires a careful balancing of “the
nature and quality of the intrusion on the individual’s Fourth
Amendment

interests”

interests at stake.

against

the

countervailing

governmental

Graham v. Connor, 490 U.S. 386, 396 (1989)

(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)).
Because
Amendment

the
not

is

application

test

capable

requires

of

reasonableness
of

careful

precise

under

definition,

attention

to

the

Fourth

“its

proper

the

facts

and

circumstances of each particular case, including the severity of
the

crime

at

issue,

whether

the

suspect

poses

an

immediate

threat to the safety of the officers or others, and whether he
is actively resisting arrest or attempting to evade arrest by
flight.”

Id.5

4

While this appears to be the primary theory of the complaint,
the Court notes that L.G. alleges not only that her handcuffing
was per se unreasonable, but also that Sumner used a shoulder
hyperextension pain compliance technique when he lifted her
cuffed arms towards her head, thus using excessive force.
(Compl. ¶ 51).
5

In addition to this traditional Fourth Amendment analysis,
some courts also analyze claims for unlawful seizures by school
officials under the more lenient standard articulated by the
Supreme Court in New Jersey v. T.L.O., 469 U.S. 325 (1985). In
T.L.O., which involved searches of children in a school setting,
8

Applying these factors to the allegations of the Complaint,
the

Court

concludes

that

plaintiffs

claim for unlawful seizure.

have

stated

a

plausible

While defendants argue that the

plaintiffs were lawfully seized because they had committed the
crime

of

technically

assault,
accurate

this
—

characterization
exaggerates

the

—

while

conduct

at

perhaps
issue.

the Court recognized that public school students’ rights under
the Fourth Amendment are not as broad as those of the public and
adopted a “reasonableness” test based on all the circumstances.
Id. at 341-42. Courts have applied the relaxed T.L.O. standard
to unlawful seizure claims in the school setting.
Hoskins v.
Cumberland Cnty. Bd. Of Educ., No. 2:13-cv-15, 2014 WL 7238621,
at *9 (M.D. Tenn. Dec. 17, 2014) (listing cases). See also S.E.
v. Grant Cnty. Bd. Of Educ., 544 F.3d 633, 640-41 (6th Cir.
2008) (applying T.L.O. line of authority to seizure of student
by assistant principal).
Here, defendants have not cited to T.L.O nor urged its
application in this case.
Moreover, as the court in Hoskins
noted, even if T.L.O.’s reasonableness standard would apply to
the seizure of a student by school personnel, “wholly different
concerns are raised when, as in this case, a law enforcement
officer seizes a child at school.”
Id. at *10.
Indeed, the
T.L.O. Court expressly declined to reach the issue of what
standard would apply to “the legality of searches conducted by
school officials in conjunction with or at the behest of law
enforcement agencies.” T.L.O., 469 U.S. at 341 n.7.
For these reasons, the Court will analyze plaintiff’s
claims under the traditional Fourth Amendment approach.
The
Court notes, however, that even under the T.L.O. test, courts
have found that the handcuffing of students by law enforcement
officers for non-safety-related reasons violates the Fourth
Amendment. See, e.g., Gray v. Bostic, 458 F.3d 1295, 1306 (11th
Cir. 2006) (handcuffing of nine-year-old student who had
threatened to hit coach was unlawful seizure; incident was over,
student posed no threat, and handcuffing by sheriff’s deputy was
attempt to punish student and change her behavior in the
future).

9

Plaintiff S.R. — whose conduct was captured, in part, on video —
was having, effectively, a severe temper tantrum.

Admittedly,

as seen on the video, he was pushing and swatting at the teacher
who is preventing him from opening the door, but given his age
and size, one could reasonably conclude that handcuffing was not
necessary to address that conduct.
Moreover,

according

to

the

complaint,

Sumner

did

not

handcuff S.R. upon arriving at the school and learning of S.R.’s
actions.

