RULING ON THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This is an action for damages. It is brought pursuant to 42 U.S.C. § 1083, 1 the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”), 2 and common law tenets concerning assault, intentional infliction of emotional distress and negligence. The plaintiff, a disabled minor with Down’s syndrome, alleges that the defendant, the Bristol board of education, and its employees violated his rights in connection with his education in the Bristol school system. The defendants now move for summary judgment, arguing that there are no material issues of fact in dispute and that they are entitled to judgment as a matter of law. 3
The issues presented are: (1) whether the plaintiff may assert a cause of action for damages pursuant to 42 U.S.C. § 1983 based upon violations of the IDEA; (2) whether the use of physical and mechanical restraints on the plaintiff, a disabled student, which was not authorized by the plaintiffs individualized education plan and was without parental consent, violated the student’s substantive due process rights; (3) whether the plaintiff received an adequate remedy following the deprivation of his property and liberty interests to satisfy the requirements of procedural due process; (4) whether the plaintiff has sufficiently shown that a policy or custom of the defendant board of education caused his injury; (5) whether the plaintiff has sufficiently demonstrated the personal involvement of the supervisory defendants in his alleged injuries; (6) whether the individual defendants are entitled to qualified immunity; and (7) whether the individual defendants are entitled to sovereign immunity for the plaintiffs state law causes of action.
The court concludes: (1) that a plaintiff may bring a cause of action for damages pursuant to 42 U.S.C. § 1983 based upon violations of the IDEA; (2) that the use of physical and mechanical restraints on the plaintiff constitutes a violation of the plaintiffs substantive due process rights where there is no evidence that such action was taken pursuant to standards of professional judgment; (3) that the plaintiff received an adequate post-deprivation hearing in state administrative actions to satisfy the requirements of procedural due process; (4) that the plaintiff has not sufficiently shown that the defendant board of education’s policy or custom caused his alleged injury for purposes of municipality liabili
For the reasons stated herein, the defendants’ motion for summary judgment is granted in part and denied in part.
FACTS
Examination of the complaint, affidavits, pleadings, exhibits, supplemental materials, and Rule 9(c) statements discloses the following undisputed, material facts:
At all times relevant to this case, the plaintiff, M.H., was a fourteen-year old student in the sixth grade at Memorial Boulevard Middle School in Bristol, Connecticut. M.H. has Down’s syndrome and is severely mentally retarded. He is essentially non-verbal and possesses an IQ of less than 36. The Bristol board of education has provided M.H. with special education services since 1985. Under the provisions of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”), the Bristol board of education is required to develop an individualized education plan for M.H. This plan is developed during regular planning and placement team (“PPT”) meetings in which M.H.’s parents, Mr. and Mrs. H., participate.
During the 1995-96 school year, the defendants, Lisa Palangi, a special education teacher, and Betty Marchesi, a paraprofessional, were assigned to work with M.H. On or about May 7, 1996, Palangi spit water onto M.H.’s face and stated “this is spitting,” in response to M.H.’s acts of misbehavior. Marchesi was present in the classroom at the time and witnessed this spitting incident. Neither Palangi nor Marchesi reported this incident to their supervisors. When M.H. returned home that day from school, his mother observed that his hair was “soaking.” Palangi sent a note home with M.H. which stated that she and M.H. had been playing hairdresser and she gave him a new hairstyle. On May 8, 1996, one Elizabeth Knoblauch, a paraprofessional working at the school, overheard Marchesi talking about the incident. Knoblauch then reported the incident to the defendant, Katherine Bour-gault, the supervisor of special education.
On May 10,1996, the defendant, Edward Maher, superintendent of schools, sent Pa-langi a letter advising her that she was being suspended without pay. That evening, Palangi telephoned Mr. and Mrs. H. at home and told them she had “squirted” water in M.H.’s face the week prior. Pa-langi explained that she was in danger of being fired, and asked Mr. and Mrs. H. to speak to school officials on her behalf.
