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James Foster's ComplaintUNITED STATES DISTRICT COURT FOR THE
JOHN FOSTER, A MINOR; AND v. Case No. 01C 3396
AMENDED COMPLAINT FOR VIOLATIONS OF CIVIL RIGHTS
Plaintiffs Demand Trial By Jury On All Counts NOW COMES the Plaintiffs, JOHN FOSTER. and his parents, JAMES FOSTER and MARY FOSTER, represented Pro Se by James E. Foster, as and for their amended Complaint against the Defendants, BOARD OF EDUCATION OF COMMUNITY CONSOLIDATED SCHOOL DISTRICT 93, DUPAGE COUNTY, and HENRY GMITRO, ROBERT BALLENGER, SHARON FRYS, TAMARA PRENTISS and VICTORIA TABBERT, all in their official and individual capacities. Plaintiffs allege and state as follows:
NATURE OF ACTION 1. This is an action seeking compensatory and punitive damages sustained due to deliberate, knowing, multiple violations of federal education and civil rights laws, state laws and regulations, including the deliberate infliction of emotional distress, and conspiracy to violate these laws and regulations. This litigation arises out of Plaintiff JOHN FOSTER's improper suspension from school and subsequent homebound placement for the last 22 days of his eighth grade year.
THE PARTIES 2. Plaintiffs JOHN FOSTER. and his parents, JAMES FOSTER and MARY FOSTER are residents of the Village of Carol Stream in the County of DuPage and the State of Illinois.
3. Defendant BOARD OF EDUCATION OF COMMUNITY CONSOLIDATED SCHOOL DISTRICT # 93, COUNTY OF DUPAGE, STATE OF ILLINOIS, is a body politic and corporate, with its Board and administrative offices located at 4N570 Old Gary Avenue, Bloomingdale, Illinois. The Board provides regular and special education and related services to children who are enrolled in the public schools of School District No. 93 ("District 93")
4. Defendant HENRY GMITRO is Superintendent of Schools, District 93.
5. Defendant ROBERT BALLENGER was Principal, Stratford Junior High School, at the time of the violations, and is now Assistant Superintendent for Personnel Services, District 93.
6. Defendant SHARON FRYS is Assistant Superintendent for Student Services, District 93. 7. Defendant TAMARA PRENTISS was Assistant Principal, Stratford Junior High School, at the time of the violations, and is Principal of the same school, now renamed Stratford Middle School (Stratford).
8. Defendant VICTORIA TABBERT is Assistant Superintendent for Student Services, Queen Bee Elementary School District #16, a body politic and corporate, with its administrative offices located at1560 Bloomingdale Road, Glendale Heights, Illinois.
JURISDICTION AND VENUE 9. This Court has jurisdiction to review violations of the Federal education and Civil Rights laws which take place within the boundaries of the Eastern Division of the United States District Court of the Northern District of Illinois.
10. Venue is proper in this District pursuant to 28 U.S.C. §1391(b) because the underlying violations occurred within the Eastern Division of the United States District Court of the Northern District of Illinois, District 93 is located and operates within the Eastern Division of the United States District Court of the Northern District of Illinois, and the Plaintiffs, JOHN E. FOSTER, a minor, JAMES E. FOSTER and MARY L. FOSTER all reside within the boundaries of the Eastern Division of the United States District Court of the Northern District of Illinois.
PREVIOUS 7TH DISTRICT COURT CASE 11. In Community Consolidated School District #93 v. John F., No. 00 CV 1347 (Attachment 1), Judge James F. Holderman found, on October 19, 2000 that District 93 had violated the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., in numerous ways, and upheld the findings of a previous Due Process Hearing, FOSTER v. C.C.S.D. 93, Illinois State Board of Education Case NO. 1113, dated November 9, 1999 (Attachment 2). That District 93 severely violated this Act is therefore not in dispute.
