2:14-cv GAD-RSW Doc # 1 Filed 07/10/14 Pg 1 of 15 Pg ID 1 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Transcription

1 2:14-cv GAD-RSW Doc # 1 Filed 07/10/14 Pg 1 of 15 Pg ID 1 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION LAKISHA SWIFT, Personal Representative of the Estate of KEAIR SWIFT, Deceased, vs. Plaintiff, Case No: Hon: Magistrate: EAST DETROIT PUBLIC SCHOOLS, JAMES REED, MARY FINNIGAN, SHARON OLIVER, NICOLE KIRBY, JOHN RIZZO, MARK WEIGAND and JOHNATHAN SAILS, in their individual and official capacities, Defendants. GEOFFREY N. FIEGER (P30441) JAMES S. CRAIG (P52691) Attorneys for Plaintiff W. Ten Mile Road Southfield, MI (248) COMPLAINT AND JURY DEMAND NOW COMES the Plaintiff, LAKISHA SWIFT, Personal Representative of the Estate of KEAIR SWIFT, Deceased, by and through her attorneys, FIEGER, FIEGER, KENNEY, GIROUX & HARRINGTON, P.C., and in support of this Complaint states as follows: PRELIMINARY STATEMENT This is a civil rights action commenced under Title 42 of the United States Code, 1983 and other applicable provisions of the laws of the United States and is being brought to redress the 1

2 2:14-cv GAD-RSW Doc # 1 Filed 07/10/14 Pg 2 of 15 Pg ID 2 personal injuries and eventual death of Keair Swift. This action involves claims commenced under 42 U.S. Code 1983 for deprivation of rights guaranteed by the due process clause as set forth in the Fourteenth Amendment to the United States Constitution. JURISDICTION AND VENUE 1. This civil action arises under the Constitution and laws of the United States and, therefore this Court has jurisdiction pursuant to 28 U.S.C and Plaintiff's claims arise from an incident which occurred in East Detroit, Michigan, County of Macomb, which makes venue proper pursuant to 28 U.S.C PARTIES 3. LAKISHA SWIFT, was the natural mother of KEAIR SWIFT and is the duly appointed Personal Representative of the Estate of KEAIR SWIFT, Deceased. 4. KEAIR SWIFT, prior to and at the time of his death, was a minor, 14 years of age and was a citizen of the United States and State of Michigan residing in Detroit, Michigan with his mother, LAKISHA SWIFT. 5. Defendant, EAST DETROIT PUBLIC SCHOOLS, (hereinafter referred to as EDPS ) is a governmental entity organized and existing in accordance with Michigan law. EDPS is a public school system that serves students who live in Macomb County as well as those who live in Wayne, Oakland, St. Clair and Lapeer Counties. Its main office is located at Kelly Road, Eastpointe, Michigan. 6. At all times relevant, Defendant, EDPS owned, operated, and controlled East Detroit High School, a high school in Eastpointe, Michigan which serves students in grades

3 2:14-cv GAD-RSW Doc # 1 Filed 07/10/14 Pg 3 of 15 Pg ID 3 7. At all times relevant, Defendant JAMES REED (hereinafter, REED ) was a teacher at East Detroit High School and was an officer, employee and/or agent of Defendant, EDPS, acting under color of the statutes, customs, ordinances and usages of the district within the meaning of 42 U.S.C At all times relevant Defendant MARY FINNIGAN (hereinafter, FINNIGAN ) was the Head Principal of East Detroit High School and was an officer, employee and/or agent of Defendant, EDPS, acting under color of the statutes, customs, ordinances and usages of the district within the meaning of 42 U.S.C At all times relevant, FINNIGAN was responsible for the hiring, employment, training, supervision, and/or conduct of East Detroit High School's teachers, physical education instructors and swim instructors. 10. At all times relevant, Defendant JOHN RIZZO, (hereinafter, RIZZO ) was the Assistant Principal at East Detroit High School and was an officer, employee and/or agent of Defendant, EDPS, acting under color of the statutes, customs, ordinances and usages of the district within the meaning of 42 U.S.C At all times relevant, Defendant RIZZO shared responsibility for the day to day operation of East Detroit High School, including the hiring, employment, training, supervision, and/or conduct of the High School's teachers, physical education instructors and swim instructors. 12. At all times relevant, Defendant MARK WEIGAND, (hereinafter, WEIGAND ) was the Assistant Principal at East Detroit High School, acting under color of the statutes, customs, ordinances and usages of the district within the meaning of 42 U.S.C

