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May 6, 2005.

J.M. and D.M. o/b/o C.M., Plaintiffs,

The opinion of the court was delivered by: JEROME SIMANDLE, District Judge


This action is brought pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. Presently before the Court is the motion for summary judgment of Defendants Woodland Township Board of Education, et al. For the reasons discussed herein, the Court finds that this case cannot go forward unless and until Plaintiffs exhaust their available remedies to enforce a mediated agreement and to develop the factual record at a due process hearing. Plaintiffs cannot bypass these essential steps before asserting IDEA claims and due process claims under 42 U.S.C. § 1983 in this case.


  On June 11, 2003, Plaintiffs, the parents of a child eligible for services under the IDEA, filed a Complaint on behalf of that child, C.M. Defendants are the Woodland Township Board of Education ("Board"), Woodland Township School District, and various individual employees.

  At the time the Complaint was filed, C.M. was a twelve-year old student in the Woodland Township School District. On June 14, 1996, C.M. was evaluated, classified as "perceptually impaired," and considered eligible for services under the IDEA. Thereafter, various Individualized Education Programs ("IEP") were developed to provide appropriate services for C.M. as required by the IDEA. Dissatisfied with the progress of her son, C.M.'s mother, J.M., wrote multiple letters between June of 1998 and July of 2002 to Defendants and the State of New Jersey, requesting that the Defendants comply with the requirements of N.J.A.C. 6A:14-3.4 and the IDEA and develop an adequate IEP to meet her son's needs. Defendants performed an evaluation of C.M. in April and May of 1999, an evaluation that Plaintiffs felt was incomplete.

  Plaintiffs filed a complaint with the Office of Administrative Law in October 2000. On October 19, 2000, the presiding Administrative Law Judge ("ALJ") found that the 1999 IEP was inadequate under N.J.A.C. 6A:14-3.4 and signed an order requiring that an independent evaluation of C.M. be performed and a new IEP be developed in accordance with the law.

  On February 23, 2001, an evaluation of C.M. was performed by the Children's Hospital of Philadelphia ("CHOP") Center for Management of Attention Deficit Hyperactivity Disorder. Defendants developed an IEP for C.M. in June 2001, but did not include a functional behavioral assessment. On June 4, 2002, J.M. wrote a letter to Defendants and on June 24, 2002, a letter to the New Jersey Department of Education, requesting that a functional behavioral assessment be performed. The Department of Education investigated the appeal and on November 14, 2002, found that the IEP developed by the Defendants had complied with the ALJ's order. Plaintiff J.M. challenged the order by appealing the decision through letters written to the State and to the Governor of New Jersey. In September 2002, a mediation agreement ("Agreement") was reached between Plaintiff and Defendants. Dissatisfied with the delayed responses from the Defendants and the continuing poor performance of C.M., Plaintiffs filed a Complaint with this Court on June 11, 2003.

  Plaintiffs' initial Complaint set forth five causes of action: (1) that Defendants failed to provide a free and appropriate public education ("FAPE") for C.M., as required by the IDEA; (2) that Defendants did not develop an IEP consistent with the various assessments of C.M.'s disability and the Agreement; (3) that Defendants failed to comply with N.J.A.C. 6A:14-3.4, the New Jersey regulations enforcing the IDEA; (4) that Defendants failed to comply with the ALJ's October 2000 order; and (5) that, by their actions, Defendants have deprived C.M. of his rights under the Fourth, Fifth, Eighth and Fourteenth Amendments to the Constitution.

  Defendants subsequently moved for judgment on the pleadings. By Order dated July 29, 2004, this Court dismissed Count IV with prejudice as untimely and dismissed the remaining counts without prejudice to the filing of an Amended Complaint. Plaintiffs filed their Amended Complaint on August 23, 2004, setting forth five counts. Count I is labeled as seeking enforcement of the Agreement between the parties, although it actually appears to seek damages for non-compliance with the IDEA. Count II actually asks for enforcement of the Agreement. Count III asserts a violation of N.J.A.C. 6A:14-3.4 and Count IV seeks damages under 42 U.S.C. § 1983 for violations of Plaintiffs' constitutional rights. Count V seeks attorneys' fees for the administrative proceedings. Defendants have now moved for summary judgment. Plaintiffs oppose this motion, arguing primarily that it is premature, as discovery has not yet been completed. DISCUSSION

  Summary Judgment Standard of Review

  Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.

  In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "[T]he nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Liberty Lobby, 477 U.S. at 255). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted). The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Country Floors v. Partnership of Gepner and Ford, 930 F.2d 1056, 1061-63 (3d Cir. 1991) (reviewing district court's grant of summary judgment in a trademark action); Lucent Info. Manage. v. Lucent Tech., 986 F. Supp. 253, 257 (D.N.J. 1997) (granting summary judgment in favor of telecommunications provider in trademark action), aff'd, 186 F.3d 311 (3d Cir. 1999); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). However, where the nonmoving party bears the burden of persuasion at trial, as plaintiff does in the present case, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.

  The non-moving party "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). Plaintiff must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Liberty Lobby, 477 U.S. at 249-50. Thus, if the plaintiff's evidence is a mere scintilla or is "not ...

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