Adashunas v. Negley

• Decision Date: 22 September 1980
• Docket Number: No. 80-1075,80-1075
• Citation: 626 F.2d 600
• Parties: Joseph D. ADASHUNAS, a minor by his parents, Alvin and Olga Adashunas, on behalf of themselves and all others similarly situated, Plaintiff-Appellant, v. Harold H. NEGLEY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 600

626 F.2d 600

Joseph D. ADASHUNAS, a minor by his parents, Alvin and Olga

Adashunas, on behalf of themselves and all others

similarly situated, Plaintiff-Appellant, v. Harold H. NEGLEY et al., Defendants-Appellees.

No. 80-1075.

United States Court of Appeals,

Seventh Circuit.

Argued May 29, 1980.

Decided Aug. 1, 1980.

Rehearing and Rehearing In Banc Denied Sept. 22, 1980.

Rosalie B. Levinson, Valparaiso, Ind., for plaintiff-appellant.

David M. Wallman, Deputy Atty. Gen., Indianapolis, Ind., for defendants-appellees.

Before CASTLE, Senior Circuit Judge, and SPRECHER and WOOD, Circuit Judges.

SPRECHER, Circuit Judge.

The major issue in this appeal is whether the district court abused its discretion in denying certification of a plaintiff class consisting of all learning disabled children in Indiana.

I

On May 18, 1976, the parents of two minor children residing and attending public elementary schools in LaPorte County, Indiana, brought a class action on behalf of all children attending public schools within Indiana who have specific learning disabilities and are not receiving adequate special education. The suit was filed under 42 U.S.C. § 1983 and the First, Ninth and Fourteenth Amendments, and seeks declaratory, injunctive and monetary relief. The complaint named thirty-six defendants, consisting of seven state educational agency members and twenty-nine LaPorte County officials or educational agency members. The complaint did not originally allege that the named defendants represented a defendant class.

On October 12, 1976, the complaint was amended to add a claim under the Education for All Handicapped Children Act, 20 U.S.C. §§ 1401 to 1461, and to allege a defendant class, whose members were

the superintendent and school board members of each Indiana public school corporation which fails to identify all students who are neurological impaired/learning disabled and fails to provide access to a minimally adequate education suited to the needs of all such students.

First Amended Complaint, Record, Vol. I, Document No. 19.

Discovery revealed that the schools attended by both the named plaintiff minors, as well as several other LaPorte County schools, were members of the South LaPorte County Special Education Cooperative. Consequently, on March 25, 1977, a second amended complaint was filed, adding four additional defendants the South LaPorte County Special Education Cooperative and three members of the Cooperative's Advisory Committee. The amended complaint also added a claim under the Rehabilitation Act, 29 U.S.C. §§ 701 to 794. See Second Amended Complaint, Record, Vol. I, Document No. 39.

On August 11, 1977, the plaintiffs moved the district court to determine and certify plaintiff and defendant classes as follows:

(1) plaintiff class composed of all children within the State of Indiana entitled to a public education who have learning disabilities who are not properly identified and/or who are not receiving such special instruction as to guarantee them of minimally adequate education; . . .

(2) defendant class composed of the superintendent and school board members of each Indiana public school corporation that fails to identify all students with learning disabilities and/or fails to provide access to a minimally adequate education suited to the needs of all such students.

Motion for Order Determining Plaintiff and Defendant Classes, Record, Vol. I, Document No. 41.

The named plaintiffs urged the district court that they could adequately represent the plaintiff class and that the LaPorte County defendants could represent the defendant class. The named defendants opposed certifying either a plaintiff or a defendant class.

Thereafter, the numerous named defendants moved the court either to dismiss the action or to enter summary judgment in their favor. On November 23, 1977, the court dismissed seventeen of the named defendants because they were all named as township trustees in LaPorte County and they "have no power, authority or right to control the operation of any school corporation in LaPorte County or in the State of Indiana and, therefore, are neither necessary, proper or indispensible parties to this action." No. S-76-72 (N.D.Ind. Nov. 23, 1977).

On December 18, 1978, after testing and conferences, Joseph Adashunas, one of the named plaintiff minors, was determined to be learning disabled and entitled to a special education program by the South LaPorte County Special Education Cooperative. The following day he was enrolled in the learning disability program conducted by the cooperative.