4 2:14-cv GAD-RSW Doc # 1 Filed 07/10/14 Pg 4 of 15 Pg ID At all times relevant, Defendant WEIGAND was responsible for the day to day operation of the physical education department at the high school, including the hiring, employment, training, supervision, and/or conduct of the physical education instructors and swim instructors. 14. At all times relevant, Defendant NICOLE KIRBY, (hereinafter, KIRBY ) was the Assistant Principal at East Detroit High School, acting under color of the statutes, customs, ordinances and usages of the district within the meaning of 42 U.S.C At all times relevant, Defendant KIRBY shared responsibility for the day to day operation of East Detroit High School, including the hiring, employment, training, supervision, and/or conduct of the High School's teachers, physical education instructors and swim instructors. 16. At all times relevant, Defendant SHARON OLIVER, (hereinafter, OLIVER ) was an Administrative Assistant at East Detroit High School, acting under color of the statutes, customs, ordinances and usages of the district within the meaning of 42 U.S.C At all times relevant, Defendant JOHNATHAN SAILS (hereinafter, SAILS ) was a substitute teacher at East Detroit High School and was an officer, employee and/or agent of Defendant, EDPS, acting under color of the statutes, customs, ordinances and usages of the district within the meaning of 42 U.S.C At all times relevant, Defendant EDPS had a duty and/or responsibility to provide all students at East Detroit High School with a safe environment in which to attend school. 19. At all times relevant, Defendant EDPS had a non-delegable duty to comply with specific statutes enacted to protect the students in the School District, including Michigan Public Health Code, Rule (1)-(3). 4

5 2:14-cv GAD-RSW Doc # 1 Filed 07/10/14 Pg 5 of 15 Pg ID As a governmental entity, pursuant to Public Act 368, R Defendant EDPS had a non-delegable duty to provide a certified and qualified lifeguard at the swimming pool at all times. COMMON FACTUAL ALLEGATIONS 21. Plaintiff incorporates by reference all aforementioned paragraphs as though fully set forth herein. 22. Keair Swift was a 14 year-old ninth grade student in the Fall of KeAir had been a Detroit resident who enrolled at East Detroit High School as part of the schools-of-choice program. 23. As part of the high school s curriculum, all ninth grade students were required to take physical education. The physical education program consisted of three-week segments of gym, swimming and health classes. 24. According to the curriculum established by the school, the physical education teacher assigned to the class was in charge of his/her students for all three segments of physical education. The assigned teacher would take his or her students to the gym, to the pool or to a classroom for health class. 25. According to school policy, swim activities were a mandatory part of the physical education program. 26. By mandating attendance and participation in the swim program, EDPS assumed a special relationship with Keair Swift in the Fall of

6 2:14-cv GAD-RSW Doc # 1 Filed 07/10/14 Pg 6 of 15 Pg ID Within the context of this special relationship, EDPS had a Constitutional duty to maintain a safe environment and to protect Keair Swift while he was in their custody. 28. During the school year, EDPS and East Detroit High School had not adopted any safety policies or procedures associated with the proper supervision of students at the East Detroit High School swimming pool during school mandated swim activities. 29. In the fall of 2013, a physical education instructor named Amy Altman gave notice to the district that she was leaving her position as a full-time physical education teacher at East Detroit High School. 30. Amy Altman had been one of three (3) physical education instructors who taught gym, health and swim as part of the physical education curriculum at East Detroit High School. 31. Upon the departure of Amy Altman, Defendants placed a substitute teacher named JOHNATHAN SAILS in her class. SAILS had no water safety qualifications or lifeguard training whatsoever. In fact, SAILS was not even certified to teach physical education or health. 32. Upon Altman s departure, no one of authority at EDPS, from the Superintendent to the high school Principals, Athletic Director and Physical Education Director made any arrangements for the presence of a certified lifeguard at the pool for the remainder of Altman s class, as required by Michigan Public Health Code, Rule When SAILS took charge of Altman s skinny hour swim class, SAILS was given no instructions or directions. Moreover there were no pool rules or regulations for student safety even though Keair and many of his classmates could not swim. 6

