N.P. v. Sch. Bd.

N.P., a minor, by EDDIE PERILLO, his natural guardian, Plaintiff, v. THE SCHOOL BOARD OF OKALOOSA COUNTY, FLORIDA;LARRY ASHLEY, IN HIS OFFICIAL CAPACITY AS SHERIFF OF OKALOOSA COUNTY, FLORIDA;MARY BETH JACKSON; STACIE SMITH; ARDEN FARLEY; ANGELYN VAUGHAN;JOAN PICKARD; MELODY SOMMER; MARLYNN STILLIONS;DWAYNE VASILOFF; and DOES 1-30, Defendants.

CASE NO. 3:18cv453-MCR-HTC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

September 30, 2019

ORDER

Plaintiff N.R. is an autistic, nonverbal child, who allegedly suffered physical and verbal abuse at the hands of his special education teacher, Marlynn Stillions, while he was enrolled at Kenwood Elementary School in Okaloosa County, Florida during the 2014-15 and 2015-16 school years. N.R., through his father, Eddie Perillo, filed the instant action against the Okaloosa County School Board, the Sheriff of Okaloosa County in his official capacity, and eight individual defendants, alleging federal constitutional and statutory claims, as well as claims under Florida law.¹ All defendants except Stillions have moved for dismissal of N.P.'s claims.² Having carefully considered the law, the complaint, and the parties' arguments, the Court rules as follows.

I. Background

The basic facts, as alleged in the Second Amended Complaint, ECF No. 135, and construed in favor of N.P., are as follows.³

A. The Parties

Plaintiff N.P. is an autistic, nonverbal child enrolled in the exceptional students education ("ESE") program at Kenwood in Fort Walton Beach, Florida. Kenwood is a public school in the Okaloosa County School District ("the School District"), governed and overseen by Defendant Okaloosa County School Board("School Board"). During the time period relevant to this case, Defendant Mary Beth Jackson was the Superintendent of the School District⁴ and Defendant Stacie Smith was the Assistant Superintendent of Human Resources.⁵ The Program Director for the ESE Department was Melody Sommer.⁶ The School District also employed an investigator, Defendant Arden Farley, who was responsible for, as relevant to this case, investigating allegations of misconduct by instructional personnel and school administrators. Deputy Dwayne Vasiloff was employed by the Okaloosa County Sheriff's Office as Kenwood's Resource Officer.⁷ Defendant Marlynn Stillions was a special education instructor at Kenwood during the 2014-15 and 2015-16 school years. Defendant Angelyn Vaughan was the principal at Kenwood until she retired after the 2015-16 school year, at which time Julie Pickard became Kenwood's principal.⁸

B. The Allegations of Abuse at Kenwood

In April 2014, N.P., a nonverbal three-year old child diagnosed with autism spectrum disorder, began attending the pre-kindergarten ESE program at Kenwood. During the 2014-15 and 2015-16 school years, when N.P. was four and five years old, he was assigned to Stillions's special education classroom. During those years, unnamed school employees observed N.P. and other nonverbal students suffer numerous abuses by Stillions. For example, as "disciplinary tactics," Stillions forced vinegar into N.P.'s mouth and sprayed it in his face, or instructed teacher's assistants to do so; kneed him in the head and body to force him to sit down; angrily screamed and yelled at him and other ESE nonverbal students; and, for "not behaving" or "for the sole purpose of provoking and upsetting" them, Stillions would deprive N.P. and other ESE students of their lunch or portions of their breakfast. According to the Second Amended Complaint, Stillions would purposefully trip N.P. as he enteredthe cafeteria and, at times, restrained him by the waistband and shirt, carried him into the cafeteria, and threw him on the floor. It is alleged that on numerous occasions, N.P. was observed lying on the floor of the cafeteria visibly upset or crying as Stillions used her foot to push or kick him down one of the aisles. In addition, Stillions secluded nonverbal ESE students, including N.P., in a basket, where she would place a bean bag on or near the child's genitals and step on it to cause the child pain.⁹ Also on numerous occasions, Stillions grabbed and pinched N.P.'s face and body, causing red marks and bruises. On at least one occasion, Stillions allegedly told another employee that grabbing and pinching students was how she relieved her own stress. It is alleged that Stillions targeted N.P. and other nonverbal students because of their vulnerable status and inability to speak out or complain. N.P. is alleged to have suffered physical pain from abuse, evidenced by red marks and bruises on his skin, as well as emotional pain, including post-traumatic stress disorder, all of which has resulted in medical expenses.

