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H.C. v. Fleming County Kentucky Board of Education

United States District Court, E.D. Kentucky, Central Division, Lexington

September 25, 2017

H.C. and R.D.C., by and through his next friends, his parents, R.D. and H.C., Plaintiffs,



         This matter is pending for consideration of Defendants Fleming County Kentucky Board of Education, Brian Creasman, Carol Thompson, and Michele Hawkins' motion for summary judgment. [Record No. 43] Plaintiff R.D.C. alleges that the defendants failed to provide him with a free adequate public education, discriminated against him in violation § 504 of the Rehabilitation Act (“§ 504”), the Americans with Disabilities Act (“ADA”), and 42 U.S.C. § 1983, and violated his procedural due process rights under the Fourteenth Amendment. Plaintiffs H.C. and R.D.C. allege that the defendants retaliated against them in violation of state and federal law. Finally, the plaintiffs allege state law claims of negligence, negligent training and supervision, and intentional infliction of emotional distress.[1" name="FN1" id= "FN1">1] For the reasons outlined below, the motion for summary judgment will be granted in its entirety, and the plaintiffs' claims will be dismissed.


         Plaintiff R.D.C. was a fourth and fifth grade student at Hillsboro Elementary School (“HES”) during the 2014-15 and 2015-16 school years. He was cited twenty-six times during that period for various incidents of bullying, harassment, disrespectful behavior, defiance of authority, and fighting. [Record 43-2, Attachment L] HES also received at least five reports from other parents that R.D.C. was bullying his classmates during this period. [Record No. 43-2, Attachment I] R.D.C. denied being at fault for most of these incidents. He claimed that his bus driver, teachers, principal, and other school personnel made things up to get him in trouble, and complained that “no one believed him” and he “[got] blamed for everything.” [Id.]

         H.C. believed that R.D.C. was being mistreated by the other students, teachers, and school personnel, and was “very aggressive in her protection [of] her child . . . .” [Record No. 1, ¶ 28] According to R.D.C.'s fourth grade teacher, Angel Hilterbrand, his fifth grade teacher, Defendant Michele Hawkins, and his principal, Defendant Carol Thompson, H.C. and R.D.C. claimed numerous times that R.D.C. was being physically or verbally harassed by his peers, but these accusations could not be verified following investigation by his teachers or Principal Thompson. [Record Nos. 43-3, ¶¶ 5-6; 43-4, ¶ 5; 43-5, ¶ 8] Each stated that they never personally observed any mistreatment of R.D.C.

         To the contrary, Hilterbrand reported that during the 2014-15 school year R.D.C. “displayed bullying behavior toward his classmates and toward [him], ” and on one occasion told Hilterbrand that he would “burn in hell.” [Id.12] Principal Thompson referred R.D.C. to counseling on October 1, 2014, based on the following observations: “He is disrespectful to staff and students. States that no one helps him. He wants to stay home. Picks at other students. Doesn't trust any adult at school.” [Record No. 43-3, Attachment E] But R.D.C.'s parents refused the counseling services. [Id.]

         According to Defendant Hawkins, during the 2015-16 school year, R.D.C. “primarily displayed average behaviors in class compared to his same-age peers, and engaged in misconduct during unstructured time such as hallway transitions, recess, and in the cafeteria.” [Record No. 43-4, ¶ 6] Defendant Hawkins referred R.D.C. to counseling on October 8, 2015, based on her observations that he “shows anger and opposition when students accuse him of things, and then is upset when teacher asks him-very defensive. Has lied multiple times to teacher regarding his behavior, bullies and name calls other kids. No respect for authority from him or his mother.” [Record No. 43-4, Attachment A] The school therapist contacted H.C. about the referral. [Id.] However, H.C. again refused the services, and the therapist noted that she was angry to receive the phone call and threatened her, saying that if she called again “so help me God, the outcome won't be pretty.” [Id.]

