Smith ex rel. Duck v. Isle of Wight County School
| Decision Date | 23 September 2003 |
| Docket Number | No. 2:03CV53.,2:03CV53. |
| Citation | 284 F.Supp.2d 370 |
| Parties | Joshua SMITH, A minor, by his mother Sharon DUCK, and Sharon Duck, Plaintiffs, v. ISLE OF WIGHT COUNTY SCHOOL BOARD, Dr. Michael W. McPherson, Superintendent of the Isle of Wight County Public Schools, and Ted Durniak, Director of Special Education, Isle of Wight County Public Schools, Defendants. |
| Court | U.S. District Court — Eastern District of Virginia |
John Warren Hart, John W. Hart, P.C., Virginia Beach, for Joshua Smith, A minor, by his mother Sharon Duck, Sharon Duck, plaintiffs.
Kevin Joseph Cosgrove, Scott Edwin Thompson, Hunton & Williams, Norfolk for Isle of Wight County School Board, Dr. Michael W. McPherson, Superintendent of the Isle of Wight County Public Schools, Ted Durniak, Director, Special Education, Isle of Wight County Public Schools, defendants.
This matter was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(c)(1) and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia, by order of reference filed August 12, 2003.
Joshua Smith ("Joshua") was born on May 4, 1989 and is currently 14 years old. He lives with his mother, Sharon Duck ("Mrs. Duck"), in Isle of Wight County and currently attends Windsor Middle School. In 1995, following several evaluations, the school determined that Joshua was a qualified handicapped person eligible to receive additional help. On May 3, 1995, a meeting was held and Mrs. Duck agreed to the program suggested by the school. On August 30, 1996, Mrs. Duck agreed to an Individualized Educational Program ("IEP") formulated for Joshua's second grade year, the 1996-1997 school year, pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Following Joshua's second grade year, Joshua's teachers determined Joshua should repeat the second grade and another IEP was formulated for the 1997-1998 school year. Mrs. Duck agreed with the decision.
Joshua started third grade in September of 1998. The parties disagree as to whether an IEP was implemented for Joshua's third grade year. Neither the school, nor Mrs. Duck has produced a copy of an IEP, or records of any meetings discussing Joshua's IEP. However, Mrs. Duck contends there was an IEP in place for Joshua's third grade year.
After Joshua's third grade year, he and Mrs. Duck moved, and Joshua started the fourth grade at Carrsville Elementary School for the 1999-2000 school year. The registration form, filled out by Mrs. Duck on August 17, 1999, contains the following question, "Has [Joshua] been identified for Special Education, Gifted and Talented or Alternate Education Programs?" The "yes" box was checked and the phrase "1997 Special Ed" appears, although Mrs. Duck does not believe this is in her handwriting.
Joshua was not enrolled in any special education classes in the fourth grade, and no IEP was implemented. In October of 1999, Mrs. Duck asked that Joshua be referred for assistance, because she felt he needed additional help. On November 12, 1999, a meeting was held, and those in attendance included the Carrsville principal, three of Joshua's teachers, the special education coordinator and Joshua's grandmother. Mrs. Duck could not attend, but made certain Joshua's grandmother knew her position and could participate on her behalf. During this meeting, the decision was made that Joshua not be placed in special education classes or have an IEP. A report was prepared and given to Mrs. Duck. Although Mrs. Duck did not agree with the decision made at the meeting, she was not notified of her right to appeal, and did not appeal the decision. The Defendants admit Mrs. Duck was not given notice of her right to appeal the decision in accordance with the IDEA, prior to terminating Joshua's special education services. See 20 U.S.C. § 1415(b)(1)(C).
Mrs. Duck arranged for a student from James Madison University to help Joshua over the summer between the fourth and fifth grades. During Joshua's fifth grade year, the 2000-2001 school year, Mrs. Duck asked if Joshua could be tested for placement in special education classes, but nothing came of her request. Joshua passed the fifth grade and passed his Standards of Learning ("SOL") exams. He entered the sixth grade at Windsor Middle School for the 2001-2002 school year. In June of 2002, Joshua was tested and placed in special education classes beginning in the summer between the sixth and seventh grades.
