Doe et al v. Livonia Public Schools et al
Filing
279
OPINION and ORDER Granting Defendants' 244 Motion for Summary Judgment. Signed by District Judge Judith E. Levy. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
M.D. Doe, by her Next Friend,
Father of M.D. Doe; C.W. Doe, by
his Next Friend, Mother of C.W.
Doe; and K.H. Doe, by her Next
Friend, Father of K.H. Doe,
Case No. 13-cv-11687
Judith E. Levy
United States District Judge
Plaintiffs,
Mag. Judge Mona K. Majzoub
v.
Livonia Public Schools, Sharon
Turbiak, Nancy Respondek, Randy
Liepa, Candy Sokol, Cindy DeMan,
Shellie Moore, Beth Santer, Tracey
Crews, Maegan Sprow, Carol
DeBeaudry, Diane Sloboda,
Dorothy Chomicz, Meris Hoppe,
Lesley Hoskins, Kathy
Donagrandi, and Michael Fenchel,
Defendants.
________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [244]
This case concerns the alleged abuse of three children with
disabilities by Livonia Public Schools’ (“LPS”) special education teacher
Sharon Turbiak. The children, M.D. Doe, C.W. Doe, and K.H. Doe, were
in LPS’s Moderately Cognitively Impaired (“MoCI”) afternoon program
during the 2011-12 school year. Minor plaintiffs’ parents as their next of
friends allege that defendants violated the children’s rights under the
Fourteenth Amendment of the United States Constitution, the
Americans with Disabilities Act (“ADA”), the Rehabilitation Act (“RA”),
and Michigan state law. Defendants jointly move to dismiss this case and,
in the alternative, for summary judgment.
I.
Background
This case was filed alongside two other cases alleging harms arising
from a common set of facts: Gohl v. Livonia Public Schools, Case No. 12cv-15199, and Roeder v. Livonia Public Schools, Case No. 13-cv-12012.
Each case brought similar claims based on largely similar conduct by
certain defendants. The primary distinction between each case is the
specific conduct each student claims was directed at them by Sharon
Turbiak, their special education teacher, and Nancy Respondek, a
paraprofessional in Turbiak’s classroom. For this reason, this case was
consolidated with Gohl for discovery purposes. The record in Gohl as cited
below, other than the allegation of specific conduct related to these
plaintiffs, sets forth common, undisputed facts in this case.
2
In Gohl v. Livonia Public Schools, the district judge dismissed all
federal claims and declined to exercise supplemental jurisdiction over the
Michigan state law claims. 134 F. Supp. 3d 1066, 1069 (E.D. Mich. 2015).
The United States Court of Appeals for the Sixth Circuit affirmed. Gohl
v. Livonia Pub. Schs. Sch. Dist., 836 F.3d 672 (6th Cir. 2016). Roeder
settled after Gohl was issued. See Case No. 13-cv-12012, Dkt. 255, Order
Approving Plaintiff’s Motion for Approval of Settlement (E.D. Mich. May
15, 2018).
Minor plaintiffs were preschool students in the MoCI program at
Webster Elementary School, a grade school run by LPS, during the 201112 school year. (Dkt. 244-8 at 3-4.) M.D. has Down Syndrome (Dkt. 24420 at 3-4), as does C.W. (Dkt. 244-21 at 4.) K.H. has Cri du Chat
Syndrome. (Dkt. 244-22 at 3.) The MoCI program “[provides] educational
and therapeutic services to Wayne County special-education students
between preschool and age 26,” Gohl, 134 F. Supp. 3d at 1069, and M.D.,
K.H., and C.W. all qualified for the program. Sharon Turbiak was
plaintiffs’ special education teacher (Dkt. 244-8 at 4), and Nancy
Respondek, a paraprofessional, was an assistant in plaintiffs’ classroom.
(Dkt. 244-8 at 10; Dkt. 244-9 at 14.)
3
The 2011-2012 school year was turbulent for the MoCI program at
Webster.
During the school year, Turbiak faced several complaints
about her teaching (and her relationship with her colleagues)
. . . . In October 2011, a special-needs specialist [Beth Santer]
approached the principal at Webster, Shellie Moore, and
passed along some concerns from other staff members about
Turbiak’s classroom behavior. Moore looked into the issue and
over the next few days catalogued concerns about Turbiak.
Gohl, 836 F.3d at 676-77. Moore investigated Santer’s concerns by
speaking with defendants Tracey Crews, Carol DeBeaudry, Candy Sokol,
and Maegan Sprow. Gohl, 134 F. Supp. 3d at 1070. LPS employed Crews
and DeBeaudry as occupational therapists, Sokol as a paraprofessional
and Sprow as a speech therapist. (Dkt. 1 at 4.) Sokol staffed the MoCI
preschool classroom with Respondek. (Dkt. 244-8 at 10.) DeBeaudry and
Meris Hoppe, another speech pathologist, provided services to the
morning session (Dkt. 244-12 at 3-4; Dkt. 244-13 at 3), and Crews and
Sprow provided services to the afternoon session. (Dkt. 244-14 at 3; Dkt.
244 at 25.)
According to Moore, an occupational therapist reported that
Turbiak’s class was “a very uncomfortable place to work” and
that some on Turbiak’s team thought she was overly “harsh
with [the] children, holding their faces or chins tightly and
4
yelling in their faces.” R. 184–9 at 2. A speech pathologist
thought that Turbiak “used too much force by pushing on
children’s shoulders,” and that the “lower functioning
children in the classroom were frustrating to Ms. Turbiak and
. . . were most vulnerable to possible rough treatment.” Id. A
paraprofessional called Moore in tears, worrying that
Turbiak’s bad behavior was “escalating.” Id. An occupational
therapist said that Turbiak was “gruff and abrupt”; that
Turbiak once force-fed a gagging and crying student; and that
Turbiak “picked up [children] from the floor by one arm and
that there was the potential to dislocate a small shoulder.”
Id. . . .
On the advice of Cynthia DeMan, the Director of Personnel
for Livonia Public Schools, Moore met with Turbiak to discuss
her teaching. During the meeting, Turbiak admitted that she
was “feeling unappreciated at Webster” and that she was
“stressed out because of the level of disability of her students
and the reduction of support.” Id. at 3. Turbiak also explained
that she was not as “touchy feely” as her co-workers, had high
expectations for her students, and “wanted them to make
gains while in her classroom.” Id. The next morning, even
though Moore told Turbiak not to question the members of her
team, Turbiak called a meeting to find out who had
complained to the administration. This did not help matters.
Members of Turbiak’s team went to Moore again, telling her
about the meeting and adding that they feared retaliation.
Gohl, 836 F.3d at 677 (alterations in original). This prompted Moore to
contact DeMan, who told Moore to instruct Turbiak to report to the LPS
central office. (Dkt. 244 at 34.) Moore also sent over her catalogue of staff
5
concerns regarding interactions with Turbiak (the “Moore timeline”).
(Dkt. 244 at 34; Dkt. 252 at 32-33.)
On November 2, 2011, Turbiak and her union representative met
with DeMan, Dorothy Chomicz, co-director of human resources, Michael
Fenchel, the other co-director of human resources, and Kathy
Donagrandi, the administrator of student services. (Dkt. 244-6 at 9, 1213-16; Dkt. 244-17.)
The meeting focused on Turbiak’s strained relations with her
colleagues rather than on mistreatment of students. DeMan
sent Turbiak home for a few days and followed up with a
consultation letter, which explained, at heart, that, if Turbiak
was not more professional with staff and students, she would
be subject to disciplinary action. The letter urged Turbiak to
follow “best practices” and to avoid “laps[ing] into
inappropriate behaviors with either staff or students.” R. 123–
8 at 2. But the letter did not specifically accuse Turbiak of
abusing students.
The meeting helped. For four months, no one reported any
mistreatment of students by Turbiak or complained about
friction between her and other employees.
The peace ended on March 5, 2012, when a social worker,
Diane Sloboda, saw Turbiak “grab [J.G.] by the top of his head
and jerk it back quite aggressively. She also yelled ‘You need
to listen’ very close to his face.” R. 123–9 at 2. Sloboda told
Principal Moore about the incident. Moore called the central
office and was instructed to send Turbiak over that afternoon.
