Moradnejad v. Dist. of Columbia

177 F.Supp.3d 260

Behnaz Moradnejad, et al., Plaintiffs,

v.District of Columbia, Defendant.

Civ. Action No. 14-1159 (ABJ)

United States District Court, District of Columbia.

Signed March 31, 2016

Robert Wilson Jones, James E. Brown & Associates, PLLC, Washington, DC, for Plaintiffs.

Veronica A. Porter, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendant.

ORDER

AMY BERMAN JACKSON, United States District Judge

On March 16, 2016, Magistrate Judge G. Michael Harvey issued a Report and Recommendation [Dkt. # 21] (“R. & R.”) recommending that the Court deny plaintiffs' Motion for Summary Judgment [Dkt. # 14] and grant defendant's Cross Motion for Summary Judgment [Dkt. # 16]. Local Civil Rule 72.3(b) provides that “[a]ny party may file for consideration by the district judge written objections to the magistrate judge's proposed findings and recommendations ... within 14 days after being served with a copy thereof.” LCvR 72.3(b). The Report and Recommendation advised the parties that “failure to file timely objections to the findings and recommendations set forth in this report may waive your right of appeal from an order of the District Court adopting such findings and recommendations.” R. & R. at 36. To date, no objections have been filed. It is therefore

ORDERED that the Report and Recommendation [Dkt. # 21] is ADOPTED in its entirety; and it is

FURTHER ORDERED that plaintiffs' Motion for Summary Judgment [Dkt. #14] is DENIED and defendant's Motion for Summary Judgment [Dkt. # 16] is GRANTED.

SO ORDERED.

REPORT AND RECOMMENDATION

G. MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE

This matter was referred to the undersigned for full case management. Plaintiff Behnaz Moradnejad is the mother of Plaintiff P.X., a child protected by the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. § 1400 et seq. Plaintiffs filed this action for injunctive and declaratory relief under the IDEA. Before the undersigned are the parties' cross-motions for summary judgment. After reviewing the entire record,¹ for the reasons set forth below, the undersigned recommends that Plaintiffs' motion be denied and Defendant's motion be granted.

BACKGROUND²

Behnaz Moradnejad is the mother of P.X., who was seven years old at the time this suit was brought. AR 7. P.X. was born in 2007 and has a history of brain damage stemming from a complicated delivery, including prolonged delivery, failed vacuum evacuation, and emergency C-section. See id. at 342, 899. In 2008, P.X. was evaluated by Early Stages, a District of Columbia Public Schools (“DCPS”) assessment center, which determined that P.X. had a pervasive developmental disorder that fell within the autism spectrum. Id. at 901. Subsequently, P.X. has been diagnosed with developmental coordination disorder and speech and language impairment. Id. at 347. P.X. was enrolled at Walker Jones Education Campus, which is part of the DCPS system, from February 2010 through the end of the 2012–2013 school year. See id. at 414. P.X. then enrolled at Hearst Elementary School, where, at the time this suit was brought, P.X. remained enrolled. See id.

On January 22, 2014, Plaintiffs filed an administrative due process complaint alleging that DCPS had denied P.X. a free appropriate public education (“FAPE”) by failing to develop an individualized education program (“IEP”) that was reasonably calculated to provide P.X. with educational benefit. Id. at 420. Specifically, Plaintiffs alleged that P.X.'s April 12, 2012, and January 28, 2013, IEPs inappropriately changed P.X.'s placement from a full-time, self-contained special education classroom to a general education setting. Id. Plaintiffs also alleged that P.X.'s January 14, 2014, IEP inappropriately reduced P.X.'s speech and language services and failed to include “writing” as an area of concern for P.X. Id. at 423.

An administrative due process hearing was held on March 24, March 26, and April 4, 2014. Id. at 4–5. On April 22, 2014, the administrative hearing officer issued her hearing officer's determination (“HOD”), finding that Plaintiffs failed to meet their burden of proof on both claims. See id. at 11–15. Plaintiffs now seek judicial review of the April 22, 2014, HOD. In their Complaint in this Court, Plaintiffs take issue only with the denial of their first claim relating to the April 12, 2012, and January 28, 2013, IEPs. Plaintiffs do not challenge the hearing officer's findings regarding the January 14, 2014, IEP. See Compl. at 8–10. Thus, the undersigned agrees with Plaintiffs that “[d]iscussion of [the January 14, 2014, IEP] is unnecessary.” Pl. Opp. at 2; see Quinn v. Dist. of Columbia, 740 F.Supp.2d 112, 130 (D.D.C.2010) (plaintiffs may not raise on summary judgment issues not raised in their complaint).³

