OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS AND/OR FOR SUMMARY JUDGMENT (Dkts. 123, 127, 177, 179,184,190,192)
I. INTRODUCTION
In this civil rights case, Plaintiff Lauren Gohl, as next friend of her son J.G., alleges that Defendants violated J.G.’s rights under the Fourth and Fourteenth Amendments to the United States Constitution, the Americans with Disabilities Act, the Rehabilitation Act, and under state law. This matter is before the Court on Defendants’ motions to dismiss and/or for summary judgment.
For the reasons explained fully below, the Court finds that Defendants are entitled to summary judgment on Plaintiffs federal claims and, therefore, dismisses those claims with prejudice. Because the dismissal of these federal claims means that this case no longer retains a federal character, the Court dismisses Plaintiffs state-law claims without prejudice and denies those portions of Defendants’ motions challenging the state-law claims without prejudice.
II. BACKGROUND
During the 2011-2012 school year, Livonia Public Schools (“LPS”) operated the Moderately Cognitive Impairment Program (“MoCI program”) on behalf of the Wayne, County Regional Educational Service Agency. The purpose of the MoCI program was to provide educational and therapeutic services to Wayne County special-education students between preschool and age 26.
During that school year, J.G. was a three-year-old student in the Webster MoCI program. According to the complaint, J.G. was born with hydrocephalus and, as a result of numerous brain surgeries, had a ventricular peritoneal brain shunt implanted in his head behind his right ear to drain excess cerebrospinal fluid from his brain into his stomach. Second Am. Compl. ¶ 18 (Dkt. 78); Gohl Dep.
On October 24, 2011, Defendant Shellie Moore, the principal at Webster, was approached by Defendant Elizabeth Santer, the MoCI program specialist, who expressed concerns that some staff members had shared with Santer regarding Turb-iak’s classroom behavior. See Moore Dep. at 94-95, 99 (Dkt. 184-4). Following this interaction, Moore spoke with other staff members, including Defendants Tracey Crews, Megan Sprow, Candy Sokol, and Carol DeBeaudry. Id. at 646-649. Moore then compiled the information she had received from each staff member into a time-line of alleged events. See Moore Timeline (Dkt. 129-11).
The timeline indicates that staff members told Moore about Turbiak being “harsh with children, holding their faces or chins tightly and yelling in their faces,” using “too much force [when] pushing on children’s shoulders” while putting them in time-out, and treating children “roughly in the [classroom].” Id. at 2 (cm/ecf page). One staff member described Turbiak’s treatment of the students as “gruff and abrupt,” noting one incident in which Turbiak force-fed a student cereal and the student was gagging and crying. Id. This same staff member also noted that Turb-iak would lift students off “the floor by one arm and that there was the potential to dislocate a small shoulder.” Id. Moore believes that she provided a copy of this timeline to Defendant Cynthia DeMan, the director of personnel for LPS, on November 1, 2011. Moore Dep. at 130-182.
A few days after her meeting with San-ter, Moore contacted DeMan regarding these issues and sought advice on how to handle the matter. DeMan Dep. at 81 (Dkt. 123-5). During this conversation, Moore informed DeMan that “a few staff members. . .had come to [Moore] and continued to say that Sharon Turbiak’s classroom was loud and that Sharon was being rude and that Sharon was intimidating [the adult staff members].” Id. at 82.
On November 2, 2011, DeMan met with Turbiak, along with Turbiak’s union representative and Dorothy Chomicz, a co-director of human resources for LPS. See DeMan Dep. at 172-173. According to De-Man, this conversation focused mainly on the interactions between Turbiak and other staff members. Id. at 173. At the end of this meeting, DeMan and Chomicz sent Turbiak home for a couple of days. Id.
DeMan also wrote a memorandum to Turbiak, dated November 4, 2011, regarding appropriate behavior in the classroom and staff interactions. Id.; 11/4/2011 De-Man Memo (Dkt. 123-8). That memorandum stated that DeMan was “concerned about some of the interactions [Turbiak had] had with ancillary staff and [her] interactions with [her] students.” 11/4/2011 DeMan Memo at 2 (cm/ecf page). DeMan acknowledged that Turbiak was “forthright when [she] described the classroom behaviors of [her] students, [her] interactions with them and their families and with the support staff.” Id. In recognizing that teaching may be frustrating and exhausting, DeMan wrote that “there is never an excuse for any teacher, especially an experienced teacher as [Turbiak], to lapse into inappropriate behaviors with either staff or students.” Id. To remedy this situation, DeMan expected Turbiak to, among other things, “[m]aintain professional behaviors with students and with staff,” and “[u]tilize [her] consult time opportunities to discuss
Following the November meeting with Turbiak, some four months passed without any further reported incidents. Then, on March 5, 2012, Defendant Diane Sloboda, an LPS social worker providing professional services to the MoCI program classroom, gave Moore a verbal and written report of an incident that Sloboda witnessed that day involving Turbiak and J.G. According to her report, Sloboda entered the classroom to look for the LPS psychologist. See Sloboda Report at 2 (cm/ecf page) (Dkt. 123-9). Sloboda then observed Turbiak “grab” J.G. “by the top of his head and jerk it back quite aggressively” before yelling, in close proximity to his face, “you need to listen.” Id. Sloboda noted that a paraprofessional was present in the room when this incident occurred, but Sloboda did not know whether that paraprofessional witnessed the event. Id.
