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Zeffrey Rodrigues and Zena Rodrigues v. Fort Lee

February 7, 2011


The opinion of the court was delivered by: Wigenton, District Judge.



Before the Court is Plaintiffs' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 and appeal of the magistrate judge's denial of Plaintiffs' motion to amend or correct the Complaint. This Court has jurisdiction pursuant to 28 U.S.C. § 1331. Venue is proper pursuant to 28 U.S.C. § 1391(b). This Court, having considered the parties' submissions, decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated below, this Court DENIES Plaintiffs' motions and GRANTS summary judgment in favor of Defendants.


Plaintiff filed a petition with the Office of Administrative Law ("OAL") on November 28, 2006, seeking two years of compensatory education in a residential placement; immediate adoption of the parent-proposed individualized education plan ("IEP") for 2006-2007; and door-to-door taxi service to and from school. After several motions as well as the replacement of both the original judge and attorneys, Administrative Law Judge ("ALJ") Carol I. Cohen, issued a decision on August 25, 2008, denying petitioner's requests.

On November 21, 2008, Plaintiffs brought an action pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(i). (Compl. pg. 1.) The Complaint alleges that the ALJ erred in failing to find a denial of a Free Appropriate Public Education ("FAPE") and erred in denying the relief sought "namely three years of compensatory education at a residential placement and reimbursement for tuition at Riverview School, including related transportation costs." (Compl. pgs. 7-9.) Plaintiffs also allege that they were denied procedural due process by the ALJ's refusal to accept certain evidence when conducting hearings under docket number EDS 11423-06 and by the ALJ's refusal to hold hearings for claims brought under docket numbers EDS 07800-07 and EDS 05287-07. (Compl. pg. 8.) Plaintiffs', pro-se, filed both a motion to amend and/or correct the Complaint and a motion for partial summary judgment on June 4, 2010. Magistrate Judge Madeline C. Arleo denied the motion to amend and/or correct the Complaint on September 24, 2010. On November 5, 2010, Plaintiffs filed an appeal of Magistrate Judge Arleo's decision denying the motion to amend and/or correct. This Court now addresses Plaintiffs' motion for partial summary judgment and appeal of Magistrate Judge Arleo's decision. For the reasons discussed below, this Court will address this motion as a full summary judgment motion.


This factual background is taken entirely from the decision of the administrative law judge of the Office of Administrative Law since that is the only record submitted to this court. No additional evidence has been presented.

The following narrative is found in the findings of fact*fn1 section of the ALJ's decision dated August 25, 2008. The ALJ relied on the testimony of Minja Cho, a learning consultant employed by the Fort Lee Board of Education; Howard Lipoff, a special education teacher at Fort Lee High School; Maria Kolic, Z.R.'s one-to-one aide; Michele Blum, a special education teacher and speech language therapist at Fort Lee Board of Education; Adam Krass, an assistive technology specialist; Casey Ngo-Miller, a school psychologist at Fort Lee High School; Dr. Steven Pavlakis, Z.R.'s neurologist since birth; Marilyn Arons, an expert in the field of special education whom had worked academically with Z.R.; Dr. Adine Ray Usher, a private educational consultant; Dr. Jean North, director of Special Services for Fort Lee; Mr. R, Z.R.'s father; and Z.R. The only record before the Court of these individual's testimony is the summary compiled by the ALJ.

Z.R., a twelfth-grade student at the time of the filing of the due process petition in November 2006, is classified with multiple disabilities. These disabilities, which are the result of cerebral palsy, include: low muscle tone; difficulty with fine-motor skills; slowed movement; and slow and delayed speech. As a result, Z.R. experiences fatigue.

Z.R. was "mainstreamed" in both the eleventh and twelfth grades, meaning that she attended general education classes with the exception of Study Skills, a special education class providing additional reinforcement. Z.R. was also "provided with accommodations and related services in the form of a one-to-one aide, speech language services, assistive technology, a laptop computer with voice-recognition software, and additional time to take examinations." Z.R. passed the New Jersey High School Proficiency Assessment as well as all of her classes in both the eleventh and twelfth grades.

Z.R. attended a summer program at the Riverview School in Massachusetts following the completion of twelfth grade. The comments section of a report received from the Riverview School and summarized by the ALJ, stated that Z.R. "is a fluent reader with solid word attach and vocabulary skills; . . . completed all reading and written assignments with minimal support; . . . [and] works with increased independence on the computer." However, the report also noted that she still depended on the teacher for correct spelling, cues to use punctuation, and clear, concise directions. Although Z.R. received marks of "D" in her high school math classes, the Riverview School report indicated that she "displayed good consumer math skills[;] was able to relate classroom assignments to 'hands-on' activities outside of the classroom[; and] was able to work at a high level when asked to help other students or solve a multi-step math problem."

The ALJ summarized the testimony of several witnesses as to the ability of Z.R. to engage in day-to-day activity. ALJ Cohen determined that "at the conclusion of her high school career Z.R. was able to function in the outside world as well as most typically developing graduates." The ALJ based her opinion on the testimony of the individuals listed above and noted that Kolic, Z.R.'s aide from ninth to twelfth grades, testified as to Z.R.'s ability to perform certain tasks for herself including picking out her own lunch, placing it on the tray, and paying for it at the cashier without assistance. Kolic also testified that although she took notes for Z.R. in class, Z.R. completed her own school work. Ngo-Miller, the Fort Lee school psychologist, testified that Z.R. "possessed appropriate social skills and could express her opinions in an assertive manner."


Summary judgment shall be granted "if the movant shows that 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). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

Once the moving party meets the initial burden, the burden then shifts to the non-movant who must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir. 2001). The court may not weigh the evidence and determine the truth of the matter but rather determine whether there is a genuine issue as to a material fact. Anderson, 477 U.S. at 249. In doing so, the court must construe the facts and inferences in a light most favorable to the nonmoving party. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520 (1991). The nonmoving party "must present more than just 'bare assertions, conclusory allegations or suspicions' to show the existence of a genuine issue." Podobnik v. United States Postal Serv.,409 F.3d 584, 594(3d Cir. 2005). If the nonmoving party "fail[s] to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. at 323.

A district court "possess[es] the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence." Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 280 (3d Cir. 2010) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986)). "Where it appears clearly upon the record that all of the evidentiary materials that a party might submit in response to a motion for summary judgment are before the court," and "those materials show that no material dispute of fact exists and that the other party is entitled to judgment as a matter of law" then the district court may enter summary judgment sua sponte. Gibson v. Mayor & Council of Wilmington, 355 F.3d 215, 224 (3d Cir. 2004); see also Anderson v. Wachovia Mortg. Corp., 621 F.3d at 280 (declaring that "[t]he notice requirement is satisfied when a case involves 'the presence of a fully developed record, the lack of prejudice, [and] a decision based on a purely legal issue.'") (quoting Gibson v. City of Wilmington, 355 F.3d at 224).


Plaintiffs filed a motion to amend before Magistrate Judge Arleo seeking to:

(1) clarify that the instant action arises under the IDEA, not the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; (2) include a demand for a jury trial; (3) add a claim for violation of plaintiffs' Fourteenth Amendment equal protection rights under 42 U.S.C. § 1983 ("§ 1983 claim") [against the OAL]; (4) have this ...

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