United States District Court, D. New Jersey
May 6, 2005.
J.M. and D.M. o/b/o C.M., Plaintiffs,
WOODLAND TOWNSHIP BOARD OF EDUCATION, et al., Defendants.
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 significantly probative,"
the court may grant summary judgment. Liberty Lobby,
477 U.S. at 249-50; Country Floors, 930 F.2d at 1061-62.
Timeliness of Defendants' Motion
In responding to Defendants' motion for summary judgment,
Plaintiffs argue primarily that the motion should be denied
because it is premature. Discovery was completely stayed in this
case pending the Court's decision on Defendants' motion for
judgment on the pleadings. Plaintiff argues that discovery is
essential here to prove Plaintiffs' claims and Defendants' motion
should thus be denied.
Rule 56(f) of the Federal Rules of Civil Procedure authorizes
this Court to deny summary judgment "if the nonmoving party has
not had an opportunity to make full discovery." Celotex Corp.,
477 U.S. at 326. "A Rule 56(f) motion must `identify with
specificity what particular information is sought; how, if
uncovered, it would preclude summary judgment; and why it has not
previously been obtained.'" Bradley v. United States,
164 F. Supp. 2d 437, 441 n. 1 (D.N.J. 2001) (citing St. Surin v. Virgin
Islands Daily News, Inc., 21 F.3d 1309, 1314 (3d Cir. 1994);
Hancock Industries v. Schaeffer, 811 F.2d 225, 229-30 (3d Cir.
1987); Securities & Exchange Comm'n v. Antar,
120 F. Supp. 2d 431, 440-41 (D.N.J. 2000)). Plaintiffs' attorney's Rule 56(f) certification states only
that "[i]t is essential that plaintiffs be permitted to conduct
discovery to pursue the IDEA claims, as well as to prove that
defendants failed to comply with IDEA, and mediation agreement."
(Certification of Counsel Pursuant to Rule 56, ¶ 7.)
Defendants' basis for their motion for summary judgment is
their contention that Plaintiffs have failed to exhaust the
requisite administrative remedies; the substantive issues of IDEA
compliance or compliance with the Agreement do not form the basis
for the motion. Plaintiffs' Rule 56(f) certification, however,
fails to address this. Moreover, as the disposition of this
motion depends principally upon a question of law whether
enforcement of the mediated Agreement must first be sought before
the administrative agency Plaintiff is already in possession of
all the information needed to intelligently address Defendants'
motion here. Absent an identification with specificity of what
Plaintiffs lack to adequately address Defendants' motion, the
Court is compelled to deny Plaintiffs' request for discovery and
deny Plaintiffs' motion for an extension of time to respond to
the summary judgment presently before it.
Exhaustion of Administrative Remedies
In 2002, mediation between the parties, conducted by the New
Jersey Department of Education, resulted in an Agreement.
Defendants now move for summary judgment, arguing that Plaintiffs may not sue to enforce the Agreement without first exhausting the
appropriate administrative remedies.
Plaintiffs have not asserted that there has ever been any due
process hearing or decision requiring Defendants to supply what
the mediated Agreement promised. Administrative remedies offered
by the Department of Education in New Jersey are set forth at
N.J.A.C. 6A:14-9.1, et seq., calling for investigation of
complaints and issuance of corrective action plans. The right to
apply for a due process hearing, even after a complaint
investigation, is reserved at N.J.A.C. 6A:14-9.2(k). The New
Jersey Department of Education's August 8, 2002 letter to
Plaintiffs specifically states that enforcement of the mediation
agreement may be requested by writing to the Department of
Education. (Defs.' Ex. B.) However, Plaintiffs have not offered
anything to suggest that such a request was made. In addition,
Plaintiffs have not offered anything to show that they initiated
due process proceedings. Defendants thus assert that Plaintiffs
have failed to exhaust the administrative remedies provided,
which have been found to meet IDEA requirements. Baer v.
Klagholz, 771 A.2d 603, 634 (N.J.Super.Ct. App. Div. 2001),
certif. denied, 784 A.2d 717 (N.J. 2001).
The exhaustion requirement "serves a number of important
purposes, including (1) permitting the exercise of agency
discretion and expertise on issues requiring these characteristics; (2) allowing the full development of technical
issues and a factual record prior to court review; (3) preventing
deliberate disregard and circumvention of agency procedures
established by Congress; and (4) avoiding unnecessary judicial
decisions by giving the agency the first opportunity to correct
any error." Ass'n for Retarded Citizens of Alabama v. Teague,
830 F.2d 158, 160 (11th Cir. 1987); see also Komninos by
Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775, 778
(3d Cir. 1994) (noting the strong policy requiring the exhaustion
of administrative remedies in the IDEA context). Exhaustion is
not required, however, where doing so would be futile or
inadequate. Honig v. Doe, 484 U.S. 305, 327 (1988).
This Court finds that administrative exhaustion is appropriate
in this case. Here, the educational agency has not been permitted
to exercise its discretion and expertise on the disputed issues.
While mediation occurred in this case, a due process hearing was
never held. In addition, there has been no development of
technical issues or of a factual record before this action came
before this Court. The educational agency, possessing vast
experience and expertise, is in the best position to consider the
integral facts necessary to tailor an educational program to the
needs of a disabled child. Moreover, "failure to require
exhaustion would encourage parties to circumvent administrative
review by entering into, and then disregarding, settlement agreements in order to go directly to federal court."
Steward v. Hillsboro School District No. 1J, 2001 U.S. Dist.
Lexis 9887, *14 (D. Or. Mar. 1, 2001). Finally, the educational
agency should be given the first opportunity to correct any
errors that it may have made before a judicial decision is
Also, that Plaintiffs allege a count against Defendants based
on 42 U.S.C. § 1983 is of no moment. When parents file a suit
under another law that protects the rights of disabled children
that could have been filed under IDEA, they are required to
exhaust IDEA's remedies just as if it had been originally filed
under those provisions. Jeremy H. v. Mount Lebanon School
Dist., 95 F.3d 272, 278 (3d Cir. 1996).
Plaintiffs seem to argue that exhaustion would be futile here
because the relief sought in this civil action is not available
in an IDEA administrative proceeding. See W.B. v. Matula,
67 F.3d 484, 496 (3d Cir. 1995). Plaintiffs, however, seek
enforcement of the mediated Agreement. This Court is unclear how
Plaintiffs do not avail themselves of that relief through the
remedies provided for by the State of New Jersey. See
N.J.A.C. 6A:14-9.1, et seq. Therefore, this Court will
grant Defendants' motion for summary judgment on the ground that
Plaintiffs have not exhausted available administrative remedies
and other causes of action, for damages, should be deferred until Plaintiff has done so. Accordingly, the Amended Complaint will be
dismissed without prejudice to Plaintiffs' right to pursue
available administrative remedies to enforce the mediated
Agreement, in accordance with Counts I and II. The remaining
Counts III, IV and V will be stayed pending completion of ongoing
administrative proceedings, with this case being administratively
terminated upon the docket pending reopening upon the request of
any party when administrative remedies have been exhausted.
For the reasons discussed above, this Court grants the motion
of Defendants for summary judgment, dismissing Counts I and II of
the Amended Complaint for failure to exhaust administrative
remedies to seek enforcement of the mediated Agreement. Counts
III, IV and V will be stayed pending exhaustion of administrative
remedies. The case will be administratively terminated upon the
docket pending exhaustion of available remedies without prejudice
to reopen for further proceedings consistent with law, if
necessary. The accompanying Order is entered.
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