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S.R. v. Kenton County Sheriff's Office

United States District Court, E.D. Kentucky, Northern Division, Covington

October 11, 2017

S.R., ET AL. PLAINTIFFS
v.
KENTON COUNTY SHERIFF'S OFFICE, ET AL. DEFENDANTS

          OPINION AND ORDER

          William Bertelsman, United States District Judge

         Introduction

         This is an action brought pursuant to 42 U.S.C. § 1983 for unreasonable seizure and excessive force and for violation of the Americans with Disabilities Act, 42 U.S. § 12132. Plaintiffs, suing through their mothers, are two elementary school children who were handcuffed by a School Resource Officer (“SRO”) while attending schools within the Covington Independent Public School District (“CIPS”) in Covington, Kentucky.

         Defendants are Charles Korzenborn, the Sheriff for Kenton County, Kentucky, in his official capacity only, [1] and Kevin Sumner, the SRO who handcuffed plaintiffs, in both his official and individual capacities. As discussed below, Sumner was assigned to CIPS schools pursuant to a contract between the Kenton County Sheriff's Office and the Covington Board of Education. However, neither the Board of Education nor the school district is a party herein.

         Jurisdiction is based on this Court's federal question jurisdiction. See 28 U.S.C. § 1331.

         This matter is currently before the Court on defendants' motions for summary judgment regarding plaintiff S.R. (Doc. 151) and plaintiff L.G. (Doc. 152) and plaintiffs' motion for partial summary judgment (Doc. 153).

         The Court heard oral argument on these motions on August 22, 2017, after which it took these motions under submission pending the parties' efforts to resolve this case. (Doc. 182).

         The Court has now been notified that those efforts were unsuccessful and that the parties jointly request a written ruling on the above motions. (Doc. 186).

         Therefore, having heard from the parties, and having carefully studied this matter, the Court issues the following Opinion and Order.

         Factual and Procedural Background

         A. The SRO Program

         In 2014, Kenton County Sheriff Department SROs served in the CIPS pursuant to a written agreement between the Sheriff and the CIPS board. (Doc. 151-4). That agreement provided that the Sheriff would provide four SROs and one SRO Coordinator to serve as a liaison between the Sheriff's Office and the school board. Defendant Sumner was one of the four SROs provided to CIPS schools, and Ken Kippenbrock (“Kippenbrock”) was the SRO Coordinator.

         The SRO agreement also provided that SROs would be trained to work with youth in schools[2]; would assist school personnel with maintaining order in the schools; and would interact in a positive manner with all students. Id. at 3. This agreement also provided that the “SRO shall not act as a school disciplinarian, as disciplining students is a school responsibility.” Id. at 4.

         B. Applicable Kentucky “Physical Restraint” Regulations

         Before discussing the handcuffing incidents at issue herein, the Court will review the Kentucky regulations applicable to such matters.

         In 2013, the Kentucky Board of Education adopted a regulation titled “Use of physical restraint and seclusion in public schools.” 704 KAR 7:160. The regulation defines “school personnel” to include “school resource officers.” 704 KAR 7:160 § 1(13). It further provides that school personnel may use a “physical restraint”[3] on a student only if the “student's behavior poses an imminent risk of physical harm to self or others.” 704 KAR 7:160 § 3(a).

         The regulation also provides that school personnel may not use physical restraints as “punishment or discipline, ” to “force compliance or to retaliate, ” as “a routine school safety measure, ” or as “convenience for staff.” 704 KAR 7:160 § 3(1).

         This regulation further prohibits school personnel from imposing “mechanical restraints” on students at any time. 704 KAR 7:160 § 3(2).[4] In addition, the regulation requires that all school personnel be trained annually in “state administrative regulations and school district policies and procedures regarding physical restraints and seclusion.” 704 KAR 7:160 § 6(1)(a).

         Finally, the preamble to this regulation states that it “does not prohibit the lawful exercise of law enforcement duties by sworn law enforcement officers.” Kippenbrock, the SRO Supervisor, testified that he provided a copy of this regulation to the SROs when it was published in 2013. (Kippenbrock Depo. 120). He pointed out the preamble, but he did not tell them that the regulation did not apply to them. (Kippenbrock Depo. 122).

