United States District Court, D. Arizona
Sean McCarthy, a Student, individually and by and through his Parents John McCarthy and Mary McCarthy, individually, Plaintiffs,
Scottsdale Unified School District No. 48, a political subdivision of the State of Arizona; et al., Defendants.
G. Campbell Senior United States District Judge.
Sean McCarthy and his parents, John and Mary (together
“the McCarthys”), sued Defendants Scottsdale
Unified School District No. 48 (“the District”),
Christopher Satterlie, and others on various constitutional
and state law causes of action. Doc. 1 at 1-2. Satterlie
moved for partial summary judgment on four of Plaintiffs'
claims. Doc. 43. The remaining Defendants joined
Satterlie's motion and moved for partial summary judgment
on seven of Plaintiffs' claims. Docs. 44,
Satterlie joined this motion. Doc. 45. All motions are fully
briefed (Docs. 53, 54, 55, 59), and oral argument will not
aid in the Court's decision. Fed.R.Civ.P. 78(b); LRCiv
7.2(f). For the reasons set forth below, the Court will grant
Satterlie's motion and grant the District's motion in
following facts are largely undisputed. Where there is a
dispute, the evidence will be viewed in the light most
favorable to Plaintiffs, the nonmoving parties, and all
justifiable inferences will be drawn in their favor.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
McCarthy is the 18-year-old son of John and Mary McCarthy. He
has been diagnosed with Pervasive Developmental Disorder,
part of the autism spectrum. Doc. 1 at ¶¶ 2, 40.
Sean cannot communicate orally. Id. ¶ 3.
are or were employees of the District and Desert Mountain
High School (“the School”) and served various
roles related to Sean's education. Doc. 1 ¶¶
17-34. These roles include the District superintendent (Dr.
Denise Birdwell), the District's general counsel
(Michelle Marshall), the District's director of special
education services (Dawn Schwenckert), the District's
assistant superintendent of personnel and specialized
services (Pam Sitton), the District's executive director
of special education (Diane Bruening), the District's
director of special education - compliance (Tara Gonyer), the
District's executive director of student and community
services (Milissa Sackos), the School principal (Nikki
Wilfert), the School's assistant principals (David Vines
and Kristopher Alexander), the School's special education
teachers (Marjorie Richards, Cindy Guillaume, Laural Onstott,
Brian Akmon, and Christoper Satterlie), and the School's
psychologist (Andrea Mijak) and paraprofessionals (Marc Telep
and Carlos Lopez). Id. ¶¶ 17-31. For most
of the relevant time, Satterlie served as Sean's special
education teacher and was responsible for Sean's
“day-to-day education, assessment, and
supervision.” Id. Telep and Lopez were also
responsible for Sean's assessment, support, and
supervision. Id. ¶¶ 33-34. Plaintiffs sue
all Defendants in their official capacities and the following
Defendants in their individual capacities: Birdwell,
Schwenckert, Wilfert, Vines, Alexander, Richards, Onstott,
Akmon, Satterlie, Telep, and Lopez.
February 2015, Sean's individual education plan
(“IEP”) team agreed to send him to a
self-contained autism program at the School. Id.
¶ 49. Between IEP meetings in March 2015 and January
2016, the McCarthys contacted Sackos, Satterlie, and other
Defendants regarding concerns with the adequacy of services
provided to Sean. Id. ¶ 69. At the January 2016
IEP meeting, the team created a communication goal for Sean.
Id. ¶ 71. At the May 2016 IEP meeting, the
McCarthys became aware that Sean was lashing out in class and
had exposed himself on at least one occasion. Id.
¶ 78. In October 2016, the McCarthys agreed to allow the
District's behavior intervention team to observe Sean for
development of a behavior intervention plan
(“BIP”). Id. ¶ 94. The BIP was
created in November 2016. Id. ¶ 95.
contend that rather than implement Sean's BIP, the
District and its employees used physical restraints and
seclusion techniques to control Sean's behavior.
Id. ¶ 98. On January 11, 2017, the McCarthys
submitted a public records request to the District to obtain
Sean's discipline records. Id. ¶ 145.
Sometime during January 2017, the McCarthys reviewed these
documents and learned that the School's employees were
using crisis prevention intervention (“CPI”)
holds on Sean. Id. ¶ 148; Doc. 53 at 19
¶¶ 5, 32 (noting CPI holds on October 7 and
December 7, 2016). The McCarthys filed a complaint with the
Department of Education Office of Civil Rights
(“OCR”). Id. ¶ 149. After failing
to receive requested documents, the McCarthys filed a second
OCR complaint in April 2017. Id. ¶ 154.
