Theodore v. Dist. of D.C., Civil Action No. 09–0667 (JDB).

• Decision Date: 28 March 2011
• Docket Number: Civil Action No. 09–0667 (JDB).
• Citation: 269 Ed. Law Rep. 101,772 F.Supp.2d 287
• Parties: Barbara THEODORE, Plaintiff,v.DISTRICT OF COLUMBIA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

772 F.Supp.2d 287

269 Ed. Law Rep. 101

Barbara THEODORE, Plaintiff,

v.DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No. 09–0667 (JDB).

United States District Court, District of Columbia.

March 28, 2011.

Domiento C.R. Hill, James E. Brown & Associates, PLLC, Roxanne Denise Neloms, Brown & Associates, PLLC, Washington, DC, for Plaintiff.Corliss Vaughn Adams, Office of the Attorney General, Washington, DC, for Defendants.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Plaintiff Barbara Theodore brings this action as parent and next friend of A.G. against the District of Columbia and Michelle Rhee, the Chancellor of the District of Columbia Public Schools (“DCPS”). Theodore alleges that defendants have failed to provide A.G. with appropriate testing to determine whether she is eligible for special educational services, thereby violating the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400–82. She also challenges a hearing officer's determination (“HOD”) that dismissed her case on December 6, 2009 pursuant to res judicata. Now before the Court are plaintiff's and defendants' cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56. Upon consideration of the parties' motions, memoranda, and the entire record, and for the reasons stated below, the Court will grant defendants' motion for summary judgment and deny plaintiff's motion.

BACKGROUND

I. Statutory Background: The Individuals with Disabilities Education Act

Congress passed the IDEA to “ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.” 20 U.S.C. § 1400(d)(1)(A). The IDEA provides funding to assist states in implementing a “comprehensive, coordinated, multidisciplinary, interagency system of early intervention services for infants and toddlers with disabilities and their families.” 20 U.S.C. § 1400(d)(2).

Under the IDEA, all states, including the District of Columbia, receiving federal education assistance must establish policies and procedures to ensure that “[a] free appropriate public education [FAPE] is available to all children with disabilities residing in the State.” 20 U.S.C. § 1412(a)(1)(A). The law defines FAPE as “special education and related services that (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required.” Id. § 1401(9). Once a child is found to qualify, DCPS is required to develop and implement an Individualized Education Program (“IEP”) for him or her. Id. § 1414(d)(2)(A). The IEP comprehensively describes the student's present academic level, details measurable annual goals for the student, specifies necessary educational and related services, and establishes the extent to which the student will participate in a regular education classroom. Id. § 1414(d)(1)(A)(i)(I)-(III).

In order to implement the IEP, a team including the child's parents determines where the child should be placed. Id. § 1414(e). If no public school can meet the child's needs, DCPS is required to find an appropriate private school and cover the tuition for the child. Id. § 1412(a)(10)(B)(i); see Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 369, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). If a parent disagrees with the IEP or the subsequent placement, he or she is entitled to an “impartial due process hearing” conducted by the state or local educational agency. 20 U.S.C. § 1415(f)(1)(A). Any party aggrieved by the hearing decision may bring a civil action challenging the decision in federal district court. Id. § 1415(i)(2)(A).

II. Factual Background

The Court has previously detailed the history of this case in its September 2009 opinion and thus will only briefly discuss the relevant facts here. See Theodore v. Dist. of Columbia, 655 F.Supp.2d 136 (D.D.C.2009). A.G. is a fifteen-year-old resident of the District of Columbia and a student at Wilson Senior High School. Defs' Renewed Mot. for Summ. J. and Reply in Opp'n to Pl's Renewed Mot. for Summ. J. (Defs' Mot.) at 2; Administrative Record (“AR”) filed December 17, 2009 at 45–55. In response to A.G.'s performance problems in school, DCPS completed a psychological assessment of A.G. at the request of Theodore. See Pl's Renewed Mot. for Summ. J. (Pl's Mot.) at 4; Defs' Mot. at 3; AR at 45–55. The August 2007 report concluded that A.G. did not suffer from a learning disability and thus was not eligible for special education services. Id. Specifically, the testing found that A.G. had properly developed skills in reading, reading comprehension, math and writing and stated that A.G.'s scores were not suggestive of ADHD. Defs' Mot. at 3; AR at 45–52.