On May 13, 1996, school officials conducted a meeting to discuss Palangi’s employment. Palangi, Maher, and the defendant, Walter Ives, the principal of Memorial Boulevard Middle School, were present at the meeting, along with other school and union representatives. Although Mr. and Mrs. H. were not present for portions of the meeting, they were allowed to speak and stated that Palangi had been a “good teacher,” and that she had “helped their son a great deal.” After the meeting, Mrs. H. learned more details about the May 8th incident, including the fact that Palangi had intentionally spat on M.H.’s face, and had not “squirted” water at him as previously reported to her. Mrs. H. discovered that Marchesi had witnessed the spitting incident and that neither she nor Palangi had reported the incident to school officials. In addition, Mrs. H. learned that Palangi had often restrained
Sometime thereafter, the defendant, Katie Wininger, a special education teacher, was assigned to M.H. as Palangi’s replacement. On May 21, 1996, Mrs. H. visited the school and observed Wininger physically restraining M.H. Specifically, Wining-er held both of M.H.’s arms from behind and forcibly restrained him. M.H. resisted, and a physical struggle ensued until Mrs. H. stepped in and calmed down M.H. Later that day, Mrs. H. wrote a letter to the defendant, Michael Wasta, director of pupil personnel services, describing the incident and voicing her concerns about the use of physical force. Mrs. H. sent a copy of the letter to Maher. Neither defendant responded to the letter. On May 24, 1996, Palangi resigned from her position.
On June 12, 1996, Wininger sent home a note to Mr. and Mrs. H., advising them about an incident involving M.H. during a fire drill at the school. When the fire alarm sounded, M.H. had become agitated and had to be physically removed from the building by Wininger and Marchesi. M.H. attempted to bite both women. In the altercation, both of M.H.’s arms were bruised. School officials knew prior to the incident that M.H. was agitated by fire alarms, but it is unclear whether his teachers were warned of the drill on that day.
On June 24, 1996, Mr. and Mrs. H. met with school officials for a PPT meeting. At that meeting, Bourgault showed Mr. and Mrs. H. a handwritten “behavior management plan” dated May 30, 1996, which was drafted based on a May 18, 1993 case report completed by a consultant (the “CREC report”). 4 Mr. and Mrs. H. objected to those portion of the behavior management plan which permitted the use of physical restraint. The school officials agreed to put those measures on hold. Mrs. H. presented photographs of the bruises to M.H.’s arms resulting from the June 12th fire drill and requested that a report be filed about the incident.
On June 25, 1996, Mr. and Mrs. H. requested a state administrative hearing to discuss the school’s summer program for M.H., pursuant to 20 U.S.C. § 1415
5
and Conn. Gen.Stat. § 10-76L
6
On July 23, 1996, Mr. and Mrs. H. wrote to the defendant, Bourgault, about their concerns that their May 21st letter to the defendant, Wasta, about the spitting incident and the bruises M.H. suffered during the June 12th fire drill, went unanswered. On July 23, 1996, Mr. and Mrs. H. requested a second administrative hearing to determine whether M.H. was receiving a free and appropriate education in the least re
On August 9, 1996, a final decision and order was issued in the first state administrative hearing. On October 18, 1996, a final decision and order was issued in the second state administrative hearing. Mr. and Mrs. H. then brought two separate actions in the district court, pursuant to the IDEA, for reimbursement of the costs, expenses and attorneys fees they incurred in their administrative actions. On May 9, 1997, the parties settled both suits for the sum of $15,500.00.
On May 14, 1998, the plaintiff, through his parents, initiated the instant action. The first four counts of the complaint allege that the individual defendants, Bour-gault, Ives, Maher, Palangi, Wininger, Wasta and Marchesi, and the Bristol board of education violated M.H.’s procedural and substantive due process rights, as well as the rights afforded to him under the IDEA. Counts five and six allege the common law torts of assault and intentional infliction of emotional distress against the defendants, Palangi and Wininger, for the spitting incident and the use of physical restraints. Count seven alleges that common law tort of negligence against the defendants, Palangi, Wininger and Mar-chesi.
STANDARD
On a motion for summary judgment, the moving party must show that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. Fed.R.CivP. 56(c);
Anderson v. Liberty Lobby, Inc.