ALLEGATIONS COMMON TO ALL COUNTS 12. Plaintiff JOHN FOSTER is a student with a disability, Attention Deficit Hyperactivity Disorder (ADHD); one of the several typical effects of this condition is impulsivity. JOHN FOSTER was a special education student in District 93 for nine years. JOHN FOSTER attended Stratford Junior High School, then educating 7th and 8th grade students, was an exemplary student with an unblemished discipline record in that school, and was on the High Honor Roll in both 7th and 8th grades. The details of Plaintiff JOHN FOSTER's removal from Stratford are contained in Community Consolidated School District #93 v. John F., No. 00 CV 1347 (Attachment 1), and FOSTER v. C.C.S.D. 93, Illinois State Board of Education Case NO. 1113, dated November 9, 1999 (Attachment 2). The following is a shortened summary of those events.
13. On April 23, 1999 JOHN FOSTER neglected to take his medication (Ritalin), which greatly reduces the effects of his ADHD, and therefore his impulsivity. At approximately 12:30 p.m. on that date, John's English teacher told the Defendant TAMARA PRENTISS, Assistant Principal of Stratford, that a student had told her that JOHN FOSTER had approached him and asked if he would like to join a (fictitious) club dedicated to hating another student (the "I hate S____ club"), and that JOHN FOSTER had asked him to if "he thought Columbine was cool," and if he "knew anyone in the black market who could get guns."
14. Plaintiff JOHN FOSTER denies any recall of the specifics of this conversation, and the details are unsubstantiated; no statement was ever obtained from the other student. JOHN FOSTER had been counseled to try to make new friends by starting a conversation on some topic of interest; this was an impulsive (a symptom of ADHD) but innocent conversation, perhaps poorly and inappropriately worded, but no threats were made nor intended. Plaintiff JOHN FOSTER was improperly questioned at length prior to his parents being notified.
15. Defendant TAMARA PRENTISS then illegally determined that Plaintiff JOHN FOSTER would be removed from Stratford permanently.
16. District 93 and Defendants SHARON FRYS and TAMARA PRENTISS subsequently held what was improperly characterized as only a Manifestation Determination Committee (MDC) meeting. Parents were improperly not given prior notice that John's placement would be changed at this meeting, with no continuum of alternatives presented. Information from Plaintiff's psychologist was pointedly ignored. Homebond placement was clearly delineated as a "consequence" (punishment) for an act related to his disability. Defendant TAMARA PRENTISS knowingly and falsely documented that Plaintiff JOHN FOSTER's removal was because of weapons and/or drug possession.
17. Plaintiffs JAMES FOSTER and MARY FOSTER protested Plaintiff JOHN FOSTER's removal, in writing, several times, and indicated that it should immediately stopped to reduce the damage to JOHN.. These letters were improperly, and with callous disregard, not acknowledged nor responded to.
18. Plaintiffs JAMES FOSTER and MARY FOSTER requested a Hearing, utilizing the form provided by District 93, to discuss and protest the placement of Plaintiff JOHN FOSTER, a special education student. Defendants HENRY GMITRO, SHARON FRYS, and TAMARA PRENTISS arranged for a "Sham Hearing", in outrageous, knowing and deliberate violation of State and federal laws. Plaintiffs JAMES FOSTER and MARY FOSTER were not advised of their rights to a Due Process Hearing and were therefore denied their legal rights to Due Process.
19. Defendants SHARON FRYS, TAMARA PRENTISS and VICTORIA TABBERT conducted the "Sham Hearing". By their positions, training and experience in special education, they knew that the "Sham Hearing"was not in accordance with state and federal laws.
20. Defendant VICTORIA TABBERT documented the "Sham Hearing" with a single page document (Attachment 3) which did not even note that a Hearing had been held nor discuss the protests and points made by the Plaintiffs JAMES FOSTER and MARY FOSTER. A personal friend of Defendant SHARON FRYS, she falsely signed the document as an "Impartial Hearing Officer." By her position, training and experience in special education, she knew that the "Sham Hearing"was not in accordance with State and federal laws.
21. The falsified document generated by Defendant VICTORIA TABBERT was, for a time, part of Plaintiff JOHN FOSTER's school records.
22. Defendant ROBERT BALLENGER, as Principal, Stratford Junior High School, was at all times aware of the details of the above events and fully condoned them.
