By Liz Shepherd
InkFreeNews

CLAYPOOL — A mother of a 12-year-old special needs child has filed a federal lawsuit against several employees at Claypool Elementary School for allegedly secluding her child for extended periods of time as a form of punishment.

Suzanne Swinehart, Warsaw, is the plaintiff in this case. Swinehart and her child are being represented by Tom Blessing, Massillamany Jeter & Carson LLP, Fishers. According to court documents, Swinehart’s child has been diagnosed with autism spectrum disorder, sensory processing disorder, emotional dysregulation syndrome, Tourette syndrome and epilepsy.

The 47-page lawsuit was filed in the United States District Court Northern District of Indiana – Fort Wayne Division on March 14.

Defendants in the case are Warsaw Community Schools; North Central Indiana Special Education Cooperative; WCS’s Director of Special Services Amy Hobbs; Gateway Educational Center Principal Steven Ferber; Claypool Principal Melissa Rees; Kristin Trimble, a special education teacher at Claypool; Danielle Whitlock, a WCS employee; WCS Behavior Case Manager Rileigh Wolpert; Shelby Marshall, a WCS employee; WCS Behavior Support Liaison Zachary Hill; and two WCS employees listed in the suit only by their last names, Holland and Roberts.

The suit states Swinehart enrolled her child at WCS in August 2021 after relocating from Fort Wayne. Due to their conditions, the child has difficulty regulating their emotions and does not like loud environments or being touched. When the child becomes very agitated, they sometimes engage in aggressive and/or self-harming behaviors.

The suit alleges the defendants dealt with the child’s behavior by secluding them at school over a period of one year, beginning in February 2022.

Indiana has a detailed code regarding the use of seclusion and physical restraint of students in school. The law states seclusion “shall not be used…except…as a last resort…where the student’s behavior poses imminent risk of injury to self or others…” When a student is secluded, the code states seclusion “may only be used for a short period of time and shall be discontinued as soon as the imminent risk of injury…has dissipated.” WCS’s policy on seclusion also generally parallels this state code.

From August 2021 to February 2022, Swinehart’s child was enrolled at Eisenhower Elementary School and was performing well until October/November 2021, when their teacher quit. WCS allegedly assigned an instructional assistant or paraprofessional to serve as the child’s teacher. Since that assignment, WCS staff called Swinehart between 20 to 25 times, asking her to pick her child up from school early. The child was also suspended multiple times during the fall of 2021.

The child was then moved from Eisenhower to Claypool by WCS staff to supposedly increase the child’s time in the classroom and reduce the number of suspensions they received. At Claypool, the child was placed in the district’s WIN program, which is for students with emotional disabilities. The suit states the child was placed in seclusion for various behaviors related to their disability shortly after being moved to Claypool.

The child’s behavior also typically became worse when they were being taken to or placed in a seclusion room. It is also alleged Claypool staff were not documenting all of the instances the child was secluded or not telling Swinehart about all of the instances, which is required by Indiana law and WCS’s policy.

The suit goes into great detail about the child’s behavior and the number of instances the child was secluded. Listed below are some of these incidents:

• March 2, 2022: Trimble, Marshall and Whitlock placed the child in seclusion for 42 minutes for “exiting a controlled space while still visibly escalated.”
• March 3, 2022: Trimble, Wolpert and Whitlock placed the child in seclusion for 17 minutes for “crawling around and making noise.” Staff allegedly noted it appeared the child had an absent seizure after “banging their head on the wall, hitting their head with their hands, and hyperventilating.” No one employed by the district informed Swinehart or the school’s nurse about this.
• March 8, 2022: Trimble, Wolpert, Whitlock and Roberts put the child in seclusion on two separate occasions for making noise in the classroom. That day, the child was secluded for an hour and eight minutes.
• April 28, 2022: Trimble, Wolpert and Whitlock secluded the child for 32 minutes after they unbuckled their harness on the school bus and tried to leave their seat while the bus was in motion.
• May 6, 2022: Wolpert and Trimble secluded the child for 50 minutes after they kicked their desk and yelled at other students.
• May 10, 2022: Whitlock, Trimble and Marshall secluded the child for about an hour and 15 minutes for yelling and screaming, throwing beanbags and kicking a yoga ball. Swinehart was not provided with a behavior sheet for this day.
• Aug. 24, 2022: Trimble e-mailed Swinehart and said the child spent 75 minutes in the office.
• Aug. 29, 2022: Rees and Marshall secluded the child for 37 minutes for leaving a designated area and yelling at staff. The child bit their own hand and staff allegedly did not stop the child from doing so.
• Sept. 8, 2022: Rees, Holland and Hill secluded the child for unclear reasons and it is believed the child was secluded for about three hours.
• Sept. 19, 2022: Holland, Rees, Marshall and Hill secluded the child for “disrupting NWEA testing” for almost four hours.
• Sept. 21, 2022: Holland, Rees, Marshall and Hill secluded the child for 51 minutes after they ran and hid in a hallway.
• Sept. 22, 2022, through Sept. 28, 2022: WCS employees kept the child in seclusion for about nine hours.
• Oct. 4, 2022: Marshall, Holland and Trimble secluded the child for six hours. Trimble e-mailed Swinehart and said the child was secluded for the entire day due to instigating remarks they made to a student and for escalating. Trimble did not explain how this behavior posed an imminent risk of injury.
• Oct. 5, 2022: Holland, Trimble and Marshall secluded the child for about six hours and 20 minutes. During this time, district employees allegedly did not permit the child to use the restroom. That same morning, Swinehart e-mailed Trimble and asked to be contacted via phone if the child would be secluded again for a majority of the day.
• Oct. 6, 2022: Swinehart e-mailed Trimble and said her child would not be coming to school that day as they were terrified they would be locked up all day again. Later that day, she sent an e-mail to Trimble, Ferber and Rees asking them how it was okay to seclude a child for extended periods of time.
• Oct. 11, 2022: Swinehart sent an e-mail to WCS Superintendent Dr. David Hoffert about the situation. Hoffert allegedly delegated responsibility for arranging a meeting on the issue to Hobbs.
• Oct. 13, 2022: Swinehart sent an e-mail to Rees, Hobbs, Ferber, Hoffert and Trimble regarding their lack of communication or concern about the situation. Around this time, the child began showing signs of anxiety at the very mention of school, saying that they felt stressed and panicked from being locked in a room.
• Oct. 6, 2022, to Oct. 27, 2022: Swinehart kept the child home from school and planned to send them back on Oct. 28, 2022. However, the child showed extreme anxiety in getting on the school bus and did not return to school until Nov. 2, 2022.
• Nov. 11, 2022: Ferber contacted Swinehart and told her to pick up her child, as they were being suspended. That day, Ferber allegedly confined the child in a hallway for at least an hour.
• Nov. 14, 2022: The child had an in-school suspension all day.
• Nov. 15, 2022: The child refused to go to school.
• Nov. 29, 2022: Rees told Swinehart the child would be suspended for two days after trying to get away from a staff member. The child’s behavior escalated and they left the school, entering a nearby wooded area. Law enforcement found the child and brought them back to Claypool. The child told Swinehart they ran away because “they were probably going to lock me in that room again.”
• Dec. 1, 2022: Ferber e-mailed Swinehart and asked about the child’s attendance. When Swinehart expressed her displeasure with the seclusion periods, employees stopped communicating with her.
• Jan. 31, 2023: Hill made the child stay in a room for over an hour until school was dismissed for the day.

“(Swinehart) conservatively estimates that between February 2022 and February 2023, the defendants placed (the child) in some form of seclusion approximately 50 times for a total of around 40 hours — probably more,” reads the suit.

In several of the reports, staff state the “risk of injury” warranting seclusion periods was the child “attempting to leave the calming room while visibly escalated.”

The suit also states the defendants may claim that several of the instances where the child was in the calming room were not seclusion periods if the child was not physically prevented from leaving or if the room’s door was kept open or ajar. One tactic staff allegedly used was posting a staff person outside of the calming room to keep an eye on the child and verbally instruct them to stay in the room if they tried to leave.

The suit further alleges multiple incidents where Swinehart did not receive daily behavior sheets and/or seclusion incident reports from the school’s staff. It also states there were several instances where staff did not prevent the child from harming themselves.

Swinehart’s legal counsel says staff began using different tactics to conceal their seclusion practices in Fall 2022 and also suddenly discontinued sending Swinehart copies of seclusion report forms.

Swinehart is suing WCS and the North Central Indiana Special Education Cooperative for disability discrimination against her child, as well as municipal liability.

“By denying (the child) equal access to educational programs or activities by numerous acts of restraint, seclusion, isolation, denial of participation and creating a hostile educational environment, the defendants discriminated against (them) because of (their) disability,” reads the suit.

She is also suing Ferber, Rees, Trimble, Whitlock, Hill, Marshall, Wolpert, Holland and Roberts for equal protection, alleging they were motivated by a discriminatory purpose because of the child’s disabilities. These aforementioned defendants are also being sued for unreasonable seizure and substantive due process because of the multiple seclusion instances.

Further, Ferber, Rees and Hobbs are being sued for supervisor liability for employees acting under their direction and/or being personally involved in the child’s seclusion.

Swinehart is requesting judgment in her favor, including compensatory and punitive damages, as well as coverage for court costs.