Case: 2:15-cv-00143-WOB-JGW Doc #: 1 Filed: 08/03/15 Page: 1 of 19 - Page ID#: 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON

S.R, a minor, by and through his next friend and mother, T.R.,
and
L.G., a minor, by and through her next friend and mother, L.J.,
PLAINTIFFS,1
v.
KENTON COUNTY SHERIFF’S OFFICE, a public entity, 303 Court Street Suite 409 Covington, Kentucky 41011
CHARLES KORZENBORN, in his official capacity as Sheriff of Kenton County, 303 Court Street Suite 409 Covington, Kentucky 41011
and KEVIN SUMNER, School Resource Officer, in his individual and official capacities, 303 Court Street Suite 409 Covington, Kentucky 41011
DEFENDANTS.

: : Case No. : : Judge: ________________________ : : : COMPLAINT FOR DAMAGES AND : DECLARATORY AND INJUNCTIVE : RELIEF AND JURY DEMAND : : : : : : : : : : : : : : : : : : : : : : : : : :

1 Plaintiffs S.R. and L.G. are minor children. They are referred to by their initials in accordance with Federal Rule of Civil Procedure 5.2(a)(3). A Motion to Proceed Using Initials for the mothers of T.R. and L.J. has been filed with this Complaint. Accordingly, Plaintiffs are identified by their initials throughout this Complaint.
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INTRODUCTION 1. This is an action for damages and for declaratory and injunctive relief to remedy Defendants’ violations of Plaintiffs’ rights under the U.S. Constitution and the Americans with Disabilities Act. 2. Plaintiffs S.R. and L.G. are two elementary schoolchildren with disabilities, an eight-year old boy and a nine-year-old girl, who were unlawfully restrained and handcuffed at school with excessive force and without necessity by Defendant Kevin Sumner (Sumner), the School Resource Officer assigned to Plaintiffs’ schools. Plaintiff S.R. was handcuffed on one occasion; Plaintiff L.G. was handcuffed on two occasions. The three incidents occurred in the Fall of 2014. 3. Because of the children’s small size in comparison to the handcuffs, which are designed for adults, Defendant Sumner handcuffed them behind their backs, and placed the handcuffs on their biceps (above the elbows). This use and placement of handcuffs on small children is contrary to guidance on the safe use of handcuffs. 4. Defendant Sumner acknowledges handcuffing Plaintiffs S.R. and L.G. Portions of one of the three handcuffing incidents is captured on video. (See Exhibits A and B). On no occasion was there an imminent danger of physical harm to the child or to anyone else that required Defendant Sumner to handcuff the child behind the back above the elbow. 5. As a result of being subjected to unnecessary and excessive handcuffing, Plaintiffs experienced pain, fear, and emotional trauma, and an exacerbation of their disabilities. 6. Defendants Kenton County Sheriff’s Office (KCSO) and Charles Korzenborn (Korzenborn) are charged with the responsibility of establishing policies, practices, and training for School Resource Officers such as Defendant Sumner. Despite the provisions of federal and
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state law, Defendants KCSO and Korzenborn are aware that mechanical restraints have been used against elementary-aged schoolchildren, including schoolchildren with disabilities, by School Resource Officers under their supervision. Defendants KCSO and Korzenborn have permitted and, upon information and belief authorized, School Resource Officers, including Defendant Sumner, to use mechanical restraints in such a way as to constitute excessive force in restraining elementary schoolchildren with disabilities, including the unlawful use of handcuffs with excessive force and without necessity.
7. In 2009, the U.S. Government Accountability Office (GAO) published a nationwide study documenting hundreds of alleged incidents of restraint and seclusion in schools from 1990 to 2009, including 20 incidents causing death. Virtually all of the incidents identified by the GAO involved children with disabilities. The same year, in testimony before the House Education and Labor Committee, the GAO presented its study and reported on the risks of injury and death related to the use of restraint and seclusion on children. The GAO explained that that even if no physical injury is sustained, individuals can be severely traumatized during restraint.
8. Following the GAO report and testimony, U.S. Secretary of Education Arne Duncan wrote a letter to all states requesting that they review and revise their policies regarding restraint and seclusion. In response, the Kentucky Board of Education adopted regulations in 2012 limiting the use at school of physical restraint to situations where the “student’s behavior poses an imminent danger of physical harm to self or others,” and less restrictive behavioral intervention cannot stop such imminent danger of physical harm. 704 K.A.R. 7:160, § 3(1)(b), (3)(a), (d). The regulations further prohibit “school personnel,” defined to include “school resource officers [and] sworn law enforcement officers … who are employed in a school or who perform services in the school on a contractual basis,” 704 K.A.R. 7:160, § 1(13), from using
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mechanical restraints such as handcuffs. 704 K.A.R. 7:160, § 3(2)(a). The regulations went into effect in 2013.
9. Plaintiffs S.R. and L.G. seek permanent injunctive relief to prohibit Defendants from authorizing or employing the unnecessary and excessive use of physical restraint and handcuffing on schoolchildren, including those with disabilities, and to compel Defendants to revise their policies, practices, and trainings accordingly. Plaintiffs further seek an order declaring Defendants’ conduct to be unconstitutional and to be in violation of the Americans with Disabilities Act. Plaintiffs also seek compensatory damages, punitive damages, and reasonable attorneys’ fees and costs.
JURISDICTION AND VENUE 10. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 & 1334(3), (4), to hear Plaintiffs’ constitutional claims brought under 42 U.S.C. § 1983 and Plaintiffs’ disability discrimination claims brought under Title II of the ADA, 42 U.S.C. § 12132 et seq. 11. Pursuant to 28 U.S.C. § 1391(b), and the Local Rules of the Eastern District of Kentucky, Rules 3.1(a) and 3.2(a), venue is proper in this judicial district because the events giving rise to this action occurred in the City of Covington, Kenton County, Kentucky.
PARTIES – PLAINTIFFS 12. Plaintiff S.R. was eight years old and weighed 52 pounds when he was handcuffed in the Fall of 2014. At all relevant times, Plaintiff S.R. has been and is enrolled in an elementary school within the Covington Independent Public Schools (CIPS) District. Plaintiff S.R. has disabilities including post-traumatic stress disorder (PTSD) and attention deficit hyperactive disorder (ADHD). He is a person with a disability protected by the Americans with
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Disabilities Act. As a minor child, Plaintiff S.R. brings this action through his mother and next friend, T.R. Plaintiff S.R. and his mother reside in Kenton County, Kentucky.
13. Plaintiff L.G. was nine years old and weighed 56 pounds when she was handcuffed twice in the Fall of 2014. At all relevant times, Plaintiff L.G. has been and is enrolled in an elementary school within the CIPS District. Plaintiff L.G. has disabilities including ADHD. She is a person with a disability protected by the Americans with Disabilities Act. As a minor child, Plaintiff brings this action through her mother, L.J. Plaintiff L.G. and her mother reside in Kenton County, Kentucky.
PARTIES – DEFENDANTS 14. Defendant Kenton County Sheriff’s Office (KCSO) is the law enforcement agency for Kenton County, and a public entity for purposes of Title II of the ADA. 15. Defendant Charles Korzenborn (Korzenborn) is the Sheriff for Kenton County, and a “person” for purposes of 42 U.S.C. § 1983. At all times relevant to this complaint, Defendant Korzenborn was acting under color of state law. Defendant Korzenborn is sued in his official capacity. 16. Defendant Kevin Sumner (Sumner) is employed by the Kenton County Sheriff’s Office as a School Resource Officer assigned to elementary schools with the CIPS District. Defendant Sumner is a “person” for purposes of 42 U.S.C. § 1983, and an agent of Defendant KCSO for purposes of the ADA. At all times relevant to this complaint, Defendant Sumner was acting under color of state law. Defendant Sumner is sued in his individual and official capacities.
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STATEMENT OF FACTS 17. According to the U.S. Department of Education’s Civil Rights Data Collection (CRDC), the CIPS District is 22.4 percent students with disabilities under the Individuals with Disabilities Education Act (IDEA). Nationwide, the CRDC describes the IDEA population as 12 percent of the student population. 18. As Sheriff for Kenton County, Defendant Korzenborn entered into an agreement with the CIPS District on or about August 2014 to provide four deputies to serve as School Resource Officers through June of 2015. The School Resource Officers (SROs) are law enforcement officers employed by Defendant KCSO who are based in the schools. Defendant Korzenborn has the authority to hire, dismiss, assign, or reassign the SROs. 19. Defendants KCSO and Korzenborn have failed to create or maintain policies, practices, procedures, or trainings regarding the use of physical restraints, handcuffs, and other types of physical force on elementary schoolchildren, including students with disabilities such as Plaintiffs S.R. and L.G. 20. Defendants KCSO and Korzenborn have failed to take reasonable steps to implement the regulations on restraint and seclusion adopted by the Kentucky Board of Education. Facts Regarding Plaintiff S.R. 21. During the 2014-15 school year, Plaintiff S.R. was eight years old and enrolled in the third grade at the Latonia Elementary School in the CIPS District. He stood about 3 ½ feet tall and weighed about 52 pounds. 22. According to the CRDC, more than 20 percent of the students at Latonia Elementary – one in five students – is a student with an IDEA disability.
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23. In May of 2012, Plaintiff S.R. was diagnosed with ADHD, a mental disorder. Because of his ADHD, Plaintiff S.R. experiences difficulty staying focused, paying attention, controlling behavior, complying with directives, and remaining seated, and is substantially limited in one or more major life activities, including learning and neurological/brain functions.
24. By October of 2013, school personnel with Latonia Elementary acknowledged that Plaintiff S.R. needed a behavior intervention plan to help him manage his disability-related behaviors.
25. In August of 2014, Plaintiff S.R. was diagnosed with PTSD, a mental disorder. Because of his PTSD, Plaintiff S.R. experiences distress associated with traumatic experiences, and is substantially limited in one or more major life activities, including neurological/brain functions.
26. On November 13, 2014, while in a classroom, Plaintiff S.R. experienced disability-related difficulties complying with directives from his teacher and the Vice Principal. He was removed from the classroom and directed to the Vice Principal’s office.
27. Portions of the events in the Vice Principal’s office were video recorded by school personnel; there are three segments of video. (See Exhibits A and B, which are two of the segments).
28. While in the Vice Principal’s office, Plaintiff S.R. tried to leave the room, but school personnel held the door closed. Plaintiff S.R. was restrained by the Vice Principal and a special education teacher twice, for about four to five minutes each time.
29. Plaintiff S.R. again tried to leave the room, and stated that he had to use the bathroom. Plaintiff S.R. spoke with his mother, T.R., by phone, and calmed down. T.R.
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requested that her son be permitted to use the bathroom, and the school agreed. Defendant Sumner arrived, and took Plaintiff to the bathroom.
30. When Defendant Sumner and Plaintiff S.R. returned from the bathroom, Plaintiff S.R. was not able to follow Defendant Sumner’s directions, including a direction to sit down. In an “Investigation Report” written months later, Defendant Sumner stated that Plaintiff S.R. “swung his arm and attempted to strike [him] with his elbow,” but that he blocked Plaintiff’s elbow with his hand.
31. Defendant Sumner then handcuffed Plaintiff S.R. behind his back. Defendant Sumner placed the handcuffs at S.R.’s biceps, above his elbows. School records indicate that Plaintiff S.R. was handcuffed for about fifteen minutes.
32. On the video, Defendant Sumner can be heard stating, “You can do what we ask you to or you can suffer the consequences.” Plaintiff S.R. can be heard saying, “Oh, God. Ow, that hurts.” (Exhibit A).
33. Defendant Sumner can be seen on the video pushing on the chain of the handcuffs to place S.R. in a chair, stating, “Now sit down like I asked you to.” Plaintiff S.R. can be heard stating, “please.” (Exhibit A).
34. More than seven minutes are captured on the third video segment. Throughout, Plaintiff S.R. can be seen crying, gasping, and squirming in the chair, and Defendant Sumner can be seen and heard demanding compliance from Plaintiff S.R., stating: “You know you’re…going to behave the way you’re supposed to or you suffer the consequences. It’s your decision to behave this way. If you want the handcuffs off, you’re going to have to behave and ask me nicely. … Sit back down. … Ask nicely. … Look at me. … It’s up to you if you want them off or not.” (Exhibit B).
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35. While handcuffed, Plaintiff S.R. expressed pain and upset. The video captures S.R. stating, “My arm!” and “Oww, oww.” Just before the end of the third video segment, a school official can be heard stating, “Stop the video.” (Exhibit B).
36. Plaintiff S.R.’s mother arrived at school to take him home, and learned at that time that he had been handcuffed by Defendant Sumner. As T.R. left with her son, Defendant Sumner told them that he would return to the school with his handcuffs if S.R. did not behave.
37. The use of mechanical restraints such as handcuffs is prohibited by School Resource Officers like Defendant Sumner. 704 K.A.R. 7:160, §§ 1(13), 3(2)(a). Further, at no point during the interaction between Plaintiff S.R. and Defendant Sumner on November 13, 2014 was there an imminent danger of physical harm or “direct threat” to S.R. or to anyone else that required Defendant Sumner to use handcuffs. Nor was there a “direct threat” justification for the placement of the handcuffs, or for the prolonged period of time that the handcuffs were imposed. The only basis for the handcuffing was Defendant Sumner’s desire for compliance. See 704 K.A.R. 7:160, § 3(1)(b) (“Physical restraint shall not be used in a public school or educational program … [t]o force compliance[.]”); see also id. at § 1(4).
38. Plaintiff S.R. experienced physical pain and significant emotional distress during the November 13, 2014 handcuffing. Thereafter, as a result of the handcuffing, he suffered and continues to suffer emotional distress.
Facts Regarding Plaintiff L.G. 39. During the 2014-15 school year, Plaintiff L.G. was nine years old and enrolled in the fourth grade at the John G. Carlisle Elementary School in the CIPS District. She weighed about 56 pounds.
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40. In November of 2012, Plaintiff L.G. was diagnosed with ADHD, a mental disorder. Because of her ADHD, Plaintiff L.R. experiences hyperactivity, impulsivity, and difficulty paying attention, complying with directives, controlling emotions, and remaining seated. She has particular difficulty during transitions that occur at school. She also has experienced mental health crises that have required hospitalizations. She is substantially limited in one or more major life activities, including learning and neurological/brain functions.
41. Beginning in October of 2013, Plaintiff L.G. had a Section 504 education plan, which included strategies for assisting her with behavior. Plaintiff L.G. currently has an Individualized Education Plan (IEP) under the IDEA, which includes strategies for assisting her with behavior.
42. On August 21, 2014, Defendant Sumner was assigned to Plaintiff L.G’s school, and was contacted by school personnel to assist with L.G., who had been put in the in-school suspension room. According to Defendant Sumner, Plaintiff L.G. was screaming and disrupting the classroom. Defendant Sumner placed Plaintiff L.G. in the back of his cruiser, a locked area of the car. Defendant Sumner took L.G. to her home, where they waited in the cruiser for more than one hour while they waited for L.G.’s mother to arrive.
43. On October 3, 2014, Plaintiff L.G. experienced disability-related difficulties complying with directives from her teacher. Plaintiff L.G. was first directed to the in-school suspension room, and then taken to the school isolation room. When Plaintiff L.G. tried to leave the isolation room, she was restrained by the Principal and Vice Principal.
44. School personnel contacted Defendant Sumner, who arrived while Plaintiff L.G. was still being restrained. When Defendant Sumner arrived, he handcuffed Plaintiff L.G. behind her back, placing the handcuffs around her biceps and above her elbows. In an “Investigation
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Report” written months later, Defendant Sumner stated that he handcuffed L.R. because she “was attempting to injure the school staff” while being restrained. Plaintiff L.G. remained handcuffed for twenty minutes.
45. In reaction to being handcuffed, Plaintiff L.G. experienced a severe mental health crisis. She cried and struggled physically against the handcuffs. Defendant Sumner contacted a medical crisis team. Plaintiff L.G. was taken by ambulance to the hospital for psychiatric assessment and treatment.
46. The use of mechanical restraints such as handcuffs is prohibited by School Resource Officers like Defendant Sumner. Further, at no point during the October 3, 2014, interaction between Plaintiff L.G. and Defendant Sumner was there an imminent danger of physical harm or “direct threat” to S.R. or to anyone else that justified Defendant Sumner’s use of handcuffs. Nor was there a “direct threat” justification for the placement of the handcuffs, or for the prolonged period of time that the handcuffs were imposed.
47. Plaintiff L.G. experienced physical pain and significant emotional distress during the October 3, 2014 handcuffing. As a result of the handcuffing, she suffered, and continues to suffer from, emotional distress.
48. About three weeks later, October 23, 2014, Plaintiff L.G. was again handcuffed by Defendant Sumner. On that day, in the morning prior to the start of the school day, L.G. was walking on the stairs and through the hallways when she was supposed to be in the cafeteria. The Principal encouraged L.G. to go to the cafeteria, and L.G. proceeded in that direction. Plaintiff L.G. stood outside the cafeteria under the watch of the Principal, who was waiting for L.G. to enter.
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49. While L.G. was standing outside the cafeteria, Defendant Sumner approached her and told her to go inside the cafeteria. This encounter triggered L.G., who was still traumatized by her prior encounters with Defendant Sumner. Plaintiff L.G. ran away and Defendant Sumner followed her, telling her to go inside the cafeteria.
50. At about 7:45 a.m., Defendant Sumner and the Principal restrained L.G., while she resisted and struggled. After about ten minutes, Defendant Sumner handcuffed Plaintiff L.G. behind her back, placing the handcuffs around her biceps and above her elbows. In an “Investigation Report” written months later, Defendant Sumner stated that he restrained and then handcuffed L.R. because she was attempting to assault him. Plaintiff L.G. remained kneeling on the floor, handcuffed and struggling, for about thirty minutes until her mother L.J. arrived.
51. Plaintiff L.G.’s mother learned about her child’s handcuffing when she arrived at the school and heard L.G. crying and screaming. Plaintiff L.G.’s mother witnessed Defendant Sumner holding L.G.’s hands over her head while handcuffed in a shoulder hyperextension position. This position is a pain compliance technique that is dangerous for children and is contrary to guidance on the safe restraint of children.
52. After Plaintiff L.G.’s mother arrived, L.G. calmed down, and Defendant Sumner removed the handcuffs.
53. The use of mechanical restraints such as handcuffs is prohibited by School Resource Officers like Defendant Sumner. Further, at no point during the October 23, 2014, interaction between Plaintiff L.G. and Defendant Sumner was there an imminent danger of physical harm or “direct threat” to L.G. or to anyone else that justified Defendant Sumner’s use of handcuffs. Nor was there a “direct threat” justification for the placement of the handcuffs, or
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for the prolonged period of time that the handcuffs were imposed. Defendant Sumner used the handcuffs to seek compliance.
54. Plaintiff L.G. experienced physical pain and significant emotional distress during the second handcuffing that occurred on October 23, 2014. As a result of this second handcuffing, Plaintiff L.G’s suffered, and continues to suffer from, emotional distress.
CAUSES OF ACTION Count I: Unreasonable Seizure and Excessive Force
In Violation of the U.S. Constitution, Fourth and Fourteenth Amendments
42 U.S.C. § 1983 Against Defendant Korzenborn, in his Official Capacity, Defendant Sumner, in his Official and Individual Capacities,
And Defendant Kenton County Sheriff’s Office 55. Plaintiffs S.R. and L.G. incorporate by reference the above paragraphs as though fully set forth herein. 56. The U.S. Constitution protects Plaintiffs S.R. and L.G. against unreasonable seizures and excessive force. “[T]he reasonableness of a particular seizure depends not only on when it is made, but also on how it is carried out.” Graham v. Connor, 490 U.S. 386, 395 (1989). Whether a seizure is unreasonable and unconstitutional depends upon the totality of the circumstances. 57. The seizures of Plaintiffs S.R. and L.G. were unreasonable in light of the totality of the circumstances, including but not limited to:
a. The age, size, and disabilities of the children, including their limited ability to impose physical harms on others and their limited ability to form criminal intent;
b. That the children were experiencing behavior problems associated with their disabilities while at elementary school;
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c. That the School Resource Officer placed handcuffs designed for adults on young schoolchildren, behind their arms and at their biceps, above the shoulders;
d. That the handcuffing violated the regulations of the Kentucky Board of Education;
e. The length of time of the handcuffing; and f. The traumas imposed by the handcuffing. 58. By engaging in the acts described herein, Defendant Sumner, acting under color of law and with deliberate indifference, violated the Plaintiffs’ rights under the U.S. Constitution to be free from unreasonable seizures and excessive force. 59. The rights of S.R. and L.G. to be free from unreasonable seizures and excessive force as described herein was clearly established in law at the time of the incidents alleged. 60. Defendant Sumner acted maliciously, intentionally, and in reckless disregard to the rights of the plaintiffs. 61. Further, Plaintiffs are informed and believe, and thereupon allege, that Defendant Korzenborn has failed and continues to fail to train and supervise Defendant Sumner regarding the restrictions under law on the use of physical restraints, including handcuffs, on elementary schoolchildren such as Plaintiffs, and that Defendant Korzenborn has failed and continues to fail to implement policies, practices, and procedures to prevent such unlawful physical restraints. 62. Further, Plaintiffs are informed and believe, and thereupon allege, that Defendant Kenton County Sheriff’s Office has maintained and continues to maintain, with deliberate indifference, an unlawful policy or custom of imposing unreasonable seizures and excessive force on schoolchildren, including the seizures and excessive force as described herein. Plaintiffs are further informed and believed that Defendant KCSO has failed to implement
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training, supervision, policies, practices, and procedures to prevent such unlawful physical restraints.
63. As a proximate result of the actions and inactions of Defendants, Plaintiffs S.R. and L.G. suffered and continue to suffer physical pain, emotional pain, psychological injury, trauma, and suffering. Plaintiffs continue to experience fear, distrust, and anxiety regarding law enforcement officers such as School Resource Officers.
64. Plaintiffs are entitled to injunctive relief, declaratory relief, compensatory damages, punitive damages, and reasonable attorneys’ fees and costs.
Count II: Disability-Based Discrimination In Violation of Title II of the Americans with Disabilities Act
42 U.S.C. § 12132, 28 C.F.R. § 35.130(b)(3), (8) Against Defendant Kenton County Sheriff’s Office 65. Plaintiffs S.R. and L.G. incorporate by reference the above paragraphs as though fully set forth herein. 66. The regulations implementing Title II of the ADA require that public entities avoid unnecessary policies, practices, criteria or methods of administration that have the effect or tendency of excluding or discriminating against persons with disabilities. 28 C.F.R. § 35.130(b)(3), (8). 67. Students with disabilities, and particularly students with disabilities involving behavior challenges, including Plaintiffs S.R. and L.G., are particularly susceptible to and injured by the unnecessary use of physical restraints, including handcuffs, on the basis of disability. The effects on these students with disabilities include substantial and disproportionate physical and emotional injuries, and disruptive exclusions from the school community.
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68. Instead of the unnecessary use of physical restraints, including handcuffs, students with disabilities require reasonable modifications such as crisis intervention, de-escalation, patience, and waiting.
69. Through its policy and practice of imposing unnecessary physical restraints, including handcuffs, on schoolchildren with disabilities, including Plaintiff S.R. and L.G., Defendant KSCO has violated and continues to violate the ADA.
70. Through its failure to adopt a policy and practice of providing reasonable modifications to schoolchildren with disabilities, including Plaintiffs S.R. and L.G., such as crisis intervention, de-escalation, patience, and waiting, Defendant KSCO has violated and continues to violate the ADA.
71. Plaintiffs are entitled to compensatory damages, injunctive relief, declaratory relief, and attorneys’ fees and costs.
Count III: Disability-Based Discrimination and Failure to Accommodate In Violation of Title II of the Americans with Disabilities Act 42 U.S.C. § 12132, 28 C.F.R. § 35.130(b)(7) Against Defendant Kenton County Sheriff’s Office
72. Plaintiffs S.R. and L.G. incorporate by reference the above paragraphs as though fully set forth herein.
73. Title II of the ADA requires that public entities do not subject individuals with disabilities to discrimination, and that such public entities provide reasonable modifications to persons with disabilities. 42 U.S.C. § 12132, 28 C.F.R. § 35.130(b)(7).
74. Under these provisions, law enforcement officers, including School Resource Officers like Defendant Sumner, may not discriminate on the basis of disability, and must provide reasonable modifications as needed during their interactions with individuals with disabilities.
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75. Based on all of the circumstances stated herein, Defendant Sumner knew or should have known that Plaintiffs S.R. and L.G. are persons with disabilities who require reasonable modifications under the ADA due to their disability-related difficulties.
76. Instead of providing reasonable modifications such as crisis intervention, deescalation, patience, and waiting, Defendant Sumner escalated his encounters with Plaintiffs S.R. and L.G., and subjected them to unnecessary physical restraint including handcuffing. In so doing, Defendant Sumner acted with deliberate indifference.
77. Further, and with deliberate indifference, Defendant KCSO failed to implement the nondiscrimination and reasonable modification requirements of the ADA through its policies, practices, procedures, and trainings, and instead authorized its School Resource Officers such as Defendant Sumner to engage in disability discrimination against Plaintiffs S.R. and L.G.
78. As a proximate result of the actions and inactions of Defendant KCSO and its agents, Plaintiffs S.R. and L.G. suffered and continue to suffer physical pain, emotional pain, psychological injury, trauma, and suffering. Plaintiffs continue to experience fear, distrust, and anxiety regarding law enforcement officers such as School Resource Officers.
79. Plaintiffs are entitled to injunctive relief, declaratory relief, compensatory damages, and reasonable attorneys' fees and costs.
JURY DEMAND 80. Plaintiffs hereby demand a trial by jury of all issues triable by a jury.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs S.R. and L.G., minor children, pray that this Court: 1. Declare that that the actions and inactions described herein violate the rights of Plaintiffs S.R. and L.G. under the U.S. Constitution and the Americans with Disabilities Act;
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2. Issue an order enjoining the Defendants from engaging in the unlawful conduct
complained of herein;
3. Award Plaintiffs compensatory damages;
4. Award Plaintiffs punitive damages;
5. Award reasonable attorneys’ fees and costs pursuant to 42 U.S.C. §§ 1988 and
12205; and
6. Grant such other and further relief as the court deems just and proper.
Respectfully submitted,
/s/ R. Kenyon Meyer R. Kenyon Meyer (KY Bar No. 85941) Counsel for Plaintiffs Dinsmore & Shohl LLP 101 S. Fifth Street, Suite 2500 Louisville, Kentucky 40202 (502) 540-2300 Kenyon.meyer@dinsmore.com
/s/ Rickell L. Howard Rickell L. Howard (OH Bar No. 0081982)* Counsel for Plaintiffs Children’s Law Center, Inc. 1002 Russell Street Covington, KY 41011 (859) 431-3313 rhoward@childrenslawky.org *Motion to Appear Pro Hac Vice Pending
/s/ William Sharp William E. Sharp (KY Bar No. 87896) Counsel for Plaintiffs Legal Director ACLU OF KENTUCKY 315 Guthrie St., Ste. 300 Louisville, KY 40202 (502) 581-9746 sharp@aclu-ky.org
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/s/ Claudia Center Claudia Center (CA Bar No. 158255)* Susan Mizner* Counsel for Plaintiffs American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 (415) 343-0762 smizner@aclu.org ccenter@aclu.org *Motions to Appear Pro Hac Vice Pending
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 Case: 2:15-cv-00143-WOB-JGW Doc #: 32 Filed: 10/02/15 Page: 1 of 39 - Page ID#: 218

IN THE UNITED STATES DISTRICT COURT
 FOR THE EASTERN DISTRICT OF KENTUCKY 

NORTHERN DIVISION AT COVINGTON 


S.R., a minor, by and through his next friend and mother, T.R.,
and
L.G., a minor, by and through her next Friend and mother, L.J.,
Plaintiffs,
v.
KENTON COUNTY, et al.,
Defendants.

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Case No.: 2:15-CV-143

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STATEMENT OF INTEREST OF THE UNITED STATES The approximately 19,000 school resource officers (“SROs”) in schools across the United States have a powerful role. SROs can partner with schools to help maintain a safe and positive school environment — when their role is clearly defined and they are trained to perform it properly. However, children — particularly children with disabilities — risk experiencing lasting and severe consequences if SROs unnecessarily criminalize school-related misbehavior by taking a disproportionate law enforcement response to minor disciplinary infractions. Plaintiffs’ allegations in this case illustrate this risk.1 Here, Defendant Kevin Sumner (“Defendant Sumner”), an SRO in the Covington Independent Public Schools District,

1

For the purposes of this Statement of Interest, filed in the context of Defendants’ Motion to Dismiss, the

United States accepts the facts presented in the Plaintiffs’ complaint as true and views them in their most

Case: 2:15-cv-00143-WOB-JGW Doc #: 32 Filed: 10/02/15 Page: 2 of 39 - Page ID#: 219
handcuffed S.R., an eight-year-old third grader, and L.G., a nine-year-old fourth grader, behind their backs, above their elbows, at the biceps. Both children have disabilities and were handcuffed after exhibiting conduct arising out of these disabilities. The children, through their parents, have filed this lawsuit, alleging that the Defendants’ conduct caused them harm and violated their rights under the Fourth and Fourteenth Amendments to the United States Constitution and Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134 (“ADA”). The United States files this Statement of Interest to assist the Court in evaluating the legal standards it should use in considering the Plaintiffs’ claims.
Specifically, the United States seeks to affirm the factors the Court must consider in evaluating the objective reasonableness of Defendant Sumner’s seizures of both children. Further, the United States seeks to confirm that statutory and regulatory authority well establishes that the ADA applies to police interactions, and to correct misstatements about the ADA in Defendants’ brief. Because the ADA is applicable, the Court should evaluate whether, through Defendant Sumner’s actions, the Defendant Kenton County Sheriff’s Office (“Sheriff’s Office”) violated the ADA’s requirement that government entities reasonably modify procedures, practices, and policies unless doing so would result in a fundamental alteration. The Defendant Sheriff’s Office also had a duty to create policies and administer those policies in a way that does not have the effect of discriminating against children with disabilities; the Court should reject Defendants’ attempt to avoid that duty.
favorable light. Ashcroft v. Iqbal, 556 U.S. 662, 678 (U.S. 2009). The United States does not take a position on the merits of the case.
2

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INTEREST OF THE UNITED STATES The United States has authority to file this Statement of Interest pursuant to 28 U.S.C § 517, which permits the Attorney General to attend to the interests of the United States in any case pending in a federal court.2 This litigation implicates the rights of children in schools to be free from unconstitutional police seizures, the rights of children with disabilities to be free from disability-based discrimination, and the rights of children to be free from civil rights violations that lead to the cycle of harsh school discipline and law enforcement involvement known as the “school-to-prison pipeline.” The United States is in a unique position to aid the Court in addressing these issues because of the authority granted to the Attorney General under the Violent Crime Control and Law Enforcement Act of 1994 (“Section 14141”) and the Americans with Disabilities Act. See 42 U.S.C. §§ 12133, 12134, 14141. As explained more fully below, the facts alleged in the instant case implicate the United States’ interests under both of these laws. Pursuant to Section 14141, the United States enforces the rights of individuals to be free from police practices that violate the Constitution or federal statutory law. The United States has used its authority under Section 14141 to investigate numerous jurisdictions for unlawful police practices, including practices that have a particularly harmful effect on individuals with disabilities.3

2

The full text of 28 U.S.C. § 517 provides: “The Solicitor General, or any officer of the Department of

Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests

of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any

other interest of the United States.”

3

See, e.g., Letter from Jocelyn Samuels, Acting Ass’t Att’y Gen. of the United States, to Hon. Richard J.

Berry, Mayor of Albuquerque, N.M. 3 (Apr. 10, 2014), available at

http://www.justice.gov/crt/about/spl/documents/apd_findings_4-10-14.pdf (finding that the Albuquerque Police

3 


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Further to this enforcement authority, the United States has a strong interest in eliminating the school-to-prison pipeline, which has a disproportionate effect on students with disabilities and students of color.4 The school-to-prison pipeline refers to the use of harsh and exclusionary discipline practices that “push students out of school and into the justice system.”5 In working to dismantle the pipeline, the United States has addressed discrimination in education, law enforcement, and juvenile justice. For example, the United States has reached landmark settlements to reform school-to-prison pipeline practices, including exclusionary discipline, school-based arrests, and youth probation practices in the City of Meridian, Mississippi, and Lauderdale County, Mississippi.6 The United States has also

Department used excessive force against individuals with mental illness); Investigation of the New Orleans Police Dep’t, U.S. Dep’t of Justice Civil Rights Division, at xiii (Mar. 16, 2011), available at http://www.justice.gov/crt/about/spl/nopd_report.pdf (concluding that the New Orleans Police Department failed to implement measures to prevent unreasonable force, including implementing policies for responding to individuals in mental health crisis); Letter from Thomas Perez, Ass’t Att’y Gen. of the United States, to Hon. Sam Adams, Mayor of Portland, Or. 10 (Sept. 12, 2012), available at http://www.justice.gov/sites/default/files/crt/legacy/2012/09/17/ppb_findings_9-12-12.pdf (finding that the Portland, Oregon, Police Bureau engages in a pattern or practice of unnecessary or unreasonable force during interactions with individuals who have or are perceived to have disabilities, i.e., mental illness).

4

According to the 2011-2012 U.S. Department of Education Civil Rights Data Collection, students with

disabilities and minority students are disproportionately referred to law enforcement and involved in school

related arrests. U.S. Dep’t of Educ. Office for Civil Rights, Civil Rights Data Collection: Data Snapshot (School

Discipline) 1 (Mar. 21, 2014), available at http://ocrdata.ed.gov/Downloads/CRDC-School-Discipline­

Snapshot.pdf. While only representing 12% of the nationwide student population, children with disabilities as

defined by the Individuals with Disabilities Education Act represent 25% of arrests and referrals to law

enforcement, and represent 75% of students subjected to physical restraint. Id. at 7, 11. Similarly, while

representing 49.3% of the nationwide student population, minority children account for 61.3% of school arrests

and 59.3% of referrals to law enforcement. Id. at 6.

5

Press Release, Department of Justice Office of Public Affairs, Attorney General Holder, Secretary

Duncan Announce Effort to Respond to School-to-Prison Pipeline by Supporting Good Discipline Practices (Jul.

