United States District Court, E.D. Kentucky, Northern Division, Covington
S.R., ET AL. PLAINTIFFS
KENTON COUNTY SHERIFF'S OFFICE, ET AL. DEFENDANTS
OPINION AND ORDER
William Bertelsman, United States District Judge
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.
are Charles Korzenborn, the Sheriff for Kenton County,
Kentucky, in his official capacity only,  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.
is based on this Court's federal question jurisdiction.
See 28 U.S.C. § 1331.
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).
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.
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).
having heard from the parties, and having carefully studied
this matter, the Court issues the following Opinion and
and Procedural Background
The SRO Program
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.
agreement also provided that SROs would be trained to work
with youth in schools; 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.
Applicable Kentucky “Physical Restraint”
discussing the handcuffing incidents at issue herein, the
Court will review the Kentucky regulations applicable to such
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” on a student only if the
“student's behavior poses an imminent risk of
physical harm to self or others.” 704 KAR 7:160 §
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 §
regulation further prohibits school personnel from imposing
“mechanical restraints” on students at any
time. 704 KAR 7:160 § 3(2). 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).
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).
The Handcuffing of S.R.
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).
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
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).
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).
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.
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.
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).
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.
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).
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.
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).
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).
after the handcuffing incident, S.R.'s mother requested,
for the first time, an educational accommodation for S.R.
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.
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).
while S.R. had been treated in 2012 for ADHD symptoms, school
administrators received no documentation of such diagnosis
The Handcuffing of L.G.
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.
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.
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).
incident was Sumner's first encounter with L.G., and he
knew nothing of her record from prior school years. (Sumner
Depo. 186, 193).
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).
October 3, ...