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Everett H. v. Dry Creek Joint Elementary School District

United States District Court, E.D. California

March 26, 2014

EVERETT H, a minor, by and through his Guardians Ad Litem REBECCA HAVEY and HEATH HAVEY; REBECCA HAVEY, an individual; and HEATH HAVEY, an individual, Plaintiffs,
DRY CREEK JOINT ELEMENTARY SCHOOL DISTRICT, BOARD OF TRUSTEES OF DRY CREEK JOINT ELEMENTARY SCHOOL DISTRICT; MARK GEYER, individually and in his official capacity of Superintendent of Dry Creek Joint Elementary School District; EVONNE ROGERS, individually in in her official capacity as Assistant Superintendent of Educational Services; LYNN BARBARIA, individually and in her official capacity as Director of Special Education; ANDREW GIANNINI, individually and in his official capacity as Principal at Olive Grove Elementary School; CALIFORNIA DEPARTMENT OF EDUCATION; and TOM TORLAKSON, individually and in his official capacity as State Superintendent of Public Instruction for the State of California, Defendants

Decided March 25, 2014.

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For Everett H., Rebecca Havey, Heath Havey, Plaintiffs: Heath A Havey, LEAD ATTORNEY, Sacramento, CA.

For Dry Creek Joint Elementary School District, Board of Trustees of Dry Creek Joint Elementary School District, Mark Geyer, individually and in his official capacity of Superintendent of Dry Creek Joint Elementary School District, Evonne Rogers, individually and in her official capacity as Assistant Superintendent of Educational Services, Lynn Barbaria, individually and in her official capacity as Director of Special Education, Andrew Giannini, individually and in his official capacity as Principal at Olive Grove Elementary School, Defendants: Sloan Robert Simmons, LEAD ATTORNEY, Lozano Smith, Sacramento, CA.

For California Department of Education, Defendant: Leonard Bruce Garfinkel, LEAD ATTORNEY, California Department Of Education, Sacramento, CA.


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Through the present action, Plaintiffs Heath and Rebecca Havey, both individually and on behalf of their son Everett H. (hereinafter " Plaintiffs" unless otherwise indicated) allege educational harms based on purported violations of Everett's right as a disabled student to a free and appropriate public education (" FAPE" ) pursuant to the provisions of the Individuals with Disabilities Education Improvement Act, 20 U.S.C. § § 1400 et seq. (" IDEA" ) and various state statutes. Plaintiffs also assert associated violations of Title II of the Americans with Disabilities Act, 42 U.S.C. § § 12101, et seq. (" ADA" ) and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (" § 504" ). Finally, Plaintiffs assert claims under the auspices of 42 U.S.C. § 1983 (" § 1983" ), which include both failure to accommodate claims and claims for civil rights discrimination and retaliation. By way of damages, Plaintiffs seek compensatory education and reimbursement, compensatory and punitive damages, and attorneys' fees.

The Dry Creek Joint Elementary School District, Everett's local school district, is named as a Defendant by Plaintiffs, along with Dry Creek's Board of Trustees and four individual Dry Creek administrators, Lynn Barbaria, Mark Geyer, Andrew Giannini and Evonne Rogers in their official capacities. (These Defendants will be collectively referred to as the " Local Defendants" unless otherwise specified). In addition to the Local Defendants, the California Department of Education (the " CDE" ) and State Superintendent of Public Instruction Tom Torlakson are also named Defendants in the instant lawsuit (the " State Defendants" ).

Both the Local and State Defendants have now moved to dismiss Plaintiffs' Complaint. This Memorandum and Order will address only the State Defendants' Motion to Dismiss (ECF No. 18), which is brought as both under Federal Rule of Civil Procedure 12(b)(6) and as an unenumerated 12(b) motion. As set forth below, that Motion will be granted in part and denied in part.[1]


The procedural and substantive standards for educating disabled students in this state are delineated within the federal IDEA and California's Education Code § 56000, et seq., along with state and federal implementing regulations. See 34 C.F.R. § 300 et seq.; Cal. Code Regs., tit. 5, § 3000, et seq.

The IDEA provides that a state must, in order to receive federal financial assistance, have policies and procedures in effect that assure all students with disabilities the right to a FAPE. 20 U.S.C. § 1412(a)(1). The FAPE requirement means that special education and related services must be provided at public expense, under public supervision and direction, and without charge to the parent or student. 20 U.S.C. § § 1401(9) and (29). Each student's special instruction is based upon the development of an Individualized Education Plan (" IEP" ) by the school district which, along with parental input, is designed to establish both annual and short term objectives and individually designed

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instruction and services that will enable the child to meet those objectives. 20 U.S.C. § 1414(d); Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988).

Under the IDEA, the CDE, as the so-called state educational agency (" SEA" ), has general supervisory responsibility for the overall provision of special education services within California. 20 U.S.C. § § 1412 (a)(11)(A); 1401(32). The IDEA contemplates that each individual state will devise its own systems for providing special education services through local educational agencies (" LEAs" ). 20 U.S.C. § 1401(19). LEAs apply for SEA funding by submitting a plan that ensures compliance with the IDEA. 20 U.S.C. § 1413(a). The SEA can choose, but is not required, to be a direct provider for some of whatever services may be necessary. 20 U.S.C. § 1412(b).