21, 2011), available at http://www.justice.gov/opa/pr/attorney-general-holder-secretary-duncan-announce-effort­

respond-school-prison-pipeline. See also Loretta Lynch, Att’y Gen., Remarks at the White House Convening on

School Discipline (Jul. 22, 2015), available at

http://www.justice.gov/opa/speech/attorney-general-loretta-e-lynch-delivers-remarks-white-house-convening­

school-discipline (noting ongoing efforts by the Department of Justice, the Department of Education, and the

Department of Health and Human Services “to improve school climates, to respond early and appropriately to

student mental health and behavioral needs and to avoid referring students to law enforcement and juvenile justice

as a disciplinary response.”).

6

Consent Order Between the United States and the Meridian Municipal Separate School District,

4 


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secured a consent order with Huntsville City Schools in Alabama, requiring, among other things, that the district reform its use of SROs to ensure that school officials, rather than law enforcement, handle student misconduct that does not threaten the safety of others.7
Additionally, in January 2014, the Department of Justice, in collaboration with the Department of Education, released a school discipline guidance package to assist states, school districts, and schools to comply with federal law and avoid perpetuating the school-to-prison pipeline, including guidance on the appropriate use of SROs.8 The Departments of Justice and Education are providing other technical assistance and guidance to encourage education, police, and juvenile justice officials to work together to prevent youth arrests or referrals to the juvenile justice system for minor school-based offenses.9
The principles that undergird the United States’ civil rights enforcement and technical assistance efforts are also reflected in the grantmaking activities of the Department of Justice Office of Community Oriented Policing Services (“COPS Office”), which provides funding for districts deciding to employ SROs.10 Grantees receiving these funds must ensure that their

Barnhardt v. Meridian School District, No. 4:65-cv-01300-HTW-LRA (S.D. Miss. May 30, 2013), available at http://www.justice.gov/crt/about/edu/documents/classlist.php#race; Settlement Agreement Between the United States and the City of Meridian, United States v. City of Meridian, et. al, No. 3:13-CV-978-HTW-LRA (Sept. 18, 2015), available at http://www.justice.gov/crt/file/778016/download; Settlement Agreement Between the United States and the State of Mississippi Department of Human Services and Division of Youth Services, United States v. City of Meridian, et. al, No. 3:13-CV-978-HTW-LRA (Sept. 18, 2015), available at http://www.justice.gov/crt/file/778001/download.

7

Consent Order Between the United States and Huntsville Board of Education, Hereford & United States

v. Huntsville Board of Education, NO. 5:63-cv-00109-MHH (N.D. Ala. Apr. 24, 2015), available at

http://www.justice.gov/sites/default/files/crt/legacy/2015/07/13/huntsvilleconsentorder.pdf.

8

ED-DOJ School Discipline Guidance Package, U.S. Dep’t of Educ. and U.S. Dep’t of Justice (Jan. 8,

2014), available at http://www2.ed.gov/policy/gen/guid/school-discipline/fedefforts.html#guidance.

9

See Supportive School Discipline Initiative, National Clearinghouse on Supportive School Discipline,

available at http://supportiveschooldiscipline.org/learn/reference-guides/supportive-school-discipline-initiative­

ssdi (last visited Sept. 22, 2015).

10

The Department of Justice has launched a number of collaborative programs aimed at providing support

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SROs do not contribute to the school-to-prison pipeline by arresting or citing students for minor, nonviolent behavioral violations or becoming involved in administrative discipline of students.11 The COPS Office also actively supports training for current and future SROs around the country, including those who are not funded with COPS grants, regarding their role in the school setting. As part of these ongoing training efforts, the COPS Office has provided grant money for the development of a training curriculum for SROs.12
Additionally, pursuant to Title II of the ADA, 42 U.S.C. §§ 12131-12134, the Department of Justice wrote and enforces regulations that prohibit disability discrimination by state and local government entities. 28 C.F.R. Part 35 (2015). The Department’s interpretation of its Title II regulations has been accorded substantial deference. See Johnson v. City of Saline, 151 F.3d 564, 570 (6th Cir. 1998) (“Congress gave the Attorney General the task of developing regulations to implement Title II. . . . Because of this express delegation, these regulations are entitled to ‘controlling weight, unless they are arbitrary, capricious, or manifestly contrary to the statute.’” (quoting Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984)). Thus, the United States has a special

and funding for school safety programs. See, e.g., COPS Hiring Program, U.S. Dep’t of Justice, available at http://www.cops.usdoj.gov/Default.asp?Item=2367 (providing funding for the hiring and rehiring of school resource officers) (last visited Set. 18, 2015); U.S. Dep’t of Justice, Comprehensive School Safety Initiative Awards for FY 2014, at 1, 8, 21 (Oct. 2014), available at http://nij.gov/topics/crime/school­ crime/documents/comprehensive-school-safety-initiative-awards-fy-2014.pdf (securing $75 million in 2014 to fund 24 research projects aimed at improving school safety nationwide, including two studies on the effectiveness of SROs); U.S. Dep’t of Justice, OJJDP FY 2014 School Justice Collaboration Program: Keeping Kids in School and Out of Court 6-7 (May 20, 2014), available at http://www.ojjdp.gov/grants/solicitations/FY2014/SJCPKeepingKidsinSchool.pdf (providing funding for, among other objectives, the collaboration of local law enforcement, courts, and education stakeholders, such as the training of school resource officers).

11

See U.S. Dep’t of Justice Office of Community Oriented Policing Services, 2015 COPS Hiring Program

(CHP) Application Guide 27 (May 2015), available at

http://www.cops.usdoj.gov/pdf/2015AwardDocs/chp/CHP_AppGuide.pdf.

12

See id. at 11.

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interest in the subject matter at issue in this case and how courts construe the protections of the Fourth Amendment and the ADA when law enforcement officers interact with schoolchildren.
FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs in this case, S.R. and L.G. (together, the “children”), are two young elementary school students with disabilities who are enrolled in public school in Kenton County, Kentucky. Complaint ¶ 12, 13, ECF No. 1 (Aug. 3, 2015) (“Compl.”).13 Defendants are the Sheriff’s Office, Kenton County Sheriff Charles Korzenborn (“Defendant Korzenborn”), and Defendant Sumner. Compl. ¶ 14-16. On three separate occasions, after the children exhibited conduct arising from their disabilities, Defendant Sumner handcuffed them in school. Compl. ¶ ¶ 2, 26, 31, 43, 44, 49, 50. Specifically, during the fall of 2014, at the time of his handcuffing, S.R. was eight years old and was in third grade at a Kenton County public school. Compl. ¶¶ 21. S.R. was approximately three and a half feet tall and weighed approximately 52 pounds. Compl. ¶ 21. S.R. had been diagnosed with attention deficit hyperactivity disorder (“ADHD”) and posttraumatic stress disorder (“PTSD”), both of which are disabilities under the ADA. Compl. ¶¶ 12, 23, 25. By October 2013, school personnel acknowledged that S.R. needed a behavior intervention plan to help him manage his disability-related behaviors. Compl. ¶ 24. Because of his disabilities, S.R. has difficulty staying focused, paying attention, controlling behavior, complying with directives, and remaining seated, and experiences distress associated with traumatic experiences. Compl. ¶ 23, 25.

13

The school district is not a defendant in this case. The United States does not take a position on the

Plaintiffs’ factual allegations about the school district’s use of restraint or other aversive techniques on students

with disabilities.

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In the fall of 2014, L.G. was nine years old and in fourth grade in another school in the

same district. Compl. ¶ 39. She weighed approximately 56 pounds. Compl. ¶ 39. In

November 2012, L.G. was diagnosed with ADHD. Compl. ¶ 40. Beginning in 2013, L.G. had a Section 504 education plan, which included strategies to help with her behavior.14

Compl. ¶ 41. Because of her disabilities, L.G. is hyperactive and impulsive and has difficulty

paying attention, complying with directives, controlling emotions, and remaining seated.

Comp. ¶ 40. She has a history of hospitalization for mental health crises. Compl. ¶ 40.

Toward the beginning of the 2014 school year, Defendant Korzenborn entered an

agreement to provide four officers, including Defendant Sumner, to serve as SROs for schools

in the district. Compl. ¶ 18. Neither the Sheriff’s Office nor Defendant Korzenborn provided

training or created policies or procedures for the SROs on the use of physical force, including

the use of handcuffs, on children, including children with disabilities. Compl. ¶19.

On November 13, 2014, Deputy Sumner was at S.R.’s school. Compl. ¶ 26, 29. That

day, S.R. experienced disability-related difficulties complying with instructions from his

teacher and vice principal, and was sent to the vice principal’s office. Compl. ¶ 26. While

there, S.R. attempted to leave the room, but could not do so, as school personnel held the door

closed and restrained S.R. twice. Compl. ¶ 28. S.R. tried to leave the room again, saying he

needed to use the restroom. Compl. ¶ 29. Shortly thereafter, he calmed down after speaking

with his mother by phone. Compl. ¶ 29. Defendant Sumner then arrived and took S.R. to the

restroom. Compl. ¶ 29. When S.R. returned from the restroom, he had difficulty following

14

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, prohibits discrimination on the basis of

disability by recipients of federal financial assistance. In the elementary and secondary education context, Section

504 requires among other things that school districts that receive federal financial assistance provide qualified

students with disabilities with a free appropriate public education. See 34 C.F.R. §§ 104.3(l), 104.33. Schools

often document services to ensure the provision of a free appropriate public education under Section 504 in

written plans which are sometimes referred to as Section 504 plans.

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Defendant Sumner’s instructions, including an instruction to sit down. Compl. ¶ 30. Defendant Sumner then handcuffed S.R. behind his back, above his elbows, at his biceps, for approximately 15 minutes. Compl. ¶ 31. In a description of the incident several months later, Defendant Sumner alleged that S.R. had swung his arm, attempting to strike Defendant Sumner, but that the SRO blocked the child’s elbow with his hand. Compl. ¶ 30.
According to Plaintiffs’ Complaint, video footage of S.R.’s handcuffing15 depicts Defendant Sumner saying to the child: “You can do what we ask you to or you can suffer the consequences.” Compl. ¶ 32. The video also allegedly shows Defendant Sumner pushing on the chain of the handcuffs to place S.R. in a chair and telling him, “Now sit down like I asked you to.” Compl. ¶ 33. Defendant Sumner also said to S.R.: “You know you’re . . . going to behave the way you’re supposed to or you suffer the consequences. It’s your decision to behave this way. If you want the handcuffs off, you’re going to have to behave and ask me nicely.” Compl. ¶ 34. Throughout the interaction, the video depicts S.R. crying in pain, gasping, and squirming in his chair. Compl. ¶ 34.
When S.R.’s mother arrived to take the child home, Defendant Sumner threatened to return with his handcuffs if S.R. did not behave. Compl. ¶ 36. As a result of his handcuffing, S.R. experienced pain and suffered, and continues to suffer, emotional distress. Compl. ¶ 38.
L.G.’s first handcuffing was similar to S.R.’s. On October 3, 2014, L.G. experienced disability-related difficulties complying with her teacher’s directions and was sent to the school

15

Although Plaintiffs filed, in conjunction with their complaint, three videos of the events in question with

respect to S.R., those videos are under seal with the Court. See Order, ECF No. 11, at 1-2 (Aug. 5, 2015)

(deeming the first two videos, ECF No. 2, 3, sealed); Order, ECF No. 26, at 2 (Aug. 18, 2015) (ordering the third

video, ECF No. 27, to be filed under seal). Accordingly, the United States does not rely on this video footage.

The United States also takes no position on the Defendants’ assertion that the Court may rely on these videos in

lieu of accepting the facts in the Complaint as true. Defs.’ Joint Mem. in Supp. of Mot. to Dismiss the Compl. for

Failing to State a Claim and Based on Qualified Immunity for Kevin Sumner, Individually at 5-6, Sept. 3, 2015,

ECF No. 29-1 (“Defs.’ Mot.”).

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isolation room. Compl. ¶ 43. When she tried to leave the room, the principal and vice principal restrained her. Compl. ¶ 43. Thereafter, Defendant Sumner arrived and handcuffed L.G. in the same manner he had handcuffed S.R. – behind her back, above her elbows, around her biceps – for approximately 20 minutes. Compl. ¶ 44.
L.G. experienced a significant mental health crisis in response to the handcuffing. Compl. ¶ 45. She cried and struggled against the handcuffs. Compl. ¶ 45. L.G. was taken to the hospital for psychiatric assessment and treatment. Compl. ¶ 45. Several months after the incident, Defendant Sumner stated that he handcuffed L.G. because she was trying to “injure the school staff” while being restrained. Compl. ¶ 44.
Less than three weeks later, on October 23, 2014, Defendant Sumner again handcuffed L.G. after she exhibited conduct arising from her disability. Comp. ¶¶ 48, 49, 50. That day, L.G. was heading in the direction of the cafeteria, as the principal had instructed her to do. Compl. ¶ 48. While L.G. was standing outside the cafeteria with the principal watching her, Defendant Sumner approached and instructed her to enter. Compl. ¶ 49. L.G., who had remained traumatized by her prior encounters with Defendant Sumner, ran away. Comp. ¶ 49. Defendant Sumner followed her. Compl. ¶ 49. Thereafter, Defendant Sumner and the principal restrained L.G. while she resisted and struggled. Compl. ¶ 50. Defendant Sumner then handcuffed L.G. behind her back, above her elbows, around her biceps. Compl. ¶ 50. L.G. remained on the floor, handcuffed and struggling, for approximately 30 minutes. Compl. ¶ 50. Months later, Defendant Sumner alleged that he handcuffed L.G. because she had attempted to assault him. Compl. ¶ 50.
When L.G.’s mother arrived, she saw Defendant Sumner hold L.G.’s handcuffed hands over her head, in a shoulder hyperextension position, a pain compliance technique.
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Compl. ¶ 51. As a result of both handcuffings, L.G. suffered pain, and suffered, and continues to suffer from, emotional distress. Compl. ¶¶ 47, 54.
Plaintiffs filed their Complaint on August 3, 2015, alleging that the actions of Defendants violated their rights under the Fourth and Fourteenth Amendments and the ADA. Compl. ¶¶ 1, 55-79. Defendants filed their joint motion to dismiss, ECF No. 29, on September 9, 2015. Plaintiffs filed their response and a cross motion for partial judgment on the pleasdings on September 30, 2015, ECF Nos. 30, 31.
DISCUSSION I. In Evaluating Plaintiffs’ Claims, the Court Should be Cognizant of Appropriate
Limits on the Role and Responsibilities of School Resource Officers An improperly implemented SRO program can unnecessarily exacerbate the school-to­ prison pipeline and cause significant harm to students. In the absence of sufficient training and clear policies to limit SROs’ duties and ensure that educators, rather than SROs, are responsible for student behavior and discipline, officials are more likely to criminalize minor school infractions and to push students unnecessarily into the school-to-prison pipeline.16 Students can suffer lasting harmful consequences after an interaction with law enforcement. Indeed, students who experience coercive force by those in the criminal justice system are more likely to miss critical instructional time, struggle in class, disengage from learning, feel stigmatized or alienated, drop out, become involved in the juvenile justice system, and miss

16

Lisa H. Thurau & Johanna Wald, Controlling Partners: When Law Enforcement Meets Discipline in

Public Schools, 54 N.Y.L. SCH. L. REV. 977, 980 (2009/2010); Johanna Wald & Lisa Thurau, First, Do No Harm:

How Educators and Police Can Work Together More Effectively to Keep Schools Safe and Protect Vulnerable

Students, Charles Hamilton Houston Institute for Race and Justice 1 (2010) [hereinafter First, Do No Harm],

available at http://www.charleshamiltonhouston.org/wp-content/uploads/2013/11/FINAL-Do-No-Harm.pdf; U.S.

Dep’t of Education, Guiding Principles: A Resource Guide for Improving School Climate and Discipline, 9-11

(Jan. 2014) [hereinafter Guiding Principles], available at http://www2.ed.gov/policy/gen/guid/school­

discipline/guiding-principles.pdf.

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future educational opportunities.17 They face a greater risk of drug use, emotional difficulties, and low self-esteem.18 These law enforcement interactions can leave students feeling traumatized, anxious, humiliated, and deeply fearful of school.19 For children with disabilities, who may experience disproportionate contact with law enforcement in schools,20 such interactions can exacerbate the disability and the very behaviors that led to the SRO interaction.21
Best practices developed for implementing SRO programs demonstrate that, in efforts designed to help promote a safe learning environment in school, the role of SROs should be carefully circumscribed to ensure they do not become involved in routine disciplinary matters. SROs should use their law enforcement powers judiciously, to focus on safety, to avoid disability-based discrimination, and to avoid unnecessary criminalization of childhood behavior and perpetuation of the school-to-prison pipeline. These practices, if implemented, help ensure that schools and law enforcement agencies effectively protect school safety while avoiding violations of the federal rights of students. Some of these practices are discussed

17

See Udi Ofer, Criminalizing the Classroom: The Rise of Aggressive Policing and Zero Tolerance

Discipline in New York City Public Schools, 56 N.Y.U. L. REV. 1373 (2011/2012); see also Deb Delisle, Asst.

Secretary Delisle and Youth Lend Their Voices to Combatting the School-to-Prison Pipeline, U.S. Dep’t of

Education, available at http://www.ed.gov/blog/2012/12/asst-secretary-delisle-and-youth-lend-their-voices-to­

combatting-the-school-to-prison-pipeline/; U.S. Dep’t of Education and U.S. Dep’t of Justice, Dear Colleague

Letter: Nondiscriminatory Administration of School Discipline 4 (Jan. 8, 2014) [hereinafter Dear Colleague

Letter], available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.html.

18

Ofer, supra note 17, at 1401; See Matthew Theriot, School Resource Officers and the Criminalization of

Student Behavior, 37 J. OF CRIM. JUSTICE 280, 280 (2009) (listing several studies on the effects of criminalization

of student behavior).

19

First, Do No Harm, supra note 16, at 13.

20

Guiding Principles, supra note 16, at 9.

21

School-to-Prison Pipeline, Disability Rights Washington, available at

http://www.disabilityrightswa.org/school-prison-pipeline.

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below and should be considered when assessing the reasonableness of the Defendants’ actions and policies in this matter.
A. School Resource Officers Should Not Criminalize Behavior that School Officials Could Properly Handle An SRO’s role “should be focused on school safety, with the responsibility for addressing and preventing serious, real, and immediate threats to the physical safety of the school and its community.”22 SROs should not enforce the school code of conduct or engage in routine discipline of students; indeed, the authority and responsibilities of disciplinarian fall squarely in the hands of school administrators.23 This is particularly important when SROs are assigned to elementary schools, because in most elementary schools actual threats to physical safety are extremely rare.24 SROs should use law enforcement actions, such as arresting students, only as a last resort and only for serious criminal conduct or when necessary to protect students and staff from a threat of immediate harm.25 Because of their inherent power in the school setting, SROs should be particularly careful not to escalate or criminalize age-appropriate childhood behavior and should leave routine discipline to school officials.26 Proper training and an

22

Guiding Principles, supra note 16, at 10.

23

See, e.g., U.S. Dep’t of Justice Office of Community Oriented Policing Services, Fact Sheet,

Memorandum of Understanding for School-Based Partnerships 1, 2 (Sept. 2014) [hereinafter Fact Sheet],

available at http://www.cops.usdoj.gov/pdf/2014_MOU-FactSheet_v3_092513.pdf; Guiding Principles, supra

note 16, at 10.

24

According to data reported to the National Center for Education Statistics, 80% of elementary schools

reported no crimes to the police involving violence during the 2009-10 school year and .7% of elementary schools

reported more than 20 such crimes. U.S. Dep’t of Educ. Nat’l Ctr. For Educ. Statistics, Digest of Education

Statistics Tale 229.60 (Sept. 2013), available at http://nces.ed.gov/programs/digest/d14/tables/dt14_229.60.asp.

25

See, e.g., Fact Sheet, supra note 23, at 1.

26

See Dear Colleague Letter, supra note 17, at 27.

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explicit delineation of an SRO’s limited role is critical to forging a successful school/SRO partnership that minimizes the potential risks of having a law enforcement presence at a school, such as improper criminal responses to disability-related behavior and exacerbation of the school-to-prison pipeline.27
B. School Resource Officers Should Have Clearly Defined Roles and Specialized Training To be effective, SROs and law enforcement agencies need to ensure that their responsibilities in the school setting are clearly delineated. As noted above, an SRO should not be an enforcer of school codes of conduct or become a substitute for traditional in-school discipline.28 Where it is necessary for an SRO to intervene to protect safety, the officer should deploy a range of non-punitive alternatives and select the least coercive measure for each incident.29 SROs should receive specialized training to prepare for the unique challenges and demands of working with children, especially children with disabilities.30 “Children and adolescents’ responses differ from adults because of fundamental neurobiological factors and related developmental stages of maturation.”31 An SRO should receive as much pre-service

27

See generally id.; First, Do No Harm, supra note 16; Guiding Principles, supra note 16 at 9-11.

28

Dear Colleague Letter, supra note 17, at 27; Guiding Principles, supra note 16, at 10.

29

First, Do No Harm, supra note 16, at 12.

30

The Council of State Governments Justice Center, The School Discipline Consensus Report: Strategies

from the Field to Keep Students Engaged in School and out of the Juvenile Justice System 234 (2014), available at

https://csgjusticecenter.org/wp-content/uploads/2014/06/The_School_Discipline_Consensus_Report.pdf.

31

Lisa Thurau, Putting a Developmental Approach into Practice (Jan. 2013), available at

http://jjie.org/putting-developmental-approach-into-practice/101741/.

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training as possible before he or she ever enters a school, as well as continued training and proper monitoring throughout his or her work.32
It is particularly important that SROs be trained to recognize and respond appropriately to youth behavior that may be a manifestation of disability. Indeed, appropriate training can help law enforcement agencies avoid interactions that violate children’s rights under federal civil rights laws, including the ADA. See, e.g., Lewis v. Truitt, 960 F. Supp. 175, 178 (S.D. Ind. 1997) (“In order to comply with the non-discrimination mandate [of the ADA], it is often necessary to provide training to public employees about disability.”). Discriminatory treatment, such as arrests for disability-related behavior that law enforcement officers may perceive as criminal, “can be avoided by proper training.” H.R. Rep. No. 101-485, pt. III, 101st Cong., 2nd Sess. 50, reprinted in 1990 U.S.C.C.A.N. 473. While law enforcement officers are charged with addressing risks to safety when they arise, to comply with the ADA, it is critical that officers receive training to “distinguish behaviors that pose a real risk from behaviors that do not.”33 Appropriate training is also often essential to ensuring that law enforcement officers’ conduct comports with the ADA’s requirement that public agencies make reasonable modifications to policies, programs, and procedures when necessary to avoid disability-based discrimination.34

32

Guiding Principles, supra note 16, at 10; The Council of State Governments Justice Center, supra note

30, at 234.

33

U.S. Dep’t of Justice, Commonly Asked Questions About the Americans with Disabilities Act and Law

Enforcement, § II.6 (Apr. 4, 2006) [hereinafter DOJ Law Enforcement Guidance], available at

http://www.ada.gov/q&a_law.htm.

34

See 28 C.F.R. §35.130(b)(7); see also Council of State Governments Justice Center, supra note 30, at

235 (Noting that training plays an important role in determining how school police officers exercise their often

“considerable discretion in how to respond to minor offenses,” and recommending training on such matters as

“mental health interventions,” training on “children with disabilities and special needs, including familiarity with

federal laws,” and “de-escalation techniques and alternatives to arrest.”) The Council recommendations are

consistent with the SRO hiring grant requirements of the Department of Justice COPS Office, noted supra p. 5-6.

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II. In Evaluating Plaintiffs’ Fourth Amendment Claims, the Court Must Consider Whether Defendant Sumner’s Handcuffing of Two Elementary Schoolchildren With Disabilities Was Objectively Reasonable Plaintiffs allege that Defendant Sumner violated S.R. and L.G.’s Fourth and Fourteenth
Amendment rights. The Fourth Amendment guarantees individuals the right to “be secure in their persons . . . against unreasonable . . . seizures . . .” U.S. Const. amend. IV.35 The constitutionality of a Fourth Amendment seizure hinges on objective reasonableness.36 The Court must determine whether Defendant Sumner’s actions – handcuffing two elementary school children with disabilities, behind their backs and around their biceps, for failure to follow instructions – were objectively reasonable.
A. The Court Must Consider Whether an Objectively Reasonable Officer Would Have Seized S.R. and L.G. by Handcuffing Them for Their Misbehavior Defendant Sumner seized S.R. and L.G. each time he handcuffed them.37 The parties do not dispute that each handcuffing incident was a seizure. Defs.’ Joint Mem. in Supp. of

35

The Fourth Amendment applies to the states through the Fourteenth Amendment. See U.S. Const.

amend. XIV; Camara v. Mun. Ct., 387 U.S. 523, 528 (1967).

36

A use of force is a type of seizure. Graham v. Connor, 490 U.S. 386, 395 (1989) (holding that “all

claims that law enforcement officers have used excessive force . . . in the course of an arrest, investigatory stop, or

other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment”) (emphasis in original);

Tennessee v. Garner, 471 U.S. 1, 7 (1985) (“there can be no question that apprehension by the use of deadly force

is a seizure subject to the reasonableness requirement of the Fourth Amendment”); Ciminillo v. Streicher, 434

F.3d 461, 466 (6th Cir. 2006) (“police officers seize those persons who are the deliberate object of their exertion

of force.”) (citation and internal quotation marks omitted). In analyzing claims of excessive force, the Sixth

Circuit applies the Fourth Amendment’s unreasonable seizure jurisprudence. Baynes v. Cleland, No. 14-2235,

2015 WL 5000615, at *5 (6th Cir. Aug. 24, 2015); Morrison v. Bd. of Trs., 583 F.3d 394, 400-401 (6th Cir. 2009).

Accordingly, this same standard applies to Plaintiffs’ use of force claims. See Graham, 490 U.S. at 398; Garner,

471 U.S. at 8-9; Baker v. City of Hamilton, Ohio, 471 F.3d 601, 606-07 (6th Cir. 2006).

37

A seizure triggering the Fourth Amendment’s protections occurs when government actors have, “by

means of physical force or show of authority,” in some way restrained the liberty of a citizen. Terry v. Ohio, 392

U.S. 1, 19 n.16 (1968). Generally, a seizure occurs when, in light of all the surrounding circumstances, “a

reasonable person would have believed that he was not free to leave.” Michigan v. Chesternut, 486 U.S. 567, 573

(1988) (citations and internal quotation marks omitted). In the school context, “the limitation on [a] student’s

freedom of movement must significantly exceed that inherent in every-day, compulsory attendance.” Couture v.

Board of Educ., 535 F.3d 1243, 1251 (10th Cir. 2008); H.M. v. Bd. of Educ. of the Kings Local Sch. Dist., No.

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Mot. to Dismiss the Compl. for Failing to State a Claim and Based on Qualified Immunity for Kevin Sumner, Individually at 10, Sept. 3, 2015, ECF No. 29-1 (“Defs.’ Mot.”) (“The Defendants agree that a seizure occurred and that handcuffs were utilized . . . during each of the three occurrences described in the complaint.”). The standard for evaluating the constitutionality of a seizure by a law enforcement officer is “objective reasonableness.” Graham v. Connor, 490 U.S. 386, 398 (1989). To determine whether a seizure was objectively reasonable, a court must pay “careful attention to the facts and circumstances” of the particular case. Id. at 396. Such facts and circumstances include: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Id. These enumerated factors are not exhaustive; the ultimate inquiry is whether the seizure is justified under “the totality of the circumstances.” Tennessee v. Garner, 471 U.S. 1, 8-9 (1985); Baker v. City of Hamilton, 471 F.3d 601, 606-07 (6th Cir. 2006) (citations omitted).
To be sure, the holistic inquiry of objective reasonableness requires “a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham 490 U.S. at 396 (citation and internal quotation marks omitted); Baker, 471 F.3d at 606 (citation and internal quotation marks omitted). The Supreme Court has described the balancing of these competing interests as “the key principle of the Fourth Amendment.” Garner, 471 U.S. at 8-9 (quoting Michigan v. Summers, 452 U.S. 692, 700 n.12 (1981) (internal quotation marks omitted). “Because one of the factors is the extent of the intrusion, it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out.” Garner, 471 U.S. at 7-8
1:14-CV-64, 2015 WL 4624269, at *8 (S.D. Ohio Aug. 3, 2015).
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(citing United States v. Ortiz, 422 U.S. 891, 895 (1975); Terry v. Ohio, 392 U.S. 1, 28-29

(1968)) (internal quotation marks omitted).

A law enforcement officer’s conduct must be judged “from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490

U.S. at 396; Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 401 (6th Cir. 2009) (“The

Court should judge the lawfulness of the conduct from the perspective of a reasonable officer on the scene.”) (citation and internal quotation marks omitted).38

In their Motion to Dismiss, Defendants agree that the Court must evaluate Deputy

Sumner’s conduct under the Fourth Amendment’s objective reasonableness standard.

Defs.’ Mot. at 8 (“The reasonableness of Deputy Sumner’s conduct must be analyzed under the

rubric of the Fourth Amendment, the same as any other police officer’s conduct would be.”).

Improperly, however, Defendants then appear to urge the Court to ignore that standard by

arguing that, because Defendant Sumner subjectively believed that he had probable cause to

arrest both children under Kentucky law, his seizures of the children were lawful. See Defs.’

Mot. at 11-15. Defendants are mistaken.

38

Some courts have applied the reasonable suspicion standard articulated in New Jersey v. T.L.O., 469 U.S.

325 (1985) to searches and seizures by law enforcement officers in schools. See Hoskins v. Cumberland Cnty. Bd.

of Educ., No. 2:13-CV-15, 2014 WL 7238621, at *6-7 (M.D. Tenn. Dec. 17, 2014) (collecting cases). In T.L.O.,

the Supreme Court held that, in the school context, the more relaxed standard of reasonable suspicion, rather than

the traditional standard of probable cause, applied to searches of students by school officials. 469 U.S. at 341.

The Sixth Circuit has not addressed whether T.L.O.’s standard applies to law enforcement officers’ decisions to

detain children in school settings. The United States takes the position that seizures by law enforcement officers,

whether they occur on or off school grounds, are law enforcement actions that have the potential to deprive

individuals of their liberty. As such, they should be afforded the highest level of constitutional protection. See

Hoskins, No. 2:13-CV-15, 2014 WL 7238621, at *10 (“when a law enforcement official seizes a child at school, it

is more likely that the seizure is a law-enforcement action, not an action for the purposes of educating a child.

That is particularly true [here, where] . . . the law enforcement officer used law-enforcement tools—handcuffs—

for the stated purpose of arresting a child and taking him to detention.”); see also Wallace by Wallace v. Batavia

Sch. Dist. 101, 68 F.3d 1010, 1014 (7th Cir. 1995) (noting distinction between education as the “basic purpose for

the deprivation of a student’s personal liberty by a teacher,” and “investigation or apprehension” as “the basic

purpose for the deprivation of liberty of a criminal suspect by a police officer.”) In any event, the two standards

are “quite similar” as applied to the means of effecting seizures, Hoskins, No. 2:13-CV-15, 2014 WL 7238621, at

*11, and would result in the same conclusion in this case. Indeed, the nucleus of both standards is the requirement

that the court consider the reasonableness of the officer’s actions.

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First, even if state law permitted a seizure based on an officer’s subjective belief, it would have no bearing on whether the officers violated the federal Constitution. Sibron v. New York, 392 U.S. 40, 60-61 (1968) (noting that, although a state is free to develop its own search and seizure law, a state may not “authorize police conduct which trenches upon Fourth Amendment rights . . . . The question . . . is not whether the search (or seizure) was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. . . . [A] search authorized by state law may be an unreasonable one under that amendment . . . .”) (citations and internal quotation marks omitted); C.B. v Sonora, 769 F.3d 1005, 1031 (9th Cir. 2014) (rejecting officers’ argument that, because seizure of a child was reasonable under state law, their use of handcuffs was also reasonable); see California v. Greenwood, 486 U.S. 35, 43 (1988) (“We have never intimated . . . that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs”).
Second, even assuming the officer had probable cause, that alone would not make the decision to handcuff the children reasonable. See Hoskins v. Cumberland Cnty. Bd. of Educ., No. 2:13-CV-15, 2014 WL 7238621, at *7-8 (M.D. Tenn. Dec. 17, 2014) (rejecting SRO’s argument that handcuffing child was lawful because the SRO intended to arrest the child, and noting that the unreasonable seizure claim must be addressed separately, under the Graham standards); see also Garner, 471 U.S. at 7-8 (holding that the presence of probable cause does not eliminate the Fourth Amendment’s requirement to consider the reasonableness of the manner in which the seizure is conducted).
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B. Plaintiffs Have Alleged Facts Sufficient to State a Claim That Defendant’s Handcuffing of S.R. and L.G. Was Unreasonable In considering the reasonableness of Defendant Sumner’s conduct, the Court must consider the particularized facts and circumstances, including: the youth of the children and the fact that the incidents occurred at school; the three factors specifically articulated in Graham, i.e., the severity of the alleged crime, whether the children posed a safety threat, and whether the children were actively resisting arrest or attempting to evade arrest by flight; the children’s disabilities; the extent and risks of the intrusion by handcuffing compared to the countervailing government interests; the punitive purpose of the defendant’s actions; the duration of the handcuffings; and the appropriate role of an SRO in a school.
1. The Age of the Children and the School Setting To properly analyze Defendant Sumner’s actions, “the Court must first consider two factors uniquely relevant to this case as required by Graham, namely the very young age of [the children] and the fact that this incident took place in a school setting.” Hoskins, No. 2:13­ CV-15, 2014 WL 7238621, at *7. In Hoskins, a strikingly similar case, another district court in the Sixth Circuit recently held that an SRO violated the Fourth Amendment rights of T.H., an eight-year-old second grader, when the SRO handcuffed the child in the principal’s office following an altercation in gym class. 39 Id. Considering the totality of the circumstances, including “the very young age of T.H., the nature of the conduct T.H. had engaged in, [and] the

39

In Hoskins, T.H., who had previously been diagnosed with anxiety and a mood disorder, threatened his

teacher with violence, drew his fist, and swung it in his teacher’s direction. No. 2:13-CV-15, 2014 WL 7238621,

at *2-4. The child was sent to the principal’s office. Id. There, T.H. again drew his fist back and threatened to hit

both the principal and the SRO. Id. at *3. The SRO then handcuffed the child, later testifying that he had intended

to take T.H. to juvenile detention, but then changed his mind. Id. at *4. After T.H.’s parents arrived and talked

with the boy and SRO, the SRO removed the handcuffs and released T.H. to his parents. Id. at *4. By then, T.H.

had been handcuffed for 45 minutes. Id. at *4. The handcuffs left small indentations on T.H.’s wrists and caused

soreness and emotional trauma. Id. at *4.