After receiving Sloboda’s report, Moore called either Chomicz or DeMan to report the incident and was instructed to “[s]end [Turbiak] over.” DeMan Dep. at 185-186. DeMan and Chomicz then met with Turbiak and Turbiak’s union representative later that afternoon. See id. at 190-191. According to DeMan, Turbiak denied the allegations of grabbing J.G.’s head and yelling in his face. Id. at 193. Rather, Turbiak informed DeMan that she put her hand on the back of J.G.’s head to keep it from bouncing around while redirecting his attention. Id. After hearing Turbiak’s version of events, Chomicz sent Turbiak back to the classroom. See id. at 198.
On April 2, 2012, DeMan and Chomicz met again with Turbiak. DeMan prepared a memorandum reflecting the substance of the meeting. See 4/23/2012 DeMan Memo (Dkt. 123-12). In that memorandum, De-Man wrote that they had discussed the recent activity in Turbiak’s classroom that had been reported to DeMan’s office. Id. at 2 (cm/ecf page). DeMan further noted that “it appears that additional investigation will be necessary to determine if [Turbiak had] acted in accordance with [the guidelines addressed in the 11/4/2011 Memo] and whether [Turbiak had] engaged in other inappropriate actions or omissions.” Id.
DeMan then turned the matter over to Mark Schultz, the administrator of employee relations and public safety for LPS, as “an investigation involving a hostile work environment.” DeMan Dep. at 311, 328. Schultz conducted an investigation and issued a report concerning Turbiak’s alleged behavior, which included the March 5 incident involving J.G. See 4/23/2012 Schultz Report at 23 (cm/ecf page) (Dkt. 129-19) (providing both Slobo-da’s and Turbiak’s accounts of the March 5 incident).
On November 26, 2012, Lauren Gohl, as next friend of her son J.G., filed this lawsuit, alleging violations of the Fourth and Fourteenth Amendments to the United States Constitution, the Americans with Disabilities Act, the Rehabilitation Act, and asserting state-law claims.
III. STANDARDS OF DECISION
In evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “[c]ourts must construe the complaint in the light most favorable to plaintiff, accept all well-pled factual allegations as true, and determine whether the complaint states a plausible claim for relief.” Albrecht v. Treon,
Pursuant to Rule 56, a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When evaluating a summary judgment motion,
credibility judgments and weighing of the evidence are prohibited. Rather, the evidence should be viewed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc.,477 U.S. 242 , 255,106 S.Ct. 2505 ,91 L.Ed.2d 202 (1986). Thus, the facts and any inferences that can be drawn from those facts must be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574 , 587,106 S.Ct. 1348 ,89 L.Ed.2d 538 (1986).
Biegas v. Quickway Carriers,
When a defendant seeks summary judgment, the defendant “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.” Celotex Corp. v. Catrett,
IV. ANALYSIS
A. The Federal Statutory Claims
As a preliminary matter, the heading of count I in Plaintiffs second amended complaint appears to allege that each Defendant violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Second Am. Compl. at 5 (“Violation of the Americans with Disabilities Act - All Defendants”). However, the second amended complaint then identifies only Defendant LPS as having “violated those provisions of the [ADA] by its acts or omissions.” Id. ¶ 27. Count II, however, which concerns alleged violations of the Rehabilitation Act (“RA”), 29 U.S.C. § 701 et seq., does not suffer from the same equivocality, as Plaintiff clearly states that “Defendants’, each [and] every one of them, have violated [J.G.’s] rights under [the RA.]” Second Am. Compl. ¶ 33. Despite the apparent ambiguity in the pleading, the Court will examine Plaintiffs ADA claim as if it were alleged against each Defendant, and not just LPS.
1. Individual-Capacity Liability Under the ADA and RA
Plaintiffs second amended complaint does not specify whether the ADA or RA claims are against Defendants in their individual capacities, their official capacities, or both. Defendants argue that they cannot be held liable in their individual capacities for alleged violations of either the ADA or the RA. See Def. DeMan Br. at 13 (Dkt. 123); Def. Turbiak Br. at 12-13 (Dkt. 127); Defs. Liepa, Sokol, & Santer Br. at 11-12 (Dkt. 177); Def. Moore Br. at 22 (Dkt. 184); Def. Respondek Br. at 12 (Dkt. 190); Defs. Crews, DeBeaudry, Sloboda, &
The Sixth Circuit has repeatedly held “that the ADA does not permit public employees or supervisors to be sued in their individual capacities.” Williams v. McLemore,
Plaintiff contends that Defendants are liable in their individual capacities “[u]nder the plain language of the legislature.” See PI. Resp. to Turbiak Mot. at 15 (Dkt. 135). However, Plaintiff fails to provide any authority in support of this conclusory statement. Nor does Plaintiff offer any cogent argument that would authorize a departure from binding Sixth Circuit authority. Therefore, the Court finds that Plaintiff cannot sue Defendants DeMan, Turbiak, Liepa, Santer, Sokol, Moore, Respondek, Crews, DeBeaudry, Sloboda, and Sprow in their individual capacities for alleged violations of either the ADA or RA, and dismisses these claims with prejudice.
2. Redundancy of Official-Capacity Claims
Defendants further argue that any official-capacity claims should also be dismissed because LPS, the municipal entity and their employer, is also named as a defendant in this litigation. See Def. Turbiak Br. at 13; Defs. Liepa, Sokol, & Santer Br. at 12; Def. Respondek Br. at 13; Defs. Crews, DeBeaudry, Sloboda, & Sprow Br. at 14. Plaintiff, on the other hand, contends that Defendants’ authority on this issue is non-binding, and that the issue of redundancy is irrelevant. See PI. Resp. to Turbiak Mot. at 15. Rather, Plaintiff claims that she is “entitled to present the jury with a full and complete picture of the events that occurred here and the claims that arise from those events.” Id. According to Plaintiff, “[t]o eliminate a legally viable claim against any defendant because of alleged redundancy is to eliminate the jury’s right to award [punitive] damages.” Id. Plaintiff provides no authority in support of these arguments.
