A.C. v. W. Windsor-Plainsboro Reg'l Bd. of Educ.
| Decision Date | 10 May 2022 |
| Docket Number | Civil Action 21-13016 (FLW) |
| Parties | A.C., individually and on behalf of Z.P., Plaintiff, v. WEST WINDSOR-PLAINSBORO REGIONAL BOARD OF EDUCATION; NEW JERSEY DEPARTMENT OF EDUCATION; ANGELICA ALLEN-MCMILLAN, Acting Commissioner of Education, in her official capacity, Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
Plaintiff A.C., individually and on behalf of her son, Z.P (“Plaintiff”), brought this action against Defendants West Windsor-Plainsboro Regional Board of Education (the “District”), the New Jersey Department of Education (“NJDOE”), and Angelica Allen-McMillian, in her official capacity as Acting Commissioner of Education (“Commissioner, ” together with the NJDOE, the ) alleging that Z.P. was denied a free, appropriate public education (“FAPE”). Presently before the Court is a motion, filed by the State Defendants, to dismiss Counts Five and Six of Plaintiff's Complaint, which asserts procedural violations of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (the “Act” or “IDEA”). Specifically, the State Defendants argue that (1) the Complaint fails to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) as to the Commissioner, (2) Count Five should be dismissed because the due process hearing was impartial, and (3) Count Six does not properly allege an actionable procedural violation of the Act based on the 45-day rule.
For the reasons that follow, the State Defendants' motion to dismiss is GRANTED in part, and DENIED in part. As to the Commissioner, the Complaint is dismissed without prejudice for failure to state a claim. As to the NJDOE, Count Five is dismissed without prejudice, while Count Six remains. Plaintiff is given leave to amend the Complaint consistent with the guidance provided herein, within 30 days of the Order accompanying this Opinion.
For the purposes of this motion, the Court takes as true all allegations of the Complaint. (See, e.g., ECF No. 1 (“Compl.”)).
Generally, Plaintiff seeks an Order reversing a final decision issued on March 30, 2021 (the “Final Decision”), by the Hon. Carl V. Buck, III, A.L.J. (the “ALJ”), in which the ALJ concluded that the District's determinations in January 2019 and May 2019, that Z.P. was not eligible for special education programs and services, were not a denial of a FAPE, and further, that the August 2019 and December 2019 Individual Education Programs (“IEPs”) developed and implemented by the District provided Z.P. a FAPE.
Z.P. is a five-year-old student in the District, who is purportedly eligible for special education and related services under the Act. (Compl., ¶¶ 14, 16). According to Plaintiff, Z.P. has been diagnosed with multiple disabilities, including Autism Spectrum Disorder, life-threatening asthma, and food allergies. (Id. at ¶ 54.) Indeed, as a toddler, Plaintiff alleges that Z.P. received Early Intervention Services (“EI”) four times per week which included speech-language therapy, occupational therapy, and developmental intervention sessions specifically designed to work on his social, emotional, and behavioral skills. (Id. at ¶¶ 56-58.)
Plaintiff alleges that in January 2019, the District held an Initial Identification and Evaluation Planning meeting to determine whether an evaluation of Z.P. was warranted to assess his eligibility for special education services. (Id. at ¶ 84.) Prior to the meeting, Plaintiff alleges that she provided the District with copies of reports of Autism and Speech-Language Evaluations performed at the Children's Hospital of Philadelphia in December 2018, as well as letters from Z.P.'s teachers at a preschool daycare center located in West Windsor, New Jersey. (Id. at ¶ 83.) According to Plaintiff, the District's personnel performed a “structured observation” during which time Z.P. interacted one-on-one with members of the District's Child Study Team (“CST”). (Id. at ¶ 85.) Following the structured observation session, the District determined that Z.P. was not eligible for special education, and related services, as a preschool child with a disability, and therefore, no further evaluation of Z.P. was necessary. (Id. at ¶ 93.)
In February 2019, however, Plaintiff alleges that she provided the District with additional documentation, including private evaluations purportedly demonstrating Z.P.'s educational needs and his deficiencies related to speech and language. (Id. at ¶ 99.) Also, in February 2019, Plaintiff filed a mediation-only request with the New Jersey Department of Education's Office of Special Education Policy and Dispute Resolution (“SPDR”), seeking reconsideration of the District's conclusion that Z.P. was ineligible for special education and related services. That request was later withdrawn, however, when the District agreed to evaluate Z.P. (Id. at ¶¶ 25, 106.)
