D. v. Chilton County Board of Education et al
Court Docket Sheet

Middle District of Alabama

2:2009-cv-00691 (almd)

BRIEF/MEMORANDUM in Support {{27}} Motion for Summary Judgment filed by Chilton County Board of Education, Keith Moore, Benita Cahalane, Heather Alford.

Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 1 of 54 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION D.D., a minor child, by and through) his next friend, CATHY DAVIS,)) Plaintiff,)) CASE NO.: 2:09-cv-691-WHA-WC vs.)) CHILTON COUNTY BOARD OF) EDUCATION, KEITH MOORE,) individually; BENITA CAHALANE,) individually; HEATHER ALFORD,) individually,)) Defendants.) DEFENDANTS’ BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT COME NOW Defendants Chilton County Board of Education, Keith Moore, Benita Cahalane and Heather Alford and provide the following brief in support of their Motion for Summary Judgment. The defendants demonstrate by their Motion, this Brief, their Narrative Summary of Undisputed Facts and their Evidentiary Submission that they are entitled to Summary Judgment in their favor on all of the plaintiffs’ claims. INTRODUCTION This lawsuit arises out of a single occasion when the plaintiff mother saw her four year old son sitting in a toddler chair in the hallway outside of his preschool Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 2 of 54 classroom. The toddler chair is a short wooden chair, made by the Rifton Equipment Company (and thus, sometimes called a Rifton Chair). This particular chair was old and did not have the usual parts that a new one would have. It resembled a short "high" chair many parents use at home or at a restaurant. It was missing a tray, a calf-rest and foot-rest. The toddler chair did not have arm or foot restraints. The chair had a thin piece of Velcro around the middle, which could be used as a lap belt, much like a seat-belt. The Velcro belt could easily be removed by the students. The seat-belt was used for the students’ safety because some special education students lack the strength or motor skills to sit up straight. The seat-belt was also used when the chair was placed on a wheeled dolly for mobility. The plaintiff student had been disruptive from the time he arrived at school that day. D.D. had hit or kicked nine or ten students and three teachers. His teacher, Ms. Alford, knew that his mother would be checking him out of school for a doctor’s appointment at 1:40. The plaintiff student was still disrupting the class at nap-time, around 1:30. Instead of having him wait for his mother in the room while the other students in the class were trying to nap, Ms. Alford decided that she and D.D. would wait for D.D.’s mother in the hall. From Ms. Alford’s experience, she knew the plaintiff student often calmed down when he did not think that other students were looking at him. The plaintiff student chose to sit in the toddler chair on that occasion. 2 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 3 of 54 It was his "safe place" and a place of comfort for him. Because the chair was on wheels since it was on a low dolly, and thus mobile, Ms. Alford seat-belted in the student in the chair by attaching the two sides of Velcro around his stomach. This way he could not fall out when she wheeled him into the hallway. Ms. Alford and the plaintiff student sat in the hallway for less than five minutes before the plaintiff mother arrived. D.D. sat in the toddler chair for less than ten minutes total that afternoon. The plaintiff student did not sustain any physical injuries from sitting in the toddler chair on November 5, 2008. The plaintiff mother sued the Chilton County Board of Education, Superintendent Keith Moore, Special Education Director Benita Cahalane and Teacher Heather Alford on behalf of her son. The Complaint alleges the following: a deprivation of procedural and substantive due process rights under the Fourteenth Amendment, brought under 42 U.S.C. § 1983, against all defendants; a violation of the plaintiff student’s rights under the Individuals with Disabilities in Education Act (IDEA) against the Board; assault and battery against the teacher, Heather Alford; and outrage against the individual educators. As stated in the Motion for Summary Judgment and Argument section of this Brief, the defendants are entitled to summary judgment in their favor as to all claims against them. 3 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 4 of 54 STANDARD OF REVIEW Summary judgment serves as a gatekeeper to block needless complaints. Jerome A. Hoffman & William A Schroeder, Burdens of Proof, 38 Ala. L. Rev. 31, 37 (1986).1 "The mere existence of some alleged factual dispute between the parties will not defeat summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986). The moving party is entitled to summary judgment when the pleadings and evidence show that there is no genuine issue of any material fact and that the movant is entitled to judgment as a matter of law. F.R.C.P. 56(c). On issues where the movant bears the burden of proof at trial, it must support its motion for summary judgment with admissible evidence on all essential elements of its case such that no reasonable finder of fact could find in favor of the non-moving party. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). On issues where the non-moving party bears the burden of proof at trial, the moving party may simply point out to the court the insufficiency or absence of evidence by the non-moving party on that issue. Id. at 1115-16. 1 Hoffman cites Tripp v. Humana, Inc., 474 So. 2d 88, 90 (Ala. 1985) (the motion for summary judgment tests the sufficiency of the evidence to determine if any real issues exist that warrants a trial); and accords Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2555 (1986) (motions for summary judgment have replaced motions to dismiss or to strike as the principal tools by which factually insufficient claims or defenses can be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources). 4 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 5 of 54 Once the moving party satisfies this burden, the non-moving party bears the burden of coming forward with evidence sufficient to create a genuine issue of material fact at trial. Id. at 1116. If the issue is one where the movant has the burden of proof, the movant may still be entitled to summary judgment if, in light of all the evidence, no reasonable finder of fact could find in favor of the non-moving party. Id. If, however, the issue is one in which the non-movant bears the burden at trial, it must respond as follows: First, he or she may show that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion, which was "overlooked or ignored" by the moving party, who has thus failed to meet the initial burden of showing an absence of evidence. Celotex, 477 U.S. at 332, 106 S.Ct. at 2557 (Brennan, J., dissenting). Second, he or she may come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. See Melissa L. Nelkin, One Step Forward, Two Steps Back: Summary Judgment After Celotex, 40 Hastings L.J. 53, 82-83 (1988). Fitzpatrick, 2 F.3d at 1116-17. The non-moving party is required to present substantial evidence, that is: Evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions. Zaklama v. Mt. Sinai Medical Center, 842 F.2d 291, 295 (11th Cir. 1988) (citing Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969)); Reynolds v. CLP Corp., 812 F.2d 671, 674 (11th Cir. 1987); Michigan Abrasive Co. v. Poole, 805 F.2d 1001, 5 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 6 of 54 1004 (11th Cir. 1986)). In regard to the qualified immunity defense raised by the defendants, once the defendants have established that they were engaged in discretionary functions at the time of the alleged incidents, this Court must apply the two-part analysis set forth by the U.S. Supreme Court in Hope v. Pelzer, 536 U.S. 730 (2002). Under this analysis, "the threshold inquiry a court must undertake is whether [the] plaintiff’s allegations, if true, establish a Constitutional violation." Id. at 736. If a Constitutional right would have been violated under the plaintiffs’ version of the facts, the next step is to ask whether the right was clearly established at the time of the alleged violation. Id. at 739. The burden shifts to the plaintiffs to establish that the individuals’ actions rose to the level of a Constitutional violation. Further, the Alabama Supreme Court has added a burden-shifting component of summary judgment when an educator raises the State-agent immunity defense. The Alabama Supreme Court wrote in Feagins v. Waddy, 978 So. 2d 712 (Ala. 2007),: We have established a burden-shifting process when a party raises the defense of State-agent immunity. In order to claim State-agent immunity, the defendants bear the burden of demonstrating that the plaintiff’s claims arise from a function that would entitle them to immunity. If the defendants make such a showing, the burden then shifts to the plaintiff, who, in order to deny the defendants immunity from suit, must establish that the defendants acted willfully, maliciously, fraudulently, in bad faith, or beyond their authority. A State agent acts beyond authority and is therefore not immune when he or she fails to 6 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 7 of 54 discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist. Id. at 716 (quotations, internal citations, and brackets removed). Under this standard of review, when the moving party does not bear the burden of proof, it is not necessary for the moving party to "prove a negative" to prevail on a motion for summary judgment. Ex Parte General Motors Corp., 769 So. 2d 903, 909 (Ala. 1999). Simply demonstrating that the nonmovant does not have sufficient evidence to withstand a motion for directed verdict at trial will satisfy the movant’s burden of production. Id. Plaintiffs bear the burden of coming forward with substantial evidence, sufficient to withstand a motion for judgment as a matter of law at trial, that demonstrates that Defendants Chilton County Board of Education, Keith Moore, Benita Cahalane and Heather Alford violated the plaintiff student’s rights under the Fourteenth Amendment, the IDEA and state law in order to defeat this motion for summary judgment. As demonstrated by the Motion for Summary Judgment, this Brief, the Narrative Statement of Undisputed Facts and the supporting evidence, plaintiffs cannot meet their burden, and the defendant board and educators are entitled to judgment in their favor as a matter of law as to the plaintiffs’ claims against them. 7 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 8 of 54 NARRATIVE STATEMENT OF UNDISPUTED FACTS 1. Plaintiff student D.D. was a four year old student in Heather Alford’s preschool class at Clanton Elementary School in the fall of 2008. (Depo. of Davis, p. 12, l. 23-p. 13, l. 2; p. 69, l. 3-6; Aff. of Alford) 2. The Chilton County Board of Education’s preschool program, also called P.A.L.S., consisted of three classes at Clanton and Maplesville Elementary Schools in the fall of 2008. (Depo. of Alford, p. 36, l. 16-22) 3. P.A.L.S. stands for Preschoolers Acquiring Learning Strategies. (Depo. of Alford, p. 36, l. 5-8) 4. Keith Moore was superintendent of the Chilton County school system at all times relevant to the Complaint. (Depo. of Moore, p. 8, l. 13-p. 9, l. 9; Aff. of Moore) 5. Dr. Benita Cahalane was the director of special education at all relevant times. (Aff. of Cahalane) 6. Heather Alford was a "highly qualified" teacher in the preschool program at all relevant times, having earned that designation under the No Child Left Behind Act of 2001. (Aff. of Alford; Depo. of Cahalane, p. 28, l. 17-23) 7. D.D. was in Ms. Alford’s preschool class for part of the year during the 2007-08 school year. (Depo. of Davis, p. 69, l. 3-6; Aff. of Alford) 8 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 9 of 54 8. The P.A.L.S. preschool program included students who need special education services and those who do not. (Depo. of Alford, p. 35, l. 17-p. 36, l. 4; Aff. of Cahalane) 9. The P.A.L.S. program uses the We Can! Early Childhood Curriculum, which is research-based. (Aff. of Cahalane) 10. In the fall of 2008, D.D. was eligible for special education services based on his diagnoses of Pervasive Developmental Disorder-Not Otherwise Specified, Attention Deficit/Hyperactivity Disorder, Impulse/Control Disorder-Not Otherwise Specified, and Mood Disorder-Combined Type. (Aff. of Cahalane; Aff. of Alford) 11. D.D. had no physical handicaps. (Aff. of Alford) 12. D.D.’s Individualized Education Program (IEP) did not contain a behavior plan. (Aff. of Cahalane) 13. The preschool teachers used their discretion in how to manage the students’ disruptive behaviors in their classrooms. (Aff. of Cahalane; Aff. of Alford) 14. Preschoolers were not typically sent to the office when they acted out, like the older elementary school students were. (Depo. of Alford, p. 139, l. 13-p. 140, l. 6) 15. During the 2008-09 school year, Ms. Alford’s room had an older version 9 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 10 of 54 toddler chair made by Rifton Equipment, which was missing its foot-rest, calf-rest and tray. (Depo. of Alford, p. 81, l. 22-p. 82, l. 18; Aff. of Alford) 16. Ms. Alford used the toddler chair in her room for students who needed assistance with sitting and for therapeutic reasons. (Depo. of Alford, p. 53, l. 5-22; p. 135, l. 18-p. 136, l. 5) 17. The toddler chair was basically a regular wooden chair, appropriately sized for students in the preschool class. (Depo. of Alford, p. 40, l. 6-9; Aff. of Alford, attached pictures) 18. The toddler chair in Ms. Alford’s room only had a seat-belt made of Velcro, which could easily be fastened or unfastened by the students, including D.D. (Depo. of Alford, p. 81, l. 12-21; Aff. of Alford) 19. The toddler chair in Ms. Alford’s class did not have arm or foot restraints. (Depo. of Alford, p. 82, l. 15-18; Aff. of Alford) 20. The toddler chair could be placed on a low dolly for mobility. (Depo. of Alford, p. 100, l. 3-4; p. 127, l. 2-p. 128, l. 4) 21. For the safety of the students, Ms. Alford often seat-belted a student who sat in the toddler chair using the Velcro strap. (Depo. of Alford, p. 203, l. 10-23) 22. The use of a toddler chair with the plaintiff student was not addressed by the IEP Team or in the IEP. (Aff. of Cahalane) 10 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 11 of 54 23. The plaintiff mother was an active participant in the IEP meetings. (Depo. of Davis, p. 130, l. 22-p. 131, l. 3; Aff. of Cahalane) 24. The plaintiff mother never voiced her concerns regarding the plaintiff student’s sitting in the toddler chair with the IEP Team. (Aff. of Cahalane) 25. Around 8:00 a.m., on November 5, 2008, Ms. Alford went to the office to check her school mailbox, while her aide watched the class. (Depo. of Alford, p. 87, l. 5-10; p. 135, l. 18-p. 136, l. 5) 26. While in the office, the school nurse told Ms. Alford that the plaintiff mother had called to say that she would be checking out D.D. at 1:40 for a doctor’s appointment and he should not be placed on the bus. (Depo. of Alford, p. 87, l. 5-11; p. 136, l. 21-p. 137, l. 20) 27. Therefore, Ms. Alford knew, at the beginning of the school day, that the plaintiff mother would be present at the school around 1:40 that afternoon. (Depo. of Alford, p. 87, l. 5-22; Aff. of Alford) 28. Over the course of the day, D.D. exhibited multiple disruptive behaviors, including hitting and/or kicking 9 or 10 students and 3 teachers, throwing chairs, screaming, telling people to shut up, and calling people names. (Depo. of