23. District 93 communicated with Driscoll Catholic High School, which then denied admittance to Plaintiff JOHN FOSTER.
24. Plaintiffs JOHN FOSTER, JAMES FOSTER and MARY FOSTER spent demeaning hours meeting with a psychologist at District 93's insistence. Plaintiffs MARY FOSTER and JOHN FOSTER spent demeaning and personally depressing hours touring "alternative schools" proposed for placement of Plaintiff JOHN FOSTER by District 93 personnel.
25. District 93 planned a last Individualized Education Program (IEP) meeting specifically designed to heartlessly, needlessly and improperly consign Plaintiff JOHN FOSTER to a "therapeutic school," and a representative of that school was to attend the IEP meeting for this express purpose.
COUNT 1 - VIOLATION OF THE FIRST AMENDMENT 26. Plaintiffs re-allege Paragraphs Thirteen through Fifteen, inclusive, as this Paragraph Twenty-Six as though each had been fully set herein.
27. Freedom of speech is guaranteed by the First Amendment of the United States Constitution, and by Article 1, Section 4 of the Illinois Constitution. Plaintiff JOHN FOSTER's right to free speech was violated when he was repeatedly questioned as to what he said in the hallway, when there were no "facts which might reasonably have led school authorities to forecast substantial disruption . . or material interference with school activities." Plaintiff JOHN FOSTER did not, in any way, "substantially interfere with the work of the school or impinge upon the rights of other students." Plaintiff JOHN FOSTER was removed from class, questioned at length, and removed from school based on a single unsubstantiated statement with no threatening content.
28. Defendants ROBERT BELLANGER's and TAMARA PRENTISS's actions therefore violated the First Amendment and the Illinois Constitution.
COUNT 2 - VIOLATIONS OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA) 29. Plaintiffs re-allege Paragraphs Twelve through Twenty-Five, inclusive, as this Paragraph Twenty-Nine as though each had been fully set herein.
30. As determined by the previous Due Process Hearing: The District's procedural errors in this case were of such nature and severity that they alone would constitute a deprivation of Free and Appropriate Public Education under the Rowley analysis:
A. First, Parents were entitled to notice that the District would consider a change of Student's placement at the Disciplinary MDC of 4/28/99 so that they could prepare for and effectively participate in said meeting.
B. Second, once the District determined at that meeting that Student's alleged behavior was a manifestation of his disability, the proper procedure would have been to revise the IEP and the behavior plan accordingly, and, if it determined based on the goals and related services in the IEP that Student's needs could not be met in the then current placement in the resource program with social work services at the middle school, a discussion of available placement options along a continuum of options, less to more restrictive, should have ensued. Homebound tutoring is not a legal placement option under these circumstances under Illinois regulations, and it was chosen not in the course of a proper consideration of placement options.
C. In reference to the District's "consequence" of removing Student to an [Interim Alternate Educational Setting] IAES for up to 45 days, the District clearly had no right to do so under the circumstances of this case, which did not involve drugs, weapons, or controlled substances, without an order from a court or hearing officer. The District should have known that they needed to clearly explain to Parents their procedural rights to a due process hearing.
D. The District failed to prove that the goals and objectives set forth in the then current IEP of 3/4/99 were being worked on with Student by either the social worker or the tutor during the time Student was homebound.
E. In addition, Plaintiff JOHN FOSTER was not provided regular or special education services during the first ten days of his removal from school. This is in violation of the "clear and free from ambiguity"("plain meaning rule") text of the IDEA at §1412(a)(1)which requires a Free and Appropriate Public Education (FAPE) for all eligible children including those children with disabilities suspended or expelled from school.
31. As determined by the Previous 7th Circuit Court Decision: The District committed numerous other procedural errors not mentioned by the [real] Impartial Hearing Officer. First, upon determining that John's behavior was related to his disability, the District was bound to follow certain procedures. Only if the manifestation review concludes that the child's behavior was not a manifestation of the child's disability may a district employ disciplinary procedures applicable to children without disabilities. 34 C.F.R. § 300.524(a). Having found that John's behavior was related to his disability, the District was bound to address that behavior within the framework of the IDEA. Once the District determined at the MDC that John's conduct was related to his disability, it also thereby concluded that John's present placement was deficient by not addressing the behavior. 34 C.F.R. § 300.523(c)(2)(i) (in order to find that conduct was not a manifestation of a disability, the IEP team must determine that the child's IEP and placement were appropriate and the services provided were consistent with the IEP). As such, the District was required under the IDEA and its regulations to "take immediate steps to remedy those deficiencies." 34 C.F.R. § 300.523(f). The regulations further provide that if the IEP team believes that modifications of the IEP are needed, they shall meet to modify the plan and its implementation to the extent necessary. 34 C.F.R. § 300.520(c)(1). Here, the team clearly concluded that a change in a provision of John's FAPE was required, but did not modify his IEP, discuss ways to address his behavioral problems, or consider ways in which in-school devices and services could address his behavior problems. Instead, the District chose to remove John from school with limited support for 22 days without considering realistic alternatives.
