J.S. v. Ramapo Cent. School Dist.

• Decision Date: 21 September 2001
• Docket Number: No. 01 CIV. 0238(CM).,01 CIV. 0238(CM).
• Citation: 165 F.Supp.2d 570
• Parties: J.S. & M.S., individually and J.S., a minor by his mother and Legal Guardian, M.S., Plaintiffs, v. RAMAPO CENTRAL SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Southern District of New York

165 F.Supp.2d 570

J.S. & M.S., individually and J.S., a minor by his mother and Legal Guardian, M.S., Plaintiffs, v. RAMAPO CENTRAL SCHOOL DISTRICT, Defendant.

No. 01 CIV. 0238(CM).

United States District Court, S.D. New York.

September 21, 2001.

Michael A. DiChiaro, Chestnut Ridge, NY, for Plaintiffs.

Carl L. Wanderman, Greenberg, Wanderman & Fromson, Montebello, NY, for Defendant.

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

MCMAHON, District Judge.

Plaintiffs J.S. ("Jeffrey") and M.S. ("Mrs. S.") sue defendant Ramapo Central School District ("the District") for consultant fees and other related expenses as prevailing parties under the Individuals with Disabilities Education Act § 601 et. seq., as amended, 20 U.S.C.A. § 1400 et. seq.

Plaintiffs and defendant cross-move for summary judgment.

FACTUAL BACKGROUND

Jeffrey is an eighteen year old with a learning disability. His learning disability became apparent as early as the second grade, when he was classified by the District as a child with special academic needs.

Jeffrey's ninth grade individualized education program ("IEP") revealed a fifth grade reading ability, severe language deficits and comprehensive problems. Mrs. S sought services from the District to address her son's needs. The District maintained that Jeffrey did not qualify for remedial reading because his ability was not low enough — and that he could and would meet the standards of a New York State Regent's Diploma.

The District issued another IEP in 1998 ("1998 IEP"). The 1998 IEP attempted to address Jeffrey's academic needs by placing him in a resource room for 180 minutes weekly, and providing him speech and languages services two times per week for 30 minute periods in both individual and small group instruction. According to plaintiffs, the 1998 IEP was insufficient. As a result, Mrs. S. hired a psychotherapist, Dr. Starishevsky, and a tutor, Lynn Giacomarra, to help her son.

Jeffrey's report card for the 1998-99 academic year (his tenth grade) reflected that Jeffrey had failed every subject during the fourth quarter, and a failing final yearly grade average in all subjects except "resource room." In a May 12, 1999 annual review, the District conducted a speech and language evaluation, an educational evaluation, a classroom observation evaluation, and a psychological evaluation.

In June 1999, the District's Committee on Special Education ("CSE") met and considered Jeffrey's educational needs relating to his need to repeat the tenth grade. CSE developed an IEP dated June 22, 1999 (the "1999 IEP") that recommended that Jeffrey's interests might be best served by his attending a special education program in Rockland County. However, according to plaintiffs, the CSE informed Mrs. S that it was unclear whether alternative programs in Rockland County could accommodate Jeffrey. Despite a promise to make the arrangements to enable Mrs. S to look at the programs that might be available, the District never got back to her until long after the decision had to be made as to where Jeffrey would attend school in the 1999-2000 school year.

Mrs. S then hired a special education consultant, Marilyn Arons. Arons reviewed Jeffrey's academic history, his educational test results, and the evaluations of his performance and learning disabilities. Arons also met with Jeffrey to evaluate his academic challenges, and to develop an appropriate plan to reverse his failing performance.

Arons proposed to Lee Kapleau, chairperson of the District's CSE, that Jeffrey be placed at The Pine Ridge School in Vermont ("Pine Ridge"), which was on the emergency approved placement list for New York State schools. Kapleau told Arons that if Mrs. S planned to dispute the recommended 1999 IEP, then she was free to request a due process hearing.

Mrs. S enrolled Jeffrey at Pine Ridge for the 1999-2000 school year.

On October 5, 1999, Mrs. S requested a due process hearing, seeking, inter alia, reimbursement for all costs associated with Jeffrey's attendance at Pine Ridge. Pursuant to that demand, the District appointed Kenneth Stewart, an Impartial Hearing Officer, from the rotational list of Hearing Officers maintained by the New York State Education Department.