6
Turbiak and her union representative met with DeMan and
Dorothy Chomicz, a director of human resources. Turbiak
denied any “grab[bing]” or “yell[ing].” R. 179–6 at 21. She said
she was using a special education technique called
“redirecting” to focus and hold J.G.’s attention after he threw
a ring-stacking toy. Id. Consistent with this technique, she
said she put her hand on the back of J.G.’s head “to keep [it]
from bouncing around,”—a problem for J.G.—and “[s]poke
directly” to him. R. 179–6 at 21. Chomicz, trained as a special
education teacher and familiar with this technique, thought
this sounded reasonable and sent Turbiak back to her
classroom.
Later in March, one of Turbiak’s paraprofessionals, Nancy
Respondek, was accused of spanking a student (not J.G.),
after which the school investigated the incident and whether
Turbiak was behaving “in accordance with [the] guidelines”
set forth in DeMan’s November consultation letter. R. 123–12
at 2. After the investigation, the district placed Turbiak and
Respondek on administrative leave.
Gohl, 836 F.3d at 677-78 (alterations in original). A few months later,
LPS offered Turbiak, who had tenure, the option of resigning or being
terminated (Dkt. 252-24 at 3-4), terminated Respondek (Dkt. 252-25 at
2), suspended Crews, DeMan (Dkt. 252-26 at 2), and issued discipline
letters to DeBeaudry, Sloboda, and Sprow. (Dkt. 252-27.) During this
period, Randy Liepa was the superintendent of LPS. (Dkt. 1 at 34.)
7
Plaintiffs’ claims stem from the following conduct that they allege
Turbiak and Respondek engaged in:
1) In January 2012, Turbiak yelled at K.H. to sit down in her chair.
When K.H. would not sit down, but stood facing the chair with her
hands on the arms of the chair and her knees locked, Turbiak pulled
the chair out from under K.H. so that K.H. would fall down. (Dkt.
252 at 43.)
2) In March 2012, Turbiak moved a chair out from underneath M.D.
with her foot when M.D. “was backing into” the chair, and M.D. fell
to the floor. (Id.)
3) In March 2012, Turbiak and Respondek prevented K.H., who has
auditory sensitivity, from covering her ears and would laugh at her
when she did. (Id. at 43-44.)
4) Over the course of the school year, Turbiak yelled at K.H., and at
least once put K.H. in an unsafe situation where K.H. could not
move or else she could fall. She also sang “Twinkle Twinkle Little
Star” knowing the song upset K.H. and then put a modified potato
chip can on K.H.’s arms to restrain K.H. from covering her ears or
face. (Id. at 44-45.)
8
Plaintiffs do not allege that Turbiak or Respondek engaged in any specific
abusive action toward C.W. other than the general allegation of creating
an abusive environment. (See Dkt. 252 at 43-45.)
At some point in 2012 and 2013, Crews, DeBeaudry, and Sloboda
entered into arbitration against LPS regarding their written reprimands,
as well as Sloboda’s suspension. (Dkts. 252-28 to 252-31, 252-38 to 25240.) The reprimands regarded the failure of each individual to “report in
a timely manner suspected child abuse and/or neglect to [their]
supervisor (principal) that occurred in the pre-school, special education
classroom of a teacher at the school” in relation to Turbiak and
Respondek’s classroom. (Dkt. 252-27 at 4, 5, 6.) On August 6, 2013, the
arbitrator issued awards determining that these employees were
obligated to report suspected child abuse, but reducing Crews’ and
DeBeaudry’s discipline to a verbal warning while upholding Sloboda’s
suspension. (Dkts. 252-38 to 252-40.)
On April 4, 2013, plaintiffs filed this lawsuit, alleging violations of
the Fourteenth Amendment of the United States Constitution, the ADA,
the RA, and Michigan state law, including assault, battery, intentional
infliction of emotional distress (“IIED”), and failure to report child abuse.
9
Plaintiffs
originally
filed
eighty-five
claims
against
seventeen
defendants, but plaintiffs have stipulated to dismiss many claims,
including all claims against Lesley Hoskins; all claims under Michigan’s
Elliot-Larsen Civil Rights Act; all ADA and RA claims against individual
defendants; all claims alleging the denial of a free, appropriate public
education under 42 U.S.C. § 1983; all federal claims by C.W. Doe; and
intentional infliction of emotional distress against LPS. (Dkt. 263.) These
claims remain: § 1983 claims against all remaining defendants (counts 112 and 14-17); ADA and RA claims against LPS (counts 34 and 51);
failure to report child abuse under state law against all remaining
defendants (counts 54 through 64); assault and battery under state law
against Turbiak and Respondek (counts 65 through 68); and intentional
infliction of emotional distress under state law against all remaining
defendants except LPS (counts 69 through 84). (Dkt. 1, Dkt. 263.)
Hall Report
As an initial matter, plaintiffs rely heavily on a report prepared by
Sharon Hall, their proposed expert. Hall based her report entirely on an
investigatory report by LPS, entitled “the Schultz Report,” which this
Court found inadmissible as hearsay. (Dkt. 277 at 29:3-4.) Hall never
10
personally spoke with students or their parents. She also did not
individually assess plaintiffs before reaching her findings that the
students were denied an educational benefit. (Dkt. 244-41 at 3; Dkt. 25232 at 35-36.) Hall did not examine Turbiak’s conduct toward each
plaintiff. (Dkt. 252-32 at 14-30.) And she did not attempt to determine
the effect Turbiak’s conduct actually had on plaintiffs; she hypothesized
about what effect her conduct would have on students in general. (Id. at
30-31.) It is particularly problematic that Hall never identified individual
students in her analysis, either by name or by incident—she only lists
students and events in general tables. (Dkt. 252-32.)
Halls’ report does not support plaintiffs’ claims because it is broad,
conclusory, and speculative. Halls’ report only draws sweeping, global
conclusions about Turbiak’s “behavior” and the “climate” in her
classroom. (Dkt. 252-31 at 13.) The ADA, the RA, and § 1983 claims all
require an individualized inquiry, see infra Section III.C, III.D. The
report is conclusory, in a general analytical sense, and because it reaches
legal conclusions. In one section, Hall concludes, “[i]t is unreasonable to
believe that students were receiving” an educational benefit, yet she
never considered plaintiffs’ individual education plans in her analysis.
11
(Dkt. 252-32 at 46-47.) Finally, the report is speculative. For example, in
her discussion of whether the students were affected by Turbiak’s
behavior, Hall only says “a child . . . may” or “the children may”—there
is no actual finding for any student. (Id. at 30.)
II.
Legal Standard
Defendants filed their motion as one to dismiss and, in the
alternative, for summary judgment. Because defendants attached
multiple exhibits that the Court has considered, the motion will be
treated as a motion for summary judgment. Fed. R. Civ. P. 12(d).
Summary judgment is proper when “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court may not
grant summary judgment if “the evidence is such that a reasonable juror
could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Courts “view[ ] the evidence, all
facts, and any inferences that may be drawn from the facts in the light
most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt.
Hawley Ins. Co., 95 F. App’x 132, 135 (6th Cir. 2004) (citing Skousen v.
Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)).
12
A defendant “seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion,
and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Then, “the nonmoving
[plaintiff] must present sufficient evidence to create a genuine issue of
material fact.” Humenny v. Genex Corp., 390 F.3d 901, 904 (6th Cir.2004)
(citing Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir. 1990)). See
also Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited
materials.”).
III. Analysis
A. Abandoned Claims
Defendants assert that several claims have been abandoned. Of the
claims left after the Order to Dismiss Certain Claims (Dkt. 263),
defendants argue that plaintiffs failed to respond to the ADA and RA
claims against LPS; Fourth Amendment claims under § 1983; assault
and battery claims against Respondek; and intentional infliction of
emotional distress claims against all individual defendants. Plaintiffs
13
have abandoned some claims, and others were not raised in the
complaint.
Plaintiffs abandoned certain claims against Respondek. A plaintiff
abandons a claim “when a plaintiff fails to address it in response to a
motion for summary judgment.” Brown v. VHS of Mich., Inc., 545 F.