32 Defendants TAMARA PRENTISS, SHARON FRYS, and VICTORIA TABBERT's actions therefore purposely violated the Individuals with Disabilities Education Act, as amended.
COUNT 3 - VIOLATION OF IDEA, THE ILLINOIS SCHOOL CODE, THE REHABILITATION ACT OF 1973, SECTION 504, AND THE AMERICANS WITH DISABILITIES ACT REGARDING LEAST RESTRICTIVE PLACEMENT 33. Plaintiffs re-allege Paragraphs Twelve through Twenty-Five, inclusive, as this Paragraph Thirty-Three as though each had been fully set herein.
34. For the last 22 days of his eighth grade education, Plaintiff JOHN FOSTER was not educated, to the maximum extent appropriate, with children who were not handicapped. This is a violation of the Individuals with Disabilities Education Act, the Rehabilitation Act of 1973, Section 504, and the Americans with Disabilities Act sections referencing least restrictive placement.
35. Title 23 Illinois Administrative Code Part 226 Subpart C Section 226.125 Least Restrictive Environment: Each local school district shall ensure that to the maximum extent appropriate handicapped children, including children in public or private institutions or other care facilities, are educated with children who are not handicapped, and that special classes, separate schooling or other removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
36. Defendants ROBERT BALLANGER's, TAMARA PRENTISS's, SHARON FRYS, and VICTORIA TABBERT's actions therefore violated the Individuals With Disabilities Education Act (IDEA), The Illinois School Code, The Rehabilitation Act of 1973, Section 504, and The Americans with Disabilities Act.
COUNT 4 -VIOLATIONS OF FOURTEENTH AMENDMENT DUE PROCESS RIGHTS 37. Plaintiffs re-allege Paragraphs Twelve through Twenty-Five, inclusive, as this Paragraph Thirty-Seven as though each had been fully set herein.
38. Students facing temporary suspension from a public school have property and liberty interests that qualify for protection under the Due Process Clause of the Fourteenth Amendment. The Due Process Clause is applicable to decisions made by taxsupported educational institutions to remove a student from the institution long enough for the removal to be classified as an expulsion.
39. Plaintiff's rights to due process was knowingly violated when they requested a hearing and received a "Sham Hearing" instead.. Defendants HENRY GMITRO, SHARON FRYS, TAMARA PRENTISS and VICTORIA TABBERT arranged for the "Sham Hearing." The participants in the sham (Defendants HENRY GMITRO, SHARON FRYS, TAMARA PRENTISS and VICTORIA TABBERT) knew, or should have known, by virtue of their training, position, and experience, that what they were doing was illegal. They knew that the parents of a Special Education child had requested a hearing concerning the placement of that child; clearly IDEA issues. Plaintiff JOHN FOSTER never had the opportunity to face his accuser or even know his identity. District 93 personnel never obtained a statement from the "unknown boy", nor allowed him to be questioned; Defendant TAMARA PRENTISS wrote her own summary of what he allegedly said.
40. Plaintiffs did not even obtain the due process which is intended to be afforded to every student through the Illinois School Code (105 ILCS 5/10-22.6) Sec. 10-22.6. Suspension or expulsion of pupils; school searches.
41. When the procedures used to investigate the charges are a sham through and through, there has not been a constitutionally sufficient opportunity to respond. An individual is entitled to constitutionally sufficient procedures before he can be deprived of a protected property interest, and fundamentally biased process is not due process.