Heather Alford, p. 87, l. 23-p. 88, l. 11; p. 121, l. 15-20) 29. D.D. hit or kicked the students without provocation. (Depo. of Alford, p. 88, 11 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 12 of 54 l. 6) 30. Ms. Alford attempted to redirect D.D. each time he disrupted the class. (Depo. of Alford, p. 141, l. 6-13; p. 164, l. 9-21) 31. One way Ms. Alford knew to redirect D.D. was to use positive reinforcers, including allowing him to do jobs, allowing him to sit by her, letting him choose items from the magic basket or treasure chest, and giving him stickers or candy. (Depo. of Alford, p. 130, l. 21-p. 132, l. 16; Aff. of Alford) 32. D.D.’s disruptive behaviors made some of his classmates upset and nervous. (Depo. of Alford, p. 121, l. 18-20) 33. D.D.’s disruptive behaviors continued during nap-time, which starts around 1:30. (Depo. of Alford, p. 88, l. 14-16; p. 121, l. 11-20; Aff. of Alford) 34. The students are not taught during nap-time. (Depo. of Alford, p. 187, l. 21-p. 188, l. 1) 35. D.D.’s behaviors were causing the other students to look at him, which escalated his behaviors. (Depo. of Alford, p. 88, l. 14-22; p. 121, l. 9-22) 36. D.D. becomes more agitated when he knows people are looking at him. (Depo. of Alford, p. 88, l. 16-22) 37. Ms. Alford knew that D.D. responded well to having his own space. (Depo. of Alford, p. 88, l. 17; Aff. of Alford) 12 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 13 of 54 38. Part of Ms. Alford’s teaching technique with D.D. was to allow him choices. (Aff. of Alford) 39. Ms. Alford gave D.D. the option of reading quietly while the other students were napping, since he refused her earlier request that he nap along with his classmates. (Aff. of Alford) 40. D.D. refused the book Ms. Alford offered him and continued to be disruptive. (Aff. of Alford) 41. Ms. Alford then offered D.D. the option of sitting in a chair, including the toddler chair, so that he could have his own space and calm down. (Depo. of Alford, p. 106, l. 20-p. 107, l. 9; Aff. of Alford) 42. D.D. chose to sit in the toddler chair. (Aff. of Alford) 43. Ms. Alford allowed D.D. to sit in the toddler chair so that he would not continue to endanger the other students with his disruptive behavior. (Depo. of Alford, p. 186, l. 4-15) 44. On November 5, 2008, D.D. voluntarily sat in the toddler chair. (Depo. of Alford, p. 103, l. 14-p. 104, l. 9; p. 222, 1. 14-16) 45. Ms. Alford seat-belted D.D. in the chair for his safety, and pushed the chair, which was on the wheeled dolly, into the hallway, away from the other students. (Depo. of Alford, p. 99, l. 10-p. 100, l. 4; p. 222, l. 17-20) 13 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 14 of 54 46. She and D.D. sat in the hall together facing the wall prior to Ms. Davis’ arrival. (Depo. of Alford, p. 91, l. 2-15; p. 186, l. 23-p. 187, l. 9) 47. Ms. Alford positioned D.D. towards the wall because she knew he would become agitated if he thought people walking by were looking at him. (Depo. of Alford, p. 117, l. 1-8; p. 181, l. 11-23; p. 182, l. 7-p. 183, l. 2) 48. Within five minutes of Ms. Alford and D.D.’s sitting in the hall, the office called to say that the plaintiff mother was at the school to check out her son. (Depo. of Alford, p. 89, l. 1-10; p. 92, l. 3-12) 49. Ms. Alford requested that the plaintiff mother come to the room so that she could speak to her. (Depo. of Alford, p. 89, l. 7-16) 50. Ms. Alford then stepped right inside the classroom door to retrieve the plaintiff student’s book bag from the room. (Depo. of Alford, p. 92, l. 13-p. 93, l. 2) 51. It is only a two minute walk from the school office to Ms. Alford’s classroom. (Depo. of Davis, p. 97, l. 9-12) 52. The plaintiff mother saw the plaintiff student in the wooden chair in the hall while Ms. Alford had briefly stepped into the classroom. (Depo. of Davis, p. 98, l. 19-p. 99, l. 7; Depo. of Alford, p. 92, l. 13-20) 53. Ms. Alford came out of the classroom with D.D.’s book bag and told the mother that they had had a bad day. (Depo. of Davis, p. 100, l. 10-21; Depo. 14 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 15 of 54 of Alford, p. 81, l. 2-11) 54. Ms. Alford then placed D.D.’s shoes on his feet, which had been removed earlier so that his kicks would not hurt as badly as they had with his shoes on. (Depo. of Alford, p. 119, l. 14-22; Aff. of Alford) 55. Ms. Davis did not remove the Velcro seat-belt from around D.D.’s stomach when she saw him. (Depo. of Davis, p. 129, l. 23-p. 130, l. 4) 56. The plaintiff mother talked to Ms. Alford in the hallway for several minutes before leaving to take D.D. to his therapy appointment. (Depo. of Davis, p. 104, l. 2-8) 57. During that time, she did not say anything to Ms. Alford about D.D.’s sitting in the toddler chair. (Depo. of Davis, p. 104, l. 9-13) 58. In fact, the plaintiff mother never discussed any concerns about the plaintiff student’s sitting in the toddler chair with Ms. Alford, any administrator at Clanton Elementary School or Dr. Cahalane. (Depo. of Davis, p. 105, l. 22-p. 106, l. 17; p. 132, l. 15-p. 133, l. 7) 59. November 5, 2008 was the only time the plaintiff mother saw D.D. sitting in the toddler chair. (Depo. of Davis, p. 104, l. 14-17) 60. D.D. was seated in the toddler for less than ten minutes total that afternoon. (Aff. of Alford) 15 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 16 of 54 61. D.D. sat in the toddler chair in the hallway on one other occasion prior to November 5th. (Depo. of Alford, p. 128, l. 20-p. 129, l. 1) 62. The plaintiff student chose to sit in the toddler chair on other occasions while in the classroom. (Depo. of Alford, p. 129, l. 5-14) 63. Ms. Alford allowed D.D. to sit in the toddler chair as a place to calm down on other occasions. (Depo. of Alford, p. 101, l. 3-p. 104, l. 4) 64. The toddler chair was a "safe place" and a place of comfort for D.D. (Aff. of Alford) 65. The plaintiff mother never discussed D.D.’s sitting in the toddler chair with D.D. (Depo. of Davis, p. 132, l. 5-14) 66. The plaintiff mother called Mr. Moore several days after November 5, 2008 to say that she was upset about seeing her son in the toddler chair and wanted him removed from Clanton Elementary School. (Depo. of Moore, p. 13, l. 2-p. 14, l. 9; Depo. of Davis, p. 133, l. 6-p. 134, l. 13) 67. Mr. Moore told the mother that he would work on D.D.’s transfer and call her back. (Depo. of Moore, p. 14, l. 9-11; Depo. of Davis, p. 134, l. 14-16) 68. Mr. Moore and Dr. Cahalane then began the process to transfer D.D. to Maplesville Elementary School and have his special education services continued there. (Depo. of Moore, p. 14, l. 12-13; p. 15, l. 2-5) 16 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 17 of 54 69. Before the transfer was complete, the plaintiff mother called Mr. Moore again to request that D.D. not be transferred to another school, but just to another class at Clanton Elementary School. (Depo. of Moore, p. 19, l. 6-21; Depo. of Davis, p. 134, l. 19-p. 135, l. 13) 70. Mr. Moore agreed to move D.D. from Heather Alford’s room to the other preschool class at Clanton Elementary School. (Depo. of Davis, p. 135, l. 7-13) 71. The plaintiff mother understood that her son would still encounter Ms. Alford at school if he continued to attend Clanton Elementary, and she was okay with that. (Depo. of Davis, p. 135, l. 20-p. 136, l. 4) 72. D.D. continued to interact with Ms. Alford after he moved rooms, including hugging her and telling her he loved her, whenever he saw her at school. (Aff. of Alford) 73. The toddler chair was not used by Ms. Alford for behavioral control, behavioral modification, or punishment. (Depo. of Alford, p. 74, l. 7-16) 74. The plaintiff student knew how to release the Velcro sides from one another and take off the lap belt. (Depo. of Alford, p. 152, l. 20-23) 75. D.D. also had the physical ability and knowledge to be able to do so. (Aff. of Alford) 17 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 18 of 54 76. D.D. was never restrained or detained in the toddler chair. (Aff. of Alford) 77. D.D. was never physically injured by sitting in the toddler chair. (Aff. of Alford) 78. D.D. was never forced to sit in the toddler chair. (Aff. of Alford; Depo. of Alford, p. 59, l. 15-p. 60, l. 5; p. 152, l. 9-19) 79. Heather Alford never threatened D.D. and never had to be physical with him. (Depo. of Alford, p. 257, l. 5-14) 80. Heather Alford was not disciplined for allowing D.D. to sit in the toddler chair on November 5, 2008. (Depo. of Moore, p. 24, l. 14-17; Depo. of Alford, p. 214, l. 19-22) 81. Heather Alford abided by all policies, procedures and practices of the Chilton County Board of Education on the occasions made the basis of the complaint. (Depo. of Moore, p. 31, l. 11-20) 82. Keith Moore and Benita Cahalane acted according to the Chilton County Board of Education’s policies and procedures. (Aff. of Moore; Aff. of Cahalane) 83. The Chilton County Board of Education does not have a policy on the use of toddler chairs in the preschool classroom. (Depo. of Moore, p. 32, l. 23-p. 33, l. 4; Aff. of Moore) 18 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 19 of 54 84. Keith Moore, Benita Cahalane and Heather Alford met the standards of care of educators in Clanton, Chilton County, and Alabama at all times relevant to this litigation. (Aff. of Moore; Aff. of Cahalane; Aff. of Alford) 85. All of Superintendent Moore, Special Education Coordinator Cahalane and Teacher Alford’s actions were carried out in conformity with all applicable federal, Alabama, and local laws. (Aff. of Moore; Aff. of Cahalane; Aff. of Alford) 86. Plaintiffs have now moved to Indiana, and have no plans on returning to live in Chilton County, Alabama. (Depo. of Davis, p. 9, l. 20-p. 10, l. 2; p. 19, l. 17-p. 20, l. 1; p. 120, l. 2-7) ARGUMENT I. NEITHER OF THE PLAINTIFFS’ CLAIMS RISES TO THE LEVEL OF A CONSTITUTIONAL OR FEDERAL VIOLATION, AND THUS, THE DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT IN THEIR FAVOR AS TO THE 42 U.S.C. § 1983 CLAIMS AGAINST THEM. Even if all of the plaintiffs’ allegations are taken as true, neither of the plaintiffs’ claims in Count I or II rises to the level of a federal violation. "Plaintiffs cannot raise a state tort claim to the level of a federal disability claim merely because the plaintiff has a disability at the time the event occurred." Gaither v. Barron, 924 F. Supp. 134, 137 (M.D. Ala. 1996). Since there is no Constitutional violation, the 19 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 20 of 54 Board and individual educators are entitled to summary judgment in their favor on the § 1983 claims. A. Heather Alford’s Alleged Actions Did Not Constitute Excessive Force or Present a Risk of Serious Bodily Injury. The plaintiffs’ specific allegations are that the plaintiff student was restrained in a toddler chair by Ms. Alford in the hallway for several minutes on November 5, 2008 and on other unspecified occasions, in violation of his procedural and substantive due process rights of the Fourteenth Amendment. In essence, the plaintiffs are claiming physical abuse of the plaintiff student at the hands of his teacher. The Eleventh Circuit has determined that physical abuse by a government actor may rise to the level of a deprivation of a Constitutional right, but only when certain requirements are met. In Peterson v. Baker, the Eleventh Circuit held that: "A plaintiff must prove at a minimum that'(1) a school official intentionally used an amount of force that was obviously excessive under the circumstances, and (2) the force used presented a reasonably foreseeable risk of serious bodily injury.’" Peterson v. Baker, 504 F.3d 1331, 1337 (11th Cir. 2007) (quoting Neal v. Fulton Co. Bd. of Educ., 229 F.3d 1069, 1075 (11th Cir. 2000)) The Court in Peterson went on to state: In order to determine whether the amount of force used was obviously excessive, a court considers the totality of the circumstances, paying 20 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 21 of 54 particular attention to the following factors: (1) the need for the application of corporal punishment; (2) the relationship between the need and amount of punishment administered; and (3) the extent of the injury inflicted. Id. To succeed in establishing a § 1983 claim, the plaintiffs must demonstrate an injury which shocks the conscience of the Court. The same "shocks the conscience" standard applies whether the claim arises from corporal punishment or physical abuse. A.B. v. Seminole Co. Sch. Bd., 2005 WL 2105961 at *7 (M.D. Fla. Aug 25, 2005). The evidence here clearly shows that the incidents of D.D. sitting in the toddler chair with the seat-belt on did not result in an injury rising to the conscience-shocking level. In fact, D.D. did not sustain any physical injury from sitting in the toddler chair. (Aff. of Alford) Ms. Alford seat-belted D.D. into the chair for his safety, so that he would not fall out of the toddler chair. (Depo. of Alford, p. 203, l. 10-23; Aff. of Alford) The toddler chair in Ms. Alford’s room only had a seat-belt made of Velcro, which could easily be fastened or unfastened by the students, including D.D. (Depo. of Alford, p. 81, l. 12-21; Aff. of Alford) The chair in Ms. Alford’s classroom during the 2008-09 school year was not equipped with a calf-rest, foot-rest or tray. (Depo. of Alford, p. 81, l. 22-p. 82, l. 18; Aff. of Alford) The toddler chair in Ms. Alford’s room did not have arm or foot restraints. (Aff. of Alford) The toddler chair 21 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 22 of 54 was not used by Ms. Alford for behavioral control, behavioral modification, or punishment. (Depo. of Alford, p. 74, l. 7-16) Ms. Alford gave D.D. several choices on the afternoon of November 5th after he continued his disruptive behaviors during nap time. (Aff. of Alford) D.D. refused to lay quietly on his nap mat like his classmates or read the book Ms. Alford offered him. (Aff. of Alford) Ms. Alford then gave D.D. the option to sit in a chair as a place to calm down. (Depo. of Alford, p. 88, l. 17; p. 106, l. 20-p. 107, l. 9; Aff. of Alford) D.D. chose to sit in the toddler chair. (Aff. of Alford) Ms. Alford never forced D.D. to sit in the toddler chair. (Aff. of Alford; Depo. of Alford, p. 59, l. 15-p. 60, l. 5) Clearly, the seat-belt was needed for the safety of the plaintiff student while sitting in the chair. (Aff. of Alford) When examining the relationship between the need for the use of force (restraint) and the amount of force (restraint) administered, the same evidence shows that the seat-belting into the chair was necessary for the plaintiff student’s safety. The toddler chair could be placed on a low dolly for mobility. (Depo. of Alford, p. 100, l. 3-4; p. 127, l. 2-p. 128, l. 4) On November 5, 2008, Ms. Alford used the seat-belt on the chair for D.D.’s safety, and pushed the chair, which was on the wheeled dolly, into the hallway, away from the other students. (Depo. of Alford, p. 99, l. 10-p. 100, l. 4; p. 222, l. 17-20; Aff. of Alford) The chair did not have a tray in the 22 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 23 of 54 front, so the seat-belt was the only way to keep D.D. from falling out of the chair. (Aff. of Alford) Also, the chair could move if D.D. moved suddenly or lurched forward or backward in his seat while he sat in the chair when it was stationary. (Aff. of Alford) Therefore, D.D. remained seat-belted in the hallway while he waited on his mother. (Aff. of Alford) For the safety of the students, Ms. Alford often seat-belted a student who sat in the toddler chair using the Velcro strap. (Depo. of Alford, p. 203, l. 10-23) The plaintiff student knew how