United States District Court, E.D. North Carolina, Eastern Division
Z.G., by and through his mother and next friend, C.G., C.G., on behalf of herself, and J.G., on behalf of himself, Plaintiffs,
PAMLICO COUNTY PUBLIC SCHOOLS BOARD OF EDUCATION, LISA JACKSON, Superintendent, in her official capacity, CHRIS DAVIS, Pamlico County Sheriff, in his official capacity, and DEPUTY BAILEY, in his official capacity, Defendants.
C. DEVER III Chief United States District Judge.
November 17, 2015, Z.G., a minor child acting by and through
his mother C.G., Z.G.'s mother C.G., and Z.G.' s
father J.G., (collectively, "plaintiffs") filed a
complaint against the Pamlico County Public Schools Board of
Education ("the Board") and Superintendent Lisa
Jackson ("Jackson") in her official capacity [D.E.
1 ].On April 29, 2016, plaintiffs filed their
first amended complaint, which added Pamlico County Sheriff
Chris Davis ("Davis") and a "Deputy
Bailey" as defendants in their official capacities,
along with the Board and Jackson (collectively,
"defendants") [D.E. 25]. The first amended
complaint alleges that defendants are liable to plaintiffs
under the Individuals with Disabilities Education Improvement
Act, 20 U.S.C. § 1400, et seq.
("IDEA"), Section 504 of the Rehabilitation Act, 29
U.S.C. § 794, et seq. ("section 504"), the
Americans with Disabilities Act, 42 U.S.C. § 12101, et
seq. ("ADA"), 42 U.S.C. § 1983 ("section
1983"), and state tort law.
13, 2016, the Board and Jackson moved to dismiss the first
amended complaint for lack of subject-matter jurisdiction,
lack of personal jurisdiction, and failure to state a claim
[D.E. 28] and filed a memorandum in support [D.E. 29]. On
June 2, 2016, plaintiffs responded in opposition
[D.E. 34]. On June 13, 2016, the Board and Jackson replied
[D.E. 35]. On June 20, 2016, Davis moved to dismiss the first
amended complaint [D.E. 36] and filed a memorandum in support
[D.E. 37]. On June 28, 2016, plaintiffs responded to the
Board and Jackson's reply [D.E. 38].
6, 2016, the Board and Jackson moved to strike
plaintiffs' response to their reply [D.E. 39] and filed a
memorandum in support [D.E. 40]. On July 7, 2016, plaintiffs
moved for leave to amend their complaint a second time [D.E.
41 ]. On July 11, 2016, Davis responded in opposition to
plaintiffs' motion to file a second amended complaint
[D.E. 42]. On July 26, 2016, plaintiffs responded in
opposition to the motion to strike their response brief [D.E.
43]. On July 28, 2016, the Board and Jackson responded in
opposition to plaintiffs' motion to file a second amended
complaint [D.E. 44], On August 9, 2016, the Board and Jackson
replied to plaintiffs' response regarding the motion to
strike [D.E. 45].
explained below, the court grants the Board and Jackson's
motion to strike, denies plaintiffs' motion to amend as
futile, and grants defendants' motions to dismiss the
first amended complaint.
a six-year-old boy who resides with his mother C.G., his
father J.G., and two siblings in Merritt, North Carolina. Am.
Compl. [D.E. 25] ¶¶ 4-6, 12. Z.G. has been
diagnosed with numerous conditions that affect his
participation in educational activities, including Attention
Deficit Hyperactivity Disorder and Autism Spectrum Disorder.
Id. ¶ 15.
County Public Schools Board of Education ("the
Board") is an agency of the State of North Carolina that
operates the public schools in Pamlico County, North
Carolina. Id. ¶ 7. The Board operates programs
that receive federal financial assistance. Id.
¶ 9. Jackson is the Superintendent of Pamlico County
Public Schools, and resides in Pamlico County, North
Carolina. Mi ¶ 8. Davis is the Sheriff of Pamlico County
and leads the Pamlico County Sheriffs Office, which employs
"Deputy Bailey." Id. ¶ 10.
January 2015, Z.G. enrolled in Pamlico County Primary School
("PCPS") after "a local public charter school
[was] ill equipped to meet his special educational
needs." Id. ¶ 13. When Z.G. began
attending PCPS, J.G. told the school's principal,
Principal Potter, about "educational and disciplinary
issues Z.G. had while attending the public charter
school." Id. ¶ 18. Principal Potter said
she would help identify Z.G.'s eligibility for programs
under Section 504 of the Rehabilitation Act. Id.
