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Considine-Brechon v. Dixon Public School District # 170

United States District Court, N.D. Illinois, Western Division

June 8, 2017

Dawn Considine-Brechon, et al., Plaintiff,
v.
Dixon Public School District # 170, et al., Defendant.

          ORDER

          PHILIP G. REINHARD JUDGE.

         Judge Philip G. Reinhard For the reasons stated below, the motions [21] [23] of the School Defendants and Banks to dismiss the federal claims are granted. Counts II, III, IV, and V.1 are dismissed without prejudice. The court declines to exercise supplemental jurisdiction over the remaining state law claims and they are dismissed without prejudice as well. Plaintiffs may file an amended complaint on or before July 14. 2017.

         STATEMENT-OPINION

         Plaintiff, Dawn Considine-Brechon (“Dawn”), brings this action, both in her individual capacity and as the legally appointed plenary guardian of the person and estate of her adopted daughter, Stevielyn Considine a/k/a Cyndel Considine (“SCC”), a disabled person.[1] In the amended complaint [13], Dixon Public School District # 170 Board of Education, Dixon Public School District # 170 (“District”), Lee County Special Education Board of Directors, Lee County Special Education Association (“LCSEA”), and Amanda Banks, Corena Steinmeyer, Susan Stastny, Nancy Kane, Margo Empen and Michael Juenger (all in their individual capacities) are named as defendants. The “Unknown Employer of Amanda Banks” is also named as a defendant.[2]

         The amended complaint originally contained a Count I alleging claims for violation of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”). Plaintiffs, the District and the LCSEA settled these IDEA claims and a stipulated order [17] was entered dismissing the Count I claims with prejudice.

         The remaining counts are as follows: Count II is a Section 1983 action asserting Fourteenth Amendment violations against all defendants; Count III is a Section 1983 action asserting Fourteenth Amendment violations against the District and the LCSEA; Count IV asserts violations of section 504 of the Rehabilitation Act (29 U.S.C. § 701 et seq.); Count V.1[3]asserts violations of the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) against the District and the LCSEA; Count V.2 asserts a state law claim for professional negligence against Banks, Steinmeyer, the District and the LCSEA; Count VI is a state law claim for intentional infliction of emotional distress against all defendants; Count VII is a state law claim for reckless infliction of emotional distress against all defendants; and Count VIII is a state law false imprisonment claim against Banks, Kane, Stastny, Steinmeyer, the District and the LCSEA.

         Banks moves [21] to dismiss Counts II, V.2, VII and VIII for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6), and the District, the LCSEA, Steinmeyer, Stastny, Kane, Empen and Juenger (“School Defendants”) move [23] to dismiss all claims against them pursuant to Rule 12(b)(6).

         The following facts are taken from the allegations in the amended complaint. SCC was 21 years of age when this action was commenced on May 16, 2016. From 2010-2015 she attended Dixon High School. In 2011 SCC was evaluated by defendant LCSEA and identified as a student in need of special education services with diagnoses of Attention Deficit Hyperactivity Disorder, Bipolar Disorder, Reactive Attachment Disorder, Oppositional Defiant Disorder, a learning disability, and a history of Factitious Disorder by Proxy. Banks is a special education and related services provider (speech therapist) for the District and/or LCSEA. Stastny is a special education teacher for the District and/or LCSEA. Kane is a special education paraprofessional for the District and/or LCSEA. Steinmeyer is the director of LCSEA and supervised Banks, Stastny and Kane. Juenger was the superintendent of the District prior to the 2015-16 school year. Empen was the assistant superintendent during that period and the superintendent during the 2015-16 school year. Each of the individually named defendants was involved in providing direct services to SCC.

         At all times relevant, each of the defendants had specific knowledge that SCC “had mental health and educational issues which affected her judgment and decision-making, caused her to have a tendency to manipulate adults, and convey falsehoods, and which required a high level of care with consistency and structure and that such care would require a lifelong commitment by a caregiver.” At school, SCC was subject to the control of teachers and administrators, and because of their influence SCC had no choice but to comply with the “policies, edicts, commands and suggestive statements of said teachers, administrative professionals and all defendants.” Banks, Kane, Stastny and Steinmeyer sought to retaliate against Dawn “who had been such a strong advocate for [SCC] and her other children.” Despite numerous medical, psychological and health professionals providing documentation of SCC's emotional and cognitive issues “defendants took deliberate and intentional actions” against SCC's best interest “which defied parental requests and concerns.” Banks, Empen, Kane, Stastny, and Steinmeyer coerced, bribed, influenced and intimidated SCC into signing a document rescinding Dawn's right to make educational decisions for SCC and depriving Dawn of any notice of when those decisions were made. These defendants accomplished these actions by “surreptitiously promising, informing, notifying [SCC] that she did not have to complete her overdue homework, attend school anymore, could live in a home with fewer rules, could have sugar products whenever she wanted, did not have to take her physician-prescribed medications, and could immediately graduate from high school.” The defendants' actions “displayed deliberate indifference to [SCC's] significant disabilities by depriving her of the advice, knowledge, and protection of her educational designee, Dawn, requiring [SCC] to actively waive her right to that protection, to encourage her to leave school, before she was prepared to do so, driving her away from school and away from her safe secure home with Dawn, and providing her homes to live in that created a danger to her of being physically left unprotected.” Plaintiffs allege this left SCC significantly more vulnerable to the physical and emotional assault which they allege did occur during the time SCC was living with Banks.

         Banks, during the 2014-15 school year and the summer of 2015, pressured SCC on many occasions by asking inappropriate questions about her home life. Banks pressured SCC and assisted her in revoking Dawn's educational rights as to SCC's Individualized Education Program (“IEP”) and called an IEP meeting without Dawn present where IEP services were terminated and it was determined SCC would graduate from high school and receive a diploma without notice to Dawn. Banks influenced and assisted SCC in writing a letter to her treating psychiatrist stating Dawn no longer had any rights related to SCC and “accusing Dawn of a number of atrocities.” Banks influenced and assisted SCC in signing Social Security applications and convinced SCC to come and live with Banks and her husband.

         Banks convinced SCC to revoke powers of attorney on file at KSB Hospital and Medical Group, to remove family members from Facebook and block them, and told SCC not to make contact with her family members. Banks influenced and assisted SCC in calling adult protective services and instructed SCC to report there was inadequate food in Dawn's home. Banks restrained SCC for six weeks keeping SCC from returning to Dawn's home. During this time SCC was not given her medication and encouraged by Banks not to take her prescribed medication.

         While SCC was still living with Dawn, Stastny told SCC she could come live with Stastny if she did not like it at home and each day repeated her phone number to SCC and told her to remember it. Stastny went with SCC to SCC's sister's place of employment and said she would attempt to get the sister to move out of Dawn's house as well. Stastny persuaded and coerced SCC to run away from home, made arrangements for SCC to stay away from Dawn's home for multiple nights, paid SCC money and had her spend the night at Stastny's house. Stastny, with Banks, worked to prevent Dawn from locating SCC by telling SCC not to go to Whiteside to school as Dawn might appear there to see her.

         Kane likewise encouraged SCC to move permanently out of Dawn's house. Along with Stastny and Banks, Kane convinced SCC to forfeit any future educational services available to her under the IDEA without giving notice to Dawn, SCC's father or educational advocate.

         Steinmeyer failed to intervene though she was aware of the actions of the defendants described in the preceding paragraphs, refused to inform Dawn of SCC's location when asked, directly contradicted Dawn's wishes regarding SCC's intake of sugar products, failed to notify Dawn in advance of an IEP meeting where ...


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