In fact, official-capacity claims against individual municipal employees are routinely dismissed as being redundant when the municipal employer or entity is also named as a defendant. Kentucky v. Graham,
3. Claims Against LPS Under the ADA and the RA
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. ’ To state a prima facie claim under the ADA, “a plaintiff must show that: (1) [he] has a disability; (2) [he] is otherwise qualified; and (3) [he] was being excluded from participation in, denied the benefits of, or subjected to discrimination under the program because of [his]- disability.” Anderson v. City of Blue Ash,
Employing similar language as that found iñ the ADA, § 504 of the RA provides that a qualified individual with a disability shall not, “solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance^]” 29 U.S.C. § 794(a). To state a prima facie claim under the RA, a plaintiff must satisfy the following four elements:
(1) The plaintiff is a “handicapped person” under the Act; (2) The plaintiff is “otherwise qualified” for participation in the program; (3) The plaintiff is being excluded from participation in, or being denied the benefits of, or being subjected to discrimination under the program solely by reason of his handicap; and (4) The relevant program or activity was receiving Federal financial assistance.
G.C. v. Owensboro Pub. Schs.,
Because claims brought under Title II of the ADA and § 504 of the RA require proof of substantially similar elements, courts often treat the two in' the same manner and analyze ADA and RA claims together. See S.S. v. E. Ky. Univ.,
Plaintiffs second amended complaint sets out her theories for liability under these statutes. She alleges that J.G. “is protected as a person with a disability and is entitled to protections under 20 U.S.C. § 1415 to bring a claim or cause of action under the provisions of the [ADA],” that LPS allegedly violated. Second Am. Compl. ¶¶ 25, 27. Plaintiff also alleges that J.G. was subjected to abuse that was not “inflicted upon children without disabilities, while attending a public school,” which “violates the prohibition against discrimination solely on the basis of disability” under the RA. Id. ¶ 32. Plaintiff further claims that LPS “violated [J.G.’s] rights under § 504 [of the RA] and the regulations promulgated thereunder by denying [J.G.] the benefits of receiving full and equal access to the public education programs and activities therein.” Id. ¶ 33.
In its motion for summary judgment, LPS argues, inter alia, that Plaintiff has failed to satisfy prima facie elements under both the ADA and the RA — that J.G. was excluded from an educational program, deprived of an educational benefit, or discriminated against under the program because of his disability. See Def. LPS Br. at 13. For the reasons explained below, the Court agrees with LPS.
a. Excluded From Participation in, or Being Denied the Benefits of, the MoCI Program
In its motion for summary judgment, LPS argues that Plaintiff has failed to
In response, Plaintiff appears to argue that Turbiak’s alleged physical and emotional abuse had the effect of excluding J.G. from participating in his special educational program, as well as denying him “the benefits of [his] special educational program.” See Pl. Resp. to LPS Mot. at 18 (Dkt. 215). Plaintiffs argument is premised on opinions offered by two alleged experts — Dr. Gerald Shiener, a psychiatrist, and Dr. Sharon Hall, who has a Ph.D. in education and a history of working in special education. Relying on Dr. Shiener’s report, Plaintiff claims that J.G. “suffered incessant abuse at Turbiak’s hands as a result of the environment that she created in her classroom.” Id. at 17-18. Plaintiff relies on Dr. Hall’s report to argue that “the actions that occurred in Turbiak’s classroom amounted to abuse, the atmosphere in the classroom was itself harmful to her students, and that atmosphere was one in which the students, including [J.G.], could not receive the benefits of their special education program.” Id. at 18 (citing Hall Report (Dkt. 215-7)). According to Plaintiff, these two experts “each explain [that J.G.] was deprived of a meaningful and effective education as a result” of Turbiak’s alleged abuse. Id. at 19-20.
In its reply, LPS states that Dr. Shiener’s expert report is not sworn and, therefore, constitutes inadmissible hearsay, which may not be adduced to secure or oppose summary judgment. Def. LPS Reply at 2-3 (Dkt. 234). LPS further contends that Dr. Shiener does not offer an opinion on whether J.G. “was denied educational beiiefits/services solely due to his disability[.]” Id. at 3 (emphasis omitted). Regarding Dr. Hall’s report, LPS argues that she did not provide any evidence supporting the claim that J.G. was denied the benefits of his educational program. Id. Moreover, LPS contends that Dr. Hall’s opinion is “meaningless,” because she failed “to conduct an individualized inquiry as to whether [J.G.’s] services or IEP goals were appropriate, whether he made progress, or whether he should have been given additional services or goals.” Id.
The Court agrees with LPS that ■Plaintiff has failed to establish a genuinely disputed issue of fact regarding educational exclusion or deprivation. Plaintiff and her experts speak only in conclusory and over-generalized terms, without focusing on specific evidence pertaining to J.G. As a consequence, Plaintiff fails to show that
Theoretically, Plaintiff might have tried to demonstrate a question of fact on educational exclusion or deprivation by looking to evidence touching on whether J.G.’s specific IEP goals had been significantly frustrated. Such an approach would be consistent with how courts analyze claims brought under the IDEA where denial of a FAPE is alleged — a claim that Plaintiff did not assert in this lawsuit. See M.L. v. Fed.Way Sch. Dist.,
To the contrary, the record evidence confirms “progress” in meeting those goals. See, e.g., 3/14/2012 IEP Report at 2 (Dkt. 179-13) (noting “progress on goals”); 11/30/2011 IEP Report at 2 (Dkt. 179-12) (same). These reports recite concrete examples of this progress:
• “[J.G.] has made nice gains in imitation and will imitate or spontaneously produce one-two words in routine activities, especially songs. In recent weeks, [J.G.’s] willingness to participate in structured activities has increased and he has been doing some great work matching objects to pictures and using a communication device with 2 choices.” 11/4/2011 Progress Report at 2 (cm/ecf page) (Dkt. 127-10).
