Pocono Mountain Sch. Dist. v. T.D.

• Decision Date: 20 July 2018
• Docket Number: 3:15-CV-764
• Parties: POCONO MOUNTAIN SCHOOL DISTRICT Plaintiff v. T.D., by and through his Parent S.D.L. Defendant
• Court: U.S. District Court — Middle District of Pennsylvania

POCONO MOUNTAIN SCHOOL DISTRICT Plaintiff v. T.D., by and through his Parent S.D.L. Defendant

3:15-CV-764

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

July 20, 2018

(JUDGE MARIANI)

MEMORANDUM OPINION

I. INTRODUCTION

Presently before the Court is a Report and Recommendation ("R&R") (Doc, 74) by Magistrate Judge Carlson recommending granting the parties' cross-motions for judgment on the administrative record in part and denying the motions in part, and affirming the Hearing Officer's decision below in all respects. Docs. 42 and 54. Plaintiff Pocono Mountain School District (the "District") filed Objections to the R&R, to which Defendant TD, by and through his parent S.D.L., responded. Docs. 79, 83. The District also filed a reply to TD's response. Doc. 84. For the reasons that follow, upon de novo review of the R&R, the Court will adopt the R&R in part and overrule it in part.

II. FACTUAL BACKGROUND

On April 20, 2015, the District initiated this action to appeal a decision issued by a Pennsylvania Special Education Hearing Officer ("Hearing Officer") involving TD, a former student of the District. Doc. 1. At the administrative level, the Hearing Officer, after receiving evidence and hearing testimony from the parties, made 146 findings of fact. Doc. 10-2 ¶¶ 1-146 (hereinafter "Fact Findings"). The Fact Findings detailed the series of efforts by the District and TD's parent to provide adequate education and related services to TD, who was diagnosed with conversion disorder and anxiety disorder.

Around the end of 2011 to the beginning of 2012, when TD was in the third grade, a female student touched TD's private parts on multiple occasions. Id. ¶¶ 1-2. After TD informed his mother of this, the mother notified the school. The school immediately conducted an investigation and determined that TD and the female student should be separated at all times for the rest of the school year. Id. ¶¶ 15, 19. For unknown reasons, the female student withdrew from the school the following week. Id. ¶ 20. For the few months after the investigation, TD exhibited behavioral and social issues, such as disciplinary notices and vision problems, though he maintained strong grades. Id. ¶¶ 22-28, 48. He also began seeing a consultant for victims of sexual abuse in the spring of 2012. Id. ¶ 25. In May 2012, the District conducted a meeting between District officials and TD's parent, during which the District's central office personnel opined that the school's initial investigation into the touching incidents did not comply with District protocol, but that they were confident that there were procedures in place to ensure TD's safety and a smooth transition into the fourth grade. Id. ¶¶ 36-38. The District also agreed to evaluate TD forspecial education services; the evaluation report, issued in July 2012, concluded that he did not have a disability under IDEA. Id. ¶¶ 40, 47.

However, during TD's fourth grade year (fall of 2012 to spring of 2013), he continued to exhibit behavioral and social problems at school, such as an altercation with other students, frequent nurse visits and missing class time, and disrespectful behavior towards his teacher, as well as continued vision problems. Id. ¶¶ 51-56. In January of 2013, the Parent arranged for an independent neuropsychological evaluation to be conducted by Dr. Heather Hoover, who diagnosed TD with conversion disorder (based on his vision problems that lacked any physical or organic etiology), and anxiety disorder for the first time. Id. ¶¶ 60, 62, 81. The mother sent Dr. Hoover's report to the District, and the school met with the mother again in May 2013. Id. ¶¶ 92, 94. In the summer of 2013, a private school began contacting the District requesting TD's records, and the District dis-enrolled TD. However, after the mother requested yet another meeting with the District and informed the District that she had not yet decided if she were transferring TD into private school, the District re-enrolled TD. Id. ¶¶ 101, 107-08, 111. The mother ultimately decided to place TD in private school, where he attended fifth grade. Id. ¶¶ 113-15. In November 2013, the mother retained a private school psychologist to evaluate TD, who concluded that TD "appeared to be a student who qualified for services under the IDEA as a student with an emotional disturbance and who required special education/ related services" but recommended further evaluation. Id. ¶ 122. The mother shared this report with the District, which agreed toconduct yet another independent evaluation at the District's expense. Id. ¶ 127. In May 2014, the independent evaluator retained by the District concluded that TD did not qualify as "an eligible student under IDEA," but did find that he had a disability—namely, "conversion disorder and anxiety disorder/not otherwise specified"—and that he qualified for Section 504 accommodations. Id. ¶ 129. The District agreed to implement and devise a Section 504 plan for TD, should he return to the District's schools. Id. ¶ 136. However, TD remained in private school as of the time his mother filed the special education complaint that led to the administrative proceedings. Id. ¶ 137.

