Important Federal Court ruling

Important Federal Court ruling. The team at Kenny, Burns & McGill fight hard for your rights. Federal court yesterday denied the School board’s motion to dismiss the case. The case will not proceed to jury trial. Great day for the firm.

MEMORANDUM OF LAW IN OPPOSITION

TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

1. INTRODUCTION

Plaintiff’s Second Amended Complaint seeks to hold The School District of Philadelphia (“School District”) and the School Reform Commission of the School District of Philadelphia (“SRC”) liable under the Fourteenth Amendment for a sexual assault upon an intellectually disabled student perpetrated upon him by another intellectually disabled student when the two students were left alone unattended in a school restroom. Defendant moves this Honorable Court for an appropriate order granting summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.  Because a genuine issue of material fact exists, summary judgment should be denied. 

III.   ARGUMENT

Granting summary judgment is an extraordinary remedy. Mallory v. S&S Publrs., No. 14-5702, 2017 U.S. Dist. LEXIS 71078, at *6 (E.D. Pa. May 9, 2017). “[I]f there is a chance that a reasonable factfinder would not accept a moving party’s necessary propositions of fact,” summary judgment is inappropriate. El v. Se. Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007). In deciding a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Chambers ex rel. Chambers v. Sch. Dist. of Philadelphia Bd. of Educ., 587 F.3d 176, 181 (3d Cir. 2009).  The Court’s task is not to resolve disputed issues of fact, but to determine whether there exist any factual issues to be tried.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986).  Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  Fed.R.Civ.P. 56(c).  The inquiry regarding whether a genuine issue of material fact exists has been defined by the United States Supreme Court as requiring a determination whether “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”  In re Charter Defendant’ Motion for Summary Judgment in all Cases Pending in E. Dist., Misc. No. 86-0457, 1989 U.S. Dist. LEXIS 15591, *3 (E.D. Pa. May 18, 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Summary judgment motions are decided using admissible evidence.  Zenith Radio Corp. v Matsushita Elec.Indus. Co., 505 F. Supp. 1190, 1211 (E.D. Pa 1980).

The Supreme Court explained the allocation of burdens between the moving and nonmoving parties on a motion for summary judgment in Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The Court stated that “a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323.

              A.          Admissible evidence exists to establish that A.A. was sexually assaulted.

Defendant contends that because A.A. refused to answer questions about the sexual assault at his deposition,[1] no admissible evidence of the assault exists.  Rule 803(4) permits hearsay testimony regarding, “[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”  There is nothing in Rule 803(4) that limits its application to medical providers; thus, the statements made by A.A. to his mother are admissible to establish the assault.  A.A. told his mother about the assault when he was having difficulty going to the bathroom and was questioned about blood in his underwear.  A.A.’s physician also interviewed him at St. Christopher’s hospital about the assault and agreed with the findings of the resident that a sexual assault had occurred.  Exhibit E at 15.  These statements are further supported by the medical findings that A.A. was fearful, crying and experiencing pain while walking and in his gluteal cleft which he stated was a 4 out of a 10.  Id. at 2, 9.

Y.A.’s statements to the medical providers are also admissible, as Federal courts have not limited the application of F.R.E. 803(4) to statements made by patients. In United States v. Yazzie, the Ninth Circuit held that statements made by the mother of a young patient were admissible under F.R.E. 803(4). 59 F.3d 807 (9th Cir. 1995).  The statement in Yazzie was made by the young patient’s mother in reference to alleged sexual abuse by the victim’s stepfather.  Id. at 813.  The mother brought the patient to see the doctor because of suspected sexual abuse.  Id. at 809.  During the doctor’s visit, the mother wrote a note and made statements to the doctor explaining the abuse witnessed and other conduct of the stepfather.  Id. at 809-10.  The Ninth Circuit held that this statement was admissible as a statement made for the purpose of medical diagnosis, because the abuse observed and reasons for the patient’s denial were pertinent to the doctor’s treatment.  Id. at 813.  The Ninth Circuit noted, “[t]he plain language of the Rule does not limit its application to patient-declarants.” Ibid. (citing M. Graham, Federal Practice and Procedure: Evidence § 6755 at 296 (Interim Edition)).

