Del Rosario ex rel. Burke v. Nashoba Reg'l Sch. Dist., CIVIL ACTION No. 19-40107-TSH

502 F.Supp.3d 623

Maria DEL ROSARIO, ON BEHALF OF and as Guardian and Parent of Gwendolyn BURKE, Plaintiff,

v.NASHOBA REGIONAL SCHOOL DISTRICT, and Bureau of Special Education Appeals, Defendants.

CIVIL ACTION No. 19-40107-TSH

United States District Court, D. Massachusetts.

Filed November 24, 2020

Brian P. Burke, Law Offices of Brian Burke, Stow, MA, Lisa B. Lapinski, Lapinski Education Law, LLC, Acton, MA, for Plaintiff.

Alexandra Milan Gill, Douglas I. Louison, Matthew T. Goepfrich, Megan K. Baker, Regina M. Ryan, Louison, Costello, Condon & Pfaff, LLP, Nicole M. O'Connor, City Of Boston Law Department, Boston, MA, for Defendant Nashoba Regional School District.

Maryanne Reynolds, Office of the Attorney General, Worcester, MA, for Defendant Bureau of Special Education Appeals.

MEMORANDUM OF DECISION AND ORDER

HILLMAN, D.J.

Background

Maria del Rosario, on behalf of and as Guardian and Parent of Gwendolyn Burke ("Plaintiff") has filed a Complaint against Nashoba Regional School District ("Nashoba") and the Bureau of Special Education Appeals ("BSEA"): (1) appealing the BSEA's decision as against the weight of the evidence (Count I); (2) appealing the hearing officer's decision on the grounds that it was invalidated by procedural, statutory, and constitutional errors (Count II); (3) seeking reimbursement of attorney's fees and costs from Nashoba (Count III); (4) asserting a claim for damages against Nashoba for discrimination in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C, § 794 (Count IV); (5) asserting a claim for damages under the federal civil rights act, 42 U.S.C § 1983 against Nashoba for violation of Gwendolyn Burke's due process rights (Count V); and (6) seeking equitable relief in the form of an injunction enforcing the outstanding portion of the BSEA decision by ordering Nashoba to arrange for an immediate, independent vocational and daily living evaluation of Gwendolyn Burke at the "LABBB Collaborative." (Count VI)¹

This Memorandum and Order addresses Defendant Nashoba Regional School District's Partial Motion To Dismiss (Docket No. 38) pursuant to which Nashoba seeks to dismiss Counts III, IV and V of the Complaint. For the reasons set forth below, that motion is granted , in part and denied , in part.

Standard of Review

On a Rule 12(b)(6) motion to dismiss, the Court "must assume the truth of all well-plead[ed] facts and give plaintiff the benefit of all reasonable inferences therefrom." Ruiz v. Bally Total Fitness Holding Corp. , 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino , 175 F.3d 75, 77 (1st Cir. 1999) ). To survive a motion to dismiss, the plaintiff must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That is, "[f]actual allegations must be enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555, 127 S.Ct. 1955 (internal citations omitted). The standard "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id.

"The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). Dismissal is appropriate if plaintiff's well-pleaded facts do not "possess enough heft to show that plaintiff is entitled to relief." Ruiz Rivera v. Pfizer Pharm. , LLC , 521 F.3d 76, 84 (1st Cir. 2008) (internal quotations and original alterations omitted). "The relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint." Ocasio-Hernàndez v. Fortuño-Burset, 640 F.3d 1, 13 (1st Cir. 2011).

Facts ²

General Background

Interested Parties

Plaintiff is the court-appointed guardian of Gwendolyn Maria Burke ("Gwendolyn"). Nashoba is a duly chartered regional school district with a principal location in Bolton, Massachusetts. The "BSEA" is part of the Massachusetts Division of Administrative Law Appeals. Gwendolyn is a highly functioning twenty-two-year-old on the autism spectrum with a documented diagnosis of learning disability. Gwendolyn is disabled as defined by one or more of the subsections of the Individuals with Disability in Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Under applicable federal and state statutes and regulations in effect, the school district where a child with a disability resides (in Gwendolyn's case, Nashoba) has financial and programmatic responsibility for providing that student's special education until the child reaches the age of twenty-two. Accordingly, for almost twenty years Gwendolyn received special education services from Nashoba pursuant to federal and state statutes and regulations summarized below.

Provision of a Free Appropriate Public Education

School districts are required to provide students with a Free Appropriate Public Education ("FAPE") in the Least Restrictive Environment ("LRE") with meaningful parent involvement in designing the student's individualized education program ("IEP")³ , including placement options and other important procedural safeguards. Additionally, federal regulations require Nashoba to provide older disabled students such as Gwendolyn with a coordinated set of services designed to be within a results-oriented process. That process is focused on improving the academic and functional achievement to facilitate the child's movement from school to post-school activities, including postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. These mandated transition services must be based on the individual child's needs considering the child's strengths, preferences, and interests; and includes:

(i) Instruction;

(ii) Related services;

(iii) Community experiences;

(iv) The development of employment and other post-school adult living objectives; and

(v) If appropriate, acquisition of daily living skills and provision of a functional vocational evaluation.

Massachusetts regulations also require Nashoba to provide programs for older students to ensure that options are available for them, particularly those eligible students of ages eighteen through twenty-one years. Such options include continuing education; developing skills to access community services; developing independent living skills; developing skills for self-management of medical needs; and developing skills necessary for seeking, obtaining, and maintaining jobs; developing skills to access community services; developing independent living skills; developing skills for self-management of medical needs; and developing skills necessary for seeking, obtaining, and maintaining jobs.

Under applicable federal and state law, a Massachusetts school district that is unable to provide a reasonably adequate FAPE in the LRE, including mandated transition services, is required to offer the student a free out of district placement at another school that will provide them with such services.

Transition Services Nashoba Provided To Gwendolyn

After Gwendolyn received a certificate of completion upon finishing the twelfth grade at Nashoba, she required additional services, i.e., transition services, until she reached the age of twenty-two. The IDEA defines "transition services" as follows:

The term "transition services" means a coordinated set of activities for a child with a disability that—

(A) is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child's movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;

(B) is based on the individual child's needs, taking into account the child's strengths, preferences, and interests; and

(C) includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.

20 U.S.C. § 1401 (34).

From May of 2016, when she received a Certificate of Completion until she turned twenty-two in July 2019, Gwendolyn received special education services from Nashoba in its transitions program at the Nashoba Regional High School ("NRHS") in Bolton, Massachusetts. Nashoba's transitions classroom is the place where its in-district special education students are placed after they turn eighteen until they reach the age of twenty-two. There were no other non-special education students (typical peers) in the transitions program during Gwendolyn's placement.

Gwendolyn's parents were satisfied with the education that she received until approximately May 2017. They ultimately objected to Gwendolyn's placement in the transitions program on the grounds that it was not adequately preparing her to achieve her long-term goal of obtaining employment in a commercial baking/cooking setting--Gwendolyn had been placed in the same job sites for three years doing mundane and monotonous tasks that were not improving her baking/cooking skills. More specifically, Nashoba placed Gwendolyn at a local business's cafeteria where she performed routine food preparation. In such settings, Gwendolyn was assigned menial tasks that she and Plaintiff felt were below her abilities and did not develop her transition level skills to her potential. Gwendolyn's parents ultimately concluded that she should be placed in an...