Based on documentary evidence and witness testimony during the administrative hearings, the Hearing Officer found that (1) TD was not eligible for a free and appropriate public education ("FAPE") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., because he "does not qualify as a student with a disability under the IDEA"; (2) but TD was disabled (due to his conversion disorder and anxiety disorder) under Section 504 of the Rehabilitation Act of 1973, 20 U.S.C. § 794 ("Section 504"), and that he was denied FAPE under Section 504 as of May 14, 2013, which entitled him to one hour of compensatory education per school day for a period of 26 school days, as well as tuition reimbursement for the 2013-14 and 2014-15 school years; and (3) the District demonstrated deliberate indifference towards TD on the basis of his disability. Doc. 10-2 at 38-49 (hereinafter "Hearing Op.").

The parties filed cross-motions for judgment on the administrative record or, in the alternative, for summary judgment. Docs. 42 and 54. They agreed that they would not "seek to supplement the administrative recommend" and that their motions "shall be decided by the Court on the basis of the administrative record previously filed...in this action." Doc. 35 at 1-2. Neither party's motion clearly specifies the relief requested or what findings below they would ask this Court to affirm or overturn in their proposed orders. See Docs. 42-1, 54-1 (merely asking the Court to grant their respective motions for summary judgment, or in the alternative, judgment on the administrative record). The Court surmises from the parties' briefs that the District asks the Court to overturn the Hearing Officer's findings of disability, denial of FAPE, finding of deliberate indifference, and consequent compensatory education and tuition reimbursement damages under Section 504, and affirm the finding that TD is not disabled under IDEA, while TD requests the opposite relief, that is, affirming the Hearing Officer's findings as to the Section 504 analysis, and even extending the compensatory education "from the period March 2012 to May 14, 2013." Docs. 43, 54.¹

The parties' motions were referred to Magistrate Judge Carlson on September 25, 2017. After consideration of the parties' briefs and the record, Magistrate Judge Carlson issued the R&R, recommending that the parties' cross-motions each be granted in part and denied in part, and that the Hearing Officer's decision be affirmed in all respects.

The District objected to the R&R in a scattered brief, arguing that the R&R failed "to consider the record as a whole"; that it "merely incorporates the Hearing Officer's Decision without analysis necessary to this Appeal"; that it failed "to consider the extensive evidence and testimony provided by the District's 'educational professionals' greater expertise with educational matters'" (though the District fails to name who these "educational professionals" are or where their opinions can be found on the record); that it "proceeds by implication and is unclear as to the significance or relevance of its Statements [of Facts]"; that it conflates the legal standards under Section 504 and IDEA; that it "fails to address the hearing officer's application of the poisoned waters doctrine"; and that it unfairly dismissed the holding of T.F. v. Fox Chapel Area School Dist., 589 Fed. Appx. 594, 598 (3d Cir. 2014), See Doc. 79 (hereinafter "Objections"), generally.

At the outset, the Court notes that the District's "Objections" do little to engage in a meaningful analysis of the R&R, but instead relies on either patently false statements (for example, claiming the Magistrate Judge failed to consider the "poisoned waters" argument and T.F. v. Fox Chapel's holding when the R&R addressed both) or on empty rhetoric. See e.g., Objections at 6 (stating "The objective of the R&R appears to be to get rid of this case,not to deal with it" without citation or further analysis); id. at 3 (claiming that "[t]he R&R's adoption of the Decision renders it tautological" and that "the failures of the R&R put the District back to square one" without additional support or explanation); id. (stating that instead of "having to make the same arguments by way of Objection to the R&R," the District "incorporates by reference as if fully set forth herein the District's brief in support of the Motion for Judgment on the Administrative Record, or, in the Alternative, for Summary Judgment, dated April 25, 2016," even though incorporation of prior briefs is not permitted under Local Rule 7.8)²; id. at 22 (arguing that the R&R "could be accused of the fairly common fallacy of relating things in time and therefore in cause: nunc pro tunc. But things related in time are not...