April 13, 2017, the McCarthys and the District participated
in a mediation and signed a Settlement Agreement (“the
Settlement”). Id. ¶ 156. The Settlement
resolved all issues and disputes relating to the
McCarthys' two OCR complaints. See Doc. 43 at
16. The parties agreed that Sean would be placed at Sierra
Academy until he graduates or turns 22. Id. The
District also agreed to pay the McCarthys' legal bills
and provide Sean compensatory services in the form of: (1)
208 hours of compensatory education to focus on functional
life and job skills; (2) an in-home functional behavioral
assessment, a BIP, and 20 hours of parent training; (3)
community based services up to $1, 500; and (4) consultation
with the District's transition specialist to revise
Sean's transition plan and address post-secondary
employment opportunities. Id. at 16-17. The District
agreed to provide training to special education staff and
administrators on the proper use of restraint and seclusion
techniques, reporting requirements, and implementation of
IEPs. Id. at 17. The District also agreed to provide
the McCarthys with all emails related to Sean exchanged
between January and May 2016 and March and December 2015.
Id. The McCarthys agreed that they received adequate
consideration to resolve all of their IDEA, ADA, and Section
504 claims against the District. The McCarthys also released
the District, its Board members, employees, agents,
representatives, successors, assigns, insurers and attorneys
from any and all liability, rights, actions, claims,
obligations, demands, fees, and costs that arise from or
relate to claims under the IDEA. Doc. 43 at 17.
execution of the Settlement, the McCarthys learned about an
incident on January 19, 2017, where Telep performed multiple
CPI holds on Sean and pinned Sean against the wall before
“tackling him” to the floor. Docs. 1 ¶ 128,
53 at 50. A draft incident report described Sean as being
extremely upset and unable to be calmed by various
techniques. Doc. 53 at 50. The report states that Sean got
out of his chair and ran towards Telep swinging his fists.
Id. Telep turned Sean away, so he was facing the
wall. Id. Sean turned around again, swinging at
Telep, who then backed Sean to the corner of the room while
shielding himself, and then “turned Sean gently to the
floor to prevent him from going after anyone else
[nearby].” Id. Once Sean calmed down and was
ready to stand back up, Telep took him to the nurse.
Id. On the way out of the room and down the stairs,
Sean lunged at another student coming up the stairs and Telep
deflected the swings. Id. Attached to the report is
an e-mail from Onstott to Sean's math teacher - the
author of the incident report - asking her to take out the
part that says “he was up against the wall.” Doc.
53 at 49. The McCarthys claim to have received a copy of the
draft incident report from a private party, not from the
document requests sent to the School and District. Doc.
McCarthys contend that if they had known about the January 19
incident before the OCR complaint mediation, they would not
have signed the Settlement. Doc. 1 ¶ 167. After the
Settlement, the McCarthys went back and forth with the School
and District to obtain more information about Sean's
classroom experiences and discipline, but they never
initiated an IDEA due process complaint. Docs. 1 ¶¶
156-66, 43 at 21.
filed this suit on May 1, 2018. Doc. 1 at 43. Sean asserts
the following causes of action individually: (1) a §
1983 claim for violation of Fourth Amendment rights against
all Defendants (Count 1); (2) a § 1983 claim for
violation of Fifth Amendment rights against all Defendants
(Count 2); (3) a § 1983 claim for violation of
Fourteenth Amendment rights against all Defendants (Count 3);
(4) a § 1985 action for conspiracy to interfere with
civil rights against the District, Birdwell, Marshall,
Schwenckert, Sitton, Bruening, Gonyer, Sackos, Wilfer, Vines,
and Alexander (Count 4); (5) assault against Satterlie,
Telep, Akmon, and Lopez (Count 8); (6) battery against
Satterlie, Telep, Akmon, and Lopez (Count 9); (7) aiding and
abetting tortious conduct against the District, Birdwell,
Marshall, Schwenckert, Sitton, Bruening, Gonyer, Sackos,
Wilfert, Vines, Alexander, Richards, Onstott, Guillaume, and
Mijak (Count 10); (8) negligence against all Defendants
(Count 11); and (9) negligent hiring, training, and
supervision against the District, Birdwell, Schwenckert,
Sitton, Bruening, Gonyer, Sackos, Wilfert, Richards, Onstott,
and Guillaume (Count 13). The complaint alleges four claims
on behalf of all Plaintiffs and against all Defendants: (1)
discrimination in violation of § 504 of the
Rehabilitation Act (“§ 504”) (Count 5); (2)
discrimination in violation of the Americans with
Disabilities Act (“ADA”) (Count 7); (3) gross
negligence (Count 12); and (4) violation of A.R.S. §
15-105 (Count 14). Mary asserts one cause of action
individually for retaliation in violation of § 504
against the District and Birdwell (Count 6).
