P.O. ex rel. L.T. v. Greenwich Bd. of Educ.

• Decision Date: 21 March 2002
• Docket Number: No. 3:00cv664(DJS).,No. 3:00cv685(DJS).,3:00cv664(DJS).,3:00cv685(DJS).
• Citation: 210 F.Supp.2d 76
• Parties: P.O., by and through his parents and next friends, L.T. and T.O. Plaintiffs v. GREENWICH BOARD OF EDUCATION Defendant
• Court: U.S. District Court — District of Connecticut

Page 76

210 F.Supp.2d 76

P.O., by and through his parents and next friends, L.T. and T.O. Plaintiffs v. GREENWICH BOARD OF EDUCATION Defendant

No. 3:00cv664(DJS).

No. 3:00cv685(DJS).

United States District Court, D. Connecticut.

March 21, 2002.

Andrew Alan Feinstein, Law Offices of David C. Shaw, Hartford, CT, for P.O., by his parents & next of friends L.T. & T.O.

Valerie E. Maze, Town of Greenwich, Town Hall, Law Dept., Greenwich, CT, for Greenwich Bd. of Educ.

ORDER

SQUATRITO, District Judge.

Upon review and pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 2 of the Local Rules for United States Magistrate Judges (D.Conn.), Magistrate Judge Thomas P. Smith's Recommended Ruling (Doc. # 50), is APPROVED and ADOPTED as the Ruling of this Court, over objection.

IT IS SO ORDERED.

RECOMMENDED RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT

SMITH, United States Magistrate Judge.

I. PRELIMINARY STATEMENT

This is an action for attorney's fees and costs incurred in connection with administrative proceedings initiated by the plaintiff under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. The plaintiff's parents allege that they were "prevailing parties" in the state administrative proceeding within the meaning of 20 U.S.C. § 1415(i)(3), and that they are entitled to an award of attorney's fees incurred in pursuing both the administrative action and this action in U.S. District Court.¹ Now pending before the court are the parties' cross-motions for summary judgment, as well as the plaintiff's motion for additional fees and costs.² For the reasons set forth below, the plaintiff's motions for summary judgment (docket no. 29) and additional costs and fees (docket no. 39) are DENIED, and defendant's motion for summary judgment (docket no. 24) is GRANTED.

II. SUMMARY JUDGMENT STANDARD

Rule 56(c) of the Federal Rules of Civil Procedure states, in pertinent part, that "the motion [for summary judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." In Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the Court stated that "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery upon motions, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." All ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought. See Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987).

"While genuineness runs to whether disputed factual issues can `reasonably be resolved in favor of either party,' ... materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law.... A reasonably disputed, legally essential issue is both genuine and material and must be resolved at trial." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) (citations omitted).

III. FACTS

Based upon the submissions of the parties, the court finds the following facts. At the time this action was initiated in 1994, the plaintiff, P.O., was a 14 year-old student entering ninth grade at Greenwich High School in Greenwich, Connecticut. The defendant, Greenwich Board of Education ("Board"), operates Greenwich High School.

In June of 1994, after an evaluation conducted by the Board, the Board classified P.O. as having a learning disability due to a significant discrepancy between P.O.'s written language achievement and verbal ability scores.³ During the eighth grade at Eastern Middle School ("Eastern"), which was the 1997-98 school year, the Individualized Educational Program ("IEP") provided services for P.O. in a "resource room" and for occupational therapy for thirty minutes once every four weeks.

During the months of November, 1997, and January, 1998, the Board conducted an educational evaluation for the purposes of meeting the statutory requirement of a triennial evaluation. In the summary of the report, the evaluation stated that P.O.'s "reading skills were average as was narrative writing, but expository and persuasive written skills were weak. Cueing did not significantly improve [P.O.'s] performance and, therefore, continued direction in written expression skills was required." See Due Process Hearing Final Decision and Order [hereinafter "Decision and Order"] at 5-6. The evaluator also found weakness in word finding and verbal oral expression. In addition, the evaluator made recommendations for strategies for P.O., his mainstream teachers, and his parents. Based upon the December 18, 1997 speech and language evaluation, the evaluator concluded that it was not necessary for P.O. to have speech and language services.