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school setting,” the court found that the initial handcuffing was not objectively reasonable, and that leaving the child handcuffed for 45 minutes “was even less reasonable.” 40 Id. The court cautioned that 8-year-old T.H. “was a startlingly young child to be handcuffed at all, much less for forty-five minutes, with the stated intention of being taken to juvenile detention and prosecuted for misdemeanor assault.” 41 Id. (emphasis added).
Other courts similarly have accorded significant weight to the age of the child in considering reasonableness of a seizure.42 Indeed, in another similar case, Gray v. Bostic, the Eleventh Circuit found an SRO’s handcuffing of a nine-year old girl in school for at least five minutes after she physically threatened her gym teacher was excessively intrusive because of factors including her “young age.” 458 F.3d 1295, 1306 (11th Cir. 2006); see also Tekle v. United States, 511 F.3d 839, 848 (9th Cir. 2007) (denying qualified immunity on excessive force claim where officers used handcuffs to detain unarmed 11-year-old boy during an arrest of his father); Ikerd v. Blair, 101 F.3d 430, 435 (5th Cir. 1996) (denying summary judgment on excessive force claim when deputy violently jerked compliant 10-year-old girl out of her chair and dragged her into another room during an arrest of her father); James v. Frederick County Pub. Sch., 441 F. Supp. 2d 755, 758-759 (D. Md. 2006) (finding plaintiffs’ excessive force allegations sufficient to survive motion to dismiss where officer handcuffed an eight-year-old

40

The Hoskins court also considered the age of the child under an alternative T.L.O. analysis, but, as

discussed supra, these factors are also part of the overall reasonableness inquiry under Graham. See also supra

note 38 and accompanying text (noting the strong similarities between the traditional Fourth Amendment Graham

analysis and the T.L.O. analysis in the context of school seizures).

41

The court found for the defendants on qualified immunity, on the grounds that the plaintiffs failed to

meet their burden of demonstrating that the SRO was not entitled to qualified immunity. Hoskins, No. 2:13-CV­

15, 2014 WL 7238621, at *13.

42

As Hoskins noted: “As numerous court decisions demonstrate, although detentions of children have not

been held to be unreasonable per se, they do raise additional concerns.” Id. at *10 (citations and internal quotation

marks omitted).

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with ADHD in school after the child became “severely upset” and teachers could not calm him down).
2. The Graham Factors Next, the Court must consider the three factors enumerated in Graham.
a) Severity of the Offense The first factor is the severity of the crime at issue. The Court needs to consider whether a child who is behaving disruptively, displaying behaviors associated with his or her disability, has committed any crime at all. See Williams v. Nice, 58 F. Supp. 3d 833, 838 (N.D. Ohio 2014) (denying qualified immunity to SRO for use of force on an eighth grader who threw a temper tantrum and ripped posters off walls, because it was “debatable” whether he committed any crime at all, and even if any criminal misconduct had occurred, it was, “at most . . . a minor misdemeanor”); see also Ciminillo v. Streicher, 434 F.3d 461, 467 (6th Cir. 2006) (noting that the fact that a plaintiff has committed no crime weighs heavily against a finding of reasonableness). Specifically, the Court needs to consider whether an eight-year-old child who is hitting and threatening his teacher and displaying “tumultuous behavior, being disruptive, [and] making unreasonable noise,” or a nine-year-old who is acting “defiant” and “resisting” adults, is engaging in criminal behavior at all, as Defendants allege. See Defs.’ Mot. at 13-14. Rather, that child may, instead, be simply engaging in disruptive, but not uncommon, behavior in school, particularly where that behavior arises out of the child’s disability – a far cry from the serious felonies of assault and terroristic threatening, and the misdemeanors of harassment and disorderly conduct, that Defendants argue. See id. at 12-14. In any event, this case is at the motion to dismiss stage, and it is premature for the Court to make a fact-intensive
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determination of whether either child committed a crime in considering the offense severity factor.
b) The Level of Threat to Safety In analyzing the second prong of Graham – whether the individual poses a threat to the safety of officers or others – the “size and stature of the parties involved” indicates that Defendant Sumner’s conduct may have been unreasonable. Williams, 58 F. Supp. 3d. at 838 (citations omitted) (noting that the “significant size discrepancy” between the SRO and an eighth grader who had a tantrum “casts doubt upon Defendants’ assertion that [the child] ‘displayed a defiant demeanor and assumed a confrontational position toward [the SRO]’ by placing her hand on her hip.”); see also Meirthew v. Amore, 417 F. App’x 494, 497 (6th 2011) (unpublished) (holding that unarmed, five foot, four-inch, 123-pound plaintiff did not pose an immediate threat to five-foot, 10-inch, 230-pound officer); Solomon v. Auburn Hills Police Dep’t, 389 F.3d 167, 174 (6th Cir. 2004) (finding unarmed, five foot, five inch, 120-pound plaintiff posed no immediate threat to officers who were at least three inches taller and weighed approximately twice as much as plaintiff); Sonora, 769 F.3d at 1030 (concluding that 80-pound, four foot, eight inch 11-year-old who was surrounded by four or five adults posed no safety threat). In reviewing the allegations that S.R. and L.G. tried to hit and injure school staff, Compl. ¶¶ 30, 44, 50, the Court needs to consider whether, under these circumstances, children of S.R. and L.G.’s size and stature in fact posed a safety threat to Defendant Sumner or any of the other grown adults involved in the incidents. The significant size discrepancy between Defendant Sumner, a fully grown man, and S.R., a 3½-foot tall, 52-pound third-grade boy, and
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L.G., a 56-pound fourth-grade girl, weighs against a finding of objective reasonableness. See Compl. ¶¶ 21, 39.
c) The Level of Resistance In considering the third Graham factor, whether the individual is actively resisting arrest or attempting to evade arrest by flight, the Court needs to focus on whether S.R. and L.G. were flight risks. See Sonora, 769 F.3d at 1030 (use of handcuffs on 11-year-old boy was unreasonable both where the boy was surrounded by up to five adults and was unlikely to run away and when boy was subsequently transported in a locked vehicle). As discussed above, in two of the three incidents, S.R. and L.G. were confined in rooms that they could not exit. Further, in all three incidents, the children were surrounded by adults who had contained them. Additionally, to the extent the children were struggling against Defendant Sumner or staff, it is questionable that they reasonably could have escaped at all, given that they were just over 50 pounds, unarmed, and already restrained.
3. The Children’s Disabilities As discussed more fully in Section III infra, the Court needs to consider whether Defendant Sumner’s actions in handcuffing the children were reasonable in light of their disabilities. See, e.g., H.M. v. Bd. of Educ. of the Kings Local Sch. Dist., No. 1:14-CV-64, 2015 WL 4624269, at *8 (S.D. Ohio Aug. 3, 2015) (in considering a due process violation, which requires the higher threshold of “shocking to the conscience,” “[t]he fact that a plaintiff has a disability may bear on whether the amount of force amounts to a due process violation”). Specifically, both children have ADHD, and S.R. also has PTSD. Compl. ¶¶ 23, 25, and 40. Symptoms of their ADHD include hyperactivity and impulsivity, as well as difficulty staying focused, paying attention, controlling behavior, complying with directives, and remaining
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seated. Compl. ¶¶ 23, 40. S.R.’s PTSD caused him to experience “distress associated with traumatic experiences.” Compl. ¶ 25. These are the very types of behaviors both children exhibited in the incidents that resulted in the handcuffings. Compl. ¶¶ 26, 43. The Court needs to carefully consider the reasonableness of handcuffing a child who is exhibiting behavior that is a manifestation of his or her disability.43
4. The Risk of Intrusion Balanced Against the Governmental Interests at Stake In conducting its reasonableness analysis, the Court needs to balance the competing interests of the nature and quality of the intrusion against the countervailing governmental interests at stake. Graham 490 U.S. at 396; Baker, 471 F.3d at 606. Handcuffing a young child, particularly a child with a disability, constitutes an extraordinary intrusion. Such interactions are fraught with the potential for lasting trauma and damage. See., e.g., Hoskins, No. 2:13-CV-15, 2014 WL 7238621, at *1,4 (eight-year-old second grader allegedly suffered emotional trauma after SRO handcuffed him in school); James, 441 F. Supp. 2d at 757 (eight­ year-old with ADHD allegedly suffered, and will continue to suffer, emotional trauma requiring professional medical treatment after being handcuffed by an officer in school); Gray v. Bostic, No. CIV A 03-C-2989-W, 2004 WL 5624393, at *1 (N.D. Ala. Jan. 30, 2004) (nine­ year-old suffered pain, severe embarrassment, crying, humiliation, and a traumatic emotional response after SRO handcuffed her in school), rev’d on other grounds 127 F. App’x 472 (11th Cir. 2004) (reversing lower court’s grant of summary judgment to the defendants).44

43

See, e.g., DOJ Law Enforcement Guidance, supra note 33, at § I.2 (suggesting that law enforcement

officers receive training to distinguish disruptive behaviors that are a result of a disability to prevent criminalizing

those behaviors).

44

See also Seclusion and Restraints: Selected Cases of Death and Abuse at Public and Private Schools

and Treatment Centers: Hearing Before the H. Comm. On Education and Labor, 111th Cong. 1, 5 (2009)

(statement of Gregory D. Kutz, Managing Director of Forensic Audits and Special Investigations at the U.S. Gov’t

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Plaintiffs allege that S.R. and L.G. suffered, and continue to suffer, physical and emotional pain, psychological injury, trauma, and suffering, and that the children “continue to experience fear, distrust, and anxiety regarding law enforcement” such as SROs. Compl. ¶ 63. Moreover, both children have emotional disabilities, which can be exacerbated by traumainducing experiences like being handcuffed in school.45 Indeed, in reaction to her first handcuffing, L.G. “experienced a severe mental health crisis” – so severe that a medical crisis team was called and L.G. was taken to the hospital for a psychiatric assessment and treatment. Compl ¶ 45. In addition to such exacerbation, the damage of such interactions can also shape children’s beliefs and experiences about law enforcement for a lifetime.46
These harms outweigh the Defendants’ countervailing governmental interests. Far from dealing with any criminal conduct by the children, Defendant Sumner “was confronted in a school setting with an unruly student—a situation handled by teachers on a routine basis

Accountability Office), available at http://www.gao.gov/new.items/d09719t.pdf (observing that nearly all allegations of abuse or death resulting from restraint or seclusion reviewed in nationwide study involved children with disabilities, and noting that, even when no physical injury occurs, children are at risk of being “severely traumatized”); GAO/HEHS-99-176, Improper Restraint or Seclusion Procedures Places People at Risk (Sept. 1999), available at http://www.gao.gov/archive/1999/he99176.pdf (observing that children with mental health and other disorders are at especially high risk for death or serious injury from the use of restraints); U.S. Department of Educ., Restraint and Seclusion: Resource Document, at 12 (May 2012), available at http://www.ed.gov/policy/seclusion/restraints-and-seclusion-resources.pdf (recommending that “[s]chools should never use mechanical restraints to restrict a child’s freedom of movement”).

45

See generally Dear Colleague Letter, supra note 17; Disability Rights Washington, supra note 21

(“discipline practices that restrict access to appropriate education aggravate setbacks for students with

disabilities”); Theriot, supra note 18, at 280 (“common security measures . . . actually lower students' self esteem

and cause emotional distress”).

46

See generally Ben Brown, Understanding and Assessing School Police Officers: A Conceptual and

Methodological Comment, 34 J. CRIM. JUST. 591, 599 (2006), available at

http://youthjusticenc.org/download/education-justice/school-policing­

security/Understanding%20and%20Assessing%20School%20Police%20Officers_%20A%20Conceptual%20and

%20Methodological%20Comment.pdf (using aggressive law enforcement strategies and tools in schools “may

cause students to distrust educational and law enforcement authorities which could motivate students to engage in

greater delinquency”). As noted above, SROs serve in schools in significant numbers. Nathan James and Gail

McCallion, Cong. Research Serv., R43126, School Resource Officers: Law Enforcement Officers in Schools 28-29

(2013), available at https://www.fas.org/sgp/crs/misc/R43126.pdf (in 2007, 19,000 SROs from police departments

and sheriffs’ offices served in schools). Thus, their impact on children and society can be substantial.

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without the use of any force.” Williams, 58 F. Supp. 3d at 838 (emphasis in original). Indeed, in cases involving schoolchildren, the Defendants’ have interests that weigh heavily against unwarranted intrusions. The Defendants’ own interest in protecting schoolchildren from physical, emotional, and educational harm requires that the extreme measure of handcuffing occur only when truly necessary. Consequently, the Court needs to consider whether Defendant Sumner could have used less intrusive means to encourage the children’s compliance. See Sonora, 769 F.3d at 1010-11 (denying qualified immunity on excessive force claim where, “notwithstanding the fact that [the child] had not disobeyed a single police order, the officers did not explore alternative options for handling the situation before handcuffing him”).
5. The Purpose of the Handcuffing Further, as part of the totality of the circumstances, the Court should consider whether the purpose of Defendant Sumner’s actions was punitive, rather than necessary to ensure safety. At least one circuit court has held that handcuffing a child in school for the purpose of punishment fails the reasonableness test and amounts to an “obvious violation” of the child’s constitutional rights. Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1306 (11th Cir. 2006) (denying qualified immunity to SRO who handcuffed a nine-year-old girl as punishment). Here, as S.R. cried out in pain while handcuffed, Defendant Sumner made statements that the Court could find to be punitive, including: “[Y]ou’re . . . going to behave the way you’re supposed to or you suffer the consequences. It’s your decision to behave this way. If you want the handcuffs off, you’re going to have to behave and ask me nicely.” Compl. ¶¶ 34 (alterations in original). In addition, after S.R.’s mother arrived, Defendant Sumner threatened to return with his handcuffs if S.R. did not behave. Compl. ¶ 36. Plaintiffs also allege that
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Defendant Sumner used the handcuffs on L.G. to “seek compliance,” Compl. ¶53, which also suggests a disciplinary or punitive purpose.
6. The Duration of the Handcuffing Courts look to the duration of a handcuffing as part of the reasonableness determination. See Hoskins, No. 2:13-CV-15, 2014 WL 7238621, at *8 (finding that initial handcuffing was not objectively reasonable, and that leaving child handcuffed for 45 minutes “was even less reasonable”); see also Gray, 458 F.3d at 1306 (finding five-minute handcuffing unreasonable). Defendant Sumner handcuffed L.G. for 30 minutes in one incident and 20 minutes in the other. Compl. ¶ 44, 50. He handcuffed S.R. for approximately 15 minutes. Compl. ¶ 31. The Court needs to consider whether a reasonable officer in Defendant Sumner’s shoes would handcuff the children at all, much less for 15 to 30 minutes.
7. The Appropriate Role of an SRO Finally, the Court needs to consider whether Deputy Sumner’s actions were reasonable in light of the appropriate role of an SRO at a school. As detailed supra, Part I, it is inappropriate for SROs to be involved in violations of school rules and routine discipline of students. Such incidents should be the responsibility of educators. In light of the proper role of an SRO in an elementary school, the Court needs to consider whether a reasonable SRO in Defendant Sumner’s shoes would have resorted to handcuffing two children with disabilities who were having difficulty following directions. The Court needs to consider whether such an SRO should criminalize the children’s behavior, or whether the misbehavior amounted to routine violations of school rules, which call for a school, rather than a law enforcement, response. See Williams, 58 F. Supp. 3d at 838.
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III. Title II of the ADA Governs Defendants’ Conduct Under Title II of the ADA, no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in, or be denied the benefits of, services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132. Here, the children allege that the Sheriff’s Office discriminates against them in two ways. First the Sheriff’s Office’s policies, practices, and procedures related to handcuffing children have a discriminatory effect on children with disabilities who are more susceptible to exhibiting behaviors that may cause police officers to handcuff them. See Compl. ¶ 67. Second, the children argue that Defendant Sumner failed to make reasonable modifications necessary to avoid disability discrimination, as required under the ADA. Compl. ¶ 70.
In reply, the Sheriff’s Office alleges that the seizure of L.G. and S.R. was “objectively reasonable” given the children’s actions, and therefore, no reasonable modifications were necessary. Defs.’ Mot. at 22. The Sheriff’s Office further questions whether the ADA even applies to police interactions.47 Defs.’ Mot. at 22. As explained more fully below, Title II of the ADA applies to all programs, services, and activities of public entities, including the investigation and arrest practices of the Sheriff’s Office and its SROs, and Defendants err in asking this Court to ignore or unreasonably limit the requirements of the ADA.

47

The Sheriff’s Office also contends that the children have not alleged that Defendant Sumner had

knowledge of their disabilities. Defs.’ Mot. at 21. The United States takes no position on this fact question, but

notes that it should not be resolved at the motion to dismiss stage. If the Court allows the Plaintiffs’ case to

proceed, the extent to which Defendant Sumner had knowledge of the children’s disabilities can be explored in

discovery.

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A. The ADA Applies to Interactions Between School Resource Officers and Children with Disabilities

As stated above, a school police officer assigned to work with children has a unique

role. It is important, therefore, that officers have experience working with youth and

understand that youths think and act differently than adults. What is not unique to the school

setting, however, is the responsibility of an SRO – the same as all law enforcement officers –

to carry out law enforcement responsibilities in a manner that complies with the anti-

discrimination mandate of the ADA. See Pennsylvania Dept. of Corrections v. Yeskey, 524

U.S. 206, 209 (1998) (holding that state prisons and other law enforcement agencies are public

entities covered under the ADA). S.R. and L.G. are qualified individuals with disabilities under the ADA and, therefore, are entitled to protections under the statute and its regulations.48

Congress enacted the ADA to provide a “clear and comprehensive national mandate for

the elimination of discrimination against individuals with disabilities.” 42 U.S.C. §12101(b)(1)

(1990). In its findings, Congress observed that discrimination against individuals with

disabilities “persists in such critical areas as . . . education . . . and access to public services,”

and includes “failure to make modifications.” Id. §§12101(a)(3), (a)(5).

All of a Sheriff’s Office’s programs, services, and activities, including its law

enforcement activities, are subject to the ADA. See Yeskey, 524 U.S. at 209 (quoting

Procunier v. Martinez, 417 U.S. 396, 412 (1974)). Indeed, Congress placed no exceptions in

the ADA that would “cast the coverage” of law enforcement agencies or their activities “into

doubt.” See id.

The legislative history of Title II shows that Congress intended to include police

interactions within the reach of the ADA. The House committee considering the enactment of

48

As noted in supra footnote 1, the United States accepts the factual allegations in the complaint as true.

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the ADA urged that Title II should apply to “all actions of state and local governments.” H.R. Rep. No. 485 101st Cong., 2d Sess. Pt. 2, at 84 (1990). As an example, the committee wrote that police officers often arrest and jail individuals with disabilities because they fail to recognize the individuals’ disabilities. Id. Pt. 3, at 50. The Department of Justice’s technical assistance to public entities on ADA compliance has confirmed that Title II applies to “virtually everything that officers and deputies do,” including “arresting, booking, and holding suspects.” U.S. Dep’t of Justice, Commonly Asked Questions About the Americans with Disabilities Act and Law Enforcement, § I.2 (Apr. 4, 2006) (“DOJ Law Enforcement Guidance”).49 Applying the plain language of the statute, its regulations, and the Department’s interpretive guidance, there can be no genuine dispute that Title II of the ADA applies to all programs, services, and activities of the Kenton County Sheriff’s Department, including the activities and interactions of its school resource officers in the exercise of their duties.
The Sixth Circuit has affirmed that the ADA applies to “all of the activities of a public entity.” See Johnson v. City of Saline, 151 F. 3d 564, 569 (6th Cir. 1998) (giving substantial deference to the Department of Justice’s interpretation of the ADA). The Sixth Circuit has also applied the ADA to cases involving police interaction with individuals with disabilities. See, e.g., Tucker v. Tennessee, 539 F. 3d 526, 533, 540-42 (6th Cir. 2008) (assuming, without deciding, the applicability of Title II of the ADA to police interactions); Thompson v. Williamson Cnty., 219 F. 3d 555, 557-58 (6th Cir. 2000) (applying the ADA to the police shooting death of a man with mental illness). Further, the majority of appellate courts

49

Similarly, courts have held that among the “core functions of government” that are subject to Title II’s

requirements is “the appropriate use of force by government officials acting under color of law.” See Schorr v.

Borough of Lemoyne, 243 F. Supp.2d 232, 235 (M.D. Pa. 2003).

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considering the applicability of the ADA to law enforcement interactions have held that it does apply.50 This Court should reach the same conclusion.
B. The ADA Requires SROs to Reasonably Modify Their Practices When Needed to Interact with Students with Disabilities The ADA requires a public entity, such as a law enforcement agency, to make reasonable modifications to its policies, practices, and procedures when necessary to avoid disability-based discrimination. 28 C.F.R. § 35.130(b)(7). See also DOJ Law Enforcement Guidance § V. The ADA’s reasonable modification requirement applies to interactions between school resource officers and children with disabilities, and this Court should reject Defendants’ assertion that this obligation is obviated by Defendant Sumner’s “probable cause to arrest” the children or his need to make “on-the-spot decisions” in exercising his duties. Defs.’ Mot. 22. Contrary to Defendants’ assertion, the existence of probable cause to arrest an individual is independent of the obligation to make reasonable modifications to law enforcement policies, practices, or procedures where necessary to avoid disability discrimination. In other words, the existence of probable cause does not end the reasonable modification inquiry – the law enforcement entity must still make an individualized determination as to whether, under the circumstances, making such modifications would fundamentally alter a program, service, or activity. Williams v. City of New York, No. 1:12-cv-

50

Seremeth v. Bd. of Cnty. Comm’rs of Frederick Cnty., 673 F.3d 333, 338-40 (4th Cir. 2012) (“[t]he ADA

applies to the investigation of criminal conduct”); Sheehan v. City and County of San Francisco, 743 F.3d 1211,

1217 (9th Cir. 2014)) (joining the “majority of other circuits” and holding that the ADA applies to police

interactions) rev’d on other grounds by 135 S.Ct. 1765 (2015); Gorman v. Bartch, 152 F.3d 907, 912-13 (8th Cir.

1998) (finding that a police department is a public entity and an arrest is a program or service); see Gohier v.

Enright, 186 F.3d 1216, 1221 (10th Cir.1999) (refusing to adopt a “broad rule categorically excluding arrests from

the scope of Title II”); see also Bircoll v. Miami-Dade County, 480 F.3d 1072, 1085 (11th Cir.2007) (holding that

a police department is a public entity prohibited from disability-based discrimination, although declining to decide

whether police conduct during an arrest is a program, service or activity covered by the ADA); but see Hainze v.

Richards, 207 F.3d 795, 801 (5th Cir. 2000) (ruling that Title II does not apply in exigent circumstances).

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06805-VEC, 2015 WL 4660691, at *9 (S.D.N.Y. Aug. 5, 2015) (denying summary judgment to defendants in a case involving the New York City Police Department’s alleged failure to make a reasonable modification leading up to the arrest of a deaf individual, holding: “[E]ven assuming that a jury finds that there was probable cause to arrest Plaintiff, the City must establish that providing her an accommodation during the police officers’ ‘investigation’ would have been ‘unreasonable’ to rebut Plaintiff’s prima facie case that an accommodation was available.”); cf. Waller v. City of Danville, 556 F.3d 171, 174 (4th Cir. 2009) (noting that courts have recognized a Title II claim when “police properly arrest a suspect but fail to reasonably accommodate his disability during the investigation or arrest . . . .”).
The obligation to make reasonable modifications extends through the entire course of the law enforcement interaction with an individual with a disability – including the initial encounter with the individual, as well as the decision how to implement a seizure when otherwise permitted. See DOJ Law Enforcement Guidance § I. 2. Some examples of reasonable modifications that might be necessary for law enforcement officers when interacting with individuals with disabilities include:
1. Being aware that the officer’s uniform, gun, or handcuffs may frighten an individual with mental illness, and instead adopting a nonconfrontational stance by removing the officer’s hat, sitting down, and assuring the individual that he or she is heard.51 2. Asking an individual with mental illness questions regarding his basic needs such as “What would make you feel safer/calmer, etc.?”52

51

Police Executive Research Forum, The Police Response to People with Mental Illnesses: Including

Information on the Americans with Disabilities Act Requirements and Community Policing Approaches 29, 34

(1997) available at www.ptb.state.il.us/resources/mentalillness/mpoliceresponse.pdf (The Police Executive

Research Forum (PERF) is a national membership organization composed of chief executives from municipal,

county, and state law enforcement agencies).

52

Id. at 36.

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Likewise, where the individuals with disabilities are of a young age, additional modifications may be necessary.
As the examples above demonstrate, modifying police procedures to accommodate individuals with disabilities does more than just assist the person with a disability. Providing such modifications assists law enforcement officers in doing their jobs effectively. Plaintiffs have identified available modifications, such as these, that would be reasonable in the run of cases. See Compl ¶ 76. Defendants may decline to implement such modifications only if they can demonstrate that doing so would create a fundamental alteration. 28 C.F.R. § 35.130(b)(7).
In determining whether a law enforcement entity has met its burden to show that modifying its policies or practices would result in a fundamental alteration, the Court must consider the level of the threat posed by the individual with a disability and the time pressure that the officer is under to respond. As Sixth Circuit case law indicates, a reasonable modification may not be required in situations where a serious threat of injury and other extreme behavior is involved. In Tucker, for instance, the Court ruled that it would be unreasonable to require a sign language interpreter and other accommodations where several individuals involved in a domestic dispute were arrested under “exigent or unexpected circumstances,” including the presence of a large number of individuals, one of whom attempted to assault the officer. 539 F. 3d at 536. Similarly, in Thompson, when a 40-year-old man with mental illness attempted to throw a machete at a police officer, the Court held that the need to disarm the man was the officer’s first concern before he could consider the family’s request to take the man to receive emergency medical care. 219 F. 3d at 558.
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In both Thompson and Tucker, the individuals were described as violent — one had a dangerous weapon — and therefore the officer had to act swiftly to prevent injury to himself or to others. See DOJ Law Enforcement Guidance § III.12 (When a “violent crime [is] in progress” an “officer’s immediate priority is to stabilize the situation”).
In contrast to the facts in Thompson and Tucker, as alleged in the Complaint, the children did not present a significant threat to Officer Sumner or anyone else. S.R. is three and a half feet tall, eight years old, and 52 pounds. Compl ¶¶ 21. When he allegedly swung his arm at Defendant Sumner, no one else was in harm’s way. Compl. ¶ 30. Because of that action, Defendant Sumner handcuffed S.R. for 15 minutes. Compl. ¶ 31. Defendant Sumner first handcuffed L.G., a nine-year-old, 56-pound girl, for 20 minutes when she tried to leave the school isolation room. Compl. ¶¶ 39, 43. Then Defendant Sumner handcuffed L.G. for a second time a few weeks later for running away, and resisting and struggling with Defendant Sumner and the Principal, both of whom are adults. Compl. ¶¶ 49-50. In each of these incidents, the children were unarmed.
C. The ADA Prohibits Policies and Practices that Have a Discriminatory Effect on Children with Disabilities In addition to the requirement to reasonably modify policies and practices when necessary to avoid discrimination on the basis of disability, the ADA regulation “prohibits both blatantly exclusionary policies or practices and nonessential policies and practices that are neutral on their face, but deny individuals with disabilities an effective opportunity to participate.” U.S. Dep’t of Justice, 28 C.F.R. Pt. 35, App. B at 688 (2015); cf. Crowder v. Kitagawa, 81 F. 3d 1480, 1483-84 (9th Cir. 1996) (The ADA attempts to eliminate both deliberate discrimination and discrimination resulting from facially neutral laws and policies). Thus, the law prohibits public entities such as the Sheriff’s Office from applying
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nonessential policies and practices that are neutral on their face, but deny individuals with disabilities an effective opportunity to participate in a public entity’s program.53

Plaintiffs allege the Kenton County Sheriff's handcuffing policy has just such a

disproportionate effect on children with disabilities that affect their behavior. The children

allege that the effects of this policy and practice of handcuffing include substantial and

disproportionate physical and emotional injuries and disruptive exclusions from school.

Compl. ¶ 67. The children claim that less harmful methods of intervention could be applied,

such as crisis intervention, de-escalation, patience, and waiting. Compl. ¶ 68.

The ADA prohibits the Sheriff’s Office from utilizing criteria or methods of

administration that have the effect of subjecting individuals with disabilities to discrimination

on the basis of disability or that have the effect of defeating or substantially impairing

accomplishment of the program with respect to disabilities. 28 C.F.R. § 35.130(b)(3)(i). This

prohibits public entities such as the Sheriff’s Office from applying nonessential policies and

practices that are neutral on their face but have the effect of discriminating based on disability.

See id.; see also 28 C.F.R. pt 35 app. B, at 688 (2015) (discussing § 35.130(b)(3)).

Contrary to Defendants’ assertion, Defs.’ Mot. at 23, the children do not claim that they

were subject to per se discrimination solely because the individuals arrested have disabilities.

They instead allege that the Sheriff’s Office uses an unnecessary policy and practice that has

the effect of discriminating against children with disabilities that affect behavior. In enacting

the ADA, Congress intended not only to prohibit “outright discrimination” against individuals

with disabilities, but also to combat “[other] forms of discrimination which deny disabled

persons public services disproportionately.” Crowder, 81 F. 3d at 1483 (holding Hawaii’s

53

The question of whether the policy or practice at issue here is nonessential is a question of fact that need

not be addressed at the motion to dismiss stage.

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policy of quarantining dogs entering the state violated the rights of visually impaired persons traveling with guide dogs).
CONCLUSION SROs, like all police officers, must respect the constitutional and statutory rights of the citizens they serve. This is particularly critical in the school context, where the impact of a police interaction on a child can last a lifetime. In considering the Plaintiffs’ Fourth Amendment claims, the Court must consider whether an objectively reasonable SRO would have handcuffed elementary school students in school under the circumstances presented here, after the children exhibited misbehavior arising out of their disabilities. Further, the Court must apply the ADA and evaluate whether Defendant Sumner should have reasonably modified his policing procedure instead of handcuffing the children, and whether the Sheriff’s Office’s handcuffing policies and methods of administration discriminate against children with disabilities, like S.R. and L.G.

Respectfully submitted, October 2, 2015

FOR THE UNITED STATES:
ROBERT MOOSSY Deputy Assistant Attorney General
EVE L. HILL Deputy Assistant Attorney General
JUDY C. PRESTON Acting Chief SHELLEY R. JACKSON Deputy Chief Special Litigation Section Civil Rights Division

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REBECCA B. BOND Chief KATHLEEN P. WOLFE Special Litigation Counsel Disability Rights Section /s/ Ryan C.Wilson MARINA MAZOR RYAN C. WILSON Trial Attorneys Special Litigation Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530 (202) 514-6255 (telephone) (202) 514-0212 (facsimile) marina.mazor@usdoj.gov ryan.wilson@usdoj.gov
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Case: 2:15-cv-00143-WOB-JGW Doc #: 32 Filed: 10/02/15 Page: 39 of 39 - Page ID#: 256 CERTIFICATION

I hereby certify that a true and exact copy of the foregoing Memorandum has been served electronically upon counsel of record using ECF.
UNITED STATES DEPARTMENT OF JUSTICE /s/ Ryan C. Wilson
 Ryan C. Wilson (DC bar number 1013907) 
 I further certify that a true and exact copy of the foregoing Memorandum has been served via First Class USPS mail service this 2nd day of October 2015 upon the following individuals who have not yet entered their appearance using ECF at the time of this filing. N/A UNITED STATES DEPARTMENT OF JUSTICE /s/ Ryan C. Wilson
 Ryan C. Wilson (DC bar number 1013907) 

39 


 
 Case: 2:15-cv-00143-WOB-JGW Doc #: 92 Filed: 03/15/16 Page: 1 of 19 - Page ID#: 608

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
COVINGTON, KENTUCKY

S.R, a minor, by and through his next friend and mother, T.R.,
and
L.G., a minor, by and through her next friend and mother, L.J.,
PLAINTIFFS,1
v.
KENTON COUNTY SHERIFF’S OFFICE, a public entity, 303 Court Street Suite 409 Covington, Kentucky 41011
CHARLES KORZENBORN, in his official capacity as Sheriff of Kenton County, 303 Court Street Suite 409 Covington, Kentucky 41011
KEVIN SUMNER, School Resource Officer, in his individual and official capacities, 303 Court Street Suite 409 Covington, Kentucky 41011
and
KENTON COUNTY, KENTUCKY
DEFENDANTS.

