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