As the statements made to his mother and his physician and his mother’s statements to the medical providers were made for the purpose of medical diagnosis or treatment, they are admissible.  When they arrived at the hospital Y.A. informed the doctors that A.A. had been sexually assaulted.  These words express concern for her son and a desire to obtain help for her son.  In addition, the reliability of the statements are supported by the clinical findings of pain, difficulty walking and a determination that A.A. had been sexually assaulted.  Before Y.A. absconded, the hospital notified the police and began testing A.A. for sexually transmitted diseases.  After the mother absconded, the police were called and Y.A. was told to come back to the hospital to obtain prophylactic medicine. 

            A.A. also told … of Women Organized Against Rape about the sexual assault. 

Counselor inquired what occurred that brought them to counseling and dad requested that client tell the story.  Client stared a[t] dad and then at counselor and appeared to be uncomfortable with dad’s request.  He then started to explain to counselor what happened while holding his head down and playing with a car toy.  Client reports that Benjamin who was in his class pulled his pants down and then told him to lay down on the floor and then put his penis I his butt.  Client reports this happened in January 2012. 

See Women Organized Against Rape, Alice Report at 2, a copy of which is attached as Exhibit C. 

The reliability of the statements are buttressed by A.A.’s testimony regarding the circumstances surrounding the assault.  While A.A. refused to testify at his deposition about the assault, he testified about the details surrounding the assault.  A.A. testified that Ms. Teacher’s aid accompanied him and other students to the bathroom.  See Deposition of A.A. at 19:14-17, a copy of which is attached as Exhibit B.  Ms. Teacher’s aid did not “come in the men’s room.”  Rather, she stood outside of the men’s room behind a closed door.  Id. at 20:9-21. 

            After leaving the bathroom, A.A. attempted to tell Ms. Teacher’s aid what happened in the bathroom, but “[s]he didn’t want to listen to me,” as “she was talking to the other teacher.”   Id. 21:5-24.  Ms. Teacher’s aid told A.A. “I’ll talk to you later,” but “she never did.”  Id. at 22:1-3.  A.A. also testified that he had trouble going to the bathroom after the incident, he stated that he had trouble going to the bathroom after the incident.  Id. at 24:10-12. 

            The testimony of A.A., Y.A. and his medical providers are sufficient to create a genuine issue of material fact that A.A. was assaulted in the bathroom. 

              B.          Plaintiff has Set Forth a Valid Cause of Action under the State-Created               Danger Theory

If the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit.

D.R. bv L.R. v. Middle Bucks Area Vo-Tech Sch.. 972 F.2d 1364, 1374 (3d Cir. 1992) (quoting Bowers v. De Vito. 686 F.2d 616, 618 (7th Cir. 1982)).  The above quote from the Seventh Circuit is often quoted by courts to explain the state-created danger doctrine.  See also Schieber v. City of Philadelphia. 320 F.3d 409, 416 (3d Cir. 2003) (finding that state actors will be found liable for constitutional violations when “the state acts in a way that makes a person substantially more vulnerable to injury from another source than he or she would have been in the absence of the state intervention.”).  The record in this matter demonstrates that Defendant, with knowledge of the risks to which they were subjecting A.A., handed him into the clutches of a sexually violent predator, fellow classmate, Benjamin.

              In Kneipp v. Tedder, the Third Circuit first formally recognized the elements of the state-created danger theory as follows:  (1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; and (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party’s crime to occur.  Kneipp v. Tedder. 95 F.3d 1199, 1208 (3d Cir. 1986) (citing Mark v. Borough of Hatboro. 51 F.3d 1137, 1152 (3d Cir. 1995)).  The Third Circuit subsequently restated that four-part state-created danger theory as follows:

• The harm ultimately caused was foreseeable and fairly direct;

• The state actor acted with a degree of culpability that shocks the conscience;

• A relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and

• The state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.

