Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 1 of 25

17tto

Q"

u::
IA.? ""IlIJI!i

.
! .

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ROME DIVISION

rv--..
0j

1014'. I:

<:'7J
C:rer;y
'\;.4-

?,,,

I); IV

DAVID and TINA LONG, Individually, and as Natural Parents of TYLER LEE LONG, Deceased, Plaintiffs,
v.

MlffiRAYCOUNTYSCHOOL DISTRICT and GINA LINDER, in her individual and official capacity as Principal of Murray County High School, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) )

Civil Action File No.:

JURY TRIAL DEMANDED

)
"'.iJ )

V 'l._

....

COMPLAINT

COME NOW David and Tina Long, Individually, and as Natural Parents of Tyler Lee Long, Deceased, Plaintiffs in the above-styled action, by and through counsel, and file this Complaint against Defendants Murray County School District and Gina Linder, in her individual and official capacity as Principal of Murray County High School ("Defendants"), for federal civil rights violations and other personal injuries to the deceased, Tyler Lee Long, and respectfully show the Court as follows:

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 2 of 25

PARTIES, JURISDICTION, AND VENUE

l.

Plaintiffs David and Tina Long ("Plaintiffs") are citizens of the United States and residents of the State of Georgia, Murray County, and can be served with all pleadings and filings in this case by and through undersigned counsel at W. Winston Briggs Law Firm, 1005C Howell Mill Road, Atlanta, Georgia, 30318. Plaintiffs are the parents of Tyler Lee Long, deceased. He was a person with a disability, as that term is used under Section 504 of the Vocational Rehabilitation Act, as amended, 29 U.S.C. 794 and 794(a), and the Americans with Disabilities Act, as amended by the Americans with Disabilities Act Amendments Act of 2008, at all times relevant to the claims in this action. 2. Defendant Murray County School District (the "School District") is the entity that operates Murray County High School (the "High School") in Chatsworth, Georgia. The School District may be served with process through its Superintendent, Vickie Reed, at 715 Chestnut Street, Chatsworth, Georgia, 30705. The School District is a federal fund recipient under Section 504 and a public entity within the meaning of the Americans with Disabilities Act. It has agreed

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 3 of 25

and certified in exchange for state and federal funding that it will meet the requirements and comply with such laws.

3.
Defendant Gina Linder is the Principal of the High School and at all relevant times has acted under color of state law. Defendant Linder may be served with process at 1001 Green Road, Chatsworth, Georgia, 30705. 4. This case arises under the Fourteenth Amendment to the United States Constitution, 42 U.S.C. 1983 and 1988, 504 of the Vocational Rehabilitation Act of 1973, 29 U.S.C. 794, the Americans with Disabilities Act of 1990, 42 U.S.C. 12132, and pendent state law claims. 5. This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331, 1343(3)-(4). This Court has supplemental jurisdiction pursuant to 28 U.S.C. 1367 to all state law claims and all such claims arise from the same nucleus of operative facts.

6.
Venue is appropriate in this Court pursuant to 28 U.S.C. 1391 in that all parties reside in this District and Division.

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 4 of 25

7. Filed contemporaneously herewith as Exhibit A is a true and correct copy of the ante litem notice which was presented to the Superintendent of the School District; Defendant Linder, as Principal of the High School; and Greg Shoemaker, Chairman of the Murray County School Board within the required six (6) months of the occurrence which is the subject matter of this case pursuant to O.C.G.A. 36-33-5. 8. Additionally, attached hereto as Exhibits B, C, and D, respectively, are the service documents and written acknowledgement of receipt of the ante litem notice which were executed by the representatives of the Murray County School System listed in 7 and served thereon.

FACTUAL BACKGROUND
9 Tyler Lee Long was born on April 4, 1992 in Chatsworth, Murray County, Georgia, and, before his death on October 17, 2009, was a student at the High School.

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 5 of 25

10.

In 2005, Tyler Lee Long was diagnosed with a form of Autism known as Asberger's Disorder. The School District had found Tyler Lee Long eligible as a child with the disability in the eligibility category of Autism under state and federal law. The staff at the High School and Defendant Linder were aware of this, the nature of his disability, and the duty to protect him from bullying related to and arising from his disability.
11.

Asberger's Disorder is a social anxiety disorder that prevents the afflicted individual from, among other things, normal social interaction with other people, understanding other people's emotions, and differentiating between joking and serious interaction with others. This was known to Defendants.
12.

