United States District Court, D. New Jersey, Camden Vicinage
August 18, 2005.
J.M., a minor, individually and by his Parent and legal guardian, A.S., Plaintiffs,
KINGSWAY REGIONAL SCHOOL DISTRICT and TERRENCE CROWLEY, in his individual and official capacity, Defendants.
The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION
In this civil action under the Individuals with Disabilities
Education Act ("IDEA"), the Rehabilitation Act of 1973, and
42 U.S.C. sections 1983 and 1988, plaintiffs J.M. and his mother,
A.S., claim that the Kingsway Regional School District
("District") did not provide J.M. with a free appropriate public
education ("FAPE") during the 2001-02 and 2002-03 school years.
Plaintiffs seek compensatory education and reimbursement of the
cost of sending J.M. to private boarding school, as well as
punitive damages, attorney's fees, and costs. Defendants the
District and its Superintendent, Terrence Crowley have counterclaimed for enforcement of an
administrative ruling that denied Plaintiffs' request for
Defendants now move for summary judgment and, in the
alternative, to dismiss the complaint for failure to state a
claim. For the reasons expressed below, the motion for summary
judgment will be granted in part and denied in part, and the
motion to dismiss will be denied.*fn1
J.M. was born on November 25, 1985. He has been diagnosed with
Attention Deficit Hyperactivity Disorder and Adjustment Disorder
with disturbance of conduct. J.M.'s parents, A.S. and G.M., are
divorced and have joint custody of J.M.
On April 26, 2000, both A.S. and G.M. signed an acknowledgment that they had "received a copy of Parental Rights
in Special Education with Addendum (PRISE) and the short
Procedural Safeguards Statement." (Defs.' Br. Ex. A at
7.)*fn2 The "PRISE" stated:
If you plan to place your child in a private school
and seek reimbursement from the district, you must
inform the school district at an IEP meeting or
provide the school district with written notice at
least 10 days (excluding weekends only) prior to the
enrollment of your child in the private school. You
must state your disagreement with the school
district's IEP, the placement proposed by the school
district and your intention to enroll your child in a
If the school district has provided you with written
notice of its intent to evaluate your child before
your removal of your child from the public school,
you should make your child available to the school
district for evaluation in order to protect your
claim for reimbursement.
Failure to inform the school district of your
intention to make a private placement at public
expense, failure to make your child available for
evaluation, or other unreasonable action on your part
could result in an administrative law judge's
decision to reduce or deny reimbursement for the
(Demarest Cert. ¶ 2 & Ex. A.)
In May 2001, A.S. met with District personnel to develop J.M.'s
individual education plan ("IEP") for the 2001-02 school year. (Defs.' Br. Ex. B. at 1.) The resulting IEP
specified that J.M. would be mainstreamed in some classes and
receive in-class support in others. (Id. at 7.)*fn3
Everyone at the meeting, including A.S., agreed that the IEP was
appropriate for J.M.; residential placement (i.e., sending J.M.
to a private boarding school) was not discussed at that time.
A.S. signed a copy of the IEP on May 29, 2001, and J.M. attended
the Kingsway Regional High School in New Jersey during the
2001-02 school year.
J.M. was arrested in October 2001 after stealing A.S.'s car,
going on a high speed chase, and eluding a police officer.
Shortly thereafter, A.S. told Maria DiGiovanni, a member of the
District's Child Study Team, that she thought residential
placement might be best for J.M.
A.S. repeated her belief that J.M. needed residential placement
at a meeting with the Child Study Team on November 27, 2001. At
that meeting, the Child Study Team provided A.S. with written
notice of its intent to obtain a psychiatric update and
psychological assessment of J.M. from Dr. James Hewitt, a
psychiatrist affiliated with the District. (Defs.' Br. Ex. E.)
However, A.S. and G.M. refused to permit the evaluation. (Id.)
A.S. believed that an evaluation by Dr. Hewitt was unnecessary because J.M. had been recently treated by psychiatrist Dr.
Robertson Tucker outside of school; moreover, she thought that
J.M. was "psychologically fragile" at the time, and did not want
him to "go? through" another evaluation. (Hr'g Tr. 186:16-21,
Aug. 26, 2003). The Child Study Team, on the other hand, believed
that an evaluation by Dr. Hewitt was necessary because Dr.