California elected to participate in IDEA by adopting a state plan and enacting a series of statutes and regulations designed to comply with the federal requirements. Cal. Educ. Code § 56000, et seq., Cal. Code Regs. tit. 5, § 3000, et seq. California law places primary responsibility for the provision of FAPE to eligible students on the LEA, which is defined as a " school district, a county office of education, a charter school participating as a member of a special education local plan area, or a special education local plan area." Cal. Educ. Code § 56026.3. An LEA, like Dry Creek in this instance, is generally responsible for providing the requisite FAPE to students within its jurisdictional boundaries. Cal. Educ. Code § 48200. That obligation includes both identifying students with disabilities, determining appropriate educational placements and related services through the IEP process, and providing those needed special education and related services. Cal. Educ. Code § § 56300, 45302, 56340, 56344(c).

Where, as here, a dispute arises regarding a disabled student's education needs, federal and California law provides two distinct procedural mechanisms by which an LEA's educational decisions may be challenged. First, either the LEA or the parents can request an administrative " due process" hearing. 20 U.S.C. § 1415(b)(6)(A); (f)(1)(A); 34 C.F.R. § 300.507(a); Cal Educ. Code § 56501(a), et seq.; Wyner v. Manhattan Beach Unified Sch. Dist., 223 F.3d 1026, 1028-29 (9th Cir. 2000); cert. denied., 534 U.S. 1140, 122 S.Ct. 1091, 151 L.Ed.2d 990 (2002). Because under the IDEA the entity conducting the due process hearing must be impartial and independent from the CDE (20 U.S.C. § 1415(f)(1)(A); (f)(3)(A)), the CDE meets this obligation in California by contracting with the Office of Administration Hearings (" OAH" ) for the services of Administrative Law Judges (" ALJs" ) to preside over due process hearings. Cal. Educ. Code § 56504.5(a); Cal. Gov't Code § 27727. Those hearings are formal in nature and include, inter alia, the right to present evidence and arguments, the right to confront and cross-examine witnesses and to compel their attendance, and the right to obtain written findings of fact by the ALJ following the hearing. 20 U.S.C. § 1415(h); Cal. Educ. Code § 56505(e). The resulting OAH ruling is deemed a final administrative decision. 20 U.S.C. § 1415(i)(1)(A); Cal. Educ. Code § 56505(h). Either the parents or the LEA, if " aggrieved" by the final administrative decision, may seek de novo judicial review in a court of competent jurisdiction like this one. 20 U.S.C. § 1415(i)(2)(A); 34 C.F.R. § 300.516; Cal. Educ. Code § 56505(k). The remedy represented by the administrative due process hearing must be exhausted before filing a civil action in federal court. 20 U.S.C. § 1415(l).

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In addition to the formal due process hearing procedures outlined above, parents may also initiate a more informal, and less adversarial, complaint resolution proceeding (" CRP" ) with an SEA, which, as stated above, is the CDE here in California. 34 C.F.R. § § 300.151-153; Cal. Educ. Code § 56500.2; Cal. Code Regs., tit. 5, § 4650. Unlike the due process hearings process that is both expressly provided in the IDEA and detailed in the regulations, the CRP is described only in the federal regulations. Lucht v. Molalla River Sch. Dist., 225 F.3d 1023, 1026 (9th Cir. 2000).

A CRP and the due process hearing substantially differ. Unlike the IDEA, which is limited to the identification, evaluation, placement and provision of FAPE, a CRP can contain any allegation that the LEA violated the IDEA or its implementing regulations. 34 C.F.R. 300.153(b)(1); Cal. Educ. Code § 56500.2(c)(1); Cal. Code Regs. tit 5, § 4650(a)(7)(E). Additionally, unlike a due process hearing request, a CRP can be initiated by any individual or organization, cannot be initiated by an LEA against a parent, and need not involve an allegation regarding a specific student. 34 C.F.R. § § 300.153(a); (b)(4); Cal. Code Regs. tit. 5, § 4600(c). Additionally, the nature of the proceedings differs to the extent that the CRP does not include full procedural protections like the right to confront and cross-examine witnesses.

When a party files a CRP in California, the CDE must investigate, request all documentation and other evidence relating to the allegations and issue an investigation report. Cal. Educ. Code § 56043(p); Cal. Code Regs. tit. 5, § § 4663-64. A parent or LEA can initiate a due process hearing even when a CRP is still pending so long as the issues in the due process request are timely, involve the identification, evaluation, placement or provision of FAPE and are accordingly within the jurisdiction of the OAH in California. See 20 U.S.C. § 1415(b)(6)(A); (f); Cal Educ. Code § 56501(a).


Everett H. is a disabled student who, according to the Complaint, suffered from delayed myelination and has been diagnosed with an autism spectrum disorder and resulting motor and neurological delays such as language impairment. Everett attended school within the Dry Creek Elementary School District (" Dry Creek" ) for approximately five years, from 2007 to March 2, 2012. During that period, Plaintiffs and Dry Creek had disagreements about the special education program provided by the District to Everett. According to Plaintiffs, Dry Creek made various errors with respect to the provision of FAPE, including in the IEP process, Everett's disability designation placement and providing education to Everett in the least restrictive environment (" LRE" ).

Plaintiffs allege that in order to shoehorn Everett into its special education agenda, Dry Creek intentionally misrepresented its testing as showing that he was " mentally retarded" in order to remove Everett from a general education classroom into a segregated classroom where severely handicapped children were warehoused and where little education purportedly took place. According to Plaintiffs, beginning in 2010, they resisted Dry Creek's attempt to provide fewer services than contemplated within Everett's IEP dated September 9, 2009. Specifically, Plaintiffs claim that the district withheld some 290 minutes of daily Specialized Academic

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Services required under the IEP and failed to rectify that shortcoming even after Plaintiffs demanded that the services called for under the IEP be provided.

Dry Creek eventually, on September 12, 2011, filed for a special education due process hearing before the OAH with ...

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