: : Case No. 2:15-cv-143 : : : AMENDED COMPLAINT FOR DAMAGES : AND DECLARATORY AND INJUNCTIVE : RELIEF : : : : : : : : : : : : : : : : : : : : : : : : : : : :

1 Plaintiffs S.R. and L.G. are minor children. They are referred to by their initials in accordance with Federal Rule of Civil Procedure 5.2(a)(3). A Motion to Proceed Using Initials for the mothers of T.R. and L.J. has been filed with this Complaint. Accordingly, Plaintiffs are identified by their initials throughout this Complaint.
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INTRODUCTION 1. This is an action for damages and for declaratory and injunctive relief to remedy Defendants’ violations of Plaintiffs’ rights under the U.S. Constitution and the Americans with Disabilities Act. 2. Plaintiffs S.R. and L.G. are two elementary schoolchildren with disabilities, an eight-year old boy and a ten-year-old girl, who were unlawfully restrained and handcuffed at school with excessive force and without necessity by Defendant Kevin Sumner (Sumner), the School Resource Officer assigned to Plaintiffs’ schools. Plaintiff S.R. was handcuffed on one occasion; Plaintiff L.G. was handcuffed on two occasions. The three incidents occurred in the Fall of 2014. 3. Because of the children’s small size in comparison to the handcuffs, which are designed for adults, Defendant Sumner handcuffed them behind their backs, and placed the handcuffs on their biceps (above the elbows). This use and placement of handcuffs on small children is contrary to guidance on the safe use of handcuffs. 4. Defendant Sumner acknowledges handcuffing Plaintiffs S.R. and L.G. Portions of one of the three handcuffing incidents is captured on video. (See Exhibits A and B). On no occasion was there an imminent danger of physical harm to the child or to anyone else that required Defendant Sumner to handcuff the child behind the back above the elbow. 5. As a result of being subjected to unnecessary and excessive handcuffing, Plaintiffs experienced pain, fear, and emotional trauma, and an exacerbation of their disabilities. 6. Defendants Kenton County Sheriff’s Office (KCSO) and Charles Korzenborn (Korzenborn) are charged with the responsibility of establishing policies, practices, and training for School Resource Officers such as Defendant Sumner. Despite the provisions of federal and
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state law, Defendants KCSO and Korzenborn have authorized and permitted School Resource Officers including Defendant Sumner to use excessive force in restraining elementary schoolchildren with disabilities, including the unlawful use of handcuffs with excessive force and without necessity.
7. In 2009, the U.S. Government Accountability Office (GAO) published a nationwide study documenting hundreds of alleged incidents of restraint and seclusion in schools from 1990 to 2009, including 20 incidents causing death. Virtually all of the incidents identified by the GAO involved children with disabilities. The same year, in testimony before the House Education and Labor Committee, the GAO presented its study and reported on the risks of injury and death related to the use of restraint and seclusion on children. The GAO explained that that even if no physical injury is sustained, individuals can be severely traumatized during restraint.
8. Following the GAO report and testimony, U.S. Secretary of Education Arne Duncan wrote a letter to all states requesting that they review and revise their policies regarding restraint and seclusion. In response, the Kentucky Board of Education adopted regulations in 2012 limiting the use at school of physical restraint to situations where the “student’s behavior poses an imminent danger of physical harm to self or others,” and less restrictive behavioral intervention cannot stop such imminent danger of physical harm. 704 K.A.R. 7:160, § 3(1)(b), (3)(a), (d). The regulations further prohibit “school personnel,” defined to include “school resource officers [and] sworn law enforcement officers … who are employed in a school or who perform services in the school on a contractual basis,” 704 K.A.R. 7:160, § 1(13), from using mechanical restraints such as handcuffs. 704 K.A.R. 7:160, § 3(2)(a). The regulations went into effect in 2013.
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9. Plaintiffs S.R. and L.G. seek permanent injunctive relief to prohibit Defendants from authorizing or employing the unnecessary and excessive use of physical restraint and handcuffing on schoolchildren, including those with disabilities, and to compel Defendants to revise their policies, practices, and trainings accordingly. Plaintiffs further seek an order declaring Defendants’ conduct to be unconstitutional and to be in violation of the Americans with Disabilities Act. Plaintiffs also seek compensatory damages, punitive damages, and reasonable attorneys’ fees and costs.
JURISDICTION AND VENUE 10. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 & 1334(3), (4), to hear Plaintiffs’ constitutional claims brought under 42 U.S.C. § 1983 and Plaintiffs’ disability discrimination claims brought under Title II of the ADA, 42 U.S.C. § 12132 et seq. 11. Pursuant to 28 U.S.C. § 1391(b), and the Local Rules of the Eastern District of Kentucky, Rules 3.1(a) and 3.2(a), venue is proper in this judicial district because the events giving rise to this action occurred in the City of Covington, Kenton County, Kentucky.
PARTIES – PLAINTIFFS 12. Plaintiff S.R. was eight years old and weighed 52 pounds when he was handcuffed in the Fall of 2014. At all relevant times, Plaintiff S.R. has been and is enrolled in an elementary school within the Covington Independent Public Schools (CIPS) District. Plaintiff S.R. has disabilities including post-traumatic stress disorder (PTSD) and attention deficit hyperactive disorder (ADHD). He is a person with a disability protected by the Americans with Disabilities Act. As a minor child, Plaintiff S.R. brings this action through his mother and next friend, T.R. Plaintiff S.R. and his mother reside in Kenton County, Kentucky.
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13. Plaintiff L.G. was nine years old and weighed 56 pounds when she was handcuffed twice in the Fall of 2014. At all relevant times, Plaintiff L.G. has been and is enrolled in an elementary school within the CIPS District. Plaintiff L.G. has disabilities, including ADHD and psychiatric conditions. She is a person with a disability protected by the Americans with Disabilities Act. As a minor child, Plaintiff brings this action through her mother, L.J. Plaintiff L.G. and her mother reside in Kenton County, Kentucky.
PARTIES – DEFENDANTS 14. Defendant Kenton County Sheriff’s Office (KCSO) is the law enforcement agency for Kenton County, and a public entity for purposes of Title II of the ADA. Defendant Kenton County, Kentucky, is also a public entity for purposes of Title II of the ADA. 15. Defendant Charles Korzenborn (Korzenborn) is the Sheriff for Kenton County, and a “person” for purposes of 42 U.S.C. § 1983. At all times relevant to this complaint, Defendant Korzenborn was acting under color of state law. Defendant Korzenborn is sued in his official capacity. 16. Defendant Kevin Sumner (Sumner) is employed by the Kenton County Sheriff’s Office as a School Resource Officer assigned to elementary schools with the CIPS District. Defendant Sumner is a “person” for purposes of 42 U.S.C. § 1983, and an agent of Defendant KCSO for purposes of the ADA. At all times relevant to this complaint, Defendant Sumner was acting under color of state law. Defendant Sumner is sued in his individual and official capacities.
STATEMENT OF FACTS 17. According to the U.S. Department of Education’s Civil Rights Data Collection (CRDC), the CIPS District is 22.4 percent students with disabilities under the Individuals with
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Disabilities Education Act (IDEA). Nationwide, the CRDC describes the IDEA population as 12 percent of the student population.
18. As Sheriff for Kenton County, Defendant Korzenborn entered into an agreement with the CIPS District on or about August 2014 to provide four deputies to serve as School Resource Officers through June of 2015. The School Resource Officers (SROs) are law enforcement officers employed by Defendant KCSO who are based in the schools. Defendant Korzenborn has the authority to hire, dismiss, assign, or reassign the SROs.
19. Defendants KCSO and Korzenborn have failed to create or maintain policies, practices, procedures, or trainings regarding the use of physical restraints, handcuffs, and other types of physical force on elementary schoolchildren, including students with disabilities such as Plaintiffs S.R. and L.G.
20. Defendants KCSO and Korzenborn have failed to take reasonable steps to implement the regulations on restraint and seclusion adopted by the Kentucky Board of Education.
Facts Regarding Plaintiff S.R. 21. During the 2014-15 school year, Plaintiff S.R. was eight years old and enrolled in the third grade at the Latonia Elementary School in the CIPS District. He stood about 3 ½ feet tall and weighed about 52 pounds. 22. According to the CRDC, more than 20 percent of the students at Latonia Elementary – one in five students – is a student with an IDEA disability. 23. In May of 2012, Plaintiff S.R. was diagnosed with ADHD, a mental disorder. Because of his ADHD, Plaintiff S.R. experiences difficulty staying focused, paying attention,
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controlling behavior, complying with directives, and remaining seated, and is substantially limited in one or more major life activities, including learning and neurological/brain functions.
24. By October of 2013, school personnel with Latonia Elementary acknowledged that Plaintiff S.R. needed a behavior intervention plan to help him manage his disability-related behaviors.
25. In August of 2014, Plaintiff S.R. was diagnosed with PTSD, a mental disorder. Because of his PTSD, Plaintiff S.R. experiences distress associated with traumatic experiences, and is substantially limited in one or more major life activities, including neurological/brain functions.
26. On November 13, 2014, while in a classroom, Plaintiff S.R. experienced disability-related difficulties complying with directives from his teacher and the Vice Principal. He was removed from the classroom and directed to the Vice Principal’s office.
27. Portions of the events in the Vice Principal’s office were video recorded by school personnel; there are three segments of video. (See Exhibits A and B).
28. While in the Vice Principal’s office, Plaintiff S.R. tried to leave the room, but school personnel held the door closed. Plaintiff S.R. was restrained by school personnel twice, for about four to five minutes each time.
29. Plaintiff S.R. again tried to leave the room, and stated that he had to use the bathroom. Plaintiff S.R. spoke with his mother, T.R., by phone, and calmed down. T.R. requested that her son be permitted to use the bathroom, and the school agreed. Defendant Sumner arrived, and took Plaintiff to the bathroom.
30. When Defendant Sumner and Plaintiff S.R. returned from the bathroom, Plaintiff S.R. was not able to follow Defendant Sumner’s directions, including a direction to sit down. In
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an “Investigation Report” written months later, Defendant Sumner stated that Plaintiff S.R. “swung his arm and attempted to strike [him] with his elbow,” but that he blocked Plaintiff’s elbow with his hand.
31. Defendant Sumner then handcuffed Plaintiff S.R. behind his back. Defendant Sumner placed the handcuffs at S.R.’s biceps, above his elbows. School records indicate that Plaintiff S.R. was handcuffed for about 15 minutes.
32. On the video, Defendant Sumner can be heard stating, “You can do what we ask you to or you can suffer the consequences.” Plaintiff S.R. can be heard saying, “Oh, God. Ow, that hurts.” (Exhibit B).
33. Defendant Sumner can be seen on the video pushing on the chain of the handcuffs to place S.R. in a chair, stating, “Now sit down like I asked you to.” Plaintiff S.R. can be heard stating, “please.” (Exhibit B).
34. More than seven minutes are captured on the third video segment. Throughout, Plaintiff S.R. can be seen crying, gasping, and squirming in the chair, and Defendant Sumner can be seen and heard demanding compliance from Plaintiff S.R., stating: “You know you’re going. . . to behave the way you’re supposed to or you suffer the consequences. It’s your decision to behave this way. If you want the handcuffs off, you’re going to have to behave and ask me nicely. … Sit back down. … Ask nicely. … Look at me. … It’s up to you if you want them off or not.”
35. While handcuffed, Plaintiff S.R. expressed pain and upset. The video captures S.R. stating, “My arm!,” and “Oww, oww.” Just before the end of the third video segment, a school official can be heard stating, “Stop the video.”
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36. Plaintiff S.R.’s mother arrived at school to take him home, and learned at that time that he had been handcuffed by Defendant Sumner. As T.R. left with her son, Defendant Sumner told them that he would return to the school with his handcuffs if S.R. did not behave.
37. The use of mechanical restraints such as handcuffs is prohibited by School Resource Officers like Defendant Sumner. 704 K.A.R. 7:160, §§ 1(13), 3(2)(a). Further, at no point during the interaction between Plaintiff S.R. and Defendant Sumner on November 13, 2014 was there an imminent danger of physical harm or “direct threat” to S.R. or to anyone else that required Defendant Sumner to use handcuffs. Nor was there a “direct threat” justification for the placement of the handcuffs, or for the prolonged period of time that the handcuffs were imposed. The only basis for the handcuffing was Defendant Sumner’s desire for compliance. See 704 K.A.R. 7:160, § 3(1)(b) (“Physical restraint shall not be used in a public school or educational program … [t]o force compliance[.]”); see also id. at § 1(4).
38. Plaintiff S.R. experienced physical pain and significant emotional distress during the November 13, 2014 handcuffing. Thereafter, as a result of the handcuffing, he suffered and continues to suffer emotional distress.
Facts Regarding Plaintiff L.G. 39. During the 2014-15 school year, Plaintiff L.G. was nine years old and enrolled in the fourth grade at the John G. Carlisle Elementary School in the CIPS District. She weighed about 56 pounds. 40. In November of 2012, Plaintiff L.G. was diagnosed with ADHD, a mental disorder. Because of her ADHD, Plaintiff L.R. experiences hyperactivity, impulsivity, and difficulty paying attention, complying with directives, controlling emotions, and remaining seated. She has particular difficulty during transitions that occur at school. She also has
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psychiatric disabilities that have required hospitalizations. She is substantially limited in one or more major life activities, including learning and neurological/brain functions.
41. Beginning in October of 2013, Plaintiff L.G. had a Section 504 education plan, which included strategies for assisting her with behavior. Plaintiff L.G. currently has an Individualized Education Plan (IEP) under the IDEA, which includes strategies for assisting her with behavior.
42. On August 21, 2014, Defendant Sumner was assigned to Plaintiff L.G’s school, and was contacted by school personnel to assist with L.G., who had been put in the in-school suspension room. According to Defendant Sumner, Plaintiff L.G. was screaming and disrupting the classroom. Defendant Sumner placed Plaintiff L.G. in the back of his cruiser, a locked area of the car. Defendant Sumner took L.G. to her home, where they waited in the cruiser for more than one hour while they waited for L.G.’s mother to arrive.
43. On October 3, 2014, Plaintiff L.G. experienced disability-related difficulties complying with directives from her teacher. Plaintiff L.G. was first directed to the in-school suspension room, and then taken to the school isolation room. When Plaintiff L.G. tried to leave the isolation room, she was restrained by the Principal and Vice Principal.
44. School personnel contacted Defendant Sumner, who arrived while Plaintiff L.G. was still being restrained. When Defendant Sumner arrived, he handcuffed Plaintiff L.G. behind her back, placing the handcuffs around her biceps and above her elbows. In an “Investigation Report” written months later, Defendant Sumner stated that he handcuffed L.R. because she “was attempting to injure the school staff” while being restrained. Plaintiff L.G. remained handcuffed for 20 minutes.
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45. In reaction to being handcuffed, Plaintiff L.G. experienced a severe mental health crisis. She cried and struggled physically against the handcuffs. Defendant Sumner contacted a medical crisis team. Plaintiff L.G. was taken by ambulance to the hospital for psychiatric assessment and treatment.
46. The use of mechanical restraints such as handcuffs is prohibited by School Resource Officers like Defendant Sumner. Further, at no point during the October 3, 2014, interaction between Plaintiff L.G. and Defendant Sumner was there an imminent danger of physical harm or “direct threat” to S.R. or to anyone else that justified Defendant Sumner’s use of handcuffs. Nor was there a “direct threat” justification for the placement of the handcuffs, or for the prolonged period of time that the handcuffs were imposed.
47. Plaintiff L.G. experienced physical pain and significant emotional distress during the October 3, 2014 handcuffing. As a result of the handcuffing, her pre-existing mental health issues worsened considerably, and she has suffered and continues to suffer emotional distress.
48. About three weeks later, October 23, 2014, Plaintiff L.G. was again handcuffed by Defendant Sumner. On that day, in the morning prior to the start of the school day, L.G. was walking on the stairs and through the hallways when she was supposed to be in the cafeteria. The Principal encouraged L.G. to go to the cafeteria, and L.G. proceeded in that direction. Plaintiff L.G. stood outside the cafeteria under the watch of the Principal, who was waiting for L.G. to enter.
49. While L.G. was standing outside the cafeteria, Defendant Sumner approached her and told her to go inside the cafeteria. This encounter triggered L.G., who was still traumatized by her prior encounters with Defendant Sumner. Plaintiff L.G. ran away and Defendant Sumner followed her, telling her to go inside the cafeteria.
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50. At about 7:45 a.m., Defendant Sumner and the Principal restrained L.G., while she resisted and struggled. After about ten minutes, Defendant Sumner handcuffed Plaintiff L.G. behind her back, placing the handcuffs around her biceps and above her elbows. In an “Investigation Report” written months later, Defendant Sumner stated that he restrained and then handcuffed L.R. because she was attempting to assault him. Plaintiff L.G. remained kneeling on the floor, handcuffed and struggling, for about 30 minutes until her mother L.J. arrived.
51. Plaintiff L.G.’s mother learned about her child’s handcuffing when she arrived at the school and heard her crying and screaming. Plaintiff L.G.’s mother witnessed Defendant Sumner holding L.G.’s hands over her head while handcuffed in a shoulder hyperextension position. This position is a pain compliance technique that is dangerous for children and is contrary to guidance on the safe restraint of children.
52. After Plaintiff L.G.’s mother arrived, L.G. calmed down, and Defendant Sumner removed the handcuffs.
53. The use of mechanical restraints such as handcuffs is prohibited by School Resource Officers like Defendant Sumner. Further, at no point during the October 23, 2014, interaction between Plaintiff L.G. and Defendant Sumner was there an imminent danger of physical harm or “direct threat” to S.R. or to anyone else that justified Defendant Sumner’s use of handcuffs. Nor was there a “direct threat” justification for the placement of the handcuffs, or for the prolonged period of time that the handcuffs were imposed. Defendant Sumner used the handcuffs to seek compliance.
54. Plaintiff L.G. experienced physical pain and significant emotional distress during the second handcuffing that occurred on October 23, 2014. As a result of this second
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handcuffing, Plaintiff L.G’s pre-existing mental health issues worsened considerably, and she has suffered and continues to suffer emotional distress.
CAUSES OF ACTION Count I: Unreasonable Seizure and Excessive Force
In Violation of the U.S. Constitution, Fourth and Fourteenth Amendments
42 U.S.C. § 1983 Against Defendant Korzenborn, in his Official Capacity, Defendant Sumner, in his Official and Individual Capacities,
and Defendant Kenton County Sheriff’s Office 55. Plaintiffs S.R. and L.G. incorporate by reference the above paragraphs as though fully set forth herein. 56. The U.S. Constitution protects individuals like Plaintiffs S.R. and L.G. against unreasonable seizures and excessive force. “[T]he reasonableness of a particular seizure depends not only on when it is made, but also on how it is carried out.” Graham v. Connor, 490 U.S. 386, 395 (1989). Whether a seizure is unreasonable and unconstitutional depends upon the totality of the circumstances. 57. Plaintiffs contend that the handcuffings they experienced were unconstitutional because they were: (1) unreasonable seizures; and (2) excessive force. 58. The seizures of Plaintiffs S.R. and L.G. were unreasonable and excessive in light of the totality of the circumstances, including but not limited to:
a. The age, size, and disabilities of the children, including their limited ability to impose physical harms on others and their limited ability to form criminal intent;
b. That the children were not committing crimes, but were instead experiencing behavior problems associated with their disabilities while at elementary school;
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c. That the School Resource Officer placed handcuffs designed for adults on young schoolchildren, behind their arms and at their biceps, above the shoulders;
d. That the handcuffing violated the regulations of the Kentucky Board of Education;
e. The length of time of the handcuffing; and f. The traumas imposed by the handcuffing. 59. By engaging in the acts described herein, Defendant Sumner, acting under color of law and with deliberate indifference, violated the Plaintiffs’ rights under the U.S. Constitution to be free from unreasonable seizures and excessive force. 60. The rights of S.R. and L.G. to be free from unreasonable seizures and excessive force as described herein was clearly established in law at the time of the incidents alleged. 61. Defendant Sumner acted maliciously, intentionally, and in reckless disregard to the rights of the plaintiffs. 62. Further, Plaintiffs are informed and believe, and thereupon allege, that Defendant Korzenborn has failed and continues to fail to train and supervise Defendant Sumner regarding the restrictions under law on the use of physical restraints, including handcuffs, on elementary schoolchildren such as Plaintiffs. Defendant Korzenborn has failed and continues to fail to implement policies, practices, and procedures to prevent such unlawful physical restraints. 63. Further, Plaintiffs are informed and believe, and thereupon allege, that Defendant Kenton County Sheriff’s Office has maintained and continues to maintain, with deliberate indifference, an unlawful policy or custom of imposing unreasonable seizures and excessive force on schoolchildren, including the seizures and excessive force as described herein.
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64. As a proximate result of the actions and inactions of Defendants, Plaintiffs S.R. and L.G. suffered and continue to suffer physical pain, emotional pain, psychological injury, trauma, and suffering. Plaintiffs continue to experience fear, distrust, and anxiety regarding law enforcement officers such as School Resource Officers.
65. Plaintiffs are entitled to injunctive relief, declaratory relief, compensatory damages, punitive damages, and reasonable attorneys’ fees and costs.
Count II: Disability-Based Discrimination In Violation of Title II of the Americans with Disabilities Act
42 U.S.C. § 12132, 28 C.F.R. § 35.130(b)(3), (8) Against Defendant Kenton County Sheriff’s Office
And Defendant Kenton County, Kentucky 66. Plaintiffs S.R. and L.G. incorporate by reference the above paragraphs as though fully set forth herein. 67. The regulations implementing Title II of the ADA require that public entities avoid unnecessary policies, practices, criteria or methods of administration that have the effect or tendency of excluding or discriminating against persons with disabilities. 28 C.F.R. § 35.130(b)(3), (8). 68. Students with disabilities, and particularly students with disabilities involving behavior challenges, including Plaintiffs S.R. and L.G., are particularly susceptible to and injured by the unnecessary use of physical restraints, including handcuffs, on the basis of disability. The effects on these students with disabilities include substantial and disproportionate physical and emotional injuries, and disruptive exclusions from the school community. 69. Instead of the unnecessary use of physical restraints, including handcuffs, students with disabilities require reasonable modifications such as such as crisis intervention, deescalation, patience, and waiting.
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70. Through its policy and practice of imposing unnecessary physical restraints, including handcuffs, on schoolchildren with disabilities, including Plaintiff S.R. and L.G., Defendant KSCO (and therefore Defendant Kenton County, Kentucky) has violated and continues to violate the ADA.
71. Through its failure to adopt a policy and practice of providing reasonable modifications to schoolchildren with disabilities, including Plaintiffs S.R. and L.G., such as crisis intervention, de-escalation, patience, and waiting, Defendant KSCO (and therefore Defendant Kenton County, Kentucky) has violated and continues to violate the ADA.
72. Plaintiffs are entitled to injunctive relief, declaratory relief, and attorneys’ fees and costs.
Count III: Disability-Based Discrimination and Failure to Accommodate In Violation of Title II of the Americans with Disabilities Act 42 U.S.C. § 12132, 28 C.F.R. § 35.130(b)(7) Against Defendant Kenton County Sheriff’s Office And Defendant Kenton County, Kentucky
73. Plaintiffs S.R. and L.G. incorporate by reference the above paragraphs as though fully set forth herein.
74. Title II of the ADA requires that public entities do not subject individuals with disabilities to discrimination, and that such public entities provide reasonable modifications to persons with disabilities. 42 U.S.C. § 12132, 28 C.F.R. § 35.130(b)(7).
75. Under these provisions, law enforcement officers, including School Resource Officers like Defendant Sumner, may not discriminate on the basis of disability, and must provide reasonable modifications as needed during their interactions with individuals with disabilities.
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76. Based on all of the circumstances stated herein, Defendant Sumner knew or should have known that Plaintiffs S.R. and L.G. are persons with disabilities who require reasonable modifications under the ADA due to their disability-related difficulties.
77. Instead of providing reasonable modifications such as crisis intervention, deescalation, patience, and waiting, Defendant Sumner escalated his encounters with Plaintiffs S.R. and L.G., and subjected them to unnecessary physical restraint including handcuffing. In so doing, Defendant Sumner acted with deliberate indifference.
78. Further, and with deliberate indifference, Defendant KCSO (and therefore Defendant Kenton County, Kentucky) failed to implement the nondiscrimination and reasonable modification requirements of the ADA through its policies, practices, procedures, and trainings, and instead authorized its School Resource Officers such as Defendant Sumner to engage in disability discrimination against Plaintiffs S.R. and L.G.
79. As a proximate result of the actions and inactions of Defendant KCSO (and therefore Defendant Kenton County, Kentucky) and its agents, Plaintiffs S.R. and L.G. suffered and continue to suffer physical pain, emotional pain, psychological injury, trauma, and suffering. Plaintiffs continue to experience fear, distrust, and anxiety regarding law enforcement officers such as School Resource Officers.
80. Plaintiffs are entitled to injunctive relief, declaratory relief, compensatory damages, and reasonable attorneys' fees and costs.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs S.R. and L.G., minor children, pray that this Court: 1. Declare that that the actions and inactions described herein violate the rights of Plaintiffs S.R. and L.G. under the U.S. Constitution and the Americans with Disabilities Act;
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2. Issue an order enjoining the Defendants from engaging in the unlawful conduct
complained of herein;
3. Award Plaintiffs compensatory damages;
4. Award Plaintiffs punitive damages;
5. Award reasonable attorneys’ fees and costs; and
6. Grant such other and further relief as the court deems just and proper.
Respectfully submitted,
/s/ R. Kenyon Meyer R. Kenyon Meyer (KY Bar No. 85941) Counsel for Plaintiffs Dinsmore & Shohl LLP 101 S. Fifth Street, Suite 2500 Louisville, Kentucky 40202 (502) 540-2300 Kenyon.meyer@dinsmore.com
/s/ Rickell L. Howard Rickell L. Howard (OH Bar No. 0081982)* Co-counsel for Plaintiffs Children’s Law Center, Inc. 1002 Russell Street Covington, KY 41011 (859) 431-3313 rhoward@childrenslawky.org
/s/ William Sharp William E. Sharp (KY Bar No. 81344) Co-counsel for Plaintiffs Legal Director ACLU OF KENTUCKY 315 Guthrie St., Ste. 300 Louisville, KY 40202 (502) 581-9746 sharp@aclu-ky.org
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Case: 2:15-cv-00143-WOB-JGW Doc #: 92 Filed: 03/15/16 Page: 19 of 19 - Page ID#: 626 /s/ Claudia Center Claudia Center (CA Bar No. 158255)* Susan Mizner Co-counsel for Plaintiffs American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 (415) 343-0762 smizner@aclu.org ccenter@aclu.org
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 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 1 of 33 - Page ID#: 12046

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT COVINGTON

CIVIL ACTION NO. 2:15-cv-143 (WOB-JGW)

S.R., ET AL.

PLAINTIFFS

VS.

OPINION AND ORDER

KENTON COUNTY SHERIFF’S OFFICE, ET AL.

DEFENDANTS

Introduction This is an action brought pursuant to 42 U.S.C. § 1983 for unreasonable seizure and excessive force and for violation of the Americans with Disabilities Act, 42 U.S. § 12132. Plaintiffs, suing through their mothers, are two elementary school children who were handcuffed by a School Resource Officer (“SRO”) while attending schools within the Covington Independent Public School District (“CIPS”) in Covington, Kentucky. Defendants are Charles Korzenborn, the Sheriff for Kenton County, Kentucky, in his official capacity only,1 and Kevin Sumner, the SRO who handcuffed plaintiffs, in both his official and individual capacities. As discussed below, Sumner was assigned to

1 The Complaint also named Kenton County Sheriff’s Office as a defendant. Plaintiffs acknowledged during a preliminary pretrial conference on August 18, 2015, that the Sheriff’s office is not a legal entity capable of being sued under 42 U.S.C § 1983. However, the Court has ruled that the Sheriff’s Office is a “public entity” and thus a proper defendant under Title II of the ADA. (Doc. 59).

