M.A. v. Torrington Bd. of Educ., 3:10 CV 1890(JGM).

• Decision Date: 10 September 2013
• Docket Number: No. 3:10 CV 1890(JGM).,3:10 CV 1890(JGM).
• Citation: 980 F.Supp.2d 245
• Court: U.S. District Court — District of Connecticut
• Parties: M.A. et al. v. TORRINGTON BOARD OF EDUCATION.

980 F.Supp.2d 245

M.A. et al.

v.TORRINGTON BOARD OF EDUCATION.

No. 3:10 CV 1890(JGM).

United States District Court,

D. Connecticut.

Sept. 10, 2013.

Deborah G. Stevenson, Southbury, CT, for M.A. et al.

Alexandria L. Voccio, Howd & Ludorf, Hartford, CT, for Torrington Board of Education.

RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT

JOAN GLAZER MARGOLIS, United States Magistrate Judge.

On December 1, 2010, plaintiff J.A., the parent of minor M.A. [“Parent” and “M.A.,” respectively, and collectively “plaintiffs”],¹ commenced this action against defendants City of Torrington and the Torrington Board of Education [“defendant Board” and collectively “defendants”], pursuant to Article First, §§ 8 and 20, as amended, and Article Eighth, § 1, as amended, of the Connecticut Constitution; Connecticut General Statutes §§ 10–220, 10–231e, 10–291, 10–207, 10–4a, 10–15, 10–157, 10–184, 10–76a, 10–76d, and 10–76h et seq., and Connecticut Agencies Regulations § 10–76a–2; the Individuals with Disabilities Education Act [“IDEA”], 20 U.S.C. § 1415 and the Individuals with Disabilities Improvement Act of 2004, 20 U.S.C. § 1400 et seq.; and the due process clauses and equal protection clauses of the Fifth and Fourteenth Amendments to the United States Constitution. (Dkt. # 1).² This action is an administrative appeal of a due process hearing officer's decision, dated November 15, 2010, in Student v. Torrington Board of Education, Case No. 09–0552, which dismissed with prejudice plaintiffs' request for the hearing officer to declare, inter alia, that defendants improperly failed to identify M.A. as a child requiring special education and related services under Other Health Impairment [“OHI”] for the school years of 2006–2007, 2007–2008, 2008–2009, and 2009–2010. (Complaint, ¶ 8; see Complaint, Attachment A [“HO Decision”] ).³

On March 8, 2011, United States District Judge Janet Bond Arterton referred this case to this Magistrate Judge. (Dkt. # 24). Eight days later, defendants filed a partial Motion to Dismiss. (Dkt. # 26).⁴ Less than one month later, on April 20, 2011, this Magistrate Judge issued a Recommended Ruling [“April 2011 Ruling”], in which defendants' Motion to Dismiss was granted, thereby dismissing defendant City of Torrington, and dismissing Counts Five and Six ⁵ (Dkt. # 35); plaintiffs objected to the Recommended Ruling (Dkt. # 36; see also Dkt. # 37). On September 10, 2012, Judge Arterton issued her Ruling on Plaintiff[s'] Objection to Recommended Ruling (Dkt. # 49), 2012 WL 3985166 (D.Conn. Sept. 10, 2012), in which she adopted this Recommended Ruling granting defendants' Motion to Dismiss, with the modification that the Court declined to exercise supplemental jurisdiction over plaintiffs' state constitutional claims, thereby leaving the case to proceed only as an administrative appeal challenging the determinations of the hearing officer and the defendant Board under the IDEA. 2012 WL 3985166, at *2–4.

On November 14, 2012, the parties consented to the jurisdiction of this Magistrate Judge and the case was transferred accordingly. (Dkt. # 52). On December 10, 2012, plaintiffs filed their Motion for Summary Judgment, with Local Rule 56(a)1 Statement [“Plaintiffs' Statement”] and brief in support (Dkts. 55–57), and defendant Board filed its Motion for Judgment on the Administrative Record, with brief in support. (Dkt. # 58). On December 31, 2012, plaintiffs filed their brief in opposition, and defendant filed its brief in opposition and its Local Rule 56(a)2 Statement [“Defendant's Statement”]. (Dkts. 62–63). On January 10, 2013, plaintiffs filed a reply brief. (Dkt. # 64).

On December 11, 2012, defendant filed its Answer, officially filing the Administrative Record. (Dkt. # 59).⁶

For the reasons stated below, plaintiffs' Motion for Summary Judgment (Dkt. # 55) is granted in part and denied in part, and defendant's Cross–Motion for Judgment on the Pleadings (Dkt. # 58) is granted in part and denied in part.

I. BACKGROUND

A. M.A.'S ATTENDANCE AT TORRINGTON PUBLIC SCHOOLS 1997–2003⁷

Plaintiff M.A. attended the Torringford Elementary School in Torrington, Connecticut from August 1997 to June 2003 (Dkt. # 59, Administrative Record 09–0552 [“Admin. Rec.”], Hearing Officer's Decision [“HO Decision”], at 3, Findings of Fact [“FOF”] ¶ 1) (citations omitted),⁸ and when plaintiff M.A. entered the school, his mother reported him to be allergic only to animals. ( Id.) (citations omitted). ( See also Plaintiffs' Statement ¶¶ 3, 5; Defendant's Statement ¶¶ 3, 5). According to Parent, plaintiff M.A.'s respiratory issues result from the “severe water damage and indoor mold problems” at Torringford Elementary School. ( See Complaint ¶ 11 (citation omitted); Plaintiffs' Statement ¶ 6; Exhs. P–5, P–87, P–120 at 2, B13). Defendant disputes that there were any such problems and points out that the “only significant absence [M.A.] had [while at Torringford Elementary School] was [thirteen] days, when he had pneumonia.” (Defendant's Statement ¶ 6; 6/29/10 Hearing Tr. at 106–07; Exhs. B–1, B–2, B–5).⁹

During first grade, in 1998–1999, M.A. met all academic objectives, exceeded social development and work habit objectives, made satisfactory progress in all school subjects, and was absent fifteen days. (FOF ¶ 2) (citation omitted).