• “He is often then able to transition successfully to the music enhanced motor experiences, then to the interactive and musical circle activities. His attention span for these highly engaging activities is gradually lengthening, so that he remains calm and is then able to work on fine motor and feeding skills with his peers.” 11/30/2011 IEP Report at 3 (cm/ecf page).
• “When engaged and interested in an activity, [he] receptively identifies many age appropriate vocabulary items and matches objects to photos or pictures on a 4 square communication device.” Id.
• “His attention and verbal imitation increase when language is presented in songs.” Id.
• “[His] behavior has improved tremendously.” 1/27/2012 Progress Report at 3 (cm/ecf page) (Dkt. 127-10).
• “[J.G.] has grown leaps and bounds with his overall demeanor.” Id.
• “[J.G.] is showing us new skills on a daily basis.” Id.
• “[J.G.] has made wonderful progress this quarter!” Id.
• “[J.G.] has improved in [the] areas of [sensory and behavioral needs] since the last IEP, but still has difficulty participating in the classroom unless the environment is [ ] manipulated to meet his needs.” 3/14/2011 IEP Report at 3 (cm/ecf page).
• “His attention span for these highly-engaging activities is gradually lengthening, so that he remains calm and is then able to work on fine motor and feeding skills with his peers.” Id.
• “When engaged and increased in an activity, [J.G.] receptively identifies many age appropriate vocabulary items and matches objects to photos or pictures on a 4 square communication device. He seems interested in the device, looks carefully at all pictures, selects only the appropriate symbol for the item he wants or is labeling, and listens to the voice output.” Id.
To be sure, the reports reflect that J.G. remained a very challenged child. E.g. 3/14/2012 IEP Report at 3 (cm/eef page) (“significant delays in Gross Motor, sensory skills, Language and Cognitive domains”). But the portrait that emerges is hardly one of a child who has been excluded from his educational program or deprived of educational benefits. Apparently, the education team LPS assembled for J.G. — which included a teácher, paraprofessional, occupational therapist, physical therapist, and speech therapist, see Gohl Dep. at 410-411 (Dkt. 179-11) — produced positive educational results for this severely challenged three-year old student.
Plaintiff purports to find evidence of educational deprivation in the reports of Dr. Shiener and Dr. Hall. But these reports are not sufficient to create an issue of fact to forestall summary judgment.
As a threshold issue, Dr. Shiener’s report is procedurally defective, because, as an unsworn report, it is inadmissible hearsay, which the Court cannot consider for purposes of summary judgment. Sigler v. Am. Honda Motor Co.,
As for its substance, the report says absolutely nothing about the deprivation of an educational benefit. It notes that J.G. engages in “ritualistic behavior” — supposedly triggered by the March 5, 2012 incident — which takes the form of frequent hand washing and checking whether his mother puts on a seat belt when in a car. See Shiener Report at 4 (cm/ecf page) (Dkt. 215-6). But nothing in the report talks of J.G. being deprived of any educational benefit.
Substantively, there are fatal deficiencies, as well. Based on Turbiak’s alleged misbehavior, Dr. Hall simply opines in a global and conelusory fashion that none of the children in Turbiak’s classroom received the education to which they were entitled. Hall Report at 5, 26.
Dr. Hall’s report fails for the additional reason that it does not address essential evidence that bears critically on the opinion she offers. While she recognizes that the “students’ IEPs are central to” her opinion, Hall Report at 28, she never addresses any particular inadequacies of J.G.’s IEP, or the progress he made on his IEP goals. In fact, Dr. Hall never discusses the evidence of his progress at all, nor does she point to evidence tending to show that he was not making progress, or was otherwise regressing in his abilities.
An expert opinion that does not address the central facts at issue in a case is insufficient to defeat summary judgment. See Robinson v. Union Carbide Corp.,
By ignoring key facts, Dr. Hall’s opinion simply amounts to one long conclusion that fails to set out a logical line of reasoning. Without a sound line of reasoning - grounded in the facts of the case - the Hall report cannot assist Plaintiff in defeating summary judgment. See R.C. Olmstead, Inc. v. CU Interface, LLC,
Ultimately, Dr. Hall’s report fails for the same reason Dr. Schiener’s report is defective: the failure to identify any specific program or benefit that J.G., in particular, was denied. As Dr. Hall herself recognized, abusive behavior “may” lead to unfortunate learning outcomes. See, e.g., Hall Report at 24 (when exposed to bullying, “[c]hildren may become unwilling to try new activities or learn new skills”). But Dr. Hall never opines that J.G. actually was unwilling to try new activities or learn new skills.
Plaintiffs theory comes down to the proposition that a plaintiff can make out a claim under the ADA or RA — without a showing of actual educational deprivation— simply by showing a teacher’s abusive classroom conduct. Plaintiff has failed to provide any legal authority in support of such a proposition. Nor does the Court’s own research reveal a case holding that, for purposes of an ADA or RA claim, a teacher’s alleged physical and emotional abuse, without a demonstrable impact on the alleged victim’s education, constitutes exclusion from an educational program or denial of an educational benefit.
