Cherry v. Clark Cnty. Sch. Dist.

DAVID CHERRY, et al., Plaintiff(s),

v.CLARK COUNTY SCHOOL DISTRICT, et al., Defendant(s).

2:11-CV-1783 JCM (GWF)

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

DATED July 22, 2013

ORDER

Presently before the court is defendants', Clark County School District, Sandra A. Piilo, and Susan M. Smith, motion for partial summary judgment. (Doc. # 45). Plaintiffs, Alexandria and David Cherry, as individuals and on behalf of their son Jacob Cherry, filed a response in opposition (doc. # 49), and defendants filed a reply (doc. # 57).

Also before the court is defendants' renewed motion to dismiss, or, alternatively, motion for partial summary judgment. (Doc. # 48). Plaintiffs filed a response in opposition (doc. # 55), and defendants filed a reply (doc. # 65).

Also before the court is defendants' motion to seal. (Doc. # 54). Plaintiffs have not filed a response in opposition to the motion to seal and the deadline date for filing a response in opposition has expired.

Also before the court is defendants' countermotion for summary judgment. (Doc. # 63). Plaintiffs have filed a response in opposition (doc. #68), and defendants filed a reply (doc. # 70.

Also before the court is plaintiffs' countermotion for summary judgment. (Doc. # 64).¹ Defendants filed a response in opposition (docs. ## 62 and 66)² , and plaintiffs filed a reply (doc. # 67).

There are several pending motions in this case stemming from defendants' motion for partial summary judgment as to damages only. The motion for partial summary judgment on damages set off a series of motions, including motions for summary judgment as to liability. Even though there are several pending motions, the motions relate to two issues: (1) liability as to each of plaintiffs' ten causes of action; and, (2) potential damages amount if liability. The court has considered all filings on these issues.

I. Background

The plaintiffs in this case are Alexandria and David Cherry. They are the parents of Jacob Cherry. Jacob is autistic and non-verbal. Alexandria and David bring this lawsuit as individuals and as guardians ad litem of Jacob. Jacob is eligible for special education and related services.

The defendants in this case are Clark County School District ("CCSD"), Susan M. Smith, and Sandra A. Piilo. Smith is the principal at Twitchell Elementary School. Piilo is a special education teacher at Twitchell. CCSD employs both Smith and Piilo.

There are more disputed facts in this case than undisputed facts. Additionally, the overall theme of the facts is messy and emotional.

However, prior to addressing the facts and legal issues in this case, it is necessary to provide a brief overview of the substantive and procedural provisions of relevant federal regulations. The Individuals with Disabilities Act ("IDEA"), codified at 20 U.S.C. §1400 et seq., is a comprehensive federal scheme. IDEA "confer[s] on disabled students a substantive right to public education andprovide[s] financial assistance to enable states to meet their financial needs." Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1300 (9th Cir. 1992). "Federal funding is conditioned upon state compliance with the IDEA's extensive substantive and procedural requirements." Id. "To qualify for federal funds, the state must have in effect 'a policy that assures all children with disabilities the right of a free appropriate public education.'" Id. (quoting 20 U.S.C. § 1412(1)). The "free appropriate public education" is often referred to as a "FAPE."

"Parental involvement is a central feature of IDEA." Id. "Parents participate along with teachers and school district representatives in the process of determining what constitutes a [FAPE] for each disabled child." Id. "This process culminates in the formulation of an individualized education program, tailored to the child's unique needs." Id. (citing 20 U.S.C. §§ 1401(a)(18), (20)).

On September 28, 2007, before Jacob turned three-years-old, Jacob received his first individualized education plan ("IEP") from CCSD. After this initial IEP and through the time he completed the 2010-2011 school year at Twitchell Elementary School as a six-year-old (the end date of events giving rise to this lawsuit), Jacob received nine additional annual or revisionary IEPs from CCSD.

Jacob occasionally engages in protest behaviors. Protest behaviors are also know as self-stimulation or "stims." Stims can include a variety of behavior. In Jacob's case, the stims usually manifested in the form of Jacob striking himself and/or banging his head. At the relevant times, Jacob was non-verbal. He would stim to express a variety of emotions including hunger, frustration, thirst, or fatigue. Jacob would also "elope," meaning he would try and wander or run off to escape when overwhelmed from a given situation.

