Roe ex rel. Preschooler II v. Nevada

332 F.Supp.2d 1331

Jane ROE, individually, and the natural mother and Guardian on behalf of Preschooler II, a minor child, Plaintiffs, v. The State of NEVADA; State of Nevada Department of Education; Keith Rheault, in his individual and official capacity; Clark County School Board of Trustees; Clark County School District, Carlos Arturo Garcia, in his individual and official capacity; Charlene A. Green, in her individual and official capacity; Michael S. Harley, in his individual and official capacity; Kay Davis, in her individual and official capacity; Darryl Wyatt, in his individual and official capacity; Kathleen Lisanti, in her individual and official capacity; and Does 1 to 10, inclusive, Defendants.

No. CVS040348-RLH(PAL).

United States District Court, D. Nevada.

August 10, 2004.

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Marianne Lanuti, Law Office of Marianne C Lanuti, Henderson, NV, Niels L. Pearson, Peason Patton Shea Foley & Kurtz, Las Vegas, NV, for Preschooler II, Roe, Jane, Plaintiffs.

William L. Bryson, Mark E. Ferrario, O'Reilly & Ferrario, LLC, Las Vegas, NV, for Clark County School Board of Trustees, Clark County School District, Davis, Kay, Garcia, Carlos Arturo, Green, Charlene A., Harley, Michael S., Darryl Wyatt, defendants.

James E. Irvine, Brian E. Sandoval, Nevada Attorney General's Office, Carson City, NV, for Lisanti, Kathleen, Rheault, Keith, State Of Nevada, State of Nevada Department of Education, defendants.

ORDER

HUNT, District Judge.

Before the Court is Defendants', Clark Count School Board of Trustees, Clark County School District, Carlos Arturo Garcia, Charlene A. Green, Michael S. Harley, Kay Davis, Darryl Wyatt and Kathleen LiSanti, Motion to Dismiss (# 09), filed May 17, 2004, and Errata (# 11), filed May 26, 2004. The Court has also considered Plaintiffs' Opposition (# 14), filed June 17, 2004, and Defendants' Reply (# 22), filed July 27, 2004.

Defendants' Errata explains that due to an inadvertent clerical error, the initial page of Defendants' Exhibit 1 and the final two pages of Defendants' Exhibit 2, attached to Defendants' motion to dismiss, contain personally identifiable information regarding Plaintiff preschooler. Defendants request that those three (3) pages be removed and stricken from the Exhibits. The Court will grant that request.

Also before the Court is Defendants', Clark Count School Board of Trustees, Clark County School District, Carlos Arturo Garcia, Charlene A. Green, Michael S. Harley, Kay Davis, Darryl Wyatt and Kathleen LiSanti, Motion to Stay Discovery Pending Rulings on Defendants' Motions (# 15), filed June 18, 2004. The Court has also considered Plaintiffs' Opposition (# 19), filed June 28, 2004, and Defendants' Reply (# 23) filed July 27, 2004.

BACKGROUND

Plaintiff Jane Roe commenced this lawsuit on behalf of herself and as guardian of her minor child, Preschooler II, by filing a Complaint on March 23, 2004, followed by an Amended Complaint filed on April 29, 2004. Preschooler II, in the 2002-2003 school year, was a four year old, non-verbal, autistic child, who was also diagnosed with the neurological disease of tuberous sclerosis (TS), a genetic disorder that causes tumors to form in many different organs including the brain, eyes, heart, kidneys, skin and lungs. Children diagnosed with TS will show symptoms of seizures, rashes and skin lesions.

Based on Preschooler II's diagnosis, he is eligible for special education services under the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et. seq. For context to this suit, the IDEA provides federal funds to assist state and local agencies in educating children with disabilities, but conditions such funding on compliance with certain goals and procedures. 20 U.S.C.A. § 1412; Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 179-180, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (describing evolution and major provisions of the act). The IDEA's primary purpose is "to assure that all children with disabilities have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs." 20 U.S.C.A. § 1400(c). This purpose is achieved through the development of an individualized education program ("IEP") for each child with a disability. 20 U.S.C.A. § 1401(a)(18)(D). The IEP is crafted annually by a team that includes a representative of the local educational agency, the child's teacher and parents, and, in appropriate cases, the child. 20 U.S.C.A. § 1414(a)(5). The IEP document must contain: information regarding the child's present levels of performance; a statement of annual goals and short-term instructional objectives; a statement of the specific educational services to be provided and the extent to which the child can participate in regular-educational programs; and objective criteria for measuring the student's progress. 20 U.S.C.A. § 1401(a)(2).