to release the Velcro sides from one another and take off the seat-belt. (Depo. of Alford, p. 152, l. 20-23) The plaintiffs can present no evidence that D.D. was ever restrained or detained in the toddler chair, because he was not on November 5, 2008 or any other time. (Aff. of Alford) Finally, an analysis of the evidence demonstrates that D.D. did not sustain physical injury from sitting in the toddler chair. (Aff. of Alford) The plaintiffs allege that defendants’ actions in violating D.D.’s Fourteenth Amendment rights have caused him to suffer pain and suffering, mental anguish and emotional distress. (Complaint, ¶ 14) However, a psychological injury does not meet § 1983's high threshold. T.W. v. Sch. Bd. of Seminole Co., FL, 2009 WL 1140101 (M.D. Fla.) (citing to Abeyta ex rel. Martinez v. Chama Valley Indep. Sch. Dist., 77 F.3d 1253, 1256 (10th Cir. 1996); Brown ex rel. Brown v. Ramsey, 121 F. Supp. 2d 911, 923 (E.D. Va. 2000)) 23 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 24 of 54 Ms. Alford had no ill will or malice towards the plaintiff student. (Aff. of Alford) She acted with the Clanton Elementary School’s students, including D.D.’s, best interests in mind at all times. (Aff. of Alford) She never threatened D.D. or had to be physical with him. (Depo. of Alford, p. 257, l. 5-14) Ms. Alford’s actions in regard to calming D.D. were clearly taken in good faith. Based on the above, D.D. did not sustain any injury that shocks the conscience and amounts to a deprivation of his Constitutional rights. The plaintiffs clearly cannot establish that any restraint was used, much less that it was excessive or that it presented a reasonably foreseeable risk of serious bodily injury to D.D. In fact, the opposite is quite true-if Ms. Alford failed to seat-belt D.D. and then D.D. fell out of the chair while it was on the wheeled dolly, D.D. could have sustained serious injury. Consequently, the plaintiffs cannot prove that the alleged physical abuse by Heather Alford rises to the level of a deprivation of a Constitutional right, and the claims in Counts I and II are due to fail. B. Defendants’ Alleged Actions Must Violate More than Board Policy To Constitute a Federal or Constitutional Violation. Furthermore, even if the plaintiffs could establish that Teacher Heather Alford acted in violation of Chilton County Board of Education policy in allowing the plaintiff student to sit in the toddler chair to calm himself the way that she did, the 24 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 25 of 54 defendant’s actions must have violated the Constitution and federal law, not merely board policy. The contours of federal law are not defined by state school district policies. See Hale v. Pringle, 562 F. Supp. 598, 601 (M.D. Ala. 1983). In this case, there is no evidence that any actions by Ms. Alford related to the plaintiff student were in violation of any school district policy. In fact, there is no Chilton County Board of Education policy on the use of toddler chairs in the preschool classrooms. (Aff. of Moore; Aff. of Cahalane) Additionally, there is no practice or procedure of Mr. Moore or Dr. Cahalane regarding the use of the toddler chairs. (Aff. of Moore; Aff. of Cahalane) Prior to this claim, there were no Chilton County Board of Education documents which addressed the use of toddler chairs in the Chilton County schools. (Aff. of Moore) Accordingly, since the plaintiffs cannot show that the defendants’ actions violated their Constitutional rights under the Fourteenth Amendment, the Chilton County Board of Education and the individual defendants are entitled to summary judgment as to the § 1983 claims against them. II. THE CHILTON COUNTY BOARD OF EDUCATION DID NOT VIOLATE THE PLAINTIFF STUDENT’S FEDERAL RIGHTS UNDER 42 U.S.C. § 1983. Assuming, arguendo, plaintiffs’ claims do rise to the level of Constitutional or federal rights violations, the Chilton County Board of Education is still entitled to summary judgment in its favor on the § 1983 claims. 25 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 26 of 54 A. There Is No Evidence of a Policy or Custom of the Chilton County Board of Education that Deprived the Plaintiff Student of His Fourteenth Amendment Due Process Rights. School boards may not be held liable for a Constitutional violation brought under 42 U.S.C. § 1983 under the theory of respondeat superior. Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018 (1978). Therefore, to prevail on a claim against a school board pursuant to § 1983, the plaintiffs must show that the Chilton County Board of Education has a policy or custom that deprived the plaintiff student of his federal rights. Davis v. DeKalb Co. Sch. Dist., 233 F.3d 1367, 1375 (11th Cir. 2000). Said policy or custom must be one of the Board itself C that is, it must have been officially sanctioned or ordered. Id. at 1375 (emphasis added). In addition, the plaintiffs must show that the Board’s actions were taken with the required degree of culpability B with deliberate indifference to their known or obvious consequences. Id. at 1375-76. The plaintiffs cannot show the existence of a policy or custom of the Chilton County Board of Education that deprived the plaintiff student of his due process interests. Superintendent Keith Moore testified that there is no Board policy on students sitting in toddler or Rifton chairs. (Depo. of Moore, p. 32, l. 23-p. 33, l. 4; Aff. of Moore) The Chilton County schools student handbook does not have a policy in it which prohibits the use of toddler chairs in the classroom. (Aff. of Moore) 26 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 27 of 54 Thus, there exists no custom or policy of the Board which prohibits Ms. Alford from allowing students to sit in a toddler chair or seat-belting them in while they sit in it. Further, an educator can administer corporal punishment in Alabama public schools, and that does not violate a student’s due process rights. Ala. Code § 16-28A-1 (1975). Along those same lines, a teacher’s allowing a student to use a toddler chair to help calm himself down does not violate his due process rights. Additionally, the plaintiffs cannot present evidence that the Chilton County Board of Education’s actions constitute deliberate indifference to the due process rights of the plaintiff student. Since the actions of the teacher do not rise to the level of shocking the conscience of the Court, they do not rise to the level of deliberate indifference either. B. Defendants Keith Moore, Benita Cahalane and Heather Alford Did Not Have Final Policy-Making Authority So As to Have Taken Action for Which the Board Can Be Held Liable. In Floyd v. Waiters, 133 F.3d 786 (11th Cir.), vacated, 525 U.S. 802 (1998), reinstated, 171 F.3d 1264 (11th Cir. 1999), plaintiffs sued the board of education and various individual defendants alleging that a security guard sexually harassed them. The plaintiffs contended that the individual defendants had final policymaking authority because they were "authorized to function without any supervision or review at all." In essence, plaintiffs claimed that the individual defendants had 27 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 28 of 54 discretion in how they performed their jobs. The Eleventh Circuit looked to Georgia law which established that only the board of education is authorized to establish rules and regulations for operating a school district. Id. at 794. The Court further stated that the fact that the board of education did not continually investigate or review the individual defendants’ decisions did not establish that the board had delegated policymaking authority to the individuals. Id. As was the case in Floyd, a review of the applicable Alabama statutes clearly reveal that the Board itself, and not Heather Alford, Benita Cahalane or even Keith Moore, is the final policy making authority with regard to establishing policy on use of toddler chairs in the classroom. The Alabama Code states in pertinent part: The local board of education shall, upon the written recommendation of the chief executive officer, determine and establish a written educational policy for the board of education and its employees and shall prescribe rules and regulations for the conduct and management of the schools... The county board of education shall exercise through its executive officer, the county superintendent of education and his professional assistants, control and supervision of the public school system of the county. The board shall consult and advise through its executive officer and his professional assistants with school trustees, principals, teachers and interested citizens and shall seek in every way to promote the interest of the schools under its jurisdiction. Ala. Code §§ 16-8-8, 16-8-9 (1975). In this case, the teacher in the preschool classroom used her discretion in 28 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 29 of 54 allowing the plaintiff student to sit in the toddler chair to calm himself before his mother arrived to check him out. Superintendent Moore, in conjunction with Dr. Cahalane, used his discretion in addressing the plaintiff mother’s concerns about the chair and moving the plaintiff student to another classroom. Dr. Cahalane used her discretion in investigating the mother’s claims. Because the teacher’s decisions with regard to behavioral issues in the class were always subject to review by Dr. Cahalane and Superintendent Moore, whose decisions were in turn subject to review by the Board, neither Ms. Alford nor Dr. Cahalane can be considered final policymaking authorities. Further, Mr. Moore did not have final policy making authority. Therefore, none of the individual educator’s actions can be said to be "officially" sanctioned or ordered so as to impute § 1983 liability to the Chilton County Board of Education. As a result, the Chilton County Board of Education is entitled to summary judgment on the plaintiffs’ claims under 42 U.S.C. § 1983. C. The Plaintiffs Cannot Show the Chilton County Board of Education Acted with Deliberate Indifference, and Thus, The Board Is Entitled to Summary Judgment as to the §1983 Claims. In Davis v. DeKalb Co. School Dist., the Eleventh Circuit held that the deliberate indifference standard applies to §1983 claims that a school district failed to prevent a deprivation of federal rights. Davis v. DeKalb Co. School Dist., 233 F.3d 1367, 1376 (11th Cir. 2000) (citing to Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 29 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 30 of 54 274, 291, 118 S. Ct. 1989, 141 L. Ed. 2d 277 (1998)). As previously argued in this Brief, plaintiffs cannot present evidence of deliberate indifference on the part of these defendants. The plaintiffs cannot show that the Board, Dr. Cahalane or Mr. Moore failed to act when faced with concerns from the plaintiff mother about the plaintiff student’s sitting in the toddler chair. The plaintiff mother did not say anything to Ms. Alford while she talked to her in the hallway on November 5, 2008 about D.D.’s sitting in the toddler chair. (Depo. of Davis, p. 104, l. 9-13) The plaintiff mother never discussed any concerns about the plaintiff student’s sitting in the toddler chair with Ms. Alford, any administrator at Clanton Elementary School or Dr. Cahalane. (Depo. of Davis, p. 105, l. 22-p. 106, l. 17; p. 132, l. 15-p. 133, l. 7) Mr. Moore agreed to move the plaintiff student to another preschool class after the mother raised concerns after November 5, 2008. (Depo. of Davis, p. 135, l. 7-13) Further, the plaintiffs cannot show that the Chilton County Board of Education had a custom or policy requiring, limiting or prohibiting the use of toddler chairs in the classroom. Accordingly, the Board is entitled to summary judgment in its favor as to the § 1983 claim against it. III. DEFENDANTS KEITH MOORE, BENITA CAHALANE AND HEATHER ALFORD ARE ENTITLED TO SUMMARY JUDGMENT ON THE CLAIMS BROUGHT PURSUANT TO 42 U.S.C. § 1983. Assuming, arguendo, this Court determines that the plaintiffs have adequately 30 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 31 of 54 stated a claim of a violation of a federal right, the individual defendants are entitled to qualified immunity. A. Defendants Keith Moore, Benita Cahalane and Heather Alford Are Entitled to the Protection of Qualified Immunity from Plaintiffs’ § 1983 Claims. Qualified immunity "allows government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating the federal law." Williams v. Consolidated City of Jacksonville, 341 F.3d 1261, 1267 (11th Cir. 2003) (citations omitted). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 340, 341 (1986). Qualified immunity protects government officials performing their discretionary functions from suit in their individual capacities, so long as their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Gonzalez v. Reno, 325 F.3d 1228, 1232 (11th Cir. 2003). Defendants Mr. Moore, Dr. Cahalane and Ms. Alford are being sued in their individual capacities only. The Eleventh Circuit, in Foy v. Holston, 94 F.3d 1528 (11th Cir. 1996), held that: Claims for money damages against government officials in their 31 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 32 of 54 individual capacity involve substantial costs not only for the individual official-who incidentally may be innocent-but for society in general. "These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will'dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.’" Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982) (citations omitted). The qualified immunity defense is the public servant’s (and society’s) strong shield against these dangerous costs. Qualified immunity protects government officials performing discretionary functions from civil trials (and other burdens of litigation, including discovery) and from liability if their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow, 457 U.S. at 817-19, 102 S. Ct. at 2738. Id. at 1532-33. The question of whether a government official or employee acted within his or her discretion is two-fold. The first inquiry in determining whether a school official is entitled to qualified immunity is whether the official’s alleged improper actions are of the type that fall within the official’s job responsibilities. Holloman v. Walker Co. Bd. of Educ., 370 F.3d 1252, 1265 (11th Cir. 2004). As applied to this case, this Court must ask whether Superintendent Keith Moore, Special Education Coordinator Benita Cahalane and Teacher Heather Alford were performing legitimate job-related functions through means that were within their power to utilize. Id. at 1265-66. In 32 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 33 of 54 other words, to satisfy the first inquiry, the individual defendants simply have to establish that their actions fell within their legitimate job descriptions. In this case, the individual defendants’ job duties include the supervision of teachers employed by the Chilton County Board of Education and the education of students, including the plaintiff student. Mr. Moore is responsible for administering the school system, which includes supervising Dr. Cahalane and the teachers and students at Clanton Elementary School. (Aff. of Moore) Dr. Cahalane’s duties as special education coordinator are to oversee the special education services provided to students, supervise teachers and administer the P.A.L.S. preschool program. (Aff. of Cahalane) Ms. Alford’s duties, as a teacher at Clanton Elementary School, are to educate and supervise preschool students. (Aff. of Alford) The plaintiffs’ allegations in this case arise out the supervision and education of the plaintiff student while he was a student in Heather Alford’s preschool class at Clanton Elementary School. As such, the defendant educators have satisfied the first prong of the qualified immunity test. The next question which must be asked is whether the government official executed his or her job-related functions in an authorized manner. Holloman, 370 F.3d at 1266. In considering this inquiry, this Court is to ask whether the defendants’ actions (on a general level rather than in the specific application in this case) were 33 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 34 of 54 legitimate prerogatives of their jobs. In other words, would the defendants’ actions in this case be considered part of their duties and legitimate exercises of their authority? Once again, the individual defendants had the authority, and in fact had a duty, to supervise teachers and students and educate students. As such, Mr. Moore and Dr. Cahalane’s activities supervising Teacher Heather Alford, and Ms. Alford’s actions in the education and supervision of the plaintiff student were discretionary acts for which they are entitled to seek qualified immunity. See Holloman, 370 F.3d at 1267. See also the Alabama Supreme Court decision in Ex parte Turner, 840 So. 2d 132 (Ala. 2002). Now that the defendants have established that they were engaged in discretionary functions at the time of the alleged incidents, this Court must apply the two-part analysis set forth by the U.S. Supreme Court in Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002).2 Under this analysis, "the threshold inquiry a court must undertake is whether [the] plaintiff’s allegations, if true, establish a Constitutional violation." Id. at 736. If a Constitutional right would have been violated under the plaintiffs’ version of the facts, the next step is to ask whether the right was clearly established at the time of the alleged violation. Id. at 739. 