Rather, he first escorted S.R. to the restroom, during

which time S.R. apparently did not act out or engage in any
unlawful conduct.

Upon returning to the Vice Principal’s office

to wait for S.R.’s mother to arrive, S.R. refused to sit down as
Sumner instructed.

It was only at this point that Sumner placed

S.R. in handcuffs.

Sumner can then be heard telling S.R. that

he must behave if he wants the handcuffs removed.
Thus, accepting the allegations of the complaint as true,
Sumner handcuffed S.R. at a time when he presented no danger and
could not leave the room, and the handcuffing was actually a
disciplinary
behavior.

measure

employed

to

force

S.R.

to

change

his

See Gray, 458 F.3d at 1306 (handcuffing nine-year-old

student was unlawful seizure; deputy’s handcuffing of student

10

“was his attempt to punish Gray in order to change her behavior
in the future”).6
Under similar facts, another district court in the Sixth
Circuit recently held that an officer’s handcuffing of an eightyear-old student, who had threatened and swung his fist at his
teacher, constituted an unlawful seizure as a matter of law.
Hoskins v. Cumberland Cnty. Bd. of Educ., No. 2:13-cv-15, 2014
WL 7238621 (M.D. Tenn. Dec. 17, 2014).

The Court stated:

Even in our society where the criminalization of
children is lamentably becoming increasingly common,
it remains relatively uncommon for law enforcement
officers to arrest a child as young as T.H. at all,
much less for this type of conduct.
That is to say,
not only was T.H.’s conduct not a “severe” crime, but
also, given his extremely young age, arguably should
not be treated as a crime at all. Although the Court
has been unable to identify any limitation on the age
of child that can be detained and arrested under
Tennessee law, simple common sense dictates that it is
not reasonable or appropriate to bring criminal
charges against young children for relatively minor
school misbehavior.
Id. at *8.7

See also C.B. v. City of Sonora, 769 F.3d 1005,

1040 (9th Cir. 2014) (applying Graham factors and holding

6

As plaintiffs note, the Kentucky regulations governing the use
of physical and mechanical restraints in schools prohibit the
use of physical restraint as punishment or discipline or to
force compliance or retaliate. 704 Ky. Admin. Regs. 7:160, sec.
3.
Further, physical restraints may be used only where the
student’s behavior “poses an imminent danger of physical harm to
self or others.” Id.
11

that handcuffing 11-year-old student who did not pose an
immediate safety or flight risk was unreasonable).

But see

J.H.

7597462

v.

(10th

Bernalillo

Cir.

Nov.

Cnty.,
27,

No.

2015)

14-2068,
(holding

2015
that

WL

arrest

and

handcuffing of of eleven-year-old special needs student who
kicked teacher did not violate Fourth Amendment and was not
excessive force).
Similarly,

taking

as

true

the

allegations

of

the

complaint as to plaintiff L.G., one could conclude that her
handcuffing

by

engaged

relatively

in

Sumner

was

unreasonable

minor

misconduct,

because
posed

she
no

had

direct

threat to anyone, and was, in essence, simply defiant and
noncompliant.

The use of handcuffs on a small, nine-year-

old child at school under the circumstances alleged as to
L.G. thus also supports a claim for unlawful seizure.
Defendants rely heavily on Neague v. Cynkar, 258 F.3d
504 (6th Cir. 2001), for their argument that plaintiffs
have

failed

to

plead

a

constitutional

violation.

In

Neague, the police responded to a 911 call by a school
principal who had been assaulted by a seventh grader during

7

Although the Court went on to hold that the police officer was
entitled to qualified immunity, it is evident from the opinion
that the Court was compelled to so hold because plaintiffs’
counsel apparently failed to develop a record on the facts
relevant to that issue. Id. at *13.
12

detention.

When the police arrived, the principal reported

that he had been “chest-butted” by the student, and the
student refused the officer’s instructions to go to the
office, instead stepping on her foot and walking away.
at 506.