During the course of the 2007–2008 school year, A.G. continued to struggle in school. Pl's Mot. at 4; AR at 12. On December 5, 2007, a multi-disciplinary team (“MDT”) convened to review the results of the August 2007 testing and to determine whether A.G. was eligible for special education services. Pl's Mot. at 4; Defs' Mot. at 3; AR at 56–61. Theodore informed the MDT at this time that A.G. had previously been diagnosed with attention deficit with hyperactive disorder (“ADHD”) in 2001, but did not provide the team with any supporting documentation. Pl's Mot. at 4; Defs' Mot. at 3; AR at 58. Ultimately, the December 2007 MDT concluded that A.G. was not eligible for special education services. Id.

In January 2008, Theodore requested that DCPS perform neuropsychological and other examinations of A.G. Pl's Mot. at 4; Defs' Mot. at 3; AR at 75, 117. After DCPS denied Theodore's request, she filed her first due process hearing request (DPHR # 1) in March 2008 alleging that DCPS had denied A.G. a FAPE by failing to fund the additional testing. Pl's Mot. at 4; Defs' Mot. at 4; AR at 98–105. On April 17, 2008, a Hearing Officer Determination (HOD # 1) was issued that dismissed Theodore's complaint with prejudice on the ground that DCPS had properly concluded that A.G. was ineligible for special educational services. Pl's Mot. at 4; Defs' Mot. at 4; AR at 98–105.

In May 2008, Theodore filed a second DPHR (DPHR # 2) alleging that DCPS had denied A.G. a FAPE by failing to evaluate, determine eligibility for, and develop an appropriate IEP and placement for her. Pl's Mot. at 5; Defs' Mot. at 4. A second HOD (HOD # 2) in July 2008 found that DCPS had properly evaluated A.G. and made a timely determination that A.G. was ineligible for special education services. Id. In September 2008, Theodore requested an additional MDT meeting where she presented letters from August 2008 indicating that A.G. had been diagnosed with ADHD in 2001. Pl's Mot. at 5–6; Defs' Mot. at 4; AR at 77–78. DCPS again declined to fund additional testing and Theodore then filed her third DPHR (DPHR # 3). A third HOD (HOD # 3), issued in December 2008, dismissed Theodore's complaint as barred by res judicata after finding that DPHR # 3 contained facts and allegations that had already been addressed in the previous due process complaints and HODs. Pl's Mot. at 6; Defs' Mot. at 5. After Theodore's motion for reconsideration was constructively denied, she filed the complaint now before this Court on April 10, 2009.

In its 2009 opinion, this Court dismissed several of Theodore's requests for relief as moot. See Theodore, 655 F.Supp.2d at 144 (finding that Theodore's requests for additional evaluations and an IEP meeting were moot because a judgment would not “presently affect the parties' rights”). The remaining claim is Theodore's contention that an administrative hearing officer improperly rejected her allegation that DCPS's failure to fund independent psychological testing for A.G. denied her a FAPE, and that A.G. is thus entitled to compensatory education. After requesting additional briefing from the parties on the issue of res judicata, the Court can now resolve the parties' cross-motions for summary judgment.

STANDARD OF REVIEW

I. Summary Judgment

Summary judgment is appropriate when the pleadings and the evidence demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may successfully support its motion by identifying those portions of “the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of motion only), admissions, interrogatory answers, or other materials,” which it believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c)(1); see Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

In determining whether there exists a genuine dispute of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A non-moving party, however, must establish more than the “mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at...