2 Out of an abundance of caution in what can be a complex area of the law, the defendants show that, however many two prong tests qualified immunity requires, the defendants meet them all. 34 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 35 of 54 Accordingly, the burden now shifts to the plaintiffs to establish that the individuals’ actions rose to the level of a Constitutional violation. As previously argued, the plaintiffs cannot satisfy this burden. Assuming, arguendo, that the plaintiffs have met the threshold inquiry of establishing a Constitutional violation, under Hope v. Pelzer, the defendants must be given "fair warning" that their actions are improper and illegal. There is little, if any, difference from the Eleventh Circuit’s bright line standard to this "fair warning" standard, at least in this case. The law can be clearly established for qualified immunity purposes by decisions of the United State Supreme Court, the Eleventh Circuit, or the Alabama Supreme Court. Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821, 826 n. 4 (11th Cir. 1997). Plaintiffs cannot meet the standard for defeating the individual defendants’ qualified immunity in this case. There was no fair warning to the defendant educators. There is no case law anywhere, and certainly none from the United State Supreme Court, the Eleventh Circuit or the Alabama Supreme Court, which tells these educators that they should not have acted the way they did in relation to the use of the toddler chair in Ms. Alford’s classroom. In fact, the Alabama Supreme Court has held that summary judgment was proper for a school principal, either under a state law negligence claim or § 1983 claim of deliberate indifference, who allegedly used 35 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 36 of 54 force against a student in trying to detain her in the hallway during classes. Ex parte Turner, 840 So. 2d 132 (Ala. 2002). In the Ex parte Turner case, the Alabama Supreme Court issued a writ of mandamus and ordered entry of summary judgment in favor of the assistant principal, even in the face of allegations of physical injury to the plaintiff student. In this case, there are no allegations of physical injury to the plaintiff student from his sitting in the toddler chair while seat-belted. Furthermore, Ala. Code § 13A-3-24 and § 16-28A-1 (1975) allow the use of force, including touching and even physical punishment, upon a student by a teacher or administrator. Additionally, the Alabama Supreme Court in Suits v. Glover, 260 Ala. 449, 71 So. 2d 49 (1954), established the limited circumstances in which an educator may be liable for using physical force against a student-only when excessive force is used and the act is performed maliciously. There is no evidence of either excessive force being used by Ms. Alford or Ms. Alford acting with legal malice or wicked motives toward D.D. in this case. The Alabama Supreme Court affirmed summary judgment granted on behalf of the educators in Boyett v. Tomberlin, 678 So. 2d 124 (Ala. Civ. App. 1996), cert. denied (Ala. 1996), U.S. cert. denied, 519 U.S. 1077, 17 S. Ct. 738, 136 L. Ed. 2d 677 (1997), on the basis of their discretionary authority to educate students, including a teacher’s ability to refuse a student’s request to leave the classroom and a principal’s 36 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 37 of 54 ability to determine what discipline to impose on a student. Clearly, the defendant educators in this case were also exercising their discretionary functions in determining how best to educate the student plaintiff in Heather Alford’s preschool class during the 2008-09 school year. Thus, since all educators followed either case law from the Alabama Supreme Court or an Alabama statute in performing their governmental duties, no defendant has acted beyond what the law allows. Thus, even assuming a Constitutional (or federal or state law) violation, no defendant educator has received "fair warning" that he or she has "crossed the [bright] line." Thus, each individual defendant is entitled to qualified immunity when exercising his or her discretionary functions in educating students and supervising teachers. B. The Individual Defendants Are Entitled to Summary Judgment on Plaintiffs’ § 1983 Claim Based on a Violation of Due Process Rights. Plaintiffs allege that Mr. Moore, Dr. Cahalane and Ms. Alford deprived them of their procedural and substantive due process rights under the Fourteenth Amendment in Counts I and II of their Complaint. However, even assuming, arguendo, the individual educator defendants are not entitled to qualified immunity, they are still entitled to summary judgment as to these claims. The plaintiffs cannot establish that there existed a custom or policy of failing to notify students or parents of their procedural due process rights at Clanton Elementary School. There is no 37 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 38 of 54 Chilton County Board of Education policy prohibiting or limiting the actions taken by Ms. Alford. (Depo. of Moore, p. 32, l. 23-p. 33, l. 4; Aff. of Moore) The plaintiffs cannot present substantial evidence that any defendant personally made a decision which would trigger due process rights. However, even if there were evidence that Ms. Alford knew there was a policy that a parent be informed before a student is allowed to sit in the toddler chair, but made a decision not to inform the parent, this is not a sufficient basis for holding the defendant educators liable on the basis of failure to inform. In order to hold Mr. Moore, Dr. Cahalane and Ms. Alford liable, the plaintiffs must show by substantial evidence that there was a custom or policy in place of failing to inform the plaintiffs of their due process rights.3 Sitting in a short wooden "high-" chair, while seat-belted in, for a few minutes is not a deprivation of rights. In order for there to be a custom or policy, there must have been at least one, and probably multiple, decisions made with regard to allowing the plaintiff student to sit in the toddler chair without informing his mother of their due process rights. In this case, there is no evidence to support an allegation that a Chilton County Board of Education custom or policy of 3 Defendants anticipate plaintiffs will attempt to use the memo drafted by Dr. Cahalane to the P.A.L.S. parents concerning the use of the toddler chair (attached to the Affidavit of Dr. Cahalane) in support of this argument. However, that memo was a subsequent remedial measure, and thus, is inadmissible to show a failure to inform prior to the alleged incidents. 38 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 39 of 54 failing to inform the plaintiffs of their due process rights existed. Thus, the plaintiffs cannot meet their burden to show that the defendant educators violated their procedural due process rights under the Fourteenth Amendment. The plaintiffs also cannot show a violation of their substantive due process rights by these defendants. There is no evidence of any deprivation of the plaintiff student’s right to an education. On November 5, 2008, D.D. chose to sit in the toddler chair during nap-time, when there is no teaching going on. (Depo. of Alford, p. 88, l. 14-16; p. 121, l. 11-20; p. 187, l. 21-p. 188, l. 1; Aff. of Alford) He sat in the chair for less than ten minutes total that afternoon. (Aff. of Alford) Clearly, D.D. was not deprived of any educational rights while he and Ms. Alford waited for his mother to check him out of school. The Eleventh Circuit Court of Appeals also observed in Nix v. Franklin County School District, 311 F.3d 1373 (11th Cir. 2002), that: "As a general matter, the [Supreme] Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this [uncharted] area are scarce and open ended." Collins v. City of Harker Heights, Texas, 503 U.S. 115, 125, 117 L. Ed. 2d 261, 112 S. Ct. 1061 (1992). When shaping the contours of due-process law, the Court has often emphasized the need to prevent the Fourteenth Amendment from becoming a surrogate for conventional tort principles. 311 F.3d at 1376. (Brackets in original.) Clearly, the allegations of the plaintiffs in 39 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 40 of 54 this case do not establish any substantive due process violation. Their claims pursuant to the Fourteenth Amendment, brought under 42 U.S.C. § 1983, therefore fail to state any basis upon which relief could be granted, and the individual defendants are entitled to summary judgment in their favor as a matter of law. IV. DEFENDANT EDUCATORS KEITH MOORE, BENITA CAHALANE AND HEATHER ALFORD ARE ALSO PROTECTED BY FEDERAL IMMUNITY. Educators are also protected by federal immunity from claims such as those made by the plaintiffs in this case under the Paul D. Coverdell Teacher Protection Act of 2001, a part of the "No Child Left Behind" Act. According to § 2366, "Limitation on Liability for Teachers," educators are immune for any act or omission done on behalf of the school if: (1) the teacher was acting within the scope of the teacher’s employment or responsibilities to a school or governmental entity; (2) the actions of the teacher were carried out in conformity with Federal, State, and local laws (including rules and regulations) in furtherance of efforts to control, discipline, expel, or suspend a student or maintain order or control in the classroom or school; (3) if appropriate or required, the teacher was properly licensed, certified or authorized by the appropriate authorities for the activities or practice involved in the State in which the harm occurred, where the activities were or practice was undertaken within the scope of the teacher’s responsibilities; (4) the harm was not caused by willful or criminal misconduct, gross 40 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 41 of 54 negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the teacher.... Here, Mr. Moore, Dr. Cahalane and Ms. Alford were acting within the scope of their employment with the Chilton County Board of Education and were properly licensed to be administrators and a teacher at all times. All of Mr. Moore, Dr. Cahalane and Ms. Alford’s actions in regard to the plaintiff student were in conformity with federal, state and local laws. (Aff. of Moore; Aff. of Cahalane; Aff. of Alford) Furthermore, none of these educators acted willfully, criminally or recklessly, with gross negligence, or with a conscious flagrant indifference to the rights of the plaintiff student. (Id.) Accordingly, Mr. Moore, Dr. Cahalane and Ms. Alford are also entitled to protection from all claims against them under federal statutory immunity. V. THE CHILTON COUNTY BOARD OF EDUCATION IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ CLAIMS OF VIOLATIONS OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA). Plaintiffs claim that the actions of the defendants denied the plaintiff student his right to a free appropriate public education. (Complaint, ¶ 20). One of the primary purposes of the IDEA is "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them 41 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 42 of 54 for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). To provide a student with a free appropriate public education (FAPE), the school district must formulate and develop an Individualized Education Plan, an "IEP," during a meeting between the parents and school officials. 20 U.S.C. § 1414(d)(1)(A) and (B). The IDEA allows a party to present a complaint with respect to any matter relating to the identification, evaluation or educational placement of a student with a disability or the provision of FAPE to a student with a disability. 20 U.S.C. § 1415(b)(6). After presenting the complaint, the party seeking to challenge any matter relating to the provision of FAPE may request an impartial due process hearing. 20 U.S.C. §1415(f). Following the due process hearing, an aggrieved party may appeal the decision of the administrative hearing officer to a state or federal court, where the judge will receive the records of the administrative proceedings and may hear additional evidence if necessary. 20 U.S.C. §1415(i)(2)(A) and (C). In this case, the plaintiff mother filed a due process complaint with the State Department of Education by stating only that "I am concerned with the emotional effect that my son had occurred strapped to a chair." (See exhibit attached to Affidavit of Benita Cahalane) Thereafter, an agreement was reached between the parties that since the only unresolved issue was the plaintiffs’ desire for monetary 42 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 43 of 54 damages, which is outside the jurisdiction of the hearing officer, no due process hearing need be held. The hearing officer then entered the appropriate Due Process Decision. (See exhibit attached to Affidavit of Benita Cahalane) Once the Due Process Decision was entered, instead of appealing the due process decision, the plaintiffs filed a Notice of Intent to File Civil Action. (See exhibit attached to Affidavit of Benita Cahalane) Thus, since the plaintiffs did not appeal the due process decision, according to 20 U.S.C. §1415(i)(2)(A) and (C), the plaintiffs did not follow the administrative procedure set out in the IDEA, and have failed to exhaust their administrative remedies. If the plaintiffs desire remedial education, a different IEP, or any changes in the plaintiff student’s education process, the plaintiffs must first seek another IEP and/or another due process hearing. Those hearings reduce the workload of the courts, and Congress required those administrative procedures be followed before suit can be filed. 