In additional to these substantive provisions, the IDEA contains numerous procedural safeguards. In particular, the IDEA requires that the parents or guardians of a disabled child be notified of any proposed change in "the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to the child," and that they be permitted to bring a complaint about "any matter relating to" such evaluation and educational placement. 20 U.S.C.A. § 1415(b)(1)(C)-(E).

When a complaint is made, the child's parents are entitled to "an impartial due process hearing" conducted either by the state or local educational agency, or an intermediate educational unit, as determined by state law. 20 U.S.C.A. § 1415(b)(2). After the administrative hearing officer renders a decision, "[a]ny party aggrieved by the findings and decision" has the right to bring a civil action in state or federal court. 20 U.S.C.A. § 1415(e)(2).

As such, Defendant Clark County School District ("CCSD") first convened an Individualized Education Plan ("IEP") meeting regarding Preschooler II on March 21, 2002. During the 2002-2003 school year, two additional meetings were held, on October 31, 2002, and March 21, 2003. Plaintiff Jane Roe was present at all the IEP meetings.

The educational program provided for Preschooler II by CCSD consisted of two components, the school component and the home component. The school component consisted of full-time placement in a special education pre-school program known as Kids Intensive Delivery of Services ("KIDS") at Betsy Rhodes Elementary. This program was staffed by one teacher (Defendant LiSanti), two teacher's aides, a part time speech therapist and an itinerant teacher who came in daily to work with the pupils while the teacher was given preparation time. In addition to the special education pupils in the KIDS program, two "typical peers," were included in the class to serve as social models for the special education students.

The home component consisted of twenty (20) hours per week of intensive, one-on-one in-home instruction. This instruction was to be carried out by representatives from the Lovaas Institute for Early Intervention ("LIFE"), one of several special education home service providers which have been approved by CCSD.

Preschooler II began the school component on August 29, 2002, the inception of the KIDS program at Rhodes Elementary. The KIDS teacher, Defendant LiSanti, on September 24, 2002, suffered a heart attack and was absent from school until October 17, 2002. During this time, the KIDS program was staffed by various substitute teachers.

The home component of Preschooler II's IEP was approved at the October 31, 2002 IEP meeting, and the home services commenced in January 2003.

In Spring 2003, Plaintiff Roe was contacted by the principal of Rhodes Elementary, Defendant Darryl Wyatt, regarding an investigation of Defendant LiSanti based upon allegations of mistreatment of Preschooler II. Defendant LiSanti was placed on administrative leave. The allegations contained in the Amended Complaint that are relevant to this action include: (1) that Preschooler II was made to walk from the bus to the classroom without shoes on four occasions; (2) that Preschooler II was slapped by Defendant LiSanti, or taken by the hands and forced to slap himself; and (3) that Preschooler II was "slammed" in a chair by Defendant LiSanti. Additionally, the Amended Complaint contains allegations of bruises found on Preschooler II.

After receiving information regarding the above allegations, Plaintiff Roe requested to have Preschooler II removed from Rhodes Elementary and placed in a KIDS program at another elementary school. Preschooler II began attending another CCSD KIDS program on May 30, 2003.

At the March 2003 IEP meeting, Preschooler II's LIFE consultant attended with Plaintiff Roe; based upon the input from the LIFE consultant, Plaintiff Roe requested that the hours of the home component of Preschooler II's program be increased. The IEP team denied this request.

Procedural History

Pursuant to 20 U.S.C. § 1415(f), Plaintiff Roe requested a due process hearing before an impartial hearing officer. This hearing took place on June 17, 2003, before State Hearing Officer Ann Padover, and lasted over five days. On October 10, 2003, Padover issued a decision concluding that: (1) Preschooler II was denied FAPE only during the time when Defendant LiSanti was absent from the classroom because of health issues and that the substitutes failed to implement Preschooler II's IEP during that time period; (2) there was no need for a specific behavior plan for Preschooler II; (3) the denial of Plaintiff Roe's request for additional home instruction did not result in a denial of FAPE; and (4) there was no evidence that the alleged mistreatment incidents interfered with Preschooler II receiving FAPE. Plaintiffs...