Children with Asberger's Disorder have difficultly taking care of themselves and are significantly more likely to suffer from depression and commit suicide than non-afflicted children.
13.

Tyler Lee Long's February 3, 2006 Individualized Education Program ("IEP"), a federally mandated education analysis which is required for disabled

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 6 of 25

students by the Individuals with Disabilities Education Act, put the High School on notice of Mr. Long's disabilities, the constant bullying he was subjected to, and his parents' frustration about the High School's failure to address the bullying of Mr. Long. This was raised by Plaintiffs in the special education process and to

Defendants over a course of years before and during Mr, Long's high school experience before his death. 14. On April 26, 2006, the Murray County School System produced a PsychoEducational Report documenting Tyler Lee Long as "having difficulty beginning conversation, asking inappropriate questions, interpreting conversations literally and having difficulty understanding metaphors and idioms, [and] having difficulty understanding subtle jokes." 15. Because of his disability, Tyler Lee Long was subjected to a brutal and systemic pattern of bullying throughout his time as a student at the High School. 16. Tyler Lee Long was ridiculed and emotionally bullied and physically beaten by other High School students on a regular basis.

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 7 of 25

17.

Examples of the bullying of Tyler Lee Long include, but are not limited to, a November 6, 2007 incident where a female student approached Mr. Long on the gym bleachers and told him "to crap on [himself] and be scared," poked Mr. Long in the face with her finger, and when the bell finally rang, asked him why he was such a sissy and punched him in the face.
18.

On September 3, 2008, Tyler Lee Long was pushed down a set of stairs on his way to the cafeteria and punched in the face by a High School student and the student's girlfriend. Mr. Long or someone on his behalf approached Chris

Thornbury, Assistant Principal for Discipline, to report the incident, but no disciplinary action was taken. Plaintiffs David and Tina Long attempted to press charges against the responsible students because High School officials failed to take any disciplinary action.
19.

During the 2008 school year, among other incidents, Tyler Lee Long was routinely punched and physically assaulted; thrown into lockers; told by other students that they could not "wait until you get six-feet under"; had his food spit

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 8 of 25

into and food stuffed in his mouth at lunch in front of other students, once being told to "eat that bitch." 20. Defendant Linder and other High School officials were informed of incidents like the examples mentioned above but did not take any corrective action on behalf of the High School administration to protect Tyler Lee Long from future bullying. Defendants had a duty to act and limit the abuse at school. The failure to act and limit abuse was knowing and intentional, taken in known derogation of such duty.
21.

Because of the extent and consistency of the bullying Tyler Lee Long was subjected to, he ate lunch at his teacher's table, which should have put the High School and Defendant Linder on further notice of the bullying of Mr. Long. This did not protect him or limit the bullying, but held him out at the High School to peers as different and identified him as a person with a disability. 22. Tyler Lee Long routinely came home from school distraught and depressed from being bullied at the High School.

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 9 of 25

23. Plaintiffs David and Tina Long made countless attempts to meet with and voice their concerns over the bullying of Tyler Lee Long, but High School officials refused to meet with them, failed to respond to their written correspondence or phone calls, and/or gave them false assurances that Mr. Long's situation would be monitored. This included Defendant Linder, who failed to take actions required within the scope of her responsibilities. 24. Defendant Linder, Assistant Principal for Discipline Chris Thornbury, and other High School officials failed to intervene, investigate, correct, train, and provide for Tyler Lee Long's protection, even though Mr. Long was particularly vulnerable to bullying and harassment because of his disability, and High School officials were aware of the bullying of Mr. Long. Defendant Linder failed to see that such action was taken and failed to provide a safe environment for Tyler Lee Long. 25. Teachers and other school personnel allowed Tyler Lee Long to be bullied on a regular basis. Instead of fulfilling their legal obligation to protect their

students, especially those with disabilities and unable to protect themselves like

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 10 of 25

Mr. Long, teachers and other school personnel turned a blind eye and allowed the bullying to continue. 26. On Thursday, October 15, 2009, Tyler Lee Long experienced particularly egregious bullying, including, but not limited to, being beaten and taunted by Adam Harmon and Zach Hall in guitar class. The guitar teacher, who was in his office rather than the classroom, was not present to monitor the students and protect Mr. Long from the bullies. Defendant Linder had a duty to see that

teachers were in class and managed their class to avoid the abuse and ridicule by peers. Defendant Linder failed to put into place a system or practice to ensure that this occurred. 27. On Friday, October 16, 2009, Tyler Lee Long continued to be bullied in guitar class. The teacher was not present in the classroom and failed to monitor or otherwise protect his students from the bullies. This bullying was similar to and a continuation of the same course and pattern of abuse at the High School Tyler was subjected to, without intervention or limitations, and without consequences to the students that subjected him to such abuse.

