Millay v. Surry School Dept.

• Decision Date: 28 October 2008
• Docket Number: No. CV-07-178-B-W.,CV-07-178-B-W.
• Citation: 584 F.Supp.2d 219
• Parties: Joanne M. MILLAY, as parent of minor child YRM, Plaintiff, v. SURRY SCHOOL DEPARTMENT, Defendant.
• Court: U.S. District Court — District of Maine

584 F.Supp.2d 219

Joanne M. MILLAY, as parent of minor child YRM, Plaintiff, v. SURRY SCHOOL DEPARTMENT, Defendant.

No. CV-07-178-B-W.

United States District Court, D. Maine.

October 28, 2008.

COPYRIGHT MATERIAL OMITTED

Joanne M. Millay, Surry, ME, pro se.

Eric R. Herlan, Peter C. Felmly, Drummond, Woodsum & MacMahon, Portland, ME, for Defendant.

ORDER ON PENDING MOTIONS

JOHN A. WOODCOCK, JR., District Judge.

Joanne Millay, whose child Y.M. has not attended school for roughly two years, seeks an order placing Y.M. in a life skills program at a local public school pending the Court's review of a due process hearing officer's decision. Surry School Department (Surry) opposes her request and contends that Y.M. should return to Perkins School for the Blind (Perkins), a specialized residential program in Watertown Massachusetts, or resume her schooling at Surry, which Y.M. attended before and after her stay at Perkins. Pursuant to the stay put provision of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., the Court determines that Y.M.'s stay put placement is at Surry, and that Surry must fully implement Y.M.'s Individual Education Plan (IEP) last implemented at Perkins.

I. INTRODUCTION

A. Factual History

Y.M. is a fourteen year-old girl who is blind, has a moderate hearing impairment, and is diagnosed as being on the autism spectrum. Pupil Eval. Team Mtg. Minutes of April 24, 2006 and IEP at 6 (Docket # 41-10). During the 2004-2005 school year, Y.M. was a fourth grader at Surry. Aff. of Melissa Beckwith ¶ 3 (Docket # 38); Pupil Eval. Team Mtg. Minutes of April 13, 2005 at 2 (Docket # 42-4). During the 2005-2006 school year, Y.M. was a fifth grader, and was tuitioned by Surry at Perkins. Aff. of Melissa Beckwith ¶ 3; Aff. of Lynn Maddocks ¶¶ 6-7. Her attendance at Perkins was interrupted in late fall of 2005 by health problems. Aff. of Lynn Maddocks ¶ 7. She returned to Perkins for several days in March 2006, but was again withdrawn by her mother for health reasons. Id. ¶¶ 8-9. Ms. Millay considered Perkins inappropriate for Y.M. not because her IEP was flawed, but because Perkins' distant residential program, with visits from her mother on a weekly basis at best, proved too difficult for Y.M. Pl.'s Br. Regarding Proper Stay-put Placement for YRM at 3-4 (Docket # 42) (Pl.'s Suppl. Br.). After determining that the Perkins program would not be successful for these reasons, on April 24, 2006, Ms. Millay agreed to Y.M.'s placement at Surry for the summer of 2006. Consent for Placement/Services (Docket # 42-3).

Y.M. was a sixth grader during the 2006-2007 school year.¹ She attended Surry from roughly September 5 through September 22 of 2006. Aff. of Lynn Maddocks ¶¶ 14, 16-17. Y.M. has not returned to school since that time. Id. ¶ 17. Ms. Millay filed a complaint with the Maine Department of Education (MDOE) on February 6, 2007 regarding the 2006-2007 school year. The MDOE complaint investigators issued the complaint investigation report (the MDOE Report) on July 6, 2007. MDOE Report (Docket # s 1-8 & 1-9). In the MDOE Report, the investigators described several violations of federal law. However, due to ongoing disagreements, Y.M. has not, to date, returned to school. In the fall of 2007, before filing suit, Ms. Millay requested a special education due process hearing under the IDEA. The hearing officer issued his decision on June 20, 2008. Special Education Due Process Hr'g (Docket # 27-2). Ms. Millay's appeal of that administrative proceeding is not ready for review.

B. Procedural History

The peculiar posture of this case warrants a comprehensive recital of its procedural history. On August 31, 2007 Ms. Millay commenced an action against School Union 92 alleging violations of the IDEA; section 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq.; the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.; and the Civil Rights Act of 1871, 42 U.S.C. § 1983.² Withdrawn Compl. ¶ 2. Ms. Millay requested an "order that [Y.M.] be placed in school in the least restrictive environment, which is the [Mount Desert Island High School (MDI)] ... with services set forth in her undisputed [IEP], while the issue of placement is finally resolved in other venues." Id. ¶ 18. The School Union moved to dismiss, arguing that Ms. Millay had sued the wrong party and had failed to exhaust administrative remedies. Mot. to Dismiss (Docket # 6) (filed in 07-CV-129-B-W) (Mot. to Dismiss Withdrawn Compl.). The School Union pointed out that Ms. Millay had requested a due process hearing on September 11, 2007, less than two weeks after filing her complaint. Mot. to Dismiss Withdrawn Compl. at Ex. 1. Acknowledging that administrative remedies remained available to her, on October 11, 2007 Ms. Millay moved to withdraw her complaint. Mot. to Withdraw (Docket # 8) (filed in 07-CV-129-B-W). Ms. Millay explained that "a pending due process hearing ... may resolve all or part of the issues" she had prematurely brought to the Court's attention. Mot. to Withdraw. On October 17, 2007 the Court granted her motion. J. of Dismissal Without Prejudice (Docket # 10) (entered in 07-CV-129-B-W).

