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LAW OFFICES OFKrnscn-GooDwtN & KrRsclr, PLLC

8900 E. Pr,r'rRcle PEAK RoAD. SurE 250ScotrsoauE, ARtzot\A gS2Ss

(480) s85-0600Fru( (480) 585-0622

Hope N. Kirsch, #018822hope@koklaw.comffiwin,#010233lko@koklaw.comAttorneys for Plaintiffs

ERIC NOYES and LESLIE NOYES,husband and wife, as Parents and NextFriend of their Minor Child, T.N.,

Plaintiffs,vs.

DEER VALLEY UNIFIED SCHOOLDISTRICT NO. 97; DESERT SAGEELEMENTARY SCHOOL; JOHN ANDJANE DOES l-X; ABC BUSTNESSENTITIES A-C; WHITECORPORATIONS l-V; and BLACKPARTNERSHIPS I-V,

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

No. cv201 2-055589

COMPLAINT(Tort, Non-Motor Vehicle: Assault andBatterv: False lmprisonment:

!X?S,i1fl5['5i'iff m]ff li{"ii"",ia,Distress)

Defendants.

Plaintiffs, ERIC NOYES and LESLIE NOYES, husband and wife, as Parents

and Next Friend of their Minor Chald, T.N. (collectively hereafter, "the Plaintiffs'), byand through undersigned counsel, as and for their Complaint against the above-named Defendants (collectively hereafter, "the Defendants'),.herein state andallege upon information and belief as foilows:

NATURE OF. THE.CASEF \

This case arises from injur,irEFrit3,?g$ror T.N. as a resurt of beins1.

RUN 15

I,IICHAEL |(. JERNESClerk of the Superior Cou

Dy fiuth Bortlett, DputvD€te m/$A0H line l6:Xl:24

Dmcri.ption8ffiE$ C1j20U{S689

SIUIL ffiU fl}FLAINI

TOIfl- fiHIJI{TReceipt[ 445U45

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restrained and secluded while a student at Desert Sage Elementary School withinthe Deer Valley Unified School District, and from the failures of schoof and districtstaff/personnel and administration to intervene and to report the abuse.

THE PART|ES, JUR|SD|CTION AND VENUE

2. Plaintiffs Eric Noyes and Leslie Noyes are a married couple and theparents and guardians of T.N., a minor child. They are all, and at all relevant timeswere, residents of and domiciled in the State of Arizona, Maricopa County.

3. T.N.'s parents bring this claim as their son's next friend, pursuant toArizona Rules of civil Procedure, Rule 17(g), and in their own right.

4. Defendant DEER VALLEY UNIFIED SCHOOL DISTRIOT No. 97('DVUSD") is a public school district located in Maricopa Coung and, as such, apublic entity legally constituted within the State of Arizona.

5. Defendant DESERT SAGE ELEMENTARY SCHOOL is an elementaryschool within the DVUSD and, as such, a public entity legally constituted within theState of Arizona.

6. On or about July 16, 2012, Plaintiffs timely served DVUSD and DesertSage Elementary School with a Notice of Claim pursuant to A.R.S. Section 12-821.01, to which no response was received.

7. DEfendants JOHN AND JANE DOES I.X, ABC BUSINESS ENTITIESl-X, WHITE CORPORATIONS l-V, and BLACK PARTNERSHIPS l-V are, and at allrefevant times were, students andlor employees, agents, or independent

contractors alleging to be acting within the scope. of their employment andloragency and/or in concert with the named Defendants who or which may havecaused or contributed to the events alleged in this Complaint, and any amended orsupplemental complaint, and/or may be liable to Plaintiffs. Plaintiffs will amend this

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Complaint to reflect the true names and identities of such individuals, partnershipsand corporations as such names become known.

8. All acts and omissions alleged herein occurred in Maricopa County,Arizona, out of which Plaintiffs' claims arise.

9. The amount in controversy in this matter exceeds the Court's minimaljurisdictional limit.

10. Personal jurisdiction, subject matter jurisdiction and venue are properin this Court.

11. T.N. is an eight year old boy who was, at all relevant times, a student

enrolled in DVUSD and attending Desert sage Elementary school.

12, All incidents relevant to this Complaint took place during the 2011 to2a'12 school year when T.N. was in second grade and seven years old.