Therefore, the Court finds that Plaintiff has failed to present sufficient evidence to create a genuine issue of material fact that J.G. was excluded from "participating in any particular educational program, or that J.G. was denied any particular benefit of an educational program. To the extent Plaintiff grounds her ADA and RA claims in exclusion from an educational program or deprivation of an educational benefit, the Court grants LPS’s motion for summary judgment on these claims.
b. Subject to Discrimination
Another basis for an ADA or RA claim is discriminatory treatment. To prove discrimination under the ADA or RA, a disabled plaintiff must demonstrate that he or she was treated differently than a similarly situated, non-disabled student. See, e.g., Parker v. Metro. Life Ins. Co.,
This differential-treatment requirement was squarely addressed in the district court’s grant of summary judgment on ADA and RA discrimination claims in Horen v. Board of Education of the City of Toledo Public School District,
In this case, Plaintiffs second amended complaint alleges that J.G. was
Plaintiffs briefing does not address LPS’s discrimination argument concerning the lack of evidence of a similarly situated, non-disabled student, and, therefore, the Court may consider this fact undisputed. Fed. R. Civ. P. 56(e)(2); Rugiero v. Nationstar Mortg., LLC,
Accordingly, to the extent Plaintiffs ADA and RA claims are grounded in discriminatory treatment, LPS is awarded summary judgment on those claims,
c. Causation
Even if Plaintiff had established a triable issue of fact that J.G. was excluded from participating in, was denied the benefit of, or was subjected to discrimination under, a specific educational program or activity, Plaintiff would still have to establish a causal connection between J.G.’s disability and Defendants’ actions toward J.G. For her ADA claim, Plaintiff must show that the actions were “because of’ J.G.’s disability. Anderson,
Despite earlier pronouncements from the Sixth Circuit that the “sole-cause” standard of the RA applied equally to ADA claims, see, e.g., Lewis v. Humboldt Acquisition Corp., Inc.,
In its motion for summary judgment, LPS argues that there is no evidence establishing that Defendants’ actions were taken because of J.G.’s disability. Def. LPS Br. at 14. In support of its argument, LPS argues that Turbiak’s action on March 5, 2012 in moving J.G.’s head was meant “to
In response, Plaintiff contends that the record evidence “demonstrates that [J.G.] was abused because of his disability.” PI. Resp. to LPS Mot. at 18. In support of this argument, Plaintiff relies on the Moore timeline, stating that Moore met with Turbiak, and Turbiak talked about how she felt “stressed out because of the level of disability of her students[.]” Id. at 18. Although there is no specific citation, Plaintiff also quotes the following language from the timeline: “Ms. Turbiak appeared more harsh and abrupt with the lower-functioning students.” Id. Plaintiff also refers to a letter DeMan wrote to Turbiak in November 2011, which apparently stated that DeMan “believe[d] [Turbiak’s] work in [the MoCI] program is not only difficult, but can be frustrating and at times possibly overwhelming.” Id. at 19 (quoting 11/4/2011 Letter (Dkt. 215-18)). Without any citations, Plaintiff then provides various examples of Turbiak allegedly targeting her abuse based on the student’s particular disability, which she argues illustrates that “Turbiak hated these students for their disabilities and punished them as a result.” Id.
In its reply, LPS argues that Plaintiff has failed to offer any evidence that there was a pattern of abuse concerning J.G. Def. LPS Reply at 2. LPS also states that Plaintiffs assertion that J.G. was abused because of his disability is speculative and lacks record citations. Id. at 3-4.
Regardless of which causation standard the Court employs, under the ADA or the RA, there is no evidence that Turbiak’s alleged abuse on March 5, 2012 was “because of’ or “solely by reason of’ J.G.’s disability. As a threshold matter, Plaintiffs failure to cite to the record for the alleged abuse inflicted on other students because of their disabilities permits this Court to disregard those alleged incidents. Fed. R. Civ. P. 56(c)(1)(A); Coleman v. Blue Cross Blue Shield of Kansas, Inc.,
Moreover, the various portions of the Moore timeline and the DeMan letter, upon which Plaintiff relies, fail to substantiate Plaintiffs contention that Turbiak allegedly abused J.G. on March 5, 2012 because of his disability. The full sentence from the October 2011 timeline reads as follows: “[Turbiak] talked about feeling unappreciated at Webster, of not having a role anymore and that she was stressed out because of the level of disability of her students and the reduction of support.” Moore Timeline at 3 (cm/ecf page). Notably, the statement indicates that Turbiak’s
Lastly, the November 2011 letter De-Man sent Turbiak does not create a genuine issue of material fact that Turbiak’s March 2012 conduct was because of J.G.’s disability. The letter merely states that DeMan believed that Turbiak’s work was “difficult,” “frustrating,” and “possibly overwhelming.” 11/4/2011 Letter at 2 (cm/ecf page) (Dkt. 215-18). A statement from the director of personnel for LPS in the fall of 2011 that Turbiak’s work was challenging is not evidence that Turbiak abused J.G. in March 2012 because of J.G.’s disability, or that animus was a significant factor in that alleged abuse.
Accordingly, LPS is entitled to summary judgment on Plaintiffs claims under the ADA and RA, for the additional reason that Plaintiff cannot meet the causation standards under those statutes.