A. Starting at Walker Jones Education Campus

In February 2010, when P.X. turned three years old, he was enrolled at Walker Jones Education Campus. Compl. at 3. Pursuant to his initial IEP, dated January 14, 2010, P.X. was placed in a small, self-contained setting for autistic children. AR 47–57. P.X. was prescribed twenty-seven hours per week of specialized instruction, one hour per week of occupational therapy, 1.5 hours per week of speech-language pathology, and thirty minutes per week of physical therapy. Id. at 56. This IEP was in effect from February to June 2010. Id. at 7. His June 22, 2010, IEP progress report, which considered P.X.'s performance from April to June of that year, showed that P.X. had mastered three of his IEP goals, had shown no progress on two of his goals, and was making progress towards achieving the rest. Id. at 71–78. P.X. was still non-verbal, but had learned social skills that included taking turns and following and walking with a group. Id. at 7.

B. Pre-Kindergarten

The following school year, 2010–2011, P.X. was removed from the self-contained autism classroom and prescribed a mixture of educational services to be administered both inside and outside of a general education pre-kindergarten classroom at Walker Jones. Id. at 125–31. This system of educating a disabled student in a general education setting to permit him or her to model off of typically developing peers is also referred to as the “inclusion model.” See id. at 1377. It is generally contrasted with self-contained placements, where the student is educated in a special education classroom and rarely, if ever, interacts with general education students. See id. at 13. P.X. was prescribed twenty-two hours per week of specialized instruction in the general education classroom and five hours per week of specialized instruction outside the general education classroom. Id. at 125–31. Towards the end of the school year, P.X.'s April 4, 2011, IEP progress report indicated that he had mastered or was making progress on most of his IEP goals. Id. at 107–119.

During the 2011–2012 school year, P.X. repeated pre-kindergarten. Id. at 8. Under a revised IEP, dated November 15, 2011, P.X. was again prescribed educational services both inside and outside the general education environment at Walker Jones. Id. at 125–131. The November 15, 2011, IEP provided 19.5 hours per week of specialized instruction in the general education classroom, five hours per week of specialized instruction outside the general education classroom, four hours per month of occupational therapy, six hours per month of speech-language pathology, and two hours per month of physical therapy. Id. The general education classroom was comprised of approximately eighteen children, nine of whom had IEPs. Id. at 919. The class was led by a general education teacher, a special education teacher, and three assistant teachers. Id. at 1370.

A January 30, 2012, IEP progress report, which covered the period from October 2011 through January 2012, indicated that P.X. had mastered four and progressed on one of his adaptive/daily living skills goals, mastered three and progressed on three of his communication/speech and language goals, progressed on both of his emotional, social, and behavioral development goals, and progressed on four and made no progress on one of his motor skills/physical development goals. Id. at 137–42. Despite his progress, P.X. struggled during the school year with vocalization. P.X.'s special education teacher at the time, Stephanie Aduso, described P.X. as needing support and prompting to communicate through speaking. Id. at 1379. He was not communicating verbally at the same level as his general education peers. Id. At the administrative due process hearing, Ms. Moradnejad testified that during the 2011–2012 school year, she was concerned that P.X. could not answer teachers' questions nor participate in classroom discussions in the general education environment. Id. at 8, 918, 921.

C. April 12, 2012, IEP

On April 12, 2012, P.X.'s IEP team held a meeting to review P.X.'s progress and develop an IEP for P.X.'s kindergarten year. Id. at 152. P.X.'s IEP team included Ms. Aduso, P.X.'s speech-language pathologist, his occupational therapist, his physical therapist, an assessment evaluator, a paraprofessional, and a school representative. Id. The team considered and reviewed P.X's classroom-based assessments, discussed classroom observations and anecdotal notes, reviewed a pre-school language scale assessment, progress reports, and several formal assessments. Id. at 1354–55. The team discussed P.X.'s skills, strengths, and needs in the context of transitioning into kindergarten. Id. at 1357.

Ms. Moradnejad's primary concerns during this meeting were P.X.'s difficulties holding a pencil and his delays in expressive language. Id. at 8, 927. Prior to the meeting, Ms. Aduso had observed a kindergarten class at Walker Jones to understand whether it would be an appropriate placement for P.X. Id. at 1383. She testified at the due process hearing that she used experiences with P.X. in her classroom and her observations of the kindergarten classroom to help...