13. While T.N. was a student at Desert Sage Elementary School, he wasprovided various food ilems which he was not allowed to eat due to severe food allergies.DVUSD personnel had knowledge of his food allergies. Parents had informed DVUSDpersonnel of T,N. food allergies, for example, ingesting foods containing sugar caused

behavioral issues. Parents informed DVUSD personnelthat T.N. was on a very strict,controlled diet and must avoid allfoods that cause an allergic reaction. School personnel

stated that T.N.'s food allergies and T.N.'s behavior were two separate issues and thatT.N.'s behavior could not be impacted by food.

14. T.N. had a 504 Plan that set forth T.N.,s allergies.

15' T.N.'s parents informed school personnel of T.N.'s food allergies andprovided T.N.'s lunch on a daily basis to ensure that T.N. ate only the food that he wasprovided. DVUSD personnel did not provide a copy of T.N.'s food allergies to the AfterSchool Program. DVUSD personnel did not inform Desert Sage Elementary School

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personnel in the cafeteria of T,N.'s food allergies until sometime in January, 2012. T.N.was provided food items in the Desert Sage Elementary School cafeteria by cafeteria staffwhich foods caused allergic reactions;this occurred on a daily basis,

16. During the 2010-2011and 201 1-2012 school years, Desert SageElementary School had a room with dimensions approximately five feet by six feet,and seven feet high, which was located on the lowest floor of the schobl building.The interior was padded with vinyl covered tack material. The room had no

window. There was a ohe way vision peep hold approximately five feet above theground. A child inside the room could not see out of the room once the door wasclosed. The room had no furniture. The said room will hereinafter be referred to asthe "seclusion room." DVUSD has referred to the'seclusion room as the "cool downroom" and "CDR."

17. Defendants would punish T.N. by grabbing him and dragging him down

the hallway, forcing his head down toward the floor with two teachers on either sideof T.N. which T.N. to fall on more than one occasion, causing injuries. One staff,

Sarah Garner, fell on top of T.N. while walking him in this manner and dropped T.N.on his head. School personnelwould threaten T.N. with removing him to the cooldown room.. School personnel punished T.N. by placing him in the seclusion room.T.N. was put in the seclusion room no less than eleven (11) times by one account,seventeen (17) times by another account, while attending Desert Sage ElementarySchool. Defendants investigated only three occasions when T.N. was forciblyremoved from his classroom and placed in the seclusion room. Defendants

reported to T.N,'s parents only three of the occasions that T.N. was restrained andplaced in the seclusion room: the December 12,2011incident and the January 10,2012 incident.

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18. T.N. had no human contact during his placement in the seclusion roomand showed signs of respiratory distress and panic attacks.

19. Defendants have since admitted it failed to notify T.N.'s parents aboutseveraf of the incidents an incident on January 27,2012 that DVUSD investigated.

20. Documents provided by DVUSD in response to a public records /Freedom of Inforrnation Act request revealthat T.N. was put in seclusion at leasteleven (11) times. DVUSD has revealed the frequency was closer to seventeen(17),times. There may in fact have been many more times. T.N. reports he was inthe seclusion room four (4) days every week between October oI2011 andFebruary 2012.

21. T.N. suffered multiple bruises and scratches from Defendantsrestraining him and removing him to the seclusion room. Despite T.N.'s parents,repeated complaints to Defendants regarding T.N.'s food and chemical aflergiesand the necessi$ to refrain from giving him products which contained sugar, fooddyes, artificial sugar, and other items to which he was severely allergic, Defendantsdisregarded the parents' instructions, ignored the 504 which was in place, andfailed to communicate with T.N.'s parents when T.N. was punished for perceivedbehavioral issues when the issues were a result of T.N.'s allergic response tounauthorized food items consumed while at school and exposure to chemicalagents used to clean the carpeting, bathrooms, tables and other areas of.theschool.

22:,. When T.N. had behavioral issues, he would suffer multiple scratches,bruises, and bruises to his ankles at the hands of Defendants who personally andphysically restrained him face down on the floor forcing him to inhale residue fromcarpet cleaning chemicals to which he is severely allergic and putting pressure onhis back, and placed him in the seclusion room. In one incident, teachers

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restrained T.N.'s arms and forced him to walk to the isolation room with his headpointed to the ground. As a result, T.N. tripped, hit his head and suffered injuries, inpart due as well to Sarah Garner falling on top of T.N..