App’x 368, 372 (6th Cir. 2013) (citing cases). Here, plaintiffs failed to
respond to the assault and battery claims against Respondek. (Dkt. 252
at 160-62.) Plaintiffs also only discuss Respondek’s liability under the
Fourteenth Amendment with all other individual defendants, never as
an abuser or discriminator herself. (Id. at 102-117.) Therefore, those
claims are abandoned.
However, plaintiffs did not abandon their ADA, RA, and IIED
claims. Plaintiffs mention the ADA and RA in the header of their
response, though they only discuss the ADA in their analysis. (Id. at 7285.) This is sufficient because the analyses are the same for both claims.
See S.S. v. E. Ky. Univ., 532 F.3d 445, 453 (6th Cir. 2008). Plaintiffs also
responded to the IIED claims, albeit briefly. (Dkt. 252 at 163.)
14
Finally, Plaintiffs failed to plead a Fourth Amendment claim in the
first place and did not seek to amend their pleadings, so it cannot be
raised or furthered at this stage of the litigation.
B. Estoppel Claims
Both parties raise estoppel arguments that fail. Plaintiffs argue the
arbitration proceedings with Crews, DeBeaudry, and Sloboda judicially
and collaterally estop each of these defendants from denying that
Turbiak abused children. Defendants argue that the Gohl opinions
collaterally estop plaintiffs from relitigating these issues of fact: “whether
LPS administrators responded to concerns about Turbiak in October
2011 and the adequacy of the . . . response” (Dkt. 244 at 39-40); “no
incidents were reported between November 2011 and March 2012” (Dkt.
244 at 45-46); “Hall’s report fails to provide evidence of a denial of
educational benefits” (Dkt. 244 at 51); and the record “does not support a
finding that LPS acted, or failed to act, based on the minor plaintiffs’
disabilities.” (Dkt. 244 at 53.) Estoppel does not apply to this case.
Defendants are not judicially estopped by the arbitration in this
case. Judicial estoppel prevents “a party from (1) asserting a position that
is contrary to one that the party has asserted under oath in a prior
15
proceeding, where (2) the prior court adopted the contrary position ‘either
as a preliminary matter or as part of a final disposition.’” Browning v.
Levy, 283 F.3d 761, 775 (6th Cir. 2002) (quoting Teledyne Indus., Inc. v.
NLRB, 911 F.2d 1214, 1218 (6th Cir. 1990)). At a minimum, “a party’s
later position must be ‘clearly inconsistent’ with its earlier position.” New
Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting cases). Plaintiffs
do not cite, and no portion of the arbitration record provided sets forth,
any evidence that the arbitration specifically addressed whether Turbiak
abused these minor children. Further, LPS’s position in the arbitration
is consistent with its position now: abuse was suspected, not that it
actually occurred. (Dkt. 256 at 27; Dkt. 252-31.) LPS has not contradicted
that position in this case. Therefore, LPS is not judicially estopped from
pursuing any position it has taken.
Defendants are also not collaterally estopped in this case by the
arbitration. Federal courts generally accord preclusive effect to issues
decided by state courts or arbitration panels. Allen v. McCurry, 449 U.S.
90, 95 (1980); 28 U.S.C. § 1738. In Michigan, collateral estoppel requires:
(1) a question of fact essential to the judgment must have been
actually litigated and determined by a valid and final
judgment; (2) the same parties must have had a full [and fair]
opportunity to litigate the issue; and (3) there must be
16
mutuality of estoppel. Mutuality of estoppel requires that in
order for a party to estop an adversary from relitigating an
issue that party must have been a party, or in privy to a party,
in the previous action. In other words, the estoppel is mutual
if the one taking advantage of the earlier adjudication would
have been bound by it, had it gone against him.
Monat v. State Farm Ins. Co., 469 Mich. 679, 683-85 (2004) (internal
citations and quotations omitted). No plaintiffs were party to or in privy
with any of the parties to the arbitration nor do plaintiffs show how they
could be. (Dkt. 252 at 66-67.) Accordingly, plaintiffs do not satisfy the
mutuality requirement, and the arbitration does not collaterally estop
any position of LPS, Crews, DeBeaudry, or Slobodan.
The factual findings in the Sixth Circuit Gohl opinion also do not
collaterally estop plaintiffs in this case. When a federal court must
determine the preclusive effect of a prior federal judgment, it applies
federal law. Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S.
313, 324 n.12 (1971); Wolfe v. Perry, 412 F.3d 707, 716 (6th Cir. 2005). In
the Sixth Circuit, collateral estoppel requires:
(1) the precise issue raised in the present case must have been
raised and actually litigated in the prior proceeding; (2)
determination of the issue must have been necessary to the
outcome of the prior proceeding; (3) the prior proceeding must
have resulted in a final judgment on the merits; and (4) the
17
party against whom estoppel is sought must have had a full
and fair opportunity to litigate the issue in the prior
proceeding.
NAACP, Detroit Branch v. Detroit Police Officers Ass’n, 821 F.2d
328, 330 (6th Cir. 1987).
Defendants do not claim that plaintiffs have had a full and fair
opportunity to litigate the facts defendants point to, most likely because
plaintiffs have not. This is the first time M.D, K.H., and C.W. have
pressed their unique claims against defendants. Gohl only determined
whether defendants’ conduct toward plaintiff J.G. amounted to a
violation of his rights under the Constitution, federal statutory law, or
state law.
Instead, defendants incorrectly focus on the privity requirements of
Michigan law, but even then they do not show that these plaintiffs were
in privity with the Gohl plaintiff. The only authorities defendants cite are
inapplicable here because they address whether plaintiffs can have their
interests represented by classes of plaintiffs by sharing the same
“community of interests,” see Detroit Police Officers Ass’n v. Young, 824
F.2d 512, 516 (6th Cir. 1987); Guyton v. Detroit Public Schools, No. 0810104, 2008 WL 2064562 at *4-5 (E.D. Mich. May 14, 2008); or whether
18
a principal-agent relationship establishes privity. ABS Industries, Inc. ex
rel. ABS Litigation Trust v. Fifth Third Bank, 333 F. App’x 994, 999 (6th
Cir. 2009). But this case does not present a question of whether plaintiffs
can be said to have had their interests represented in a prior class action
because there was only a single minor plaintiff in Gohl. There is also no
principal-agent relationship at stake here. Thus, plaintiffs are not
collaterally estopped from litigating their claims in this case.
C. Constitutional Claims
Plaintiffs allege under 42 U.S.C. § 1983 that defendants violated
their rights under the Fourteenth Amendment, specifically that
defendants violated their right to personal security and bodily integrity
in violation of the Due Process Clause and discriminated against them
based on their disabilities in violation of the Equal Protection Clause. To
succeed under § 1983, plaintiffs must show a “violation of a right secured
by the Constitution and laws of the United States, and must show that
the alleged violation was committed by a person acting under color of
state law.” Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001)
(quoting West v. Atkins, 487 U.S. 42, 48 (1988)). Defendants are entitled
to summary judgment because plaintiffs have not pointed to evidence
19
from which a reasonable juror could find that a constitutional injury
occurred under either the Due Process or Equal Protection Clause.
1. Fourteenth Amendment: Substantive Due Process
The Due Process Clause of the Fourteenth Amendment protects
individuals from state actions that deprive the individual “of life, liberty,
or property, without due process of law.” U.S. Const. amend. XIV. “It is
well established that persons have a fourteenth amendment liberty
interest in freedom from bodily injury.” Doe v. Claiborne Cty., 103 F.3d
495, 508 (6th Cir. 1996) (quoting Webb v. McCullough, 828 F.2d 1151,
1158 (6th Cir. 19877)). Substantive due process “protects individuals
from the arbitrary actions of government employees, but ‘only the most
egregious official conduct can be said to be arbitrary in the constitutional
sense.’” Gohl, 836 F.3d at 678 (quoting Cty. of Sacramento v. Lewis, 523
U.S. 833, 846 (1998)). The question is always whether the executive
official’s conduct “shocks the conscience.” See, e.g., Webb, 828 F.2d
at 1158.