42. Deception was evident in use of the title "Impartial Hearing Officer" by Defendant VICTORIA TABBERT.
43. Defendant HENRY GMITRO, a School Board Member, knew that Plaintiff JOHN FOSTER was removed from Stratford without following proper procedure, in violation of his due process rights, in violation of other constitutional rights (free speech) and statutory rights, and took action with the malicious intention to cause a deprivation of constitutional rights and other injury to Plaintiff JOHN FOSTER. Defendants HENRY GMITRO, TAMARA PRENTISS, SHARON FRYS, and VICTORIA TABBERT therefore intentionally violated the Due Process Clause of the Fourteenth Amendment.
COUNT 5 -VIOLATION ILLINOIS ADMINISTRATIVE CODE 44. Plaintiffs re-allege Paragraphs Twelve through Twenty-Five, inclusive, as this Paragraph Forty-Four as though each had been fully set herein.
45. During the conduct of the "Sham Hearing" detailed above, Defendants SHARON FRYS and VICTORIA TABBERT were present and did not advise the Plaintiffs JAMES FOSTER and MARY FOSTER of their rights to a Due Process Hearing.
46. This is a violation of the Illinois Administrative Code, CHAPTER I: TITLE 23, SUBTITLE A, EDUCATION, STATE BOARD OF EDUCATION, SUBCHAPTER f: INSTRUCTION FOR SPECIFIC STUDENT POPULATIONS, PART 226: SPECIAL EDUCATION, Section 226.610 Information to Parents Concerning Right to Hearing:"The local school district shall be responsible for informing parents in writing of their right to a hearing and of the procedures to follow to make a request for such a hearing. The director of special education shall assist the parents in taking whatever action is necessary to utilize the hearing process."(Emphasis added)
47. Defendants SHARON FRYS and VICTORIA TABBERT therefore violated the Illinois Administrative Code.
COUNT 6 -VIOLATION OF SECTION 504 OF THE REHABILITATION ACT OF 1973 AND THE AMERICANS WITH DISABILITIES ACT (ADA) 48. Plaintiffs re-allege Paragraphs Twelve through Twenty-Five, inclusive, as this Paragraph Forty-Eight as though each had been fully set herein.
49. Plaintiff JOHN FOSTER, a student with a disability, was removed from school for a manifestation of that disability, without consideration of how he could be maintained in that school. This action formally occurred at the Manifestation Determination Committee meeting.
50. When the placement of a child with disabilities is changed for disciplinary reasons, the child and his or her parent or guardian are entitled to the procedural protections required by Section 504 and the ADA. These protections include appropriate notice to parents or guardian, an opportunity for their examination of records, an impartial hearing with the participation of parents or guardian and an opportunity for their representation by counsel and a review procedure.
51. Before implementing a suspension or expulsion that constitutes a significant change in the placement of a student with a disability, a school district must conduct a reevaluation of the student to determine whether the misconduct in question is caused by the student's disability and, if so, whether the student's current educational placement is appropriate. (Reevaluation procedures that comply with IDEA fulfill the requirements of Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act, and this did not happen.)
52. Defendants TAMARA PRENTISS, and SHARON FRYS, as primary participants in the Manifestation Determination Committee meeting, therefore violated the requirements of Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act.
COUNT 7 -INTENTIONAL VIOLATIONS OF SECTION 504 AND THE ADA PER THE CRITERIA IN TITLE IX OF THE EDUCATION AMENDMENTS OF 1972
53. Plaintiffs re-allege Paragraphs Twelve through Twenty-Five, inclusive, as this Paragraph Fifty-Three as though each had been fully set herein.
54. Title IX (prohibiting schools from discrimination solely on the basis of gender) parallels the procedural rights of students with disabilities under Section 504 and the Americans with Disabilities Act. The cases, procedures and standards established under Title IX are equally applicable to students with disabilities in proving intentional discrimination. District 93's response, or lack of response, to the expressed parental concerns "was clearly unreasonable in light of the known circumstances","deliberately indifferent", and they refused to act on their knowledge. This constitutes intentional discrimination. Title IX of the Education Amendments of 1972 provides that a person cannot "be subjected to discrimination under any education program or activity receiving Federal financial assistance," 20 U.S.C. § 1681(a). School districts are not liable under Title IX unless an employee with supervisory power over the offending employee actually knew of the abuse, had the power to end it, and failed to do so. Damages may not be recovered for an implied private action under Title IX unless a school district official who at a minimum has authority to institute corrective measures on the district's behalf has actual notice of, and is deliberately indifferent to the misconduct.