         The record is replete with contentious encounters between H.C. and the HES staff, which H.C. viewed as aggressive protection of her child, and the HES staff viewed as intimidating, bullying, and abusive behavior. [See Record Nos. 43-2; 43-3; 43-4; 43-5; 43-6.] Hilterbrand testified that, as a result of H.C.'s bullying, he “became fearful for [his] safety, ” “would not walk to [his] car alone, ” and requested not to meet with H.C. without being accompanied by another employee. [Id. ¶¶ 4-5, 10-12] Hilterbrand reportedly received “abusive and intimidating phone calls and text messages from H.C. at [his] residence and on [his] personal cell phone in the evenings and on weekends.” [Id. ¶ 3] Similarly, Hawkins claims that “H.C. spoke with [her] in person and by telephone in an abusive, threatening, and degrading manner, which interfered with [her] performance of [her] duties” on numerous occasions. [Record No. 43-4, ¶ 11]

         Both teachers reported these incidents to Principal Thompson and the superintendent, Defendant Creasman. [Record Nos. 43-4, ¶ 13; 43-5, ¶ 4] In response to numerous complaints from HES personnel about their interactions with H.C. on their personal phones, Superintendent Creasman sent H.C. a letter on November 6, 2014, requesting that all future communication with school staff be through the school office rather than their personal phones. [Record No. 43-2, ¶ 4, Attachment A]

         The plaintiffs' attorney responded with a letter to Superintendent Creasman dated November 20, 2015, requesting “a § 504 hearing due to Fleming County's failure to identify the child, to provide the child a free and appropriate education, to educat[e] their child in a safe environment[, ] and to protect the child from verbal abuse while attending [HES].” [Record No. 43-2, Attachment B] R.D.C.'s teachers and principal all claim that, prior to this date, they were never informed that R.D.C. had any diagnosis of any disability, and never formed the conclusion that a referral for a disability evaluation was needed. [Record No. 43-3, ¶ 16; 43-4, ¶¶ 3, 10; 43-5, ¶¶ 7, 13] R.D.C. did receive speech therapy when he was younger, but he was released in 2013. [Record No. 57');">57-1] H.C. also testified that R.D.C. had medical diagnoses of asthma, allergies, and migraine headaches. [Record No. 60, Attachment 1, p. 79-81]

         Several incidents occurred shortly thereafter. Principal Thompson called H.C. after the Thanksgiving break to schedule a meeting to discuss the § 504 process. [Record No. 43-3, ¶ 8] However, H.C. became angry with Principal Thompson for calling and told her to contact her attorney instead. [Id.] H.C. came to the school office on December 9, 2015, and accused Thompson of harassing her family. [Id. at ¶ 9] Then, R.D.C. received in-class discipline on December 14, 2015 for being disrespectful to Defendant Hawkins. [Id. at ¶ 10] H.C. called Principal Thompson that afternoon and accused her of lying about the reason for the in-class discipline. [Id.] R.D.C. allegedly hit a classmate with an oversized pencil on December 18, 2015, the last day of school before winter break. [Id. at ¶ 11] He was suspended for three days as a result. [Record No. 43-3, Attachment A]

         Principal Thompson wrote to H.C. over the winter break, requesting that all future contact with the school be in writing. [Record No. 43-2, ¶ 7, Attachment C] H.C. disregarded this letter and called Principal Thompson on January 4, 2016 to appeal R.D.C.'s suspension. [Record No. 43-3, ¶ 13] She also asked Superintendent Creasman to overturn R.D.C.'s suspension during a meeting that same day. [Record No. 43-2, ¶ 8] Both Principal Thompson and Superintendent Creasman declined to modify the suspension.