¶ 19. Principal Potter told J.G. that Z.G. could ride
the "Exceptional Children's" bus, a school bus
designated for students with special needs, and said that
Z.G.' s parents would have to pay for a psychological
evaluation to demonstrate Z.G.'s eligibility for special
educational services. Id. ¶¶ 20-21, 38.
continued to attend kindergarten at PCPS.
Id.¶23. Throughout the year, Z.G. "would
have incidents where his behaviors in the classroom"
required Principal Potter to remove Z.G. from class.
Id. Z.G. would spend most days in Principal
Potter's office where he received little education.
Id. ¶¶ 23-25.
point before April 2, 2015, C.G. "signed a referral form
for special education services and provided it to the
school." Id. ¶ 35. On April 2, 2015, Julie
Rowe, the psychologist Z.G.'s parents retained to
evaluate Z.G.'s eligibility for special educational
services, sent a "preliminary report" to PCPS,
recommending that the school "provide Z.G. with a
'504 plan' to address Z.G.'s 'behavioral
pattern of having outburst[s] to go home.'" Id.,
¶ 28. Julie Rowe's report stated that Z.G. presented
numerous symptoms "commonly seen in Aspbergers children,
" and recommended that Z.G. have access to an "ECP
room as a way to manage his outbursts but also an alternative
classroom placement if the activities of the regular
classroom ... are just too over stimulating for him."
Id. ¶ 29-30. Around the same time that Julie
Rowe sent her preliminary report, Z.G.' s classroom
teacher submitted a "Section 504 Teacher Referral Form,
" noting that Z.G. was intelligent but repeatedly
engaged in disruptive behaviors that "impede[d] his
ability to learn." Id. ¶¶ 31-34
(quotation omitted). Despite the reports from Z.G.'s
parents, teacher, and Julie Rowe, no one at PCPS ever held a
formal meeting to identify or evaluate Z.G.'s eligibility
for special educational services. Id. ¶ 36.
summer of 2015, Crystal Dixon replaced Principal Potter as
the principal. See id ¶ 37. On August 5, 2015, Principal
Dixon emailed C.G. to inform her that the school did not have
any documentation showing Z.G.'s need to ride the
Exceptional Children's bus. Id. ¶ 38. While
Z.G. was apparently allowed to ride the Exceptional
Children's bus that year, C.G. learned that Principal
Dixon did not know that Z.G. had special educational needs.
Id. ¶ 39.
24, 2015, was the first day of the new school year at PCPS.
Id¶40. At 9:16 am, Principal Dixon emailed C.G. to tell
her that Z.G. was "hysterical and screaming in the
classroom, " and that the teachers and staff could not
calm him. M. At 9:33 am, Principal Dixon emailed C.G. a
picture of Z.G. asleep on her office floor. Id.
¶ 41. At 1:49 pm, Principal Dixon called C.G. and told
her to pick up Z.G. because "he had become unruly."
Id. ¶ 42. On August 25, 2015, at 11:02 am,
Principal Dixon again called C.G. and told her to pick up
Z.G. Id. ¶ 44.
August 26, 2015, at 11:10 am, Principal Dixon and Z.G. 's
classroom teacher again called C.G. to pick up Z.G.
Id. at ¶ 46. When C.G. arrived, she learned
that on August 24, 25, and 26, 2015, Z.G. had run into the
parking lot, apparently attempting to flee the school.
Id. ¶ 47. Principal Dixon believed that Z.G.
"was trying to harm himself by running out into the
school parking lot, " and placed Z.G. in
"'therapeudic' holds" each time he tried to
run. Id. ¶ 48. C.G. also learned during this
conversation that no one had prepared a "504 Plan"
for Z.G. Id. ¶ 50. Superintendent Jackson
"offer[ed] to drive C.G. and Z.G. to the
hospital and C.G. decline[d] that invitation."
Id. at ¶ 49. A Pamlico County Sheriffs deputy
then arrived and "forced Z.G. into the rear of the
patrol car" and took him to a hospital in New Bern
without C.G.'s consent. Id. ¶¶ 52-53.
hospital, the New Bern Police Department involuntarily
committed Z.G., the hospital refused to release Z.G. to C.G.,
and a physician gave Z.G. Ativan without C.G.'s consent.
Id. ¶¶ 54-55. Z.G. remained at the
hospital for two days "against his and his mother's
will." Id. ¶ 56. On August 27, 2015, a
Craven County Sheriffs deputy took Z.G. to a hospital in
Raleigh, refused C.G.'s request to ride along, and did
not put Z.G. in a booster seat. M. ¶¶ 57-58. After
C.G. called the Craven County Sheriff to complain, Z.G. was
placed in a booster seat and allowed to ride with C.G. in a
deputy's vehicle, although Z.G. "complained of
headaches and vomit[ed] several times" during the drive.