Jacob began school at Twitchell Elementary School (a CCSD school) in the 2010-2011, school year. At Twitchell, Jacob was placed in a self-contained program primarily with other children with autism. The primary facts giving rise to this lawsuit relate to events that occurred, or did not occur, at Twitchell. The parties generally dispute the severity and frequency of Jacob's stims prior to enrollment at Twitchell and after Jacob began school at Twitchell.

Generally, plaintiffs provide disputed facts that Jacob's conditioned deteriorated at Twitchell, that Jacob was left hungry and thirsty, unnecessarily restrained, racially discriminated against (Jacob is African-American), that Jacob often left school soiled in his own feces and urine, and that Smith and Piilo conspired to have Jacob reassigned from Twitchell to a special needs school. Generally, defendants provide disputed facts that, while Jacob's year at Twitchell was not perfect, CCSD and its educators and administrators employed a variety of tools to help Jacob succeed.

While at Twitchell, Jacob received IEPs. His IEP team included his parents, Piilo, Smith, an occupational therapist, speech/language pathologist, and an autism deliberation team. Jacob received the following services at Twitchell: direct speech therapy, direct occupational therapy, a home-intervention program, self-help skills training, and a behavioral intervention plan.

At some point during Jacob's first year at Twitchell, parents of other children in the special needs class began to complain about Jacob. Other parents believed that Jacob's stims might be a danger and risk to their children and even threatened a lawsuit. Some of the concerns of other parents have been traced back to messages from a class aide. CCSD concedes a class aide, Kayla V., disseminated information to parents that she was not authorized to convey.

Piilo and Smith felt the need to alert their superiors to the other parents' concerns, their own concerns about Jacob, and how his behavior might affect other children in the classroom. Smith and Piilo exaggerated some of the content of the messages sent to superiors. At some point during the year, CCSD administrators considered reassigning Jacob to a special needs school.

It is undisputed that CCSD brought in a number of experts to consult, observe, and advise on how best to educate and care for Jacob. This included a "Low Incidence Disabilities Team," which provides parents and teachers focused autism support training. Additionally, Ron Leaf, an expert in the field of teaching children with autism provided additional ideas and recommendations regarding Jacob.

On January 10, 2011, Jacob's parents filed a due process complaint on his behalf.³ CCSDconducted a full investigation of the allegations. The CCSD division for monitoring and compliance exclusively communicated with the Cherrys during the investigation. On March 18, 2011, the Cherrys withdrew their due process complaint. On May 26, 2011, the office of compliance and monitoring implemented a corrective action plan. The plan included providing Jacob with 120 hours of compensatory education services. On or about July 18, 2011, CCSD increased the amount of compensatory education provided to Jacob to 180 hours.

The facts above gave rise to the instant lawsuit. Plaintiffs brought ten causes of action against defendants. The pending motions primarily focus on (1) liability on the ten causes of action and (2) the amount of damages sought by plaintiffs.

II. Renewed Motion to Dismiss

Defendants have renewed their motion to dismiss for failure to exhaust administrative remedies, or, in the alternative, summary judgment regarding exhaustion. Defendants argue that when plaintiffs seek damages or remedies covered by IDEA then the plaintiffs must first exhaust their claims through required administrative procedures. This is true. Plaintiffs argue that either (1) exhaustion was not required for the reasons articulated in Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303-04 (9th Cir. 1992), or (2) that exhaustion did occur. The court must make two determinations: (1) whether exhaustion is required in this case; and, (2) if exhaustion is required, whether it occurred.

A. The Exhaustion Requirement

IDEA's exhaustion requirement provides:

Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C. 12101 et seq.], Title V of the Rehabilitation Act of 1973 [29 U.S.C. 790 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

20 U.S.C. § 1415(l) (alterations in original).

. . . In Payne v. Peninsula Sch. Dist. , the Ninth Circuit adopted a "relief-centered" approach that district courts should employ when determining whether a plaintiff must meet IDEA's exhaustion requirements. 653 F.3d 863, 874 (9th...