seek to enjoin Defendants from violating federal and state
civil rights and discrimination laws. Doc. 1 at 42. They
request a declaration that the District's policies,
procedures, and practices concerning the discipline and
behavior management of children with disabilities denied Sean
his right to full and equal access to, and use and enjoyment
of, the facilities, programs, services, and activities of the
District. Id. They request compensatory damages for
(1) costs for Sean's medical care, medications, and
psychiatric or psychological treatment and assessments to
deal with the severe emotional distress and physical harm
caused by Defendants; (2) costs for social and psychological
interventions and programs needed to assist Sean; (3) costs
for tutoring or other programs to remediate the academic
regression and lack of academic progress caused by
Defendants' actions; (4) costs of expanded long-term care
as a result of Sean's regression; (5) Sean's loss of
future income from his expected employment in an entry-level
job in the food service industry; (6) Sean's loss of
companionship; and (7) general damages for pain and
suffering, stress, and emotional damages caused by
Defendants. Id. Plaintiffs also seek punitive
damages and attorneys' fees. Id.
July 31, 2018 case management order, Judge Humetewa provided
for a phased discovery and summary judgment briefing
schedule. Doc. 32 at 5. Defendants motions are based on Phase
I discovery, which consisted of the documents related to
exhaustion of administrative remedies, filing of notices of
claim, the Settlement, and the statute of limitations.
Id.; see also Doc. 43, 44.
seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion and identifying those portions of [the record]
which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Summary judgment is appropriate if
the evidence, viewed in the light most favorable to the
nonmoving party, shows “that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
Summary judgment is also appropriate against a party who
“fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex, 477 U.S. at 322. Only
disputes over facts that might affect the outcome of the suit
will preclude summary judgment, and the disputed evidence
must be “such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Individuals with Disabilities Education Act
(“IDEA”) grants federal funds to states for
educating children with disabilities. Endrew F. ex rel.
Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct.
988, 991 (2017). The IDEA conditions receipt of funding on
compliance with certain statutory requirements, including
that states provide every eligible child a free and
appropriate public education (“FAPE”) by means of
an IEP. Id; see also 20 U.S.C. §§
1401(9)(D), 1412(a)(1). Children with disabilities and their
parents are provided with extensive procedural protections
set out in 20 U.S.C. § 1415. In particular, the statute
requires States to provide aggrieved parties with the
opportunity to mediate their disputes (§ 1415(e)), to
secure an impartial due process hearing to resolve certain
differences with state agencies (§ 1415(f)), and to
appeal any decision and findings to the state educational
agency (§ 1415(g)). See Payne v. Peninsula Sch.
Dist., 653 F.3d 863, 876 (9th Cir. 2011), overruled
on other grounds by Albino v. Baca, 747 F.3d 1162, 1171
(9th Cir. 2014).
is an education that “confer[s] some educational
benefit upon the handicapped child.” Bd. of Educ.
of the Henrick Hudson Cent. Sch. Dist. v. Rowley, 458
U.S. 176, 192, 201 (1982). It “comprises ‘special
education and related services' - both
‘instruction' tailored to meet a child's
‘unique needs' and sufficient ‘supportive
services' to permit the child to benefit from that
instruction.” Fry v. Napoleon Cmty. Schs., 137
S.Ct. 743, 748-49 (2017) (citing 20 U.S.C. §§
1401(9), (26), (29)).
is the primary vehicle for providing each child with a FAPE.
Id. at 750. “Crafted by a child's
‘IEP Team' - a group of school officials, teachers,
and parents - the IEP spells out a personalized plan to meet
all of the child's ‘educational needs.'”
