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Porco v. Lewis Palmer School District 38

United States District Court, D. Colorado

March 2, 2017

ANTHONY PORCO, IV, a child by his father Anthony Porco, III, Plaintiff,



         This 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.

         I. FACTS[1]

         Plaintiff Anthony P., IV (“LT”) is a former student at schools operated by defendant Lewis Palmer School District 38 (“the District”).[2] 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.

         In 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.[3] 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.

         On 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 ¶¶18, 20.

         On 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.

         However, 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.

         Facing 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.

         On 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 id.

         Later 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.

         Shortly 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.[4] 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.

         Instead, 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.

         Plaintiff's 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 ¶60.

         Procedural ...

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