Id.

Another officer restrained the student and, after

escorting him to the office, asked the principal if he
wanted him to handcuff the student, to which the principal
replied yes.

Id.

The student remained handcuffed for

approximately half an hour until his parents arrived.
Finding that the officers were entitled to qualified
immunity, the Sixth Circuit held that “when there is no
allegation

of

physical

injury,

the

handcuffing

of

an

individual incident to a lawful arrest is insufficient as a
matter of law to state a claim of excessive force under the
Fourth Amendment.”

Id. at 508.

Neague is arguably distinguishable.

First, it deals

with a claim for excessive force, whereas plaintiffs here
allege that their seizure itself was per se unlawful.

See

Hoskins, 2014 WL 7238621, at *7 (noting that lawfulness of
seizure

was

separate

question

force, distinguishing Neague).
here

that

there

was

no

claim

of

excessive

Second, plaintiffs assert

lawful

handcuffing was incident.
13

from

arrest

to

which

the

As
which

noted,

the

whether

defendants

plaintiffs

Sumner

ever

make

had

much

engaged,

intended

to

of

the

“crimes”

yet

it

is

disputed

the

children

arrest

in

because, as plaintiffs note, he took none of the steps
required

by

Kentucky

custody.

See KRS 610.200.

Further,

this

law

case

is

when

a

at

the

child

is

taken

into

pleading

stage.

As

discussed below with respect to the defense of qualified
immunity, discovery is necessary on a number of issues so
that the Court can have before it all relevant facts before
making any dispositive rulings.
Therefore, the Court will deny defendants’ motion to
dismiss on the grounds that plaintiffs have failed to plead
a constitutional violation.
2.
The
officials

Qualified Immunity

doctrine

of

performing

qualified

immunity

discretionary

shields

functions

government
from

civil

liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known.

Baynes, 799 F.3d

at 609 (citing Harlow Fitzgerald, 457 U.S. 800, 818 (1982)).
To determine whether a government official is entitled to
qualified immunity, the Court must make two inquiries:
14

First, viewing the facts in the light most favorable
to the plaintiff, has the plaintiff shown that a
constitutional violation has occurred?
Second, was
the right clearly established at the time of the
violation?
These prongs need not be considered
sequentially.
Id. at 610 (citations omitted).
The
defendant

plaintiff
is

not

bears
entitled

the

burden

to

to

show

qualified

that

immunity.

the
Id.

(citing Untalan v. City of Lorain, 430 F.3d 312, 314 (6th
Cir. 2005)).
Defendants
constitutional

assert
rights

that,

were

even

violated

by

if

plaintiffs’

the

handcuffing,

Sumner is still entitled to qualified immunity because a
reasonable officer in his position would not have known
that plaintiffs’ rights to be free from handcuffing under
these circumstances was clearly established.
For

purposes

of

the

qualified

immunity

analysis,

a

right is “clearly established” if the contours of the right
are

sufficiently

clear

that

a

reasonable

officer

understand that what he is doing violates that right.

would
Id.

(citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
“The relevant inquiry is ‘whether it would be clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted.’”

Id. (quoting Saucier v. Katz,

533 U.S. 194, 202 (2001)).
15

The purpose of the “clearly established” prong is to
ensure that officials are on notice that their conduct was
unconstitutional.
rather

than

defendant’s

Id.

a
own

However,

subjective,
subjective

this

is

inquiry,

view

of

the

actions is “essentially irrelevant.”

an

objective,

such

that

legality

the

of

his

Id. at 610-11 (citing

Cope v. Heltsley, 128 F.3d 452, 458 (6th Cir. 1997)).
The Supreme Court has held that “the precise factual
scenario need not have been found unconstitutional for it
to be sufficiently clear to a reasonable officer that his
actions

violate

a

constitutional

right.”