         B. The Handcuffing of S.R.

         In the fall of 2014, S.R. was an eight-year old boy enrolled in the third grade at Latonia Elementary School. He was approximately 4 feet tall, and he weighed 54 pounds. (Doc. 154-20). S.R. had been diagnosed with attention deficit hyperactivity disorder (ADHD) and post-traumatic stress disorder (PTSD). (Doc. 151-25). However, S.R. attended regular classes and, at the time of the incidents in question, had not been identified to school administrators as having any disability. He did not have an “Individual Education Plan” (“IEP”). (Meyer Aff. Doc. 151-24; Ramirez Depo. 130-31).

         On November 11, 2014, S.R. was combative and violent toward school staff. Assistant Principal Maranda Meyer (“Meyer”) and special education teacher Nicholas Staples (“Staples”) used a kneeling “cradle restraint” to stop him from kicking and hitting. (Meyer Depo. 107-12). Meyer video recorded the incident so that she could show S.R.'s mother how he was behaving. (Meyer Depo. 81-82, 97). S.R. was given a one-day suspension. (Meyer Depo. 105-06).

         S.R. returned to school on November 13, 2014. He again became disruptive in class, so Meyer was asked to intervene. She reported to the classroom and stayed for about twenty minutes, observing S.R. and giving him instructions. (Meyer Depo. 117). She then left but soon another student came to get her because S.R. was again causing problems. Meyer went to get S.R. from the classroom to bring him to her office, but he ran away from her and tried to hit Staples. (Staples Depo. 39-40). Meyers and Staples then carried S.R. to Meyer's office using a cradle transport. (Meyer Depo. 118; Staples Depo. 42, 44).

         While in the office, Meyers and Staples twice tried to deescalate S.R.'s behavior by using kneeling cradle restraints for approximately five minutes. Principal Ann James (“James”) then came into the room, and James told Meyer to begin filming because James' IPad was not charged. (Meyer Depo. 120; James Depo. 72).

         Staples held the door closed while S.R. tried to open it, swatting at Staples and trying to kick him in the leg. Staples testified that he had a bad injury on his leg and that S.R. knew about it and was intentionally trying to kick it. (Staples Depo. 27).

         After several minutes, school counselor Michael Shipley (“Shipley”) was asked to hold the door closed from outside so that Staples could move away from the door to avoid S.R.'s kicks. (Shipley Depo. 49). S.R. continued kicking the door and trying to push it open. (Shipley Depo. 66).

         After determining that their de-escalation efforts were unsuccessful, school personnel made the decision to call defendant Kevin Sumner (“Sumner”), an employee of the Kenton County Sheriff's Office, who was a SRO in Northern Kentucky. At that time, Sumner was at another school. (Sumner Depo. 142). Meyer told Sumner that they had a student who was out of control who was “physically assaulting” their staff, and that the parent was unavailable. (Sumner Depo. 144). Sumner drove to Latonia Elementary in his cruiser. (Sumner Depo. 143).

         In the meantime, James' efforts to reach S.R.'s mother were successful, and S.R. began speaking to her on the phone. (Meyer Depo. 121; James Depo. 79). S.R. stated that he needed to use the restroom, and his mother requested that he be allowed to go to the bathroom and that she would come to pick him up. Thereafter, Meyer stopped filming because she thought S.R. was calming down.

         When Sumner arrived at the school, he saw Shipley holding the door to Meyer's office closed. (Sumner Depo. 143). Sumner entered the office, and he saw S.R. standing at Meyers' desk talking on the phone with his mother. (Id. at 170). Sumner did not know S.R. before this time. (Sumner Depo. 139). James asked Sumner to escort S.R. to the bathroom, and he did so. When Sumner and S.R. returned to Meyer's office, S.R. did not follow Sumner's instruction to sit down. Sumner leaned over to speak to S.R., telling him that his mother was on the way. (Sumner Depo. 163). S.R. then swung his elbow towards Sumner's face, and Sumner leaned to the left and put out his hand, which was struck by S.R.'s elbow. (Sumner Depo. 162-62; Meyer Depo. 123-24; Staples Depo. 53).