10

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 11 of 25

28.

Also on October 16, 2009, an unidentified student threw Tyler Lee Long's head into a locker. Another student spit in Mr. Long's food that day and told him to "go hang himself." High School officials were not present to monitor or

otherwise protect Mr. Long from the bullies and no corrective action was taken to protect Mr. Long from future bullying. Such actions were taken by his peers because Defendants failed to act for Mr. Long's protection and because of the permissiveness and tolerance of bullying and harassment at the High School, which was created and permitted by Defendants. Such failures to act established an environment of abuse and bullying of Tyler Lee Long. 29. Tyler Lee Long was bullied on the school bus the afternoon of October 16, 2009 by several students, one named Miguel Barajas. Mr. Long tried to move to the back of the bus to protect himself but the bullies continued to harass and taunt him. Mr. Thornbury, Assistant Principal for Discipline, has a video footage of the bullying on the school bus. Again, prompt remedial action and protective action was not taken, due in part, to the permissiveness and environment of abuse of Tyler Lee Long, created and permitted by Defendants.

11

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 12 of 25

30. On the night of October 16, 2009, Tyler Lee Long was dejected and depressed and did not communicate his instability to his parents. In the early morning hours of Saturday, October 17, 2009, Mr. Long hanged himself with a belt. At approximately 6:30 A.M., David Long walked into Mr. Long's bedroom to find his son hanging in the closet, dead. COUNT I: VIOLATION 42 U.S.C. 1983 - DUE PROCESS
31.

Plaintiffs hereby reallege and reassert Paragraphs 1-6 and 9-30 as if fully set forth herein.
32.

At all relevant times, High School officials and employees, including Defendant Linder, acted under color of state law in their administration and obligation to monitor and protect students at the High School.
33.

At all relevant times, High School officials and employees, including Defendant Linder, had actual knowledge of Tyler Lee Long's disability and the systemic bullying Mr. Long was subjected to at the High School.

12

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 13 of 25

34. By failing to intervene, to investigate, to correct, to train its employees to account for, and otherwise provide for Tyler Lee Long's protection from bullies at the High School, Defendants exhibited deliberate indifference towards their affirmative duty to protect Tyler Lee Long and deprived Mr. Long of his liberty interest to be free from psychological and bodily abuse and violations of 29 U.S.C. 794 and 42 U.S.C. 12132, provided for by the Constitution and the laws of the United States. 35. The obvious, flagrant, rampant, and continued bullying of Tyler Lee Long at the High School, which occurred on a regular basis, was committed under the auspices of Defendant Linder sufficient to invoke theory of direct and supervisory liability under 42 U.S.C. 1983. 36. Defendants' failure to intervene, to investigate, to correct, to train its employees to account for, and otherwise provide for Tyler Lee Long's protection, especially given his known and documented disability, and Defendants' knowledge of the disability, was knowing and intentional, taken with disregard of the

13

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 14 of 25

circumstances and for administrative convenience, and was the sole or a substantial contributing cause of Mr. Long's decision to take his own life.
37.

Because Defendants had actual knowledge of Tyler Lee Long's disability and the continual and pervasive bullying Mr. Long was subjected to-and yet failed to provide adequate protection for Mr. Long's safety and performed affirmative acts exposing Mr. Long to more danger from other studentsDefendants engendered a state-created danger to Mr. Long. Defendants failed to train the staff at the High School to limit the abuse or intervene in the abuse or to protect or investigate incidents of abuse. Defendants failed to supervise their staff to limit or intervene in the abuse. Such actions occurred repeatedly over time, and especially in the two years preceding the death of Mr. Long. Such actions created an environment of abuse and bullying subjecting Mr. Long to such abuse based on his status as a person of disability.
38.