The due process hearing was held on January 24, 2000, February 24, 2000, and February 28, 2000, during which Lee Kapleau testified as the only witness. At all times during the hearings, Ms. Arons served as the spokesperson and advocate for the plaintiffs.

After the hearings, the District agreed that the District's CSE would reconsider its recommendation for Jeffrey's placement; if it determined that Jeffrey required a residential placement, the District would attempt to place Jeffrey in a New York State approved school. If no such placement was available, the parties agreed that an application would be made by the District to the State Education Department for emergency approval of Pine Ridge as a placement for Jeffrey, effective, retroactively, to the beginning of the 1999-2000 school year.

On March 13, 2000, the CSE met, and with Jeffrey and Mrs. S present, recommended that Jeffrey be placed in a residential school. The State Education Department approved Pine Ridge as an emergency residential placement on March 24, 2000.

On May 15, 2000, Arons wrote to the Impartial Hearing Officer, advising him that the case had been settled, that the parent had agreed to drop her compensatory claim, that the matter had been "satisfactorily resolved," and that his services as a Hearing Officer were no longer needed. The defendant paid the full tuition, room and board for Jeffrey at Pine Ridge for the 1999-2000 school year. Pine Ridge reimbursed plaintiffs for payments that Mrs. S had made to Pine Ridge prior to payment by the District for the entire school year.

Plaintiffs now seek reimbursement for "consultant services" provided by Arons, psychotherapy provided by Dr. Starisevsky, tutoring provided by Lynn Giacomarra, and other expenses. They move for summary judgment on the ground that as prevailing parties under IDEA, the District is obligated to reimburse plaintiffs for their fees incurred in challenging Jeffrey's IEP.

Defendants cross-move for summary judgment, alleging that "consultants' fees" are not included under the IDEA; that plaintiff failed to exhaust her administrative remedies; and that the claims are time-barred. Even if the plaintiff were to overcome those procedural hurdles, defendant argues that under the U.S. Supreme Court's recent decision in Buckhannon v. West Virginia, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), prevailing party fees are not available for a party that has failed to secure a judgment on the merits.

For the reasons stated below, plaintiff's motion for summary judgment is denied, and defendant's cross-motion for summary judgment is granted.

DISCUSSION

Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue for trial exists if, based on the record as a whole, a reasonable jury could find in favor of the non-movant. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. In making its determination, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. See id. at 255, 106 S.Ct. 2505. To defeat summary judgment, the non-moving party must go beyond the pleadings and "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When opposing a motion for summary judgment, it is not sufficient for the non-moving party to present evidence that is conclusory or speculative, with no basis in fact. See Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. While Plaintiffs need not produce direct evidence of an alleged civil rights violation, they must be able to produce evidence, in admissible form, that is more than surmise and speculation which is based on their own subjective beliefs. See Matsushita, 475 U.S. at 576, 106 S.Ct. 1348.

Plaintiffs seek recovery under the IDEA for reimbursement of "consultants fees" paid to Ms. Arons. The IDEA is one of a number of statutes that provide a court's authority to award reimbursement of attorney's fees to a prevailing party. It states: "In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents of a child with a disability who is the prevailing party." IDEA, 20 U.S.C. § 1415(i)(3)(B). The parties dispute whether plaintiffs meet the definition of a prevailing party.

This year, the Untied States Supreme Court set forth the standard of who may be considered a "prevailing party" in a civil rights lawsuit. See Buckhannon v. West Virginia Dep't of Health, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). The issue in Buckhannon was whether the term "prevailing party" includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant's conduct. Id. at ___, 121 S.Ct. 1835. The Court evaluated a claim for attorney's fees under the Fair Housing Amendments Act of 1988, 102 Stat. § 1619, 42 U.S.C. § 3601 et. seq. and the Americans with Disabilities Act of 1990(ADA), 104 Stat. § 327, 42 U.S.C. § 12101, et. seq. — statutes which, like the IDEA, allow a court to grant, in its discretion, a reasonable attorney's fee to a prevailing party. Id. at 1839.

The Court denied the request for fees, reasoning that a "prevailing party" is one who has been awarded...