20 U.S.C. § 1415. Most importantly, now, however, the plaintiff student and his mother have moved to Indiana and have no plans on returning to Chilton County, Alabama. (Depo. of Davis, p. 9, l. 20-p. 10, l. 2; p. 19, l. 17-p. 20, l. 1; p. 120, l. 2-7) There is no need for another IEP or due process hearing— or an appeal here— for an educational process claim. Even assuming the plaintiffs’ notice of intent to file civil action is a proper 43 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 44 of 54 appeal of the due process decision, a review of the underlying due process decision shows that the plaintiff student was not denied FAPE. The plaintiffs’ sole complaint is in regard to an improper use of the toddler chair on one occasion. Such a complaint does not state a valid cause of action under the IDEA for denial of a FAPE. Furthermore, the plaintiffs have no evidence to support any other allegation of a denial of FAPE. The evidence actually shows that the few minutes that the plaintiff student was seated in the toddler chair in the hallway on November 5, 2008, the other students were resting during nap-time. (Depo. of Alford, p. 88, l. 14-16; p. 121, l. 11-20) The students are not taught during nap-time. (Depo. of Alford, p. 187, l. 21-p. 188, l. 1) The use of a toddler chair with the plaintiff student was not addressed by the IEP Team or the IEP. (Aff. of Cahalane) Yet, the plaintiff mother was an active participant in the IEP meetings. (Aff. of Cahalane) The mother never voiced her concerns regarding the plaintiff student sitting in the toddler chair with the IEP Team. (Aff. of Cahalane) Thus, the actions taken by the teacher in allowing the plaintiff student to sit in the toddler chair did not deny the plaintiff student his right to a free appropriate public education under the IDEA. Accordingly, the Chilton County Board of Education, the sole defendant in the IDEA claim, is entitled to summary judgment on its behalf on the plaintiffs’ claim under the IDEA. 44 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 45 of 54 VI. THE INDIVIDUAL DEFENDANTS ARE PROTECTED BY STATE-AGENT IMMUNITY FROM ANY CLAIMS UNDER STATE LAW. County boards of education are not local government agencies, but local agencies of the state government. They are therefore protected by the state’s absolute sovereign immunity from tort liability. Ex parte Hale Co. Bd. of Educ., 14 So.3d 844 (2009); Byrd v. Sullivan, 657 So. 2d 830, 832-33; Hutt v. Etowah Co. Bd. of Educ., 454 So. 2d 973, 974 (Ala. 1984). Employees of county boards of education as "state agents are afforded immunity from civil liability when the conduct made the basis of the claim is based on the exercise of judgment in supervising and educating students." Ex parte Nall, 879 So. 2d 541 (Ala. 2003). It is undisputed in this case that all claims against Defendants Keith Moore, Benita Cahalane and Heather Alford relate to their supervision and education of students. The Alabama Supreme Court and Court of Civil Appeals have held that educators’ decisions concerning supervision of students involve the exercise of judgment and discretion and are therefore protected by State-agent immunity. Ex parte Turner, 840 So. 2d 132, 136 (Ala. 2002); Byrd v. Sullivan, 657 So. 2d 830, 833 (Ala. 1995); Boyett v. Tomberlin, 678 So. 2d 124 (Ala. Civ. App. 1996), cert denied (Ala. 1996), 519 U.S. 1077, 17 S.Ct. 738, 136 L. Ed. 2d 677 (1997). In Ex parte Turner, 840 So. 132 (Ala. 2002), the Alabama Supreme Court 45 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 46 of 54 issued a writ of mandamus and ordered entry of summary judgment on State-agent immunity grounds in favor of an assistant school principal who forcefully detained a female student in the school for disciplinary reasons, resulting in a head injury to the student. In that case, assistant principal Turner detained the plaintiff student in the hallway and asked her to produce a hall pass. The student loudly resisted Mr. Turner’s efforts to stop her for questioning and tried to force her way past him. When Mr. Turner attempted to detain her forcefully, both he and the student fell, knocking the student’s head into a locker, injuring her. The trial court subsequently denied Mr. Turner’s motion for summary judgment. On Turner’s petition for writ of mandamus, the Alabama Supreme Court held: Turner is protected under the doctrine of State-agent immunity because his actions occurred while he was discharging his duties in educating students. The evidence before us indicates that Turner’s decision to detain and question Ware was made while he was acting in his official capacity.... We recognize that, with the benefit of hindsight, one might question the wisdom of Turner’s method of detaining Ware; we will not, however, second-guess his decision.... State-agent immunity protects educators, as agents of the State, in their exercise of judgment in educating students. The trial court erred in denying Turner’s Motion for a summary judgment as to the state-law causes of action. 46 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 47 of 54 840 So. 2d at 136.4 As the defendants discussed at length in preceding sections, all of Heather Alford’s alleged actions in allowing the plaintiff student to sit in a toddler chair in the hallway were in response to incidents of his disruptive behavior. There is no evidence that Ms. Alford acted with any intent to injure the student (in fact, no injury ever resulted) nor that her actions were malicious or in bad faith. Although as the Supreme Court noted in Ex parte Turner, Ms. Alford’s methods might be second-guessed in hindsight, courts may not substitute their judgment retrospectively for the decisions made by teachers in the classroom. Because there is no evidence of any intent to injure, malice, or bad faith, Defendants Keith Moore, Benita Cahalane and Heather Alford are entitled to summary judgment in their favor as to any state law claims on the basis of State-agent immunity.5 VII. THERE IS NO EVIDENCE OF ANY ASSAULT OR BATTERY OF THE PLAINTIFF STUDENT. In Count IV of their Complaint, the plaintiffs allege that Heather Alford’s 4 The Alabama Supreme Court’s writ of mandamus also ordered the entry of summary judgment in favor of Mr. Turner on the plaintiff’s claims under 42 U.S.C. § 1983, noting that the defendant was entitled to qualified immunity, as discussed earlier. 5 The case law cited in Section VII, "There is No Evidence of Any Assault and Battery of the Plaintiff Student," applies to the analysis of State-agent immunity, but for the sake of brevity is not repeated. 47 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 48 of 54 actions constitute an assault and battery. However, none of the alleged "facts" in the Complaint rises to the level of a rude touching by this educator, so there can be no battery. And, the plaintiff student has not provided testimony or any other evidence that he feared imminent harm by any of Ms. Alford’s alleged actions. So, there is no proof of assault or battery. However, even if there were evidence of an alleged touching by the preschool teacher, Alabama Code § 13A-3-24 and § 16-28A-1 (1975) both allow the use of force, including touching and even physical punishment, upon a student by a teacher or administrator. Thus, even if the plaintiffs could show that the plaintiff student was touched by Ms. Alford at any point in time while he was seated in the toddler chair, Heather Alford would still be entitled to summary judgment in her favor as to the claims of assault and battery. Heather Alford did not use excessive force or act with legal malice in allowing the plaintiff student to sit in the toddler chair in the hall while waiting for his mother. (Aff. of Alford) In Suits v. Glover, 260 Ala. 449, 71 So. 2d 49 (1954), the Alabama Supreme Court established the "schoolmaster’s immunity," and explained the limited circumstances in which an educator may be subject to liability for using physical force against a student: A schoolmaster is regarded as standing in loco parentis and has the authority to administer moderate correction to pupils under his care. To be guilty of an assault and battery, the teacher must not only inflict 48 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 49 of 54 immoderate chastisement, but he must do so with legal malice or wicked motives or he mu st in flict some permanent inju ry. Id. at 50. Since the Suits decision, Alabama courts have consistently held that an administrator or teacher cannot be held liable unless excessive force is used and the act is performed maliciously. See Deal v. Hill, 619 So. 2d 1347, 1348 (Ala. 1993); DHR v. Funk, 651 So. 2d 12 (Ala. Civ. App. 1994); Hale v. Pringle, 562 F. Supp. 598 (M.D. Ala. 1983). Even if the student sustained bruises, the educator is protected by schoolmaster’s immunity. Hale, 562 F. Supp. at 599, and DHR v. Funk, 651 So. 2d at 19. Furthermore, claims against those standing in loco parentis are subject to the higher "clear and convincing" evidentiary standard. Hurst v. Capitell, 539 So. 2d 264, 266 (Ala. 1989). The plaintiffs cannot present clear and convincing evidence that Ms. Alford used any force, much less more force than was necessary and appropriate under the circumstances, or that she did so with legal malice or inflicted permanent injury upon the plaintiff student. Clearly, Ms. Alford is entitled to summary judgment as to plaintiffs’ claims of assault and battery. VIII. THE ALLEGED ACTS OF THE DEFENDANT EDUCATORS DO NOT SATISFY THE REQUIRED ELEMENTS OF THE TORT OF OUTRAGE. The plaintiffs’ Complaint alleges the tort of outrage against the individual 49 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 50 of 54 educators.6 (Complaint, Count V) The Alabama Supreme Court has consistently held that "the tort of outrage is a very limited cause of action that is available in only the most egregious circumstances." Deleon v. Kmart Corp, 735 So. 2d 1214, 1217 (Ala. Civ. App. 1998) (citing Thomas v. BSE Indus. Contractors, Inc., 624 So. 2d 1041, 1044 (Ala. 1993)). The cases in which the Alabama Supreme Court has found a jury question on an outrage claim are limited to three categories of cases: 1) wrongful conduct in the context of family burials; 2) bad faith in settling insurance claims; and 3) egregious sexual harassment. Id. The facts in the present case clearly do not demonstrate any of these "most egregious circumstances." Thus, the tort of outrage is not a cognizable claim for the present situation. Furthermore, even if this case presented "most egregious circumstances," the elements of the tort of outrage are not satisfied by the evidence in this case. The elements of the tort of outrage in the State of Alabama are: 1) The defendant either intended to inflict emotional distress or knew or should have known that emotional distress was likely to result from his conduct; 2) the defendant’s conduct was extreme and outrageous; and, 3) the defendant’s conduct caused emotional distress so severe that no reasonable person could be expected to endure it. 6 This Court dismissed the outrage claim against the Chilton County Board of Education in its September 17, 2009 Memorandum Opinion and Order. 50 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 51 of 54 Jackson v. Alabama Power Co., 630 So. 2d 439, 440 (Ala. 1993). The plaintiffs allege that the "defendants individually and/or collectively intended to cause plaintiff emotional distress or knew or should have known that emotional distress was the likely result." (Complaint, ¶ 24) However, the plaintiffs cannot provide substantial evidence of any extreme conduct on the part of these individual defendants. All actions taken by Ms. Alford on November 5, 2008 were taken in an attempt to redirect the plaintiff student and allow him to calm down before his mother came to check him out. (Depo. of Alford, p. 106, l. 20-p. 107, l. 9; Aff. of Alford) As noted in the Defendants’ Statement of Facts, Ms. Alford used her discretion and judgment in attempting to redirect D.D. over the course of the day on November 5, 2008 when he exhibited disruptive behaviors. When those disruptive behaviors continued during nap time, Ms. Alford gave the plaintiff student several options, one of which was to sit in a chair. (Aff. of Alford) D.D. chose to sit in the toddler chair. (Aff. of Alford) Ms. Alford seat-belted him for his safety, and pushed the chair, which was on the wheeled dolly, into the hallway, away from the other students. (Depo. of Alford, p. 99, l. 10-p. 100, l. 4; p. 222, l. 17-20) Ms. Alford positioned D.D. towards the wall because she knew he would become agitated if he thought people walking by were looking at him. (Depo. of Alford, p. 117, l. 1-8; p. 181, l. 11-51 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 52 of 54 23; p. 182, l. 7-p. 183, l. 2) Within five minutes of Ms. Alford and D.D.’s sitting in the hall, the office called to say that the plaintiff mother was at the school to check out her son. (Depo. of Alford, p. 89, l. 1-10; p. 92, l. 3-12) The plaintiff student sat in the toddler chair for less than ten minutes total that afternoon. (Aff. of Alford) Since Ala. Code § 16-28A-1 (1975) requires educators to maintain order in the classroom, removing a student from a classroom full of napping preschoolers to calm him down is appropriate. Obviously, none of the above rises to the level of outrageous conduct by any defendant. The tort of outrage is not cognizable under the circumstances of this case, and the plaintiffs have failed to provide evidence to support the legal elements of outrage. Therefore, the defendant educators are entitled to summary judgment on the plaintiffs’ claims of outrage. IX. THE PLAINTIFFS STILL HAVE A REMEDY, DESPITE THE IMMUNITY POSSESSED BY THE DEFENDANTS. The Alabama Legislature has funded the State Board of Adjustment because sovereign immunity prevents claims against the State and its employees for which there may be a moral but not a legal obligation to pay. The Alabama Supreme Court has held that sovereign immunity prohibits civil suits against a county school board, but the Board of Adjustment has jurisdiction to hear such claims. Hawkins v. State 52 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 53 of 54 Bd. of Adjustment, 242 Ala. 547, 7 So. 775 (1943). See also Vaughn v. Sibley, 709 So. 2d 482, 486 (Ala. Civ. App. 1997). Thus, while immunity prevents the plaintiffs from recovery against these defendants, the plaintiffs still have a remedy before the Board of Adjustment. CONCLUSION For the above stated reasons, Defendants Chilton County Board of Education, Keith Moore, Benita Cahalane and Heather Alford are entitled to summary judgment in their favor as to all claims against them. Respectfully submitted, s/Mark S. Boardman Mark S. Boardman (ASB-8572-B65M) Katherine C. Hortberg (ASB-5374-B34K) BOARDMAN, CARR, HUTCHESON & BENNETT, P.C. 400 Boardman Drive Chelsea, Alabama 35043-8211 Telephone: (205) 678-8000 Facsimile: (205) 678-0000 53 Case 2:09-cv-00691-WHA-WC Document 28 Filed 02/26/10 Page 54 of 54 CERTIFICATE OF SERVICE I hereby certify that on the 26th day of February, 2010, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Robert D. Drummond, Jr., Esq. 323 Delmare Avenue Fairhope, Alabama 36532 s/Katherine C. Hortberg Of Counsel 54

MEMORANDUM OPINION AND ORDER: The Plaintiff having failed to establish a violation of federal law, for the reasons discussed, the {{27}} Motion for Summary Judgment is GRANTED as to the federal claims, and the court declines to exercise supplemental jurisdiction over the state law claims, dismissing them without prejudice. A separate Judgment will be entered in accordance with this Memorandum Opinion and Order. Signed by Honorable W. Harold Albritton, III on 4/6/2010.