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CIPS schools pursuant to a contract between the Kenton County Sheriff’s Office and the Covington Board of Education. However, neither the Board of Education nor the school district is a party herein.
Jurisdiction is based on this Court’s federal question jurisdiction. See 28 U.S.C. § 1331.
This matter is currently before the Court on defendants’ motions for summary judgment regarding plaintiff S.R. (Doc. 151) and plaintiff L.G. (Doc. 152) and plaintiffs’ motion for partial summary judgment (Doc. 153).
The Court heard oral argument on these motions on August 22, 2017, after which it took these motions under submission pending the parties’ efforts to resolve this case. (Doc. 182).
The Court has now been notified that those efforts were unsuccessful and that the parties jointly request a written ruling on the above motions. (Doc. 186).
Therefore, having heard from the parties, and having carefully studied this matter, the Court issues the following Opinion and Order.
Factual and Procedural Background A. The SRO Program In 2014, Kenton County Sheriff Department SROs served in the CIPS pursuant to a written agreement between the Sheriff and the CIPS board. (Doc. 151-4). That agreement provided that the
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Sheriff would provide four SROs and one SRO Coordinator to serve as a liaison between the Sheriff’s Office and the school board. Defendant Sumner was one of the four SROs provided to CIPS schools, and Ken Kippenbrock (“Kippenbrock”) was the SRO Coordinator.
The SRO agreement also provided that SROs would be trained to work with youth in schools2; would assist school personnel with maintaining order in the schools; and would interact in a positive manner with all students. Id. at 3. This agreement also provided that the “SRO shall not act as a school disciplinarian, as disciplining students is a school responsibility.” Id. at 4.
B. Applicable Kentucky “Physical Restraint” Regulations Before discussing the handcuffing incidents at issue herein, the Court will review the Kentucky regulations applicable to such matters. In 2013, the Kentucky Board of Education adopted a regulation titled “Use of physical restraint and seclusion in public schools.” 704 KAR 7:160. The regulation defines “school personnel” to include “school resource officers.” 704 KAR 7:160 § 1(13). It further provides that school personnel may use a “physical
2 This is consistent with the Kentucky statute that defines a “School resource officer” as “a sworn law enforcement officer who has specialized training to work with youth at a school site.” KRS 158.441.
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restraint”3 on a student only if the “student’s behavior poses an imminent risk of physical harm to self or others.” 704 KAR 7:160 § 3(a).
The regulation also provides that school personnel may not use physical restraints as “punishment or discipline,” to “force compliance or to retaliate,” as “a routine school safety measure,” or as “convenience for staff.” 704 KAR 7:160 § 3(1).
This regulation further prohibits school personnel from imposing “mechanical restraints” on students at any time. 704 KAR 7:160 § 3(2).4 In addition, the regulation requires that all school personnel be trained annually in “state administrative regulations and school district policies and procedures regarding physical restraints and seclusion.” 704 KAR 7:160 § 6(1)(a).
Finally, the preamble to this regulation states that it “does not prohibit the lawful exercise of law enforcement duties by sworn law enforcement officers.” Kippenbrock, the SRO Supervisor, testified that he provided a copy of this regulation to the SROs when it was published in 2013. (Kippenbrock Depo. 120). He
3 “Physical Restraint” is defined as “a personal restriction that immobilizes or reduces the ability of a student to move the student’s torso, arms, legs, or head freely,” with certain exceptions not relevant here. 704 KAR 7:160 § 1(10). 4 “Mechanical restraint” is defined as “the use of any device or equipment to restrict a student’s freedom of movement.” Defendants do not contest that this includes handcuffs. 704 KAR 7:160, § 1(8).
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pointed out the preamble, but he did not tell them that the regulation did not apply to them. (Kippenbrock Depo. 122).
B. The Handcuffing of S.R. In the fall of 2014, S.R. was an eight-year old boy enrolled in the third grade at Latonia Elementary School. He was approximately 4 feet tall, and he weighed 54 pounds. (Doc. 15420). S.R. had been diagnosed with attention deficit hyperactivity disorder (ADHD) and post-traumatic stress disorder (PTSD). (Doc. 151-25). However, S.R. attended regular classes and, at the time of the incidents in question, had not been identified to school administrators as having any disability. He did not have an “Individual Education Plan” (“IEP”). (Meyer Aff. Doc. 151-24; Ramirez Depo. 130-31). On November 11, 2014, S.R. was combative and violent toward school staff. Assistant Principal Maranda Meyer (“Meyer”) and special education teacher Nicholas Staples (“Staples”) used a kneeling “cradle restraint” to stop him from kicking and hitting. (Meyer Depo. 107-12). Meyer video recorded the incident so that she could show S.R.’s mother how he was behaving. (Meyer Depo. 81-82, 97). S.R. was given a one-day suspension. (Meyer Depo. 105-06). S.R. returned to school on November 13, 2014. He again became disruptive in class, so Meyer was asked to intervene. She reported to the classroom and stayed for about twenty minutes, observing
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S.R. and giving him instructions. (Meyer Depo. 117). She then left but soon another student came to get her because S.R. was again causing problems. Meyer went to get S.R. from the classroom to bring him to her office, but he ran away from her and tried to hit Staples. (Staples Depo. 39-40). Meyers and Staples then carried S.R. to Meyer’s office using a cradle transport. (Meyer Depo. 118; Staples Depo. 42, 44).
While in the office, Meyers and Staples twice tried to deescalate S.R.’s behavior by using kneeling cradle restraints for approximately five minutes. Principal Ann James (“James”) then came into the room, and James told Meyer to begin filming because James’ IPad was not charged. (Meyer Depo. 120; James Depo. 72).
Staples held the door closed while S.R. tried to open it, swatting at Staples and trying to kick him in the leg. Staples testified that he had a bad injury on his leg and that S.R. knew about it and was intentionally trying to kick it. (Staples Depo. 27).
After several minutes, school counselor Michael Shipley (“Shipley”) was asked to hold the door closed from outside so that Staples could move away from the door to avoid S.R.’s kicks. (Shipley Depo. 49). S.R. continued kicking the door and trying to push it open. (Shipley Depo. 66).
After determining that their de-escalation efforts were unsuccessful, school personnel made the decision to call defendant
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Kevin Sumner (“Sumner”), an employee of the Kenton County Sheriff’s Office, who was a SRO in Northern Kentucky. At that time, Sumner was at another school. (Sumner Depo. 142). Meyer told Sumner that they had a student who was out of control who was “physically assaulting” their staff, and that the parent was unavailable. (Sumner Depo. 144). Sumner drove to Latonia Elementary in his cruiser. (Sumner Depo. 143).
In the meantime, James’ efforts to reach S.R.’s mother were successful, and S.R. began speaking to her on the phone. (Meyer Depo. 121; James Depo. 79). S.R. stated that he needed to use the restroom, and his mother requested that he be allowed to go to the bathroom and that she would come to pick him up. Thereafter, Meyer stopped filming because she thought S.R. was calming down.
When Sumner arrived at the school, he saw Shipley holding the door to Meyer’s office closed. (Sumner Depo. 143). Sumner entered the office, and he saw S.R. standing at Meyers’ desk talking on the phone with his mother. (Id. at 170). Sumner did not know S.R. before this time. (Sumner Depo. 139). James asked Sumner to escort S.R. to the bathroom, and he did so. When Sumner and S.R. returned to Meyer’s office, S.R. did not follow Sumner’s instruction to sit down. Sumner leaned over to speak to S.R., telling him that his mother was on the way. (Sumner Depo. 163). S.R. then swung his elbow towards Sumner’s face, and Sumner leaned
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to the left and put out his hand, which was struck by S.R.’s elbow. (Sumner Depo. 162-62; Meyer Depo. 123-24; Staples Depo. 53).
Meyer then resumed filming, and Sumner said “you’re not allowed to swing at me like that.” Sumner handcuffed S.R. behind his back, placing the cuffs on S.R.’s biceps above the elbows. The video shows that S.R.’s arms are pulled tightly behind his back with what appears to be only approximately three or four inches between his elbows. Sumner testified that he checked the handcuffs for tightness and that, since the chain connecting the handcuffs was nearly as long as the width of S.R.’s body, he had no reason to believe it would cause him pain. The video clearly demonstrates, however, that the chain is not nearly as wide as S.R.’s body, and that his arms are extremely taut.
Sumner can be heard stating, “You can do what we’ve asked you to or you can suffer the consequences.” (Doc. 156 - video). S.R. can be heard saying, “Oh, God. Ow, that hurts.” (Meyer Depo. 136-37). Sumner tells S.R. that: if he wants the handcuffs off, he has to behave and “ask nicely”; “if you want them off, all you have to do is stop kicking”; and “it’s up to you if you want them off or not.”
S.R. remained handcuffed for approximately fifteen minutes, crying and squirming, after which Sumner removed the cuffs. (Meyer Depo. 128). Thereafter, S.R.’s mother arrived at the school to take him home and learned he had been handcuffed. She told Meyer
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that S.R. had PTSD and so she was concerned about his being handcuffed. (Meyer Depo. 142).
When S.R. and his mother left, the school staff asked Sumner to write an offense report to document that they had been victims of a crime. (Sumner Depo. 172). (Doc. 154-22).
A month after the handcuffing incident, S.R.’s mother requested, for the first time, an educational accommodation for S.R.
In January 2015, the Kenton County Sheriff was contacted by the Children’s Law Center regarding the handcuffing incident. Sheriff Korzenborn and Kippenbrock directed Sumner to prepare an investigative narrative regarding the handcuffing of S.R. (Sumner Depo. 174-5; Kippenbrock Depo. 91; Korzenborn Depo. 71).
In April 2015, school administrators determined that S.R. needed a formal behavior intervention and crisis plan, but they found insufficient evidence of a disability. S.R.’s mother challenged that determination, and eventually the parties settled and agreed to a 504 Plan effective August 18, 2015. (Meyer Depo. 143; Ramirez Depo. 31-33).
Finally, while S.R. had been treated in 2012 for ADHD symptoms, school administrators received no documentation of such diagnosis until 2015.
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C. The Handcuffing of L.G. In the fall of 2014, L.G was a nine-year old girl enrolled in the fourth grade at John G. Carlisle Elementary School in Covington. She weighed about 56 pounds. L.G. had been diagnosed with ADHD and she had a 504 plan, but she attended regular classes. (Collins Depo. 175; Craig Depo. 37-38). The plan did not address any behavioral issues or problems. On August 21, 2104, L.G. was being disruptive in her classroom, banging on the table and making loud noises. (Collins Depo. 129). Principal Joy Collins (“Collins”) went to the classroom and, with the assistance of another teacher, escorted L.G. out of the classroom to the calm room. (Collins Depo. 131). Collins called for Sumner and asked him to talk to L.G. about the seriousness of such behavior, and he did. (Collins Depo. 182; Sumner Depo. 195). L.G. then appeared to have calmed down, and Sumner left the campus. (Sumner Depo. 198). However, L.G.’s behavior again escalated. (Collins Depo. 134-35). When L.G. began hitting and kicking again, Sumner was called to help take her home because efforts to reach her mother were unsuccessful. (Collins Depo. 138; Craig Depo. 45-49). When Sumner arrived, L.G was screaming and refusing to sit down. (Sumner Depo. 199). Sharon Craig (“Craig”), the Assistant Principal, determined that they could not safely put L.G. on the school bus, so she asked Sumner to drive her and L.G. to L.G.’s
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home to wait for her mother. (Sumner Depo. 199-201; Craig Depo. 50) They left the school around 2:00 p.m., and L.G.’s mother arrived home around 3:30 p.m. (Craig Depo. 53).
This incident was Sumner’s first encounter with L.G., and he knew nothing of her record from prior school years. (Sumner Depo. 186, 193).
In September 2014, Sumner became aware of issues with L.G.s mother’s not ensuring that L.G. took medicines she was prescribed. (Sumner Depo. 209; Craig Depo. 60-64). He had been informed by school personnel that L.G.’s behavioral issues were related to the failure to take her medication, and that they had truancy concerns due to her multiple absences. (Sumner Depo. 212-215).5
1. October 3, 2014 Handcuffing On October 3, 2014, L.G. brought toys to school that were not permitted and refused to put them away or follow the instructions of her teacher, Ashley Miller (“Miller”). (Collins Depo. 108). Miller contacted Collins and Craig. (Collins Depo. 109) L.G. was wandering around the room, opening and shutting other people’s lockers, and being disruptive. (Collins Depo. 100, 176). Collins and Craig escorted L.G. out of the classroom, but as they walked down the hallway, L.G. dropped to the floor and wrapped herself
5 Sumner ultimately filed a JC-3 Report with the Kentucky Cabinet for Health and Family Services after the October 3, 2014 incident. The Kenton County Family Court entered a finding of neglect against L.G.’s mother on February 17, 2015.
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around Collins’ legs. (Collins Depo. 110, 177; Craig Depo. 71). Collins and Craig were able to carry L.G. to the calm room, as she continued to hit and kick. (Collins Depo. 111).
In the calm room, L.G was scratching, kicking, hitting, blowing snot, and trying to bite Collins and Craig. (Collins Depo. 114, 118, 178; Craig Depo. 73-75). This went on for approximately an hour. The school nurse brought a spit guard for L.G. but it was not effective. (Collins Depo. 231).
Meanwhile, school staff were attempting to contact L.G.’s mother. (Collins Depo. 114). Unable to do so, Craig and Collins asked an assistant to call for Sumner, who was at another school. (Collins Depo. 116; Craig Depo. 75). They informed him that they had a student who was “out of control” and the mother was not available. (Sumner Depo. 225).
When Sumner arrived, he heard L.G. screaming from the calm room. (Sumner Depo. 226). He observed that Craig and Collins were trying to keep L.G. from hitting them. (Sumner Depo. 22627). Sumner tried to use de-escalation techniques to calm L.G., but she tried to assault him and was spitting and blowing snot on him. (Sumner Depo. 233-34; Collins Depo. 122). Sumner then decided to place her in handcuffs. (Sumner Depo. 234, 236). Despite the handcuffs, L.G. did not calm down and Sumner called for an ambulance because he was concerned for her medical condition. (Sumner Depo. 237-241).
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Paramedic Jerry Mills arrived at the school and went to the calm room. Mills began talking to L.G., and he told Sumner to remove the handcuffs. (Mills Depo. 10; Collins Depo. 125). Mills put his arm around L.G.’s shoulders to comfort her while Sumner removed the handcuffs. (Mills Depo. 10-11; Sumner Depo. 257). Mills hugged L.G. and she hugged him back. (Collins Depo. 125). Mills sat and talked with L.G. in the ambulance on the way to Children’s Hospital. (Mills Depo. 11). Collins and Sumner followed the ambulance since no parent was available, and Collins waited for about an hour until L.G.’s mother arrived. (Collins Depo. 126). L.G. was discharged later that morning without any physical injury.
2. October 23, 2014 Handcuffing On October 23, 2014, L.G. arrived at school at 7:25 and began wandering into unsupervised areas, instead of going to the cafeteria where the children wait until 7:30 when they go to their homerooms. (Collins Depo. 90). L.G. refused Collins’ instructions to go to the cafeteria and continued walking towards a stairway that led upstairs to classrooms, which at that time were unsupervised. (Collins Depo. 90). Whenever Collins approached L.G., L.G. would run in the opposite direction. (Collins Depo. 92, 94). Sumner, who was assigned to the school that day, saw Collins trying to catch up to L.G. in the hallway. (Sumner Depo. 260).
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Sumner saw L.G. coming towards him as he stood with his back to the stairway leading to the second floor, and Collins and Craig were telling L.G. to go to the cafeteria. (Sumner Depo. 262).
When L.G. reached Sumner, he told her to go to the cafeteria where she was supposed to be. (Sumner Depo. 265, 273). L.G. tried to push past him, and she dropped to her hands and knees and tried to crawl through his knees. (Sumner Depo. 262; Collins Depo. 94). She then pulled up his pants leg and tried to scratch him. (Sumner Depo. 262). L.G began screaming, and Craig was able to move her into the “cub store,” a room where school supplies are sold. (Sumner Depo. 262; Collins Depo. 95-96; Craig Depo. 89-91, 94).
Once inside the cub store, L.G. became physically aggressive, hitting, kicking, and scratching Craig. (Craig Depo. 91, 98; Sumner Depo. 263). Sumner pulled L.G. off of Craig and tried to hold her physically for a few minutes, but she continued the same behavior. (Sumner Depo. 263, 280, 286; Craig Depo. 98-100). Sumner told L.G. that if she did not stop, he would handcuff her. (Craig Depo. 100). L.G. continued to kick and hit, and Sumner placed her in handcuffs, above her elbows behind her back. (Craig Depo. 100-01).
Assistant Superintendent Wilkerson contacted L.G.’s mother, who came to school to get her. (Sumner Depo. 283, 288; Craig Depo. 101-03). Her mother testified that when she arrived, L.G. was on
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her knees and Sumner was holding her arms up behind her above her head. (Jackson Depo. 165-68). Sumner then removed the handcuffs.
At that time, Collins initiated an Admissions and Release Committee (“ARC”) meeting to obtain consent from L.G.’s mother for L.G. to undergo a special education evaluation. (Collins Depo. 173-74; Jackson Depo. 37-38). It was ultimately determined that L.G. qualified as a child with a disability due to her ADHD, and an IEP was developed. (Collins Depo. 199; Craig Depo. 39-40).
Sumner never initiated any criminal charges against S.R. or L.G. (Sumner Depo. 162, 288). He testified that “none of what they did was worthy of trying to file a criminal charge.” (Sumner Depo. 288).
D. This Lawsuit Plaintiffs filed this lawsuit on August 3, 2015, against Sumner, in both his official and individual capacities, and Korzenborn, in his official capacity only.6 (Doc. 1). The Complaint alleges the following causes of action: (1) Unreasonable Seizure and Excessive Force in violation of the Fourth and Fourteenth Amendments (against all defendants), pursuant to 42 U.S.C. § 1983; (2) Disability Discrimination under the Americans
6 The Complaint also named Kenton County Sheriff’s Office as a defendant. Plaintiffs acknowledged during a preliminary pretrial conference on August 18, 2015, that the Sheriff’s office is not a legal entity capable of being sued under § 1983. However, the Court has ruled that the Sheriff’s Office is a “public entity” and thus a proper defendant under Title II of the ADA. (Doc. 59).
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with Disabilities Act (ADA), 42 U.S.C. § 12132 (against Kenton County Sheriff’s Office only); and (3) Failure to Accommodate under the ADA (against Kenton County Sheriff’s Office only). Plaintiffs seek damages and declaratory and injunctive relief.
After the video of S.R.’s handcuffing was released to the media, on August 4, 2015, Kenton County Sheriff Chuck Korzenborn issued a Press Release, which stated:
School superintendents and administrators want, and need, to provide a safe environment for students and teachers. School personnel are permitted, like any other citizen, to request the assistance of a law enforcement Deputy. Covington School’s personnel requested assistance from the police during school hours after school administrators’ efforts to deescalate and defuse a threat to others had proven unsuccessful. Deputy Sumner responded to the call and did what he is sworn to do and in conformity with all constitutional and law enforcement standards. . . . I steadfastly stand behind Deputy Sumner who responded to the school’s request for help. Deputy Sumner is a highly respected and skilled law enforcement Deputy, and is an asset to the community and those he serves. (Doc. 153-35) (emphasis added). Korzenborn had reviewed the video of S.R.’s handcuffing prior to issuing this statement. (Korzenborn Depo. 59).
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Analysis7 A. Severance Although the Court previously denied defendants’ motion to sever the claims of S.R. and L.G. (Doc. 183), it will set forth its reasoning here so that the record is complete. Rule 20 of the Federal Rules of Civil Procedure states that persons may join as plaintiffs in one action if: (1) “they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions”; and (2) “any question of law or fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P. 20(a). “The purpose of Rule 20(a) is to promote judicial economy and trial convenience.” Dejesus v. Humana Ins. Co., Civil Action No. 3:15-CV-862-GNS, 2016 WL 3630258, at *2 (W.D. Ky. June 29, 2016) (citation omitted). This rule “is governed by the principle to allow the broadest possible scope of action consistent with fairness to the parties.” Id. (internal quotations and citations omitted). Defendants’ argument that S.R. and L.G.’s claims should be severed is not well taken. Their claims both allege a practice of
7 Also before the Court is plaintiffs’ appeal from a ruling by the United States Magistrate Judge on a discovery matter. (Doc. 142). The Court does not find the appeal well taken, but given the rulings herein, it considers that appeal to be moot.
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unconstitutionally handcuffing young school children in the same school district by the same SRO. The record is replete with similarities in these children’s situations: they are both young, of small stature, suffer from emotional disturbances that allegedly affect their behavior, and they have been elbow-cuffed by defendant Sumner in response to such behavior at school.
Further, it is clear that a common question of law is present: whether the elbow-cuffing of these children was unconstitutional. Indeed, the commonality of plaintiffs’ claims is evidenced by the fact that defendants’ motions for summary judgment are, with respect to their legal arguments, identical.
Defendants argue that any jury will be confused and prejudiced by hearing plaintiffs’ claims together, particularly due to the video of S.R.’s handcuffing. The Court rejects this argument.
First, juries are routinely tasked with grasping much more complicated fact patterns than the ones here, even where there is only a single plaintiff.
Second, any alleged prejudice by the admission of evidence as to one plaintiff could be cured by a limiting instruction.
Finally, the fact that S.R.’s handcuffing was captured on camera and L.G.’s was not is irrelevant, as it is undisputed that they were subjected to the same cuffing technique.
Therefore, the Court holds that “the interests of judicial economy, convenience for the parties, and expediency all weigh in
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favor of permitting Plaintiffs’ claims to proceed in one action.” Id. at *7.
B. Section 1983 Claims “To state a claim under § 1983, a plaintiff must set forth facts that, when favorably construed, establish: (1) the deprivation of a right secured by the Constitution or laws of the United States; (2) caused by a person acting under the color of state law.” Baynes v. Cleland, 799 F.3d 600, 607 (6th Cir. 2015) (citing Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006)). There is no dispute that defendant Sumner was acting under color of state law. The question is whether he deprived L.G. and S.R. of their Fourth Amendment rights.
1. Violation of Constitutional Right Plaintiffs allege that Sumner’s handcuffing of L.G. and S.R. constituted an unlawful seizure under the Fourth Amendment. They also argue, however, that even if the seizures were lawful, Sumner still employed unlawful excessive force. Unlawful seizure and excessive force are distinct claims. See Humphrey v. Mabry, 482 F.3d 840, 846 (6th Cir. 2007). However, when the seizure itself is unlawful, a claim that the force used was excessive is subsumed in the seizure analysis because any amount of force is excessive. M.D. v. Smith, 504 F. Supp.2d 1238, 1248 (M.D. Ala. 2007) (citation omitted).
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Determining whether a particular seizure is “reasonable” under the Fourth Amendment requires a careful balancing of “the nature and quality of the intrusion on the individual’s Fourth Amendment interests” against the countervailing governmental interests at stake. Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)).
Because the test of reasonableness under the Fourth Amendment is not capable of precise definition, “its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. Ultimately, the court must determine whether the totality of the circumstances justify the challenged use of force. Id. at 396.
Finally, the reasonableness of defendants’ actions is a pure question law for the court. Dunn v. Matatall, 549 F.3d 348, 353 (6th Cir. 2008) (citation omitted).
There is no dispute here that both S.R. and L.J. were “seized” so as to trigger the protections of the Fourth Amendment. The question, then, is whether their seizures were objectively reasonable considering all the circumstances.8
8 The Court notes that plaintiff’s unlawful seizure claim is limited to the handcuffing; plaintiffs do not challenge Sumner’s
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The Court first addresses the parties’ dispute over whether 704 KAR 7:160 § 3(2)(a) — which specifically prohibits school personnel from employing mechanical restraints on school children — applies to Sumner. Plaintiffs argue that “school personnel” is defined to include SROs, and that Sumner was acting in that capacity when he handcuffed S.R. and L.G. Defendants, in turn, rely on the preamble to this regulation, which states that it “does not prohibit the lawful exercise of law enforcement duties by sworn law enforcement officers,” arguing that Sumner was acting as a deputy sheriff at the time of these incidents.
Because SROs wear two hats while serving in Kentucky schools, it can be difficult to discern when their actions constitute those of school personnel or those of law enforcement. Moreover, the existence of a regulation prohibiting allegedly unconstitutional conduct is but one factor in the Graham analysis. See Hope v. Pelzer, 536 U.S. 730, 742 (2002).
Given the above, the Court need not determine the applicability of 704 KAR 7:160 § 3(2)(a) because Sumner’s seizure and use of force, under the facts of this case, were unreasonable, even in the absence of the above regulation.
Applying the Graham factors, the severity of the “crime” committed by S.R. and L.G. — assault — weighs in their favor.
use of a brief physical hold on L.G. during the October 23, 2014, incident.
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While S.R. kicked a teacher and L.G. tried to and/or did hit a teacher, these are very young children, and their conduct does not call to mind the type of “assault” which would warrant criminal prosecution. Indeed, Sumner testified that “none of what they did was worthy of trying to file a criminal charge.” (Sumner Depo. 288).
The second factor, whether the children posed an immediate threat to themselves or others, weighs in S.R.’s favor. At the time he was handcuffed, S.R. had largely calmed down, Sumner had escorted him to the restroom without incident, and they had returned to the office. While Sumner testified that S.R. swung his elbow towards Sumner, such can hardly be considered a serious physical threat from an unarmed, 54-pound eight-year-old child.
This factor weighs less in favor of L.G., who was engaging in more physical abuse towards her teachers and Sumner.
Nonetheless, the age and stature of these children is highly relevant to this analysis. See Hoskins v. Cumberland Cnty. Bd. of Educ., No. 2:13-cv-15, 2014 WL 7238621, at *8 (M.D. Tenn. Dec. 17, 2014); Williams v. Nice, 58 F. Supp.3d 833, 838 (N.D. Ohio 2014) (in analyzing reasonableness of officer’s actions in seizing student, the Court must consider the size and stature of the parties involved).
Finally, the method of handcuffing that Sumner employed leads this Court to conclude that his actions were unreasonable and
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constituted excessive force as a matter of law. The video of S.R. shows that his arms were pulled tightly behind him, with only inches between his elbows. While Sumner testified that the chain between the cuffs was as wide as S.R.’s torso, the video belies that assertion. Where a witness’s version of the facts “cannot be countenanced based upon what the video shows,” the Court must adopt the video as fact. Marvin v. City of Taylor, 509 F.3d 234, 239 (6th Cir. 2007).
Upon being cuffed in this manner, S.R. cried out, “Ow, that hurts.” It was thus immediately apparent that this method — which, it is undisputed, was the same method by which L.G. was cuffed — was causing pain. S.R. was left in this position to cry and squirm for fifteen minutes.
Plaintiff’s handcuffing expert, Robert Rail, testified that he does not know of any police instructor in the United States who would allow the elbow cuffing of children such as was used on S.R. and L.G., nor does he know of any program that teaches that method. (Rail Depo. 109-10).
Even defendants’ handcuffing expert, William A. Payne — who has been conducting handcuffing training for law enforcement for over 20 years — testified that he has never trained law enforcement to use handcuffs above the elbow. (Payne Depo. 37, 121). He further testified that he was not aware of any law enforcement agency that trains their officers to use such a technique. (Id.).
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The Court notes that the question of whether “traditional” handcuffing of these children would have been unreasonable under these circumstances is not before the Court, and the Court expresses no opinion thereon. Instead, the Court’s holding is limited to the specific facts and circumstances of this case.
Therefore, under the totality of the circumstances, the Court concludes as a matter of law that Sumner’s manner of handcuffing S.R. and L.G. was an unconstitutional seizure and excessive force.
2. Qualified Immunity Having found a constitutional violation, the Court must consider whether Sumner is entitled to qualified immunity. “Government officials are entitled to qualified immunity for their actions unless (1) the plaintiff has established a violation of a constitutional right, and (2) the right at issue was clearly established at the time of the incident.” Miller v. Maddox, 866 F.3d 386, 395 (6th Cir. 2017) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). The key inquiry is whether the defendant had “fair warning” of the unconstitutionality of his actions. Id. (citation omitted). “The right also must be clearly established in a particularized sense, so that the contours of the right are clear enough for any reasonable official in the defendants’ position to know what the official is doing violates that right.” Id. (internal quotations and citation omitted).
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The Supreme Court has recently emphasized that the question of whether a right is “clearly established” should not be defined at a “high level of generality.” White v. Pauly, 137 S. Ct. 548, 552 (2017). While there does not need to be case law directly on point, “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. at 551 (citation omitted).
Finally, the qualified immunity analysis “is an objective one; motive is irrelevant.” Champion v. Outlook Nashville, 380 F.3d 893, 904 (6th Cir. 2004).
On the facts of this case, qualified immunity is a close call. Neither party points to a Supreme Court or Sixth Circuit decision directly on point that would have alerted a reasonable officer in 2014 to the unlawfulness of his actions under these circumstances.
In New Jersey v. T.L.O., 469 U.S. 325 (1985), which involved searches of children in a school setting, the Court recognized that public school students’ rights under the Fourth Amendment are not as broad as those of the public and adopted a “reasonableness” test based on all the circumstances. Id. at 341-42. Courts have applied the “relaxed” T.L.O. standard to unlawful seizure claims in the school setting. Hoskins v. Cumberland Cnty. Bd. of Educ., No. 2:13-cv-15, 2014 WL 7238621, at *9 (M.D. Tenn. Dec. 17, 2014) (listing cases). See also S.E. v. Grant Cnty. Bd. of Educ., 544
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F.3d 633, 640-41 (6th Cir. 2008) (applying T.L.O. line of authority to seizure of student by assistant principal).
At a general level, one might argue that T.L.O. put police officers on notice that they would be subject to a reasonableness standard in determining whether their search or seizure of a school child passes constitutional muster. However, the Sixth Circuit has rejected such an application of T.L.O. in the qualified immunity context, reasoning that T.L.O. merely established basic principles of law without guidance as to their application in specific situations. Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 607 (6th Cir. 2005).
In Beard, high school students who were strip searched sued school officials and a police officer alleging Fourth Amendment violations. The Sixth Circuit held that the searches did violate the students’ constitutional rights, but that the defendants were entitled to qualified immunity because, notwithstanding the general principles set forth in T.L.O., the lack of factual context similar to the case before the Court meant that T.L.O. could not have “truly compelled” defendants to realize that they were acting illegally in conducting the strip searches. Id.
Similarly here, the broad principles set forth in T.L.O. would not have alerted Sumner to the unlawfulness of his actions under the specific facts of this case.
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As Beard observed, without Supreme Court authority on point
at a sufficiently specific level, one must then look at in-Circuit
authority, and “finally to decisions of other circuits.” Id. at
606-07 (citation omitted).
The parties cite no Sixth Circuit authority that would have
alerted Sumner to the illegality of his actions. However, at least
two other Circuits had denied qualified immunity to police officers
who handcuffed young school children. See C.B. v. City of Sonora,
769 F.3d 1005, 1039-40 (9th Cir. 2014) (officer who handcuffed
calm, compliant but nonresponsive 11-year-old child not entitled
to qualified immunity); Gray v. Bostic, 458 F.3d 1295, 1306 (11th
Cir. 2006) (handcuffing of nine-year-old student who had
threatened to hit coach was unlawful seizure; incident was over,
student posed no threat, and handcuffing by sheriff’s deputy was
attempt to punish student and change her behavior in the future).
Under the Sixth Circuit’s teaching in Beard, however, these
out-of-circuit cases are insufficient to satisfy the “clearly
established” requirement:
These cases were not sufficient to establish the unlawfulness of the defendants’ actions in this case. In the “rare instance” where it is proper to seek guidance from outside this circuit, the law will only be clearly established where the cases from outside the circuit “both point unmistakably to the unconstitutionality of the conduct complained of and [are] so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting.” . . . The cases dealing with school strip searches from courts in other circuits are not “clearly
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foreshadowed by applicable direct authority,” and therefore do not clearly establish that the searches in this case were unreasonable. Beard, 402 F.3d at 608 (citation omitted) (emphasis added). Here, the two out-of-circuit cases cited above both rely on T.L.O., which Beard held is insufficiently generalized to constitute “applicable direct authority.” Therefore, plaintiffs have not shown that it was “clearly established” in 2014 that Sumner’s handcuffing of S.R. and L.G. was unconstitutional, and Sumner is thus entitled to qualified immunity.
D. Municipal (County) Liability “To prevail in a § 1983 suit against a municipality, a plaintiff must show that the alleged [constitutional] violation occurred because of a municipal policy, practice, or custom.” Brown v. Chapman, 814 F.3d 447, 462 (6th Cir. 2016) (citing Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978)). Municipal liability will also lie where an official with final decision making authority ratified illegal actions. D’Ambrosio v. Marino, 747 F.3d 378, 386 (6th Cir. 2014) (citation omitted). The record here establishes municipal liability against Kenton County as a matter of law. Kenneth Kippenbrock was the SRO Coordinator for the Kenton County Sheriff’s Office at the time of these events. (Kippenbrock Depo. 31, 44-45). He testified that Sumner’s handcuffing of S.R.
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and L.G. was consistent with the policy of the sheriff’s department. (Kippenbrock Depo. 76). He also testified that since the SRO program was initiated, more than ten children have been handcuffed by SROs in schools, and it is possible that the number is more than twenty-five. (Kippenbrock Depo. 153-54).
Kenton County Sheriff Korzenborn also testified that Sumner acted in accordance with all applicable Kenton County policies in handcuffing S.R. and L.G. He has never asked Sumner whether Sumner has ever handcuffed other elementary children in the district, and he is not interested in knowing how often his deputies handcuff school children. (Korzenborn Depo. 77-79, 89). Handcuffing children above their elbows behind their back is acceptable practice by his deputies. (Korzenborn Depo. 84).
Korzenborn also testified that the Kentucky Administrative Regulations do not apply to his deputies, and that his employees who are school resource officers perform their duties like any other law enforcement officers. (Korzenborn Depo. 35-36) (“A school resource officer is a law enforcement officer, period.”). Korzenborn further testified that he was not familiar with the Kentucky Administrative Regulations regarding the use of mechanical restraints in schools. (Korzenborn Depo. 53).
Sumner testified that he was told by his supervisors at the Kenton County Sheriff’s Office that they stood by him in the way he handcuffed S.R. and L.G. (Sumner Depo. 183-84).
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Korzenborn has not implemented any changes in the training of his SROs since these incidents. (Korzenborn Depo. 92).
Given this undisputed testimony, Kenton County is liable as a matter of law for Sumner’s unlawful handcuffing of S.R. and L.J.
C. Disability Discrimination Title II of the Americans with Disabilities Act provides that “no qualified individual with a disability shall, by reason of such disability, be exclude from participation in or denied the benefits of the services, programs, or activities of the public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The ADA requires that the challenged discrimination to occur “because of” disability, “which is another way of saying that the plaintiff must establish a but-for relationship between the protested act and the individual’s disability.” Gohl v. Livonia Public Schs. Sch. Dist., 836 F.3d 672, 682 (6th Cir. 2016) (citation omitted). The ADA “requires the plaintiff to present sufficiently ‘significant’ evidence of animus toward the disabled that is a but-for cause of the discriminatory behavior.” Id. Plaintiffs allege that Kenton County violated the ADA through its practice of imposing unnecessary physical restraints on schoolchildren with disabilities and by failing to provide “reasonable modifications” to S.R. and L.G. (Compl. ¶¶ 65-78).
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The record does not contain evidence that raises any triable issue of fact on plaintiffs’ ADA claims.
Principal Collins testified that the school does not give SROs such as Sumner information about students’ mental or emotional problems or about their medications or diagnoses. (Collins Depo. 141-43). Although Sumner knew that L.G. took medication for mental health issues, (Collins Depo. 269-70), there is no evidence that Sumner believed her to have a “disability.”
As to S.R., while he had been diagnosed with ADHD and PTSD, the record is undisputed that that information had not been communicated to the school or Sumner. Moreover, the day of the handcuffing was Sumner’s first encounter with S.R.
S.R.’s mother testified that no one has ever told her that S.R.’s behavior on the day in question was due to a disability. (Ramirez Depo. 132).
Furthermore, there is no evidence that either S.R. or L.J.’s mother requested modifications as to any contact with Sumner or the Kenton County Sheriff.
Given this evidence, no reasonable jury could find that Sumner’s handcuffing of S.R. and L.J. would not have occurred “but for” their alleged disabilities, as opposed to their behavior on the days in question. Kenton County is thus entitled to summary judgment on the ADA claims.
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Therefore, having reviewed this matter, and the Court being sufficiently advised,
IT IS ORDERED that: (1) Defendants’ motions for summary judgment (Docs. 151,
152) be, and are hereby, GRANTED IN PART AND DENIED IN PART. Specifically, the motions are GRANTED as to Sumner’s defense of qualified immunity and as to plaintiffs’ ADA claims. The motions are DENIED, however, as to plaintiffs’ claims of unlawful seizure and excessive force and municipal liability against Kenton County for those violations; (2) Plaintiffs’ motion for summary judgment (Doc. 153) be, and is hereby, GRANTED IN PART AND DENIED IN PART. Specifically, the motion is GRANTED as to plaintiffs’ claims of unlawful seizure and excessive force and municipal liability against Kenton County for those violations. The motion is DENIED as to plaintiffs’ ADA claims; and (3) The parties shall confer and agree on three (3) dates between October 23 and November 17, 2017, when the Court can schedule a status conference to discuss setting this matter for a trial on damages. The parties shall file a status report on or before October 20, 2017, advising the Court of these dates.
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This 11th day of October, 2017.
33

 
 Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 1 of 28
CLOSED,PROTO,REFERA,REFERS
U.S. District Court Eastern District of Kentucky (Covington) CIVIL DOCKET FOR CASE #: 2:15−cv−00143−WOB−CJS

S.R. et al v. Kenton County Sheriff's Office et al Assigned to: Judge William O. Bertelsman Referred to: Magistrate Judge Candace J. Smith
Magistrate Judge J. Gregory Wehrman (Settlement) Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 08/03/2015 Date Terminated: 11/01/2018 Jury Demand: Both Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

S.R. a minor, by and through his next friend and mother, T.R. Next Friend T.R.

represented by Claudia Center American Civil Liberties Union Foundation − CA 39 Drumm Street San Francisco, CA 94111 415−343−0762 Fax: 415−395−0950 Email: ccenter@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

R. Kenyon Meyer Dinsmore & Shohl, LLP − Louisville KY 101 S. Fifth Street Suite 2500 Louisville, KY 40202 502−540−2325 Fax: 502−585−2207 Email: kenyon.meyer@dinslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rickell L. Howard Children's Law Center, Inc. 1002 Russell Street Covington, KY 41011 859−431−3313 Fax: 859−655−7553 Email: rhoward@childrenslawky.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Susan Mizner American Civil Liberties Union Foundation − CA 39 Drumm Street San Francisco, CA 94111 415−343−0781 Fax: 415−395−0950 Email: smizner@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

William Ellis Sharp Blackburn, Domene & Burchett PLLC 614 W. Main Street Suite 3000 Louisville, KY 40202

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 2 of 28

502−584−1600 Email: wsharp@bdblawky.com TERMINATED: 10/26/2017 LEAD ATTORNEY

Amy Denise Cubbage Ackerson & Yann, PLLC 401 W. Main Street One Riverfront Plaza, Suite 1200 Louisville, KY 40202 502−583−7400 Fax: 502−589−4997 Email: acubbage@ackersonlegal.com ATTORNEY TO BE NOTICED

Heather L. Gatnarek ACLU of Kentucky 315 Guthrie Street Suite 300 Louisville, KY 40202 502−581−9746 Fax: 844−274−0570 Email: heather@aclu−ky.org ATTORNEY TO BE NOTICED

Plaintiff
L.G. a minor, by and through her next friend and mother, L.J. Next Friend L.J.

represented by Claudia Center (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Kenyon Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rickell L. Howard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Susan Mizner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

William Ellis Sharp (See above for address) TERMINATED: 10/26/2017 LEAD ATTORNEY

Amy Denise Cubbage (See above for address) ATTORNEY TO BE NOTICED

Heather L. Gatnarek (See above for address) ATTORNEY TO BE NOTICED

V. Defendant

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 3 of 28

Kenton County Sheriff's Office

represented by Christopher Scott Nordloh Kenton County Attorney 303 Court Street Room 307 Covington, KY 41011 Email: cnordloh@kentoncoatty.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Charles Korzenborn in his official capacity as Sheriff of Kenton County

represented by Christopher Scott Nordloh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Drew Cameron Harris Kenton County Attorney 303 Court Street Room 307 Covington, KY 41011 859−491−0600 Fax: 859−491−0986 Email: dharris@kentoncoatty.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Vincent Reed Kenton County Attorney 303 Court Street Room 307 Covington, KY 41011 Email: jayvincent@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew C. Smith Ziegler & Schneider, P.S.C. 541 Buttermilk Pike Suite 500 P.O. Box 175710 Covington, KY 41017−5710 859−426−1300 Fax: 859−426−0222 Email: msmith@zslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul E. Salamanca 279 Cassidy Avenue Lexington, KY 40502 859−338−7287 Email: psalaman@uky.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin A. Sanders Ziegler & Schneider, P.S.C. 541 Buttermilk Pike Suite 500 P.O. Box 175710 Covington, KY 41017−5710 859−426−1300 Fax: 859−426−0222 Email: jasanders@zslaw.com

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 4 of 28

ATTORNEY TO BE NOTICED

Thomas C. Smith Ziegler & Schneider, P.S.C. 541 Buttermilk Pike Suite 500 P.O. Box 175710 Covington, KY 41017−5710 859−426−1300 Fax: 859−426−0222 Email: tsmith@zslaw.com ATTORNEY TO BE NOTICED

Defendant
Kevin Sumner in his individual capacity as School Resource Officer

represented by Delana S. Sanders Delana S. Sanders, PLLC 2335 Buttermilk Crossing Suite 330 Cresent Springs, KY 41017 859−341−3366 Fax: 859−655−4642 Email: dsanders@thesanderslawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin A. Sanders (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert E. Sanders The Sanders Law Firm 1017 Russell Street Covington, KY 41011 859−491−3000 Fax: 859−655−4642 Email: resanders@thesanderslawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey M. Sanders Jeffrey M. Sanders PLLC − Ft. Thomas 34 Glenway Avenue Ft. Thomas, KY 41075 859−380−6867 Email: jms@jsanderslaw.com ATTORNEY TO BE NOTICED

