Opinion
Civil No. 3:98CV867(AVC)
January 9, 2002
RULING ON THE DEFENDANTS' RENEWED MOTION FOR SUMMARY JUDGMENT
This is an action for damages. It is brought pursuant to 42 U.S.C. § 1983 and the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA"). The plaintiff. a disabled minor with Down's syndrome, alleges that the defendants, employees of the Bristol board of education, violated his constitutional and statutory rights in connection with his education in the Bristol school system.
Title 42 of the United States Code. section 1983. states: "Every person who, under color of any statute. ordinance. regulation. custom, or usage. of any State or Territory or the District of Columbia. subjects. or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity. or other proper proceeding for redress . . . ." 42 U.S.C. § 1983.
The Individuals with Disabilities Education Act. 20 U.S.C. § 1400et seq., requires that states receiving federal funding provide children with disabilities a "free appropriate public education." 20 U.S.C. § 1412.
This action is brought by a minor. M.H. by and through his parents, Mr. and Mrs. H. For purposes of this discussion, the court will refer to M.H. as "the plaintiff."
The defendants previously filed a motion for summary judgment, which this court granted in part and denied in part. The defendants have now filed a second summary judgment motion, arguing that the supplemental information that they have provided to the court establishes that there are no material issues of fact in dispute and that they are entitled to judgment as a matter of law.
See M.H. v. Bristol Bd. of Educ, 169 F. Supp.2d 21 (D. Conn 2001).
The issues presented are: 1) whether two incidents where school employees physically restrained the plaintiff, a disabled student, and an incident where a teacher spat water on the plaintiff were unconstitutional uses of excessive force and 2) whether the use of a chair restraint on the plaintiff violated the plaintiff's substantive due process rights.
The court concludes that 1) the two incidents of physical restraint and the incident of spitting by a teacher do not rise to the level of constitutional violations and 2) the defendants' use of a chair restraint on the plaintiff did not violate the plaintiff's substantive due process rights because the defendants exercised professional judgment.
For the reasons stated herein, the defendants' motion for summary judgment is granted.
FACTS
Examination of the complaint, affidavits, pleadings, exhibits, supplemental materials, and Rule 9(c) statements discloses the following undisputed, material facts:
At all times relevant to this case, the plaintiff, M.H., was a fourteen-year-old student in the sixth grade at Memorial Boulevard Middle School in Bristol, Connecticut. MI-I. has Down's syndrome and is severely mentally retarded. He is essentially nonverbal and possesses an IQ of less than 36 The Bristol board of education has provided M.H. with special education services since 1985.
Under the provisions of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq ("IDEA"), the Bristol board of education is required to develop an individualized education plan ("IEP") for M.H This plan is developed during regular planning and placement team ("PPT") meetings in which M.H.'s parents, Mr. and Mrs. H., participate.
During the 1995-96 school year, the defendants, Lisa Palangi, a special education teacher, and Betty Marchesi, a paraprofessional, were assigned to work with M.H. On or about May 7, 1996, Palangi spit water onto M.H.'s face and stated "this is spitting," in response to M.H.'s acts of misbehavior Marchesi was present in the classroom at the time and witnessed this spitting incident. Neither Palangi nor Marchesi reported this incident to their supervisors. When M.H returned home that day from school, his mother observed that his hair was "soaking." Palangi sent a note home with M.H. that stated that she and M.H. had been playing hairdresser and she gave him a new hairstyle On May 8, 1996, one Elizabeth Knoblauch, a paraprofessional working at the school overheard Marchesi talking about the incident. Knoblauch then reported the incident to the defendant, Katherine Bourgault, the supervisor of special education.
On May 10, 1996, the superintendent of schools, one Edward Maher, suspended Palangi without pay. On May 13, 1996, school officials conducted a meeting to discuss Palangi's employment After the meeting, Mrs. H. learned that Palangi had often restrained M.H. in a chair during the school day as a means of controlling him when other staff members were not present in the classroom. Palangi restrained M.H with a belt around his waist that was then secured to a chair. When staff members would return to the classroom, Palangi would release M.H. Mr. and Mrs. H. both stated that they were not previously informed of the use of restraints nor had they consented to such measures. Palangi eventually resigned.