         Two days after returning to school, R.D.C. reportedly threatened to shoot another student during an argument. [Record No. 43-3, ¶ 14] He and the other student were each suspended for three days, from January 11, 2016 to January 13, 2016, and required to complete a threat assessment before returning to school. [Id.14, Attachment C] The Kentucky Department of Education contacted Principal Thompson that same morning and notified her that H.C. had made a complaint against the school staff. [Id.15] Based on her recent experiences with H.C., this phone call, and her anticipation of H.C.'s reaction to R.D.C.'s suspension, Principal Thompson sent Superintendent Creasman a letter recounting her interactions with H.C. [Record Nos. 43-2, Attachment E; 43-3, ¶ 15] After receiving the letter, Superintendent Creasman determined that a heightened response was necessary, and wrote to H.C. on January 12, 2016, directing her not to come onto school property without his prior permission. [Record No. 43-2, ¶ 10, Attachment F]

         Based on her past experiences in procuring a threat assessment, Principal Thompson expected R.D.C. to return to school after three days, on January 14, 2016 (the same return date as the other suspended student). [Id.14] However, R.D.C.'s threat assessment was not performed until March 14, 2016. [Record No. 43-2, Attachment J] It was not received by the school until April 27, 2016, when the parties finally held a § 504 meeting. [Record Nos. 43-2, ¶ 15; 43-3, ¶ 14] R.D.C. returned to school the following day. H.C. had previously attempted to bring R.D.C. to school on March 21, 2016, after the threat assessment was performed, but before it was provided to HES. However, when she arrived at school, the school secretary told H.C. that she was prohibited from entering school property, and notified Defendants Creasman and Thompson of her presence. [Record No. 43-6, ¶¶ 5-6] Defendant Creasman filed a criminal trespass complaint against H.C. as a result. [Record 43-2, Attachment K]

         It further appears that R.D.C.'s sister also did not attend school while R.D.C. was absent, although no disciplinary action was taken which would have prevented her from attending. [Record Nos. 43-2, ¶ 19] As a result, truancy charges were brought against H.C., based on an affidavit stating that R.D.C.'s sister had twenty-two unexcused absences during the school year. [Record No. 57');">57, Exhibit 14]


         Summary judgment is appropriate when there are no genuine disputes regarding any material facts and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 17');">477 U.S. 317, 322-23 (1986); Chao v. Hall Holding Co., 15');">285 F.3d 415, 424 (6th Cir. 2002). A dispute over a material fact is not “genuine” unless a reasonable jury could return a verdict for the nonmoving party. That is, the determination must be “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); see Harrison v. Ash, 539 F.3d 510, 516 (6th Cir. 2008). In deciding whether to grant summary judgment, the Court views all the facts and inferences drawn from the evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 57');">574');">475 U.S. 57');">574, 587 (1986).


         A. The Plaintiffs' Discrimination and Retaliation Claims

         1. Individual Capacity Liability under § 504, the ADA, and KRS Chapter 344

         The Sixth Circuit has held that § 504 and the ADA do not give rise to individual liability. See Lee v. Mich. Parole Bd., 104 F. App'x 490, 493 (6th Cir. 2004) (“[N]either the ADA nor the [Rehabilitation Act] impose liability upon individuals”); see also Williams v. McLemore, 247 F. App'x 1, 8 (6th Cir. 2007) (“[T]he ADA does not permit public employees or supervisors to be sued in their individual capacities.”) (citing Sullivan v. River Valley Sch. Dist., 197 F.3d 804');">197 F.3d 804, 808 n. 1 (6th Cir. 1999); Wathen v. Gen. Elec. Co., 115 F.3d 400');">115 F.3d 400, 404-05 n.6 (6th Cir. 1997); Walker v. Snyder, 13 F.3d 344');">213 F.3d 344, 346 (7th Cir. 2000)). It has also explained that this same analysis extends to KRS Chapter 344. See Wathen, 115 F.3d at 405. The plaintiffs have neither addressed this issue nor presented any claim which would warrant departing from this binding precedent. Accordingly, the plaintiffs' § 504, ADA, and KRS Chapter 344 claims against Defendants Creasman, Thompson, and Hawkins, in their individual capacities, will be dismissed.[2]

         2. R.D.C.'s Discrimination Claims

         Defendant Fleming County Kentucky Board of Education (the “Board”) argues that R.D.C.'s claims that he was discriminated against, denied educational services, and subjected to disparate treatment in violation of § 504, the ADA, and 42 U.S.C. § 1983, should be dismissed because R.D.C. failed to exhaust his administrative remedies. The Board contends that, although R.D.C. did not expressly bring a claim under the Individuals ...

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