Price ex rel. J.K. v. Mueller-Owens

516 F.Supp.3d 816

Mikiea PRICE, AS mother and NEXT FRIEND OF J.K., a minor, Plaintiff,

v.Robert MUELLER-OWENS, Madison Metropolitan School District and Liberty Mutual Insurance Company, Defendants.

19-cv-854-bbc

United States District Court, W.D. Wisconsin.

Signed February 2, 2021

Daniel P. Bach, Lawton & Cates, S.C., Jefferson, WI, Dixon R. Gahnz, Daniel S. Lenz, Lawton & Cates, S.C., Madison, WI, for Plaintiff.

Kathryn A. Harrell, Sarah Anne Zylstra, Boardman & Clark LLP, Madison, WI, for Defendants.

OPINION AND ORDER

BARBARA B. CRABB, District Judge

J.K. is a junior high school age student in the Madison Metropolitan School District. In 2019, while she was a sixth-grade student, she was involved in an altercation at school with defendant Robert Mueller-Owens, who was employed by the district as a positive behavior support coach at the time. J.K. alleges that Mueller-Owens pulled her hair, pushed, punched, hit, and threw her after trying to force her to leave a classroom. J.K.’s mother, Mikiea Price, filed this suit under 42 U.S.C. § 1983 and state law, seeking to recover damages from Mueller-Owens for J.K.’s alleged injuries. Price also named the school district and Liberty Mutual Insurance Company, which insures the district, as defendants. (Because Price, the school district and Liberty Mutual play no role in the resolution of this motion, I will refer to J.K. simply as "plaintiff" and Mueller-Owens as "defendant" for the remainder of this opinion.)

Now before the court is defendant's motion for summary judgment. Dkt. #21. Defendant contends that plaintiff's federal constitutional claims should be dismissed for plaintiff's failure to exhaust her administrative remedies and her inability to prove her claims. Defendant also argues that plaintiff's constitutional and state law claims should be dismissed on immunity grounds. Finally, defendant filed a motion requesting that plaintiff's complaint be dismissed because she destroyed important evidence. Dkt. #32. Because there are genuine and material factual disputes, I am denying defendant's motion for summary judgment. I will also deny defendant's request for dismissal of plaintiff's case as a sanction for spoliation.

Turning now to the undisputed facts, I note that many of the parties’ proposed findings were not helpful in determining which facts are material and whether the parties have genuine factual disputes. As the moving party, defendant had to show that there were no genuine disputes of material fact. A significant number of defendant's proposed findings were quotes from the deposition testimony of individual eyewitnesses. However, what one person said during a deposition cannot be treated as an undisputed fact for purposes of summary judgment if someone else presents an entirely different version of events. And defendant made few attempts to distill an undisputed version of events from the various eyewitness testimony.

Both sides spent a significant amount of time proposing findings about immaterial disputes, such as whether plaintiff attended gym on the morning of the incident; whether she sprayed perfume, rather than air freshener; whether she was late to class; and whether plaintiff's teacher was justified in calling for behavioral support. Such proposed facts are immaterial at summary judgment because defendant did not know about them at the time he engaged with plaintiff during the incident at issue.

After eliminating the parties’ immaterial or unsupported proposed findings, I find the following facts to be undisputed for the purpose of summary judgment, except where noted otherwise.

UNDISPUTED FACTS

A. The Parties

During the 2018 to 2019 school year, plaintiff J.K. was eleven years old and a sixth-grade student at Whitehorse Middle School in Madison, Wisconsin. Plaintiff was 5 feet, 4 inches tall and weighed more than 100 pounds. Defendant Robert Mueller-Owens worked at the middle school as a positive behavior coach. Defendant was 5 feet 11 inches tall and weighed 273 pounds. Defendant's role at the school was to cultivate a positive environment for students and teachers. He helped students learn behavior strategies, and he helped teachers navigate and repair difficult relationships with students. Defendant had been trained in crisis intervention and de-escalation techniques.

