McCarthy v. Scottsdale Unified School District No. 48

          ORDER

          David G. Campbell Senior United States District Judge.

         Plaintiff 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, 46.^[1] 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 part.

         I. Background.

         The 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).

         A. The Parties.

         Sean 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.

         Defendants 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.

         B. Relevant Facts.

         In 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.

         Plaintiffs 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.^[2] 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.^[3] 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.

         On 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.

         Following 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. 1¶ 162.

         The 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.

         C. The Claims.

         Plaintiffs 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).

         Plaintiffs 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.

         D. Phase I.

         In a 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.

         II. Legal Standard.

         A party 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).

         III. Background Law.

         A. IDEA Background.

         The 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).

         A FAPE 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)).

         The IEP 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)).

         In the 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).

         B. A.R.S. § 15-105.

         Section 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 include:

[1] 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.

[2] 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.

[3] The brief holding of a pupil by one adult for the purpose of calming or comforting the pupil.

[4] 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).

         IV. Satterlie's Motion.

         Satterlie 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.

         A. The Settlement Release.

         The parties' Settlement contains the following release provision:

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.

         In 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.

         The 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.

         The 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 language.

         1. The Background Facts.

         Each challenged claim incorporates the background facts by reference. The Court will therefore discuss those facts first.

         A 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.

         Further, 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.

         Plaintiffs' 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. ¶¶ 124-29.

         In 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.

         As to 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.

         In sum, 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)).

         2. Count 2 Due Process Claim.

         Count 2 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 ...