According to the complaint, the abuse was "rampant and widespread" and "consistent" over a two-year period and many unnamed School District employees observed Stillions inflicting abuse on N.P. and others. It is alleged generally that allof the defendants were on notice of Stillions's conduct but failed to intervene or otherwise properly report the abuse.¹⁰ Specifically, Kenwood Principal Vaughan was told in August 2014 by one employee that another Kenwood employee had observed Stillions spraying a student in the face with a squirt bottle, yet Vaughan took no action in response. In February 2016, a Kenwood employee reported to Principal Vaughan that Stillions had grabbed N.P. by the waist band and collar of his shirt. Again, nothing was done. A month later, in March 2016, a Kenwood employee reported to Vaughan that N.P. had red marks on his face from Stillions pinching him. Principal Vaughan took no action to investigate or intervene until April 26, 2016, when she sent an email to the School District's Human Resources Department describing "Code of Ethics violations" reported by several School District employees "who had seen Stillions acting abusively to nonverbal, disabled ESE students at Kenwood." ECF No. 135 ¶ 102. Farley commenced an investigation into Stillions's conduct the next day, April 27. As discussed further below, by late February 2016, HR Assistant Superintendent Smith andSuperintendent Jackson were already on notice of similar abuse at a different school within the School District, Silver Sands, where another ESE teacher was also abusing nonverbal disabled ESE students. It is alleged that the School Board, as well as Jackson, Smith, and Farley were notified about Stillions's abuse "shortly after" being made aware of the abuse at Silver Sands.

As part of Farley's investigation of Stillions, he interviewed approximately 20 School District employees. Those interviewed expressed grave concerns about Stillions's behavior and recounted the history of her abuse of ESE students, including N.P., dating back to the 2014-15 school year. During the investigation, Farley and unnamed School District administrators told employees they were not to discuss the investigation or their knowledge of Stillions's conduct, which was allegedly intended to intimidate Kenwood employees and to further conceal the multi-year pattern of abuse. It is also alleged that school officials, namely Superintendent Jackson, HR Assistant Superintendent Smith, Principal Julie Pickard, and ESE Director Melody Sommer were aware of Farley's investigation. On June 17, 2017, Farley presented an Investigative Summary Report to Smith and Pickard, which outlined the details and findings of his investigation, including multiple confirmed allegations of child abuse of N.P. Although Farley recommended some disciplinary measures against Stillions, he did not make a mandatory report to the Florida Department of Children and Families ("DCF") Abuse Hotline as required by law, and neither did Smith or Pickard.

Kenwood Resource Officer, Deputy Vasiloff, was also allegedly on notice of Stillions's widespread abuse of ESE students, including N.P., and failed to intervene or report the abusive conduct.¹¹ N.P. alleges that investigators from the DCF "approached" Vasiloff sometime between 2015 (N.P.'s second year in Stillions's classroom) and 2017 regarding alleged child abuse of ESE students. Also, although DCF was called at least 50 times for investigative visits to Kenwood regarding student abuse from 2015-2017, Vasiloff intentionally refused to conduct the required law enforcement investigations and, in the vast majority of cases, did not generate any report regarding the allegations of abuse.¹²

On July 18, 2016, one month after Farley's report on Stillions, HR Assistant Superintendent Smith sent an email to Superintendent Jackson, Investigator Farley, and Principal Pickard acknowledging the School District's failure "to emphasizeand/or enforce the mandatory requirement to report child abuse" and requesting that, in light of the "Stillions events," child abuse/neglect training be provided to employees during the 2016-17 school year. ECF No. 135 at ¶109. The next day, Pickard sent a reply email to the same officials expressing that the employees' failure to report was a result of their not knowing "what/when" to report and fearing retaliation by a teacher's union if they reported abuse. See id. Two weeks later, on August 1, 2016, Smith "dismissed the case" against Stillions as untimely and decided not to include Farley's report in Stillions's personnel records. The School Board, Jackson, Smith, Farley and Sommer then approved Stillions for a transfer to Silver Sands for the following 2016-17 school year, where she was placed in another ESE classroom with even more severely disabled students.

Throughout the relevant time period in this case, none of the School District officials reported Stillions's abuse to the students' parents or to appropriate authorities, despite their state-mandated reporting obligation. N.P. alleges that this was all part of a "long-standing custom, policy, and/or practice" within the School District of deliberate indifference and concealment of abuse of ESE students.¹³

C. ...