55. On April 24, 1999, Plaintiff MARY FOSTER hand-delivered a letter to Defendant ROBERT BALLENGER, then Stratford principal, asking that the suspension of Plaintiff JOHN FOSTER be lifted immediately because a "terrible mistake" had been made. The letter provided Plaintiffs' JAMES FOSTER's and MARY FOSTER's explanation of Plaintiff JOHN FOSTER's hall conversation on April 23, 1999. The letter expressed concern that Plaintiff JOHN FOSTER's suspension would be a traumatic experience, and wished that the suspension would be lifted immediately in order to minimize damage to John. There was no response by telephone, in writing, or otherwise. Another letter was sent again expressing concern and objection, signed by Plaintiffs JAMES FOSTER and MARY FOSTER, on May 9, 1999. 56. During the May 17, 1999 "Sham Hearing", Plaintiffs JAMES FOSTER and MARY FOSTER again objected to the expulsion and expressed concern over its effect on Plaintiff JOHN FOSTER. Defendant TAMARA PRENTISS, then Assistant Principal, was present at that meeting. At that meeting, the Plaintiffs JAMES FOSTER and MARY FOSTER discussed the above issues, summarized in a document entitled "POINTS OF DISCUSSION."
57. Defendants ROBERT BALLENGER and TAMARA PRENTISS had the authority to institute corrective measures on the District's behalf (end the expulsion of Plaintiff JOHN FOSTER), had notice in several forms, but were deliberately indifferent to the misconduct taking place.
58. Defendants ROBERT BALLENGER and TAMARA PRENTISS were aware that Plaintiff JOHN FOSTER was being discriminated against because of his disability, and were deliberately indifferent to the misconduct taking place; therefore they intentionally discriminated against Plaintiff JOHN FOSTER, based upon his disability.
COUNT 8 - § 1983 CONSPIRACY 59. Plaintiffs re-allege Paragraphs Twelve through Twenty-Five, inclusive, as this Paragraph Fifty-Nine as though each had been fully set herein.
60. Plaintiffs allege a § 1983- only conspiracy, as persons acting under color of state law conspired to deprive an individual of a federally protected right. Their conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known."
61. All of the Defendants HENRY GMITRO, ROBERT BALLENGER, SHARON FRYS, TAMARA PRENTISS and VICTORIA TABBERT, all in their official and individual capacities, conspired to deprive Plaintiff JOHN FOSTER of federally protected rights, which, by virtue of their position, training and experience, they certainly knew. Participation of VICTORIA TABBERT, who is, and was, not an employee of District #93, makes these actions a conspiracy.
COUNT 9 - SECTION 1985 CONSPIRACY 62. Plaintiffs re-allege Paragraphs Twelve through Twenty-Five, inclusive, as this Paragraph Sixty-Two as though each had been fully set herein.
63. 42 U.S.C. S 1985(3) prohibits conspiracies predicated on "racial, or perhaps otherwise class-based, invidiously discriminatory animus." The Plaintiffs allege (1) a conspiracy; (2) motivated by a racial or class based discriminatory animus. § 1985 protects the disabled in general, and there is evidence that alleged actions were motivated by discriminatory animus towards the disabled.
64. Plaintiffs believe that an animus towards special education students, especially those who at times displayed negative attitudes towards school played a part in the sequence portrayed in Paragraphs Twelve through Twenty-Six.
65. Defendants HENRY GMITRO, ROBERT BALLENGER, SHARON FRYS, TAMARA PRENTISS and VICTORIA TABBERT, all in their official capacities, conspired to violate 42 U.S.C. S 1985(3).
COUNT 10 - VIOLATION OF 42 U.S.C. 1983 66. Plaintiffs re-allege Paragraphs Twelve through Twenty-Five, inclusive, as this Paragraph Sixty-Six as though each had been fully set herein.