Id.

at

611

(citing Hope v. Peltzer, 536 U.S. 730, 739, 741 (2002)).
Thus, a government official “can still be on notice that
their

conduct

violates

factual circumstances.”

established

law

even

in

novel

Id.

Defendants argue that Sumner is entitled to qualified
immunity

because

he

was

entitled

to

seize

the

children

under Kentucky law based on their criminal conduct, as well
as

on

the

Sixth

Circuit’s

holding

in

Neague

that

handcuffing incident to a lawful arrest does not constitute
excessive force.
As already noted, Neague may be distinguishable from
the

facts

alleged

here,

and

it
16

is

highly

questionable

whether a reasonable officer would arrest an eight or nineyear old for relatively minor misconduct at school.
In

any

event,

because

the

defense

of

qualified

immunity requires an analysis of all the surrounding facts
in order to place the officer’s conduct in context, the
Court will deny the motion to dismiss without prejudice so
that

discovery

can

be

done

to

examine

the

exact

circumstances that led to the handcuffing of these children
and

whether,

if

a

constitutional

violation

occurred,

a

reasonable officer in Sumner’s position would have known
that his actions were unlawful.

See, e.g., Crow v. Rhone,

No. 09-14497, 2010 WL 1523427, at *2 (E.D. Mich. April 15,
2010)

(noting

that

court

was

unable

to

discern

whether

defendant was entitled to qualified immunity because motion
to dismiss was filed shortly after case itself was filed,
and no discovery had been taken; denying motion without
prejudice).
As

the

inappropriate
motion

to

Sixth
for

dismiss

Circuit
a

has

district

on

the

noted,

court

basis

of

to

it

“is

grant

qualified

generally
a

12(b)(6)

immunity.”

Wesley v. Campbell, 779 F.3d 421, 433 (6th Cir. 2015).
Rather, the fact-intensive nature of the qualified-immunity
analysis makes dismissal, if warranted, better suited to
17

the

summary

conducted.

judgment

phase,

after

discovery

has

been

Id. at 433-34 (citing Evans-Marshall v. Bd. of

Educ. of Tipp City Exempted Village Sch. Dist., 428 F.3d
223, 235 (6th Cir. 2005) (Sutton, J., concurring)).
B.

Americans With Disabilities Act
Title II of the ADA provides that “no qualified individual

with

a

disability

shall,

by

reason

of

such

disability,

be

excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.”

42 U.S.C. §

12132.
a. The Kenton County Sheriff’s Office
Defendant Under Title II of the ADA
Defendants

first

argue

that

the

Kenton

is

County

a

Proper

Sheriff’s

Office is not an appropriate defendant under Title II of the
ADA,

relying

on

cases

interpreting

§

1983.

Defendants

are

mistaken.
The ADA defines a “public entity” broadly to include “any
department,

agency,

special

purpose

district,

or

other

instrumentality of a State or States or local government.”
U.S.C. § 12131.

42

The Sixth Circuit and other courts have thus

held that sheriff’s offices and other local police departments
are

“public

entities”

subject

to

suit

under

Title

II.

See

Crumbaker v. McClean County, Ky., 37 F. App’x 784, 786 (6th Cir.
18

2002) (stating that McClean County Sheriff’s Office is a “public
entity” under Title II); Catlett v. Jefferson County Corrections
Dep’t, No. Civ.A. 3:00CV-340-S, 2000 WL 35547524, at *6 (W.D.
Ky.

Nov.

3,

Government,

2000)
the

(“As

an

Jefferson

‘agency’
County

of

the

Jefferson

Sheriff’s

County

Department

is,

therefore, a ‘public entity’ for the purpose of this motion [to
dismiss ADA claim].”).

See also Gorman v. Bartch, 152 F.3d 907,

912 (8th Cir. 1998) (“A local police department falls ‘squarely
within the statutory definition of ‘public entity.’”); Waller v.
City

of

Danville,

Va.,

515

F.