During a Planning and Placement Team (PPT) meeting in January of 1998, P.O.'s mother requested that P.O. be exited from the resource room and that his IEP goals be integrated in the regular education classroom. This dispute, however, was later resolved by the parties at the March 5, 1998 PPT meeting. During that meeting, the parties determined a new role for the special education teacher and a new function of the resource room. In addition, a portfolio system was to be implemented to help P.O. assess and evaluate his work. The resource room teacher and resource room time was to be used to teach P.O. how to use the portfolio system. The system was in use in the resource room for the remainder of the school year and, while the mother thought it was successful, she would have preferred to see it also be used in P.O.'s mainstream classes.

In May of 1998, P.O. was completing eighth grade at Eastern. On May 22, 1998, a PPT meeting was held to plan P.O.'s program at Greenwich High School for the 1998-1999 school year. This meeting resulted in an IEP which called for P.O. to attend the resource room for three periods during each eight-day cycle.

On or about June 9, 1998, P.O.'s mother requested that the IEP should incorporate P.O.'s triennial evaluation. The parties were unsuccessful in their attempts to incorporate the triennial evaluation into the IEP. Shortly thereafter, on July 24, 1998, P.O.'s parents filed for due process, requesting that the evaluation be incorporated in the IEP for 1998-1999. On August 6, 1998, P.O.'s parents submitted the prescribed Prehearing Conference Statement of Issues, which included a request for removal of P.O. from the resource room, modifications and adaptations in the classroom, and tutoring in reading to address the deficiencies noted in the triennial evaluation.

In September, 1998, P.O. began ninth grade at Greenwich High School and was assigned to the resource room. However, on August 25, 1998, P.O.'s mother wrote the principal of the high school withdrawing permission to have P.O. receive services in the resource room. At the September 17, 1998 due process hearing, an interim agreement was entered into the record removing P.O. from the resource room.⁴ The parties revised the IEP to include this agreement at the PPT meeting held on September 18, 1998.

During a further PPT meeting held on October 22, 1998, the IEP was modified to include a portfolio system for both assessment and as a teaching strategy in the regular educational setting.⁵ The mother agreed to the IEP with the exception that she wanted an occupational therapy consult.

On November 13, 1998, the due process hearing was reconvened. The hearing officer identified several new issues concerning P.O.'s educational program and the parties agreed that these issues would be heard by the officer if they were not resolved by the parties at a scheduled PPT meeting. In particular, one issue the parties were in disagreement was the implementation of the portfolio system.

Over the course of the due process hearings for the 1998-1999 IEP and related issues, the parties were attempting to prepare an IEP for P.O. that would cover the 1999-2000 school year. The parties' attempts were unsuccessful and, on September 7, 1999, P.O.'s parents filed for supplemental due process. At the September 23, 1999 hearing, the parents moved to enlarge the scope of the hearing to include P.O.'s programs for the 1999-2000 school year. The hearing officer granted the parents' motion.

In her written decision, the hearing officer framed the issues as follows:

1. Was the student provided with appropriate aids and supports in light of his disabilities to receive a free and appropriate public education during the 1998-1999 school year?⁶

2. Would the employment of an independent consultant to design a structured learning program, to train teachers in the implementation of that program, to monitor the student's performance in meeting IEP goals, to attend and report to PPT meetings, and to serve as a liaison between the Board and the parents have been an appropriate aid or service?

3. Was the portfolio system agreed by the PPT implemented by the Board?

4. Would providing an extended day program to provide the student tutoring in reading be an appropriate aid or service?

5. Would embedding speech and language services in the student's mainstream education be an appropriate aid or service?

6. Has the Board met the legal requirements to periodically assess the student's performance against his IEP goals?

7. Are the parents entitled to reimbursement for moneys they have spent:

a. for tutoring in reading that began in September 1998 and is still continuing;

b. for two tutors in language arts services during the summer of 1997; one working with Greek and Latin word roots and...