Just over a month later, on November 27, 2007 Ms. Millay filed a second, identically entitled complaint against the School Union. Compl. and Mot. for Preliminary Emergency Inj. (Docket # 1) (Compl.). Her new complaint and motion for a preliminary injunction are based on the same federal statutes.³ Id. ¶ 2. In her slightly altered prayer for injunctive relief, Ms. Millay requested that the Court (1) restrain the superintendent of the School Union from forcing Y.M. into a traumatic and counter-productive educational placement; (2) order the School Union "to make its facility at the life skills program in the Trenton Elementary School available to [Y.M.] pending ... the conclusion of a fair due process hearing";⁴ and (3) award her fees and costs, including attorney fees. Id. ¶ 12. The School Union again moved for dismissal. Mot. to Dismiss (Docket # 6) (Mot. to Dismiss Compl.). Reiterating its exhaustion argument, the School Union noted that Ms. Millay re-filed her request for a due process hearing on November 17, 2007, only ten days before filing suit for the second time. Id. at 3; Compl. at Ex. 6 (Docket # 1-7). The School Union also opposed Ms. Millay's request for preliminary injunctive relief, relying in large part on the exhaustion arguments supporting its motion to dismiss. Opp'n to Request for Preliminary Inj. (Docket # 8) (Def.'s Opp'n).

On January 2, 2008, in a consolidated submission, Ms. Millay responded to the School Union's motion to dismiss and in support of her request for injunctive relief. Pl.'s Resp. to Mot. to Dismiss and Reply to Def.'s Opp'n (Docket # 11) (Pl.'s Resp. & Reply). Ms. Millay clarified that her "request for preliminary injunction under Title 20 U.S.C. Section 1415(j) is for the Court to order [the School Union] to place [Y.M.] in a public school life skills program with other children with disabilities that is within reasonable traveling distance of the student's home and is not at the Surry Elementary School." Pl.'s Resp. & Reply at 3. Ms. Millay explained that her complaint and motion "was not filed to usurp the due process hearings, but to ensure stability for [Y.M.] as provided under Title 20 U.S.C. Section 1415(j)." Id. at 1. In its reply, the School Union again directed its exhaustion arguments to Ms. Millay's clarified, if not new, claim that 20 U.S.C. § 1415(j)—the stay put provision of the IDEA—requires that the Court grant her motion for injunctive relief. Reply Mem. in Support of Mot. to Dismiss Compl. (Docket # 13) (Def.'s Reply).

The Court referred to the magistrate judge Ms. Millay's motion for a preliminary injunction and the School Union's motion to dismiss. The magistrate judge recommended that the Court grant the motion to dismiss on the ground that Ms. Millay had not exhausted her administrative remedies. Rec. Dec. (Docket # 18). The magistrate judge recognized that to dismiss the Complaint would effectively deny the motion for a preliminary injunction. Id. at 6. Ms. Millay filed her objection to the Recommended Decision and the School Union responded. Pl.'s Obj. to Rec. Dec. (Docket # 19); Def.'s Resp. to Obj. to Rec. Dec. (Docket # 20). Without prior order of the Court, Ms. Millay filed a reply, which was joined with a request for oral argument on her motion for a preliminary injunction. Pl.'s Reply and Request for Oral Argument (Docket # 21). The School Union promptly moved to strike Ms. Millay's reply and request for oral argument. Def.'s Mot. to Strike Pl.'s Reply Br. Objecting to the Rec. Dec. (Docket # 23) (Def.'s Mot. to Strike).

The Court granted Ms. Millay's request for oral argument, denying in part the motion to strike. Order Granting Mot. for Oral Argument (Docket # 25). The Court now grants the remainder of the School Union's motion and strikes Ms. Millay's reply, which was filed in violation of Local Rule 72.1. D. Me. Loc. R. 72.1 (explicitly stating that "[e]xcept by prior order of the court, no reply memorandum shall be filed" following objection to a recommended decision and a response thereto). Ms. Millay does not address her violation of Local Rule 72.1 either in the offending reply or in her response to the motion to strike. See Pl.'s Reply and Request for Oral Argument; Pl.'s Reply to Def.'s Mot. to Strike (Docket # 24). The Court will not consider the reply in its disposition of the parties' motions.

On June 20, 2008, a week before the Court granted Ms. Millay's request for oral argument, the due process hearing officer issued his final decision. Millay v. Surry Sch. Dep't, 08.049(H) & Surry Sch. Dep't v. Millay, 08.051H (June 20, 2008) (Docket # 27-2). Noting the procedural effect of the hearing officer's decision, the School Union moved to stay oral argument because (1) the Court needed to develop an evidentiary record before it...