23. Defendants viotated T.N.'s 504, which stated he required fresh air. Byforcing him into the seclusion room, T.N. was denied fresh air. He was atso deniedthe use of a bathroom during his seclusion and had twice urinated on himself whendenied access to a bathroom, for which he was reprimanded. The 'behaviorist"

claimed T.N. was urinating on himself to "get attention," apparently ignoring howhumiliating the act of urinating on oneself is for a little boy. T.N. was furtherhumiliated and embarrassed when Defendants ordered T.N. to change his clothesin front of them after he wet himself.

24. During other incidents, teachers threatened T.N. with seclusion. T.N.became afraid of the seclusion room, had difficulties sleeping at home and was in aconstant state of anxiety and fear while attending Desert Sage Elementary School.Defendants would threaten T.N. with restraint if he did not go with them to theseclusion room. There were times when three adults took turns holding T.N. down.There were other incidents when Defendants would hold T.N. face down on thefloor, causing him to inhale allergens and chemicals. On at least two occasions,

T.N. was forced to eat his lunch on the filthy floor in the seclusion room and servedorange chicken which was on his list of "do not eat' because of the high sugarcontent.

25. Defendants violated DVUSD restraint and seclusion policies andprocedures. For instance, Defendants overused the restraint and seclusion policy,

and failed to notify T.N.'s parents of the incidents. Defendants also did not useseclusion as a "last resort." Defendants threatened T.N. with seclusion. Other

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students involved in the same or similar incidents were not subjected to threats ofseclusion, or to restraint and seclusion. T.N. was singled out for his special needs.

26. Defendants actions were intended to humiliate and embarrass T.N. asevidenced by refusal to allow him to use the bathroom, forcing him to change infront of a staff member, and on one occasion a paraprofessional threatened torestrain T.N. out on the field in view of everyone, then proceeded to do so, thendragged T.N. from the field after an incident with another boy. The other boy wasnot treated in the same manner.

27. As a direct and proximate result of Defendants' repeated overlypunitive actions and false imprisonment, T.N. missed out on school, suffered

nightmares, sleep disturbance, and stomach aches; he has been frightened, andhas suffered serious personal and emotional injuries. As a direct result of theemotional and physical abuse suffered at the hands of Defendants, T.N.'s conditionworsened.

28. T.N.'s parents have incurred, continue to incur, and are expected toincur in the future, costs and expenses, including educationaf and medical expensefor treatment of T.N.'s harm as well as transportation costs related to sending him

to a school outside his area.

COUNT I

ASSUALT AND BATTERY

29. Plaintiffs incorporate by reference all foregoing paragraphs andallegations as if fully set forth herein.

30. Defendants' actions exceeded the scope of reasonable discipline andauthority and therefore amount to an unauthorized touching of r.N.

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31. Defendants' actions were intended to instill fear and apprehension inT.N. and to cause harmful and offensive contact with T.N., and T.N. was aware ofthat intent.

32. Defendants'actions did in fact cause harmful and offensive contactwith T.N.

33. Defendants'actions amount to common law assault and offensivetouching battery.

34. As a direct and proximate cause of Defendants' actions, T.N. suffereddamages which are likely to continue in the future.

COUNT II

FALSE IMPRISONMENT

35. Plaintiffs incorporate by reference all foregoing paragraphs andallegations as if fully set forth herein.

36. Defendants acted intentionally in placing T.N. in the seclusion roomand forcing him to remain there without permission to leave.

37. Defendants acted without lawful authority and without T.N. or hisparents' consent in placing him there

38. Defendants' acts resulted in the direct restraint of liberty or freedom ofmovement, by actual and fear of force.

39. Defendants'failure to prevent T.N. from being placed and kept in thatseclusion room and taking away his liberty and freedom of movement wasparticipation in false imprisonment.

40. Defendants'actions would cause a reasonably prudent person in thesame situation as T.N. to believe that he was restrained.

41. T.N. was aware of the restraint.

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42, All the Defendants participated in the act of false imprisonment byaiding one another and failing to prevent or stop the false imprisonment of T.N.

