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N.P., Individually and On Behalf of Her Son, J.P. v. East Orange Board of Education

February 3, 2011

N.P., INDIVIDUALLY AND ON BEHALF OF HER SON, J.P. PLAINTIFF,
v.
EAST ORANGE BOARD OF EDUCATION, DEFENDANT.



The opinion of the court was delivered by: Debevoise, Senior District Judge

NOT FOR PUBLICATION

OPINION

This matter arises out of the appeal of a decision rendered by the Honorable Sandra Ann Robinson, Administrative Law Judge ("ALJ"), dismissing a Petition for Due Process alleging that the East Orange Board of Education ("the Board") violated several provisions of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. and New Jersey state law. In a Complaint filed on October 25, 2006, N.P., individually, and on behalf of her son, J.P., appealed the ALJ's decision pursuant to 20 U.S.C. § 1415(i)(2), alleging violations of the IDEA, 42 U.S.C. § 1983, Section 504 of the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 794(a), and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111 et seq., and asking this Court, among other things, to order the Board to provide compensatory education and pay compensatory damages.

The Board now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. In doing so, it contends that (1) N.P.'s claim for compensatory education under the IDEA is moot; (2) N.P. failed to exhaust her administrative remedies with respect to her claim that J.P.'s Individualized Education Program ("IEP") of May 25, 2005 was inadequate; (3) N.P. may not seek compensatory education under the IDEA because she alleges procedural violations that do not rise to the level of substantive violations; (4) N.P. failed to state a claim under 42 U.S.C. § 1983; (5) N.P. failed to exhaust her administrative remedies with respect to her claims under 42 U.S.C. § 1983, the RA, and the ADA; and (6) N.P.'s claims under 42 U.S.C. § 1983, the RA, and the ADA lack legal and factual support. For the reasons set forth below, the Board's motion is granted.

First, N.P.'s claim for compensatory education is not moot because N.P. and J.P. retain a concrete interest in seeking compensatory education, despite having moved to an adjacent school district. Second, N.P. exhausted her administrative remedies with respect to her claim that J.P.'s May 25, 2005 IEP was inadequate, because that claim was explicitly adjudicated in the ALJ's decision on July 27, 2006. Third, N.P. cannot seek compensatory education under the IDEA because there is no evidence that the failure to develop an IEP for the 2004-2005 school year deprived J.P. of an educational benefit or that the failure to timely respond to N.P.'s requests for records and an IEP meeting deprived her of meaningful involvement in the creation of J.P.'s IEPs. Fourth, N.P. failed to state a claim under 42 U.S.C. § 1983 because it cannot be used as a means to enforce the IDEA or RA. Finally, N.P.'s claims under the ADA and RA must fail because they are derivative of her claim under the IDEA.

I. BACKGROUND

This is a sad case. From May 18, 2004, when Plaintiff J.P. was suspended from the Gateway School, until October 20, 2005, when J.P. was placed in the Devereux Treatment Center, an impoverished mother, N.P., in constantly shifting circumstances, struggled to obtain from the overburdened Board of Education of a depressed community a free and appropriate public education ("FAPE") for her desperately handicapped son, J.P.*fn1

J.P. is a nineteen-year-old boy who has been diagnosed with cerebral palsy, cognitive impairment, and Attention Deficit Hyperactivity Disorder (ADHD). N.P., J.P.'s maternal second cousin, adopted J.P. shortly after his premature birth. Since the age of five, the Board determined that J.P. was eligible for special education services under the classification of Traumatic Brain Injury (TBI), and placed him in a variety of schools, both in and out of the East Orange school district.

On April 19, 2004, the Board sent written notice to N.P. that it was scheduling an annual review conference for May 12, 2004 to review and revise J.P.'s then-current IEP. At that meeting, which N.P. did not attend, the Board reviewed and developed a new IEP for J.P. that was later sent to N.P. for her review and input. N.P. did not respond. On May 18, 2004, J.P. was suspended from the Gateway School in Carteret, New Jersey for disruptive behavior. On October 10, 2004, the Board sent N.P. written notice granting her request to remove J.P. from the Gateway school and place him on home instruction.*fn2 This notice also indicated that N.P. declined a proposed conference with the Board to discuss home instruction, and instead gave the Board verbal consent. In October 2004, the Board placed J.P. on home instruction pending an out of district placement. No IEP was in place for J.P. at that time.

On November 24, 2004, J.P. was admitted to Trinitas Hospital ("Trinitas") in Elizabeth, New Jersey for observation and to stabilize his behavior. He was released on January 6, 2005 and placed back on home instruction, only to be readmitted for similar behavioral problems. His attending physician recommended placement at a residential facility.

On February 24, 2005, N.P. sent a letter to the Board requesting records, including IEP evaluations, suspension records, and correspondence.*fn3 On March 15, 2005, she sent another letter to the Board requesting these records and an urgent meeting to develop an IEP for J.P, because he was about to be released from Trinitas.

On March 25, 2010, J.P. was discharged from Trinitas and resumed home instruction with additional services. On April 8, 2005, N.P. filed a Petition for Due Process pursuant to N.J.A.C. Section 6A:14-2.7, seeking from the Board records and an IEP meeting to find an appropriate placement for J.P. On April 19, 2005, the Board provided records that were responsive to N.P.'s requests of February 24, 2005 and March 15, 2005. On April 21, 2005, a due process hearing was scheduled before the ALJ, but not completed until May 23, 2006. In the interim, the ALJ instructed the Board to conduct an IEP meeting on May 2, 2005.*fn4 At that meeting, which was only attended by N.P. and J.P.'s case manager, N.P. agreed to place J.P. on home instruction for thirty days pending further placement.*fn5 The parties also agreed to conduct additional evaluations. On May 25, 2005, the Board conducted a second IEP meeting at which the parties devised an IEP. N.P. signed the IEP, but added a hand-written note reserving her rights and indicating that the IEP should be modified and revised because it did not incorporate a behavioral intervention plan and related services.