         Meyer then resumed filming, and Sumner said “you're not allowed to swing at me like that.” Sumner handcuffed S.R. behind his back, placing the cuffs on S.R.'s biceps above the elbows. The video shows that S.R.'s arms are pulled tightly behind his back with what appears to be only approximately three or four inches between his elbows. Sumner testified that he checked the handcuffs for tightness and that, since the chain connecting the handcuffs was nearly as long as the width of S.R.'s body, he had no reason to believe it would cause him pain. The video clearly demonstrates, however, that the chain is not nearly as wide as S.R.'s body, and that his arms are extremely taut.

         Sumner can be heard stating, “You can do what we've asked you to or you can suffer the consequences.” (Doc. 156 - video). S.R. can be heard saying, “Oh, God. Ow, that hurts.” (Meyer Depo. 136-37). Sumner tells S.R. that: if he wants the handcuffs off, he has to behave and “ask nicely”; “if you want them off, all you have to do is stop kicking”; and “it's up to you if you want them off or not.” S.R. remained handcuffed for approximately fifteen minutes, crying and squirming, after which Sumner removed the cuffs. (Meyer Depo. 128). Thereafter, S.R.'s mother arrived at the school to take him home and learned he had been handcuffed. She told Meyer that S.R. had PTSD and so she was concerned about his being handcuffed. (Meyer Depo. 142).

         When S.R. and his mother left, the school staff asked Sumner to write an offense report to document that they had been victims of a crime. (Sumner Depo. 172). (Doc. 154-22).

         A month after the handcuffing incident, S.R.'s mother requested, for the first time, an educational accommodation for S.R.

         In January 2015, the Kenton County Sheriff was contacted by the Children's Law Center regarding the handcuffing incident. Sheriff Korzenborn and Kippenbrock directed Sumner to prepare an investigative narrative regarding the handcuffing of S.R. (Sumner Depo. 174-5; Kippenbrock Depo. 91; Korzenborn Depo. 71).

         In April 2015, school administrators determined that S.R. needed a formal behavior intervention and crisis plan, but they found insufficient evidence of a disability. S.R.'s mother challenged that determination, and eventually the parties settled and agreed to a 504 Plan effective August 18, 2015. (Meyer Depo. 143; Ramirez Depo. 31-33).

         Finally, while S.R. had been treated in 2012 for ADHD symptoms, school administrators received no documentation of such diagnosis until 2015.

         C. The Handcuffing of L.G.

         In the fall of 2014, L.G was a nine-year old girl enrolled in the fourth grade at John G. Carlisle Elementary School in Covington. She weighed about 56 pounds. L.G. had been diagnosed with ADHD and she had a 504 plan, but she attended regular classes. (Collins Depo. 175; Craig Depo. 37-38). The plan did not address any behavioral issues or problems.

         On August 21, 2104, L.G. was being disruptive in her classroom, banging on the table and making loud noises. (Collins Depo. 129). Principal Joy Collins (“Collins”) went to the classroom and, with the assistance of another teacher, escorted L.G. out of the classroom to the calm room. (Collins Depo. 131). Collins called for Sumner and asked him to talk to L.G. about the seriousness of such behavior, and he did. (Collins Depo. 182; Sumner Depo. 195). L.G. then appeared to have calmed down, and Sumner left the campus. (Sumner Depo. 198).

         However, L.G.'s behavior again escalated. (Collins Depo. 134-35). When L.G. began hitting and kicking again, Sumner was called to help take her home because efforts to reach her mother were unsuccessful. (Collins Depo. 138; Craig Depo. 45-49). When Sumner arrived, L.G was screaming and refusing to sit down. (Sumner Depo. 199). Sharon Craig (“Craig”), the Assistant Principal, determined that they could not safely put L.G. on the school bus, so she asked Sumner to drive her and L.G. to L.G.'s home to wait for her mother. (Sumner Depo. 199-201; Craig Depo. 50) They left the school around 2:00 p.m., and L.G.'s mother arrived home around 3:30 p.m. (Craig Depo. 53).

         This incident was Sumner's first encounter with L.G., and he knew nothing of her record from prior school years. (Sumner Depo. 186, 193).

         In September 2014, Sumner became aware of issues with L.G.s mother's not ensuring that L.G. took medicines she was prescribed. (Sumner Depo. 209; Craig Depo. 60-64). He had been informed by school personnel that L.G.'s behavioral issues were related to the failure to take her medication, and that they had truancy concerns due to her multiple absences. (Sumner Depo. 212-215).[5]

         1. October 3, ...


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