Supp.2d

659,

(D.W.V.

2007)

(holding that police department was “public entity” under Title
II of ADA), aff’d, 556 F.3d 171 (4th Cir. 2009).
Therefore, unlike the § 1983 context, a local police agency
such as the Kenton County Sheriff’s Office is subject to suit
under Title II of the ADA.

Nonetheless, as the Court noted

during oral argument, it may be prudent for plaintiffs to add
Kenton County itself as a defendant.
b. Plaintiffs Have Adequately Pled a Title II Claim
Defendants next argue that plaintiffs have failed to plead
plausible claims for discrimination under Title II.
To

establish

a

prima

facie

case

of

intentional

discrimination under Title II of the ADA, a plaintiff must show
that: (1) she has a disability; (2) she is otherwise qualified;
19

and

(3)

she

was

excluded

from

participation

in,

denied

the

benefits of, or subjected to discrimination under the program
because of her disability.

Anderson v. City of Blue Ash, 798

F.3d 338, 357 (6th Cir. 2015) (citing Tucker v. Tennessee, 539
F.3d 526, 532 (6th Cir. 2008)).
the

basis

of

disability

challenged action.
In

addition,

must

Intentional discrimination on

be

a

“but

for”

factor

in

the

Id. n.1.
Title

II

prohibits

public

entities

from

utilizing criteria or methods of administration which “have the
effect of subjecting qualified individuals with disabilities to
discrimination

on

35.130(b)(3)(i).

the

basis

of

disability.”

28

C.F.R.

Further, public entities have an affirmative

duty to make reasonable accommodations for disabled individuals:
A public entity shall make reasonable modifications in
policies,
practices,
or
procedures
when
the
modifications are necessary to avoid discrimination on
the basis of disability, unless the public entity can
demonstrate
that
making
the
modifications
would
fundamentally alter the nature of the service,
program, or activity.
28 C.F.R. § 35.130(b)(7).
Taking

the

allegations

of

plaintiffs’

complaint

as

true, plaintiffs have adequately pled a Title II claim.
The

complaint

reasonable

includes

accommodation

two
and

ADA

counts:

intentional

a

failure

of

discrimination.

Plaintiffs allege that the Kenton County Sheriff’s practice
20

§

of handcuffing disabled students is impermissible because
it

bypasses

less

intervention,

severe

de-escalation,

measures
etc.

such
to

as

crisis

address

their

behavioral problems.
They also allege that defendant has failed to modify
its

practices

example,

by

allowing

for

with

respect

demanding
the

to

disabled

unnecessary

nature

of

the

students,

compliance

children’s

for

without

disabilities

which make such compliance difficult or impossible.
While
plaintiffs’

defendants

suggest

disabilities,

that

plaintiffs

Sumner
have

was

not

alleged

aware

of

sufficient

facts regarding his knowledge such that resolution of this issue
at the pleading stage would be inappropriate.
Therefore, the Court will deny the motion to dismiss the
ADA claims herein.
Conclusion
As discussed, this case is only at the pleading stage,
and many issues need to be developed in discovery.

A non-

exhaustive list is:
1. What is the exact nature of the children’s
disabilities and what behavior can be expected to
result therefrom?

21

2. In a school setting, what is the appropriate way to
deal with children who are acting out because of
disabilities?
3. What was the policy of the school district regarding
use of SROs interacting with children with
disabilities?
4. What training did Sumner receive in dealing with such
children?
5. Was this training given by the Sheriff’s Office or by
the school district?
6. Did the officials of the school district or its
governing body order or approve of the actions
complained of?

Therefore, having reviewed this matter, and being
sufficiently advised,
IT IS ORDERED that defendants’ joint motion to dismiss
(Doc. 29) be, and is hereby, DENIED WITHOUT PREJUDICE to
renewing their arguments on summary judgment, after
discovery has been completed.

22

This 28th day of December, 2015.

23