B. The Federal Constitutional, Claims
To state a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate that a person acting under the color of state law deprived the plaintiff of a constitutional right. West v. Atkins,
In opposing a defendant’s claim of qualified immunity, the plaintiff must show the following: (i) the defendant violated a constitutional right based on the facts alleged, and (ii) the right was clearly established. Plumhoff v. Rickard, — U.S. -,
In this case, Plaintiff alleges that Turb-iak’s alleged conduct constitutes excessive force in violation of the Fourth and Four
1. The Excessive-Force Claim
Plaintiff alleges that, on March 5, 2012, Turbiak grabbed J.G. by the top of his head, aggressively jerked it backwards, and yelled very close to his face. As Turb-iak describes the incident, after J.G. had knocked a ring-stacking toy off a table, she placed her left hand behind J.G.’s head and her right hand on his chin to redirect his attention and to prevent J.G. from thrusting his head in a backwards motion. It is Plaintiffs contention that Turbiak’s conduct constituted excessive force in violation of both the Fourth and Fourteenth Amendments. See Second Am. Compl. ¶¶ 35-39.
a. Fourth Amendment
The Fourth Amendment (applicable to state actors through the Fourteenth Amendment) protects individuals against “unreasonable searches and seizures.” U.S. Const, amend. IV. Plaintiff argues that Turbiak’s excessive force constituted an unreasonable “seizure” in violation of the Fourth Amendment. See Pl. Resp. to Turbiak Mot. at 20 (Dkt. 135). According to Plaintiff, a public school teacher is a representative of the state, and when such an individual momentarily uses excessive force against a student, that force amounts to a seizure under the Fourth Amendment. Id. at 21 (citing New Jersey v. T.L.O.,
When faced with the same argument, the Sixth Circuit has repeatedly held that a student’s claim of excessive force by a teacher is properly analyzed under the Due Process Clause of the Fourteenth Amendment, rather than under the Fourth Amendment. See, e.g., Lillard v. Shelby Cnty. Bd. of Educ.,
Therefore, the Court dismisses Plaintiffs Fourth Amendment claim and will analyze Plaintiffs excessive-force claim under the substantive due process standards of the Fourteenth Amendment.
b. Fourteenth Amendment
The Fourteenth Amendment provides that a state may not deprive an individual “of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. As the Sixth Circuit has rec ognized, “it is well established that persons have a fourteenth amendment liberty interest in freedom from bodily injury.” Doe v. Claiborne Cnty.,
[a] substantive due process claim is quite different than a claim of assault and battery .under state tort law. Substantive due process is concerned with violations of personal rights of privacy and bodily security. The substantive due process inquiry must be whether the force applied caused injury so severe, was so disproportionate to the need presented, and was so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.
Id. at 725 (brackets and ellipses omitted).
In viewing the evidence in the light most favorable to J.G.- — that Turbiak aggressively jerked J.G.’s head backwards and yelled in his face — -the Court finds that Turbiak’s conduct did not violate J.G.’s substantive due process rights. This single act of abuse simply does not rise to the level of conscience-shocking behavior. See, e.g., Lillard,
There is also insufficient evidence from which a reasonable jury could find that Turbiak’s alleged conduct created a serious risk of severe physical injury. Despite Plaintiffs claim that “the record in this case demonstrates that any trauma to [J.G.’s] head was capable of causing death due to the shunt in his head,” Pl. Resp. to Turbiak Mot. at 23; see also Second Am. Compl. ¶ 18, Plaintiff has failed to provide any evidence to support the contention that any severe head movement of an individual with a ventricular peritoneal brain shunt could be potentially life threatening in general, let alone to J.G. in particular. In any case, the existence of a shunt itself would not necessarily give this alleged act of abuse a constitutional character. See Honaker v. Beverage, No. 87-13,
In addition to physical abuse, Plaintiff argues that J.G.’s presence in the classroom while Turbiak allegedly abused other students constituted emotional abuse that amounts to conscience-shocking behavior. See Pl. Resp. to Turbiak Mot. at 23-24. In particular, Plaintiff claims that J.G. sustained emotional abuse because he “witnessed several acts and patterns of abuse at the hands of Turbiak and Respondek,” Pl. Resp. to LPS Mot. at 17, pointing to allegations that Turbiak confined a wheelchair-bound student in a bathroom, and placed tubes over the arms of another student with auditory sensitivity and yelled at that student. Id. at 19. However, there are no record citations to substanti
In fact, these particular alleged incidents either occurred in the afternoon session of the 2011-2012 MoCI classroom, or in the 2010-2011 school year; J.G. only attended the morning sessions during the 2011-2012 school year, and there is no evidence that he attended MoCI in an earlier school year. See Gohl Dep. at 410, 413; Schultz Report at 5, 10, 11, 13; Sokol Dep. at 164, 228, 232, 244; Sprow Dep. at 38, 149-150, 219; Crews Dep. at 131-132, 154, 304; Attendance Records (Dkt. 235-10). Therefore, J.G. could not have sustained any emotional abuse as a result of supposedly watching those ' alleged incidents.
Moreover, for Turbiak’s alleged emotional abuse to shock the conscience, it must have still caused severe injury to J.G. Lillard,
To the extent that Plaintiff relies on Dr. Shiener’s report
Similarly, Plaintiffs reliance on Dr. Hall’s report in support of her argument fails, as that report never states that J.G. himself sustained any type of injury, let alone severe injury, as a result of any alleged emotional abuse. See Hall Report at 22 (simply opining that the “students in this classroom.. .were.. .negatively impacted by [Turbiak’s] abusive and bullying atmosphere.” (emphasis added)). Nor did Dr. Hall state that J.G. was actually the victim of any emotional abuse himself, or that he was actually impacted negatively by the alleged abuse. See id. at 24 (“[A] child who observes a classmate being bullied may disassociate or distance him/herself[.]” (emphasis added)); id. (“The observer may disassociate from the child who is the target of bullying[.]” (emphasis added)); id. (“The children may become compliant due to anxiety and fear.” (emphasis added)); id. at 24-25 (“The children may become unwilling to try new activities or learn new skills[.]” (emphasis added)); id. at 25 (“The students’ energies may be spent watching the bullying teacher’s behavior[.]” (emphasis added)). Hall never says that any of these untoward results actually were suffered by J.G. and fails to supply any supporting evidence of such particularized impact on him.