The other named plaintiff minor, Shannon Durbin, was found, after extensive testing, not to be learning disabled. On June 4, 1979, she and her parent advised the court that they "no longer wish(ed) to be plaintiffs in this litigation," Motion to Dismiss, Record, Vol. II, Document No. 72, and they were dismissed. No. S-76-72 (N.D.Ind. June 5, 1979).

The court had advised the parties that all pending motions to dismiss would be treated as motions for summary judgment and that all parties could submit supplemental materials in support of their motions.

On December 17, 1979, the district court entered its order, finding and holding:

(1) That the defendants were entitled to summary judgment against Joseph Adashunas on his claim under the Education for All Handicapped Children Act. Under that Act, all recipients of federal funds must provide a free appropriate education to all handicapped children by September 1, 1978. See 20 U.S.C. § 1412(2)(B). Indiana is a recipient of funds, and on June 14, 1978, the Commission on General Education of the Indiana State Board of Education promulgated an amended Rule S-1, which, among other things, allows students or their parents to initiate proceedings to determine whether the student is in need of special education. As a result of Rule S-1 remedies, Adashunas was placed in a special education program on December 19, 1978, which mooted his claim that he should be placed in such a program.

(2) That the defendants were entitled to summary judgment against Adashunas on his claim for injunctive relief under the Rehabilitation Act, because the placing of Adashunas in a special education program also mooted that claim. However, the plaintiff was allowed to pursue his claim for compensation under the Rehabilitation Act, subject to trial on that claim.

(3) That the plaintiff's constitutional claim was without merit.

(4) That the plaintiff's motion for class certification was denied.

Adashunas has appealed the denial of injunctive and declaratory relief and the denial of class certification.

II

Several questions have been raised regarding the appealability of the district court order. ¹ Inasmuch as the plaintiff did seek a partial summary judgment, including injunctive relief, the denial of an injunction qualifies the order for appeal under 28 U.S.C. § 1292(a)(1). Because the denial of injunctive relief is interdependent with the remainder of the appealed order, Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 522 F.2d 1235, 1237-38 (7th Cir. 1975), reheard in banc on other grounds, 538 F.2d 164 (7th Cir. 1976), this court may consider the entire order insofar as it has been appealed. See Helene Curtis Industries, Inc. v. Church & Dwight Co., Inc., 560 F.2d 1325, 1335 (7th Cir. 1977).

The fact that much of the plaintiff's individually sought relief was denied on the basis of mootness does not disqualify the plaintiff from appealing the denial of certification of the class. United States Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980); Deposit Guaranty National Bank of Jackson v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980); Susman v. Lincoln American Corp., 587 F.2d 866, 868-71 (7th Cir. 1978).

We also note preliminarily that the district court correctly concluded that the Rehabilitation Act does provide the handicapped with affirmative rights, does create a private right of action and does not require exhaustion of administrative remedies. See Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977).

Finally, it does not appear that the plaintiff has appealed the constitutional question applying to him in his individual capacity, but inasmuch as this is only an appeal of an interlocutory order, the plaintiff may raise that question when and if he appeals any final judgment regarding his individual rights.

III

The district court found and concluded that the State of Indiana defendants complied with the Education for All Handicapped Children Act "(a)t least with regard to this plaintiff's claims," by adopting Rule S-1, and that the LaPorte County defendants likewise complied by granting the plaintiff the relief he sought, subject to trial upon the question of damages. No. S-76-72 (N.D.Ind. Dec. 17, 1979), memo. op. at 3. Upon this appeal, the plaintiff does not deny that he received and is receiving special education and that his individual claims have become moot. ² The briefs on appeal deal in major part with the denial of class certification and with the class action claims.

In order to state a class action claim upon which relief can be granted, there must be alleged at the minimum (1) a reasonably defined class of plaintiffs, (2) all of whom have suffered a constitutional or statutory violation (3) inflicted by the defendants. The complaint as amended in this case is seriously deficient in all three respects insofar as the class action is concerned.

The plaintiff class consists of children entitled to a public education who have learning disabilities and "who are not properly identified and/or who are not receiving" special education. In the comprehensive discovery undertaken and numerous affidavits filed, it does not appear that there are numerous identifiable children not receiving special education in Indiana, but only suspected-to-exist children with learning disabilities "who...