In opposing a motion for summary judgment, the “adverse party may not rest upon the mere allegations or denials of [its] pleading,” but must “set forth specific facts showing that there is a genuine issue for trial.” Fed R. Civ. P. 56;
see D'Amico v. City of New York,
I. FEDERAL CAUSES OF ACTION42 U.S.C. § 1983
The individual defendants and the Bristol board of education first argue that they are entitled to judgment as a matter of law on all of the plaintiffs federal causes of action, counts one through four of the complaint, brought pursuant to 42 U.S.C. § 1983. In the alternative, the individual defendants argue that they are entitled to qualified immunity because their actions did not constitute a knowing violation of the plaintiffs rights.
A. THE IDEA
In counts one and three of the complaint, the plaintiff alleges that the board of education and the individual defendants violated his rights under the IDEA. The defendants argue that the plaintiff may not assert a cause of action for damages against any of the defendants for violations of the IDEA pursuant to 42 U.S.C. § 1983. Specifically, the defendants argue that “[t]he Act does not provide the basis for such a private cause of action” and that the plaintiff “cannot maintain a section 1983 action for alleged IDEA violations.”
1. Statutory Background
The Individuals with Disabilities Education Act, 20 U.S.C. § 1400
et seq.,
“is the most recent Congressional enactment in ‘an ambitious federal effort to promote the education of handicapped children.’ ”
Walczak v. Florida Union Free Sch. Dist.,
“The particular educational needs of a disabled child and the services required to meet those needs must be set forth at least annually in a written individualized education plan (‘IEP’).”
M.C. ex rel. Mrs. C. v. Voluntown Bd. of Educ.,
2. Section 1983 Causes of Action for Violations of the IDEA
The defendants argue that the plaintiff cannot maintain a 42 U.S.C. § 1983 cause of action based upon violations of the IDEA. In response, the plaintiff argues that a private right of action pursuant to § 1983 based upon injuries suffered as a result of IDEA violations does exist, and that he is thus entitled to compensatory and punitive damages.
“It is well settled that § 1983 does not create any new substantive rights, but merely provides a federal cause of action for violations of certain federal rights.”
Mrs. W. v. Tirozzi,
The IDEA itself provides that a district court may “grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(B)(iii). There is currently a split among the circuit courts regarding whether the IDEA provides the exclusive remedy for violations of its provisions, or whether § 1983 is available to assert a cause of action for damages. The fourth, sixth, seventh and eight circuits have all concluded that a plaintiff may not assert a § 1983 cause of action based upon alleged violations of the IDEA.
See Sellers v. School Bd. of City of Manassas,
The second circuit has not yet addressed whether a § 1983 action may be based upon IDEA violations. However, in
Quackenbush v. Johnson City Sch. Dist.,
Following the
Quackenbush
decision, Congress amended the EHA in 1986 to provide that “[n]othing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, title V of the Rehabilitation Act of 1973[], or other Federal statutes protecting the rights of handicapped children and youth .20 U.S.C. § 1415(f) (amended 1990). In enacting this provision, Congress expressly overruled the Supreme Court’s decision in
Smith v. Robinson,
Like its predecessor, the EHA, the IDEA provides:
Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under ... other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchap-ter, the procedures set under subsections (f) and (g) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.
20 U.S.C. § 1415©. Recent decisions within this circuit support the conclusion that the IDEA may serve as the basis for a § 1983 cause of action for damages.
See Butler v. South Glens Falls Cent. Sch. Dist.,
The court concludes that the plaintiff may bring a cause of action pursuant to 42 U.S.C. § 1983 for the defendants’ alleged violations of the IDEA. The second circuit, though not directly addressing this issue with respect to the IDEA, has nonetheless determined that the previous statutory scheme under the EHA allowed for an action for damages.
See Mrs. W. v. Tirozzi,
The defendants’ motion for summary-judgment is, therefore, denied with respect to the plaintiffs causes of action for damages based on alleged violations of the IDEA, brought pursuant to 42 U.S.C. § 1983.