Sometime thereafter, the defendant. Katie Wininger, a special education teacher, was assigned to M.H. as Palangi's replacement. On May 21. 1996, Mrs. H. visited the school and observed Wininger physically restraining M.H. Specifically. Wininger held both of M.H.'s arms from behind and forcibly restrained him while directing him to a specific task. Wininger and Mrs. H. dispute whether Wininger first gave verbal instruction to MN. before using physical force. M.H. resisted, and a physical struggle ensued until Mrs. H. stepped in and calmed M.H.
On June 12, 1996. Wininger sent home a note to Mr. and Mrs. H. advising them about an incident involving M.H. during a fire drill at the school. When the fire alarm sounded. MI-I. became agitatged and Wininger and Marchesi had to physically remove him from the building. M.H. attempted to bite both women and his fingers became entangled in Winingers hair. In the altercation, both of M.H.'s arms were bruised. School officials knew before the incident that M.H. was agitated by fire alarms. but it is unclear whether his teachers were warned of the drill on that day.
On June 24 1996. Mr. and Mrs. H. met with school officials for a PPT meeting. At that meeting, Bourgault showed Mr. and Mrs. H. a handwritten "behavior management plan" dated May 30. 1996. which was drafted based on a May 18. 1993 case report completed by a consultant (the "CREC report"). Mr. and Mrs. H. objected to those portions of the behavior management plan which permitted the use of physical restraint. The school officials agreed to put those measures 01 hold.
Joanne Craig, a behavior analyst at the Capitol Regional Education Counsel, completed the behavioral assessment of M.H. and provided the defendants with a recommended behavioral management plan in 1993.
On May 14, 1998. the plaintiff, through his parents. initiated the instant action. The first four counts of the complaint allege that the individual defendants and the Bristol board of education violated M.H.'s procedural and substantive due process rights, as welt as the rights afforded to him under the IDEA. Counts five and six allege the common law torts of assault and intentional infliction of emotional distress against the defendants, Palangi and Wininger, for the spitting incident and the use of physical restraints. Count seven alleges that common law tort of negligence against the defendants, Palarigi, Wininger and Marchesi.
On October 11, 2000, the defendants moved for summary judgment. On August 29, 2001, the court granted the defendants' motion in part, concluding that certain individual defendants and the board of education were entitled to judgment as a matter of law. In addition, the court granted the defendants' motion with respect to the causes of action based upon procedural due process violations and the common law torts alleged in counts five, six and seven The court denied the defendants' motion with respect to the causes of action. brought pursuant to 42 U.S.C. § 1983 based upon violations of the IDEA and substantive due process. With respect to the plaintiff's substantive due process rights, the court concluded that it was.
without facts concerning the circumstances of when physical and mechanical restraint were necessary for the safety of M.H. or others, and whether each of the individual defendants received adequate training to use such restraints in an appropriate manner. In addition, the defendants have not provided the court with sufficient information about the individual defendants' level of expertise and experience for the court to conclude that they were each competent, whether by education, training, or experience, to make the particular decision regarding ML.]' Youngberg v. Romeo, 457 U.S. 307, 323 n. 30 (1982).M.H. v. Bristol Bd. of Educ., 169 F. Supp.2d 21, 32 (D. Conn. 2001).
In addition, the court concluded that the individual defendants were not entitled to qualified immunity for their actions because "it is uncertain whether they exercised professional judgment when restraining M.H."
On October 31, 2001, the defendants, Bourgault, Marchesi, Wininger and Palangi filed renewed motions for summary judgment, arguing that their supplemental affidavits establish that they are each "professional decision makers" and that their conduct toward M.H is presumptively valid. The defendants additionally argue that they are entitled to qualified immunity for their actions.
The defendants' motions for summary judgment do not substantively address the plaintiffs cause of action brought pursuant to 42 U.S.C. § 1983 based upon violations of the IDEA. In us August 29, 2001 ruling, the court denied the defendants' motion with respect to the causes of action for damages based upon violations of the IDEA. See M.H. v. Bristol Bd. of Educ., 169 F. Supp.2d 21, 30 (D. Conn. 2001)
STANDARD
On a motion for summary judgment, the moving party must show that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. Fed R. Civ. P 56(c), Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 256 (1986). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party Aldrich v. Randolph Cent Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (quoting Anderson, 477 U.S. at 248). The court resolves "all ambiguities and draw[s] all inferences in favor of the nonmoving party in order to determine how a reasonable jury would decide." Aldrich, 963 F.2d at 253. Thus, [o]nly when reasonable minds could not differ as to the import of the evidence is summary judgment proper. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991)In opposing a motion for summary judgment, the "adverse party may not rest upon the mere allegations or denials of [its] pleading," but must "set forth specific facts showing that there is a genuine issue for trial" Fed R. Civ. P. 56 see D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). "If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Fed. R Civ. P 56(d). "[T]he mere verification by affidavit of one's own conclusory allegations is not sufficient to oppose a motion for summary judgment" Zigmund v. Foster, 106 F. Supp.2d 352, 356 (D. Conn. 2000) (citations and quotation marks omitted). Furthermore, "[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient to avoid the entry of judgment against the non-moviig party], there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 248 (1986).