Because Defendants had actual knowledge of Tyler Lee Long's disability and the continual and pervasive bullying Mr. Long was subjected to-and yet failed to provide adequate protection for Mr. Long's safety and performed affirmative acts exposing Mr. Long to more danger from other students-

14

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 15 of 25

Defendants entered into a special relationship with Mr. Long and are liable for increasing the danger to Mr. Long by affirmative acts of deliberate indifference and disregard for his safety. 39. Defendant Linder's failure and refusal to establish necessary procedures, adequately train school employees to deal with disabled children like Tyler Lee Long, and establish and enforce appropriate anti-bullying and anti-harassment policies constitutes deliberate indifference towards the safety of Mr. Long at the High School. Such actions were contrary to explicit duties, created to protect

students such as Mr. Long from such abuse. 40. Defendant Linder and High School officials and employees acted with deliberate indifference by deliberately choosing between various alternatives not to provide adequate training to High School officials and employees. 41. Defendant Linder and High School officials and employees' failure to effectively address Tyler Lee Long's disability and disability needs and the ongoing bullying problem establish Defendants' deliberate indifference to Mr. Long's rights.

15

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 16 of 25

42. Defendants are properly liable in damages to Plaintiffs for their deliberate indifference to the protection of Tyler Lee Long and for Plaintiffs' emotional anguish and strife caused by Mr. Long's resulting suicide. 43. Because Defendant Linder acted with reckless indifference to the protection of Tyler Lee Long, punitive damages are proper and recoverable against Defendant Linder.
COUNT II: VIOLATION 42 U.S.C. 1983 - EQUAL PROTECTION

44. Plaintiffs hereby reallege and reassert Paragraphs 1-6, 9-30, and 32-43 as if fully set forth herein. 45. As a result of his disability, Tyler Lee Long was intentionally treated differently from others similarly situated without any rational basis for the disparate treatment. 46. Defendants permitted and acquiesced
In

the harassment, bullying, and

physical and emotional assaults upon Tyler Lee Long on the basis of his disability

16

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 17 of 25

and deprived him of equal protection under the law. Their actions adopted and ratified the actions of the students, creating an environment of abuse and bullying within the High School. 47. Tyler Lee Long was treated differently than other similarly situated, nondisabled kids by High School officials, including Defendant Linder, based on his disability. 48. Defendant Linder's failure and refusal to establish necessary procedures, adequately train school employees to deal with disabled children like Tyler Lee Long, and establish and enforce appropriate anti-bullying and anti-harassment policies constitute deliberate indifference towards the safety of Mr. Long at the High School. 49. Defendant Linder and High School officials and employees acted with deliberate indifference by deliberately choosing between various alternatives not to provide adequate training to High School officials and employees.

17

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 18 of 25

50. Defendant Linder and High School officials and employees failure to effectively address Tyler Lee Long's special education needs and ongoing bullying situation establish Defendants' deliberate indifference to Mr. Long's rights.

51.
Defendants are properly liable in damages to Plaintiffs for their deliberate indifference to the protection of Tyler Lee Long and for Plaintiffs' emotional anguish and strife caused by Mr. Long's resulting suicide. 52. Because Defendant Linder acted with reckless indifference to the protection of Tyler Lee Long, punitive damages are proper and recoverable against Defendant Linder.

COUNT III: VIOLATIONS OF 29 U.S.C. 794 AND 42 U.S.C. 12132

53. Plaintiffs hereby reallege and reassert Paragraphs 1-6, 9-30, and 32-43, and 45-52 as if fully set forth herein. 54. Because Tyler Lee Long's Asberger's Disorder is a mental impairment which substantially limits one or more of his major life activities (learning and

18

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 19 of 25

social interaction, among others), he was a qualified individual with a disability under 504 of the Vocational Rehabilitation Act of 1973,29 U.S.C. 794, and the Americans with Disabilities Act, 42 U.S.C. 12132. 55. As a student at the High School, Tyler Lee Long was qualified for the School District and High School's services, programs, or activities. This included the right to a safe and bullying-free educational environment, and to a school with systematic and protective response to the abuse of students based upon their disability. Mr. Long, through his parents, sought protection and correction of the harassment from Defendants. Such actions were reasonable and necessary

responses to the known bullying at the High School. 56. Because of the High School administration and employees and Defendant Linder's deliberate indifference and failure to supervise and protect Mr. Long, he was denied the opportunity to participate in or benefit from the School District and High School's services, programs, or activities.

19

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 20 of 25

57. As a result of his Asberger's Disorder and accompanying social anxiety and awkwardness, Tyler Lee Long was subjected to continuous bullying, harassment, and physical and emotional abuse at the High School by reason of his disability. 58. The benefit of Tyler Lee Long's education at the High School is part of a program or activity receiving federal financial assistance. 59. At all relevant times, Defendant Linder and High School employees who failed to protect Tyler Lee Long from the constant bullying and harassment acted in bad faith and exhibited gross misjudgment. Such actions permitted and adopted the abuse, allowing it to reoccur. 60. Because of the constant bullying and harassment of Tyler Lee Long, Mr. Long was denied a free and appropriate education as provided for under Section 504, 34 C.F.R. subpart D. Such actions subjected Mr. Long to discrimination and harassment for being a person of disability by Defendants within the scope of subpart D, 104.4 and the Americans with Disabilities Act. failures to act were with knowledge and intentional. Such actions and

20

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 21 of 25

61.

