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.
VS.

PLAINTIFFS
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).

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 2 of 33 - Page ID#:
12047

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
jurisdiction.

is

based

on

this

Court’s

federal

question

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.
Therefore,

(Doc. 186).

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
2

 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 3 of 33 - Page ID#:
12048

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.
that

the

“SRO

shall

not

Id. at 3.
act

as

This agreement also provided
a

school

disciplinarian,

disciplining students is a school responsibility.”

as

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.”
further

provides

that

school

704 KAR 7:160 § 1(13).

personnel

may

use

a

It

“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.
3
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 4 of 33 - Page ID#:
12049

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.”
This

regulation

further

704 KAR 7:160 § 3(1).
prohibits

school

personnel

imposing “mechanical restraints” on students at any time.
7:160 § 3(2).4

from

704 KAR

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).
4
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 5 of 33 - Page ID#:
12050

pointed out the preamble, but he did not tell them that the
regulation did not apply to them.
B.

(Kippenbrock Depo. 122).

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.

approximately 4 feet tall, and he weighed 54 pounds.
20).

He

was

(Doc. 154-

S.R. had been diagnosed with attention deficit hyperactivity

disorder (ADHD) and post-traumatic stress disorder (PTSD).
151-25).

(Doc.

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.
“Individual Education Plan” (“IEP”).

He did not have an

(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).

(Meyer Depo.

S.R. was given a one-day suspension.

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
5
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 6 of 33 - Page ID#:
12051

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
6
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 7 of 33 - Page ID#:
12052

Kevin Sumner (“Sumner”), an employee of the Kenton County Sheriff’s
Office, who was a SRO in Northern Kentucky.
was at another school.

At that time, Sumner

(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).
cruiser.

Sumner drove to Latonia Elementary in his

(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.
Depo. 121; James Depo. 79).

(Meyer

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.
S.R. before this time.

(Id. at 170).

Sumner did not know

(Sumner Depo. 139).

James asked Sumner to

escort S.R. to the bathroom, and he did so.
returned

to

Meyer’s

office,

instruction to sit down.

S.R.

did

When Sumner and S.R.
not

follow

Sumner’s

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

7
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 8 of 33 - Page ID#:
12053

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.”
can be heard saying, “Oh, God.
136-37).

(Doc. 156 - video).

Ow, that hurts.”

S.R.

(Meyer Depo.

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.
8
 

She told Meyer

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 9 of 33 - Page ID#:
12054

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.
A

(Sumner Depo. 172).

month

after

the

(Doc. 154-22).

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.

9
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 10 of 33 - Page ID#:
12055

C.

The Handcuffing of L.G.

In the fall of 2014, L.G was a nine-year old girl enrolled in
the

fourth

Covington.

grade

at

John

G.

Carlisle

She weighed about 56 pounds.

Elementary

School

in

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

classroom, banging on the table and making loud noises.
Depo.

129).

Principal

Joy

Collins

(“Collins”)

in

her

(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.
Sumner Depo. 195).

(Collins Depo. 182;

L.G. then appeared to have calmed down, and

Sumner left the campus.

(Sumner Depo. 198).

However, L.G.’s behavior again escalated.
134-35).

(Collins Depo.

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
10
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 11 of 33 - Page ID#:
12056

home to wait for her mother.
50)

(Sumner Depo. 199-201; Craig Depo.

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”).
Miller contacted Collins and Craig.

(Collins Depo. 108).

(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.
11
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 12 of 33 - Page ID#:
12057

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).
an hour.

This went on for approximately

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.
27).

(Sumner Depo. 226-

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).

decided to place her in handcuffs.

Sumner then

(Sumner Depo. 234, 236).

Despite the handcuffs, L.G. did not calm down and Sumner called
for

an

ambulance

condition.

because

he

was

(Sumner Depo. 237-241).
12

 

concerned

for

her

medical

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 13 of 33 - Page ID#:
12058

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.
Depo. 126).

(Collins

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

unsupervised.

to

classrooms,

(Collins Depo. 90).

which

at

that

time

were

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.
13
 

(Sumner Depo. 260).

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 14 of 33 - Page ID#:
12059

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.
Sumner Depo. 263).

(Craig Depo. 91, 98;

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.
101-03).

(Sumner Depo. 283, 288; Craig Depo.

Her mother testified that when she arrived, L.G. was on
14

 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 15 of 33 - Page ID#:
12060

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.
173-74; Jackson Depo. 37-38).

(Collins Depo.

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

Korzenborn, in his official capacity only.6

capacities,

and

(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).
15
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 16 of 33 - Page ID#:
12061

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).

16
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 17 of 33 - Page ID#:
12062

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

possible

the

broadest

fairness to the parties.”

scope

of

action

consistent

with

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.
17
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 18 of 33 - Page ID#:
12063

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
18
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 19 of 33 - Page ID#:
12064

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).

19
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 20 of 33 - Page ID#:
12065

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”

interests at stake.

against

the

countervailing

governmental

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.
question,

then,

is

whether

their

seizures

were

The

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
20
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 21 of 33 - Page ID#:
12066

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.
21
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 22 of 33 - Page ID#:
12067

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
22
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 23 of 33 - Page ID#:
12068

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.
23
 

(Id.).

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 24 of 33 - Page ID#:
12069

The Court notes that the question of whether “traditional”
handcuffing of these children would have been unreasonable under
these

circumstances

is

not

before

expresses no opinion thereon.

the

Court,

and

the

Court

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.
Having

found

Qualified Immunity
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

(internal quotations and citation omitted).
24
 

that

right.”

Id.

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 25 of 33 - Page ID#:
12070

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.”
552 (2017).

White v. Pauly, 137 S. Ct. 548,

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

25
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 26 of 33 - Page ID#:
12071

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.

26
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 27 of 33 - Page ID#:
12072

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
27
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 28 of 33 - Page ID#:
12073

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.
Depo. 31, 44-45).

He testified that Sumner’s handcuffing of S.R.
28

 

(Kippenbrock

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 29 of 33 - Page ID#:
12074

and

L.G.

was

department.

consistent

with

the

(Kippenbrock Depo. 76).

policy

of

the

sheriff’s

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

other

has

ever

handcuffed

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

mechanical restraints in schools.

regarding

the

use

of

(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).
29

 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 30 of 33 - Page ID#:
12075

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

protested act and the individual’s disability.”
Public

Schs.

Sch.

Dist.,

(citation omitted).

836

F.3d

672,

682

between

the

Gohl v. Livonia
(6th

Cir.

2016)

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

schoolchildren

of

imposing

with

unnecessary

disabilities

and

physical
by

“reasonable modifications” to S.R. and L.G.

30
 

restraints

failing

to

on

provide

(Compl. ¶¶ 65-78).

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 31 of 33 - Page ID#:
12076

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.

31
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 32 of 33 - Page ID#:
12077

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

plaintiffs’

ADA

of

qualified

claims.

immunity

The

motions

and
are

as

to

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.
32
 

 Case: 2:15-cv-00143-WOB-CJS Doc #: 187 Filed: 10/11/17 Page: 33 of 33 - Page ID#:
12078

This 11th day of October, 2017.

 

33