B. SUBSTANTIVE DUE PROCESS
The board of education and the individual defendants next argue that they are entitled to judgment as a matter of law on counts one and two of the complaint, to the extent that they allege that the defendants violated M.H.’s substantive due process rights. Specifically, the defendants argue that the single spitting incident, the alleged “inappropriate” use of a seat restraint, and the two incidents of physical restraint of M.H. by Wininger are not so egregious as to “shock the conscience” and constitute a deprivation of M.H.’s rights.
In response, the plaintiff argues that he had a right to reasonable safety and freedom of restraint, which the defendants violated through their use of physical and mechanical restraints on M.H.
The Due Process Clause of the Fifth Amendment, later incorporated into the Fourteenth Amendment, is a limit on a State’s power to act.
DeShaney v. Winnebago County Soc. Servs. Dep’t,
In a case involving mentally handicapped patients at a mental institution who had been involuntarily committed, the Supreme Court concluded that the physical restraint of the patients implicated their liberty interests in freedom from bodily restraint under the Due Process Clause.
Youngberg v. Romeo,
We think the standard articulated by Chief Judge Seitz affords the necessary guidance and reflects the proper balance between the legitimate interests of the State and the rights of the involuntarily committed to reasonable conditions ofsafety and freedom from unreasonable restraints. He would have held that ‘the Constitution only requires that the courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.’
Id.
at 321,
The Supreme Court concluded that decisions made by professionals were presumptively valid and that “liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.”
Youngberg v. Romeo,
The court concludes that the
Youngberg
test is the appropriate standard in this case for determining whether the defendants’ violated M.H.’s substantive due process rights by their use of physical and mechanical restraints.
See Society for Good Will to Retarded Children,
In this case, the parties do not dispute that M.H. was subjected to both physical and mechanical restraints. What the parties do dispute is whether the defendants who employed such restraints exercised professional judgment in doing so. The defendants argue that M.H.’s IEP did not specifically prohibit all physical restraint and that “it was the understanding of all involved that such physical restraint would be required at times.”
The affidavits of the defendants, Bour-gault, Wininger, Marchesi and Palangi, all describe the “behavior management plan” that was in place for M.H. during the times relevant here, which included “physical management techniques.” The defendants apparently derived these “prescribed physical management techniques” from the 1993 CREC report, a portion of which states:
All staff working with [M.H.] should receive Physical Management training and frequent refresher courses. It is important that staff feel comfortable and confident when using any form of physical management. Familiarity with these techniques will create a ‘safe’ learning environment and will reduce injury to staff and students. It is recommended that the staff become familiar with...
1) Non-verbal communications (nonthreatening posture, approach and style)
2) Defense zonesphysical safety
3) Grabs release (scratch avoidance)
4) Hair pull release
5) Escorts/Transports
6) Chair restraint (wrap)
Thus, while there is some evidence that the use of some type of restraint was necessary for M.H., the court concludes that there are material facts in dispute as to whether professional judgment was exercised in the development, maintenance, and implementation of this behavior plan. Drawing all inferences in favor of the non-moving plaintiff, the court is unable to “make certain that professional judgment was in fact exercised,”
Youngberg v. Romeo,
Specifically, the court is without facts concerning the circumstances of when physical and mechanical restraint were necessary for the safety of M.H. or others, whether each of the individual defendants followed the prescribed rules for using restraints, and whether the defendants received adequate training to use such restraints in an appropriate manner. In addition, the defendants have not provided the court with sufficient information about the individual defendants’ levels of expertise and experience for the court to conclude that they were each “competent, whether by education, training, or experience, to make the particular decision [regarding M.H.].”
Youngberg v. Romeo,
The defendants’ motion for summary judgment is therefore denied with respect to the plaintiffs substantive due process cause of action.
C. PROCEDURAL DUE PROCESS
The defendants next argue that they are entitled to summary judgment on counts three and four of the complaint which allege that they deprived the plaintiff of his procedural due process rights. Specifically, the defendants argue that “[t]he record in this case amply documents that M.H.’s parents at all times were aware of, and freely exercised, their due process rights with respect to his education.” The defendants argue that the M.H.’s parents requested and received a due process hearing to determine whether M.H. was receiving a free appropriate public education, and have thus received all the due process available to them.