Case 2:09-cv-00691-WHA-WC Document 34 Filed 04/06/10 Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION D.D., by and through his next friend) CATHY DAVIS,)) Plaintiff,)) v.) Civil Action No. 2:09cv691-WHA) CHILTON COUNTY BOARD OF) (WO) EDUCATION, et al.,)) Defendants.) MEMORANDUM OPINION AND ORDER I. INTRODUCTION This case is before the court on a Motion for Summary Judgment filed by the Defendants Chilton County Board of Education, Keith Moore, Benita Cahalane, and Heather Alford (Doc. #27). The Plaintiff, D.D., by and through his next friend Cathy Davis,1 brings claims against the Defendants pursuant to 42 U.S.C. § 1983, for violation of his procedural due process and substantive due process right to liberty under the Fourteenth Amendment to the Constitution of the United States (Count I), his procedural due process and substantive due process right to bodily integrity under the Fourteenth Amendment (Count II), a claim for denial of his right to a free and appropriate education under the Individuals with Disabilities in Education Act ("IDEA") (Count III), and state law claims for assault and battery (Count IV) and outrageous 1 The court notes that D.D.’s next friend is referred to as "Cathi" Davis in the briefs and supporting evidence. The name is spelled "Cathy" in the caption and body of the Complaint, however, and the court adopts the spelling used in the Complaint. Case 2:09-cv-00691-WHA-WC Document 34 Filed 04/06/10 Page 2 of 16 conduct (Count V). The Defendants filed a Motion to Dismiss which the court granted in part and denied in part, allowing the case to proceed on the Fourteenth Amendment claims in Counts I and II against all Defendants, the IDEA claim in Count III against the Chilton County Board of Education, and the assault and battery claim in Count IV and the outrageous conduct claim in Count V against the individual Defendants. See Doc. #19. The Defendants have moved for summary judgment as to all the claims remaining after the court’s order on the motion to dismiss, or alternatively, for summary judgment on the federal claims and dismissal of the state law claims for lack of jurisdiction. For the reasons to be discussed, the Motion for Summary Judgment is due to be GRANTED as to the federal claims, and the state law claims dismissed without prejudice. II. SUMMARY JUDGMENT STANDARD Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the 'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323. The movant can meet this burden by presenting evidence showing there is no dispute 2 Case 2:09-cv-00691-WHA-WC Document 34 Filed 04/06/10 Page 3 of 16 of material fact, or by showing, or pointing out to, the district court that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-324. Once the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [its] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party "must do more than show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). After the nonmoving party has responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). III. FACTS The facts taken in a light most favorable to, and with all reasonable inferences drawn in favor of, the non-movant are as follows: During the 2008-09 school year, D.D. was a four-year-old enrolled at Clanton Elementary School, operated by Chilton County Board of Education. D.D. was receiving educational services pursuant to an Individualized Education Program ("IEP") based on his diagnoses of Pervasive Development Disorder, Attention Deficit/Hyperactivity Disorder, Impulse Control Disorder, and Mood Disorder. Benita Cahalane Aff. at page 2. Defendant 3 Case 2:09-cv-00691-WHA-WC Document 34 Filed 04/06/10 Page 4 of 16 Heather Alford ("Alford"), D.D.’s teacher during the relevant time period, states in an affidavit that D.D. hit and kicked her, her teacher’s aide, and his classmates during the fall of 2008. Alford Aff. at page 2. Alford states that she tried to help D.D. to end these behaviors by offering him choices and positive reinforcement. Id. Alford states that D.D. needed space to calm down and that he liked to sit in the toddler chair in her classroom when he was upset. Id. The chair at issue is a toddler chair made by the Rifton company which Alford had in her classroom. Benita Cahalane Dep. at page 17: 10-21. The chair is referred to as both the toddler chair and the Rifton chair in this case. It has various uses, which are generally therapeutic. Id. at page 27:10-3. On November 5, 2008, D.D. was being very disruptive in class, and kicked several students and teachers, including Alford. Alford Dep. at pages 87-88. Alford removed D.D.’s shoes because he had hurt her shins by kicking her. Alford Aff. at page 3. Alford knew that Davis would be checking D.D. out of school at 1:40 p.m. that day. Alford Dep. at page 87: 8-9. At the students’ nap time at 1:30, Alford asked D.D. to take a nap and he kicked and hit her and the teacher’s aid. Id. at page 110: 12-112: 6. Alford gave D.D. the option of reading a book, but he refused. Id. at page 121: 5-7. Alford then either offered him the option of sitting in a chair, or asked him to sit in the toddler/Rifton chair, and D.D. sat in the chair. Alford did not force him to sit in the Rifton chair. Alford’s testimony is that D.D. enjoyed sitting in the Rifton chair and had chosen to sit in it on previous occasions. Id. at page 124: 19. Upon sitting in the Rifton chair on November 5, D.D. did calm down, but still called Alford, her teacher’s aid, and some children stupid and told them to shut up. Id. at page 252: 2-7. Even though he would soon be leaving, Alford wanted to calm him because he could still have hit more children before he left. Id. at page 186: 10-3. Alford attached the Rifton chair’s Velcro lap belt around D.D. so that he 4 Case 2:09-cv-00691-WHA-WC Document 34 Filed 04/06/10 Page 5 of 16 would not fall, and moved him into the hallway.2 Id. at page 99: 13, 250:13-6. She placed him facing the wall and sat beside him at arm’s length from him in the hall to wait for his mother. Id. at page 233: 13-17. She faced him toward the wall to help calm him and to limit distractions that would upset him. Id. at page 259: 3-7. Alford stepped into the classroom to get D.D.’s book bag. Id. at page 252: 22-253: 5. D.D. was in the chair for a total time of less than ten minutes. Alford Aff. at page 3. When Davis arrived, Alford undid the strap and returned D.D.’s shoes, and D.D. began trying to hit and kick Alford. Alford Dep. at page 158: 17-23.3 Cathy Davis ("Davis"), D.D.’s mother, states in her affidavit that when she arrived at Alford’s classroom on November 5, she observed D.D. strapped at the waist and feet to a chair in the hallway with the classroom door closed, crying and alone. The Plaintiff’s version, therefore, which the court accepts for the purposes of this motion, is that the Rifton chair had both a waist and foot straps, and that Alford used both the waist and foot restraints on the day in question. Davis states that when she reached D.D., Alford came out of the classroom and began to unstrap D.D. from the chair. Davis states that the chair was not on rollers or a platform. Davis had requested a behavioral plan as part of his IEP, but no plan was developed or implemented until after the chair incident at issue. Davis states that she was not notified on November 5, 2008 that D.D. was being strapped into a chair, nor had she been told that the use 2 Alford states that she rolled the chair into the hall on a low dolly. Davis disputes that the chair was on a dolly or rollers when she came to pick D.D. up. Either way, Davis does not present evidence to dispute Alford’s version of events that she moved the chair containing D.D. from the classroom to the hall. 3 In her deposition, Davis states that she never saw D.D. kick or hit Alford, but does not testify about whether he tried to do so when he was released from the restraints on the chair on November 5. Davis Dep. at page 101: 13-22. 5 Case 2:09-cv-00691-WHA-WC Document 34 Filed 04/06/10 Page 6 of 16 of a Rifton Chair had been authorized as a consequence for inappropriate behavior. After seeing D.D. in the chair, Davis contacted Defendant Keith Moore, the Superintendent of the Chilton County Board of Education, and said that she wanted D.D. removed from Clanton Elementary School. Moore and Defendant Benita Cahalane, the Chilton County Special Education Coordinator, worked on the transfer, but then Davis requested that D.D. not be transferred to a different school, but only to a different teacher. D.D. was assigned to a different pre-school teacher. Alford was never disciplined a result of the incident in question and a determination was made that she followed all policies, procedures, and practices of the Chilton County Board of Education. Davis filed a due process complaint with the Alabama Department of Education. A resolution meeting was held to discuss her complaint.4 Davis and D.D. later moved out of state. IV. DISCUSSION The Defendants have moved for summary judgment on all of the Plaintiff’s claims remaining after the court’s ruling on the Motion to Dismiss. The court addresses first the federal claims, and then the state law claims. Federal Claims A. Fourteenth Amendment 1. Substantive Due Process 4 No challenge has been brought as to anything which occurred as a result of the administrative proceedings. 6 Case 2:09-cv-00691-WHA-WC Document 34 Filed 04/06/10 Page 7 of 16 The substantive due process doctrine is designed to "protect[] those rights that are fundamental-rights that are implicit in the concept of ordered liberty." Skinner v. City of Miami, 62 F.3d 344, 347 (11th Cir. 1995). "Courts have been notably reluctant to expand substantive due process doctrine to encompass state torts." Dacosta v. Nwachukwa, 304 F.3d 1045, 1048 (11th Cir. 2002). Officials acting under the color of state law violate substantive due process when their conduct is arbitrary, or conscience shocking, in a constitutional sense. Peterson v. Baker, 504 F.3d 1331, 1337 (11th Cir. 2007). To rise to the conscience-shocking level, conduct must be "intended to injure in some way unjustifiable by any government interest [.]" Davis v. Carter, 555 F.3d 979, 982 (11th Cir. 2009) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)). The Defendants contend that the actions of Alford at issue in this case do not rise to a constitutional level. The Defendants argue that D.D. sitting in a toddler chair with a seat belt on and, assuming the Plaintiff’s version of events, foot restraints, did not shock the conscience. The Defendants argue that it was objectively reasonably to restrain D.D. for his own safety, and to secure his feet while Alford was sitting in the hall with him because D.D. had kicked her previously during the day. The Defendants further point out that no physical injury was sustained by D.D. The Plaintiff responds that the Defendants have taken the position that he was not restrained for punishment purposes, and that the foot restraints were not necessary for safety. The Plaintiff argues, therefore, that his being restrained at the waist and feet, without shoes, and unsupervised in the hallway is arbitrary and conscience-shocking.5 The Plaintiff relies at least 5 At some points in the Plaintiff’s brief, the argument is made that the Rifton chair was used on various occasions. There is no evidence of use of restraints in the chair other than the 7 Case 2:09-cv-00691-WHA-WC Document 34 Filed 04/06/10 Page 8 of 16 in part on Jefferson v. Ysleta Independent School District, 817 F.2d 303 (5th Cir. 1987). In Jefferson, the Fifth Circuit concluded that tying a second-grade student to a chair for an entire school day and for a substantial portion of a second day with no suggested justification other than an instructional technique was constitutionally impermissible. Clearly, this case is distinguishable from Jefferson. The length of time during which D.D. was restrained, approximately ten minutes, was much shorter than nearly two school days, and the restraint was for purposes other than an instructional technique. The analysis by the Eleventh Circuit in Peterson is instructive in this case. In Peterson, an eighth-grade student attempted to leave the classroom contrary to the teacher’s instructions and the teacher barred the door with her arm. The student then made physical contact with the teacher in some manner, and the teacher choked the student, leaving some marks but no lasting injury. The student brought a claim for substantive due process denial of bodily integrity. On appeal, the student argued that there was a genuine issue of fact as to whether the teacher acted in self-defense or administered corporal punishment. The Eleventh Circuit reasoned that as either self-defense or corporal punishment, the teacher’s conduct was constitutionally permissible. Peterson, 504 F.3d at 1336. The court reasoned that justification for some corporal punishment was considerable, and the bodily injury was not serious. Id. The court also explained that there is both an objective and subjective component to substantive due process analysis, but that if the force is not excessive as a matter of law, and was a reasonable response to the student’s misconduct, then the subjective intent of the school official is unimportant. Id. at 1337 n.5. The court explained that to reach the constitutional standard, a plaintiff must show date at issue, however. 