DISCUSSION
The defendants argue that they are entitled to judgment as a matter of law with respect to the plaintiff's substantive due process causes of action Specifically, the defendants argue that they were professional decision makers exercising their professional judgment toward M.H and therefore their actions are presumptively' valid. In addition, the defendants argue that they are entitled to qualified immunity for their actions.
In response, the plaintiff argues that the incidents of physical restraint and spitting water "are instances of excessive force." The plaintiff argues that there are disputed facts as to the use of the force, the injuries suffered by M.H. and the motivations of the defendants, and summary judgment is therefore improper. With respect to the defendants' use of a chair restraint on him, the plaintiff argues that the defendants have not provided sufficient information to the court for it to conclude that the defendants are entitled to judgment as a matter of law. Specifically, the plaintiff argue; that the defendants have not supplied any information concerning the circumstances of when restraint was necessary for the safety of M.H. and others.
The plaintiff does not argue that the defendants' use of a chair restraint constitutes "excessive force" but rather "concedes that the use of mechanical restraint was the type of restraint about which there might be professional disagreement, leading to the use of the Youngberg analysis."
A. Excessive Force
The defendants first argue that their alleged behavior does not constitute "excessive force" and that they ire therefore entitled to judgment as a matter of law
The Due Process Clause of the Fifth Amendment, later incorporated into the Fourteenth Amendment, is a limit on a State's power to act DeShaney v. Winnebago County Soc. Servs. Dep't, 489 U.S. 189, 195 (1989). The Due Process Clause "was intended to prevent government from abusing [its] power. or employing it as an instrument of oppression . . . [and] to protect the people from the State . . . ." Id. at 196 (internal quotation marks and citations omitted). The substantive element of the Due Process Clause provides a "`right to be free from the use of excessive force' in the `non-seizure. non-prisoner context[.]'" Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 251 (2d Cir. 2001) (quoting Rodriguez v. Phillips, 66 F.3d 470, 476 (2d Cir 1995)). "[T]he substantive due process guarantee of the Fourteenth Amendment protects individuals from `conscience-shocking' exercises of power by government actors." Id. at 252.
In Johnson v. Newburgh Enlarged Sch. Dist., the second circuit set forth the factors that a court must consider in excessive force claims:
the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harmJohnson v. Newburgh Enlarged Sch Dist, 239 F.3d 246, 251-52 (2d Cir. 2001). In Johnson, the second circuit concluded that a teacher violated a student's substantive due process rights when he grabbed the student by the throat, "lifted him off the ground by his neck and dragged him across the gym floor . . . choked [him] and slammed the back of [his] head against the bleachers four times rammed [his] forehead into a metal fuse box . . . and punched him in the face." Id. at 249.