Tucker's evaluation "addressed the concerns and behaviors at
home" but did not "address [J.M.'s behavior] in the school
setting." (Hr'g Tr. 99:9-14, Aug. 26, 2003.)
On May 3, 2002, A.S. met with District personnel to develop
J.M.'s IEP for the 2002-03 school year. (Defs.' Br. Ex. H at 1.)
Though A.S. signed the IEP, she did voice more concerns as to
whether J.M. required residential placement. (Id. at 17; see
Hr'g Tr. 149:5-8, Aug. 25, 2003; Hr'g Tr. 184:6-12, Aug. 26,
On June 17, 2002, A.S. wrote to DiGiovanni to inform her that
J.M. would be attending Sorenson's Ranch School, a private
boarding school in Utah, during the 2002-03 school year. A.S. did
not state in that letter that she would seek reimbursement from
the District for the cost of sending J.M. to private school.
(See Defs.' Br. Ex. I.)
On July 23, 2002, A.S. unilaterally placed J.M. at the Sun Hawk
Academy ("Sun Hawk"), a private boarding school in St. George,
Utah. J.M. attended Sun Hawk until May 9, 2003. A.S. sent another letter to DiGiovanni on January 21, 2003.
That letter requested a response in writing as to whether the
District was financially responsible for the cost of sending J.M.
to Sun Hawk. (Defs.' Br. Ex. J.) After DiGiovanni told her that
the District was not financially responsible for that cost, A.S.
requested a "due process hearing" on May 30, 2003 pursuant to
20 U.S.C. section 1415(f).
At the hearing, conducted before Administrative Law Judge
Solomon A. Metzger on August 25-26, 2003, A.S. requested
reimbursement and compensatory education for the 2002-03 school
year. (Hr'g Tr. 4:19-5:2, Aug. 25, 2003; Hr'g Tr. 4:7-13, Aug.
26, 2003.) Judge Metzger rendered a decision on November 19,
2003. He held that J.M. and A.S. were not entitled to
reimbursement for A.S.'s unilateral placement of J.M. at Sun Hawk
because (1) A.S. did not give proper notice of the placement to
the District until January 2003 and (2) A.S. had not given the
District an "opportunity to explore placements short of an
out-of-state residential treatment facility." (Defs.' Br. Ex. K
at 6.) In addition, Judge Metzger found that A.S. and G.M. had,
in November 2001, denied consent for an updated psychological
evaluation of J.M. (Id. at 2.) Judge Metzger's decision did not
address the issue of compensatory education.
II. MOTION FOR SUMMARY JUDGMENT Summary judgment is only appropriate where the Court is
satisfied that "there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter
of law."*fn4 Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 330 (1986). A genuine issue of material
fact exists only if "the evidence is such that a reasonable jury
could find for the nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The burden of establishing the
nonexistence of a "genuine issue" is on the party moving for
summary judgment. Celotex, 477 U.S. at 330.
The moving party must first satisfy a burden of production,
which "requires the moving party to make a prima facie showing
that it is entitled to summary judgment." Celotex,
477 U.S. at 331. Where the burden of persuasion at trial would be on the
nonmoving party, the moving party may satisfy its burden of
production by either (1) submitting affirmative evidence that
negates an essential element of the nonmoving party's claim; or (2) demonstrating to the Court that the
nonmoving party's evidence is insufficient to establish an
essential element of the nonmoving party's case. Id. If the
moving party has not fully discharged its initial burden of
production, its motion for summary judgment must be denied. Id.
A. SECTION 1983
Section 1983 provides a private right of action for IDEA
violations. See W.B. v. Matula, 67 F.3d 484, 494 (3d Cir.
1995). However, in order to recover under section 1983 against
the District, or against Crowley in his official capacity,
Plaintiffs "must establish that the deprivation of [their] rights
was the result of an official policy or custom." Ridgewood Bd.
of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999).