43. As a direct and proximate cause of Defendants'actions, T.N. suffereddamages which are likely to continue in the future.

couNT ill

NEGLIGENCE

44. Plaintitfs incorporate by reference allforegoing paragraphs andallegations as if fully set forth herein.

45. Defendants owed T.N. a duty of care not only as their student but as aperson legally on their premises. .

46. As a result of the incidents that occurred on the said Defendants'premises during school hours and said Defendants'actions and inactions, includingignoring directives regarding allergies, T.N. suffered allergic reactions, and T.N.was attacked and seriously injured and continues to suffer from problems direcflyproximately related to the attack that occurred at Desert Sage Elementary Schooland on its property.

47. Said Defendants breached their duty of care to T.N. and his parents byallowing these acts to occur, failing to take action to prevent such acts from

occurring and failing to timely notiff T.N.'s parents.

48. Said Defendants breached their duty of care by failing to haveadequate and proper superuision of students, failing to abide by directives to avoidexposure to chemical and food allergens, and allowing the attacks to occur.

49. As a direct and proximate cause of Defendants' breaches, T.N.suffered damages which are likely to continue in the future.t t t

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COUNT IV

GROSS NEGLIGENCE

50. Plaintiffs incorporate by reference all foregoing paragraphs and

allegations as if fully set forth herein.51. Defendants, tn loco parenfrrs, are professionals charged with caring for

and protecting the health, welfare and safety of the young students.52. Defendants were grossly negligent in allowing T.N. to be exposed to

chemical and food allergens.

53. Defendants were grossly negligent in allowing T.N. to be repeatedlyrestrained and forcibly placed in seclusion.

54. Defendants were grossly negligent in failing to contact T.N.'s parents tonotifo about them of each incident and failing to address the causes of T.N.'sbehavior problems.

55. Defendants' conduct in allowing exposure to food and chernicalallergens was willful, wanton and done with reckless disregard to the result, or theright or safety of this young boy, constituting gross negligence.

56. Defendantsr actions of restraint and seclusion and their actions

subsequent were willful, wanton and done with reckless disregard to the result, orthe right or safety of this young boy, constituting gross negligence.

57. Defendants' actions were intentionally malicious and their willfulmiscondu"

T::::J,I#l:i:':[::. nesrisence, r N suffered damageswhich are likely to continue in the future.

couNT yTNTENTTONAL tNFLtCTtON OF FMOT|ONAL pISTRESS

59. Plaintiffs incorporate by reference atl foregoing paragraphs and

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allegations as if fully set forth herein.

60. Defendants knew or should have known that T.N. is a special needsstudent with problems with sociat skills and, among other problems, sensory issues.

61. Defendants knew their conduct involved an unreasonable risk ofcausing T.N. emotional distress.

62. Defendants' conduct was extreme, intentional, outrageous, and wasperformed in reckless disregard of the near certainty that such distress would resultfrom its conduct.

63. T.N. and his parents did in fact sustain severe emotional distress as aresult of Defendants' wrongful conduct.

64. As a direct and proximate result of Defendants'actions and omissions,

T.N. and his parents have suffered and continue to suffer substantial and

irreparable damages which are likely to continue in the future.

COUNT VI

LOSS OF CONSORTIUM

65. Plaintiffs incorporate by reference allforegoing paragraphs and

allegations as if fully set forth herein.

66. As a direct and proximate result of Defendants' actions and inactions,

Plaintiffs Eric Noyes and Leslie Noyes have suffered and continue to suffer a loss ofconsortium.

WHEREFORE Plaintiffs pray for judgment against Defendants, and each ofthem, as follows:

A. For compensatory, special and general damages;

B. For costs, expenses and experts fees and costs;C. For attorneys' fees, if allowed under any statutory or common law

authority;

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D.

E.

For pre- and post-judgment interest at the highest legal rate available

on all amounts from the earliest possible date until paid; and

For such and further relief as the Court deems appropriate.t 17

DATED this l2 tn d.y of September, 2012.

KIRSCH.GOODWIN & KIRSCH. PLLC

8900 E. Pinnacle Peak Road, Suite 250Scottsdale, Arizona 85255Attorneys for Pl ai ntifts