Tyler Lee Long's death means that there are no further claims under the Individuals with Disabilities Act, 20 U.S.C. 1400 et. seq., and any administrative exhaustion of remedies under 1415 would be futile. Defendant School District cannot afford Plaintiffs any further relief under the Individuals with Disabilities Act. 62. Plaintiffs are entitled to recover monetary damages for Defendants' violations 42 U.S.C. 12132 and 29 U.S.C. 794. COUNT IV: PUBLIC NUISANCE 63. Plaintiffs hereby reallege and reassert Paragraphs 1-6, 9-30, 32-43, 45-52, and 54-62 as if fully set forth herein. 64. Defendants' failure to fulfill their obligations to Tyler Lee Long, as a disabled student, and other students who were bullied at the High School affects rights which are common to all within a particular area.

21

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 22 of 25

65. As a disabled student, Tyler Lee Long was entitled to, among other things, an IEP and the right to be protected from regular physical and mental ridicule and bullying by Defendants and other High School officials and administrators. 66. Defendants' failure to protect Tyler Lee Long caused Mr. Long and his family and other similarly situated students hurt, inconvenience, or damage, and constitutes an act or omission which obstructs or causes inconvenience to the public. 67. As a result, Plaintiffs are entitled to recover monetary damages for Defendants' creation and toleration of a public nuisance.

COUNT V: ATTORNEY'S FEES UNDER 42. U.S.C. 1988

68. Plaintiffs hereby reallege and reassert Paragraphs 1-6, 9-30, 32-43, 45-52, and 64-67 as if fully set forth herein. 69. Because Defendants violated Tyler Lee Long's federally protected rights under 42 U.S.C. 1983 and the United States Constitution, Plaintiffs are entitled to 22

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 23 of 25

recover their attorney's fees and expenses provided by 42 U.S.C. 1988 and other relevant federal statutes.
COUNT VI: PUNITIVE DAMAGES

70. Plaintiffs hereby reallege and reassert Paragraphs 1-6, 9-30, 32-43, 45-52, 54-62, and 64-67, as if fully set forth herein. 71. Defendants, including High School employees acting within the scope and course of their employment with the High School, have acted willfully, wantonly, recklessly, and/or with a conscious indifference to the health, safety, and well being of Tyler Lee Long and Plaintiffs, for which punitive damages are recoverable. 72. Plaintiffs are entitled to punitive damages against Defendants, including High School employees acting within the scope and course of their employment with the High School, to punish Defendants for their egregious and conscious disregard for the safety of Tyler Lee Long and deter the Defendants and the High School from such behavior towards other students in the future.

23

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 24 of 25

WHEREFORE Plaintiffs David and Tina Long pray as follows: (a) That the Court declare Defendants' actions, policies, and practices complained herein violated the rights of Tyler Lee Long as secured by 42 U.S.C. 1983,29 U.S.C. 794, and 42 U.S.C. 12132; (b) Award Plaintiffs compensatory and punitive damages for Defendants' violation of Tyler Lee Long's civil rights violations and deter Defendants from future similar behavior towards other High School students; (c) Award Plaintiffs' attorney's fees and costs pursuant to 42 U.S.C. 1988; (d) (e) Grant Plaintiffs a trial by jury; and Award Plaintiffs any additional relief that this Court deems appropriate.

24

Case 4:10-cv-00015-HLM Document 1

Filed 01/29/10 Page 25 of 25

Respectfully submitted this 27th day of January,

I

/1/

w. WINSTO

RIGG State Bar of Georgia No. ROBERT F. GLASS State Bar of Georgia No. 115504
W. WINSTON BRIGGS LAW FIRM

1005C Howell Mill Road Atlanta, Georgia 30318 404.522.1500 (Telephone) 404.574.2967 (Facsimile)

J NAT AN ZIMRING State Bar of Georgia No. 7852

ZIMRING LAW FIRM

114 New Street, Suite K-l Decatur, Georgia 30030 404.607.1600 (Telephone) 404.607.1355 (Facsimile)
Attorneys for Plaintiffs

25