Bright v. Westmoreland Cntv., 443 F.3d 276, 281 (3d Cir. 2006).

1. The harm was foreseeable and fairly direct

The first prong of the state created danger theory requires that the harm ultimately caused was foreseeable and fairly direct. Bright, 443 F.3d at 281.  Plaintiff’s allegations of foreseeability are at least as substantial as those found in Kneipp and in LR.  In Kneipp, police officers stopped an intoxicated woman and her husband on a cold night, allowed her husband to continue on, and then left the woman to walk home by herself.  The woman was later found unconscious, suffering from hypothermia and anoxia, and sustained brain damage as a result.  See Kneipp, 95 F.3d at 1201-03.  The Third Circuit found that the woman was “more likely to fall and injure herself if left unescorted than someone who was not inebriated.”  Id. at 1208; See Wood v. Ostrander, 879 F.2d 583, 590 (9th Cir. 1989) (holding state actors liable under state created danger theory where police left female passenger stranded in a high crime area and she was subsequently raped by man as she hitchhiked her way home; noting the “inherent danger facing a woman left alone at night in an unsafe area is a matter of common sense.”).

In L.R., the Third Circuit Court of Appeals in affirming this Court ruled that:

“the causal link between Littlejohn’s release of N.R. to Regusters and the harm N.R. suffered is also far more direct than the attenuated link in Morse, (infra) . . . .  In this case, plaintiff has plead that Littlejohn undertook actions that exposed N.R. to danger by releasing her into custody of an unidentified adult who then sexually abused her.  Plaintiff also alleges that Regusters sexually assaulted N.R. within hours of her release by Littlejohn, thus concerns of attenuation are mitigated.”  L.R.

Here, the causal relationship is even stronger than that in L.R.  Here the sexual assault occurs almost simultaneously with the affirmative act of Ms. Teacher’s aid releasing A.A. into the bathroom with Benjamin.  Although Plaintiff does not contend that Ms. Teacher’s aid had specific knowledge of Benjamin’s sexual predator proclivities, Ms. Teacher’s aid testified that the special education students faced safety issues in the bathroom, thereby warranting the need to supervise them.  “Plaintiff need only aver defendant’s awareness of a risk of violence or harm”. Cassie v. City of Cape May, 619 F. Supp.2d 110, 118 (D.N.J. 2009) (citing Phillips, 515 F.3d at 238-39).  It is a matter of common sense that an intellectually disabled child faces inherent danger from being abandoned in a secluded bathroom unattended with another student.  A reasonable teacher in Ms. Teacher’s aid’s position would have foreseen an injury to A.A., a defenseless special needs student.

The harm that befell A.A. is very direct in that, but for Ms. Teacher’s aid handing A.A. off to Benjamin, Benjamin would not have otherwise had access to A.A., and that opportunity to sexually assault him. It should be noted that causation “in the ‘state-created danger’ setting will often be less than direct, as the factual setting necessarily includes an independent ‘danger’ – in some cases a third party, in others a cold night or a state of inebriation, as in Kneipp – that leads to an injury to the plaintiff.” Sciotto v. Marple Newton Sch. Dist.. 81 F.Supp.2d 559, 565 n.8 (E.D. Pa. 1999).  As such, “the proper inquiry on causation under state-created danger theory is not whether the state actor ‘pulled the trigger,’ but whether the state actor placed the plaintiff in a bullet’s likely path.” Id. In the instant case, Ms. Teacher’s aid put A.A. in the path of Benjamin’s “bullet”.

• Ms. Teacher’s aid’s permission of A.A. to be left unattended in a school restroom with Benjamin for an extended period of time evidences deliberate indifference in regard to his safety.