Plaintiffs appear to present three theories of constitutional injury
under the Fourteenth Amendment. First, that defendants demonstrated
“deliberate indifference to the health and safety of Plaintiffs,” violating
20
plaintiffs’ substantive due process rights to bodily integrity”—Turbiak
through the alleged “physical and emotional abuse” of students and all
other defendants through their inaction, despite knowledge of Turbiak’s
conduct. (Dkt. 252 at 91-93.) Second, that individual defendants other
than Turbiak contributed to a “state-created danger.” (Dkt. 252 at 94.)
And third, that under the malicious and sadistic standard, all individual
defendants violated plaintiffs’ bodily integrity. (Dkt. 252 at 102-17.)
i. Deliberate Indifference to Health and Safety, and
State-Created Danger
First, plaintiffs’ theory that defendants’ conduct gives rise to a
constitutional violation under the deliberate indifference standard fails
because plaintiffs offer no authority that permits this Court to apply that
standard in this case.1 “Deliberate indifference” is easier to show than
“malicious indifference” when evaluating whether conduct shocks the
conscience. See Cty. of Sacramento v. Lewis, 523 U.S. 833, 851 (1998)
(describing the conduct that shocks the conscience under deliberate
indifference as “less egregious”). However, plaintiffs only point to cases
Plaintiffs did not plead this claim against Respondek, and they have not sought to
amend their pleadings.
1
21
dealing with basic medical needs of prisoners, Lewis, 523 U.S. at 850
(citing Barrie v. Grand Cty., 119 F.3d 862, 867 (10th Cir.1997); Weyant v.
Okst, 101 F.3d 845, 856 (2d Cir. 1996)); police standoffs, Ewolski v. City
of Brunswick, 287 F.3d 492, 511 (6th Cir. 2002); or other police custodial
situations, Bukowski v. City of Akron, 326 F.3d 702, 710 (6th Cir. 2003).
The only case in the Sixth Circuit this Court could find applying
deliberate indifference in a school environment was McQueen v. Beecher
Community Schools, which is qualitatively different from this case. 433
F.3d 460, 462, 469-70 (6th Cir. 2006) (holding a teacher was not
deliberately indifferent when she left students unattended in classroom
with another student who pulled out a gun and shot a student).
Furthermore, recent Sixth Circuit case law applies a three factor
test to determine if the deliberate indifference standard is appropriate.2
Eg. Range v. Douglas, 763 F.3d 573, 590 (6th Cir. 2014) (applying Hunt
v. Sycamore Community Sch. Dist. Bd. of Educ., 542 F.3d 529, 535 (6th
Deliberate indifference is also an element of municipal liability theories, specifically
as “a dereliction as reflective of municipal policy” and failure to train an employee
Lewis, 523 U.S. at 850 n.10 (citing Canton v. Harris, 489 U.S. 378, 388-89 (1989)).
See also Ellis ex rel. Pendergrass v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th
Cir. 2006) (failure to train or supervise); Claiborne Cty., 103 F.3d at 508 (“inaction”
theory municipal liability). As stated above, plaintiffs did not plead a failure to train.
Thus, that argument cannot be furthered.
2
22
Cir. 2008)); Hunt, 542 F.3d at 535 (examining “(1) the voluntariness of
the relationship between the government and the plaintiffs . . . ; (2)
whether the executive actor was required to act in haste or had time for
deliberation; and (3) whether the government actor was pursuing a
legitimate governmental purpose”). Plaintiffs have not addressed this
three factor test in their argument that deliberate indifference is the
appropriate standard.
Second, plaintiffs’ state-created danger theory fails as a matter of
law. In the Sixth Circuit, the state-created danger test applies when the
actions of private third parties harm the plaintiffs. Kallstrom v. City of
Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998); In re Flint Water Cases,
No. 16-cv-10444, 2018 WL 3648044, at *12 (E.D. Mich. Aug. 1, 2018)
(citing Kallstrom, 136 F.3d at 1066). All of the cases plaintiffs point to
deal with injuries caused by private third parties, usually students,
including the case plaintiffs cite to establish the requirements of the
state-created danger theory. See, e.g., Stiles ex rel. D.S. v. Grainger Cty.,
819 F.3d 834, 853 (6th Cir. 2016) (identifying student-on-student
harassment as the risk to plaintiffs from defendants’ conduct); C.R. v.
Novi Cmty. Sch. Dist., No. 14-14531, 2017 WL 528264, at *12 (E.D. Mich.
23
Feb. 9, 2017) (same). Plaintiffs admit that there is no factual dispute
whether defendants were acting under color of state law (Dkt. 252 at 86
n.13), so defendants cannot be the private third parties who caused the
alleged harm. Therefore, defendants are entitled to summary judgment
on this claim as a matter of law.
ii. Malicious and Sadistic Standard
Under the malicious and sadistic standard, plaintiffs allege that
defendants violated plaintiffs’ substantive due process rights to be free
from physical abuse from state actors and to enjoy personal security and
bodily integrity in an educational setting. Plaintiffs argue that Turbiak
violated this right and that all other defendants are liable for failure to
intervene and stop Turbiak’s conduct. (Dkt. 252 at 109, 132.) Plaintiffs
appear to be suing all individual defendants in their personal capacities
and LPS as a municipality.
Where plaintiffs allege their rights to personal security and bodily
integrity were violated in a school setting, the Court must determine
whether there is a pedagogical justification for the force. See Domingo v.
Kowalski, 810 F.3d 403, 410-11 (6th Cir. 2016). If there is a pedagogical
justification, a four factor test from Gottlieb v. Laurel Highlands School
24
District applies. Id. at 411 (quoting Gottlieb, 272 F.3d 168, 173 (3d Cir.
2001)). When there is not a pedagogical purpose, courts only make a
general inquiry whether the conduct was malicious and sadistic such that
it shocks the conscience. Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716,
725 (6th Cir. 1996) (alteration in original) (quoting Webb, 828 F.2d
at 1158).
Each of these tests focuses on the force applied, see Domingo, 810
F.3d at 411; Lillard, 76 F.3d at 725, and so only Turbiak’s conduct must
be analyzed—she is the sole defendant who applied force to plaintiffs.
Therefore, absent a theory of supervisory or municipal liability, plaintiffs’
claims based on the malicious and sadistic standard must be dismissed
as to every individual defendant other than Turbiak because none of
them are accused of applying force to any plaintiff.
There are four instances of force by Turbiak against K.H. and M.D.:
1) pulling the chair out from under K.H., 2) moving a chair out from under
M.D., 3) preventing K.H. from covering her ears and laughing at her
when she became upset that Turbiak had yelled in her face, and 4)
putting a modified potato chip can on K.H.’s arms to prevent K.H. from
covering her ears or face. It is clear from the record that Turbiak engaged
25
in conduct that was inappropriate and that she was emotionally and
professionally ill-equipped to deal with her students with significant
disabilities. But as set forth below, these four events do not rise to the
level of a violation of plaintiffs’ substantive due process rights. The first,
third, and fourth instances related to K.H. are evaluated together under
Gottlieb because defendants offer a pedagogical purpose, and the
allegations related to the M.D. are evaluated under Lillard because they
lacked a pedagogical purpose.
a. Incidents with a Pedagogical Purpose
The Sixth Circuit has adopted the following test to determine whether
force shocks the conscience when applied for a pedagogical purpose:
a) Was there was a pedagogical justification for the use of
the force?; b) Was the force utilized excessive to meet the
legitimate objective in this situation?; c) Was the force
applied in a good-faith effort to maintain or restore
discipline or maliciously and sadistically for the very
purpose of causing harm?; and d) Was there was a
serious injury?
Domingo, 810 F.3d at 411 (quoting Gottlieb, 272 F.3d at 173). Turbiak
offered a pedagogical justification for the force Turbiak used involving
K.H., and so the Gottlieb four factor test as laid out in Domingo applies.
26
Furthermore, each of the four factors indicate that there was no
substantive due process violation.
“[T]he pedagogical purpose factor of the Gottlieb test first looks to
the ends motivating the teacher’s actions and not the means undertaken
to achieve those ends.” Id. at 412. “Abuse alone . . . is not the standard at
issue on [these kinds] of due process claims.” Id. at 411. In Domingo,
strapping a student with disabilities to a toilet and squeezing children’s
faces were “questionable” “educational and disciplinary techniques,” but
did not lack a legitimate pedagogical purpose because the techniques
were more closely related to the pedagogical purposes of toilet-training
and attention-focusing techniques than to abuse. Id. at 412-13.
