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Doe v. Aberdeen School District

United States District Court, D. South Dakota, Northern Division

September 27, 2019

JANE DOE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, A.A.; JOHN DOE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, A.A.; JESSICA DOE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, B.B.; JAMES DOE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, B.B.; JILL DOE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, C.C.; AND JEFF DOE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, C.C.; Plaintiffs,
v.
ABERDEEN SCHOOL DISTRICT, BECKY GUFFIN, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; CAMILLE KAUL, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; RENAE RAUSCH, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; COLLEEN MURLEY, FN HER INDIVIDUAL AND OFFICIAL CAPACITY; MICHAEL NEUBERT, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; CARRIE WIESENBURGER, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; AND DOES 1-2, Defendants.

          MEMORANDUM AND ORDER

          CHARLES B. KORNMANN UNITED STATES DISTRICT JUDGE

         This matter is before the Court on defendants Aberdeen School District and Carrie Wiesenburger's (collectively "defendants") motions to dismiss plaintiffs' claims under the United States Constitution, via 42 U.S.C. § 1983, the Americans with Disabilities Act (ADA), 42 U.S.C. §§12101, et seq., the Rehabilitation Act, 29 U.S.C. §§ 794, et seq, the South Dakota Human Rights Act (SDHRA), SDLC Chapter 20, § 13, and negligence under South Dakota law, the claim being that there is a lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Docs. 23 and 26.

         BACKGROUND

         The alleged events giving rise to this action transpired over the course of two years, while plaintiffs' minor children were students at May Overby Elementary ("May Overby") in Aberdeen, SD. Doc. 1 at 2. May Overby is a South Dakota public school and is part of the Aberdeen School District ("ASD"). Id. at 6. Plaintiffs' minor children are all students with disabilities that require special care. Throughout all relevant times, each minor child has had an individualized education program ("IEP") as required by State and Federal law. Doc. 24 at 10-11. While in school at May Overby, each minor child was taught by defendant Wiesenburger.

         Plaintiffs Jane and John Doe's minor child, A.A., has been diagnosed with autism spectrum disorder and moderate cognitive disability. Doc. 1 at 7. Plaintiffs allege that A.A. was the regular subject of physical and emotional abuse at the hands of defendant Wiesenburger and her education aides. Id. at 8-9. It is contended that A.A. was confined to a separate room "without food, water, or a restroom break 274 times between October 26, 2015 - March 1, 2016." Id. at 9. Plaintiffs allege that when A.A. was being removed to this separate room, defendant Wiesenburger or one of her aides would "push[], shove[], and drag[]" her into the room. Id. Plaintiffs further allege that the door to the separate room would be held shut by defendant Wiesenburger or her aides if A.A. tried to leave and that, while inside this separate room, A.A. was denied access to "lunch, water, and any educational inclusion or activities." Id. at 9-10.

         Plaintiffs assert that "on September 3, 2014, Jane Doe went to the YMCA pool to observe A.A. during her swim class .. . Jane Doe saw an education aide" put her face very close to A.A.'s, and that "A.A. cowered from the aide." Doc. 1 at 8.

         Plaintiffs Jessica and James Doe's minor child, B.B., has been diagnosed with "autism, attention deficit hyperactivity disorder, and chronic anxiety." Doc. 1 at 13. Plaintiffs contend that B.B was the subject of regular physical and emotional abuse at the hands of defendant Wiesenburger and her education aides. Id. at 14-5. Plaintiffs allege that B.B. was "routinely dragged, shoved, pushed, pulled, and carried crying out of the classroom" by defendant Weisenburger or her aides when he did not want to participate in gym class. Id. at 15. Plaintiffs also allege that, as a means of discipline, B.B. would be "barricaded up against the wall in the anteroom [to the classroom] with a partition" by defendant Weisenburger or her aides. Id.

         Plaintiffs further allege that defendant Wiesenburger and her aides would force B.B. to swim by pulling his fingers loose from the pool's edge and forcing him into the middle of the pool. Id. at 14. Plaintiffs allege that this was done while B.B. was without a "floatation vest" and that it would leave him "shaken and upset." Id. at 15.

         Plaintiffs Jill and Jeff Doe's minor child, C.C., has been diagnosed with mild to moderate inner ear hearing loss and is non-verbal, utilizing American Sign Language and hearing aids to communicate. Doc. 1 at 16. Plaintiffs claim that C.C. was regularly subjected to physical and emotional abuse at the hands of defendant Wiesenburger and her education aides. Id. at 17-8. Plaintiffs claim that defendant Wiesenburger and her aides would force C.C. up against the wall of the anteroom to the classroom with large mats, they would use their weight against the mats to hold C.C. in place and prevent him from leaving the anteroom. Id. at 18. Plaintiffs claim that these mats were used for disciplinary purposes, and that C.C. was often kept shut into the anteroom by mats for long periods of time. Id.

         Plaintiffs also allege that in August, 2016, defendant Wiesenburger and her aides "forcibly strip[ed]" C.C. in order to get him into a bathing suit. Doc. 1 at 17. Plaintiffs allege that C.C. was upset and refused to get into the swimming pool, in response to which, an aide approached C.C. from behind and physically pushed him into the pool. Id.

         Plaintiffs further allege that all three child plaintiffs observed defendant Wiesenburger engage in abusive conduct and use denigrating and abusive language directed toward other disabled children in the class, which caused them further emotional distress. Id. at 20-1. Plaintiffs also allege that defendant Wiesenburger kept her disabled students segregated from the rest of the class and regularly denied them access to educational instruction and class materials. Id. at 22.

         ARGUMENTS

         Defendants contend in their motion to dismiss for lack of jurisdiction that the gravamen of plaintiffs' lawsuit is a dissatisfaction with the education programs of these special education students. Doc. 24 at 1. Defendants' argument asserts that because plaintiffs are essentially seeking a remedy for their children's denial of a free appropriate public education ("FAPE"), they must exhaust all administrative remedies under the Individuals with Disabilities Education Act (IDEA) before prosecuting a case in the courts. Id. at 2. Defendants argue mat the requirement of exhaustion under the IDEA is jurisdictional in nature and, as plaintiffs have failed to exhaust their administrative remedies, this court is deprived of subject matter jurisdiction and should dismiss plaintiffs' complaint. Id. at 3. Defendants assert that all of plaintiffs' claims arise from aspects of the education of disabled students and, thus, concerns whether those students have received a FAPE. Id. at 21. Additional, but related, arguments state that plaintiffs' claims are for a denial of a FAPE because the complaint repeatedly references the overuse of restraint and seclusion procedures, which has been found to be a denial of a FAPE in previous cases. Id. at 19-20. Defendants also claim that plaintiffs allege no common law torts as the foundation of any non-educational injuries. Id. And finally, defendants claim that the locus of each allegation is in the educational setting and relates to the students' disabilities. Id.

         For their part, plaintiffs respond that the gravamen of their complaint is the past physical and emotional injuries they claim their minor children suffered at the hands of defendant Wiesenburger and her education aides. Doc. 28 at 2. Plaintiffs contend that these alleged physical and emotional injuries must be "disentangle[ed]" from the "educational setting." Id. Plaintiffs further argue that there has been no conflict between the parties as to "the evaluation, identification, placement, programming and services for the minor children with disabilities, " and that each child's IEP met that child's needs. Id. Plaintiffs contend ...


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