Accordingly, the Court concludes that Turbiak did not violate J.G.’s Fourteenth Amendment rights and is entitled to qualified immunity on Plaintiffs excessive-force claim. This result is in keeping with the Supreme Court’s oft-repeated admonition: “[T]he Due Process Clause of the Fourteenth Amendment.. .does not transform every tort committed by a state actor into a constitutional violation.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,
2. The Equal-Protection Claim
The Equal Protection Clause of the Fourteenth Amendment prohibits discrimination by the government that “‘burdens a fundamental right, targets a suspect class, or intentionally treats one differently than others similarly situated without any rational basis for the difference.’ ” Loesel v. City of Frankenmuth,
The Sixth Circuit has repeatedly recognized that disparate treatment is a threshold requirement of an equal-protection violation. Marie v. Am. Red Cross,
The Court does not require “exact correlation” when evaluating whether parties are similarly situated but, rather, demands only “relevant similarity.” Perry v. McGinnis,
Although Plaintiff alleges that J.G. was treated unfavorably; she has failed to present sufficient evidence to create a genuine issue of material fact that J.G. was treated differently than a similarly situated, non-disabled student. See Bah v. Attorney Gen. of Tenn.,
Plaintiff might have satisfied this element by showing that Turbiak disciplined a non-disabled student in a manner that did not involve any alleged physical or verbal abuse. She has not done so. As for the other Defendants, Plaintiff might have satisfied this element by showing that an allegation of child abuse arose involving a non-disabled student, and those Defendants acted in a manner different than in J.G.’s case (he., reporting the alleged abuse). Again, Plaintiff has not done so.
Rather, Plaintiff merely alleges that Defendants violated the Equal Protection Clause, because their actions were “not inflicted upon young children in the LPS district who do not have disabilities.” Second Am. Compl. ¶ 46. Without anything more, this unsubstantiated and conclusory assertion is insufficient for equal-protection purposes. See Gallagher v. Pontiac Sch. Dist.,
Regarding Turbiak in particular, Plaintiff contends that “[i]n all [her] time as an LPS employee, surely Turbiak interacted with non-disabled students.” Pl. Resp. to Turbiak Mot. at 31 (Dkt. 135). Plaintiff further states that “[t]here is no evidence that Turbiak ever targeted such individuals with the physical and emotional abuse that she targeted [J.G.] and his classmates with.” Id. However, as noted above, this “[unsubstantiated speculation is not enough to create a genuine issue of material fact.” Nelski,
In viewing the evidence in the light most favorable to Plaintiff, no reasonable juror could conclude that J.G. was intentionally treated differently than a non-disabled student. Therefore, the Court finds that Defendants did not violate J.G.’s equal-protection rights, and concludes that Defendants are entitled to qualified immunity on this claim.
3. The Municipal-Liability Claim
In order to pursue a claim for municipal liability under § 1983, a plaintiff must demonstrate that the alleged federal violation occurred because of a municipal policy or custom. See Monell v. New York City Dep’t of Soc. Servs.,
Importantly, municipal liability for the actions of employees may not be based on a theory of respondeat superior; rather, “[mjunicipal liability only attaches where a custom, policy, or practice attributable to the municipality was the ‘moving force’ behind the violation of the plaintiffs constitutional rights.” Heyerman v. Cnty. of Calhoun,
As discussed above, the Court concludes that J.G. did not suffer a constitutional violation of either his Fourth Amendment or Fourteenth Amendment rights. Accordingly, the Court grants LPS’s motion with respect to any of the constitutional claims against it.
C. The State-Law Claims
Having determined that Plaintiffs federal claims lack merit, the case does not retain a federal character. Accordingly, pursuant to 28 U.S.C. § 1367, the Court declines to extend supplemental jurisdiction over Plaintiffs state-law claims, including any alleged failure to report child abuse, assault, battery, gross negligence, willful and wanton misconduct, and intentional infliction of emotional distress contained in counts VI through IX, and dismisses them without prejudice. Brown v. Cuyahoga Cnty.,
V. CONCLUSION
For the reasons stated above, the Court grants, in part, and denies, in part, Defendants’ motions to dismiss and/or for summary judgment (Dkts. 123, 127, 177, 179, 184, 190, 192). The federal statutory and constitutional claims are dismissed with prejudice, and the state-law claims are dismissed without prejudice.
SO ORDERED.
Notes
.There are 12 Defendants named in this action, each of whom has filed a motion to dismiss and/or for summary judgment: Cynthia DeMan (Dkt. 123); Sharon Turbiak (Dkt. 127); Randy Liepa, Elizabeth Santer, and Candy Sokol (Dkt. 177); Livonia Public Schools (Dkt. 179); Shellie Moore (Dkt. 184); Nancy Respondek (Dkt. 190); Tracey Crews, Carol DeBeaudry, Diane Sloboda, and Megan Sprow (Dkt. 192).