(See Defs.' Br. at 24.) Plaintiffs have provided no evidence
that the alleged IDEA violation was the result of an official
policy or custom. Therefore, Defendants' motion for summary
judgment will be granted as to Plaintiffs' section 1983 claims
against the District and against Crowley in his official
B. QUALIFIED IMMUNITY
As to Plaintiffs' claims against Crowley in his individual
capacity, Crowley argues that he is entitled to qualified
immunity. Thus, this Court "must [first] determine whether [P]laintiffs have alleged a constitutional or statutory
violation." Matula, 67 F.3d at 499. If so, Crowley "will
nevertheless not be liable if `[his] conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.'" Id. (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). Here, the Complaint
alleges violations of the IDEA and the Rehabilitation Act. (See
Compl. ¶¶ 6, 10, 14, 16, 17.) Because Plaintiffs have alleged
statutory violations, this Court must address the second prong of
the qualified immunity test.
"[T]o defeat a qualified immunity defense in an IDEA action, a
plaintiff must show more than that he or she was denied a free,
appropriate public education in a general sense; rather, a
plaintiff must demonstrate `that the particular actions taken by
defendants were impermissible under law established at that
time.'" Matula, 67 F.3d at 499-500 (quoting and adopting P.C.
v. McLaughlin, 913 F.2d 1033, 1040 (2d Cir. 1990)). Here, the
Complaint alleges generally that Crowley failed to offer J.M. a
free, appropriate public education. However, neither the
allegations in the Complaint nor the record before this Court
demonstrate that Crowley took any particular actions at all, let
alone that those actions were impermissible under law established
at that time. Therefore, Crowley is entitled to qualified
immunity under Matula, and Defendants' motion for summary judgment will be granted as to Plaintiffs' claims under the IDEA,
the Rehabilitation Act, and section 1983 against Crowley in his
C. ATTORNEY'S FEES
Because summary judgment will be granted as to all of
Plaintiffs' claims under section 1983, Plaintiffs will not be
entitled to attorney's fees under section 1988. Therefore,
Defendants' motion for summary judgment will be granted as to
Plaintiffs' claims under section 1988.
The IDEA authorizes a district court to order school
authorities to reimburse a parent for the cost of enrolling her
child in a private school. 20 U.S.C. § 1412(a)(10)(C)(ii).
However, reimbursement may be reduced or denied under certain
circumstances. 20 U.S.C. § 1412(a)(10)(C)(iii). Defendants now
argue that they are entitled to summary judgment on Plaintiffs'
claim for reimbursement for A.S.'s unilateral placement of J.M.
at Sun Hawk in July 2002 because (1) A.S. did not timely provide
the District with proper notice of her intent to seek
reimbursement until January 2003; (2) A.S. did not permit the
District to conduct its own psychological evaluation of J.M.; and
(3) Plaintiffs have not demonstrated that boarding school was
academically necessary for J.M. However, because there remains a genuine issue of material fact as to Plaintiffs' reimbursement
claim, Defendants' motion for summary judgment on that claim will
Under the IDEA, reimbursement for a unilateral placement may be
reduced or denied where parents fail to give school authorities
proper notice of the placement. 20 U.S.C. § 1412(a)(10)(C)(iii).
Lack of proper notice is demonstrated where:
(aa) at the most recent IEP meeting that the parents
attended prior to removal of the child from the
public school, the parents did not inform the IEP
Team that they were rejecting the placement proposed
by the public agency to provide a free appropriate
public education to their child, including stating
their concerns and their intent to enroll their child
in a private school at public expense; or
(bb) 10 business days . . . prior to the removal of
the child from the public school, the parents did not
give written notice to the public agency of the
information described in item (aa).
Id. However, reimbursement may not be reduced or denied for
lack of proper notice where "the parents had not received notice
. . . of the notice requirement" or where compliance with the
notice requirement "would likely result in physical or serious
emotional harm to the child." 20 U.S.C. § 1412(a)(10)(C)(iv)(II)
It is undisputed that A.S. did not state an intent to enroll
J.M. in private school at public expense at the May 3, 2002 IEP
team meeting. It is also undisputed that A.S. did not provide
written notice to the District of such intent until January 21,
2003. Thus, it is undisputed that A.S. failed to provide the
District with the notice required by section 1412(a)(10)(C)(iii).
Therefore, Defendants' motion for summary judgment may be granted
as to the reimbursement claim unless there exists a genuine issue
as to whether A.S. received notice of the notice requirement, or
whether compliance with the notice requirement would likely have
resulted in physical or serious emotional harm to J.M.
Plaintiffs argue, without citation to the record, that the
District did not inform A.S. of her right to reimbursement.