The second prong of the state created danger theory requires that the state actor acted with a degree of culpability that shocks the conscience. Bright, 443 F.3d at 281.  “The exact degree of wrongfulness necessary to reach the conscious-shocking level depends upon the circumstances of a particular case.”  Sanford v. Stiles. 456 F.3d 298, 306 (3d Cir. 2006) (quoting Miller v. City of Philadelphia. 174 F.3d 368, 375 (3d Cir. 1999).  Where deliberation is possible and an official is not under pressure to make hurried judgments, “deliberate indifference” to a serious risk of harm will generally shock the conscience, satisfying prong (2) above. Sanford. 456F.3d at 309.

In order to hold a state actor accountable, his or her “actions must evince a willingness to ignore a foreseeable danger or risk.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 910 (3d Cir. 1997) (emphasis added).  In some instances, “the possibility [of] indifference might exist without actual knowledge of harm when the risk is so obvious that it should be known.” Phillips, 515 F.3d at 240-41 (quoting Sanford, 456 F.3d at 306).  As discussed supra, Ms. Teacher’s aid was presented with a direct and appreciable risk or danger.  Importantly, the Third Circuit does not require “actual knowledge” to satisfy the deliberate indifference culpability standard in state-created danger claims.  See Phillips, 515 F.3d at 242 (“Our test for whether a plaintiff has alleged that an action “shocks the conscience” does not contain a requirement that the actor know his or her actions are ‘conscience shocking’”).  The state actors conduct “must evince a willingness to ignore a foreseeable danger or risk”  Morse, 132 F.3d at 910. 

Ms. Teacher’s aid was under no pressure to make a hurried judgment.  She made her decision in the course of a typical school day, yet Ms. Teacher’s aid ignored the foreseeable danger or risk posed by Benjamin before her when she permitted him and A.A. to be alone together in the bathroom.  “[T]he risk of harm in this situation is a matter of both common sense and the experience of a middle school teacher who works with mentally challenged students who may require additional protections from harm. . . the risk of danger to students using the bathroom together was an obvious risk that should have been known to Ms. [Teacher’s aid].  See ECF 18 at 8.  Ms. Teacher’s aid acted with at least as much deliberate indifference as the officers in Kneipp., who sent an intoxicated woman home alone, despite their awareness of her intoxicated and incapacitated state. Kneipp. 95 F.3d at 1201-03, as well as the school official in L.R, who handed over a defenseless five-year-old child to an unidentified stranger.  Plaintiff has adequately set forth admissible evidence sufficient to satisfy this prong. 

• Plaintiff was a foreseeable victim.

The third element of a state-created danger claim requires “a relationship between the state and the plaintiff . . . such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s action, as opposed to a member of the public in general . . . .”  Bright, 443 F.3d at 281.

As this Court previously concluded in connection with the Motion to Dismiss, Ms. Teacher’s aid, a teacher at the middle school, was supervising A.A. and Benjamin on their trip to the bathroom.  Her alleged actions put only A.A. and Benjamin at risk of harm—a sufficiently “discrete class” to satisfactorily plead this element of a state-created danger claim.  ECF 18 at 8-9, citing Bright, 443 F.3d at 281.  The admissible evidence mirrored the allegations in the Amended Complaint, this prong is satisfied.

• Ms. Teacher’s aid affirmatively used her authority to render A.A. more vulnerable to danger than had she not acted at all.

              In the Third Circuit, a state-created danger claim exists where inter alia the Plaintiff alleges and subsequently shows state authority was affirmatively exercised. Bright, 443 F.3d at 282; See Id. at 282 n.6 (stating that liability under state-created danger theory exists where “the state’s affirmative acts. . .work to plaintiffs’ detriment in terms of exposure to danger.”) (quoting D.R. by L.R. v. Middle Bucks Area Vo-Tech Sch., 972 F.2d 1364, 1374 (3d Cir. 1992) (en banc)); See also Laura Oren, Safari into the Snake Pit: The State Created Danger Doctrine. 13 Wm. & Mary Bill Rts. J. 1165, 1187 (2005) (arguing that this element in the Third Circuit’s state-created danger doctrine “may be broken down into its constituent parts: (1) Did state officials exercise authority or power; (2) in such a way that they put someone in a worse position than they would otherwise have occupied?”).