In the present case, the plaintiff alleges that the three following incidents constitute the use of excessive force: 1) the incident on May 7, 1996, when Palangi spat water on M.H's face; 2) the incident on May 21, 1996, when Mrs. H. observed Wininger holding M.H.'s arms from behind and restraining him; and 3) the incident on June 12, 1996, when Wininger and Marchesi physically restrained M.H. when he became agitated during a fire alarm
Construing the evidence before it in the light most favorable to M.H., the court concludes that these facts do not constitute a violation of M.H.'s right to be free from excessive force. There are no allegations that Palangi, Wininger or Marchesi acted "maliciously and sadistically for the very purpose of causing harm" Johnson. 239 F.3d at 252; see also Gottlieb v. Laurel Highlands Sch. Dist., 272 F.3d 168, 175 (3d Cir. 2001) (concluding that, where the amount of force used was minor, it "cannot be inferred from the acts itself that [the defendant] intended to act maliciously and sadistically so as to constitute a constitutional violation."). The single spitting incident. while inappropriate, simply does not constitute a "conscience-shocking" exercise of government power to rise to the level of a constitutional violation. See, e.g., Gottlieb, 272 F.3d at 175 (concluding that a principal did not violate a student's constitutional rights when he pushed her shoulder and propelled her into a door jam); Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996) (concluding that a principal's slapping of a student on one occasion did not rise to the level of a constitutional violation)
As to the other incidents, the court concludes that the two incidents of physical restraint, one observed by Mrs. H and the other during the fire drill, are not so "conscience-shocking" so as to rise to me level of a constitutional violation. Neither incident resembles the circumstances of when a court has found the use of excessive force, such as inJohnson, where the court concluded that a teacher's violent attack on a student violated the student's constitutional rights. Johnson v. Newburgh Enlarged Sch. Dist, 239 F.3d 246, 249 (2d Cir. 2001) The plaintiff argues that the defendants' use of force was unconstitutionally excessive because it was disproportionate to the force needed to address M.H.'s behavior. Substantive due process, however, protects against "malicious and sadistic abuses of government power that are intended only to oppress or to cause injury and serve no legitimate government purpose." Id. at 252. Even assuming, arguendo, that there were more effective or preferable ways of responding to M.H.'s behavior, such an assumption does not render the defendants' choice of actions unconstitutional. Neither Wininger's nor Marchesi's behavior can be reasonably described as malicious and sadistic. The court notes that the affidavits of Wininger and Marchesi make clear that the force employed in the two incidents was in response to M.H.'s misbehavior, including his yelling, grabbing and biting. Moreover, the court observes that M.H.'s injuries, bruises on both arms, occurred during a fire drill as the defendants attempted to remove him from the school. The plaintiff does not allege that the defendants were attempting to punish him in any way.
The plaintiff cites to Dockery v. Barnett, 167 F. Supp.2d 597 (S.D.N.Y. 2001) to support his position that the defendants' acts constituted the use of excessive force. In Dockery, the defendant, a teacher, force-fed one of the plaintiffs, a seven-year-old student with autism, and, over the course of a school year, inflicted "marks and an open wound on his hand[,] . . . bruises on his right wrist, . . . a cut on his arm . . . [and] a cut [on the boy's finger]." Id. at 600. In addition, the defendant was alleged to have grabbed the other plaintiff, a five-year-old student with autism "with enough force to leave a red hand print on his shoulder that was visible for several days[,]" and inflict scratches on the student. Id. at 600-01 The court denied the defendants' motion for summary judgment, concluding that the testimony of three teachers' aides that the defendant used "unnecessary" amounts of force "is enough to create a dispute of fact as to whether [the defendant's] handling of the children was disproportionate to what was necessary under the circumstances." Id. at 603. In the instant case, there are no allegations that any of the defendants repeatedly engaged in the type of behavior as alleged in Dockery In addition, there are no statements from teachers' aides or other professionals who witnessed the three incidents that the force used by the defendants was unnecessary or in excess of the amount of force needed to respond to M.H.'s behavior.
Specifically, Wininger's affidavit states that on May 21, 1996, she used physical force when M.H. "began yelling[,]" and "began pinching my arms and grabbed at my hair." Marchesi's affidavit states that she and Wininger forcefully restrained M.H. during the fire drill after he "grabbed Katie Wininger's hair with both hands and sank to the floor . . . [and I tried to bite Katie Wininger and me.
The court therefore concludes that the defendants are entitled to judgment as a matter of law because no reasonable jury could find that the defendants' actions constituted the use of excessive force under constitutional standards.
B. Youngberg v. Romeo
The defendants next argue that they are entitled to judgment because they were professional decision makers acting within the scope of accepted professional practices.
The Supreme Court has recognized that "the right to personal security constitutes a `historic liberty interest' protected substantively by the Due Process Clause." Youngberg v. Romeo, 457 U.S. 307, 315 (1982) (quoting Ingraham v. Wright, 430 U.S. 651, 673 (1977)) In addition, the Court has recognized the "`[l]iberty from bodily restraint . . . as the core of the liberty protected by the Due Process Clause from arbitrary governmental action.'" Youngberg v. Romeo, 457 U.S. 307, 315 (1982) (quoting Greenhotlz v. Nebraska Penal Inmates, 442 U.S. 1, 18 (1979) (Powell, J., concurring in part and dissenting in part)). In Youngberg, the Supreme Court concluded that the physical restraint of mentally disabled patients implicated their liberty interests in freedom from bodily restraint under the Due Process Clause. Id. at 316.