7 2:14-cv GAD-RSW Doc # 1 Filed 07/10/14 Pg 7 of 15 Pg ID During swim class while SAILS was in charge, students were given no instruction and were typically left unsupervised, despite the fact that most students did not know how to swim. 35. In the days leading up to Keair s death, there was widespread knowledge and notice among members of EDHS, including administrators and faculty, SAILS was not certified as a lifeguard as required by state law, was not properly in swimwear for his assignment and was not effectively monitoring the students under his care. 36. Prior to Keair s drowning, David Zauner contacted RIZZO, the Athletic Director for EDHS, about his concerns over the danger posed by SAILS lack of proper supervision in the swimming pool, his lack of lifeguarding credentials, as well as him allowing beginning swimmers access to the deep end. 37. After hearing these warnings RIZZO did nothing and ignored an excessive risk that the safety of its students had been, was being, and would continue to be compromised at the pool. 38. Prior to Keair s drowning, David Zauner also spoke to WEIGAND, the director of the physical education department, about his continued concerns over SAILS and the danger he posed by his lack of proper supervision in the swimming pool. 39. Zauner specifically warned WIEGAND that SAILS needed to be removed from the pool for the safety of the students. 40. After hearing these warnings, WEIGAND also did nothing and ignored an excessive risk that the safety of the students had been, was being, and would continue to be compromised while at the swimming pool. 7

8 2:14-cv GAD-RSW Doc # 1 Filed 07/10/14 Pg 8 of 15 Pg ID Upon information and belief, REED also informed RIZZO and WIEGAND that SAILS pool classes were chaotic and out of control. 42. Upon hearing these warnings RIZZO and WEIGAND did nothing and continued to ignore an excessive risk to the safety and well being of the beginning swim students. 43. In fact no one, from the Superintendent to EDHS Principals, Athletic Director or Physical Education Director took any action to address the concerns of teachers who were alerting them to the fact that SAILS was not properly supervising the students in the pool and had no water safety or lifeguard qualifications, exhibiting deliberate indifference to the foreseeable danger. 44. On Friday, November 1, 2013, SAILS and REED met with Sharon OLIVER to discuss transition days for the following weeks physical education classes. SAILS informed OLIVER at that time that he had been teaching students at the swimming pool. 45. According to policy within the physical education department, a substitute was not allowed to be in charge of students in the pool area EVER. 46. Upon learning that SAILS was teaching as the pool, OLIVER told both SAILS and REED that the high school had no lifeguard certification for SAILS on file. OLIVER then told SAILS that he could continue at the pool during the skinny hour swim class. 47. OLIVER then logged into the schools substitute placement system (AESOP) and assigned SAILS to the swimming pool through Friday, November 8, 2013, knowing full well that there was no lifeguard certification on file for SAILS. 8