In response, the plaintiff argues that the defendants deprived M.H. of his interest in a free appropriate public education, without the due process of law. Specifically, the plaintiff argues that the behavior plan implemented by the defendants lacked parental consent and was not properly documented. In addition, the plaintiff argues that “fundamental changes in plaintiffs program changes involving the use of aversive techniques were implemented without changes to an IEP, notice to the parents, or a PPT.”
“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due
The Supreme Court has identified two types of procedural due process challenges: first, a challenge based on a state’s regulations or procedures; and second, a challenge based on unauthorized, random acts of state employees.
See Hudson v. Palmer,
“Because the State cannot remedy a violation of the IDEA until it occurs, this was an instance where a post-deprivation remedy is the only one ‘which the State could reasonably be expected to provide.’ ”
“BD” v. DeBuono,
Based on the above, the court concludes that the board of education and the individual defendants are entitled to summary judgment for the plaintiffs procedural due process causes of action.
The defendant, the Bristol board of education, next argues that it is entitled to summary judgment on count one of the complaint because the plaintiff has not alleged facts to show that the municipality is liable for the alleged wrongdoings of its employees. In response, the plaintiff argues that “the municipal custom of restraining plaintiff, without a behavior plan, without any documentation, was, in itself, illegal.”
In
Monell v. New York City Dep’t of Soc. Servs.,
A plaintiff who seeks to impose liability on a municipality under § 1983 must identify a “municipality ‘policy’ or ‘custom’ that caused the plaintiffs injury.”
Board of County Comm’rs of Bryan County v. Brown,
(1) a formal policy which is officially endorsed by the municipality, see Monell,436 U.S. at 690 [,98 S.Ct. 2018 ]; (2) actions taken or decisions made by government officials responsible for establishing municipal policies which caused the alleged violation of the [plaintiffs] civil rights, see Pembaur v. City of Cincinnati,475 U.S. 469 , 483-84,106 S.Ct. 1292 ,89 L.Ed.2d 452 (1986); (3) a practice so persistent and widespread that it constitutes a ‘custom or usage’ and implies the constructive notice knowledge of policy-making officials, see Monell at 690-91[,98 S.Ct. 2018 ]; or (4) a failure by official policy makers to properly train or supervise subordinates to such an extent that it amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact, see City of Canton v. Harris,489 U.S. 378 , 388,109 S.Ct. 1197 ,103 L.Ed.2d 412 (1989).
‘BD” v. DeBuono,
Here, the plaintiff has not alleged that the board of education endorsed a formal policy or maintained a custom of physically restraining handicapped children in its charge or depriving handicapped children of their rights under the IDEA.
See “BD” v. DeBuono,
“That a plaintiff has suffered a deprivation of federal rights at the hands of a municipal employee will not alone permit an inference of municipal culpability and causation .... ”
Board of County Comm’rs of Bryan County v. Brown,
The court concludes that the plaintiff has not alleged sufficient facts to show that the board of education is liable for the alleged wrongdoings of the individual defendants. The board of education’s motion for summary judgment is therefore granted.
E. SUPERVISORS’ LIABILITY
The individual defendants, Bourgault, Ives, Maher, and Wasta, next argue that they are entitled to judgment as a matter of law in counts two, three and four of the complaint because there is no basis for their supervisory liability under § 1983. Specifically, the defendants argue that “[n]one of the four standards for supervisory liability can be met here ....” In response, the plaintiff argues that “[a]t this point, plaintiff cannot say which of the four types of personal involvement ... may be applicable to each of the four supervisory defendants,” but that there are “sufficient allegations to conclude, through reasonable inference, that such personal involvement was present.”
“[Pjersonal involvement of defendants in alleged [unlawful] deprivations is a prerequisite to an award of damages under § 1983.”
Williams v. Smith,
(1) the [supervisory official] participated directly in the alleged [unlawful] violation, (2) the [official], after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the [official] created a policy or custom under which [unlawful] practices occurred, or allowed the continuance of such policy or custom, (4) the [official] was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the [official] exhibited deliberate indifference to the rights of [others] by failing to act on information indicating that [unlawful] acts were occurring.