By October 1999, when M.A. was in second grade, Dr. Edward Kavle ¹⁰ diagnosed M.A. with reactive airway disease, allergic rhinitis, sinusitis, and asthma; in October 1999, M.A. had pneumonia; and in December 1999, Dr. Jeffrey Miller, plaintiff M.A.'s allergist from 1999 through March 2003, diagnosed M.A. with allergic rhinoconjunctivitis, asthma, and with extreme reaction to multiple inhalants, including trees, grass pollens, dust mites, and quite severe reaction to mold. (FOF ¶ 3 (citations omitted); 10/8/09 Hearing Tr. at 54–55, 56–58; 10/27/09 Tr. at 19). At that time, M.A. was allergic to tree pollen, grass pollen, cat and dog dander, dust mite, pollen, penicillin, ragweed, and mold, and was ultra-sensitive to picking up allergens and prone to recurrent infection. (FOF ¶ 26) (citations omitted). ( See also Plaintiffs' Statement ¶¶ 7–9; Defendant's Statement ¶¶ 7–9).

During his second grade school year, in 1999–2000, M.A. met all academic objectives, exceeded social development, work habit, and art class objectives, and made satisfactory progress in music and physical education, and he was absent twelve days. (FOF ¶ 3) (citations omitted).

During third grade in the 2000–2001 school year, M.A. earned straight A's in all academic classes, exceeded social development and work habit objectives, and was absent ten days. (FOF ¶ 5) (citations omitted). On or about June 2, 2001, the Torringford Elementary School Nurse sent a letter to the Parent acknowledging M.A.'s recent asthma diagnosis and inquiring as to whether M.A. could participate in the school's Fun Run on June 8, 2001, in response to which the Parent stated that M.A. “can definitely run at the Fox Run without a problem—no meds required. In fact he is the best runner + fastest on his baseball team. He is not restricted in any way....” (FOF ¶ 4 (citation omitted); see 10/27/09 Hearing Tr. at 18–19). Dr. John Santilli, M.A.'s additional allergist starting in July–August 2003 ( see FOF ¶ 11 (citations omitted); see also 10/8/09 Hearing Tr. at 55; 6/2/10 Hearing Tr. at 104), testified that M.A.'s asthma was under control at that time because it was “late spring[ ]” and M.A. is “mainly [allergic in] fall, late—late fall, early fall, summer, winter.” (6/17/10 Hearing Tr. at 40).

During fourth grade in the 2001–2002 school year, M.A. scored at goal in reading, writing and math on the Connecticut Mastery Test; he received mostly A's in his academic classes, exceeded objectives in his non-academic classes, and was absent five days. (FOF ¶ 6) (citations omitted).

When M.A. was in fifth grade, in the 2002–2003 school year, he earned all A's in his academic classes and was absent twelve days. (FOF ¶ 7) (citations omitted). In March 2003, Dr. Christopher Randolph, M.A.'s pediatric allergist/immunologist starting in March 2003, diagnosed M.A. with perennial/ seasonal allergic rhinitis and asthma. (Exh. P–6; 10/8/09 Hearing Tr. at 55). ( See also Plaintiffs' Statement ¶ 10; Defendant's Statement ¶ 10).

In March 2003, prior to entering sixth grade, the Parent requested that defendant identify M.A. as requiring special education related services as OHI and to provide him with a fair and appropriate public education [“FAPE”] for the 2003–2004 school year by placing him in either another public school within the district, or in an out of district private school. (FOF ¶ 9 (citation omitted); Exh. B–13; 10/8/09 Hearing Tr. at 66–67; 10/27/09 Hearing Tr. at 19–21). In June 2003, Dr. Randolph informed defendant Board of Education that remediation of M.A.'s school environment was required in order for him to function on his current medication, and based on reports from the Microbial Contamination Survey of January 19, 2003, there was evidence of water damage that would make the environment hostile to a child with asthma and allergic rhinitis. (Exh. P–7). ( See also Plaintiffs' Statement ¶ 11; Defendant's Statement ¶ 11). Dr. Randolph repeated his opinion in July 2003 and during the next month, in August 2003, Dr. Santilli informed the Board of Education that indoor air quality testing “clearly show fungi” in the Torrington Middle School, such that M.A. required an “out of district placement to avoid any disruption in the education process.” (FOF ¶ 11) (citations omitted). ( See also Plaintiffs' Statement ¶¶ 12–14; Defendant's Statement ¶¶ 12–14).¹¹ Dr. Santilli recommended initiation of allergy desentization against a variety of environmental allergens, and M.A. started allergy shots in 2004. (FOF ¶ 11) (citations omitted).

Following the removal of carpeting at the Torrington Middle School, Hygenix, Inc. conducted a test of the air quality and determined that the...