M. ¶¶ 59-60. On August 28, 2015, a physician at the
Raleigh hospital diagnosed Z.G. as autistic, and stated that
Z.G. "did not need to be involuntarily committed."
Id. ¶ 61. On September 2, 2015, Jackson told
C.G. that Z.G. could not return to school "until he
received a risk assessment." Id. ¶
September 4, 2015, a meeting was held to discuss Z.G.'s
section 504 Accommodation Plan ("504 Plan") and his
initial Individualized Education Program ("IEP").
Id. ¶ 68; see 20 U.S.C. § 1414(d)
(requiring schools to prepare a written IEP for each disabled
student, describing the course of the student's education
and accommodations of the student's disabilities). At the
meeting, Jackson told C.G. "that Z.G. cannot return to
school until a new risk assessment is completed because the
one from [the Raleigh hospital] says that Z.G. is at
'moderate risk' of harming himself."
Id. ¶ 68. In the meantime, Z.G. stayed home.
Id. ¶ 69. The school developed a 504 Plan that
did not identify Z.G. as having Autism or an Autism Spectrum
Disorder. See Id. ¶ 70. The 504 Plan provided
that Z.G. would have the support of a teacher's assistant
all day, would be allowed to remove himself to a
"Sensory Choice" room to avoid over stimulation,
would be shown a calming review of his daily schedule each
day with his teacher, would be excused from regular testing,
and would be given extended time and a separate room for
testing. Id. ¶ 71.
September 8, 2015, a pediatric psychiatrist that C.G. and
J.G. retained completed a risk assessment for Z.G. and found
that Z.G. presented "little risk to himself or
others." Id. ¶ 72. Z.G. was not allowed to
return to regular activities right away, however. He could
return to school only after regular school hours, at which
time he would meet with his teacher. Id. ¶ 73.
An unnamed person told J.G. that Z.G. would not be able to
return during the regular school day until Jackson had spoken
to the doctor at the Raleigh hospital who had suggested that
Z.G. posed a risk of harming himself. Id. On
September 9, 2015, Jackson emailed C.G. to say that Z.G.
"should not be allowed to attend school" until he
had several positive meetings with his teacher after school.
Id. ¶ 74.
September 10, 2015, Z.G. came to the school for an evaluation
by Julie Rowe. Id. ¶ 78. Shortly after J.G.
left Z.G., an unnamed person called C.G. and J.G. and told
them to pick up Z.G. "because he was 'out of
control.'" Id. Later that day, and again on
September 11, 2015, Jackson and Z.G.'s parents met to
amend Z.G.'s 504 Plan. Id. ¶¶ 79-80.
At the meeting, Jackson said she lacked sufficient
information to determine whether Z.G. was eligible for
special educational services under the IDEA. Id.
¶ 80. The amended 504 Plan required "maximum
supervision" for Z.G. and provided that a school
resource officer would be called if Z.G.'s behavior
escalated. Id. ¶ 81.
September 11, 2015, PCPS celebrated Grandparent's Day,
but ZG was excluded from Grandparent's Day activities.
Id. ¶ 82-83.
September 14, 2015, the Exceptional Children's bus driver
did not allow Z.G. to sit with his siblings, who normally
rode with Z.G. to calm him. Id. at ¶ 86. The
bus driver allegedly did so to "intentionally trigger
an anxiety attack, " and removed Z.G. and his siblings
from the bus. Id. ¶ 88. Z.G.'s parents
picked up the three children from the school. Id.
September 15, 2015, Z.G. was disciplined for "talking
loudly in the hallway after being told to be quiet."
Id. ¶ 89. The incident escalated, and Z.G.
again attempted to flee the school. Id. ¶ 90.
Principal Dixon and a teacher's assistant managed to
corner Z.G. before he could escape the building. Id.
¶ 91. "Z.G. threatened to 'slap' Principal
Dixon and allegedly threw a wooden stick at" the
teacher's assistant. Id. A school resource
responded to a call and detained Z.G. Id.
¶¶ 89, 91. Z.G. was suspended for two days.
Id. ¶ 92. On September 18, 2015, Z.G. was
allowed to return, but was required to spend the school day
in the Sensory Choice room, away from other students.
Id. ¶¶ 92-93, 95.
November 10, 2015, C.G. observed bruises on Z.G.'s torso.
Id. ¶ 96. Z.G. said "Mr. King" had
pushed him. Id. ¶ 97. C.G. took Z.G. to a
physician, who treated Z.G.'s injuries and suggested that
they were consistent with abuse. Id. ¶¶
98-99. Outside of C.G.'s presence, Z.G. told the
physician that "Mr. King had hurt him in the past, but
Mr. Greene had hurt [him] recently." Id. ¶