Id. (citing 20 U.S.C. §
1414(d)(1)(A)(i)(II)(bb), (d)(1)(B)). The IEP documents the
child's current levels of academic achievement,
identifies measurable annual goals, and lists the special
education services and accommodations that will be provided
so the student can advance toward these goals and access the
general education curriculum. Id. (citing §
1414(d)(1)(A)(i)(I), (III), (IV)(aa)).
development of the IEP, the team considers a child's
behavior that impedes learning and the use of “positive
behavioral interventions.” 20 U.S.C. § 1414
(d)(3)(B)(i). Although not always necessary, failure to
provide or follow an appropriate BIP could affect provision
of a FAPE. See, e.g., A.G. v. Paradise
Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1206
(9th Cir. 2016) (finding a material issue of fact as to
whether a BIP and personal aide were necessary to provide
student a FAPE); E.H. v. N.Y.C. Dep't of Educ.,
164 F.Supp.3d 539, 554 (S.D.N.Y. 2016) (inadequate BIP denied
student a FAPE).
A.R.S. § 15-105.
15-105 permits schools to use restraint or seclusion
techniques when a pupil's behavior presents an imminent
danger of bodily harm to the pupil or others, and less
restrictive interventions appear insufficient to mitigate the
danger. A.R.S. § 15-105(A). The technique may be used
only by “school personnel who are trained in the safe
and effective use of restraint and seclusion techniques
unless an emergency situation does not allow sufficient time
to summon trained personnel.” Id. §
15-105(B)(3). The statute requires schools to “provide
the pupil's parent or guardian with written documentation
that includes information about any persons, locations or
activities that may have triggered the behavior, if known,
and specific information about the behavior and its
precursors, the type of restraint or seclusion technique used
and the duration of its use.” Id. §
15-105(D)(2). The statute defines restraint as “any
method or device that immobilizes or reduces the ability of a
pupil to move the pupil's torso, arms, legs, or head
freely, including physical force or mechanical
devices.” Id. 15-105(G)(1). Restraint does not
 Methods or devices implemented by trained school
personnel or used by a pupil for the specific and approved
therapeutic or safety purposes for which the method is
designed, and if applicable, prescribed.
 The temporary touching or holding of the hand, wrist,
arm, shoulder or back for the purpose of inducing a pupil to
comply with a reasonable request or go to a safe location.
 The brief holding of a pupil by one adult for the purpose
of calming or comforting the pupil.
 Physical force used to take a weapon away from a pupil or
to separate and remove a pupil from another person when the
pupil is engaged in a physical assault on another person.
Id. § 15-105(G)(1)(a)-(d).
moves for summary judgment on Counts 2, 3, 5, and 7. Doc. 43
at 1. He argues that these claims are barred by the
Settlement, and that Plaintiffs failed to exhaust their
administrative remedies under the IDEA. Id.
The Settlement Release.
parties' Settlement contains the following release
Parent's Release: Parents acknowledge and agree
that the consideration set forth herein is reasonable and
adequate to resolve their IDEA, ADA and Section 504 claims
against the District. In exchange, Parents release and
forever discharge the District and its Board members,
employees, agents, representatives, successors, assigns,
insurers and attorneys from any and all liability, rights,
actions, claims, obligations, demands, fees, and costs known
or unknown at the time of execution of this agreement that
arise from or related to claims under the [IDEA]. This
includes, but is not limited to all claims based on or
arising from federal or state law, known or unknown at the
time of execution of this agreement, the District's
alleged failure to provide appropriate services or that
pertain to claims of retaliation, discrimination, or the
identification, evaluation, educational placement or the
provision of FAPE under the IDEA, ADA, and Section 504 to the
Parents that may be filed with any State or Federal agencies
. . . or State or Federal courts, except that Parents retain
the right to file Section 504 and personal injury claims in
State or Federal courts.
Id. at 17-18 (“the Release”). Defendants
argue that the Release expressly bars Counts 2, 3, 5, and 7
because they arise from or are related to the IDEA. Doc. 43
at 3. Plaintiffs respond that the plain language and
circumstances of the Release do not bar Sean's claims,
and that the McCarthys expressly reserved the right to file
§ 504 and personal injury claims. Doc. 53 at 2.