Defendant Kenton County, Kentucky

represented by Christopher Scott Nordloh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Drew Cameron Harris (See above for address) ATTORNEY TO BE NOTICED

Official Defendant
Kevin Sumner in his official capacity as School Resource Officer

represented by Christopher Scott Nordloh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 5 of 28

Drew Cameron Harris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Vincent Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul E. Salamanca (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/03/2015
08/03/2015 08/03/2015
08/03/2015 08/03/2015 08/03/2015 08/03/2015
08/03/2015 08/03/2015 08/03/2015 08/03/2015
08/04/2015

# Docket Text
1 COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF AND JURY DEMAND( Filing fee $400; receipt number 0643−3274997), filed by S.R., L.G.. (Attachments: # 1 Case Assignment, # 2 Civil Cover Sheet, # 3 summons−kevin sumner, # 4 summons−kenton co sheriffs office, # 5 summons−kornzenborn)(TJZ) (Entered: 08/03/2015)
2 NOTICE OF FILING EXHIBITS TO PLAINTIFF'S COMPLAINT by L.G., S.R. re 1 Complaint. (TJZ) (Entered: 08/03/2015)
3 CONVENTIONAL FILING received on behalf of S.R., et al. Exhibits A&B to complaint (2 DVDs) are filed per re 2 Notice of Filing. (MAINTAINED ON THE SHELF IN THE CLERK'S OFFICE) (TJZ) Modified to seal on 8/5/2015 per 11 Order(TJZ). (Entered: 08/03/2015)
4 MOTION Permit use of Plaintiffs' Initials by L.G., S.R. Motions referred to J. Gregory Wehrman. (Attachments: # 1 Memo in Support, # 2 Proposed Order)(TJZ) (Entered: 08/03/2015)
5 MAGISTRATE JUDGE J. GREGORY WEHRMAN chosen by random selection to handle matters that may be referred in this case.(TJZ) (Entered: 08/03/2015)
6 Summons Issued as to Kenton County Sheriff's Office, Charles Korzenborn, Kevin Sumner(in his individual capacity as School Resource Officer); Summons issued and returned to counsel via pick−up from Office of Clerk (TJZ) (Entered: 08/03/2015)
7 STANDING REFERRAL ORDER: 1) Case referred to presiding Magistrate Judge to supervise discovery and pretrial proceedings; 2) Magistrate Judge shall conduct all pretrial and status conferences, rule on non−dispositive motions. Dispositive motions and motions in limine will be ruled on by district judge; final pretrial conference and trial will be conducted by the district judge unless the parties agree to trial by Magistrate Judge, pursuant to 28 USC § 636(c). Signed by Judge William O. Bertelsman on 6/18/2010.(TJZ)cc: COR (Entered: 08/03/2015)
Conflict Check run. (TJZ) (Entered: 08/03/2015)
***MOTION SUBMITTED TO CHAMBERS of J. Gregory Wehrman for review: re 4 MOTION Permit use of Plaintiffs' Initials by L.G., S.R. (TJZ) (Entered: 08/03/2015)
8 NOTICE OF FILING by L.G., S.R. re 2 Notice of Filing Amended Notice of Filing Exhibit (Meyer, R.) (Entered: 08/03/2015)
9 MOTION for Rickell L. Howard to Appear Pro Hac Vice by L.G., S.R. ( Filing fee $95; receipt number 0643−3275933)Motions referred to J. Gregory Wehrman. (Attachments: # 1 Affidavit of Rickell Howard, # 2 Supplement Certificate of Good Standing, # 3 Proposed Order granting Pro Hac Vice Motion of Rickell Howard)(Meyer, R.) (Entered: 08/03/2015)
BAR STATUS Check completed as to Rickell L. Howard re 9 MOTION for Rickell L. Howard to Appear Pro Hac Vice by L.G., S.R. ( Filing fee $95; receipt number

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 6 of 28

08/04/2015
08/05/2015 08/05/2015 08/05/2015 08/06/2015 08/06/2015 08/13/2015 08/13/2015
08/13/2015 08/13/2015 08/13/2015 08/14/2015 08/14/2015
08/14/2015

0643−3275933). (ECO) (Entered: 08/04/2015)
10 ORDER: 1) The motion to permit Rickell Howard to appear pro hac vice on behalf of Plfs 9 is granted; 2) The motion to permit the minor Plfs and their next friends to be referred to only via their initials in documents submitted for filing with the Court 4 is granted. Signed by Magistrate Judge J. Gregory Wehrman on 8/4/2015. (ECO)cc: COR w/copy of Mandatory ECF General Order and ECF Registration form to Atty Rickell Howard at address on the docket sheet. (Entered: 08/04/2015)
11 ORDER re 3 Conventional Filing: The DVDs submitted in conjunction with the complaint [2,3] shall be sealed. Signed by Magistrate Judge J. Gregory Wehrman on 8/5/2015.(TJZ)cc: COR (Entered: 08/05/2015)
12 MOTION for Susan Mizner to Appear Pro Hac Vice by L.G., S.R. ( Filing fee $95; receipt number 0643−3277844)Motions referred to J. Gregory Wehrman. (Attachments: # 1 Affidavit of Susan Mizner, # 2 Exhibit, # 3 Proposed Order granting motion for pro hac vice)(Meyer, R.) (Entered: 08/05/2015)
13 MOTION for Claudia Center to Appear Pro Hac Vice by L.G., S.R. ( Filing fee $95; receipt number 0643−3277856)Motions referred to J. Gregory Wehrman. (Attachments: # 1 Affidavit of Claudia Center, # 2 Exhibit, # 3 Proposed Order granting Claudia Center pro hac vice motion)(Meyer, R.) (Entered: 08/05/2015)
BAR STATUS Check completed re 12 MOTION for Susan Mizner to Appear Pro Hac Vice by L.G., S.R. ( Filing fee $95; receipt number 0643−3277844), 13 MOTION for Claudia Center to Appear Pro Hac Vice by L.G., S.R. ( Filing fee $95; receipt number 0643−3277856). (TJZ) (Entered: 08/06/2015)
14 ORDER: motions to permit Susan Mizner 12 and Claudia Center 13 to Appear Pro Hac Vice on behalf of plaintiffs are each granted. Signed by Magistrate Judge J. Gregory Wehrman on 8/6/2015. (TJZ)cc: COR, Mandatory ECF Order/Registration Form to Mizner and Center via U.S. Mail (Entered: 08/06/2015)
15 NOTICE OF APPEARANCE by Charles Korzenborn. (Nordloh, Christopher) (Entered: 08/13/2015)
16 MOTION for Order Compelling a More Definite Statement and Completeness of the Record by Charles Korzenborn in his official capacity Motions referred to J. Gregory Wehrman. (Attachments: # 1 Memorandum in Support of Order, # 2 Proposed Order GRANTING CR 12 Motion)(Nordloh, Christopher) Modified text on 8/14/2015 (TJZ). (Entered: 08/13/2015)
17 NOTICE of Change of Address by Christopher Scott Nordloh (Nordloh, Christopher) (Entered: 08/13/2015)
18 STRICKEN FROM DOCKET, Incorrect Document. (Sanders, Robert) Modified on 8/14/2015 (TJZ). (Entered: 08/13/2015)
19 FIRST MOTION to Strike 1 Complaint, by Kevin Sumner(in his individual capacity as School Resource Officer) Motions referred to J. Gregory Wehrman. (Attachments: # 1 Memorandum in Support of Motion to Strike Irrelevant Allegations from Complaint, # 2 Proposed Order Granting motion to strike)(Sanders, Robert) (Entered: 08/13/2015)
20 NOTICE OF APPEARANCE by Charles Korzenborn. (Smith, Thomas) (Entered: 08/14/2015)
21 ORDER: A PRELIMINARY PRETRIAL CONFERENCE will be held in this matter on 8/18/2015 at 02:00 PM at the 5th Floor Courtroom, United States Courthouse, 35 West Fifth Street, in COVINGTON before Judge William O. Bertelsman. The following matters will be addressed: 1) pending motions ( 16 , 19 ); 2) the need for an expedited pleading schedule; 3) the need for an expedited discovery schedule; 4) discovery ddls; 5) whether any documents or exhibits may be filed under seal; and 6) such other matters as may come before the Court. Signed by Judge William O. Bertelsman on 8/14/2015.(ECO)cc: COR w/copies mailed to Claudia Center and Susan Mizner. Modified text on 8/14/2015 (ECO). (Entered: 08/14/2015)
NOTICE OF ACTION BY CLERK STRIKING A DOCUMENT FROM THE RECORD re 18 NOTICE OF APPEARANCE was an INCORRECT PDF document

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 7 of 28

08/17/2015 08/17/2015 08/17/2015 08/17/2015 08/18/2015
08/18/2015 08/18/2015 09/09/2015
09/30/2015 09/30/2015

filed as main document; Attorney shall re−file the corrected Notice of Appearance within seven (7) calendar days. *cbd* cc: COR (TJZ) (Entered: 08/14/2015)
22 NOTICE of Appearance by Justin A. Sanders on behalf of Kevin Sumner(in his individual capacity as School Resource Officer) (Sanders, Justin) (Entered: 08/17/2015)
23 MOTION for More Definite Statement by Kevin Sumner(in his individual capacity as School Resource Officer) and Compelling Completeness of the Record Motions referred to J. Gregory Wehrman. Responses due by 9/8/2015 (Attachments: # 1 Proposed Order)(Sanders, Justin) (Entered: 08/17/2015)
24 RESPONSE to Motion re 16 MOTION for Order by Charles Korzenborn in his official capacity, 23 MOTION for More Definite Statement by Kevin Sumner(in his individual capacity as School Resource Officer) and Compelling Completeness of the Record filed by L.G., S.R.. (Attachments: # 1 Proposed Order Order Denying Defendants' Motion as Moot)(Howard, Rickell) (Entered: 08/17/2015)
25 RESPONSE in Opposition re 19 FIRST MOTION to Strike 1 Complaint, by Kevin Sumner(in his individual capacity as School Resource Officer) filed by L.G., S.R.. (Attachments: # 1 Proposed Order)(Sharp, William) (Entered: 08/17/2015)
26 MINUTE ENTRY ORDER FOR PRELIMINARY PRETRIAL CONFERENCE held on 8/18/2015 before Judge William O. Bertelsman: Parties present as noted. IT IS ORDERED: 1) Def's motions for an order compelling a more definite statement and completeness of the record ( 16 , 23 ) are hereby DENIED AS MOOT; 2) Having reviewed in camera the DVD, the Court directs that the DVD be FILED UNDER SEAL; 3) Def's motion to strike 19 is DENIED, for reasons stated on the record; 4) By separate order, the Court is authorizing Def Sumner to turn over to his counsel all videos obtained from the Covington Independent Schools; 5) Defs shall file their answers or Rule 12 motions by 9/9/2015; 6) Failing dismissal of the complaint, parties shall have until 12/31/2015 to conduct discovery; 7) Any dispositive motions due 30 days following close of discovery. (PARTIES SHALL SEE ORDER FOR DETAILS). (Court Reporter JOAN AVERDICK.) Signed by William O. Bertelsman. (ECO)cc: COR w/copies mailed to Attys Claudia Center and Susan Mizner (Entered: 08/19/2015)
27 CONVENTIONAL FILING received on behalf of S.R., et al. Exhibit C ( 1 DVD) is filed per Minute Entry Order for Preliminary Pretrial Conference re 26 . (MAINTAINED ON THE SHELF IN THE CLERK'S OFFICE) (ECO) (Entered: 08/19/2015)
28 ORDER: 1) Def Sumner is hereby authorized to turn over to his attys all videos he obtained from Covington Independent Public Schools depicting Plfs or relating to the events that are the basis of the Plfs' Complaint. Signed by Judge William O. Bertelsman on 8/18/2015.(ECO)cc: COR w/copy mailed to attys Claudia Center and Susan Mizner (Entered: 08/19/2015)
29 JOINT MOTION to Dismiss for failure to state a claim by Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer), Kevin Sumner(in his individual capacity as School Resource Officer) Kevin Sumner is a Kenton County Sheriff's Deputy who performs law enforcement duties as a sworn peace officer when school personnel call the police to respond to students' criminal conduct. (Attachments: # 1 Memorandum in Support OF DISMISSAL ON BEHALF OF KENTON COUNTY AND KEVIN SUMNER, INDIVIDUALLY, # 2 Proposed Order DISMISSING THE COMPLAINT)(Nordloh, Christopher) (Entered: 09/09/2015)
30 RESPONSE in Opposition re 29 JOINT MOTION to Dismiss for failure to state a claim by Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer), Kevin Sumner(in his individual capacity as School Resource Officer) Kevin Sumner is a Kenton County Sherif and Cross Motion for Partial Judgment on the Pleadings filed by L.G., S.R.. (Attachments: # 1 Cross Motion for Partial Judgment on the Pleadings, # 2 Proposed Order, # 3 Certificate of Service)(Center, Claudia) (Entered: 09/30/2015)
31 CROSS MOTION for Judgment on the Pleadings by L.G., S.R. (duplicate of Docket Entry #30) (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3

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10/02/2015 10/07/2015 10/12/2015
10/12/2015 10/13/2015 10/19/2015
10/23/2015 10/23/2015 10/26/2015 10/27/2015 10/27/2015

Certificate of Service)(Center, Claudia) (Entered: 09/30/2015)
32 NOTICE by United States Department of Justice re 29 JOINT MOTION to Dismiss for failure to state a claim by Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer), Kevin Sumner(in his individual capacity as School Resource Officer) Kevin Sumner is a Kenton County Sherif, 1 Complaint, Statement of Interest (Wilson, Ryan) (Entered: 10/02/2015)
33 TRANSCRIPT REQUEST by Charles Korzenborn for proceedings held on August 18, 2015 before Judge WOB.. (Nordloh, Christopher) (Entered: 10/07/2015)
34 REPLY to Response to Motion re 29 JOINT MOTION to Dismiss for failure to state a claim by Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer), Kevin Sumner(in his individual capacity as School Resource Officer) Kevin Sumner is a Kenton County Sherif filed by Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer), Kevin Sumner(in his individual capacity as School Resource Officer). (Nordloh, Christopher) (Entered: 10/12/2015)
35 RESPONSE in Opposition re 31 CROSS MOTION for Judgment on the Pleadings by L.G., S.R. (duplicate of Docket Entry #30) Duplicate of Reply to Response to Motion to Dismiss 12(b)(6) filed by Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer), Kevin Sumner(in his individual capacity as School Resource Officer). (Nordloh, Christopher) (Entered: 10/12/2015)
***MOTION SUBMITTED TO CHAMBERS of William O. Bertelsman for review: re 29 JOINT MOTION to Dismiss for failure to state a claim by Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer), Kevin Sumner(in his individual capacity as School Resource Officer) Kevin Sumner is a Kenton County Sherif (TJZ) (Entered: 10/13/2015)
36 JOINT MOTION to Exclude by Kevin Sumner(in his individual capacity as School Resource Officer) Statement of Interest of the United States of America for Purposes of Consideration of Defendants' Joint Motion to Dismiss Motions referred to J. Gregory Wehrman. (Attachments: # 1 Memorandum in Support of Defendants' Joint Motion to Exclude Statement of Interest of the United States of America for Purposes of Considering Defendants' Joint Motion to Dismiss, # 2 Proposed Order)(Sanders, Robert) (Entered: 10/19/2015)
37 MOTION to Compel by L.G., S.R. Motions referred to J. Gregory Wehrman. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(Howard, Rickell) (Entered: 10/23/2015)
38 ORDER: Defendants shall respond to the motion to compel 37 no later than 10/30/2015; plaintiffs shall file a reply no later than 11/3/2015. Signed by Magistrate Judge J. Gregory Wehrman on 10/23/2015.(TJZ)cc: COR (Entered: 10/23/2015)
39 REPLY BRIEF to 31 , 35 in Support of Cross Motion for Partial Judgment on the Pleadings filed by L.G., S.R.. (Center, Claudia) (Entered: 10/26/2015)
***MOTION SUBMITTED TO CHAMBERS of William O. Bertelsman for review: re 31 CROSS MOTION for Judgment on the Pleadings by L.G., S.R. (duplicate of Docket Entry #30) (TJZ) (Entered: 10/27/2015)
40 TRANSCRIPT of Proceedings: PRELIMINARY PRETRIAL CONFERENCE held on 8/18/2015 before Judge William O. Bertelsman. Court Reporter: Joan Averdick, Telephone number (859) 291−9666. Transcript ordered by: Christopher Nordloh, Esq.. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript

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10/29/2015 10/30/2015 11/03/2015 11/03/2015 11/13/2015 11/23/2015 11/23/2015 11/24/2015 11/24/2015
11/27/2015 12/01/2015 12/08/2015 12/11/2015

Restriction. Redaction Request due 11/20/2015. Redacted Transcript Deadline set for 12/3/2015. Release of Transcript Restriction set for 1/28/2016. (Entered: 10/27/2015)
41 RESPONSE to Motion re 36 JOINT MOTION to Exclude by Kevin Sumner(in his individual capacity as School Resource Officer) Statement of Interest of the United States of America for Purposes of Consideration of Defendants' Joint Motion to Dismiss filed by United States Department of Justice. (Mazor, Marina) (Entered: 10/29/2015)
42 RESPONSE in Opposition re 37 MOTION to Compel by L.G., S.R. filed by Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer), Kevin Sumner(in his individual capacity as School Resource Officer). (Attachments: # 1 Exhibit Transcript of August Hearing)(Nordloh, Christopher) (Entered: 10/30/2015)
43 REPLY to Response to Motion re 37 MOTION to Compel by L.G., S.R. filed by L.G., S.R.. (Howard, Rickell) (Entered: 11/03/2015)
44 ORDER: Plaintiffs' motion to compel 37 is granted. The parties shall participate in Rule 26(f) conference by 11/10/2015 and shall produce their initial disclosures by 11/17/2015. Signed by Magistrate Judge J. Gregory Wehrman on 11/3/2015.(TJZ)cc: COR (Entered: 11/03/2015)
45 INITIAL DISCLOSURES for all Defendants, Jointly, by Kevin Sumner(in his individual capacity as School Resource Officer).(Sanders, Robert) (Entered: 11/13/2015)
46 ORDER: That a Formal Oral Argument Hearing, on all pending motions ( 29 , 31 , 36 ), is set for 12/18/2015 at 01:00 PM, Fifth Floor Courtroom, Federal Courthouse in Covington, Kentucky. Signed by Judge William O. Bertelsman on 11/23/2015.(ECO)cc: COR (Entered: 11/23/2015)
47 JOINT REPORT of Rule 26(f) Planning Meeting. (Sharp, William) (Entered: 11/23/2015)
48 NOTICE of Appearance by Marina Mazor on behalf of United States Department of Justice (Mazor, Marina) (Entered: 11/24/2015)
49 ORDER: 1) Fact discovery shall commence immediately and shall be completed by 3/24/16, with jt or separate status reports due the same date; 2) Plfs shall designate and provide required reports of their expert witnesses by 4/25/16; Defs shall designate their expert witnesses by 5/25/16 and shall provide required expert reports by 6/24/16. Expert discovery due by 7/25/16; 3) Dispositive motions due 8/25/16. Dates for the final pretrial conference and trial will be set, if necessary, upon the resolution of those dispositive motions; 4) All other aspects of the parties' Rule 26(f) report are adopted herein. Signed by Magistrate Judge J. Gregory Wehrman on 11/24/2015.(ECO)cc: COR (Entered: 11/24/2015)
50 NOTICE by Kevin Sumner(in his individual capacity as School Resource Officer) of Service of Subpoena Duces Tecum on Covington Independent Public Schools records custodian (Attachments: # 1 Supplement subpoena duces tecum to Covington Independent Schools, # 2 Supplement Continuation page for subpoena duces tecum)(Sanders, Robert) (Entered: 11/27/2015)
51 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 12/1/2015 before Magistrate Judge J. Gregory Wehrman: Parties present as noted. IT IS ORDERED: By 12/7/2015, counsel for Plfs shall provide opposing counsel with damage assessment numbers for all claimed damages. (Court Reporter NONE.) (ECO)cc: COR (Entered: 12/01/2015)
52 NOTICE OF FILING by Kevin Sumner(in his individual capacity as School Resource Officer) re 50 Notice, of Cancellation of Records Deposition of CIP (Attachments: # 1 Exhibit Waiver of objection to subpoena for CIPS documents)(Sanders, Robert) (Entered: 12/08/2015)
53 NOTICE by Charles Korzenborn of issuance of subpoena to command production of documents from Kenton County Circuit Court Clerk, Hon, John Middleton (Attachments: # 1 Exhibit Subpoena Issued 12−11−2015)(Nordloh, Christopher) (Entered: 12/11/2015)

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 10 of 28

12/16/2015 12/18/2015
12/22/2015 12/22/2015 12/23/2015 12/28/2015 12/29/2015 12/29/2015 12/30/2015 12/30/2015 01/04/2016 01/05/2016 01/05/2016 01/09/2016 01/27/2016 01/27/2016

54 ORDER: Parties shall be prepared to discuss J.H. v. Bernalillo Co. No. 14−2068, 2015 WL 7597462 (10th Cir. 11/27/2015) at the upcoming oral argument. Signed by Judge William O. Bertelsman on 12/16/2015.(TJZ)cc: COR (Entered: 12/16/2015)
55 MINUTE ENTRY ORDER FOR AN ORAL ARGUMENT before Judge William O. Bertelsman: 1. Defendant, Kevin Sumner's Joint Motion to Exclude Statement of Interest of the United States for purposes of consideration of Defendants' Joint Motion to Dismiss 36 is DENIED 2. Plaintiff's Cross Motion for Judgment on the Pleadings 31 is DENIED WITHOUT PREJUDICE with leave to renew the arguments at the summary judgment stage. 3. Defendants, Charles Korzenborn and Kevin Sumner's Joint Motion to Dismiss for failure to state a claim 29 is TAKEN UNDER SUBMISSION (Court Reporter Peggy Weber.) (KRB)cc: COR (Entered: 12/18/2015)
56 NOTICE by L.G., S.R. Intent to serve subpoena duces tecum on Covington Ind. Public Schools (Attachments: # 1 Exhibit Subpoena issued 12/22/15)(Sharp, William) (Entered: 12/22/2015)
57 NOTICE by L.G., S.R. Intent to serve subpoena duces tecum on Ky. Assoc. of Sch. Resource Officers (Attachments: # 1 Exhibit Subpoena issued 12/22/15)(Sharp, William) (Entered: 12/22/2015)
58 ANSWER to Interrogatories by Kevin Sumner(in his official capacity as School Resource Officer).(Sanders, Robert) (Entered: 12/23/2015)
59 MEMORANDUM OPINION & ORDER; that defendants' joint motion to dismiss 29 be, and is hereby, DENIED WITHOUT PREJUDICE to renewing their arguments on summary judgment, after discovery has been completed. Signed by Judge William O. Bertelsman on 12/28/2015.(KRB)cc: COR (Entered: 12/28/2015)
60 JOINT ANSWER to 1 Complaint, with Jury Demand by Kenton County Sheriff's Office, Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer), Kevin Sumner(in his individual capacity as School Resource Officer).(Nordloh, Christopher) (Entered: 12/29/2015)
61 SEALED MINUTE ENTRY ORDER held on 12/29/2015 before Magistrate Judge J. Gregory Wehrman: cc: COR for Pla and Defs Korzenborn and Sumner service by U.S. Mail on paper.. (Court Reporter none.) (LST) (Entered: 12/30/2015)
62 CONSENT MOTION for Order by Charles Korzenborn filed jointly by agreement with counsel for the Plaintiffs Motions referred to J. Gregory Wehrman. (Attachments: # 1 Proposed Order GRANTING in camera of state court records)(Nordloh, Christopher) (Entered: 12/30/2015)
63 ORDER; 1)The JOINT 62 Motion requesting an order granting in camera view by this Court of 3 state court confidential juvenile case records is GRANTED. Signed by Magistrate Judge J. Gregory Wehrman on 12/30/2015. (LST)cc: COR (Entered: 12/30/2015)
64 JOINT MOTION for Protective Order by L.G., S.R. Motions referred to J. Gregory Wehrman. (Attachments: # 1 Proposed Protective Order)(Center, Claudia) (Entered: 01/04/2016)
65 AGREED PROTECTIVE ORDER: See Order for details. (Parties to comply with all aspects of Protective Order). Signed by Magistrate Judge J. Gregory Wehrman on 1/5/2016.(ECO)cc: COR (Entered: 01/05/2016)
66 NOTICE OF APPEARANCE by Kevin Sumner(in his individual capacity as School Resource Officer). (Sanders, Jeffrey) (Entered: 01/05/2016)
67 NOTICE by L.G., S.R. Intent to serve supboena duces tecum on Ky. Dept. of Criminal Justice Training (Attachments: # 1 Exhibit Subpoena issued 1/9/16)(Sharp, William) (Entered: 01/09/2016)
68 NOTICE to Take Deposition of Joy Collins on 2/16/2016 9:00 am by L.G., S.R..(Sharp, William) (Entered: 01/27/2016)
69 NOTICE to Take Deposition of Sharon Craig on 2/16/2016 at 1:00 pm by L.G., S.R..(Sharp, William) (Entered: 01/27/2016)

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 11 of 28

01/27/2016 01/27/2016 01/27/2016 01/27/2016 01/27/2016 01/27/2016 01/27/2016 01/28/2016 01/28/2016 02/04/2016
02/04/2016 02/04/2016
02/04/2016 02/05/2016
02/08/2016

70 NOTICE to Take Deposition of Maranda Meyer on 2/17/2016 at 9:00 am by L.G., S.R..(Sharp, William) (Entered: 01/27/2016)
71 NOTICE to Take Deposition of Joann Jones on 2/17/16 at 1:00 pm by L.G., S.R..(Sharp, William) (Entered: 01/27/2016)
72 NOTICE to Take Deposition of Ken Kippenbrock on 2/18/16 at 9:00 am by L.G., S.R..(Sharp, William) (Entered: 01/27/2016)
73 NOTICE to Take Deposition of Michael Shipley on 2/18/2016 at 1:00 pm by L.G., S.R..(Sharp, William) (Entered: 01/27/2016)
74 NOTICE to Take Deposition of Nicholas Staples on 2/19/2016 at 9:00 am by L.G., S.R..(Sharp, William) (Entered: 01/27/2016)
75 NOTICE to Take Deposition of Ashley Miller on 2/19/2016 at 1:00 by L.G., S.R..(Sharp, William) (Entered: 01/27/2016)
76 NOTICE to Take Deposition of Caroline Lee on 2/19/2016 at 3:00 pm by L.G., S.R..(Sharp, William) (Entered: 01/27/2016)
77 CORRECTED NOTICE to Take Deposition of Joann James on 2/17/2016 at 1:00 pm by L.G., S.R..(Sharp, William) (Entered: 01/28/2016)
78 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 61 Telephone Conference, Sealed Minute Entry by Kenton County Sheriff's Office (Nordloh, Christopher) (Entered: 01/28/2016)
79 SEALED CONSENT MOTION for Order Granting in Camera Review of Ohio State Court Confidential Domestic Relations Court Records by Kenton County Sheriff's Office, Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer) filed jointly by agreement of with counsel for Plaintiffs. Motions referred to J. Gregory Wehrman. (Attachments: # 1 Proposed Order)(ECO) Modified text on 2/5/2016 (ECO). (Entered: 02/04/2016)
***MOTION SUBMITTED TO CHAMBERS of J. Gregory Wehrman for review: re 79 MOTION for Order by Kenton County Sheriff's Office, Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer), Kevin Sumner(in his individual capacity as School Resource Officer) (ECO) (Entered: 02/04/2016)
80 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 2/4/2016. before Magistrate Judge J. Gregory Wehrman: Parties present as noted. IT IS ORDERED: 1) Justin Sanders shall submit a detailed agreed order to the court as soon as practicable regarding the Court's approval of tghe parties' request to obtain Hamilton County divorce records. All such Hamilton County records, as well as the previously subpoenaed Kenton County juvenile records, shall be deemed sealed and/or subject to the extant protective order. State court records will be maintained by Clerk of Court. Clerk will notify all counsel upon receipt of subpoenaed records. (See Minute Entry Order for details). (Court Reporter NONE.) (ECO)cc: COR (Entered: 02/04/2016)
81 ORDER: The parties' joint motion 79 requesting an order granting in camera review by this Court of confidential Ohio state court domestic realtions case records is GRANTED. Signed by Magistrate Judge J. Gregory Wehrman on 2/4/2016. (ECO)cc: COR (Entered: 02/04/2016)
82 NOTICE OF MANDATORY ECF DIRECTED TO Justin Sanders, an ECF Filing User re 79 SEALED CONSENT MOTION was RECEIVED AS A PAPER PLEADING AND FILED BY THE CLERK, which is in direct violation of this court's General Orders re: Mandatory ECF. Failure to comply will result in this matter being submitted to the Chief Judge. cc: COR (ECO) (Entered: 02/05/2016)
CLERK'S NOTE: Kenton County Clerk John Middleton hand−delivered juvenile cases bearing case numbers: 04−J−01170−002, 14−J−1726−001, 14−J−01727−001 per Order entered 12/30/2015 63 . Records maintained under seal in the Clerk's office. Attorneys of record may review the records in the clerk's office, per chambers.(TJZ) (Entered: 02/08/2016)

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 12 of 28

02/26/2016 02/26/2016 03/04/2016 03/07/2016
03/10/2016 03/14/2016 03/14/2016 03/15/2016 03/15/2016
03/15/2016 03/16/2016
03/17/2016 03/17/2016 03/17/2016 03/17/2016

83 NOTICE by L.G., S.R. Intent to serve subpoena duces tecum on Ky. Dept. of Criminal Justice Training (Attachments: # 1 Exhibit Subpoena)(Sharp, William) (Entered: 02/26/2016)
84 NOTICE by L.G., S.R. Intent to serve subpoena duces tecum upon Crisis Solutions, Inc. (Attachments: # 1 Exhibit Subpoena)(Sharp, William) (Entered: 02/26/2016)
85 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 3/4/2016. before Magistrate Judge J. Gregory Wehrman: the matter is taken under submission pending the issuance of an order adjudicating the discoverability of the letter. (KRB)cc: COR (Entered: 03/04/2016)
86 MEMORANDUM ORDER: 1) The 6/10/2010 letter from the Cabinet for Health and Family Services to Kenton County Family Court Judge Mehling is discoverable. The parties also may arrange with the Clerk of Court to obtain copies of all state court records previously submitted for in camera review which the parties have agreed are discoverable. The usage of state court records in discovery shall occur subject to the extant protective order. Signed by Magistrate Judge J. Gregory Wehrman on 3/7/2016.(ECO)cc: COR (Entered: 03/07/2016)
87 NOTICE to Take Deposition of Sharon Craig on 03/21/2016 at 10:00 am by L.G., S.R..(Sharp, William) (Entered: 03/10/2016)
88 NOTICE OF FILING RESTRICTED EXHIBITS by Charles Korzenborn in support of re 65 Protective Order, Terminate Motions DVD of SR introduced as Maranda Meyer Dep Exh. 15 without objection (Nordloh, Christopher) (Entered: 03/14/2016)
89 CONVENTIONAL FILING received on behalf of Charles Korzenborn. DVD filed per re 88 Notice of Filing Restricted Exhibits. (MAINTAINED ON THE SHELF IN THE CLERK'S OFFICE) (ECO) (Entered: 03/14/2016)
90 MOTION for Leave to File by L.G., S.R. Amended Complaint Motions referred to J. Gregory Wehrman. (Attachments: # 1 Proposed Order granting motion for leave to file amended complaint, # 2 Exhibit 1 − Redlined version of Amended Complaint, # 3 Exhibit 2 − Amended Complaint)(Meyer, R.) (Entered: 03/15/2016)
91 AGREED ORDER: Plaintiffs' motion to file amended complaint 90 is granted. All defenses and objections previously raised by the defendants in their motion to dismiss the original complaint and in their answers to the complaint are preserved. The first amended complaint is deemed denied by the defendants and they need not file an answer. Signed by Magistrate Judge J. Gregory Wehrman on 3/15/2016. (TJZ)cc: COR (Entered: 03/16/2016)
92 AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF, filed by L.G., S.R., filed pursuant to 91 Order. (TJZ) (Entered: 03/16/2016)
Clerk's Note: re 92 Amended Complaint. The Clerk notes an Amended Complaint was filed; however, no summons were provided to the Clerk for issuance. If you desire summons to be issued, the forms are available on the Courts website, www.kyed.uscourts.gov. A summons may be issued by presenting the prepared summons to the Clerk for issuance on paper or by electronically filing a Notice of Filing with the prepared summons as an attachment within 7 calendar days. (TJZ) (Entered: 03/16/2016)
93 NOTICE OF FILING by L.G., S.R. re 92 Amended Complaint summons for electronic issuance (Attachments: # 1 Summons)(Meyer, R.) (Entered: 03/17/2016)
94 NOTICE OF FILING by L.G., S.R. re 93 Notice of Filing, Clerk's Note, (Attachments: # 1 Summons for issuance electronically)(Meyer, R.) (Entered: 03/17/2016)
95 MOTION for Extension of Time to Complete Discovery by L.G., S.R. Motions referred to J. Gregory Wehrman. (Attachments: # 1 Proposed Order)(Meyer, R.) (Entered: 03/17/2016)
96 Summons Issued as to Kenton County, Kentucky; Summons issued and returned to counsel electronically (TJZ) (Entered: 03/21/2016)

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 13 of 28

03/21/2016
03/22/2016 03/28/2016 03/28/2016 03/28/2016 03/28/2016 03/30/2016 04/01/2016 04/06/2016 04/06/2016 04/14/2016 04/22/2016 04/22/2016 04/28/2016