Though Turbiak’s techniques were certainly questionable, her
purposes were more pedagogical than abusive. Defendants offer the
following pedagogical purposes: Turbiak moved the chair to help K.H.
learn how to transition to a chair when she stood facing the chair with
her hands on the chair arms and her knees locked. (E.g. Dkt. 244-8 at
17.) Second, Turbiak prevented K.H. from covering her ears so that she
could demonstrate K.H.’s “sensitivity to sound” to other staff (Dkt. 24413 at 143-44; Dkt. 244-14 at 192-93) and to ensure K.H. could participate
27
in classroom activities, rather than covering her ears and face.3 (Dkt. 24442 at 2.) And third, Turbiak used the potato chip can restraint to help
K.H. perform functional activities (Dkt. 244-14 at 18) by preventing K.H.
from shutting down by covering her ears. (Dkt. 244-8.) These purposes
are similar to those in Domingo, and are therefore more pedagogical than
abusive, even if the techniques used to achieve them are problematic.
Plaintiffs argue that these pedagogical reasons are unacceptable,
but they do not cite any material showing that these proffered purposes
are illegitimate. Plaintiffs cite to Hall’s report, which broadly states that
Turbiak was abusive and her behavior could not be categorized as
pedagogical. (Dkt. 252 at 110-11.) However, plaintiffs ignore the issue
highlighted in Domingo—that the teacher’s motivations are the issue, not
whether the conduct was abusive. Here, neither Hall’s report nor
plaintiffs’ flat assertions of abuse go to Turbiak’s motivations. Other than
asserting that Turbiak engaged in a pattern of abusive conduct (Dkt. 276
at 4), plaintiffs offer no evidence negating the validity of Turbiak’s
purported
pedagogical
intent.
Furthermore,
Hall
makes
broad
Plaintiffs only allege that Turbiak prevented K.H. from covering her ears (Dkt. 252
at 109), though their memorandum of law states Respondek did as well. (Dkt. 252 at
43-44).
3
28
conclusions and nothing in the report indicates that she analyzed this
specific instance of conduct—moving K.H.’s chair—to reach her
conclusions. (Id.) Plaintiffs also assert that defendants did not provide a
pedagogical purpose until litigation had begun (Dkt. 276 at 5), but they
provide no authority for why the timing of the offered purpose negates
the pedagogical purpose.
Plaintiffs also rely on Alexander v. Lawrence County Board of
Developmental Disabilities, No. 1:10-cv-697, 2012 WL 831769 (S.D. Ohio
March 12, 2012), to show that physical restraints on students with
disabilities have no pedagogical purpose, but plaintiffs overstate
Alexander’s holding. There, a student with special needs was subject to
“prone restraints,” meaning teachers held the student in a face-down
position, and in one instance the plaintiff was held face-down by five
adults sitting on him. Alexander, 2012 WL 831769, at *2 & n.3. These
techniques were not only improper, but clearly dangerous and possibly
life-threatening. See id. at *5 & n.7 (citing Lanman v. Hinson, 529 F.3d
673, 687 (6th Cir. 2008)). Nothing in the record suggests that the potato
chip can restraint used on K.H. was as dangerous and inappropriate as
prone restraints. In fact, defendants provide a professional newsletter
29
that recommended the restraint. (Dkt. 244-11 at 145-46.) Furthermore,
Alexander was a case where no pedagogical purpose for the force used
was offered, see 2012 WL 831769, at *5, and in this case a pedagogical
purpose was offered.
Second, plaintiffs fail to make an affirmative showing that when
Turbiak moved K.H.’s chair, prevented K.H. from covering her ears, or
used the potato chip can restraint on K.H., her conduct was excessive or
extreme in light of the stated pedagogical goals. Plaintiffs lump all of
these instances of Turbiak’s conduct together and argue that the
“catalogue of cruelty by Turbiak” shows her behavior was extreme. (Dkt.
252 at 109.) However, plaintiffs cite no authority supporting their claim
that witnessing a pattern of abuse of other students could constitute a
violation of the Due Process Clause. (See Dkt. 252 at 87; Dkt. 276 at 4.)
In the Sixth Circuit, the rule is the opposite: “to establish liability [under
§ 1983] and overcome a qualified immunity defense, an individual must
show that his or her own rights were violated, and that the violation was
committed personally by the defendant.” Robertson v. Lucas, 753 F.3d
606, 615 (6th Cir. 2014) (emphasis omitted). See also Webb v. United
States, 789 F.3d 647, 664 (6th Cir. 2015) (“While [defendants] may have
30
violated the clearly established constitutional rights of some . . . [plaintiff]
does not show they violated his clearly established rights.”) (emphasis in
original)).4
Furthermore, the Gottlieb test also asks “[w]as the force utilized
excessive to meet the legitimate objective in this situation?” Domingo,
810 F.3d at 411 (emphasis added) (quoting Gottlieb, 272 F.3d at 173).
Plaintiffs present no authority, and this Court is not aware of any, that
permits them to aggregate the behavior of Turbiak in applying the
Gottlieb test, particularly as to the “excessiveness” factor.
Even looking at the incidents separately under prevailing law in
this Circuit, plaintiffs have not shown that there was excessive force.
Squeezing students’ faces and pushing students’ heads down was not
“clearly disproportionate to the need presented” because it was “minimal,
and therefore not excessive.” 810 F.3d at 414. Force that leaves bruises
and swelling on a student was not excessive in that instance. Saylor v.
Bd. of Educ. of Harlan Cty., 118 F.3d 507, 511 (6th Cir. 1997). “Even in a
The only way plaintiffs can show there is a pattern of conduct amounting to a
constitutional violation due to a municipal officer’s deliberate indifference would be
a Monell claim under a “failure-to-train” theory. See, e.g., Connick v. Thompson, 563
U.S. 51, 62 (2011). Plaintiffs did not plead this, nor have they sought to amend their
pleadings. Therefore, it is not considered on this motion.
4
31
case where a teacher slapped a student with no pedagogical purpose
whatsoever, [the Sixth Circuit] held that the single slap was not
unconstitutionally excessive, because it ‘was neither severe in force nor
administered repeatedly’.” Domingo, 810 F.3d at 414 (quoting Lillard, 76
F.3d at 726). Cf. Gohl, 836 F.3d at 679 (finding there was a question
whether the force Turbiak utilized was excessive when she grabbed a
child’s head and pulled it back, but still granting defendants’ motion for
summary judgment).
There is no evidence in the record suggesting that Turbiak used
excessive force in either of these instances. Regarding the chair incident,
Turbiak stated that she moved the chair out of the way so K.H. would
have room to work on learning to transition to the floor. (Dkt. 244-8 at
17.) Crews, an occupational therapist, testified that she told Turbiak to
help K.H. get into a position so that K.H. could sit down, which she could
not do on her own since her knees were locked. (Dkt. 244-14 at 4.)
Likewise, Sprow testified that Turbiak “wiggled” the chair but “[i]t wasn’t
in a forceful way.” (Dkt. 244-15 at 13.) And when Turbiak prevented K.H.
from covering her ears, Turbiak always stopped pushing on K.H.’s arms
if she resisted. (Dkt. 244-14 at 17-18.) There is likewise no indication that
32
Turbiak inappropriately used the potato chip can restraint. Although
plaintiffs characterize the incidents as abusive, they fail to raise a
question of fact that would permit a reasonable juror to reach this
conclusion.
Viewing the record in the light most favorable to plaintiffs, they
have failed to raise a material question of fact regarding whether the
force used was excessive. Turbiak moved a chair to help K.H. transition
and ultimately let her fall several inches onto a padded floor, and she
pushed and pulled on K.H.’s arms and utilized a restraint to ensure K.H.
could participate in the classroom and receive appropriate therapies.
Though there are undoubtedly better ways to accomplish these goals,
these instances do not rise to the level of force that leaves bruises,
delivers a slap, or yanks a child’s head backwards.