67. CIVIL RIGHTS ACT, 42 U.S.C. Chapter 21SUBCHAPTER IGENERALLY, Sec. 1983 Civil action for deprivation of rights: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. (R.S. Sec. 1979; Pub. L. 96170, Sec. 1, Dec. 29, 1979, 93 Stat. 1284.) A wide variety of federal rights are encompassed by § 1983 and can, therefore, qualify for a discretionary fee award under § 1988. Rights secured by the due process clause of the Fifth and Fourteenth Amendments are protected.
68. Plaintiffs complaints in Counts 1 through 4 and 6 through 9 reflect violations of federal civil rights acts which fall under the protection of 42 U.S. C. 1983. In each count, Defendants' conduct was evilly motivated (malicious intent) or motivated by callous indifference to the plaintiffs rights.
69. Plaintiffs believe all of the Defendants violated 42 U.S.C.1983, based in their involvement in this case, reflected in the Defendants named in each Count.
COUNT 11 -INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 70. Plaintiffs re-allege Paragraphs Twelve through Twenty-Five, inclusive, as this Paragraph Seventy as though each had been fully set herein.
71. Defendants SHARON FRYS, and TAMARA PRENTISS knew, or should have known by their positions, training, experience and personal knowledge, that their acts would cause severe emotional distress, and that it was deliberately caused to "consequence" Plaintiff JOHN FOSTER.
72. Plaintiffs allege that the Defendants intentionally inflected emotional distress on the Plaintiff JOHN FOSTER, and that (1) their conduct was extreme and outrageous; (2) they intended or knew that there was a high probability that the conduct would inflict severe emotional distress; and (3) the conduct did in fact cause such distress, and (4) the emotional distress was severe. Plaintiffs allege that this conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency. Recitation of the facts to an average member of the community would arouse his resentment against the Defendants, and lead him to exclaim "Outrageous!"
73. Plaintiffs allege that Defendant TAMARA PRENTISS was abusing her position and she had personal experience and reason to know that Plaintiff JOHN FOSTER was particularly susceptible to emotional distress. Her conduct was extreme and outrageous, arising from abuse of a position which gave her actual authority over Plaintiff JOHN FOSTER and her conduct became heartless, flagrant, and outrageous when she proceeded in the face of personal knowledge of Plaintiff JOHN FOSTER'S special susceptibility to emotional distress.
COUNT 12 -RECORDS FALSIFICATION 74. Plaintiffs re-allege Paragraphs Twelve through Twenty-Five, inclusive, as this Paragraph Seventy-Four as though each had been fully set herein.
75. Plaintiffs allege that the "Victoria Tabbert letter", the sole documentation from the "Sham Hearing," became a (temporary) part of Plaintiff JOHN FOSTER's school records, and was sent to other schools including Driscoll Catholic High School and Glenbard North High School. This is a Class A misdemeanor per:§ 105 ILCS 10/9. Section 9 [Injunctive relief; damages; attorneys' fees; criminal penalty; immunity], This is also a violation of the Family Educational Rights and Privacy Act of 1974, as amended, enacted as section 444 of the General Education Provisions Act. (Authority: 20 U.S.C. 1232g)
76. This was a willful violation of the above Act, which resulted in damage to Plaintiff JOHN FOSTER. As such, Defendants HENRY GMITRO, ROBERT BALLENGER, SHARON FRYS, TAMARA PRENTISS and VICTORIA TABBERT should be found liable to the Plaintiffs for the Plaintiff's damages, the costs of this action and reasonable attorneys' fees, as determined by the Court.
DAMAGES UNDER IDEA 77. Plaintiffs are aware that the seventh circuit has previously held that damages were not available under IDEA. Other federal courts have allowed such damages, and Plaintiffs wish to brief the Court on these other decisions. However, parents and students may obtain compensatory and punitive damages under 42 USC §1983 when they also seek a remedy under IDEA. 78. §1983 damages may not be available for "routine" violations of IDEA, such as a district's failure to provide adequate training, supervision, monitoring, etc.. However, the actions in this case involve broad due process and/or equal protection claims, and other constitutional violations, based on conduct that involves "purposeful discrimination" and lacks a rational basis. Plaintiffs allege that District 93 utterly turned its back on Plaintiff JOHN FOSTER, flatly refusing to recognize his disability, or trivializing it, or declining to offer any substantial special services. Defendants' conduct was evilly motivated (malicious intent) or motivated by callous indifference to the plaintiffs rights.
