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Z.G. v. Pamlico County Public Schools Board of Education

United States District Court, E.D. North Carolina, Eastern Division

February 3, 2017

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,
v.
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.

          ORDER

          JAMES C. DEVER III Chief United States District Judge.

         On 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 ].[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.

         On May 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].

         On July 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].

         As 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.

         I.

         Z.G. is 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.

         Pamlico 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.

         In 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.

         Z.G. 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.

         At some 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.

         In the 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.

         August 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.

         On 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.

         At the 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.66.

         On 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.

         On 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.

         On 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.

         On September 11, 2015, PCPS celebrated Grandparent's Day, but ZG was excluded from Grandparent's Day activities. Id. ¶ 82-83.

         On 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.

         On 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.

         On 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. ΒΆ 100. ...


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