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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]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