PUNITIVE DAMAGES 79. Plaintiffs request punitive damages, as recited actions were committed with fraud, actual malice, deliberate oppression, and the Defendants acted willfully, with such gross negligence as to indicate a wanton disregard of the rights of others. The Defendants engaged in willful and wanton misconduct which was outrageous or similar to that usually found in crime. Defendants conduct was evilly motivated (malicious intent) and/or motivated by callous indifference to the plaintiffs rights.
80. In this case, punitive damages would serve a penal purpose and be awarded not as compensation, but for reasons of retribution and deterrence. More plainly, punitive damages in this case would serve as a deterrence to other school districts that the rights of students in general, and special education students in particular, not be abrogated. The amount of such an award is determined by more than just a consideration of the nature and extent of the claimant 's loss.
DAMAGES EXPERIENCED: 81. From the previous Seventh Circuit Court case: "As a result, Mary and James did not request the due process hearing to which they were statutorily entitled until well after the homebound placement had ended, thereby forfeiting any possibility that a proper independent hearing officer would evaluate the case and recognize the District's errors before the end of John's school year, by which time the damage had been done." (Emphasis added)
82. Plaintiffs allege that the following damages were experienced because of the violations previously recounted:
A. Suffering, the intentional infliction of extended emotional mental distress, by JOHN FOSTER, JAMES FOSTER, and MARY FOSTER. B. JOHN FOSTER'S loss of 22 school days of valid education. C. Loss of JOHN FOSTER'S eighth grade graduation and related festivities with his peers. D. Loss of face of JOHN FOSTER before his peers. E. Embarrassment of JOHN FOSTER before his parents. F. Loss of the many hours JAMES FOSTER and MARY FOSTER have been involved in preparing for and participating in hearings (real and sham). G. Loss of the hours all of the Plaintiffs needlessly spent meeting with Dr. Heredia at the insistence of the Defendants. H. Lost opportunity for JOHN FOSTER to attend Driscoll Catholic High School. I. JAMES FOSTER'S distraction from his work activities. J. General emotional suffering and depression suffered by JAMES FOSTER, MARY FOSTER, and especially JOHN FOSTER, over several months. K. Loss of the many hours Plaintiffs JOHN FOSTER and MARY FOSTER toured "alternate schools" and the extensive emotional suffering and distress both suffered from seeing closet detention rooms and inadequate text materials. L. Presumptive damages suffered by JOHN FOSTER during the deliberate violation of multiple civil rights. M. Setback of Plaintiff JOHN FOSTER in the progress of therapy.
RELIEF REQUESTED
WHEREFORE, Plaintiffs JOHN FOSTER. and his parents, JAMES FOSTER and MARY FOSTER respectfully request the court for the entry of judgement in their favor and the following relief:
A. That the Court award Plaintiffs the costs of this action and reasonable attorney's fees (Pro Se attorneys do not receive fees; some attorney's fees were expended prior to Pro Se activities).
B. That the Court award the Plaintiffs Compensatory Damages in the amount of $50,000 ($2,000 per day of missed school, $6,000 for emotional damages, residual effects), to be shared by the parties as deemed appropriate by this court.
C. That the Court award the Plaintiffs Punitive damages in the amount of $100,000 (twice compensatory damages), to be shared by the parties as deemed appropriate by this court.
JURY DEMAND
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs demand a trial by jury on all claims.
Respectfully submitted,
BY: James E. Foster, Pro Se June, 2001 James Edwin Foster 504 Eagleview Drive Carol Stream, Illinois 60188-1712
Attachments: 1. Community Consolidated School District #93 v. John F., No. 00 CV 1347. (Printed from file on District Court Web site). 2. Due Process Hearing, FOSTER v. C.C.S.D. 93, Illinois State Board of Education Case NO. 1113, dated November 9, 1999 (scanned, reformatted for readability). 3. Single-page document generated by Defendant VICTORIA TABBERT, documenting "sham
hearing" (retyped and reformatted for readability). |
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