Arizona, courts interpret contracts according to the
parties' intent. Taylor v. State Farm Mut. Auto
Ins., 854 P.2d 1134, 1138 (Ariz. 1993); see D.R. ex
rel. M.R. v. E. Brunswick Bd. of Educ., 109 F.3d 896,
898 (3d Cir. 1997) (recognizing that the settlement agreement
between parents and school district was a binding contract);
Doc. 43 at 18 (agreement should be construed in accordance
with Arizona law). The Court first considers the plain
meaning of the words in the context of the contract as a
whole. Grosvenor Holdings, L.C. v. Figueroa, 218
P.3d 1045, 1050 (Ariz.Ct.App. 2009). The Court must
“apply a standard of reasonableness to contract
language” and construe the contract “in its
entirety and in such a way that every part is given
effect.” Goddard v. R.J. Reynolds Tobacco Co.,
75 P.3d 1075, 1078 (Ariz.Ct.App. 2003) (citations and
quotation marks omitted). The Court must also consider any
relevant extrinsic evidence, and if “the contract
language is ‘reasonably susceptible' to the
interpretation asserted by its proponent, the evidence is
admissible to determine the meaning intended by the
parties.” Taylor, 854 P.2d at 1140 (citation
omitted). With these principles in mind, the Court will
interpret the Release by considering its language and
extrinsic evidence concerning the parties' intent,
including “negotiation, prior understandings, and
subsequent conduct[.]” Id. at 1139; see
generally Restatement (First) of Contracts § 235.
Release and the Settlement refer to the allegations in
Plaintiffs' OCR complaints. The parties have included
only the first complaint in the record. Doc. 44 at 15-16. It
alleges that Defendants failed to follow Sean's IEP and
provide appropriate services, Sean developed behavior
problems as a result, Sean regressed, Sean's behavior
plan was not being implemented correctly, and Sean had been
subjected to CPI holds from several staff members, but the
McCarthys were not notified. Id. The Settlement
resolves these allegations as they pertain to the ADA, IDEA,
and § 504 claims. Doc. 43 at 17.
Release's plain language shows that the McCarthys
released Defendants from all past and present ADA, IDEA, and
§ 504 claims. They also released all liability or claims
that originate from or are in some way connected to the IDEA.
This includes claims originating from or connected to state
or federal law or the District's failure to provide
appropriate services, and claims related to the
District's alleged retaliation or discrimination, or the
identification, evaluation, educational placement, or
provision of a FAPE under the IDEA, ADA, and § 504. Doc.
43 at 18; Black's Law Dictionary (11th ed. 2019)
(defining Arise and Related). The Court will address each
challenged claim to determine if it is covered by the Release
The Background Facts.
challenged claim incorporates the background facts by
reference. The Court will therefore discuss those facts
number of the background facts specifically allege
Defendants' failure to provide the special services and
accommodations that make up a FAPE. For example, Plaintiffs
allege that Defendants repeatedly denied Sean required
accommodations and services in the classroom, failed to
implement Sean's IEP, failed to properly train employees
and special needs educators about the specific services that
should have been provided to Sean so he could access his
education, and used untrained and unqualified individuals to
provide those inadequate services. Doc. 1 ¶¶ 4, 9,
58, 97, 173. Plaintiffs allege that Sean was wrongly denied
the ability to attend a computer skills class because of his
behavior, and that his behavior was out of control because
Defendants failed to employ the appropriate accommodations
and services to allow Sean to communicate. Id.
¶¶ 60-63. According to Plaintiffs, Defendants
denied Sean access to visual schedules and directions,
despite the fact that these were important to his ability to
communicate and a part of his IEP. Id. ¶ 65.
His inability to communicate led to increased negative
behaviors. Id. ¶ 66. Defendants' conduct
only exacerbated the problem, leading to an even greater
increase in aggressive behaviors. Id. ¶¶
68, 72, 76, 81, 84, 89. Sean's aggressive behaviors also
resulted from Defendants asking Sean to work on inappropriate
educational activities and goals, which only frustrated him
and caused him to act out. Id. ¶¶ 90-93.
the allegations address the inadequacy of Sean's IEP and
Defendants' violations of the IDEA and § 15-105.
Id. ¶ 86. The complaint alleges that the
IEP's behavioral goals did not reflect Sean's
behavior in the classroom, and the School failed to
adequately communicate to the McCarthys the extent of
Sean's behavioral issues during IEP meetings.
Id. ¶¶ 51-52. When Sean's behavior
worsened, Defendants failed to convene an IEP meeting to
address the behavior. Id. ¶¶ 68, 76. The
complaint alleges that Sean's IEP did not include a BIP
with restraint options or address when CPI holds should be
used. Id. ¶ 54. When a BIP was finally created,
the School never followed it. Id. ¶ 95.
Sean's IEP did not comply with federal and District
guidelines and requirements. Id. ¶ 85. And the
McCarthys were consistently deprived of formal documentation
regarding specific incidents and use of restraint or CPI
techniques in violation of § 15-105. Id.