97 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 3/21/2016. before Magistrate Judge J. Gregory Wehrman: Parties present as noted. IT IS ORDRED: 1) Plfss' motion for ext of time {95] is <bgranted as unopposed. Fact discovery due by 5/23/2016, with jt. or separate status report due the same date. Plf shall designate and provide required reports of their expert witnesses on or before 6/24/2016; Defs shal designate their expert witnesses by 7/25/2016 and shall provide required reports by 8/24/2016; Expert Discovery shall conclude by 9/26/2016. Dispositive motions due 10/25/2016. All other aspects of the Court's 11/24/2015 scheduling order {49] shall stand. (Court Reporter NONE.) (ECO)cc: COR (Entered: 03/21/2016)
98 NOTICE OF FILING by Kenton County, Kentucky Notice of Intent to Serve Subpoena (Attachments: # 1 Subpoena for Documents Jean A. Deters, Psy.D.)(Nordloh, Christopher) (Entered: 03/22/2016)
99 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions by Charles Korzenborn (Attachments: # 1 Subpoena for Documents Saint Elizabeth Healthcare with Authorization signed by TR fbo SR) (Nordloh, Christopher) (Entered: 03/28/2016)
100 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions by Kenton County Sheriff's Office (Nordloh, Christopher) (Entered: 03/28/2016)
101 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions by Charles Korzenborn (Nordloh, Christopher) (Entered: 03/28/2016)
102 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions by Charles Korzenborn (Nordloh, Christopher) (Entered: 03/28/2016)
103 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions by Charles Korzenborn (Nordloh, Christopher) (Entered: 03/30/2016)
104 SUMMONS Returned Executed by L.G., S.R. via certified mail to Kenton County, Kentucky served on 3/24/2016, answer due 4/14/2016. (Meyer, R.) (Entered: 04/01/2016)
105 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions by Charles Korzenborn (Attachments: # 1 Subpoena for Documents Saint Elizabeth Healthcare with Authorization signed by LJ fbo LG) (Nordloh, Christopher) (Entered: 04/06/2016)
106 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions by Charles Korzenborn (Nordloh, Christopher) (Entered: 04/06/2016)
107 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions by Charles Korzenborn (Attachments: # 1 Exhibit Subpoena for Video Surveillance maintained by Saint Elizabeth Healthcare) (Nordloh, Christopher) (Entered: 04/14/2016)
108 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions by Charles Korzenborn (Nordloh, Christopher) (Entered: 04/22/2016)
109 SEALED CONVENTIONAL FILING received on behalf of Defendant, Charkes Korzenborn. Sealed Conventional Filing is filed per re 108 Sealed Document. (MAINTAINED ON THE SHELF IN THE CLERK'S OFFICE) (ECO) (Entered: 04/22/2016)
110 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions by Kenton County, Kentucky (Harris, Drew) (Entered: 04/28/2016)

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 14 of 28

04/29/2016 04/29/2016 05/04/2016 05/09/2016 05/09/2016 05/10/2016 05/11/2016 05/16/2016 05/23/2016 05/23/2016 05/24/2016 05/31/2016
06/06/2016
07/08/2016

111 NOTICE to Take Deposition of Kevin Sumner on May 19, 2016 10 a.m. by L.G., S.R..(Meyer, R.) (Entered: 04/29/2016)
112 NOTICE to Take Deposition of Charles Korzenborn on May 20, 2016 9:30 a.m. by L.G., S.R..(Meyer, R.) (Entered: 04/29/2016)
113 NOTICE by L.G., S.R. of Intent to Serve Subpoena for CISD Documents (Attachments: # 1 Exhibit Subpoena for Production of Records)(Meyer, R.) (Entered: 05/04/2016)
114 NOTICE to Take Deposition of Jerry Mills on May 19, 2016 at 9:30 a.m. ET by L.G., S.R..(Sharp, William) (Entered: 05/09/2016)
115 AMENDED NOTICE to Take Deposition of Kevin Sumner on May 19, 2016 at 11:30 a.m. ET by L.G., S.R..(Sharp, William) (Entered: 05/09/2016)
116 AMENDED NOTICE to Take Deposition of Charles Korzenborn on May 23,2016 at 12:00 p.m. by L.G., S.R..(Meyer, R.) (Entered: 05/10/2016)
117 CONSENT NOTICE to Take Deposition of L.J. on May 23, 2016 at 10:00 a.m. prevailing time by Charles Korzenborn.(Nordloh, Christopher) (Entered: 05/11/2016)
118 NOTICE by L.G., S.R. of Intent to Serve Subpoena on Covington Police Dept. (Attachments: # 1 Exhibit Subpoena to Covington Police Dept.)(Meyer, R.) (Entered: 05/16/2016)
119 STATUS REPORT at close of fact discovery by Kenton County Sheriff's Office, Kenton County, Kentucky, Charles Korzenborn, Kevin Sumner(in his individual capacity as School Resource Officer), Kevin Sumner(in his official capacity as School Resource Officer). (Nordloh, Christopher) (Entered: 05/23/2016)
120 STATUS REPORT on Discovery by L.G., S.R.. (Center, Claudia) (Entered: 05/23/2016)
***FILE SUBMITTED TO CHAMBERS of J. Gregory Wehrman for review: 119 Status Report, 120 Status Report (ECO) (Entered: 05/24/2016)
121 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 5/31/2016 before Magistrate Judge J. Gregory Wehrman: 1) After making any necessary redactions, defendant Sumner shall provide his file on L.J. to plaintiff's counsel no later than 6/1/2016. On or before 6/2/2016, defendant Sumners counsel shall provide plaintiffs counsel with all responsive emails which Sumners counsel does not believe are privileged and shall provide plaintiffs counsel with an appropriate privilege log for all emails which defense counsel believes are privileged. 2) The Kenton County Sheriffs Office shall provide forthwith to plaintiffs counsel responsive information regarding the incident of student handcuffing/restraint which was testified to by Ken Kippenbrock. After consultation with counsel for the Sheriffs Office, plaintiffs counsel is directed to forthwith send the letter described above to the Covington School District seeking information regarding other alleged incidents of elementary students being restrained. (Court Reporter Lisa Wiesman.) (TJZ)cc: COR (Entered: 05/31/2016)
122 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 6/6/2016. before Magistrate Judge J. Gregory Wehrman: Parties present as noted. IT IS ORDERED: 1) As it pertains to CIPS, Mary Ann Stewart will contact the principals of Covington's five elementary schools to determine the number and identity of children who have been handcuffed since January 2014; 2) Mr. Nordloh will undertake a search of the sheriff's records pertaining to Def Sumner's deposition recall of a least one other handcuffing incident involving an elementary student; 3) As it pertains to video footage of a subsequent handcuffing, Plfs may view that video (subject to protective order) at a mutally agreeable time and place with CIPS; if no agreement is reached, the video will be viewed at the U.S. Courthouse; 4) As it pertains to redactions, Defs will un−redact those identifiers as more fully discussed and on the record. (Court Reporter PEGGY WEBER.) (ECO)cc: COR Modified ct rep on 8/31/2016 (TJZ). (Entered: 06/08/2016)
123 JOINT MOTION to Compel by Kevin Sumner(in his individual capacity as School Resource Officer) FRCP 35 Examination of Plaintiffs by Allan M. Josephson, M.D.

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 15 of 28

07/08/2016
07/08/2016 07/19/2016 07/22/2016 07/25/2016 07/26/2016 07/29/2016 08/01/2016 08/18/2016 08/26/2016 08/29/2016 08/29/2016 08/31/2016

Motions referred to J. Gregory Wehrman. (Attachments: # 1 Memorandum in Support of Defendants' Joint Motion for FRCP 35 Examination by Allan M. Josephson, M.D., # 2 Exhibit 1 − LG Response to Interrogatory 15, # 3 Exhibit 2 − SR Response to Interrogatory 15, # 4 Exhibit 3 − Dr. Lichtenstein Report, # 5 Exhibit 4 − Dr. Leone Report, # 6 Exhibit 5 − Email from Christopher Nordloh, 6−27−16, # 7 Exhibit 6 − Email from Kenyon Meyer, 7−4−16, # 8 Exhibit 7 − Mandujano v Geithner, # 9 Proposed Order on Motion for FRCP 35 Examination by Allan M. Josephson, M.D.)(Sanders, Justin) Modified Text on 7/8/2016 (KRB). sealed pursuant to 125 (Entered: 07/08/2016)
124 ORDER: Plaintiffs shall respond to the motion to compel 123 , separately or jointly, no later than July 19, 2016; defendants shall file a reply no late than July 22, 2016. As with all discovery disputes, the Court strongly encourages the parties to engage in additional substantive attempts to resolve amicably the matters underlying the motion to compel. Signed by Magistrate Judge J. Gregory Wehrman on 07/08/2016.(KRB)cc: COR (Entered: 07/08/2016)
125 ORDER: Defendants' motion to compel 123 and the attachments thereto shall be sealed pending further orders of the Court. Signed by Magistrate Judge J. Gregory Wehrman on 07/08/2016.(KRB)cc: COR (Entered: 07/08/2016)
126 RESPONSE BRIEF to 123 Defendants' Joint Motion to Compel filed by L.G., S.R.. (Center, Claudia) (Entered: 07/19/2016)
127 REPLY to Response to Motion re 123 JOINT MOTION to Compel by Kevin Sumner(in his individual capacity as School Resource Officer) FRCP 35 Examination of Plaintiffs by Allan M. Josephson, M.D. filed by Kevin Sumner(in his individual capacity as School Resource Officer). (Sanders, Justin) (Entered: 07/22/2016)
***MOTION SUBMITTED TO CHAMBERS of J. Gregory Wehrman for review: re 123 JOINT MOTION to Compel by Kevin Sumner(in his individual capacity as School Resource Officer) FRCP 35 Examination of Plaintiffs by Allan M. Josephson, M.D. (ECO) (Entered: 07/25/2016)
128 MEMORANDUM ORDER: 1) Defs' motion to compel Rule 35 examination of plfs 123 is granted; (Parties shall see paragraphs 2−6 for details). Signed by Magistrate Judge J. Gregory Wehrman on 7/26/2016. (ECO)cc: COR (Entered: 07/26/2016)
129 NOTICE to Take Deposition of Robert R. Rail on August 10, 2016 at 1:00 p.m. by Kenton County Sheriff's Office, Kenton County, Kentucky, Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer). (Attachments: # 1 Subpoena Duces Tecum)(Nordloh, Christopher) (Entered: 07/29/2016)
130 AMENDED NOTICE to Take Deposition of Robert R. Rail on August 10, 2016 at 1:00 p.m. by Kenton County Sheriff's Office, Kenton County, Kentucky, Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer).(Nordloh, Christopher) (Entered: 08/01/2016)
131 CONSENT NOTICE to Take Deposition of Peter E. Leone, Ph.D. on August 24, 2016, 10:00 a.m. prevailing time by Kenton County, Kentucky. (Attachments: # 1 Subpoena Duces Tecum, # 2 Map of College Park MD camus)(Nordloh, Christopher) (Entered: 08/18/2016)
132 NOTICE to Take Deposition of Philip K. Lichtenstein, M.D. on 08/30/16, 9:00 a.m. by Kevin Sumner(in his individual capacity as School Resource Officer).(Sanders, Justin) (Entered: 08/26/2016)
Set/Reset Hearings: TELEPHONE CONFERENCE set for 8/29/2016 at 01:30 PM in COVINGTON before Magistrate Judge J. Gregory Wehrman. (TJZ) (Entered: 08/29/2016)
Set/Reset Hearings: TELEPHONE CONFERENCE set for 8/31/2016 at 01:30 PM in COVINGTON before Magistrate Judge J. Gregory Wehrman. (TJZ) (Entered: 08/29/2016)
Set/Reset Hearings: TELEPHONE CONFERENCE set for 9/1/2016 at 11:30 AM in COVINGTON before Magistrate Judge J. Gregory Wehrman. (TJZ) (Entered: 08/31/2016)

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 16 of 28

09/01/2016 09/06/2016 09/07/2016 09/09/2016
09/12/2016
09/13/2016 09/14/2016 09/14/2016

133 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 9/1/2016 before Magistrate Judge J. Gregory Wehrman:plaintiffs construed motion for production of the November 2015 videotape is denied. Counsel are also cautioned that it is improper for any party to unilaterally cancel any agreed−upon depositions. The Court expects all counsel to conduct themselves in a professional manner in all aspects of discovery (Court Reporter Joan Averdick.) (KRB)cc: COR (Entered: 09/01/2016)
134 NOTICE to Take Deposition of Allan Josephson, MD on Sept. 21, 2016 at 10 a.m. by L.G., S.R..(Meyer, R.) (Entered: 09/06/2016)
135 AMENDED NOTICE to Take Deposition of Allan Josephson, MD on Sept. 21, 2016 at 1:15 p.m. by L.G., S.R..(Meyer, R.) (Entered: 09/07/2016)
136 TRANSCRIPT of Proceedings: Telephone Conference held on May 31, 2016 before Judge J. Gregory Wehrman. Court Reporter: Lisa Reed Wiesman, Telephone number 859−291−4410. Transcript ordered by: Claudia Center, Esq. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 10/3/2016. Redacted Transcript Deadline set for 10/14/2016. Release of Transcript Restriction set for 12/12/2016. (Entered: 09/09/2016)
137 TRANSCRIPT of Proceedings: Telephonic Hearing held on 06−06−2016 before Judge Wehrman. Court Reporter: Peggy W. Weber, Telephone number 859−421−0814. Transcript ordered by: Claudia Center, Esq.. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 10/6/2016. Redacted Transcript Deadline set for 10/17/2016. Release of Transcript Restriction set for 12/15/2016. (Entered: 09/12/2016)
138 NOTICE to Take Deposition of Matthew C. Aalsma, PhD on September 22, 2016 by Kevin Sumner(in his individual capacity as School Resource Officer).(Sanders, Justin) (Entered: 09/13/2016)
139 AMENDED NOTICE to Take Deposition of Bill Eckler on Sept. 28 at 1 p.m. by L.G., S.R..(Meyer, R.) (Entered: 09/14/2016)
140 TRANSCRIPT of Proceedings: TELEPHONE CONFERENCE held on 9/1/2016 before Judge J. Gregory Wehrman. Court Reporter: Joan Averdick, Telephone number (859) 291−9666. Transcript ordered by: Claudia Center, Esq.. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 10/11/2016. Redacted Transcript Deadline set for 10/20/2016. Release of Transcript Restriction set for 12/16/2016. (Entered: 09/14/2016)

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 17 of 28

09/15/2016 09/15/2016
09/15/2016 09/16/2016 09/16/2016 09/19/2016
09/19/2016 09/21/2016 09/21/2016 10/25/2016
10/25/2016

141 NOTICE to Take Deposition of Jon Akers on 9/23/16 9:00 AM by L.G., S.R..(Howard, Rickell) (Entered: 09/15/2016)
142 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by L.G., S.R. (Attachments: # 1 Declaration of Claudia Center, # 2 Exhibit A to Center Declaration, # 3 Exhibit B to Center Declaration, # 4 Exhibit C to Center Declaration, # 5 Exhibit D to Center Declaration, # 6 Exhibit E to Center Declaration, # 7 Exhibit F to Center Declaration, # 8 Exhibit G to Center Declaration, # 9 Exhibit H to Center Declaration, # 10 Exhibit I to Center Declaration, # 11 Exhibit J to Center Declaration, # 12 Exhibit K to Center Declaration, # 13 Declaration of Rickell Howard)(Center, Claudia) (Entered: 09/15/2016)
143 MOTION for leave to Seal a Document by L.G., S.R. . (Attachments: # 1 Proposed Order)(Center, Claudia) Modified to take out referral on 9/16/2016 (LST). (Entered: 09/15/2016)
144 SEALED DOCUMENT Sealed pursuant to MOTION TO SEAL re 143 MOTION for leave to Seal a Document by L.G., S.R. by S.R. (Howard, Rickell) (Entered: 09/16/2016)
145 NOTICE by L.G., S.R. of Intent to Obtain Records via Subpoena (Attachments: # 1 Exhibit Subpoena Duces Tecum for Allan Josephson, M.D., # 2 Exhibit Attachment to Subpoena for Allan Josephson, M.D.)(Meyer, R.) (Entered: 09/16/2016)
146 RESPONSE to 142 Plaintiffs' Objection to Magistrate Judge's 9/1/2016 Ruling filed by Kenton County Sheriff's Office, Kenton County, Kentucky, Charles Korzenborn, Kevin Sumner(in his individual capacity as School Resource Officer), Kevin Sumner(in his official capacity as School Resource Officer). (Attachments: # 1 Exhibit Defense letter to counsel, # 2 Exhibit Fed and State Courts Orders unsealing confidential juvenile state court records)(Nordloh, Christopher) (Entered: 09/19/2016)
147 NOTICE to Take Deposition of Dr. Philip K. Lichtenstein on September 20, 2016, 9a.m. prevailing time by Kevin Sumner(in his individual capacity as School Resource Officer).(Sanders, Robert) (Entered: 09/19/2016)
148 NOTICE to Take Deposition of William A. Payne on 09/27/2016 1:00 p.m. by L.G., S.R..(Sharp, William) (Entered: 09/21/2016)
149 NOTICE by L.G., S.R. re 148 Notice to Take Deposition (Attachments: # 1 Exhibit subpoena for production)(Sharp, William) (Entered: 09/21/2016)
150 SEALED MOTION re 65 Protective Order, Terminate Motions by Kenton County, Kentucky. (Attachments: # 1 Memorandum in Support Def. Joint Memorandum, # 2 Exhibit Def. Ex. 1, # 3 Exhibit Def. Ex. 2, # 4 Exhibit Def. Ex. 3, # 5 Exhibit Def. Ex. 4, # 6 Exhibit Def. Ex. 5, # 7 Exhibit Def. Ex. 6, # 8 Exhibit Def. Ex. 7, # 9 Proposed Order Proposed Order Severing) (Harris, Drew) (Entered: 10/25/2016)
151 SEALED MOTION re 65 Protective Order, Terminate Motions by Kenton County Sheriff's Office, Kenton County, Kentucky, Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer). (Attachments: # 1 Memorandum in Support of Summary Judgment in favor of Kenton County, Kenton County Sheriff's Office and Deputy Kevin Sumner individually, # 2 Proposed Order Granting Summary Judgment, # 3 Exhibit Notice that S.R. moved from CIPS District, # 4 Exhibit SRO Agreement 2014−'15, # 5 Exhibit Deposition Transcript, KEN KIPPENBROCK, # 6 Exhibit Deposition Transcript, DEPUTY KEVIN SUMNER, # 7 Exhibit Deposition Transcript, SHERIFF CHARLES KORZENBORN, # 8 Exhibit Report to Sheriff dated January 22, 2015, # 9 Exhibit Deposition Transcript, MICHAEL SHIPLEY, # 10 Exhibit Deposition Transcript, ASST. PRINCIPAL MARANDA MEYER, # 11 Exhibit Deposition Transcript, NICHOLAS STAPLES, # 12 Exhibit Deposition Transcript, JOANNE JAMES, # 13 Exhibit Deposition Transcript, T.R. as NEXT FRIEND of S.R., # 14 Exhibit Deposition Transcript, MATTHEW AaLSMA, PhD, # 15 Exhibit Deposition Transcript, JON AKERS, # 16 Exhibit AFFIDAVIT, Deputy Kevin Sumner, # 17 Exhibit Deposition Transcript, PHILIP LICHTENSTEIN, MD, # 18 Exhibit Deposition Transcript, PETER LEONE, PhD, # 19 Exhibit Deposition Transcript, ROBERT RAIL, # 20 Exhibit Deposition Transcript, PRINCIPAL JOY COLLINS, # 21 Exhibit Deposition Transcript, ASST. PRINCIPAL SHARON CRAIG, # 22 Exhibit Special Ed. Committee Findings April 2015, # 23 Exhibit Allan M. Josephson, MD Report and vita, # 24 Exhibit AFFIDAVIT, Asst. Principal

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 18 of 28

10/25/2016
10/25/2016 10/25/2016

Maranda Meyer, # 25 Exhibit Northkey Letter dated January 2015, # 26 Exhibit School Safety Expert Report of JON AKERS, # 27 Exhibit Deposition Transcript, KSP DEPUTY COMMISSIONER ALEX PAYNE, # 28 Exhibit Handcuffing illustration published as the R.A.I.L. Method by Plaintiffs' Use of Force Expert ROBERT RAIL, # 29 Exhibit 704 KAR 7:160, # 30 Exhibit Kentucky Department of Education Guidance Letter dated September 13, 2016, # 31 Exhibit Excerpts from CRISIS INTERVENTION TRAINING MANUAL, # 32 Exhibit TRAINING TRANSCRIPT of Deputy Kevin Sumner, # 33 Exhibit SRO TRAINER BILL ECKLER Expert Report) (Nordloh, Christopher) (Entered: 10/25/2016)
152 SEALED MOTION re 65 Protective Order, Terminate Motions by Kevin Sumner(in his individual capacity as School Resource Officer). (Attachments: # 1 Memorandum in Support of Defendants' Joint Motion for Summary Judgment on Claims Asserted by L.G. Through Next Friend and Mother, L.J., in the Complaint and Amended Complaint, # 2 Proposed Order on Defendants' Joint Motion for Summary Judgment on Claims Asserted by L.G. Through Next Friend and Mother, L.J., # 3 Exhibit 1 − Letter from Covington Independent Public Schools re Residency of LG & SR, # 4 Exhibit 2 − SRO Agreement 2014−15, # 5 Exhibit 3 − Kenneth Kippenbrock Deposition Transcript, # 6 Exhibit 4 − Kevin Sumner Deposition Transcript, # 7 Exhibit 5 − Charles Korzenborn Deposition Transcript, # 8 Exhibit 6 − Kevin Sumner Investigative Report on L.G.,1−22−15, # 9 Exhibit 7 − Sharon Craig Deposition Transcript, # 10 Exhibit 8 − Joy Collins Deposition Transcript, # 11 Exhibit 9 − Michael Shipley Deposition Transcript, # 12 Exhibit 10 − Maranda Meyer Deposition Transcript, # 13 Exhibit 11 − NIcholas Staples Deposition Transcript, # 14 Exhibit 12 − Joann James Deposition Transcript, # 15 Exhibit 13 − LJ Deposition Transcript, # 16 Exhibit 14 − LG Behavior Detail Report − LG POD 00025, # 17 Exhibit 15 − Affidavit of Kevin Sumner, # 18 Exhibit 16 − Jerry Mills Deposition Transcript, # 19 Exhibit 17 − LG Behavior Detail Report − LG POD 00024, # 20 Exhibit 18 − Peter Leone Deposition Transcript, # 21 Exhibit 19 − LG 504 Plan, # 22 Exhibit 20 − LG Conference Summary Report, # 23 Exhibit 21 − LG Kenton Family Court Records, # 24 Exhibit 22 − Jon Akers Expert Report LG, # 25 Exhibit 23 − Matthew Aalsma Deposition Transcript, # 26 Exhibit 24 − William Alexander Payne Expert Report, # 27 Exhibit 25 − William Alexander Payne DepositionTranscript, # 28 Exhibit 26 − Robert Rail Deposition Transcript, # 29 Exhibit 27 − Robert Rail Restraint Illustration, # 30 Exhibit 28 − 704 KAR 7:160, # 31 Exhibit 29 − Letter from Ky. Commissioner of Education, # 32 Exhibit 30 − Crisis Intervention Team Training Slides, # 33 Exhibit 31 − Kevin Sumner Training Transcript, # 34 Exhibit 32 − Bill Eckler Expert Report & Vita, # 35 Exhibit 33 − Allan M. Josephson, M.D. Deposition Transcript, # 36 Exhibit 34 − Allan M. Josephson, M.D. Expert Report LG, # 37 Exhibit 35 − Phillip Lichtenstein Deposition Transcript) (Sanders, Justin) (Entered: 10/25/2016)
153 MOTION for Partial Summary Judgment by L.G., S.R. (Attachments: # 1 Memorandum in Support, # 2 Affidavit Declaration of Claudia Center, # 3 Exhibit Exhibit A, # 4 Exhibit Exhibit B, # 5 Exhibit Exhibit C, # 6 Exhibit Exhibit D, # 7 Exhibit Exhibit E, # 8 Exhibit Exhibit F, # 9 Exhibit Exhibit G, # 10 Exhibit Exhibit H, # 11 Exhibit Exhibit I, # 12 Exhibit Exhibit J, # 13 Exhibit Exhibit K, # 14 Exhibit Exhibit L, # 15 Exhibit Exhibit M, # 16 Exhibit Exhibit N, # 17 Exhibit Exhibit O, # 18 Exhibit Exhibit P, # 19 Exhibit Exhibit Q, # 20 Exhibit Exhibit R, # 21 Exhibit Exhibit S, # 22 Exhibit Exhibit T, # 23 Exhibit Exhibit U, # 24 Exhibit Exhibit V, # 25 Exhibit Exhibit W, # 26 Exhibit Exhibit X, # 27 Exhibit Exhibit Y, # 28 Exhibit Exhibit Z, # 29 Exhibit Exhibit AA, # 30 Exhibit Exhibit BB, # 31 Exhibit Exhibit CC, # 32 Exhibit Exhibit DD, # 33 Exhibit Exhibit EE, # 34 Exhibit Exhibit FF, # 35 Exhibit Exhibit GG, # 36 Exhibit Exhibit HH, # 37 Exhibit Exhibit II, # 38 Affidavit Declaration of Philip Galtizine, # 39 Proposed Order)(Center, Claudia) (Entered: 10/25/2016)
154 SEALED DOCUMENT re 153 Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, by L.G., S.R. (Attachments: # 1 Exhibit Exhibit E, # 2 Exhibit Exhibit F, # 3 Exhibit Exhibit H, # 4 Exhibit Exhibit I, # 5 Exhibit Exhibit J, # 6 Exhibit Exhibit K, # 7 Exhibit Exhibit L, # 8 Exhibit Exhibit M, # 9 Exhibit Exhibit N, # 10 Exhibit Exhibit O, # 11 Exhibit Exhibit Q, # 12 Exhibit Exhibit R, # 13 Exhibit Exhibit S, # 14 Exhibit Exhibit T, # 15 Exhibit Exhibit W, # 16 Exhibit Exhibit X, # 17 Exhibit Exhibit Y, # 18 Exhibit Exhibit Z, # 19 Exhibit Exhibit AA, # 20 Exhibit Exhibit CC, # 21 Exhibit Exhibit DD, # 22 Exhibit Exhibit EE, # 23 Exhibit Exhibit HH, # 24 Exhibit Exhibit II) (Howard, Rickell) Modified link on 10/26/2016 (TJZ).

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 19 of 28

10/25/2016 10/26/2016
10/28/2016 10/28/2016 11/01/2016
11/14/2016 11/14/2016 11/18/2016 11/18/2016
11/18/2016 11/21/2016 11/21/2016

(Entered: 10/25/2016)
156 CONVENTIONAL FILING received on behalf of Plaintiffs. Ex A,B,C Videoes are filed per re 153 MOTION for Partial Summary Judgment by L.G., S.R. . (MAINTAINED ON THE SHELF IN THE CLERK'S OFFICE) (TJZ) (Entered: 10/28/2016)
155 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions, 152 SEALED MOTION re 65 Protective Order, Terminate Motions by Kevin Sumner(in his individual capacity as School Resource Officer). by Kevin Sumner(in his individual capacity as School Resource Officer) (Attachments: # 1 Exhibit 36 to Defendants' Joint Rule 56 Motion as to LG (Dkt. No. 152) − Jon Akers Deposition Transcript) (Sanders, Justin) (Entered: 10/26/2016)
157 ORDER: Plaintiff's motion 143 to seal Exhibits H and J to Claudia Center's declaration in support of plaintiffs' objections to the Magistrate Judge's ruling of 9/1/2016 is DENIED. Signed by Judge William O. Bertelsman on 10/28/2016. (TJZ)cc: COR (Entered: 10/28/2016)
158 AFFIDAVIT in Support re 153 MOTION for Partial Summary Judgment by L.G., S.R. filed by L.G., S.R.. (Attachments: # 1 Exhibit Exhibit HH−Citation Kenton Co. Sheriff's Office, # 2 Exhibit Exhibit II−PLP Contact Log)(Center, Claudia) Modified text on 11/1/2016 (TJZ). (Entered: 10/28/2016)
NOTICE OF DOCKET MODIFICATION TO Claudia Center re 158 Affidavit in Support of Motion; Error: attachments were insufficiently described as Exhibit HH, Exhibit II.Entry by attorney; Correction: the Clerk renamed the attachments. Attachments must be adequately described. Example: Exhibit A (incorrect); Exhibit A Affidavit of John Doe (correct). No further action required by counsel. cc: COR (TJZ) (Entered: 11/01/2016)
159 NOTICE of Change of Address by Justin A. Sanders (Sanders, Justin) (Entered: 11/14/2016)
160 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions, 153 MOTION for Partial Summary Judgment by L.G., S.R. by Kevin Sumner(in his individual capacity as School Resource Officer) (Attachments: # 1 Exhibit 1 − Excerpts from Deposition of Robert R. Rail, # 2 Exhibit 2 − Handcuffing Policy) (Sanders, Justin) (Entered: 11/14/2016)
161 RESPONSE in Opposition re 150 SEALED MOTION re 65 Protective Order, Terminate Motions by Kenton County, Kentucky. filed by L.G., S.R.. (Attachments: # 1 Exhibit A − Declaration of Maria Sanchez, # 2 Proposed Order Denying Motion to Sever)(Meyer, R.) (Entered: 11/18/2016)
162 RESPONSE in Opposition re 151 SEALED MOTION re 65 Protective Order, Terminate Motions by Kenton County Sheriff's Office, Kenton County, Kentucky, Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer)., 152 SEALED MOTION re 65 Protective Order, Terminate Motions by Kevin Sumner(in his individual capacity as School Resource Officer). filed by L.G., S.R.. (Attachments: # 1 Affidavit Claudia Center's Decl. ISO of Oppn to Defs' MSJs, # 2 Exhibit Exhibit A, # 3 Exhibit B , # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit E, # 7 Exhibit Exhibit F, # 8 Exhibit G, # 9 Exhibit Exhibit H, # 10 Exhibit Exhibit I, # 11 Exhibit Exhibit J)(Center, Claudia) Modified to seal Ex B&G per Order 165 on 11/23/2016 (TJZ). (Entered: 11/18/2016)
163 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions by L.G., S.R. (Attachments: # 1 Exhibit Exhibit C Under Seal, # 2 Exhibit Exhibit E Under Seal) (Howard, Rickell) (Entered: 11/18/2016)
164 MOTION for leave to Seal a Document 162 Response in Opposition to Motion,,, by L.G., S.R. Motions referred to J. Gregory Wehrman. (Attachments: # 1 Proposed order(Center, Claudia) Modified text on 11/21/2016 (TJZ). (Entered: 11/21/2016)
***MOTION SUBMITTED TO CHAMBERS of William O. Bertelsman for review: re 164 MOTION for leave to Seal a Document 162 Response in Opposition to Motion, by L.G., S.R. (TJZ) (Entered: 11/21/2016)

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 20 of 28

11/23/2016 11/30/2016 11/30/2016 12/01/2016 12/02/2016 12/02/2016
12/02/2016 12/03/2016
12/03/2016 12/05/2016 01/04/2017

165 ORDER: Plaintiffs' Motion to seal 164 is granted. Exhibit B [162−3] and Exhibit G [162−8] to Claudia Center's Declaration shall be sealed pending further orders. Signed by Judge William O. Bertelsman on 11/23/2016. (TJZ)cc: COR (Entered: 11/23/2016)
166 REPLY to Response to Motion re 153 MOTION for Partial Summary Judgment by L.G., S.R. filed by L.G., S.R.. (Attachments: # 1 Affidavit Reply Decl of Claudia Center, # 2 Exhibit Exhibit A Under Seal)(Center, Claudia) (Entered: 11/30/2016)
167 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions by L.G., S.R. (Howard, Rickell) (Entered: 11/30/2016)
***MOTION SUBMITTED TO CHAMBERS of Judge Bertelsman for review: re 153 MOTION for Partial Summary Judgment by L.G., S.R. (AB) (Entered: 12/01/2016)
168 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions by Kenton County, Kentucky (Harris, Drew) (Entered: 12/02/2016)
169 INCORRECTLY FILED PURSUANT NOTICE 170 . SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions, 151 SEALED MOTION re 65 Protective Order, Terminate Motions by Kenton County Sheriff's Office, Kenton County, Kentucky, Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer)., 152 SEALED MOTION re 65 Protective Order, Terminate Motions by Kevin Sumner(in his individual capacity as School Resource Officer). by Kevin Sumner(in his individual capacity as School Resource Officer) (Attachments: # 1 Exhibit 1 − LG POD000025) (Sanders, Robert) Modified text removing links of incorrect filing on 12/5/2016 (AB). (Entered: 12/02/2016)
171 SEALED REPLY TO RESPONSE TO MOTION by Kenton County Sheriff's Office, Kenton County, Kentucky, Charles Korzenborn, Kevin Sumner, Kevin Sumner re 65 Protective Order, Terminate Motions, 150 SEALED MOTION re 65 Protective Order (AB) (Entered: 12/05/2016)
170 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions, 151 SEALED MOTION re 65 Protective Order, Terminate Motions by Kenton County Sheriff's Office, Kenton County, Kentucky, Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer)., 169 Sealed Document,, 152 SEALED MOTION re 65 Protective Order, Terminate Motions by Kevin Sumner(in his individual capacity as School Resource Officer). by Kevin Sumner(in his individual capacity as School Resource Officer) (Attachments: # 1 Supplement Substitute Joint Reply Brief in Support of Defendants' Motions for Summary Judgment, # 2 Exhibit 1 − LG POD000025) (Sanders, Robert) (Entered: 12/03/2016)
172 SEALED REPLY TO RESPONSE TO MOTION by Kenton County Sheriff's Office, Kenton County, Kentucky, Charles Korzenborn, Kevin Sumner, Kevin Sumner re 65 Protective Order re 151 SEALED MOTION re 65 Protective Order by Kenton County Sheriff's Office, Kenton County, Kentucky, Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer). (Attachments: # 1 Notice of Filing Corrected Reply, # 2 Exhibit 1 − LG POD000025) (AB) (Entered: 12/05/2016)
***MOTION SUBMITTED TO CHAMBERS of Judge Bertelsman for review: re 150 SEALED MOTION re 65 Protective Order, Terminate Motions by Kenton County, Kentucky., 151 SEALED MOTION re 65 Protective Order, Terminate Motions by Kenton County Sheriff's Office, Kenton County, Kentucky, Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer). (AB) (Entered: 12/05/2016)
173 NOTICE OF FILING by Kevin Sumner re 160 Sealed Document, 151 SEALED MOTION re 65 Protective Order, Terminate Motions by Kenton County Sheriff's Office, Kenton County, Kentucky, Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer)., 170 Sealed Document,,, 152 SEALED MOTION re 65 Protective Order, Terminate Motions by Kevin Sumner(in his individual capacity as School Resource Officer). Supplemental Caselaw in Support of Defendants' Joint Motions for Summary Judgment, Joint Response to Plaintiffs' Motion for Partial Summary Judgment, and Joint Reply to Plaintiffs' Response to Defendants' Motions for Summary Judgment (Attachments: # 1 Exhibit 1 − Jackson v