On July 19, 2005, the Board modified J.P.'s IEP to include occupational and physical therapy services. On July 25, 2005, the Board placed J.P. at the Children's Center of Monmouth County. On August 4, 2005, J.P. was hospitalized at Newark Beth Israel Children's Crisis Unit in Newark, New Jersey. On August 24, 2005, after attempts with the Board to coordinate an appropriate placement for J.P., N.P. requested the Division of Youth and Family Services to seek placement for J.P. at a residential facility. The Partnership for Children of Essex County, serving as a liaison between the parties, found placement for J.P. at the Devereux Treatment Center ("Deveruex") in Florida. On October 25, 2005, J.P. was admitted to Devereux. On December 6, 2005, the Board held a telephone conference with the Devereux staff and N.P. to revise J.P's IEP.

On July 27, 2006, the ALJ dismissed N.P.'s Petition for Due Process and issued a written decision in favor of the Board. The ALJ found that (1) N.P. failed to prove the lack of an appropriate IEP for J.P. from May 2004 to July 27, 2006 due to procedural violations, because the Board held IEP meetings on May 25, 2005 and December 6, 2005 where IEPs were developed for J.P. and signed by N.P.; and (2) N.P. failed to prove that the procedural defects in developing J.P.'s IEP affected J.P.'s right to an FAPE, because the Board held a telephone conference on December 6, 2005 between the Devereux Treatment Facility and N.P., indicating that N.P. was fully involved creating J.P.'s IEP.*fn6

In 2007, after the start of this litigation, N.P. and J.P. moved to the Newark School District where they still reside. J.P. is currently enrolled at the Horizon High School, a private school in that district.

II. DISCUSSION

The Board now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. This motion gives rise to the following four issues: (1) whether N.P.'s claim for compensatory education is moot because she and J.P. no longer reside in the East Orange school district; (2) whether N.P. failed to exhaust her administrative remedies with respect to her claims disputing the appropriateness of J.P.'s IEPs; (3) whether the procedural violations of the IDEA asserted by N.P. entitle her to seek compensatory education; (4) whether N.P. can assert a claim under 42 U.S.C. § 1983 as a means to enforce violations of the IDEA and the RA; (5) whether N.P. exhausted her administrative remedies with respect to her claims under the ADA and RA; and (6) whether N.P. can assert claims under the ADA and RA on the same facts as those under the IDEA.

A. Standard of Review

Summary judgment is proper where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). For an issue to be genuine, there must be "a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). For a fact to be material, it must have the ability to "affect the outcome of the suit under governing law." Id. Disputes over irrelevant or unnecessary facts will not preclude granting summary judgment.

The party moving for summary judgment has the burden of showing that no genuine dispute of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party does not bear the burden of proof at trial, it may discharge its burden under the summary judgment standard by showing that there is an absence of evidence to support the non-moving party's case. Id. at 325. If the moving party can make such a showing, then the burden shifts to the non-moving party to present evidence that a genuine factual dispute exists and a trial is necessary. Id. at 324. In meeting its burden, the non-moving party must offer specific facts that establish a material dispute, not simply create "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

In deciding whether an issue of material fact exists, the Court must consider all facts and their reasonable inferences in the light most favorable to the non-moving party. See Pa. Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). The Court's function, however, is not to weigh the evidence and rule on the truth of the matter, but rather to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If there are no issues that require a trial, then judgment as a matter of law is appropriate. Id. at 251-52.

In IDEA cases, district courts adopt a modified standard of review on summary judgment. Courts are required to give "due weight" to the factual findings in state administrative proceedings. See Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982). In this Circuit, "due weight" constitutes a modified de novo review, whereby "a district court is required to make findings of fact based on a preponderance of the evidence contained in the complete record, while giving some deference to the fact findings of the administrative proceedings." S.H. v. State-Operated Sch. Dist., 336 F.3d 260, 270 (3d Cir. 2003).

B. Mootness of N.P.'s Claim for Compensatory Education

The Board argues that N.P.'s claim for compensatory education is moot because, during the course of this litigation, N.P. and J.P. moved out of the East Orange school district and found placement in the Newark school district. (Def.'s Br. Summ. J. 8-16.) N.P. asserts that her claim is not moot because (1) in the event that the Court grants compensatory education, the Board "would be responsible for the provision and monitoring of J.P.'s educational services for a period of compensatory education." (Pl.'s Br. Summ. J. 11); and (2) her claim is "capable of repetition, yet evading review" because "there is a possibility that [she and J.P.] could return to East Orange" (Pl.'s Br. Summ. J. 11-12).

A claim becomes moot when "the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Donovan ex. Rel. Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211, 216 (3d Cir. 2003) (citation omitted). The heart of a mootness inquiry is whether the court "can grant effective relief." Id. That is, "if developments occur during the course of adjudication that eliminate a plaintiff's personal stake in the outcome of a suit or prevent a court from being able to grant the requested relief, the case must be dismissed as moot." Id.

Compensatory education is a common form of relief under the IDEA that is intended to make whole a child who has been deprived of an FAPE. Ferren v. Sch. Dist. of Phila., 612 F.3d 712, 717-18 (3d Cir. 2010) ("compensatory education serves to replace educational services the child should have received in the first place and [] such awards should aim to place disabled children in the same position they would have occupied but for the school district's ...


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