United States District Court, D. Colorado
ANTHONY PORCO, IV, a child by his father Anthony Porco, III, Plaintiff,
LEWIS PALMER SCHOOL DISTRICT 38, ANTHONY KARR, JAMES PORTER, STEPHANIE KUGLER, GARY GABEL, KAREN BROFFT, ROBERT FOSTER, TAMARA HARDIN, JENNIFER DAY, and SEAN O'CONNOR, Defendants.
BROOKE JACKSON UNITED STATES DISTRICT JUDGE.
matter is before the Court on defendants' motion to
dismiss plaintiff's amended complaint under Rule 12(b)(1)
and Rule 12(b)(6). ECF No. 16. For the reasons below, the
Court GRANTS that motion.
Anthony P., IV (“LT”) is a former student at
schools operated by defendant Lewis Palmer School District 38
(“the District”). See Amended Complaint,
ECF No. 13 at ¶¶1- 4, 9. Plaintiff is diagnosed
with Attention Deficit Hyperactivity Disorder
(“ADHD”) and impulse control disorder.
Id. at ¶8.
November of 2005 the District put plaintiff on a Section 504
plan and Individualized Education Plan (“IEP”) to
help deal with his behavioral and comprehension issues
arising from these conditions. Id. at ¶9. However,
roughly seven years later on October 8, 2012 the District
took LT off his IEP citing his improved behavior.
Id. at ¶10. The next summer, LT entered the
eighth grade at Lewis-Palmer Middle School
(“Lewis-Palmer”), which is operated by the
District. Id. at ¶¶4, 11. Around that time
LT's parents notified school administrators at
Lewis-Palmer that plaintiff had been bullied over the summer
by a classmate. Id. at ¶11. Plaintiff alleges
that he was continually bullied throughout the fall of 2013
at Lewis-Palmer by that same bully and other classmates.
See Id. at ¶¶14-17. During at least one
instance of this bullying, school officials disciplined LT
for what plaintiff characterizes as him defending himself
against these attacks. Id. at ¶14.
October 16, 2013 plaintiff's parents attended school
conferences and a Section 504 reassessment meeting for
plaintiff to discuss plaintiff's issues with bullying.
Id. at ¶16. Plaintiff alleges that despite
notifying several school officials about the bullying, they
failed to end it. See, e.g., id. at
¶20. Consequently, early the next year plaintiff was
again disciplined for allegedly protecting himself from
bullies. Id. at ¶17. Despite more attempted
discussions with school officials about the bullying,
plaintiff alleges that the school failed to respond to these
renewed complaints as well. See Id. at
April 14, 2014 plaintiff threatened to “shoot up the
school” after being bullied on the bus. Id. at
¶22. He claims that he did so because he “believed
it was the only way to get the school to respond to [his
complaints] and to stop [the bullying].” Id.
Roughly one week later plaintiff was put on a behavioral
contract by the school instead of an IEP for his behavior
issues. Id. at ¶23. This contract restricted
plaintiff's behavior, although it does not appears
plaintiff was otherwise disciplined at that time for the
threat he admits he made. Id.
over the summer of 2014 plaintiff was again disciplined for
his reactions to bullies. See Id. at ¶29. As
plaintiff puts it, the District suspended him for five days
for an “incident” that occurred at a midnight
football team sleepover. Id. at ¶¶27-29.
Around this time, plaintiff's parents were again in
contact with school officials about the ongoing bullying of
their son. See, e.g., id. at ¶30.
expulsion due to this event and others, plaintiff signed a
new behavioral contract in late August of 2014 before
beginning school as a freshman at Palmer Ridge High School
(“Palmer Ridge”), which is also run by the
District. See Id. at ¶32. Plaintiff
nevertheless alleges that as the school year began bullies
continued to pick on him and that he was continually the
target of disciplinary action for defending himself against
these attacks. Id. at ¶¶35-38.
November 14, 2014 plaintiff's school held another Section
504 reassessment meeting, during which time plaintiff's
parents voiced their continued concerns about the bullying of
their son. Id. at ¶¶38. Plaintiff alleges
that during and after this meeting school officials again
failed to do anything to address these concerns. Id.
Perhaps because of their belief that District officials had
continually failed to address their concerns about the
bullying of their son, plaintiff's parents attempted to
place LT in a different school in early January 2015.
Id. at ¶39. They were unsuccessful. See
that year on March 20, 2015 LT was assigned a special
counselor to help him deal with his ongoing behavioral
issues, particularly for when plaintiff returned to school
after Spring Break that year. Id. at ¶45.
Roughly a few weeks later, however, plaintiff was suspended
for five days and was recommended for expulsion after another
altercation with a classmate. Id. at
¶¶46-49. Plaintiff alleges that shortly after that
incident that gave rise to this suspension his physician
informed his parents that plaintiff was now also suffering
from symptoms of post-traumatic stress disorder
(“PTSD”). Id. at ¶47. A few days
later plaintiff's parents received a letter informing
them that the school was going forward with the
recommendation that plaintiff be expelled and that plaintiff
was suspended for an additional ten days in the interim.
Id. at ¶48.
after receiving that letter, plaintiff's mother contacted
defendant Anthony Karr (the Freshman Principal) and other
school administrators to inform them that the school was
allegedly pursuing the expulsion of her son without proper
process since it had failed to hold a “manifestation
determination” in accordance with Section 504 of the
Rehabilitation Act. Id. at ¶50. Soon after that
complaint, the school held a manifestation determination
hearing on April 27, 2015. Id. at ¶¶51-52.
After that hearing took place, during which plaintiff alleges
the school “failed to determine whether LT's
conduct was a manifestation of his disability[, ]”
plaintiff's parents discussed transferring LT out of
Palmer Ridge to avoid having an expulsion on his record.
Id. at ¶53. The District allegedly refused to
accept that transfer. Id. at ¶54.
the school held an expulsion hearing on May 5, 2015
apparently without properly notifying plaintiff's parents
of the new date, time, and location for that hearing.
Id. at ¶55. At that hearing, plaintiff was
expelled for failing to attend. Id.
amended complaint takes the next series of events slightly
out of order. However, it appears that in the fall of 2015
plaintiff filed a complaint with the U.S. Department of
Justice Office of Civil Rights (“OCR”). See
Id. at ¶67. Based on that complaint, the OCR
intervened in plaintiff's situation, see id. at
¶59, which resulted in two events. First, on October 8,
2015, the District Superintendent, defendant Karen Broffit,
see id. ¶30, signed a “Voluntary
Resolution Agreement” on behalf of the District, in
which she allegedly promised to put into place additional
safeguards for plaintiff's benefit and to report to the
OCR on plaintiff's situation, see id.
at¶64. Second, in early November 2015 plaintiff received
a new expulsion hearing. Id. at ¶59. During
that hearing, however, the hearing officer upheld
plaintiff's expulsion, although plaintiff alleges that
the hearing report produced after that hearing does not
“contain a reasoned judgment” for the decision.
Id. Plaintiff alleges that because of this expulsion
he is unable to register in a new school. Id. at