. Students participating in this program have been diagnosed with a moderate cognitive impairment, meaning that they have an intelligence quotient ("IQ”) of 55 or below. See Santer Dep. at 51-52, 167 (Dkt. 179-8).
. As a paraprofessional, Respondek assisted Turbiak "with classroom activities and lessons, as well as other various daily activities.” Def. Respondek Mot. at 1 (Dkt. 190).
. Plaintiff’s failure to provide authority is understandable, because punitive damages are not available under either Title II of the ADA or § 504 of the RA. See Johnson v. City of Saline,
. An IEP finds its source in the Individuals with Disabilities Education Act ("IDEA”), 20 U.S.C. § 1400 et seq., which "was designed to give children with disabilities a free appropriate public education ["FAPE”] designed to meet their unique needs.” Nack ex rel. Nack v. Orange City Sch. Dist.,
. The report also speaks of unspecified "changes” to J.G.’s brain due to his alleged exposure to Turbiak’s abuse of him and other students. This opinion is unsupported — and insufficient for summary judgment purposes— because Dr. Shiener neither performed nor reviewed any medical procedures or tests that might have detected any brain "change.” Fed. R. Evid. 702, 703; Dow v. Rheem Mfg. Co., Nos. 09-13697-BC, 10-10753-BC, 11-10647-BC,
. Although Dr. Hall opines that "[tjhere is no reasonable basis to believe that any of the students in Sharon Turbiak’s classroom during the 2011-2012 school year were receiving a [FAPE] as envisioned by IDEA, and Section 504 of the [RA],” Hall Report at 5, 26, Plaintiff never alleged in her complaint, nor ever asserted in her briefing, that J.G. was not receiving a FAPE. Any effort now by Plaintiff to introduce a new claim by way of a response to a summary judgment motion would not be appropriate. Tucker v. Union of Needletrades, Indus. & Textile Emps.,
. Aside from stating that "[v]arious employees of LPS knew that [Turbiak hated the MoCI program students] and failed to do anything,” PL Resp. to LPS Mot. at 19, Plaintiff failed to address LPS’s argument that Defendants' failure to report alleged child abuse was not because of J.G.'s disability. Def. LPS Br. at 14. As such, the Court concludes that this fact is undisputed. Fed. R. Civ. P. 56(e)(2).
. LPS also argues that Plaintiff's failure to exhaust her administrative remedies under the IDEA bars Plaintiff’s claims under the ADA and RA. See Def. LPS Br. at 12 (Dkt. 179). LPS further argues that it is entitled to summary judgment because Plaintiff has failed to allege either bad faith or gross misjudgment on behalf of any Defendant in this case. Id. at 15-16. As the Court has concluded that Plaintiff’s ADA arid RA claims fail for other reasons, the Court declines to address these additional arguments.
. Plaintiff’s attempt to aggrandize the physical abuse to which J.G. was subjected, beyond the March 5 incident, is without merit. For example, Plaintiff claims that Turbiak’s statement to Moore that she (Turbiak) would no longer put her hands on J.G. raises an inference that she had improperly used her hands before. PI. Resp. to LPS Mot. at 17. But the premise of this purported inference is wrenched out of context: as a child who suffered from a loss of muscle control, J.G. required body management by his teachers and aides. See Respondek Dep. at 407- 409 (Dkt. 235-9); Gohl Dep. at 355-356 (Dkt. 235-11); Moore Dep. at 284-285 (Dkt. 235-4). In context, Turbiak’s statement obviously reflects a determination by her that she should avoid any contact because it might be misconstrued, just as the March 5 incident was, at least from her perspective. In any case, even if it amounts to an admission that Turbiak had previously touched J.G. in an inappropriate manner, it is not an admission that there were frequent or severe episodes.
. Plaintiff has also failed to provide any authority for the proposition that witnessing the abuse of another person could ever constitute excessive use of force against J.G. cognizable under the Constitution.
. Evidence in the record further contradicts Plaintiff's argument. Dr. Shiener’s report recounts that Lauren Gohl began noticing negative behavioral changes in J.G. in March 2012, see Shiener Report at 3 (cm/ecf page), which would significantly undercut Plaintiff's theory that Turbiak’s abuse included not only the March 2012 incident, but also months of emotional abuse leading up to that incident. Compare PI. Resp. to LPS Mot. at 17-18 (arguing that Turbiak’s alleged abuse was not limited to March 2012) with Shiener Report at 3 (cm/ecf page) ("The behavior and the situation in the classroom dated back to beginning of March 2012[J”) and Pl. Resp. to Turbiak Mot. at 11-12 (after removing J.G. from LPS, Plaintiff noticed that J.G. “began to exhibit anxiety and panic and, whenever he desired to get his mother’s attention, he would grab her by the face just as Turbiak grabbed him by the face.”).
.As noted supra, Dr. Shiener’s unsworn report is inadmissible hearsay, which the Court cannot consider for purposes of summary judgment. .Nevertheless, as explained ■ infra, the Court finds that the report does not support Plaintiff’s excessive-force claim premised on emotional abuse.
. Insofar as Plaintiff argues that certain Defendants, as supervisory municipal employees, violated the Equal Protection Clause by their deliberate indifference to Turbiak’s dis-criminatoiy harassment toward J.G., see Pl. Resp. to DeMan Mot. at 27 (Dkt. 129) (citing Shively v. Green Local Sch. Dist. Bd. of Educ.,
. Plaintiffs second amended complaint does not explicitly allege that LPS is municipally liable under § 1983 for violations of the Equal Protection Clause. To the extent that such a claim may be implied, the Court grants summary judgment in favor of LPS on this claim, as well, for the reasons stated above.