B. Plaintiff's Behavior and Individualized Education Program

Plaintiff had difficulty during her sixth grade year at Whitehorse. She was bullied by other students and she thought that school personnel, including defendant, sided with other students against her. Plaintiff had difficulty regulating her emotions and she sometimes acted out by yelling, swearing, crying, arguing, making threats, or using violence against teachers and other students. On one occasion, plaintiff chased another student with scissors while making threats that she would harm him. (Defendant proposed several facts regarding specific behavior incidents involving plaintiff that are listed in a behavior report. However, the specific incidences would be relevant only if defendant was aware of them at the time of the incident at issue in this case. Defendant did not propose any facts or submit evidence showing that he was aware of all of the incidents in plaintiff's behavior report.)

Defendant had interacted with plaintiff regarding her behavior and had observed that she could have explosive emotions. The parent of the student who was chased in the scissors incident had called defendant to ask why plaintiff was permitted to remain at school and to report that her son was afraid for his life because of plaintiff's conduct.

Plaintiff's mother was concerned about plaintiff's social, emotional and behavioral functioning. Early in the 2018-2019 school year, plaintiff's mother requested that the school develop an individualized education program for plaintiff. (An "individualized education program" is a personalized plan, provided for by the Individuals with Disabilities in Education Act, that is intended to insure that a child with physical or intellectual disabilities receives an appropriate education. 20 U.S.C. §§ 1400 - 82.) The school district issued an individualized education program for plaintiff in December 2019, and plaintiff started receiving special education services as a result. Plaintiff's plan included a behavior safety plan that identified strategies to help plaintiff de-escalate her emotions and behavior, including: (1) calmly redirect expectations; (2) remind plaintiff to go to a predesignated safe space; or (3) offer plaintiff an opportunity to call her mother or talk to another trusted adult. The plan directed that staff should avoid "too much talking" and yelling. Defendant was not involved in the development of plaintiff's individualized education program and he did not review the plan or plaintiff's behavioral assessment.

C. February 13, 2019 Incident

During the homeroom period on February 13, 2019, someone sprayed air freshener inside the door of the classroom used by Barbara Pietz, a sixth-grade science and math teacher. Plaintiff was not assigned to Pietz's classroom for the homeroom period. But Pietz thought that plaintiff had been in the hallway and had sprayed the air freshener into the classroom, so she called behavior support and asked if someone could take the air freshener away from plaintiff because it was making it difficult for Pietz to breathe. (Plaintiff admits that she had air freshener at school, but denies that she sprayed it into Pietz's classroom and states that she kept the air freshener in her locker. Plaintiff says that she did spray perfume on herself, either in the hallway or in Pietz's classroom.)

Meanwhile, plaintiff was assigned to a different homeroom class. She had had some behavior problems during class, and had been asked to leave. She went to defendant's office to discuss her behavior, accompanied by Tambercia Gue, a special education and behavior support assistant. (Plaintiff attempts to dispute the evidence regarding her trouble during homeroom period with the deposition testimony of Gue, but plaintiff admitted at her own deposition that she met with defendant during her homeroom period to discuss behavior issues. Dkt. #15 at 62-64.)

Plaintiff was scheduled to attend Pietz's second class of the day. Plaintiff arrived a few minutes late to class and she did not sit in her assigned seat. (Plaintiff attempts to dispute this fact by citing the deposition testimony of Gue, but plaintiff admitted at her deposition that she was late to class and that she did not sit in her assigned seat. Id. at 13-14.) Plaintiff began talking to her friends. Pietz asked plaintiff several times to sit in her seat, but plaintiff continued talking to her friends. (According to plaintiff, she could not sit in her seat because someone else was sitting in it, and the person refused to move.) Pietz then told plaintiff that she would stand next to plaintiff until she complied, and plaintiff became irritated. (According to Pietz, plaintiff told Pietz to get out of her face and threatened to spray air freshener at Pietz. Plaintiff denies saying this to Pietz, but admits that she sprayed perfume on herself and that Pietz did not like it.) Pietz then called behavioral support and asked that someone remove plaintiff from the class.

Defendant responded to Pietz's call for behavior support. He arrived at Pietz's classroom and motioned for plaintiff to come to the door of the classroom. Plaintiff refused. Using a calm voice, defendant tried again to get plaintiff to come to the door. Plaintiff began moving around the classroom, so defendant entered the classroom, attempting to get plaintiff to follow him out. Defendant told plaintiff that the situation was not a big deal and that they could resolve the situation easily. Defendant tried for several minutes to get plaintiff to leave. At one point, plaintiff went to the pencil sharpener and sharpened a pencil. (Defendant says that, at one point, plaintiff...