J.V. and M.Q., on behalf of their minor child C.V., Plaintiffs - Appellants,
ALBUQUERQUE PUBLIC SCHOOLS, Defendant - Appellee
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D.C. No. 1:13-CV-01204-MV-KBM).
Joseph P. Kennedy (Michael L. Timm, Jr., with him on the briefs), Kennedy Kennedy & Ives, LLC, Albuquerque, New Mexico, appearing for Appellants.
Emil J. Kiehne (Jennifer G. Anderson and Megan T. Muirhead, with him on the brief), Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, New Mexico, appearing for Appellees.
Before HOLMES, MATHESON, and MORITZ, Circuit Judges.
MATHESON, Circuit Judge.
When C.V. was a seven-year-old second grade student at an elementary school operated by Albuquerque Public Schools (" APS" ), he was eligible for special education benefits for autism. During two hours on the morning of November 14, 2011, C.V. disrupted his class, ran away from APS staff, kicked an APS social worker, and kicked and shot rubber bands at APS School Security Officer Xiomara Sanchez. To protect C.V. and others, Officer Sanchez handcuffed him to a chair. Before doing so, Officer Sanchez had called C.V.'s mother, who granted permission to restrain him, and repeatedly warned C.V. to calm down. Officer Sanchez was unaware of C.V.'s disability.
C.V .'s parents (" Appellants" ) sued under Title II of the Americans with Disabilities Act (" ADA" ), claiming APS denied C.V. a protected benefit and discriminated against him. The district court granted summary judgment to APS.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
A. Factual History
In 2011, C.V. attended Mary Ann Binford Elementary School in Albuquerque. He weighed approximately 50 pounds and was four feet one inch tall. His second-grade teacher, Paula Gutshall, was assisted by Ms. Trujillo.
During the previous year, his mother, M.Q., worked with Ms. Gutshall and an APS social worker, Maria Martinez, to develop a Behavioral Intervention Plan (" BIP" ), which outlined strategies for correcting aspects of C.V.'s behavior. It did not include a physical restraint strategy. C.V. was tested and determined to be eligible for special education services for autism and for being gifted. It is undisputed that C.V.'s autism qualifies him as disabled under the ADA.
On the morning of November 14, 2011, Ms. Trujillo told Ms. Martinez that C.V. had been disrupting class and misbehaving. Ms. Martinez offered to take C.V. to her classroom. While in Ms. Martinez's classroom, C.V. continued to act out--hitting toys and throwing his shoes at her. Ms. Martinez called the assistant principal, Misti Miller, for help. Ms. Miller asked Ms. Martinez to bring C.V. to the principal's office. Before they reached the office, C.V. ran away from Ms. Martinez.
Ms. Martinez and Ms. Miller attempted to locate C.V. to keep him from leaving campus. Ms. Martinez also attempted to call C.V.'s mother so she could come to the school and help calm C.V. Ms. Martinez left several messages between 11:15 and 11:30 a.m., but was unable to reach M.Q. She was able to reach C.V.'s father, but he refused to come to the school because he was busy at work.
C.V. ran into the school nurse's office, where he locked himself in a bathroom. He next ran out of the nurse's office and into the cafeteria. At approximately 12:15 p.m., Officer Sanchez, an APS security officer, was dispatched to the school based on a report that a child was out of control. The record does not indicate who called APS and made this report. When she first arrived at the school, Officer Sanchez met with the principal and assistant principal, who informed her C.V. had been running around the school and causing problems since approximately 10:30 a.m.
The principal, Cecilia Sanchez, escorted Officer Sanchez to the cafeteria. When C.V. saw the principal and Officer Sanchez, he ran away. Officer Sanchez went to the school office to call C.V.'s parents. She first spoke with C.V.'s father, who said he was at the airport and unable to come to the school until after 2:30 p.m. He told Officer Sanchez to call C.V.'s mother.
Officer Sanchez reached C.V.'s mother, M.Q. Officer Sanchez identified herself as " school security," and informed M.Q. that she needed to pick C.V. up from school. Aplt. App. at 141. M.Q. said she would come, but it would take approximately 30 minutes because she first needed to pick up her younger son from preschool. Officer Sanchez asked M.Q. for permission to restrain C.V. M.Q. responded, " Yes." Id. at 141. M.Q. apparently did not understand that Officer Sanchez was seeking permission to handcuff C.V. Rather, she thought that a trained member of C.V.'s behavioral intervention team would hug or hold him to calm him down.
C.V. was ultimately led to a room, Room 127. When Officer Sanchez arrived at Room 127, C.V. charged at her and attempted to run out of the room. Officer Sanchez blocked the door to prevent C.V. from leaving. C.V. kicked his legs and swung his arms to knock items off of the desks in the room. He also pulled computer power cables out of the wall sockets. Ms. Martinez approached C.V. and asked him to stop because he was in danger of harming himself. C.V. started swinging a power cord at Ms. Martinez in an attempt to hit her. He then lay on his back and kicked Ms. Martinez. He made contact with her several times, causing her to experience pain.
When Officer Sanchez would not let him leave the room, C.V. kicked her in the shin. Officer Sanchez repeatedly said, " You're not going out." Id. at 131. C.V. continued to move around. He finally sat on the floor with his legs crisscrossed, which Ms. Martinez considered to be safe. At this point, the phone rang, and someone told Ms. Martinez that C.V.'s mother had arrived at the school.
Ms. Martinez then heard Officer Sanchez say, " Don't do that," and looked up to see C.V. playing with a rubber band. Id. at 132. Officer Sanchez said, " Don't do that, [C.V.]. Give me the rubber band." Id. C.V. was pointing the rubber band at Officer Sanchez's face. He shot it at her and hit her somewhere in the knee. Officer Sanchez told him not to do it again. He shot it again and hit her in the chest. C.V. crawled over to retrieve the rubber band.
Officer Sanchez stepped on the rubber band to prevent C.V. from shooting it a third time. C.V. then began tugging Sanchez's leg in an attempt to take the rubber band. When he could not retrieve it, C.V. started to kick Officer Sanchez. Officer Sanchez warned C.V. if he did not stop, she would place him in handcuffs.
C.V. ignored Officer Sanchez's warning. Officer Sanchez said, " [C.V.], what did I just tell you? Get over here and sit down." Id. at 134. C.V. got up and, according to Ms. Martinez, " was wiggly and wiggly." Id. When C.V. continued to kick and attempted to get off of the chair, Officer Sanchez handcuffed him. Id. at 135. Officer Sanchez double locked the handcuffs to prevent them from tightening. She ensured there was a thumb-width of space, or approximately one inch, between the handcuffs and C.V.'s wrist.
C.V. stood up in the chair and then sat back down while yelling he wanted the handcuffs removed. Officer Sanchez advised C.V. if he sat in the chair and settled down, she would immediately take off the handcuffs. C.V. stood up several more times and at one point dragged the chair towards Officer Sanchez ...