¶¶ 78-79, 141. Plaintiffs further allege that the
District's policy of not requiring compliance with §
15-105 denied Sean a FAPE “because it treated him
differently than non-disabled students and caused new
academic and behavioral issues that were never
addressed.” Id. ¶ 143.
background allegations focus on Defendants' restraint and
seclusion techniques, alleging that they were excessive,
unlawful, and illegally used for punishment purposes.
Id. ¶ 99. They allege that “on multiple
occasions, Telep admitted to using restraint and seclusion
techniques, where no threat of danger was present, in order
to punish Sean.” Id. ¶ 104. Plaintiffs
allege that none of the individuals performing these
restraints or CPI holds were certified in CPI techniques.
Id. ¶¶ 119-23. Plaintiffs allege that (1)
“[o]n at least one occasion Sean was tackled to the
floor by [Telep]”; (2) “[o]n more than one
occasion, [Telep and Akmon] pushed Sean and pinned him
against a wall”; (3)“[o]n multiple occasions
[Lopez] forcibly removed Sean from his learning environment,
secluding him from other students”; (4)“[o]n
January 19, 2017, [Telep] performed multiple ‘CPI
holds' on Sean and used unlawful and excessive force to
pin Sean against the wall and tackle Sean to the
floor”; and (5) “[o]n January 19, 2017, Telep
held Sean on the floor, immobilizing Sean's arms and legs
for an extended period of time.” Id.
multiple paragraphs of their complaint, Plaintiffs tie these
allegations of excessive and unlawful restraint to Sean's
educational rights and FAPE and allege that these restraints
were a result of Defendants failing to implement the IEP and
BIP and failing to provide Sean with the appropriate
accommodations to address his frustration and behaviors.
Id. ¶¶ 97-98. For instance, Plaintiffs
allege that Sean was not adequately challenged, but instead
“asked to work on goals that he had long ago mastered
and would easily lose interest in[.]” Id.
¶ 91. “The lack of interest that Defendants
created often led Sean to act out physically.”
Id. ¶ 92.
injuries, Plaintiffs allege that Defendants' acts caused
academic and behavioral regression. Id. ¶ 6.
Plaintiffs allege that Sean was denied appropriate
educational benefits and that Defendants' actions
violated his right to be free from discrimination and denied
Sean a FAPE. Id. ¶ 170. As discussed above, the
remedies Plaintiffs seek are declaratory relief that Sean was
essentially denied access to the programs and facilities of
the District. Id. at 42. Plaintiffs also seek costs
for tutoring and academic remediation, long-term care for
Sean's behavioral regression, and loss of future income
from his expected employment. Id. at 43.
Plaintiffs' background facts center on Defendants'
failure to follow educational regulations and accommodate
Sean so he could adequately access his educational benefits,
which led to his behavioral issues and Defendants' use of
restraints. Even though the background facts include numerous
references to excessive or unlawful restraints, they are tied
to Defendants' actions regarding Sean's education
and, from the incident report provided, appear to be related
to behavior control in the classroom. Further, all of the
alleged incidents occurred prior to the parents filing the
OCR complaint. Plaintiffs also request compensatory education
and care for behavioral regression, which demonstrate that
they are seeking relief for an inappropriate education.
See B.H. v. W. Clermont Bd. of Educ., 788 F.Supp.2d
682, 700 (S.D. Ohio 2011) (“Compensatory education is
meant to ‘place children in the position they would
have been in but for the violation of the [the IDEA].”
(quoting Draper v. Atlanta Indep. Sch. Sys., 518
F.3d 1275, 1289 (11th Cir. 2008)).
Count 2 Due Process Claim.
incorporates the complaint's background facts and
contains the following statements: “under the Fifth and
Fourteenth Amendments to the United States Constitution, Sean
has a right to be free from deprivations of liberty without
due process of law.” Doc. 1 ¶ 186. Defendants
acted under color of law in violation of Sean's Fifth and
Fourteenth Amendment rights when they restrained him.
Id. ¶ 187. Sean was deprived of liberty when he
was restrained and removed from his peers without due
process. Doc. 1 ¶ 188. Plaintiffs further allege that
Defendants did not evaluate whether their actions were
appropriate in light of Sean's disabilities in violation
of his Fifth and Fourteenth Amendment rights to due process.
Id. ¶ 189. Plaintiffs allege that ...