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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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]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 reimbursement.

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 private school.
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 private placement.
(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, 2003.)

  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 ...

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