Third, there is no material factual dispute whether Turbiak was
malicious when she moved K.H.’s chair. Plaintiffs appear to assert that
Turbiak was malicious by pointing to Hall’s report, which broadly
concluded Turbiak was abusive. (Dkt. 252 at 111.) As with the first factor,
the third factor goes to the intent of the educator. Domingo, 810 F.3d at
414. Again, Hall’s report is insufficient to raise a material question of fact
33
because it only makes general conclusions that Turbiak was abusive and
does not assess any single incident, including those where Turbiak moved
K.H.’s chair, prevented K.H. from covering her ears, and used the potato
chip can restraint on K.H. Although plaintiffs point to inappropriate
comments by Turbiak, such as saying she had a “sick sense of humor”
when M.D. fell (Dkt. 252 at 43), these comments were not made with
regard to K.H. and therefore do not address Turbiak’s intent during this
incident with K.H.
Fourth, it is undisputed that K.H. was uninjured. The record clearly
states K.H. was uninjured physically when Turbiak moved the chair.
(Dkt. 244-14 at 4; Dkt. 244-15 at 13.) In her timeline, Moore referenced a
discussion with a physical therapist where the physical therapist said it
would not be injurious to plaintiffs to fall on the preschool’s padded floor
on their diapered bottoms.5 (Dkt. 252-7 at 2 (“[L]etting them fall in the
[classroom] would be appropriate as the floor is deeply padded.”)
(emphasis added).) Furthermore, Sprow testified that K.H. “didn’t cry”
In their response, plaintiffs seem to suggest that the floor was unpadded, and thus
it was inappropriate for Turbiak to allow children to fall onto their diapered bottoms
in the MoCI classroom by selectively quoting from Moore’s Timeline. (Dkt. 252 at 29
n.3.) The record unequivocally states that the children in Turbiak’s classroom only
fell to padded floors.
5
34
and “didn’t seem phased by [the fall to the ground].” (Dkt. 244-14 at 4.)
Additionally, the record shows Turbiak always stopped when K.H.
resisted. (Dkt. 244-14 at 17-18.)
Plaintiffs also fail to show that K.H. actually suffered a
psychological injury. Plaintiffs generally point to Dr. Gerald Shiener’s
Report (Dkt. 252 at 114), but at no time did Shiener claim K.H., or any
particular plaintiff, was actually injured and experienced “lasting brain
changes” or inhibited “brain development” from witnessing the abuse of
other children.6 (See Dkt. 252-35 at 5, 12, 18.) See also Gohl, 134 F. Supp.
3d at 1097. Plaintiffs also point to Hall’s report, but Hall only speculates
about whether plaintiffs were affected by Turbiak’s behavior, and she
does not conclude they were injured by it. (Dkt. 252 at 162.)
Substantively, plaintiffs would need to provide evidence showing K.H.
actually suffered a psychological injury, such as by procuring an
individual evaluation by a child psychologist.
This Court initially excluded Shiener’s reports because they did not comply with
Fed. R. Civ. P. 26(a)(2)(B) (Dkt. 268 at 4-5), but they were later admitted upon
plaintiffs’ motion for reconsideration. (Dkt. 272; Dkt. 277 at 11-12.)
6
35
Plaintiffs have not presented sufficient evidence so that a
reasonable juror could find K.H.’s due process rights were violated by
defendants when Turbiak moved K.H.’s chair, prevented K.H. from
covering her ears, or placed a potato chip can restraint on K.H.’s arm.
b. Incidents without a Pedagogical Purpose
In the absence of a pedagogical purpose,
the . . . inquiry . . . must be whether the force applied caused
injury so severe, was so disproportionate to the need
presented, and was so inspired by malice or sadism rather
than a merely careless or unwise excess of zeal that it
amounted to a brutal and inhumane abuse of official power
literally shocking to the conscience.
Lillard, 76 F.3d at 725 (alteration in original) (quoting Webb, 828 F.2d at
1158). Generally, accidents may lead to a negligence claim, not a violation
of constitutional law. “[L]iability for negligently inflicted harm is
categorically beneath the threshold of constitutional due process . . . [i]t
is, on the contrary, behavior at the other end of the culpability spectrum
that would most probably support a substantive due process claim.”
Lewis, 523 U.S. at 849 (citations omitted); Claiborne Cty., 103 F.3d at 511
(“The Due Process Clause does not purport to supplant traditional tort
law . . . it remains clear that not every tort rises to the level of a
36
constitutional violation.” (quotations omitted)). Unlike the other three
instances of conduct, defendant does not offer a pedagogical purpose to
explain why Turbiak moved M.D.’s chair in a manner that caused the
child to fall. They argue it was an accident. Therefore, in order to set forth
a substantive due process claim, this incident must be analyzed under
the malicious and sadistic standard as laid out in Lillard.
Here, it is factually undisputed that Turbiak accidentally caused
M.D. to fall. Sokol testified that she thought Turbiak unintentionally
caused M.D. to fall because Turbiak was talking to classroom visitors
while moving the chair back. (Dkt. 244-10 at 22.) Turbiak explained that
she moved the chair back so M.D. would have space to write on the
whiteboard the chairs were circled around, but did not anticipate M.D.
would back up and sit down without looking behind her. (Dkt. 244-8 at
14.) Plaintiffs fail to rebut either characterization of events with any
evidence in the record. (See Dkt. 252 at 112.) The Court understands that
plaintiffs are at a disadvantage because the children were so young and
were cognitively impaired as well. But plaintiffs could have retained an
expert and provided a proper report to challenge these facts. Because
37
they did not, the plaintiffs did not raise a question of fact as to whether
Turbiak’s conduct was malicious and sadistic.
Plaintiffs counter that an inappropriate comment Turbiak made
regarding M.D., that she said she had a “sick sense of humor” when M.D.
fell (Dkt. 252 at 43), shows this was intentional conduct. However, this
comment does not help explain Turbiak’s conduct in question, moving the
chair. Instead, it explains her reaction to the fall. As difficult as it is to
comprehend Turbiak’s response, this comment does not show that
Turbiak intentionally moved the chair.
Even so, plaintiffs could not show Turbiak’s conduct was malicious
and sadistic such that it amounts to a brutal and inhumane abuse of
official power that is shocking to the conscience. A teacher slapping a
student did not shock the conscious in Lillard. 76 F.3d at 726. Nor did a
teacher grabbing a special education student by the arm and head and
shaking the student hard enough to cause bruising. Minnis ex rel. Doe v.
Sumner Cty. Bd. of Educ., 804 F. Supp. 2d 641, 652 (M.D. Tenn. 2011),
aff’d 501 F. App’x 537 (6th Cir. 2012); see also Gohl, 134 F. Supp. 3d at
1084 (cataloguing severe instances of force with students with disabilities
that did not shock the conscience). Moving a chair out from under a
38
student, even a student with disabilities, is not comparable to slapping
and shaking a student.
iii.Liability of Other Defendants
All other defendants are also entitled to summary judgment on all
substantive due process claims for three reasons. First, as set forth above,
plaintiffs have not alleged an individual theory of liability except
deliberate indifference, which plaintiffs fail to show applies in this case
as a matter of law. Second, plaintiffs allege no theory of liability that
would make nonsupervisory defendants Crews, DeBeaudry, Santer,
Sloboda, Sokol, and Sprow, liable for any of Turbiak’s alleged substantive
due process violations. Plaintiffs may have abandoned these claims
because plaintiffs only address the supervisory defendants in their
response (Dkt. 252 at 92-95) and supplemental memorandum. (Dkt. 276
at 3-8.) Finally, as addressed below, plaintiffs cannot show supervisory
or municipal liability attaches for Turbiak’s conduct.
As a matter of law, the individual supervisors and LPS cannot be
liable. Supervisors cannot be liable where there is no underlying
constitutional violation. Leary v. Caeschner, 349 F.3d 888, 903 (6th Cir.
2003) (“A supervisor must “encourage[ ] the specific incident of
39
misconduct or in some other way directly participated in, or at least
implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of the offending subordinate” (quotation marks
omitted) (quoting Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir 1984)));
Doe ex rel. Doe v. City of Roseville, 296 F.3d 431, 439 (6th Cir. 2002).