On three occasions in March and April 2019, the District evaluated Z.P. (Id. at ¶ 25.) According to Plaintiff, the District's CST determined that “Z.P. did not have a disability that adversely affects his educational performance, but failed to give the Parent the required notice that they found him ineligible for special education and related services at that time.” (Id. at ¶ 26.) In response, Plaintiff, acting pro se at the time, filed a second mediation request on May 29, 2019, asking that Z.P. be deemed eligible for special education services.[1] (Id. at ¶ 27.) Approximately one month later, the parties appeared before the Hon. Dean J. Buono, A.L.J., who advised the parties that the first date available for a hearing was in March 2020. (Id. at ¶¶ 28-29.) At that time, the District agreed to reconsider its eligibility determination and conduct a second observation of Z.P. (Id. at ¶ 28.)
Shortly thereafter, in August 2019, the District found Z.P. eligible for special education services and proposed an IEP. (Id. at ¶ 30.) Although Plaintiff provided her written consent for the IEP, she purportedly disagreed with the District's denial of speech services for Z.P. (Id. at ¶ 31.) Because the parties could not agree on the issue of speech-language services, no settlement was reached, and the matter was assigned to the Hon. Carl V. Buck, III, A.L.J., in September 2019. At a status conference in October 2019, the District argued that Plaintiff's petition was moot based on the IEP; however, Plaintiff highlighted that Z.P.'s entitlement to speech services remained. (Id. at ¶ 33.) Eventually, the District agreed to conduct a speech evaluation within thirty days. (Id. at ¶ 34.) During those thirty days, Plaintiff alleges that she asked the District to develop a Behavioral Intervention Plan (“BIP”), but the District refused. (Id. at ¶ 35.) Thus, in November 2019, Plaintiff filed for emergent relief, seeking an order requiring the District to provide Z.P. with speechlanguage services and develop a BIP. (Id. at ¶ 36.) The District filed a cross-application to compel Plaintiff's consent for a full speech evaluation. (Id. at ¶ 37.) Plaintiff consented to the evaluation and the ALJ held a conference on January 27, 2020, at which time Plaintiff requested permission from the ALJ, which he granted, to amend her petition for due process to include additional relief. (Id. at ¶¶ 43-44.)
Due to the COVID-19 pandemic, the due process hearing was postponed, with the parties eventually agreeing to proceed via videoconference for seven days between May 21, 2020 and August 7, 2020. (Id. at ¶¶ 32, 48.) On March 30, 2021, the ALJ issued his final decision, denying Plaintiff's requested relief except with regard to a limited transportation issue. (Id. at ¶ 52.) According to Plaintiff, the Final Decision was substantively deficient because it failed to cite portions of federal and state law that govern the District's obligations to identify children with disabilities, contained incorrect factual findings, improperly shifted the burden of proof to Plaintiff, and was a “a near verbatim copy of the District's post-hearing brief.” (Id. at ¶¶ 13, 359, 367.)
On June 27, 2021, Plaintiff filed this action seeking a reversal of the Final Decision. (Compl., ¶ 2). Her Complaint asserts two counts against the NJDOE and no specific causes of action against the Commissioner. In Count Five, Plaintiff claims the NJDOE violated her right to an impartial due process hearing, and Count Six raises a procedural violation of the Act based on the time that passed during the due process proceedings. (Id. at ¶¶ 354-369, 375.)
Courts undertake a three-part analysis when considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Malleus v George, 641 F.3d 560, 563 (3d Cir. 2011). “First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.'” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)) (alteration in original). Second, the court must accept as true all of the plaintiff's well-pled factual allegations and “construe the complaint in the light most favorable to the plaintiff.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quotation omitted). In doing so, the court is free to ignore legal conclusions or factually unsupported accusations that merely state, “the-defendant-unlawfully-harmed-me.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[M]ere restatements of the elements of [a] claim[ ] ... are not entitled to the assumption of truth.” Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011) (alterations in original) (quotation omitted). Finally, the court must determine whether “the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim...
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