In its previous decision, this court concluded that the test set forth in Youngberg was the appropriate standard in this case for determining whether the defendants violated M.H.'s substantive due process rights by their use of physical and mechanical restraints. See M.H v. Bristol Bd. of Educ., 169 F. Supp.2d 21, 31 (D Conn. 2001). This court explained:
The Supreme Court concluded that decisions made by professionals were presumptively valid and that "liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment' Youngberg v. Romeo, 457 U.S. 307, 323 (1982). Professionals may disagree about what course of conduct is best, but a court must `remember that the ultimate issue is whether the patients' basic liberty interests are being safeguarded, not whether the optimal course of treatment as determined by some expert is being followed.' Society for Good Will to Retarded Children, Inc v. Cuomo, 737 F.2d 1239, 1248 (2d Cir. 1984).Id. at 31. The court concluded that it was unable to make certain that the defendants exercised professional judgment when they physically and mechanically restrained M.H., as required under Youngberg, because it was without facts concerning when restraint of M.H. was necessary and whether the individual defendants were competent, by training and experience, to employ restraint techniques. See id. at 32.
The individual defendants have now submitted supplemental affidavits that detail their educational and vocational backgrounds as well as their experiences in working with M.H. The defendants argue that they were each qualified professional decision makers exercising their "best professional judgment with respect to the circumstances presented by M.H." In response, the plaintiff argues that the defendants have provided no information on "whether the action complained of is within the ambit of professionally acceptable alternatives[,]" and summary judgment should therefore be denied.
Having reviewed the defendants' supplemental affidavits, along with their original affidavits and those of the plaintiff's expert, the court concludes that the individual defendants' actions "substantially met professionally accepted minimum standards." Society for Good Will to Retarded Chidren, Inc. v. Cuomo, 737 F.2d 1239, 1248 (2d Cir 1984).
First, the court notes that each of the defendants sufficiently detailed their backgrounds for the court to conclude that each are "professional decision makers" under the Youngberg standard. Youngberg requires that a professional decision maker be competent by "education, training or experience, to make the particular decision at issue."Youngberg v. Romeo, 457 U.S. 307, 323 n. 30 (1982) Wininger, Bourgault and Palangi each have their bachelor's degree in teaching, are certified special education teachers and have been employed as such in Connecticut. Bourgault additionally holds a master's degree in special education and is a certified school administrator. Marchesi's affidavit states that she has been a special education aide since 1992, worked with M.H. from December of 1992 through June of 1996, and was trained and supervised by each of M.H.'s teachers. In addition, the supplemental affidavits make clear that each of the defendants was familiar with M.H., his behaviors and his unique needs.
The plaintiff argues that the three defendants, Wininger, Marchesi and Palangi, are not professional decision makers under the Youngberg standard and, therefore, the court should not defer to their decisions. Assuming arguendo that these defendants were not professionals, the court concludes that they would be entitled to qualified immunity for their actions because it would be objectively reasonable for the defendants to believe that their actions, in conformance with the 199 CREC plan. did not violate clearly established law. See, e.g Heidemann v. Rother, 84 F.3d 1021. 1029 (8th Cir 1996) (concluding that the defendants, employees of a school, were entitled to qualified immunity for their actions which were based upon the recommendation of an outside consultant).
Next, the court notes that the 1993 CREC report prepared by a behavior analyst in 1993, and upon which the May 30, 1996 behavior management plan is based, calls for the use of physical management techniques to create a safe learning environment for M.H. and to "reduce injury to staff and students." The report calls for staff familiarity with techniques ranging from "[n]on-verbal communications" to "hair pull release" to "chair restraint" The defendants' supplemental affidavits make clear that they were familiar with this report, the May 30, 1996 behavior management plan, and the various behavior management techniques described in both. The plaintiff disputes that the CREC report was in force during the 1995-96 school year, but concedes that if the plan were in force, the "defendants would have some claim that a rational decision based on professional judgment was made" The court concludes that the existence of the 1993 plan, which calls for the use of a chair restraint, demonstrates the defendants acted in accordance with professionally accepted minimum standards. The report, whether technically in force or not, shows that the use of a chair restraint on M.H. had been previously considered and recommended by a professional as one technique for addressing M.H.'s behavior.