(Pls.' Opp. at 28.) This argument is unpersuasive even if it may
be understood as a claim that the District did not provide A.S.
with notice of the notice requirement. On April 26, 2000, A.S.
signed a document stating: "I have received a copy of Parental
Rights in Special Education with Addendum (PRISE) and the short
Procedural Safeguards Statement." The "PRISE" advised A.S. of her
right to reimbursement as well as her obligation to provide the
District with ten business days' written notice of her intent to enroll J.M. in private school at public expense if she wished
to preserve that right. Therefore, there is no genuine issue as
to whether A.S. had notice of the notice requirement.
In support of their argument that there is no genuine issue as
to whether the "likelihood of harm" exception applies, Defendants
argue that A.S. had decided to remove J.M. from public school
more than a month before J.M. entered Sun Hawk. (Defs.' Reply at
11-12.) As support for this argument, Defendants cite the letter
dated June 17, 2002 in which A.S. informed DiGiovanni that J.M.
would "not return to Kingsway High School in the fall." (Defs.'
Br. Ex. J.) This letter, in light of the fact that A.S. did not
place J.M. at Sun Hawk until July 23, 2002, is evidence that A.S.
did not believe in June that J.M. required immediate residential
placement. However, it does not necessarily preclude a finding
that compliance with the notice requirement would have posed a
likelihood of harm to J.M. in July. Moreover, the record
contains evidence sufficient to establish a genuine issue of fact
as to the likelihood of harm issue. A.S. testified that she felt
physically threatened by J.M. in July 2002. (Hr'g Tr.
208:162-10:11, Aug. 26, 2003.) Albitre testified that J.M. was
"[d]efinitely a danger to himself" at the time he entered Sun
Hawk. (Albitre Dep. 21:1-4, Sept. 16, 2003.) Dr. Tucker was also
of the opinion that J.M. was "a danger to himself" at the time he
entered Sun Hawk. (See Tucker Dep. 38:9-40:22, 84:22-85:8.) Because there exists a genuine issue of fact as to whether
compliance with the notice requirement would likely have resulted
in physical or serious emotional harm to J.M.,*fn6
Defendants' first argument fails.*fn7
b. Consent to Evaluate
A plaintiff's claim for reimbursement may be reduced or denied
prior to the parents' removal of the child from the
public school, the public agency informed the
parents, through the notice requirements described in
section 1415(b)(7) of this title, of its intent to
evaluate the child (including a statement of the
purpose of the evaluation that was appropriate and
reasonable), but the parents did not make the child
available for such evaluation. 20 U.S.C. § 1412(a)(10)(C)(iii)(II).*fn8 The
requisite notice includes:
(i) the name of the child, the address of the
residence of the child, and the name of the school
the child is attending;
(ii) a description of the nature of the problem of
the child relating to such proposed initiation or
change, including facts relating to such problem; and
(iii) a proposed resolution of the problem of the
child to the extent known and available to the
parents at the time.
20 U.S.C. § 1415(b)(7)(B).
In their motion for summary judgment, Defendants argue that
Plaintiffs' claim for reimbursement should be denied because A.S.
did not allow the District to conduct a "psychiatric update and
psychological assessment" of J.M. (Defs.' Br. at 22.) The record
shows that the District Child Study Team asked A.S. for
permission to evaluate J.M. on November 27, 2001, and that A.S.
refused. (Defs.' Br. Ex. E.) However, Defendants' brief contains
no argument as to whether the notice they provided to A.S. complied with the requirements of section 1415(b)(7)(B).
Therefore, Defendants have not fully discharged their initial
burden of production on summary judgment, and their second
c. Academic Necessity
To recover on a claim for reimbursement of a unilateral private
placement under the IDEA, a plaintiff has the burden of
demonstrating that the private placement was proper. See
Ridgewood, 172 F.3d at 248 (citing Florence County Sch. Dist.
Four v. Carter, 510 U.S. 7 (1993)). To meet this standard, "a
disabled student is not required to demonstrate that he cannot be
educated in a public setting. . . . [T]he relevant question is
not whether a student could in theory receive an appropriate
education in a public setting but whether he will receive such an
education." Id. at 248-49; but see Kruelle v. New Castle
County Sch. Dist., 642 F.2d 687, 693 (3d Cir. 1981) ("Analysis
must focus, then, on whether full-time placement may be
considered necessary for educational purposes, or whether the
residential placement is a response to medical, social or
emotional problems that are segregable from the learning
process."); D.B. v. Ocean Township Bd. of Educ.,
985 F. Supp. 457, 497 (D.N.J. 1997) (inquiring whether residential placement
was "based upon genuine educational need").