Municipalities also cannot be liable for employee conduct if there was no
underlying constitutional violation. Gohl, 836 F.3d at 685 (“No one is
liable for a constitutional violation that never occurred.”). Municipalities
are liable under § 1983 for employees’ constitutional violations “only
where the municipality’s policy or custom led to the violation.” Robertson,
753 F.3d at 622 (citing Monell v. Dept. of Soc. Servs. of N.Y., 436 U.S. 658,
694-95 (1978)). If no constitutional violation occurred, it is unnecessary
to look at a municipality’s policies or customs. See Gohl, 836 F.3d at 685
(citing Graves v. Mahoning Cty., 821 F.3d 772, 776 (6th Cir. 2016)).
Because no defendant violated K.H. or M.D.’s constitutional rights,
supervisory defendants Chomicz, DeMan, Donagrandi, Fenchel, Liepa,
and Moore, and the municipality, LPS, cannot be liable as a matter
of law.
2. Fourteenth Amendment: Equal Protection
40
The Equal Protection Clause of the Fourteenth Amendment
requires “States (and their subdivisions) to treat people alike.” Gohl, 836
F.3d at 684 (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
439 (1985); U.S. Const. amend. XIV, § 1). “The Equal Protection Clause
prevents states from making distinctions that (1) burden a fundamental
right; (2) target a suspect class; or (3) intentionally treat one individual
differently from others similarly situated without any rational basis.”
Johnson v. Bredesen, 624 F.3d 742, 746 (6th Cir. 2010) (citing Radvansky
v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005)). People with
disabilities are not a suspect class. See Tennessee v. Lane, 541 U.S. 509,
522 (2004). Rather, “classifications based on disability violate [the Equal
Protection Clause] if they lack a rational relationship to a legitimate
governmental purpose.” Id. (citing Bd. of Trs. Of Univ. of Ala. v. Garrett,
531 U.S. 356, 366 (2001)). The plaintiffs “possess[ ] the burden of
demonstrating that the defendants treated similarly situated individuals
in a disparate manner.” Buchanan v. City of Bolivar, 99 F.3d 1352, 1360
(6th Cir. 1996) (citing Gillard v. Norris, 857 F.2d 1095, 1101 (6th Cir.
1988)). Put another way, plaintiffs must show they were treated
“differently—because [they are] disabled—than similarly situated
41
students who were like [them] in all relevant respects.” S.S., 532 F.3d at
458. See also Gohl, 836 F.3d at 684.
Plaintiffs allege discrimination based on their disability, but have
not met their burden to affirmatively show they were treated differently
by defendants from nondisabled students. It is undisputed that Turbiak
had no contact with nondisabled students. (Dkt. 252 at 119-20.) Plaintiffs
argue that because there is no evidence of abuse by Turbiak against
nondisabled students, it shows Turbiak targeted students with
disabilities. (Id.) But this essentially alleges Turbiak discriminated by
way of occupying her post as the MoCI pre-school teacher. This is
insufficient. Plaintiffs must show that Turbiak treated nondisabled
students differently from students with disabilities. Gohl, 836 F.3d
at 684.
Plaintiffs alternatively argue that Turbiak treated the lowerfunctioning students differently than the higher-functioning students in
her classroom (e.g., Dkt. 252 at 49, 150), but ultimately do not make an
adequate showing to raise a material question of fact regarding this
assertion. The record is devoid of any evidence establishing that K.H. and
M.D. were lower-functioning students or that other higher-functioning
42
students were treated better. Viewing the evidence in the light most
favorable to plaintiffs, no reasonable juror could conclude that Turbiak
treated K.H. or M.D. differently than a nondisabled or higher-functioning
student. This is a claim that ultimately does not fit the alleged harm
Turbiak inflicted on K.H. and M.D.
All other defendants are also entitled to summary judgment
because plaintiffs cannot show a constitutional injury under the Equal
Protection Clause. Leary, 349 F.3d at 903; Robertson, 753 F.3d at 622.
Plaintiffs allege no theory of liability that would make nonsupervisory
defendants Crews, DeBeaudry, Santer, Sloboda, Sokol, and Sprow
individually liable for an Equal Protection violation by Turbiak.
Moreover, similar to their substantive due process claims, plaintiffs may
have abandoned equal protection claims against these defendants. (Dkt.
252 at 122.) Individual supervisors Chomicz, DeMan, Donagrandi,
Fenchel, Liepa, Moore, and LPS, a municipality, again cannot be liable
here because there is no underlying Equal Protection violation.
Plaintiffs argue that to establish supervisory liability, they do not
need to show an underlying constitutional violation because “supervisory
municipal employees may be held liable under the Fourteenth
43
Amendment for deliberate indifference to the discriminatory conduct of
third parties” (Dkt. 252 at 122, 126), but this is a misstatement of law.
Plaintiffs attempt to advance an individual theory of liability by pointing
to Shively v. Green Local School District Board of Education, which sets
out a theory of individual liability based upon deliberate indifference in
the Equal Protection context. 579 F. App’x 348, 356-57 (6th Cir. 2014).
However, plaintiffs also fail to establish individual liability under
Shively for defendants who happen to be supervisors. To argue there is
an Equal Protection violation as a result of deliberate indifference in a
peer-harassment context, plaintiffs must show that defendants’ had a
discriminatory intent and that their conduct was “a ‘clearly unreasonable
response in light of the known circumstances.’” Id. at 357 (quoting Vance
v. Spencer Cty. Pub. Sch. Dist., 231 F.3d 253, 260 (6th Cir. 2000)).
Discriminatory intent can be established by showing there was a failure
to enforce a school policy that was normally enforced. Id. at 357
(“departures from established practices may evince discriminatory
intent” (quoting Nabonzy v. Podlesny, 92 F.3d 446, 455 (7th Cir. 1996)).
Plaintiffs offer no evidence that would permit a reasonable juror to
find defendants acted with discriminatory intent and deliberate
44
indifference by not removing Turbiak from the classroom. Regarding
intent, they do not make a showing that defendants departed from the
policy regarding “Suspected Student Abuse and Neglect.” Rather than
comparing the defendants’ response in this case to another situation at
LPS, such as known abuse against nondisabled students, or even to the
facts of Shively, plaintiffs simply assert that defendants “knew” Turbiak
was abusing students and failed to enforce the policy against Turbiak.
(Id. at 124.) Plaintiffs need to show that at the point in time when
defendants had notice of abuse, they failed to enforce the policy as they
did in other instances. Plaintiffs make no such showing.
Plaintiffs also do not make a showing that defendants’ response to
the situation was clearly unreasonable. Plaintiffs assert that defendants’’
“response to repeated complaints . . . was clearly unreasonable” and that
defendants did not take “any appropriate measures" when they did not
remove Turbiak from the classroom. (Dkt. 252 at 124-26.) However,
plaintiffs do not make a showing to support this assertion. None of the
staff complaining about Turbiak classified her behavior as “abusive”
when they reported Turbiak, and the defendants did take action. They
catalogued staff complaints, met with Turbiak to assess the situation in
45
the classroom, referred Turbiak to meet with more senior supervisors;
and sent Turbiak a warning letter for unprofessional behavior.
Furthermore, LPS later let Turbiak resign, fired Respondek, suspended
DeMan, and issued a litany of disciplinary letters. Plaintiffs fail to show
how these actions were clearly unreasonable given the circumstances.
D. Americans with Disabilities Act and Rehabilitation Act
Claims against LPS
The ADA and the RA prohibit discrimination against individuals
with disabilities. Title II of the ADA provides that “no qualified
individual with a disability shall, by reason of such a disability, be
excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subject to discrimination
by any such entity.” 42 U.S.C. § 12132. Section 504 of the RA provides
that a qualified individual with a disability shall not “solely by reason of
her or his disability, be excluded from the participation in, be denied in
the benefits of, or be subjected to discrimination any under program or
activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The
ADA and RA “allow[ ] disabled individuals to sue certain entities, like
school districts, that exclude them from participation in, deny them
benefits of, or discriminate against them in a program because of their
46
disability.” Gohl, 836 F.3d at 681 (citing Anderson v. City of Blue Ash,
798 F.3d 338, 357 (6th Cir. 2015)).
Claims brought under Title II of the ADA and § 504 of the RA are
typically analyzed together because they “require proof of substantially
similar elements.” Gohl, 134 F. Supp. 3d at 1074 (citing S.S., 532 F.3d at
452-53). Title II of the ADA requires a plaintiff to show that “(1)[plaintiff]
has a disability; (2) [plaintiff] is otherwise qualified; and (3) [plaintiff]
was being excluded from participation in, denied the benefits of, or
subjected to discrimination under the program because of his disability.”