8 Case 2:09-cv-00691-WHA-WC Document 34 Filed 04/06/10 Page 9 of 16 that the school official intentionally used an amount of force that was obviously excessive and that the force presented a reasonably foreseeable risk of serious bodily injury. Id. at 1337. Excessiveness of force is analyzed considering the totality of the circumstances, including the need for the force, the relationship between the need and the amount administered, and the extent of injury inflicted. See id. Under an objective standard, under a totality of the circumstances, the court concluded that the use of force by the teacher in Peterson in choking the student who had used force against her was not obviously excessive. Id. In this case, Alford has explained that she was attempting to calm D.D. so that he would not continue his disruptive behavior, including kicking, and that she used restraints for safety. The Second Circuit, expounding on Supreme Court precedent, has identified as legitimate government ends in the school context student discipline, classroom control, or self-defense. See Johnson v. Newburgh Enlarged School Dist., 239 F.3d 246 (2d Cir. 2001); see also Peterson, 504 F.3d at 1336 (stating, "To us, it is unimportant whether the teacher either acted in self-defense or imposed corporal punishment...). Therefore, this court will apply the factors applicable in the corporal punishment context to this case, where the state interest was in classroom control and safety. See e.g., G.C. v. School Bd. of Seminole Co., 639 F. Supp. 2d 1295, 1305 & n. 15 (M.D. Fla. 2009) (applying corporal punishment factors even though restraints were arguably for safety). The facts in this case fall well short of facts found to constitute a substantive due process violation of excessive corporal punishment. For instance, in Kirkland ex rel. Jones v. Green Co. Bd., 347 F.3d 903, 904 (11th Cir. 2003), the court found a constitutional violation where a principal struck a student in the head, ribs, and back with a metal cane, leaving a knot on his 9 Case 2:09-cv-00691-WHA-WC Document 34 Filed 04/06/10 Page 10 of 16 head, and causing migraines. In Neal v. Fulton Co. Bd. of Educ., 229 F.3d 1069, 1075 (11th Cir. 2000), a high school coach's conduct rose to the level of a constitutional violation, where the coach intentionally struck a student with a metal weight lock, knocking the student's eye out of its socket, as a form of punishment for his involvement in a fight with another student. See also H.H. v. Moffett, 335 Fed. Appx. 306, 314 (4th Cir. 2009) (holding that restraint of a disabled child for hours while the teacher verbally abused her was a use of restraint so inspired by malice that it amounts to a brutal and inhumane abuse of official power). Applying an objective standard to the facts that D.D. was a young child who was receiving special education services, was restrained at both the waist and the feet, was shoeless, and was left alone in the hallway while restrained for a few minutes, and considering the totality of the circumstances including that D.D. had previously been disruptive, had engaged in kicking behaviors, that D.D. had accepted the option to sit in the Rifton chair, and that he did not sustain any physical injury as a result of the restraint, the court concludes that Alford’s actions were not excessive as a matter of law and were a reasonable response to D.D.’s behavior.6 Therefore, the court concludes that the facts, viewed in a light most favorable to the non-movant, did not shock the conscience in a constitutional sense. See e.g., G.C. v. School Bd. of Seminole Co., 639 F. Supp. 2d at1305 (concluding that teacher’s limited use of physical restraint of an autistic student for safety purposes which did not result in injury did not shock the conscience). Summary judgment is, therefore, due to be GRANTED as to the substantive due process claims in Counts I 6 Even if the corporal punishment factors are not applicable in the context of the legitimate state interests of classroom control and self-defense, Alford’s actions fall within the range of teacher conduct that is not conscience-shocking. See Peterson, 504 F.3d at 1336 n.4 (citing Lillard v. Shelby Co. Bd. of Educ., 76 F.3d 716, 725-26 (6th Cir. 1996) for the proposition that a single slap without justification does not shock the conscience). 10 Case 2:09-cv-00691-WHA-WC Document 34 Filed 04/06/10 Page 11 of 16 and II of the Complaint against Alford.7 The Plaintiff’s substantive due process claims against Cahalane, Moore, and the Board all arise from Alford’s actions, not from their own independent actions. No substantive due process violation having been established on the part of Alford, there can be no liability on the part of the other individual Defendants or the Board for a violation of substantive due process, regardless of what policy or custom may have been in place. See Collins v. City of Harker Heights, 503 U.S. 115, 123-24 (1992). Summary judgment is, therefore, due to be GRANTED as to all Defendants on the substantive due process claims for deprivation of liberty and bodily integrity in Counts I and II of the Complaint. 2. Procedural due process The Plaintiff also claims in Counts I and II of the Complaint that D.D. has a procedural due process right which was violated by the Defendants’ actions. It is, however, unclear from the Complaint what the Plaintiff’s theory is in support of these claims. In response to the Motion for Summary Judgment, the Plaintiff states that he had a right to notice and a hearing before his liberty and bodily integrity were deprived, pointing to the Clanton Elementary School Parent/Student Handbook which states that parents will be called to the school if a serious behavior issue occurs, and that there is a progression of disciplinary consequences for inappropriate behavior. The Plaintiff also argues that there is no form for notifying parents that a Rifton chair would be used as a disciplinary consequence. The court has been provided 7 Even if there were a question of fact which precluded summary judgment on the issue of the constitutional violation alleged, Alford and the individual Defendants would be entitled to qualified immunity, having not been given fair warning that use of a Rifton chair with restraints for a brief period of time which did not result in any injury is a violation of substantive due process. See Hope v. Pelzer, 536 U.S. 730, 741 (2002). 11 Case 2:09-cv-00691-WHA-WC Document 34 Filed 04/06/10 Page 12 of 16 evidence that subsequent to the incident in question, a letter was sent to parents regarding the use of the Rifton chair. The Plaintiff, therefore, appears to be arguing both that Board policy was not followed, and that there was no Board policy providing for notice and a hearing. As to the former contention, "the violation of a state statute mandating procedure is not the equivalent of a federal Constitutional violation." First Assembly of God of Naples, Florida, Inc. v. Collier County, Fla. 20 F.3d 419, 422 (11th Cir. 1994). Furthermore, when a deprivation occurs because of unauthorized acts of state employees, and not because of an official state procedure, "it is nearly impossible for the state to foresee such an event in order to provide a meaningful pre-deprivation hearing." Hellenic Amer. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir.1996). Even accepting that there is at least a question of fact in this case as to whether Alford acted outside of established law, the Plaintiff would need to demonstrate that any post-deprivation remedy for Alford’s actions was inadequate, which the Plaintiff has not done.8 See McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (stating, "only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation actionable under section 1983 arise."). Therefore, summary judgment is due to be GRANTED on the theory that D.D. was not provided procedural process because Alford failed to follow Board policy. As to the other procedural due process theory arguably advanced by the Plaintiff, another judge of this court has previously determined that no procedural due process right attaches to the use of corporal punishment in Alabama schools, relying on Ingraham v. Wright, 430 U.S. 651 (1977). See Hale v. Pringle, 562 F. Supp. 598 (M.D. Ala. 1983) (Thompson, J.). In Ingraham, 8 The Plaintiff apparently does not dispute, having failed to respond to the Defendants’ contention, that administrative IDEA remedies were not exhausted in this case. 12 Case 2:09-cv-00691-WHA-WC Document 34 Filed 04/06/10 Page 13 of 16 the Court concluded that although corporal punishment in public schools implicates a liberty interest, traditional common-law remedies protect against unjustified corporal punishment, so that the Due Process Clause does not require a notice or hearing in Florida public schools. Id. at 682. In Hale, the court applied Ingraham and concluded that the Due Process Clause does not require notice or a hearing prior to the imposition of corporal punishment in Alabama public schools. Hale, 562 F. Supp. at 601; see also Gaither v. Barron, 924 F. Supp. 134, 136 n.3 (M.D. Ala. 1996). This court recognizes that the Defendants in this case do not argue that they restrained D.D. as corporal punishment. The cases discussed above, however, persuasively establish that although a right to bodily integrity exists for students, competing state interests, and state policies against abusive corporal punishment, mean that procedural due process rights do not attach in every instance, even when a child is restrained, and pain is inflicted for punishment. See Ingraham, 430 U.S. at 674. Consistent with this analysis, the Fifth Circuit has explained that procedural due process rights are "circumscribed by the need for effective and often immediate action by school officials to maintain order and discipline," so that de minimus deprivations of liberty do not implicate procedural due process requirements. Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1080-81 (5th Cir. 1995) (citing Dunn v. Tyler Indep. Sch. Dist., 460 F.2d 137, 144 (5th Cir.1972)).9 In Hassan, a sixth grade student touring a juvenile detention center as part of a school field trip was detained in the center’s holding room for 50 minutes for being disruptive. The court 9 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. 13 Case 2:09-cv-00691-WHA-WC Document 34 Filed 04/06/10 Page 14 of 16 concluded that this de minimus deprivation of liberty did not implicate procedural due process guarantees. Id. at 1081. This court is persuaded to apply this reasoning by the Fifth Circuit, which is consistent with Eleventh Circuit, and Supreme Court, precedent. Alford’s actions to restrain D.D. are analogous to that in Hassan, as actions taken to maintain order. Alford’s actions in restraining D.D. to a chair while she moved him to the hallway, and while waiting for his mother whose arrival she anticipated within ten minutes, even when viewed in a light most favorable to the non-movant, are not a sufficient deprivation of liberty or bodily integrity so as to require advance notice and a hearing. The procedural due process claims alleged against all the Defendants arise from the actions of Alford. Therefore, the Plaintiff having failed to demonstrate a deprivation of federal procedural due process by Alford, summary judgment is due to be GRANTED as to all Defendants on the procedural due process claims in Counts I and II of the Complaint.10 B. IDEA The Defendants have moved for summary judgment on the Plaintiff’s IDEA claim on several bases, including that the Plaintiff failed to exhaust administrative remedies, and that the Plaintiff has now moved outside of Chilton County, so that no new IEP is necessary. The Plaintiff’s brief in response to the Motion for Summary Judgment does not address these grounds for summary judgment, nor refer to the IDEA claim. Accordingly, summary judgment is due to be GRANTED as to the IDEA claim in Count III of the Complaint. See Johnson v. Bd. of Regents, 263 F.3d 1234, 1264 (11th Cir. 2001) (stating, a party "cannot readily complain about the entry of a summary judgment order that did not consider an argument they chose not to 10 Alternatively, if there was a procedural due process violation, this right was not clearly established and the individual Defendants would be entitled to qualified immunity. 14 Case 2:09-cv-00691-WHA-WC Document 34 Filed 04/06/10 Page 15 of 16 develop for the district court at the time of the summary judgment motions."). State Law Claims The Plaintiff brings state law claims for outrageous conduct and assault and battery. Although the Defendants have moved for summary judgment on these claims, they have alternatively asked for this court to dismiss the state law claims for lack of jurisdiction. This court has supplemental jurisdiction over the state law claims, so the claims are not due to be dismissed for lack of jurisdiction. See 28 U.S.C. § 1367. Having concluded that summary judgment is due to be GRANTED as to all federal claims over which this court has original jurisdiction, however, the court declines to exercise supplemental jurisdiction over the state law claims in Counts IV and V of the Complaint, pursuant to 28 U.S.C. § 1367(c)(3). See Mergens v. Dreyfoos, 166 F.3d 1114, 1119 (11th Cir. 1999) (noting that in the Eleventh Circuit courts are encouraged to dismiss state law claims if the federal claims are dismissed prior to trial). The state law claims will, therefore, be dismissed without prejudice, and the court need not address the defenses to those claims asserted in the Motion for Summary Judgment. V. CONCLUSION This case involves a young child whose mother disapproved of the manner in which he was provided educational services by his public school. In evaluating the facts of this case, the court has not decided, or even addressed, whether the teacher’s actions were appropriate under state tort law. What the court has decided is that objectively, viewing the totality of the circumstances, the facts of this case, when viewed in a light most favorable to the non-movant, do not shock the conscience in a constitutional sense, and therefore do not establish a deprivation of the substantive due process rights of liberty or bodily integrity. This conclusion 15 Case 2:09-cv-00691-WHA-WC Document 34 Filed 04/06/10 Page 16 of 16 is consistent with "the Supreme Court's mandate to remain vigilant in policing the boundaries separating tort law from constitutional law." Nix v. Franklin County School Dist. 311 F.3d 1373, 1379 (11th Cir. 2002). The teacher’s actions also did not rise to a level such that procedural due process rights were implicated. The Plaintiff having failed to establish a violation of federal law, for the reasons discussed, the Motion for Summary Judgment is GRANTED as to the federal claims, and the court declines to exercise supplemental jurisdiction over the state law claims, dismissing them without prejudice. A separate Judgment will be entered in accordance with this Memorandum Opinion and Order. Done this 6th day of April, 2010./s/W. Harold Albritton W. HAROLD ALBRITTON SENIOR UNITED STATES DISTRICT JUDGE 16

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1
07/23/2009
COMPLAINT against Chilton County Board of Education, Keith Moore, Benita Cahalane, Heather Alford (Filing fee $350.00 receipt number 4602010624), filed by D. D.