Defendants argue that Plaintiffs are not entitled to reimbursement because Plaintiffs have not demonstrated that
residential placement was necessary for J.M.'s educational
purposes. (Defs.' Br. at 16.) However, to require Plaintiffs to
demonstrate that residential placement was necessary for J.M.'s
educational purposes would be to require them to demonstrate that
J.M. could not be educated in a public setting. Under
Ridgewood, this Court may not do so. Therefore, Defendants'
third argument fails.
2. Compensatory Education
Defendants' opening brief does not address Plaintiffs' claim
for compensatory education. Defendants' reply brief implies that
Plaintiffs are not entitled to compensatory education because
Plaintiffs are not entitled to reimbursement. (See Defs.' Reply
at 13-14.) However, Defendants have not established the lack of a
genuine issue of material fact as to Plaintiffs' reimbursement
claim. See discussion supra Part II.D.1. Because Defendants
provide no other argument as to why they are entitled to summary
judgment on the compensatory education claim, they have not met
their initial burden of production as to that claim. Therefore,
Defendants' motion for summary judgment will be denied as to the
compensatory education claim.
E. REHABILITATION ACT
Defendants argue that they are entitled to summary judgment on the Rehabilitation Act claim because (1) such a claim
"may not be maintained if it is essentially the same claim as
that asserted by the plaintiffs under the [IDEA]" and (2)
Plaintiffs have made no showing of bad faith or gross
misjudgment. (See Defs.' Br. at 22-23.) Defendants' first
argument fails because "the failure to provide a free appropriate
public education . . . could violate § 504." See Ridgewood,
172 F.3d at 253; Matula, 67 F.3d at 492-93. Defendants' second
argument fails because the Third Circuit does not require a
Rehabilitation Act plaintiff to make a showing of bad faith or
gross misjudgment; rather, it is enough for the plaintiff to
prove that "defendants know or should reasonably be expected to
know of his disability." See Ridgewood, 172 F.3d at 253.
Therefore, Defendants' motion for summary judgment will be denied
as to Plaintiffs' Rehabilitation Act claim.
Defendants' brief does not specifically address their
counterclaim for enforcement of Judge Metzger's decision.
Moreover, as discussed at Part II.D supra, Defendants have not
demonstrated the absence of a genuine issue as to the IDEA claim.
Therefore, to the extent that Defendants' motion for summary
judgment extends to their counterclaim, it will be denied. III. MOTION TO DISMISS
In the alternative, defendants move to dismiss the complaint
pursuant to Rule 12(b)(6) for failure to state a claim upon which
relief can be granted, arguing that "in light of the pertinent
law on the critical issues in this case, the plaintiffs can prove
no set of facts that would entitle? them to relief." (Defs.' Br.
at 29.) "A 12(b)(6) motion tests the sufficiency of the
allegations contained in the complaint." Kost v. Kozakiewicz,
1 F.3d 176, 183 (3d Cir. 1993) (citing Ditri v. Coldwell Bankers
Residential Affiliates, Inc., 954 F.2d 869, 871 (3d Cir. 1992)).
Here, Defendants provide no argument as to why the allegations
contained in Plaintiffs' complaint are insufficient, other than
to refer back to their arguments as to why they are entitled to
summary judgment. Because Defendants' motion to dismiss is purely
duplicative of their motion for summary judgment, the motion to
dismiss will be denied as to the claims remaining in this case
for the same reasons that summary judgment on those claims was
denied. As to the claims that will be disposed of on summary
judgment, the motion to dismiss those claims will be denied as
Defendants' motion for summary judgment will be granted as to
Plaintiffs' claims under 42 U.S.C. sections 1983 and 1988, and as to Plaintiffs' claims under the IDEA and the
Rehabilitation Act against Crowley in his individual capacity.
The motion for summary judgment will be denied as to Plaintiffs'
claims under the IDEA and the Rehabilitation Act against the
District and against Crowley in his official capacity.
Defendants' motion to dismiss will be denied. The accompanying
Order shall issue today.