Johnson v. Newburgh Enlarged Sch. Dist.,
Counts two, three and four of the amended complaint allege that the supervisory defendants violated M.H.’s substantive due process rights and IDEA procedural rights by using “mechanical restraint and other aversive techniques.” The plaintiff concedes that he “cannot state, with certainty,” which of the above scenarios occurred, but argues: “What is clear from the allegations of the Amended Complaint is that the supervisory defendants knew of the aversive practices, had the ability to remedy the problem, either through halting the practices or convening a PPT to adopt a behavior management plan, yet they did nothing.”
The affidavits of the defendants, Maher, Wasta and Ives, make clear that these defendants each learned of the spitting incident on May 10, 1996, and took prompt action to address Palangi’s actions. There is no evidence that these supervisors had any previous knowledge of similar incidents. Nor is there any evidence that any of these defendants were personally involved in developing M.H.’s behavior management plan, in planning his IEPs, or in mechanically or physically restraining M.H. The plaintiffs assertions, without any documentary evidence, that these defendants knew of the unauthorized aversive techniques and failed to remedy the situation, are insufficient to show that the personal involvement of the defendants, Maher, Wasta or Ives in the alleged unlawful deprivations, which “is a prerequisite to an award of damages under § 1983.”
Williams v. Smith,
The affidavit of the defendant, Bourgault, demonstrates that she was familiar with M.H.’s IEP as well as the behavior management plan in place for M.H. based on the 1993 CREC report. Bourgault was in a position to know that the behavior plan for M.H. which was used by his teachers was not formally included in his IEP or consented to by Mr. and Mrs. H. Bourgault thus knew of the alleged IDEA procedural violation and the substantive due process violation and did nothing to remedy these wrongs. The court concludes that she is not entitled to judgment as a matter of law.
The motion for summary judgment is, therefore, granted as to the defendants, Maher, Wasta and Ives, and is denied as to the defendant, Bourgault.
F. QUALIFIED IMMUNITY
The defendants, Bourgault, Win-inger, Marchesi and Palangi finally argue that they are entitled to qualified immunity for their actions because their actions did not constitute a knowing violation of federal law and were objectively reasonable. In response, the plaintiff argues that the individual defendants are not entitled to qualified immunity because their obligations under the IDEA were clear, and that the Supreme Court’s decision in
Youngberg v. Romeo,
Government officials performing discretionary functions are provided with qualified immunity to “shield[ ] them from civil damages liability as long as their actions could reasonably have been thought con
The second circuit has concluded that in making the determination of whether a right is “clearly established,” a court must consider: “(1) whether the right in question was defined with ‘reasonable specificity;’ (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.”
Wright v. Smith,
With respect to the plaintiffs causes of action for violations of the IDEA, the court concludes that the individual defendants are not entitled to qualified immunity because the law was clearly established that each child’s individualized education plan be developed and revised at least annually, by a team composed of the parents of the child with a disability. 20 U.S.C. § 1414(d).
See Butler v. South Glens Falls Cent. Sch. Dist.,
With respect to the plaintiffs cause of action for violation of M.H.’s substantive due process rights, the court concludes that the individual defendants are not entitled to qualified immunity at this time because, as discussed above, it is uncertain whether they exercised professional judgment when restraining M.H.
The court therefore concluded that the individual defendants are not entitled to qualified immunity for their actions at this time.
II. STATE LAW CAUSES OF ACTION-SOVEREIGN IMMUNITY
In addition to their federal causes of action, the plaintiff brings state common law causes of action against the defendants, Wininger and Palangi, for assault and intentional infliction of emotional distress, and the common law tort of negligence against the defendants, Wininger, Palangi and Marchesi.
The individual defendants first argue that they are not liable for the alleged torts committed upon the plaintiff, M.H., based upon the doctrine of sovereign immunity. Specifically, the defendants argue that because the board of education and its agents “were engaged in providing special education services to M.H., an activity of the State, the protections of sovereign immunity are triggered and there can be no liability of the defendants for any alleged assault, intentional infliction of emotional distress or negligence.” In response, the plaintiff argues that these individual defendants are being sued in their individual
In Connecticut, the protection of sovereign immunity in tort actions “has been extended to agents of the state acting on its behalf.”