Anderson, 798 F.3d at 357 (citing Tucker v. Tennessee, 539 F.3d 526, 532
(6th Cir. 2008)). Section 504 requires a plaintiff show:
(1) The plaintiff is a “handicapped person” under the Act; (2)
The plaintiff is “otherwise qualified” for participation in the
program; (3) The plaintiff is being excluded from participation
in, or being denied the benefits of, or being subjected to
discrimination under the program solely by reason of his
handicap; and (4) The relevant program or activity is
receiving Federal financial assistance.
G.C. v. Owensboro Pub. Sch., 711 F.3d 623, 635 (6th Cir. 2013) (citing
Campbell v. Bd. of Educ. of Centerline Sch. Dist., 58 F. App’x 162, 165
(6th Cir. 2003)).
47
As in Gohl, plaintiffs’ ADA and RA claims fail because they do not
provide sufficient evidence for a reasonable juror to find they were denied
participation in or a benefit of their education program, and plaintiffs
have failed to show that any denial was caused by their disabilities.
1. Denial of Educational Benefit
Like the plaintiff in Gohl, plaintiffs here “[have] plenty of evidence
that Turbiak was a bad, perhaps even abusive, teacher when it came to
other students.” 836 F.3d at 681. However, plaintiffs have not pointed to
the record or produced any admissible evidence indicating that they were
denied any educational benefit.
Plaintiffs present only Hall’s expert report to show they were
denied an education benefit.7 As set forth above, Hall’s expert report is
broad, conclusory, and lacks any individualized findings regarding
plaintiffs’ educational plans or their educational progress (Dkt. 252-32),
which Hall acknowledged. (Dkt. 244-41 at 3-4.) It is not enough for the
purposes of avoiding summary judgment for plaintiffs to make
unsupported assertions. For example, plaintiffs state: “Dr. Hall does,
Plaintiffs submitted a second previously undisclosed report by Hall (Dkt. 252-33),
but the Court will not consider it because it granted defendants’ motion to strike the
report. (Dkt. 267.)
7
48
through a very comprehensive analysis of . . . Turbiak’s education
techniques and treatment of Plaintiffs, establish that Plaintiffs were
denied ‘a free, appropriate, public education as envisioned in the IDEA,
and Section 504 of the Rehabilitation Act[.]’” (Dkt. 252 at 76 (alterations
in original).) But plaintiffs provide no authority that permits them
merely
to
point
to
“a
teacher’s
abusive
classroom
conduct,”
unaccompanied by “a showing of actual education deprivation” to make
out a claim under the ADA and RA. Gohl, 134 F. Supp. 3d at 1079.
Plaintiffs argue that Hall’s conclusion that “[t]here is no reasonable
basis to believe that any of the students in Sharon Turbiak’s classroom .
. . were receiving a free, appropriate, public education (FAPE)” is
sufficient to raise a material question of fact as to this issue. (Dkt. 25232 at 5-6.) As in Gohl, pointing to Hall’s generalized conclusions and
calling her findings “uncontroverted” (e.g., Dkt. 252 at 78) is not an
affirmative showing that puts the denial of an educational benefit in
question or disputes the progress LPS shows plaintiffs made. See 836
F.3d at 681-82. There is no triable issue of fact because Hall’s report is
not an affirmative showing as it does not identify how K.H., M.D., and
C.W. were denied any benefit or program by LPS.
49
2. Causation
Even if plaintiffs could show that they were denied an educational
benefit, they cannot show that their disabilities were the cause of such a
denial. To establish a prima facie case, the ADA and RA “require the
challenged discrimination to occur because of disability, which is another
way of saying that the plaintiff must establish a but-for relationship
between the protested act and the individual’s disability.” Gohl, 836 F.3d
at 682 (citing Univ. of Tex. Sw. Med. Ctr. V. Nassar, ___U.S.___, 133 S.
Ct. 2517, 2527-28; Lewis v. Humboldt Acquisition Corp., 681 F.3d 312,
314-15 (6th Cir. 2012) (en banc)). Under the ADA, plaintiffs must
“present evidence that animus against the protected group was a
significant factor.” Anderson, 798 at 357 (citing Turner v. City of
Englewood, 195 F. App’x 346, 353 (6th Cir. 2006). The RA requires
plaintiffs to show animus was the sole cause of the denial of the benefit.
G.C., 711 F.3d at 635.
To show causation, plaintiffs may point to direct or indirect
evidence of animus. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 17778 (2009). Direct evidence does not require the fact-finder to make an
inference of discrimination. Martinez v. Cracker Barrel Old Country
50
Store, Inc., 703 F.3d 911, 916 (6th Cir. 2013). Indirect evidence requires
an inference to conclude there was discrimination, and then a plaintiff
may proceed under the McDonnell Douglas burden-shifting framework.
Gohl, 836 F.3d at 682 (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-04 (1973)). A showing of indirect evidence of causation under
the ADA and RA is usually accomplished by pointing to a comparator,
who is a “similarly situated non-protected student[ ]” who was “treated
more favorably.” Id. at 683 (citing Shah v. Gen. Elec. Co., 816 F.2d 264,
268 (6th Cir. 1987)). Here, plaintiffs fail to present direct or indirect
evidence of causation.
Plaintiffs generally point to LPS’s inaction, despite its alleged
knowledge of Turbiak’s behavior in the MoCI classroom, but this is
insufficient.8 (Dkt. 252 at 83-84.) This is not direct evidence—nothing in
the record points to LPS or its officials failing to act because of plaintiffs’
disabilities. This is also not indirect evidence. Plaintiffs ignore the
necessary burden-shifting framework to determine what evidence
permits an inference of discrimination—the existence of a comparator,
Any showing by plaintiffs to the Schultz reports will not be considered because the
reports were excluded as double hearsay. (Dkt. 277 at 29:3-4.)
8
51
whether a nondisabled or higher-functioning student. Plaintiffs do not
offer any evidence that a nondisabled student or a higher-functioning
student was treated any differently from plaintiffs. (See Dkt. 252 at 7885.) As in Gohl, the analysis stops here because even viewing the
evidence in the light most favorable to plaintiffs, they do not point to any
evidence to satisfy the first stage of the burden-shifting framework. Id.
at 683.
E. State Law Claims
A district court may exercise its discretion to dismiss remaining
state law claims when the federal claims are disposed of, as they are in
this case. Brown v. Cuyahoga Cty., 517 F. App’x 431, 436 (6th Cir.2013).
Plaintiffs’ Michigan state law claims, including failure to report child
abuse, assault, battery, and intentional infliction of emotional distress,
are dismissed without prejudice.
F. Punitive Damages
Defendants argue that plaintiffs never addressed their arguments
against punitive damages, but the question of punitive damages is now
moot because the federal claims are dismissed and this Court declines to
exercise supplemental jurisdiction over the remaining state law claims.
52
IV.
Conclusion
For the aforementioned reasons, defendants’ joint motion to dismiss
and in the alternative for summary judgment is granted, in part, and
denied, in part. It is hereby ordered that:
Defendants’ motion for summary judgment on plaintiffs’ § 1983 claims
(counts I to XVII of those remaining) is GRANTED.
Defendants’ motion for summary judgment on plaintiffs’ ADA and
RA claims against LPS (counts XXXIV and L) is GRANTED.
Defendants’ motion for summary judgment on plaintiffs’ claims
under Michigan law (counts LIV to LXXXIV of those remaining) is
DENIED, and these claims are DISMISSED without prejudice.
IT IS SO ORDERED.
Dated: October 12, 2018
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
53
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on October 12, 2018.
s/Shawna Burns
SHAWNA BURNS
Case Manager
54
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