07/23/2009
DEMAND for Trial by Jury by D. D. (dmn) (This document has no pdf attached, see Doc. 1 for pdf.) (Text entry; no document attached.)
2
07/23/2009
Summons Issued as to Chilton County Board of Education, Keith Moore, Benita Cahalane, Heather Alford and returned to counsel for personal service.
3
08/18/2009
MOTION to Dismiss Defendants Chilton County Board of Education, Keith Moore and Benita Cahalane's Motion to Dismiss by Chilton County Board of Education, Keith Moore, Benita Cahalane.
4
08/18/2009
BRIEF/MEMORANDUM in Support re 3 MOTION to Dismiss Defendants Chilton County Board of Education, Keith Moore and Benita Cahalane's Motion to Dismiss Brief in Support of Motion to Dismiss filed by Chilton County Board of Education, Keith Moore, Benita Cahalane.
5
08/18/2009
NOTICE of Appearance by Katherine Charlotte Hortberg on behalf of Chilton County Board of Education, Keith Moore, Benita Cahalane
6
08/19/2009
ORDER directing Plaintiff TO SHOW CAUSE as to why the 3 Motion to Dismiss filed by Benita Cahalane, Keith Moore, and Chilton County Board of Education should not be granted. Show Cause Response due by 9/9/2009. The Defendants shall have until 9/16/2009, to file any reply they wish to file. Motion Submission Deadline set for 9/16/2009 without oral hearing. Signed by Honorable W. Harold Albritton, III on 8/19/2009.
7
08/25/2009
SUMMONS Returned Executed by D. D. Chilton County Board of Education served on 7/29/2009, answer due 8/18/2009; Keith Moore served on 7/29/2009, answer due 8/18/2009; Benita Cahalane served on 7/29/2009, answer due 8/18/2009; Heather Alford served on 8/25/2009, answer due 9/14/2009. (dmn) [Modified on 8/27/2009 to reflect that Heather Alford was served on 8/25/2009 instead of 7/29/2009 as originally docketed. Also, the answer deadline for Heather Alford has been reset to 9/14/2009.-DMN]
08/27/2009
Reset Answer Deadline for Heather Alford to 9/14/2009. The wrong service date was entered in Doc. 7. Heather Alford was served on 8/25/2009. (Text entry; no document attached.)
08/27/2009
NOTICE of Docket Text Correction re 7 Summons Returned Executed. The referenced docket entry was modified to reflect that Heather Alford was served on 8/25/2009 instead of 7/29/2009 as originally docketed. Also, the answer deadline for Heather Alford has been reset to 9/14/2009. (Text entry; no document attached.)
8
09/09/2009
RESPONSE in Opposition re 3 MOTION to Dismiss Defendants Chilton County Board of Education, Keith Moore and Benita Cahalane's Motion to Dismiss filed by D. D.
9
09/10/2009
Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to Plaintiff D. D. Corporate Disclosures due by 9/24/2009.
10
09/10/2009
Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to Chilton County Board of Education, Keith Moore, and Benita Cahalane. Corporate Disclosures due by 9/24/2009.
1
https://ecf.almd.uscourts.gov/doc1/01711289841" onClick="goDLS{{'/doc1/01711289841','41327','44','','2','1','',''}};">1</a> Standing Order and Sample Format)
1 Attachment
11
09/10/2009
Corporate/Conflict Disclosure Statement by Chilton County Board of Education.
12
09/10/2009
Corporate/Conflict Disclosure Statement by Keith Moore.
13
09/10/2009
Corporate/Conflict Disclosure Statement by Benita Cahalane.
14
09/14/2009
NOTICE of Appearance by Katherine Charlotte Hortberg on behalf of Chilton County Board of Education, Keith Moore, Benita Cahalane, Heather Alford
15
09/14/2009
[WRONG EVENT CODE USED WHEN ORIGINALLY FILED. PLEASE DISREGARD THIS DOCKET ENTRY. SEE CORRECTED DOCKET ENTRY.] RESPONSE to Motion re 3 MOTION to Dismiss Defendants Chilton County Board of Education, Keith Moore and Benita Cahalane's Motion to Dismiss Motion to Adopt Motion to Dismiss filed by Heather Alford. Modified on 9/15/2009
16
09/14/2009
Corporate/Conflict Disclosure Statement by Heather Alford.
17
09/14/2009
NOTICE of Appearance by Mark Seymour Boardman on behalf of Heather Alford
09/14/2009
MOTION by Heather Alford to Adopt Defendants Chilton County Board of Education, Keith Moore, and Benita Cahalane's 3 MOTION to Dismiss. (dmn) (This document has no pdf attached, see Doc. 15 for pdf. The wrong event code was used when originally filed.) (Text entry; no document attached.)
09/15/2009
NOTICE of Docket Text Correction re 15 Response to Motion. The referenced pleading is not a response, it is a motion to adopt. The wrong event code was used when originally filed. Please disregard the entry of the referenced pleading on the docket and see corrected docket entry. (Text entry; no document attached.)
18
09/16/2009
REPLY to Response to Motion re 3 MOTION to Dismiss Defendants Chilton County Board of Education, Keith Moore and Benita Cahalane's Motion to Dismiss filed by Chilton County Board of Education, Keith Moore, Benita Cahalane, Heather Alford.
19
09/17/2009
MEMORANDUM OPINION AND ORDER: This cause is before the court on a 3 Motion to Dismiss, filed by Defendants, Chilton County Board of Education, Keith Moore, and Benita Cahalane. Defendant Heather Alford also moves to adopt the motion, see Doc. 15, and that Motion is GRANTED. The 3 Motion to Dismiss is due to be GRANTED in part and DENIED in part as follows: 1. The Motion to Dismiss is GRANTED as to the IDEA claims against Keith Moore, Benita Cahalane, and Heather Alford individually, and as to the outrageous conduct claim against the Chilton County Board of Education. 2. The Motion to Dismiss is DENIED in all other respects. The case will proceed on the Fourteenth Amendment claims in Counts I and II against all Defendants, the IDEA claim in Count III against the Chilton County Board of Education, the assault and battery claim in Count IV, and the outrageous conduct claim in Count V against the individual defendants. Signed by Honorable W. Harold Albritton, III on 9/17/2009.
20
09/17/2009
RULE 26(f) ORDER directing the parties to file the Rule 26(f) report containing the proposed discovery plan as further set out in the order. Rule 26 Meeting Report due by 10/8/2009. Signed by Honorable W. Harold Albritton, III on 9/17/2009.
21
09/24/2009
Corporate/Conflict Disclosure Statement by D. D. re 9 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement.
22
09/28/2009
ANSWER to 1 Complaint by Chilton County Board of Education, Keith Moore, Benita Cahalane, Heather Alford.
23
09/30/2009
REPORT of Rule 26(f) Planning Meeting.
24
09/30/2009
UNIFORM SCHEDULING ORDER: Final Pretrial Conference set for 5/27/2010 in Montgomery, AL before Honorable W. Harold Albritton III. Jury Trial set for 6/21/2010 trial term in Montgomery, AL before Honorable W. Harold Albritton III. Amended Pleadings due by 1/1/2010. Discovery due by 1/29/2010. Motions due by 2/26/2010. Mediation Notice due by 3/24/2010. Signed by Honorable W. Harold Albritton, III on 9/30/2009. Copies furnished to YG, HC, EB.
25
10/15/2009
[STRICKEN FROM THE RECORD. THIS PLEADING IS DISCOVERY AND IS NOT ALLOWED PURSUANT TO LOCAL RULE 5.1 NON-FILING OF CIVIL DISCOVERY.] RULE 26 DISCLOSURES by D. D. [Modified on 10/16/2009 to reflect the actual title of pleading.-DMN]
26
10/16/2009
NOTICE of Non-Compliance re 25 Rule 26 Disclosures. The referenced pleading is discovery and is not allowed pursuant to Local Rule 5.1 NON-FILING OF CIVIL DISCOVERY. The referenced pleading is hereby STRICKEN from the record and the parties are instructed to disregard the entry of this pleading on the court's docket.
27
02/26/2010
MOTION for Summary Judgment by Chilton County Board of Education, Keith Moore, Benita Cahalane, Heather Alford.
28
02/26/2010
BRIEF/MEMORANDUM in Support 27 Motion for Summary Judgment filed by Chilton County Board of Education, Keith Moore, Benita Cahalane, Heather Alford.
1
Exhibit Deposition of Cathi Davis (RESTRICTED PRIVACY ISSUE)
2
Exhibit Deposition of Keith Moore
3
Exhibit Deposition of Benita Cahalane
4
Exhibit Deposition of Heather Alford
5
Affidavit of Keith Moore
6
Affidavit of Benita Cahalane, # 7 Affidavit of Heather Alford) [Modified on 2/26/2010 to reflect that Exhibit A is RESTRICTED PRIVACY ISSUE due to personal information needs to be redacted pursuant to the E-Government Act rules and to create a link to Doc.
8
Redacted Exhibit Deposition of Cathi Davis) (dmn). Modified on 3/1/2010 (dmn). (Additional attachment(s) added on 3/10/2010 to replace the Affidavit of Heather Alford due to a page was missing in the original pdf: #
9
https://ecf.almd.uscourts.gov/doc1/01711389301" onClick="goDLS{{'/doc1/01711389301','41327','98','','2','1','',''}};">9</a> Affidavit of Heather Alford). Modified on 3/10/2010
27
https://ecf.almd.uscourts.gov/doc1/01711381822" onClick="goDLS{{'/doc1/01711381822','41327','96','','2','1','',''}};">27</a>.-DMN] (Additional attachment(s) added on 3/1/2010 to redact personal information contained in original filing pursuant to the E-Government act rules: #
9 Attachments
29
02/26/2010
ORDER re defendants' 27 MOTION for Summary Judgment. Motion Submission Deadline set for 3/26/2010 without oral argument. Affidavits, briefs, depositions, or other documents which Plaintiff wishes to file in opposition to said motion shall be filed on or before 3/19/2010. Defendants shall have until 3/26/2010 to file any replies. Signed by Honorable W. Harold Albritton, III on 2/26/2010.
30
03/10/2010
Notice of Mediation and Settlement Conference by all parties
31
03/10/2010
NOTICE of Correction re 28 BRIEF/MEMORANDUM in Support. This notice is docketed to enter the corrected pdf of the Affidavit of Heather Alford into the record as an attachment to the referenced document. The original affidavit was missing a page.
1
https://ecf.almd.uscourts.gov/doc1/01711389336" onClick="goDLS{{'/doc1/01711389336','41327','106','','2','1','',''}};">1</a> Corrected Affidavit of Heather Alford)
1 Attachment
32
03/19/2010
RESPONSE in Opposition to 27 MOTION for Summary Judgment and Brief in Support Thereof filed by D. D.
1
Exhibit List
2
Exhibit 1 - Affidavit of Cathi Davis
3
Exhibit 1A - Parent/Student Handbook
4
Exhibit 1B - Pals letter
5
Exhibit 1C - Resolution meeting minutes
6
https://ecf.almd.uscourts.gov/doc1/01711395684" onClick="goDLS{{'/doc1/01711395684','41327','109','','2','1','',''}};">6</a> Exhibit 2 - Davis Interrogatory response)
6 Attachments
33
03/26/2010
REPLY to Response to Motion re 27 MOTION for Summary Judgment filed by Chilton County Board of Education, Keith Moore, Benita Cahalane, Heather Alford.
34
04/06/2010
MEMORANDUM OPINION AND ORDER: The Plaintiff having failed to establish a violation of federal law, for the reasons discussed, the 27 Motion for Summary Judgment is GRANTED as to the federal claims, and the court declines to exercise supplemental jurisdiction over the state law claims, dismissing them without prejudice. A separate Judgment will be entered in accordance with this Memorandum Opinion and Order. Signed by Honorable W. Harold Albritton, III on 4/6/2010.
35
04/06/2010
FINAL JUDGMENT: In accordance with the Memorandum Opinion and Order entered on this day, judgment is entered in favor of the Defendants, Chilton County Board of Education, Keith Moore, Benita Cahalane, and Heather Alford, and against the Plaintiff, on the federal claims. The state law claims are dismissed without prejudice. Costs are taxed against the Plaintiff. Signed by Honorable W. Harold Albritton, III on 4/6/2010. Copies furnished to YG, HC, EB. [Modified on 4/6/2010 to reflect that the following deadlines have been terminated: Final Pretrial Conference set for 5/27/2010 and Jury Trial set for 6/21/2010.-DMN]
1
https://ecf.almd.uscourts.gov/doc1/01711407031" onClick="goDLS{{'/doc1/01711407031','41327','117','','2','1','',''}};">1</a> Civil Appeals Checklist)
1 Attachment
36
04/15/2010
BILL OF COSTS by Chilton County Board of Education, Keith Moore, Benita Cahalane, Heather Alford.
1
Affidavit Affidavit of Katherine C. Hortberg
1 Attachment
37
04/16/2010
Costs Taxed in amount of $ 2,474.92 against Cathy Davis.
38
05/17/2010
CERTIFICATION of Judgment
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