Cahill v. Board of Education of City of Stamford,
“[T]he furnishing of an education for the public is a state function and duty ... placed upon the state by article eighth, § 1 of the state constitution ....”
11
Town of Cheshire v. McKenney,
The court concludes that the torts allegedly committed by the defendants-assault, infliction of emotional distress and negligence-stem from the defendants providing special education services pursuant to a delegated state responsibility. The defendants are therefore entitled to sovereign immunity from liability on counts five, six and seven of the complaint.
See Todd M. v. Richard L.,
The court concludes, therefore, that the defendants, Wininger, Marchesi and Palan-gi, are entitled to sovereign immunity from liability on counts five, six and seven of the complaint.
For the reasons stated herein, the defendants’ motion for summary judgment (documents no. 58, 71) is GRANTED IN PART and DENIED IN PART. The motion is granted as to the defendants the board of education, Maher, Wasta and Ives; as to all the defendants with respect to the plaintiffs causes of action based on procedural due process violations (counts one and three); and as to the defendants in counts five, six and seven of the complaint. The motion is denied in all other respects.
Notes
.Title 42 of the United States Code, section 1983, states: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress 42 U.S.C. § 1983.
. The Individuals with Disabilities Education Act, 42 U.S.C. § 1400 et seq., requires that states receiving federal funding provide children with disabilities a “free appropriate public education." 20 U.S.C. § 1412.
. This action is brought by a minor, M.H., by and through his parents, Mr. and Mrs. H. For purposes of this discussion, the court will refer to M.H. as “the plaintiff.”
. Joanne Craig, a behavior analyst at the Capitol Regional Education Counsel, completed the behavioral assessment of M.H. and provided the defendants with a recommended behavioral management plan in 1993.
. Title 20 of the United States Code, section 1415 states that "[w]henever a complaint has been received ... the parents involved in such complaint shall have an opportunity for an impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency.” 20 U.S.C. § 1415(f)(1).
.Section 10-76h of the Connecticut General Statutes sets forth the procedures for conducting the due process hearing, as required by 20 U.S.C. § 1415(1).
. The plaintiff argues that summary judgment is not appropriate on any of the counts because the "[p]laintiff has been denied all opportunity to conduct formal or informal discovery since August 1999.” Pursuant to the court's pretrial order, the period for formal discovery closed on November 10, 1998. On September 27, 2000 and October 10, 2000,
The plaintiff and his counsel, having had a full opportunity for discovery, cannot now argue that summary judgment is inappropriate because they decided, for whatever reason, not to pursue such an opportunity. Their repeated argument that they have "suffered from the deprivation of their rights to use the federal rules of discovery,” is equally without merit, as it is the plaintiff’s and counsel’s own actions that have limited the amount of discovery that they have conducted.
. The EHA was amended in 1990 and renamed the Individuals with Disabilities Education Act. Because the EHA was the foundation for the IDEA, “cases which have addressed the rights of disabled children under the EHA remain precedent for interpretations of the IDEA.”
Straube v. Florida Union Free Sch. Dist.,
. The Court defined a " 'professional’ deci-sionmaker” as a “person competent, whether by education, training or experience, to make the particular decision at issue.”
Youngberg v. Romeo,
. Moreover, the plaintiff has not alleged that the board of education's inadequate training of the individual defendants was the " ‘moving force’ behind the plaintiff's injury.”
See Board of County Comm’rs of Bryan County v. Brown,
. Article eighth, § 1 of the Connecticut constitution states: "There shall always be free public elementary and secondary schools in the state. The general assembly shall implement this principle by appropriate legislation.”
. The plaintiff argues that, under Connecticut law, sovereign immunity is not available to municipal defendants sued in their individual capacities. However, when a plaintiff "makes no claim ... that any of the defendant officers sued in their individual capaci-lies acted pursuant to an unconstitutional enactment or in excess of statutory authority[,] ... sovereign immunity requires dismissal [of those portions of the complaint seeking damages.]”
Fetterman v. Univ. of Connecticut,