              Here, Plaintiff has established that Ms. Teacher’s aid affirmatively handed over A.A., an intellectually disabled student, to a sexually violent predator to remain in a school restroom unattended for an extended period of time.  Ms. Teacher’s aid acted as the gatekeeper for special-needs children who are unable to make reasoned decisions about their safety.  A.A. was safe until Ms. Teacher’s aid escorted A.A. and Benjamin to be in the bathroom alone.  She knew of the need to supervise them in the bathroom for their safety, yet she chose to close the door and allow them in the bathroom unsupervised. 

Defendant reiterates its argument previously made in its Motion to Dismiss and rejected by this Court that Morrow v. Balaski, 719 F.3d 160 (3d Cir. 2013), and Brown v. School District of Philadelphia, 456 Fed. Appx. 88 (3d Cir. 2011) apply to this case.  See ECF 18 at 10.  In holding that Morrow and Brown are inapplicable to this case, this Court noted that Morrow and Brown involved a failure to intervene whereas in this case, Plaintiff’s constitutional rights were violated by Ms. Teacher’s aid’s affirmative act of “escorting the two boys to the bathroom together, and allowing them to be in the bathroom together and unsupervised,” Ms. Teacher’s aid created the situation in which A.A. was exposed to harm.  Id.  But for Ms. Teacher’s aid’s affirmative act of handing over A.A., an intellectually disabled student, to a sexually violent predator to remain in a school restroom unattended for an extended period of time, – an affirmative act carried out by virtue of her authority as an employee of the School District — A.A. would not have been harmed.

Plaintiff has adequately established facts sufficient to create a genuine issue of material fact, Plaintiff has satisfies this prong of the state created danger theory.  See Also, L.R. v. School District of Philadelphia, supra.

              C.          Defendant School District of Philadelphia is Liable Under Monell and its               Progeny.

              The School District is liable for deliberately choosing not to supervise or train their employees regarding policies or acquiesced in a longstanding practice or custom of inaction in this regard to: 1) number of intellectually disabled students permitted in the bathroom with non special need students unattended, 2) prevention of student on student sexual harassment, and 3) policies regarding employee responsibility for student welfare.  The School District may still be found liable for violating A.A.’s substantive due process rights.  A municipality may be held independently liable for a substantive due process violation “even when none of its individual employees is liable.” Sanford. 456 F.3d at 314 (citing Brown v. Pa. Dep’t of Health Emergency Med. Servs. Training Inst.. 318 F.3d 473, 482 (3d Cir. 2003)).  Municipalities and other local government units are among those “persons” to which section 1983 liability applies. Monell v. New York City Dep’t of Soc. Servs.. 436 U.S. 658, 690 (1978).  

              A municipality is subject to liability where its policies, directives and customs evince a reckless indifference to the constitutional rights of the persons with whom the municipality comes into contact. See City of Canton v. Harris. 489 U.S. 378, 388 (1989).  “Where a municipality’s failure to train its employees in a relevant respect evidences a ‘deliberate indifference’ to the rights of its inhabitants . . . such a shortcoming [can] be properly thought of as a [municipality’s] ‘policy or custom’ that is actionable under § 1983.” Id. at 389.  In order to hold a municipality liable under a “failure to train” theory, a plaintiff must demonstrate that responsible policymakers were aware of a risk – and alternatives to mitigate said risk – but either “deliberately chose not to pursue these alternatives or acquiesced in a longstanding policy or custom of inaction in this regard.” Beck v City of Pittsburgh. 89 F.3d 966, 972 (1996) (quoting Simmons v. City of Philadelphia. 947 F.2d 1042,1064 (3d Cir. 1991), cert, denied. 503 U.S. 985 (1992)).