9 2:14-cv GAD-RSW Doc # 1 Filed 07/10/14 Pg 9 of 15 Pg ID After learning that SAILS was teaching at the pool OLIVER deliberately chose to ignore the known danger that a substitute teacher, with no lifeguard certification, was in charge of students who had limited or no swimming skills. 49. On November 8, 2013 at approximately 12:26 p.m. Keair Swift, along with several of his classmates went to the pool for swimming activities. Keair, a non-swimmer, was in his last day of a three-week swim class that was a mandatory part of the school s physical education program. 50. The only adult supervising Keair s class at that time was SAILS, who had been assigned by OLIVER to be at the pool through Friday, November 8, During swim class on November 8, 2013, SAILS took his usual place at the top of the bleachers with his back facing the students in the pool. As class began, the students engaged in horseplay in and around the swimming pool, as was typical in SAILS class. 52. Sometime after 12:55 p.m., Keair Swift jumped into the deep area of the swimming pool. Immediately upon entering the deep area, Keair began to struggle to keep his head above the surface. 53. As Keair struggled, students nearby attempted to try to rescue him while other students alerted SAILS, the teacher in charge of the pool area, to the fact that Keair was drowning and needed help. 54. At the time, SAILS was sitting in the bleachers of the pool area, not on the deck. When students approached him to alert him that Keair was struggling in the water, SAILS told them that Keair was fooling around. 9

10 2:14-cv GAD-RSW Doc # 1 Filed 07/10/14 Pg 10 of 15 Pg ID After hearing their concerns, SAILS then willfully, wantonly, and recklessly blew off the warnings of the students. 56. After brushing off the students initial pleas for help, SAILS eventually went to the pool area to look for himself. When he realized Keair was struggling underwater, instead of jumping into the pool to save him, SAILS casually went to the locker room, leaving Keair struggling underwater. 57. As Keair continued to drown in the deep end, JAMES REED, a newly hired physical education instructor, went to the pool and observed Keair drowning. Instead of attempting to rescue him from the pool, REED left the pool area, leaving Keair to drown. 58. During this time Keair continued to struggle in the deep water for a period that lasted five minutes or longer. 59. Eventually SAILS returned from the locker room, still dressed in his street clothes. After casually undressing at the side of the pool, SAILS entered the pool in a hasty effort to rescue Keair. 60. Seconds later, SAILS emerged from the water stating the water was too deep and that he could not swim. 61. Security guards were eventually alerted to the fact that a student was drowning and radioed for help. Upon hearing the emergency call through his walkie talkie, David Zauner, a physical education teacher serving as a temporary assistant principal, immediately ran to the pool. 62. Upon seeing Keair underwater and in obvious distress, Zauner jumped into the water to rescue him, pulling his body from the bottom of the pool. 10

11 2:14-cv GAD-RSW Doc # 1 Filed 07/10/14 Pg 11 of 15 Pg ID By the time Keair was ultimately retrieved from the pool he was found to be not breathing and non-responsive. 64. Notwithstanding attempts to revive him, including subsequent EMS efforts, Keair suffered severe brain damage due to lack of oxygen from the profound length of time underwater. After being resuscitated by emergency personnel, Keair was taken to St. John Hospital in Detroit where he was put on life support. 65. Keair then remained on life support for approximately four (4) days until he eventually died from his injuries. COUNT I FOURTEENTH AMENDMENT DUE PROCESS VIOLATION (State Created Danger) 66. Plaintiff incorporates by reference all aforementioned paragraphs as though fully set forth herein. 67. Defendants, REED, SAILS, FINNIGAN, RIZZO, KIRBY and OLIVER were, at all times material, "persons" for the purpose of 42 U.S.C. 1983, acting under color of state law and were acting within the scope of their employment with EDPS. 68. By having custody of Keair and requiring he participate in swim activities Defendants had a special relationship with Keair and had an affirmative duty to keep him safe. 69. By ignoring repeated warnings and by failing to follow the mandates of clearly established law, including Michigan Public Health Code, Rule , school officials acted with deliberate indifference to a known foreseeable danger. Any reasonable school official would 11