Bourgault states that "[b]ased on the special education evaluations of M.H and the IEPS developed for him it was my professional judgment and expectation that physical management techniques, including those utilized by Ms. Wininger and Marchesi, would from time to time be necessary under certain circumstances, both for the safety and well being of M.H. and that of others." She also states that it is her professional judgment that "the teachers and paraprofessionals assigned to implement M.H.'s IEPs exercised reasonable professional judgment at the time with respect to his presenting behaviors" Wininger states that as part of her training as a special education teacher, she was instructed "in professionally accepted physical restraint techniques" and that her interventions with M.H. "were in conformance with the behavior management plan" in place for M.H Marchesi states that she was trained by M.H.'s teachers and that "a chair or other physical restraint was only used in those instances in which it was necessary to protect M.H., other students, staff or school property and only after other non-physical interventions had been attempted without success." Palangi states that she was trained "in physical management techniques including restraint[,]" and that she completed a course entitled "Management of the Severely Acting Out and Aggressive Child in the Public School Setting" in 1995.
With respect to the use of a chair restraint on M.H., the court notes that the CREC report specifically mentions the use of a "chair restraint" as a physical management technique. Palangi is the only defendant specifically alleged to have restrained M.H. in such a manner. In her original affidavit, Palangi states that "there would be occasions when physical restraint was required. Such restraint was used to ensure M.H.'s safety and the safety of the other teachers and students." In addition, Palangi states that she used a chair restraint on N.H. "when he became violent[,]" and that she was trained in the use of restraints She states that, during the 1995-96 school year, M.H. "incessantly exhibited aggressive and socially unacceptable behaviors which included, but were not limited to, spitting, scratching, biting, kicking, pushing, running and screaming. throwing objects and hitting other students. teachers and classroom aides." Marchesi's affidavit further states that "a chair or other physical restraint was only used in those instances in which it was necessary to protect M.H., other students, staff or school property . . . ."
In addition, the supplemental affidavits show that the two specific incidents of physical restraint complained of the incident observed by Mrs. H. and the incident during the fire drill, involved immediate reactions by the defendants to M.H.'s acts of misbehavior. "Constitutional standards are met when the professional who made a decision exercised `professional judgment' at the time the decision was made." Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.3d 1239, 1248 (2d Cir 1984).
In opposition to the original motion, the plaintiff submitted the affidavit of his expert, Dr. Ann Majure, who holds a PhD in special education. Majure states that, in her opinion, "the use of aversives, including mechanical restraint . . . can cause regression in the educational development of the student[,]" and that such practices constitute a substantial departure from sound practice. Majure's affidavit, while showing that there is a professional dispute as to whether the use of mechanical restraints is recommended, does not show that the defendants' conduct fell below "minimally accepted standards across the profession" Society for Good Will to Retarded Children, Inc v. Cuomo, 737 F.3d 1239, 1248 (2d Cir. 1984). "No violation of due process may be found where a plaintiff only proves a difference of professional opinion as to which practices are appropriate and which are not" Messier v. Southbury Training Sch., No. 3:94CV1706, 1999 WL 20910 at *6 (D. Conn. Jan 5, 1999).
The court concludes that the defendants' actions, in conformance with the techniques recommended by the CREC plan, do not depart substantially from accepted professional standards. See Heidemann v. Rother, 84 F.3d 1021, 1029 (8th Cir. 1996) (concluding that the defendants did not violate a clearly established constitutional right when they used a blanket wrapping technique, recommended by an outside consultant, on a disabled student). "Even if every expert . . . agrees that another type of treatment . . . might be better, the federal courts may only decide whether the treatment . . . that actually was selected was a `substantial departure' from prevailing standards of practice." Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.3d 1239, 1249 (2d Cir. 1984).
To the extent that the plaintiff argues that the May 30, 1996 behavior management plan, based upon the CREC report, was improperly excluded from M.H.'s IEP and never discussed with Mr. and Mrs H., such an argument relates to the plaintiffs cause of action for violations of the IDEA Substantive due process requires that professional decision makers exercise their professional judgment when restraining a student; the plaintiff has cited to no authority which would require that parents consent to each and every use of' restraint.
The court therefore concludes that the defendants are entitled to summary judgment for the plaintiffs substantive due process causes of action.
CONCLUSION
For the reasons stated herein, the defendants' motion for summary judgment (documents no. 93, 96) is GRANTED.