In Canton, the Supreme Court left open the possibility that a pattern of similar violations might not be necessary to show deliberate indifference where the consequences of the training or supervision failure are “highly predictable.” Id. While the “single-incident” theory of liability can only be established in a “narrow range of circumstances,” Brown, 520 U.S. at 398, the Supreme Court posed one such hypothetical set of circumstances in Canton of a city that arms its officers with firearms and requires them to arrest fleeing felons, but fails to train them on the constitutional limitations on the use of deadly force. Canton, 489 U.S. at 390 n.10; but See Connick, 131 S. Ct. at 1361 (“failure to train prosecutors in their Brady obligations” did not fall within this range of circumstances because prosecutors had legal training and ethical obligations to which to adhere).

An exception exists and a “failure to train” Monell claim may proceed absent a pattern of violations only where (1) “a violation of federal rights may be a highly predictable consequence of a failure to equip [corrections] officers with specific tools [or skills] to handle recurrent situations,” and (2) the likelihood of recurrence and predictability of the violation of a citizen’s rights “could justify a finding that [the] policymakers’ decision not to train an officer reflected ‘deliberate indifference’ to the obvious consequence of the policymakers’ choice – namely, a violation of a specific constitutional or statutory right.” Kline, 255 Fed. Appx. at 629 (quoting Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397, 409, 117 S.Ct. 1382, 1391 137 L.Ed.2d 626, 642 (1997)).

              A genuine issue of material fact exists to establish that The School District’s failure to train and supervise employees regarding policies for monitoring intellectually-disabled students in the bathroom.  In this case, Plaintiff has established that the School District provided educational services to intellectually disabled children in Philadelphia, including A.A.  The Defendant failed to train or supervise their employees, including Ms. Teacher’s aid regarding policies on taking intellectually disabled students to the bathroom.  Ms. Teacher’s aid testified that she “wasn’t trained,” on bathroom procedure policy other than to be told “never let special needs children go to the bathroom by themselves.”  Exhibit F at 20:6-17.  She allowed the two intellectually-disabled students into the bathroom with the door closed, and according to A.A. she always stood outside with the door closed. Exhibit B at 20:9-21.  The lack of training is further evinced by the fact that after the accident, Principal sent the following memorandum:

Please make sure that you continue to remain vigilant when escorting and supervising your students on the way to the bathrooms as well as while students re in the bathroom.  Please remember that you should stand at the opened door, this allows you to monitor both the students in the bathroom as well as those waiting for their turn lined up in the hallway.  Continue to constantly monitor student behavior and limiting the number of students in the restroom one particular time. 

See Exhibit G. 

Plaintiffs have also established that the deficient training or supervision caused the harm A.A. suffered; Benjamin sexually assaulting A.A. was “a direct and proximate result . . . of the conduct of all defendants.”  See Hall, 2009 WL 811503, at *5 (finding that the causation element of a Monell claim was satisfied where plaintiff asserted that “the failure to adequately train officers ‘resulted’ in the violation of his constitutional rights”).

A constitutional violation was a “highly predictable” result of defendants’ failure to train or supervise their employees.  The School District had a policy which limited the circumstances in which students were allowed to use the bathroom.  As the teacher responsible for supervising A.A. and Benjamin while they were in the bathroom, Ms. Teacher’s aid was responsible for enforcing this policy.  Despite knowing about the risk of sexual assault, Defendant did not train or supervise Ms. Teacher’s aid in enforcing the policy.  Accordingly, Plaintiff has adequately established a Monell claim and summary judgment should be denied.

IV.       CONCLUSION

For the reasons set forth above, Plaintiff respectfully request that this Court dismiss Defendants’ Motion for Summary Judgment.

                                                                                    Respectfully submitted,

KENNY, BURNS & MCGILL

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[1] A.A. suffers from “Severe cognitive impairment,” and he is not able to verbalize symptoms like a typical functional person would.  He presents with poor insight into his limited cognitive and adaptive abilities.  See Exhibit A. 

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