12 2:14-cv GAD-RSW Doc # 1 Filed 07/10/14 Pg 12 of 15 Pg ID 12 have understood that failing to respond to these warnings would constitute deliberate indifference to the children s right to safety. 70. By willfully disregarding the need for adequate lifeguards to carefully supervise young children in the high school swimming pool and by being deliberately indifferent to warnings from other teachers, Defendants created a dangerous, albeit deadly situation and made Keair more vulnerable to the danger of a foreseeable drowning. 71. By their actions, Defendants created a danger and placed Keair in a position of danger he would not otherwise have faced in the following ways: a. Failing to provide proper supervision to Keair, a minor, who did not know how to swim, demonstrating a reckless lack of concern whether injury or drowning would occur; b. Egregiously assigning SAILS, a substitute teacher with no water safety qualifications or training, to be at a pool to supervise beginning swimmers; c. Recklessly opening the pool for beginning and non-swimmers when the only monitor was an untrained, unqualified substitute teacher; d. Deliberately ignoring the concerns of other teachers who were alerting them to the fact that the substitute teacher in charge of the pool was not properly supervising the students in the pool and had no water safety or lifeguard qualifications, exhibiting deliberate indifference to the foreseeable danger; e. Deliberately failing to enforce their own policy that the pool would not be open without the presence of an appropriately trained lifeguard; f. Allowing non-swimmers access to the deep end without appropriate supervision, demonstrating a reckless lack of concern whether injury or drowning would occur; g. Consciously violating the provisions/requirements of Michigan Public Health Code, Rule (1)-(3) in failing to provide a certified lifeguard at the high school swimming pool; 12

13 2:14-cv GAD-RSW Doc # 1 Filed 07/10/14 Pg 13 of 15 Pg ID 13 h. Improperly allowing group swimming activity with a large group of unsupervised students, many of whom did not know how to swim, and having inappropriate number of persons present to supervise the activity; i. Other breaches as may become known through discovery. 72. It was Defendants failure to protect the deceased, Keair Swift, from this statecreated danger that was a proximate cause of his injuries and eventual death. 73. The harm to Keair Swift was a foreseeable result of the school defendants actions, as described above. Based on the warnings and complaints that the school defendants received, they knowingly proceeded with this foreseeable danger or risk. 74. The foreseeable physical injuries and death suffered as a result of this state-created danger were, and continue to be, outrageous and shocking. 75. Defendants committed the above described actions and omissions under color of law and their conduct, as set forth above, unlawfully deprived Keair Swift, of his rights, privileges, and immunities guaranteed to him as a citizen of the United States in violation of 42 U.S.C WHEREFORE, Plaintiff prays for entry of Judgment in Plaintiff s favor and against each of the Defendants as follows: PRAYER FOR RELIEF A. For compensatory damages in an amount to be determined at trial; B. For punitive damages against individual Defendants in an amount proven at trial; C. For reasonable attorney s fees and costs pursuant to 42 U.S.C. 1988; D. For such further relief as this Honorable Court deems just. 13

14 2:14-cv GAD-RSW Doc # 1 Filed 07/10/14 Pg 14 of 15 Pg ID 14 Respectfully submitted, Dated: July 10, 2014 /s/ James S. Craig GEOFFREY N. FIEGER (P30441) JAMES S. CRAIG (P52691) Attorneys for Plaintiff W. Ten Mile Road Southfield, MI (248)

15 2:14-cv GAD-RSW Doc # 1 Filed 07/10/14 Pg 15 of 15 Pg ID 15 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION LAKISHA SWIFT, Personal Representative of the Estate of KEAIR SWIFT, Deceased, vs. Plaintiff, Case No: Hon: Magistrate: EAST DETROIT PUBLIC SCHOOLS, JAMES REED, MARY FINNIGAN, SHARON OLIVER, NICOLE KIRBY, JOHN RIZZO, MARK WEIGAND and JOHNATHAN SAILS, in their individual and official capacities, Defendants. GEOFFREY N. FIEGER (P30441) JAMES S. CRAIG (P52691) Attorneys for Plaintiff W. Ten Mile Road Southfield, MI (248) DEMAND FOR JURY TRIAL Plaintiff demands trial by jury on all issues so triable. Respectfully submitted, /s/ James S. Craig GEOFFREY N. FIEGER (P30441) JAMES S. CRAIG (P52691) Attorneys for Plaintiff W. Ten Mile Road Southfield, MI Dated: July 10, 2014 (248)