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 21 of 28

01/11/2017 01/20/2017 06/15/2017 06/22/2017 06/27/2017
06/27/2017
07/18/2017 07/26/2017 08/21/2017

Lubelan Opinion)(Sanders, Justin) (Entered: 01/04/2017)
174 NOTICE OF FILING by Kenton County Sheriff's Office, Kenton County, Kentucky, Charles Korzenborn, Kevin Sumner re 151 SEALED MOTION re 65 Protective Order, Terminate Motions by Kenton County Sheriff's Office, Kenton County, Kentucky, Charles Korzenborn, Kevin Sumner(in his official capacity as School Resource Officer)., 152 SEALED MOTION re 65 Protective Order, Terminate Motions by Kevin Sumner(in his individual capacity as School Resource Officer). Supplemental SCOTUS authority (2017) (Attachments: # 1 Supplement PER CURIAM Opinion White v. Pauly, 580 U.S. −−− (2017))(Nordloh, Christopher) (Entered: 01/11/2017)
175 PLAINTIFFS' RESPONSE to DEFENDANTS' SUPPLEMENTAL FILINGS 173 , 174 filed by L.G., S.R.. (Center, Claudia) Modified text on 1/23/2017 (TJZ). (Entered: 01/20/2017)
***MOTION SUBMITTED TO CHAMBERS of William O. Bertelsman for review: re 152 SEALED MOTION re 65 Protective Order, Terminate Motions by Kevin Sumner(in his individual capacity as School Resource Officer). (ECO) (Entered: 06/15/2017)
176 ORDER: parties shall file complete transcripts of the depos cited in their briefs on or before 6/28/2017. Signed by Judge William O. Bertelsman on 6/22/2017.(TJZ)cc: COR (Entered: 06/22/2017)
177 AMENDED DOCUMENT/Supplementation of Complete Transcripts of Depositions cited in Plaintiffs' Motion for Partial Summary Judgment by L.G., S.R.. re: 176 Order; Amendment to 153 MOTION for Partial Summary Judgment by L.G., S.R. Deposition Transcripts. (Attachments: # 1 Supplement Deposition Transcript − Collins, # 2 Supplement Deposition Transcript − Craig, # 3 Supplement Deposition Transcript − Eckler, # 4 Supplement Deposition Transcript − James, # 5 Supplement Deposition Transcript − Josephson, # 6 Supplement Deposition Transcript − Kippenbrock, # 7 Supplement Deposition Transcript − Korzenborn, # 8 Supplement Deposition Transcript − Lichtenstein, # 9 Supplement Deposition Transcript − Leone, # 10 Supplement Deposition Transcript − LJ, # 11 Supplement Deposition Transcript − Meyer, # 12 Supplement Deposition Transcript − Mills, # 13 Supplement Deposition Transcript − Payne, # 14 Supplement Deposition Transcript − Rail, # 15 Supplement Deposition Transcript − Shipley, # 16 Supplement Deposition Transcript − Staples, # 17 Supplement Deposition Transcript − Sumner)(Center, Claudia) Modified on 6/28/2017 (ECO). Modified on 6/28/2017 (ECO). (Entered: 06/27/2017)
178 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order and 176 Order by L.G., S.R. (Attachments: # 1 Exhibit Deposition Transcript − Collins, # 2 Exhibit Deposition Transcript − Craig, # 3 Exhibit Deposition Transcript − Eckler, # 4 Exhibit Deposition Transcript − James, # 5 Exhibit Deposition Transcript − Josephson, # 6 Exhibit Deposition Transcript − Kippenbrock, # 7 Exhibit Deposition Transcript − Korzenborn, # 8 Exhibit Deposition Transcript − Leone, # 9 Exhibit Deposition Transcript − Lichtenstein, # 10 Exhibit Deposition Transcript − LJ, # 11 Exhibit Deposition Transcript − Meyer, # 12 Exhibit Deposition Transcript − Mills, # 13 Exhibit Deposition Transcript − Payne, # 14 Exhibit Deposition Transcript − Rail, # 15 Exhibit Deposition Transcript − Shipley, # 16 Exhibit Deposition Transcript − Staples, # 17 Exhibit Deposition Transcript − Sumner) (Howard, Rickell) Modified on 6/28/2017 (ECO). (Entered: 06/27/2017)
179 ORDER: ORAL ARGUMENT set for 8/22/2017 at01:00 PM in COVINGTON before Judge William O. Bertelsman on defendants' motion to sever 150 , defendants' motion for summary judgment regarding plaintiff S.R. 151 , and plaintiff L.G. 152 , and plaintiffs' motion for partial summary judgment 153 .. Signed by Judge William O. Bertelsman on 7/18/2017.(TJZ)cc: COR (Entered: 07/18/2017)
180 ORDER: That the Oral Argument Hearing currently set for 8/22/2017 at 1:00 p.m., will begin at 01:30 p.m.. Signed by Judge William O. Bertelsman on 7/26/2017.(ECO)cc: COR (Entered: 07/26/2017)
181 TRANSCRIPT of Proceedings: Oral Arguments held on 12−18−2015 before Judge Bertelsman. Court Reporter: Peggy W. Weber, Telephone number 859−421−0814. Transcript ordered by: Justin A. Sanders, Esq.. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 22 of 28

08/24/2017
09/14/2017 09/18/2017
09/18/2017 09/25/2017 09/25/2017 10/11/2017
10/16/2017 10/18/2017 10/20/2017

the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 9/14/2017. Redacted Transcript Deadline set for 9/25/2017. Release of Transcript Restriction set for 11/24/2017. (Entered: 08/21/2017)
182 MINUTE ENTRY ORDER FOR ORAL ARGUMENT HEARING held on 8/22/2017 before Judge William O. Bertelsman: Parties present as noted. IT IS ORDERED: 1) Plaintiffs shall make a written settlement demand on Defendants within 15 days of entry of this Order; 2) Defendants shall provide a written response to plaintiffs within 15 days thereafter; and 3) The parties shall file a joint status report within 10 days of the above exchange, advising the Court whether the matter has been resolved. Failing such, the Court will promptly issue a written opinion ruling on the claims herein. (Court Reporter PEGGY WEBER.) Signed by Judge William O. Bertelsman on 8/24/2017. (ECO)cc: COR (Entered: 08/24/2017)
183 ORDER: That Defendants joint motion to sever claims or, in the alternative, to file separate dispositive motions 150 be, and is hereby, DENIED IN PART AND GRANTED IN PART. The claims herein will not be severed, but defendants are granted permission nunc pro tunc to file separate dispositive motions. Signed by Judge William O. Bertelsman on 9/14/2017. (ECO)cc: COR (Entered: 09/14/2017)
184 GENERAL ORDER 17−15: 1) Effective immediately, the Clerk is DIRECTED to REASSIGN all matters referred to Magistrate Judge J. Gregory Wehrman to another Magistrate Judge accepting cases on the docket of the pending matter as set forth in General Order 15−1 except cases reassigned pursuant to General Order 17−14. 2) A copy of this Order shall be filed in each appropriate case with a copy to all counsel. Signed by Judge Karen K. Caldwell on 9/18/2017.(ECO)cc: COR (Entered: 09/19/2017)
Conflict Check run. (ECO) (Entered: 09/19/2017)
186 JOINT STATUS REPORT of the Parties by Kenton County Sheriff's Office, Kenton County, Kentucky, Kevin Sumner. (Nordloh, Christopher) (Entered: 09/25/2017)
***FILE SUBMITTED TO CHAMBERS of William O. Bertelsman for review: 186 Joint Status Report re: 182 Minute Entry Order (ECO) (Entered: 09/25/2017)
187 OPINION AND ORDER: 1) Defs' motions for summary judgment ( 151 , 152 ) are GRANTED IN PART AND DENIED IN PART. Specifically, the motions are GRANTED as to Sumner's defense of qualified immunity and as to Plfs' ADA claims. The motions are DENIED, however, as to Plfs' claims of unlawful seizure and excessive force and municipal liability against Kenton County for those violations; 2) Plfs' motion for summary judgment 153 is GRANTED IN PART AND DENIED IN PART. Specifically, the motion is GRANTED as to Plfs' claims of unlawful seizure and excessive force and municipal liability against Kenton County for those violations. The motion is DENIED as to plfs' ADA claims; and 3) The parties shall confer and agree on three (3) dates between October 23 and November 17, 2017, when the Court can schedule a status conference to discuss setting this matter for a trial on damages. The parties shall file a status report on or before October 20, 2017, advising the Court of these dates. Signed by Judge William O. Bertelsman on 10/11/2017.(ECO)cc: COR (Entered: 10/11/2017)
188 NOTICE OF APPEARANCE by L.G., S.R.. (Gatnarek, Heather) (Entered: 10/16/2017)
189 NOTICE OF APPEARANCE by L.G., S.R.. (Cubbage, Amy) (Entered: 10/18/2017)
190 JOINT STATUS REPORT Filed Pursuant to Order Entered October 11,2017, DKT 187 REQUESTING PRETRIAL CONFERENCE by Kenton County, Kentucky Charels Korzenborn, Kevin Sumner L.G., S.R., Kenton County Sheriff's office . (Nordloh,

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 23 of 28

10/20/2017 10/23/2017 10/23/2017 10/23/2017 10/26/2017
11/06/2017 11/06/2017
11/07/2017
12/15/2017
12/27/2017
12/28/2017 01/11/2018

Christopher) Modified text to add additional filers and to better describe document on 10/23/2017 (ECO). (Entered: 10/20/2017)
191 MOTION to Withdraw as Attorney by L.G., S.R. William E. Sharp Motions referred to Candace J. Smith. (Attachments: # 1 Proposed Order)(Sharp, William) (Entered: 10/20/2017)
***FILE SUBMITTED TO CHAMBERS of William O. Bertelsman for review: 190 Joint Status Report (ECO) (Entered: 10/23/2017)
***MOTION SUBMITTED TO CHAMBERS of Candace J. Smith for review: re 191 MOTION to Withdraw as Attorney by L.G., S.R. William E. Sharp (ECO) (Entered: 10/23/2017)
192 ORDER: That a STATUS CONFERENCE is set for 11/3/2017 at 01:30 PM in COVINGTON before Judge William O. Bertelsman. Signed by Judge William O. Bertelsman on 10/23/2017.(ECO)cc: COR (Entered: 10/23/2017)
193 VIRTUAL ORDER: granting 191 Motion to Withdraw as co−counsel for Plfs filed by Attorney William E. Sharp, the requirements of Jt Local Rule 83.6 having been satisfied. Following the Clerk's service of this Virtual Order, Atty Sharp may be termed on the case docket and his name removed from the case service list. Signed by Magistrate Judge Candace J. Smith on 10/25/2017. (ECO)cc: COR (Entered: 10/26/2017)
194 NOTICE of Appearance by Justin A. Sanders on behalf of Charles Korzenborn (Sanders, Justin) (Entered: 11/06/2017)
195 MINUTE ENTRY ORDER FOR STATUS CONFERENCE held on 11/3/2017 before Judge William O. Bertelsman: Parties present as noted. IT IS ORDERED: 1) A JURY TRIAL on damages be, and is hereby, set for 3/19/2018 at 10:00 AM; and 2) A FINAL PRETRIAL CONFERENCE be, and is hereby, set for 3/6/2018 at 01:00 PM. A copy of the Court's standard final pretrial order shall enter concurrently herewith. (Court Reporter LISA WIESMAN.) Signed by Judge William O. Bertelsman on 11/6/2017. (ECO)cc: COR Modified text on 11/8/2017 (ECO). (Entered: 11/07/2017)
196 FINAL PRETRIAL ORDER: The above case is hereby assigned for a Final Pretrial Conference, pursuant to Federal Rules of Civil Procedure 16(d), on Tuesday, March 6, 2018 at 1:00 p.m., in Room 505, United States Courthouse, 35 West Fifth Street, in Covington, Kentucky. The Jury Trial is scheduled to commence on Monday, March 19, 2018 at 10:00 a.m. in Courtroom A in Covington, Kentucky. (Parties to comply with paragraph I − V of Order and I−VII of the Format for Pretrial Memorandum). Signed by Judge William O. Bertelsman on 11/6/2017.(ECO)cc: COR (Entered: 11/07/2017)
197 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 12/15/2017 before Magistrate Judge Candace J. Smith: 1) The parties shall confer by 12/22/2017 to determine whether they can reach an agreement; 2) If the parties cannot reach an agreement and Defendants intend to move forward with motion filing, they shall do so by 12/29/2017; 3) If such a motion directed to updated examination of Plaintiffs is filed by Defendants, the Court by separate order will address expedited briefing or schedule the matter for further conference to address expedited briefing. Signed by Magistrate Judge Candace J. Smith on 12/15/2017. (TJZ)cc: COR (Entered: 12/19/2017)
198 SEALED MOTION re 197 Telephone Conference,, by Kenton County, Kentucky. (Attachments: # 1 Exhibit Declaration of Christopher S. Nordloh, # 2 Exhibit Lichtenstein IME Group billing statement S.R., # 3 Exhibit Lichtenstein IME Group billing statement L.G., # 4 Exhibit Allan M. Josephson, M.D. CV, # 5 Proposed Order Granting Motion for Updated IME by Allan M. Josephson, M.D.) (Nordloh, Christopher) (Entered: 12/27/2017)
199 SEALED ORDER re 198 Sealed Motion. cc: service by U.S. Mail on paper.. Signed by Magistrate Judge Candace J. Smith on 12/28/2017.(TJZ)cc: COR (Entered: 12/28/2017)
200 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions by L.G., S.R. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 24 of 28

01/11/2018 01/17/2018
01/17/2018
01/18/2018
01/18/2018 02/05/2018 02/05/2018 02/05/2018 02/06/2018
02/06/2018 02/06/2018 02/07/2018

(Howard, Rickell) (Entered: 01/11/2018)
201 SEALED RESPONSE by L.G., S.R. re 65 Protective Order, Terminate Motions, 198 SEALED MOTION re 197 Telephone Conference,, by Kenton County, Kentucky. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) Filed per QC DE 200 (ECO) (Entered: 01/11/2018)
202 "INCORRECTLY FILED AS A SEALED MOTION re Sealed Order, Set Motion and R&R Deadlines/Hearings" by Kenton County, Kentucky. (Attachments: # 1 Exhibit Lichtenstein, M.D. post discovery therapy records for S.R., # 2 Exhibit Lichtenstein, M.D. post discovery therapy records for L.G.) (Nordloh, Christopher) "Please see Docket Entry 203 for this document." Modified text on 1/18/2018 (ECO). (Entered: 01/17/2018)
203 SEALED REPLY TO RESPONSE TO MOTION by Kenton County, Kentucky re 199 Sealed Order, 198 SEALED MOTION re 197 Telephone Conference,, by Kenton County, Kentucky. (Attachments: # 1 Exhibit Lichtenstein, M.D. post discovery therapy records for S.R., # 2 Exhibit Lichtenstein, M.D. post discovery therapy records for L.G.) (Filed per QC DE 202 ).(ECO) Modified on 1/18/2018 (ECO). (Entered: 01/18/2018)
NOTICE OF DOCKET MODIFICATION TO Christopher Nordloh re 202 SEALED MOTION; Error: the reply to 198 was incorrectly filed using the event motion. Entry by attorney; Clerk modified the docket text of 202 to state, incorrectly filed. Clerk filed the reply as 203 ; In the future, contact the ECF help desk when assistance is needed to select the correct event. No further action required by counsel. cc: COR (ECO) (Entered: 01/18/2018)
***MOTION SUBMITTED TO CHAMBERS of Candace J. Smith for review: re 198 SEALED MOTION re 197 Telephone Conference,, by Kenton County, Kentucky. (ECO) (Entered: 01/18/2018)
204 Witness List by L.G., S.R.. (Attachments: # 1 Exhibit FILED UNDER SEAL)(Howard, Rickell) (Entered: 02/05/2018)
205 SEALED DOCUMENT as to 204 Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions by L.G., S.R. (Howard, Rickell) Modified to add link on 2/6/2018 (ECO). (Entered: 02/05/2018)
206 SEALED MOTION re 65 Protective Order, Terminate Motions by L.G., S.R.. (Attachments: # 1 Affidavit, # 2 Exhibit A − Josephson Depo, # 3 Exhibit B − Exhibit 44, # 4 Exhibit C − LG Report, # 5 Exhibit D − SR Report) (Howard, Rickell) (Additional attachment(s) added on 2/7/2018: # 6 Proposed Order) (ECO). (Entered: 02/05/2018)
NOTICE OF DEFICIENCY TO Rickell Howard re 206 SEALED MOTION; attorney failed to submit a proposed order as an electronic attachment to the motion. Entry by attorney. Within 7 calendar days, prepare a document entitled Notice of Filing (with a certificate of service). Using the event Sealed Document, file the Notice and attach the proposed order, and create a link to the 206 Sealed Motion. cc: COR (ECO) Modified text to correctly describe notice on 2/6/2018 (ECO). (Entered: 02/06/2018)
207 NOTICE OF FILING by Charles Korzenborn, Kevin Sumner in their respective OFFICIAL CAPACITIES (Attachments: # 1 Exhibit Defendants' Witness and Exhibit Lists)(Nordloh, Christopher) (Entered: 02/06/2018)
208 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 206 SEALED MOTION re 65 Protective Order, Terminate Motions by L.G., S.R.., 65 Protective Order, Terminate Motions by L.G., S.R. (Attachments: # 1 Proposed Order) (Howard, Rickell) (Entered: 02/06/2018)
209 MOTION to Dismiss for Lack of Jurisdiction by Charles Korzenborn, Kevin Sumner in their respective OFFICIAL CAPACITIES (Attachments: # 1 Memorandum in Support OF DISMISSING CLAIMS UNDER ELEVENTH AMEND. U.S. CONST., # 2 Affidavit COLONEL PAT MORGAN, KENTON COUNTY SHERIFF'S OFFICE, # 3 Exhibit KENTUCKY SAFE SCHOOLS ALLOCATION OF STATE FUNDS, # 4 Proposed Order GRANTING DISMISSAL FOR LACK OF JURISDICTION UNDER ELEVENTH AMEND. U.S. CONST.)(Nordloh, Christopher) (Entered: 02/07/2018)

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 25 of 28

02/09/2018 02/09/2018 02/12/2018 02/12/2018 02/12/2018
02/20/2018 02/20/2018 02/20/2018 02/20/2018 02/20/2018 02/20/2018 02/21/2018

210 "INCORRECTLY FILED MOTION" in Limine by Charles Korzenborn, Kevin Sumner Motions referred to Candace J. Smith. (Attachments: # 1 Proposed Order EXCLUDING DETERS, Psy. D. FROM TESTIFYING AT TRIAL)(Nordloh, Christopher) Modified text to add "Incorrect" on 2/12/2018 (ECO). (See DE 211 for Corrected Motion). (Entered: 02/09/2018)
211 CORRECTED MOTION in Limine by Charles Korzenborn, Kevin Sumner to exclude Jean Deters, Psy. D. from testifying at trial Motions referred to Candace J. Smith. (Nordloh, Christopher) (Additional attachment(s) added on 2/13/2018: # 1 Proposed Order) (ECO). (Entered: 02/09/2018)
NOTICE OF DEFICIENCY TO Christopher Nordloh re 211 CORRECTED MOTION in Limine; attorney failed to submit a proposed order as an electronic attachment to the motion. Entry by attorney; within 7 calendar days, prepare a document entitled Notice of Filing (with a certificate of service), file the Notice using the event Notice of Filing, attach the proposed order, and create a link to the related docket entry. cc: COR (ECO) (Entered: 02/12/2018)
212 NOTICE OF FILING by Charles Korzenborn, Kevin Sumner re 211 CORRECTED MOTION in Limine by Charles Korzenborn, Kevin Sumner to exclude Jean Deters, Psy. D. from testifying at trial (Attachments: # 1 Proposed Order)(Nordloh, Christopher) (Entered: 02/12/2018)
213 MEMORANDUM ORDER: 1) Defs' Sealed Motion for Order Granting Def Kenton County's Request for an Updated Independent Medical Examination of Plfs 198 , which the Court construes as a Motion to Compel a second Rule 35 examination of Plfs, is granted; 2) The examination of Plfs S.R. and L.G. shall be performed by Dr. Allan Josephson at the Bingham Clinic, University of Louisville School of Medicine, 200 East Chestnut Street, Louisville, KY 40202; 3) The examination of S.R. and L.G. shall be conducted separately from each other, but each child shall be accompanied by his/her mother, as next friend; 4) The examination of S.R. and L.G. shall consist of an updated clinical interview of each child and his/her parent, including but not limited to the taking of an oral history and observation by Dr. Josephson; 5) The parties shall agree upon a date, as soon as possible, for the examinations. Each examination shall begin at 10:00 a.m. and conclude no later than 2:00 p.m. that same date. Plfs may have a brief lunch break during the examination period; 6) Plfs shall either be reimbursed by Def for mileage and reasonable expenses (such as lunch) or Plfs may elect to have Def provide transportation and/or acceptable lunches for Plfs and their next friends; and 7) Def shall provide Plfs' counsel with a supplemental report regarding the updated examinations within 10 days of their occurrence. Signed by Magistrate Judge Candace J. Smith on 2/12/2018.(ECO)cc: COR (Entered: 02/12/2018)
214 SEALED MOTION re 65 Protective Order, Terminate Motions by L.G., S.R.. (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Proposed Order) (Meyer, R.) (Entered: 02/20/2018)
215 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions by L.G., S.R. (Meyer, R.) (Entered: 02/20/2018)
216 PRETRIAL MEMORANDUM by L.G., S.R.. (Attachments: # 1 Exhibit Proposed Jury Instructions)(Cubbage, Amy) (Entered: 02/20/2018)
217 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions by Charles Korzenborn (Sanders, Justin) (Entered: 02/20/2018)
218 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions by Charles Korzenborn, Kevin Sumner (Attachments: # 1 Exhibit Defendants' Proposed Jury Instructions) (Nordloh, Christopher) (Entered: 02/20/2018)
220 SEALED RESPONSE by Charles Korzenborn, Kevin Sumner re 65 Protective Order, Terminate Motions, 206 SEALED MOTION re 65 Protective Order, Terminate Motions by L.G., S.R.. (Filed pursuant to QC DE 217 ). (ECO) (Entered: 02/21/2018)
219 TRANSCRIPT of Proceedings: Oral Arguments held on 08−22−2017 before Judge William O. Bertelsman. Court Reporter: Peggy W. Weber, Telephone number 859−421−0814. Transcript ordered by: Christopher Nordloh, Esq.. IMPORTANT

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 26 of 28

02/26/2018 02/27/2018 02/27/2018 02/28/2018
02/28/2018 03/01/2018
03/02/2018 03/02/2018
03/02/2018 03/05/2018

NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 3/19/2018. Redacted Transcript Deadline set for 3/29/2018. Release of Transcript Restriction set for 5/25/2018. (Entered: 02/21/2018)
221 OBJECTIONS to 213 Magistrate Judge's Ruling Regarding Defendant Kenton County's Motion to Compel a Second Rule 35 Examination of the Plaintiffs filed by L.G., S.R.. (Center, Claudia) Modified text to better describe document on 2/27/2018 (ECO). (Entered: 02/26/2018)
222 SEALED DOCUMENT Sealed pursuant to REDACTED DOCUMENT re 65 Protective Order, Terminate Motions by Charles Korzenborn, Kevin Sumner (Nordloh, Christopher) (Entered: 02/27/2018)
223 SEALED RESPONSE by Charles Korzenborn, Kevin Sumner, re 65 Protective Order, re: 214 SEALED MOTION re 65 Protective Order, by L.G., S.R.. (Filed per QC DE 222 ). (ECO) (Entered: 02/28/2018)
224 RESPONSE in Opposition re 209 MOTION to Dismiss for Lack of Jurisdiction by Charles Korzenborn, Kevin Sumner in their respective OFFICIAL CAPACITIES filed by L.G., S.R.. (Attachments: # 1 Affidavit of Claudia Center, # 2 Exhibit A−Answers to Interrogatories, # 3 Exhibit B−Answers to Interrogatories, # 4 Exhibit C−Korzenborn Information, # 5 Exhibit D−Policy 1.01 Law Enforcement Role and Authority , # 6 Exhibit E − Filed under seal)(Center, Claudia) Modified text to better describe Exhibits A−D on 3/1/2018 (ECO). (Entered: 02/28/2018)
225 SEALED DOCUMENT as to 224 Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions by L.G., S.R. (Howard, Rickell) Modified on 3/1/2018 (ECO). (Entered: 02/28/2018)
NOTICE OF DOCKET MODIFICATION TO Claudia Center re 224 Response in Opposition to Motion; Error: attachments were insufficiently described as Exhibits A−D. Entry by attorney; Correction: the Clerk renamed the attachments A−D. Attachments must be adequately described. Example: Exhibit A (incorrect); Exhibit A Affidavit of John Doe (correct). No further action required by counsel. cc: COR (ECO) (Entered: 03/01/2018)
226 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions, 211 CORRECTED MOTION in Limine by Charles Korzenborn, Kevin Sumner to exclude Jean Deters, Psy. D. from testifying at trial by L.G., S.R. (Attachments: # 1 Exhibit Exhibit 1−− Report of Jean Deters, Psy.D.) (Cubbage, Amy) (Entered: 03/02/2018)
227 ORDER: That a TELEPHONIC CONFERENCE will be held before the undersigned on Tuesday, March 6, 2018, at 11:30 a.m. Counsel shall connect to the conference five minutes before the call is scheduled to begin. To connect to the call, dial 877−873−8017. Then, when prompted to enter the participant code, enter 7604592. Signed by Magistrate Judge Candace J. Smith on 3/2/2018.(ECO)cc: COR (Entered: 03/02/2018)
228 SEALED RESPONSE by L.G., S.R. re 65 Protective Order, Terminate Motions, 211 CORRECTED MOTION in Limine by Charles Korzenborn, Kevin Sumner to exclude Jean Deters, Psy. D. from testifying at trial (Attachments: # 1 Exhibit 1) (Filed per QC DE 226 ).(ECO) (Entered: 03/05/2018)
229 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 3/5/2018 before Magistrate Judge Candace J. Smith: Brief telephone conference held with counsel to clarify the current case status with respect to the 2/12/18 Order concerning updated examinations of the Plfs by Defs' medical expert. Counsel updated that those

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 27 of 28

03/05/2018 03/06/2018 03/06/2018 03/06/2018 03/07/2018 03/07/2018
03/07/2018 03/08/2018 03/08/2018
03/08/2018 03/12/2018

examinations have not yet taken place, pending further proceedings before the presiding District Judge Bertelsman at the upcoming pretrial conference. (Tape #KYED−COV−2−15−cv−143−WOB−CJS 20180305 100148.) (ECO)cc: COR (Entered: 03/05/2018)
230 REPLY BRIEF to 209 Plaintiffs' Response to Defendants' Motion to Dismiss for Lack of Jurisdiction under the Eleventh Amend. filed by Charles Korzenborn, Kevin Sumner. (Attachments: # 1 Exhibit Sixth Cir. Order in Hunter v. Board of Elections)(Nordloh, Christopher) (Entered: 03/05/2018)
***MOTION SUBMITTED TO CHAMBERS of William O. Bertelsman for review: re 209 MOTION to Dismiss for Lack of Jurisdiction by Charles Korzenborn, Kevin Sumner in their respective OFFICIAL CAPACITIES (ECO) (Entered: 03/06/2018)
231 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 206 SEALED MOTION re 65 Protective Order, Terminate Motions by L.G., S.R.., 65 Protective Order, Terminate Motions by L.G., S.R. (Cubbage, Amy) (Entered: 03/06/2018)
232 SEALED REPLY TO RESPONSE TO MOTION by L.G., S.R. re 65 Protective Order, re: 206 SEALED MOTION re 65 Protective Order, by L.G., S.R.. (Filed per QC DE 231 ). (ECO) (Entered: 03/07/2018)
***MOTION SUBMITTED TO CHAMBERS of William O. Bertelsman for review: re 206 SEALED MOTION re 65 Protective Order, Terminate Motions by L.G., S.R.. (ECO) (Entered: 03/07/2018)
233 MINUTE ENTRY ORDER FOR FINAL PRETRIAL CONFERENCE held on 3/6/2018 before Judge William O. Bertelsman: Parties present as noted. IT IS ORDERED: 1) the trial in this matter set for March 19, 2018 be, and is hereby, CONTINUED PENDING FURTHER ORDER OF THE COURT; 2) the parties are ORDERED to contact the chambers of United States Magistrate Judge J. Gregory Wehrman to arrange a mediation at the Courts earliest convenience; and 3) defendants motion to dismiss 209 be, and is hereby, TAKEN UNDER ADVISEMENT. (Court Reporter JOAN AVERDICK.) Signed by Judge William O. Bertelsman on 3/7/2018. (ECO)cc: COR (Entered: 03/07/2018)
234 REPLY to Response to Motion re 211 CORRECTED MOTION in Limine by Charles Korzenborn, Kevin Sumner to exclude Jean Deters, Psy. D. from testifying at trial filed by Charles Korzenborn, Kevin Sumner. (Attachments: # 1 Exhibit Plaintiffs' Rule 26 Supplemental Disclosures)(Nordloh, Christopher) (Entered: 03/07/2018)
***MOTION SUBMITTED TO CHAMBERS of William O. Bertelsman for review: re 211 CORRECTED MOTION in Limine by Charles Korzenborn, Kevin Sumner to exclude Jean Deters, Psy. D. from testifying at trial (ECO) (Entered: 03/08/2018)
235 TRANSCRIPT of Proceedings: ORAL ARGUMENT held on 3/6/2018 before Judge William O. Bertelsman. Court Reporter: Joan Averdick, Telephone number (859) 291−9666. Transcript ordered by: Christopher Nordloh, Esq. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 4/2/2018. Redacted Transcript Deadline set for 4/12/2018. Release of Transcript Restriction set for 6/11/2018. (Entered: 03/08/2018)
236 NOTICE OF APPEARANCE by Charles Korzenborn. (Sanders, Justin) (Entered: 03/08/2018)
237 ORDER: 1) SETTLEMENT CONFERENCE set for 4/13/2018 at 09:30 AM in COVINGTON before Magistrate Judge J. Gregory Wehrman. Parties are ordered to have their respective client and/or representative present in person. 2) Settlement

Case 2:15-cv-143 As of: 12/29/2018 05:07 PM EST Page 28 of 28

03/12/2018 03/13/2018 03/13/2018 03/14/2018 03/14/2018 03/14/2018
03/15/2018 04/13/2018 06/29/2018 08/21/2018 11/01/2018

evaluations due 4/6/2018. Signed by Magistrate Judge J. Gregory Wehrman on 3/12/2018.(TJZ)cc: COR (Entered: 03/12/2018)
238 MOTION for Leave to File by L.G., S.R. to file Sur−Reply Motions referred to Candace J. Smith. (Attachments: # 1 Proposed Sur−Reply, # 2 Ex A − SDOH Order, # 3 Proposed Order)(Center, Claudia) (Entered: 03/12/2018)
239 SEALED DOCUMENT Sealed pursuant to PROTECTIVE ORDER re 65 Protective Order, Terminate Motions, 214 SEALED MOTION re 65 Protective Order, Terminate Motions by L.G., S.R.., 215 Sealed Document by L.G., S.R. (Cubbage, Amy) (Entered: 03/13/2018)
240 SEALED REPLY TO RESPONSE TO MOTION by L.G., S.R. re 65 Protective Order, 214 SEALED MOTION re 65 Protective Order, by L.G., S.R.. (Filed per QC DE 239 ). (ECO) Modified underline on 3/14/2018 (ECO). (Entered: 03/14/2018)
***MOTION SUBMITTED TO CHAMBERS of William O. Bertelsman for review: re 214 SEALED MOTION re 65 Protective Order, Terminate Motions by L.G., S.R.. (ECO) (Entered: 03/14/2018)
241 ORDER: That said MOTION for Leave to File to file Sur−Reply 238 is GRANTED and the proposed Sur−Reply be filed. Signed by Judge William O. Bertelsman on 3/14/2018.(ECO)cc: COR (Entered: 03/14/2018)
242 SUR REPLY re 209 MOTION to Dismiss for Lack of Jurisdiction by Charles Korzenborn, Kevin Sumner in their respective OFFICIAL CAPACITIES, re: 238 MOTION for Leave to File by L.G., S.R. to file Sur−Reply. (Attachments: # 1 Exhibit A−Southern District of Ohio Order) (Filed per Order DE 241 ).(ECO) (Entered: 03/14/2018)
243 NOTICE by Charles Korzenborn of Objection to Plaintiffs' Motion for Leave to File Sur−Reply to Defendants' Response to Motion to Dismiss Based on Eleventh Amendment And Request for Hearing and Oral Argument (Sanders, Justin) (Entered: 03/15/2018)
244 MINUTE ENTRY ORDER FOR SETTLEMENT CONFERENCE held on 4/13/2018 before Magistrate Judge J. Gregory Wehrman: Parties present as noted. IT IS ORDERED: That on or before 5/31/2018 parties shall file a status report or otherwise notify the Court. (Court Reporter NONE.) (ECO)cc: COR (Entered: 04/16/2018)
245 SEALED TRANSCRIPT of Official Proceedings: POST−SETTLEMENT HEARING held on 4/13/2018 before Judge J. Gregory Wehrman. Court Reporter: Joan Averdick. (Entered: 06/29/2018)
246 ORDER: that all pending motions (Docs. 206 , 209 , 211 , 214 ) be, and are hereby, DENIED AS MOOT. Signed by Judge William O. Bertelsman on 8/21/2018.(ECO)cc: COR (Entered: 08/21/2018)
247 AGREED ORDER OF DISMISSAL: That the complaint and amended complaint be dismissed with prejudice, each party to pay their own costs. Signed by Judge William O. Bertelsman on 11/1/2018.(ECO)cc: COR (Entered: 11/01/2018)