Mrs. Duck filed this Complaint on behalf of herself and Joshua on January 17, 2003. Mrs. Duck asserts Joshua was denied a proper education because he was not placed in special education classes during his fourth and fifth grade years, while attending Carrsville Elementary School. In Count I, Joshua and Mrs. Duck assert the Defendants violated the IDEA. They seek a declaratory judgment stating the Defendants violated the IDEA, injunctive relief requiring the Defendants to comply with the IDEA, any expenses incurred to provide Joshua a free appropriate public education, and costs. In Count II, Joshua asserts the Defendants violated § 504 of the Rehabilitation Act, and seeks compensatory and punitive damages. Lastly, in Count III, Joshua and Mrs. Duck bring a § 1983 claim seeking compensatory and punitive damages for the Defendants' violation of their right to due process and equal protection.
The Defendants filed a Motion for Summary Judgment on Counts II and III of the Complaint. On August 27, 2003, the Court heard argument on the Defendants' Motion for Summary Judgment [Document No. 8]. John W. Hart, Esq. represented the Plaintiffs. Kevin J. Cosgrove, Esq. and Scott E. Thompson, Esq. represented the Defendants. The Official Court Reporter was Penny Wile.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if "there is no genuine issue as to any material fact and the ... moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). For the evidence to present a "genuine" issue of material fact, it must be "such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Facts are deemed material if they might affect the outcome of the case. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, the moving party's submission must foreclose the possibility of the existence of facts from which it would be open to a jury to make inferences favorable to the non-movant. Id.
In deciding a summary judgment motion, the court must view the record as a whole and in the light most favorable to the non-moving party. Terry's Floor Fashions, Inc. v. Burlington Indus., Inc., 763 F.2d 604, 610 (4th Cir.1985). If, however, "the evidence is so one-sided that one party must prevail as a matter of law," summary judgment should be granted in that party's favor. O'Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542, 545 (4th Cir.1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Either party may submit as evidence "pleadings, depositions, answers to interrogatories, and admissions on file, together with ... affidavits" to support or rebut a summary judgment motion. Fed.R.Civ.P. 56(c). Supporting and opposing affidavits must be based on personal knowledge and must set forth facts that would be admissible in evidence. Id. at 56(e). Furthermore, the party moving for summary judgment need not supply "affidavits or other similar materials negating the opponent's claim." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Rule 56 mandates a grant of summary judgment 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." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The party who bears the burden of proving a particular element of a claim must "designate `specific facts showing there is a genuine issue for trial'" with respect to that element. Id. at 324 (quoting Fed. R.Civ.P. 56(e)).
When a motion for summary judgment is made and supported by affidavits as provided for in Rule 56, an adverse party may not rest upon mere allegations or denials of the moving party's pleadings. Rather, the rule requires the nonmoving party's response, by affidavits or as otherwise provided for in Rule 56, to set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, should be entered against the nonmoving party. Fed.R.Civ.P. 56(e); Atkinson v. Bass, 579 F.2d 865, 866 (4th Cir.), cert. denied, 439 U.S. 1003, 99 S.Ct. 615, 58 L.Ed.2d 679 (1978).
With these controlling principles in mind, the Court turns to the merits of the motion for summary judgment.
In their motion, the Defendants admit they violated the IDEA, and that the Plaintiffs are entitled to the remedies provided by the IDEA under Count I. They move for summary judgment on Counts II and III of the Complaint.
In Count II, Joshua asserts he is entitled to compensatory and punitive damages due to the Defendants' violation of § 504 of the Rehabilitation Act of 1973. 29 U.S.C. § 794. The Rehabilitation Act does not contain a statute of limitations, therefore, pursuant to 42 U.S.C. § 1988(a), one must be borrowed from the state statutes. When determining which state statute of limitations to apply, the court must select the state statute "most analogous" to the federal action. See Wilson v. Garcia, 471 U.S. 261, 268, 105 S.Ct. 1938, 1942, 85 L.Ed.2d 254 (1985)....
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