M.S. v. SEMINOLE COUNTY SCHOOL BOARD

JOHN ANTOON II, District Judge

This cause is before the Court on Plaintiff's Motion for Summary Judgment (Doc. 54). Defendant Kathleen Mary Garrett ("Garrett") has filed a Response (Doc. 86), and the Court now issues the following ruling thereon.

Plaintiff requests that this Court grant summary judgment against Garrett on the following issues: (1) whether Garrett's conviction for felony child abuse regarding her actions towards M.S. estops her from denying liability; (2) whether Garrett was the proximate cause of injuries allegedly suffered by M.S.; (3) whether Garrett is entitled to the defense of qualified immunity; (4) whether Garrett is entitled to a defense based on the doctrine of in loco parentis; (5) whether M.S. is under a duty to mitigate his damages; and (6) whether M.S. is required to exhaust any administrative remedy. (Doc. 54 at 1). In this Court's July 10, 2009 Order denying summary judgment against Plaintiff, the Court has already held that Garrett is not entitled to the defense of qualified immunity. (Doc. 114 at 15). Regarding Garrett's affirmative defense that M.S. lacks standing because of a failure "to exhaust administrative remedies available under 20 U.S.C. § 1400 and 29 U.S.C. § 794," (Doc. 31 at 9), Plaintiff has asserted no claims under these statutes and is therefore not required to exhaust any administrative remedies available thereunder. As to the remaining issues, material issues of fact remain which preclude the entry of summary judgment in the favor of Plaintiff.

In accordance with the foregoing, Plaintiff's Motion for Summary Judgment (Doc. 54) is GRANTED IN PART and DENIED IN PART. The motion is GRANTED in that Defendant may not assert the affirmative defense of failure to exhaust administrative remedies and is DENIED as to the remaining issues presented in Plaintiff's motion.

DONE and ORDERED in Chambers, Orlando, Florida.