T.S. v. Utica Cmty. Sch.

T.S., a minor, and GINA SHARBOWSKI, Plaintiffs, v. UTICA COMMUNITY SCHOOLS, Defendant.

Case No. 14-10216

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

January 20, 2017

Paul D. Borman United States District Judge

OPINION AND ORDER REMANDING THIS MATTER TO THE STATE ADMINISTRATIVE LAW JUDGE FOR FURTHER PROCEEDINGS

In this action under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400, et seq. ("the IDEA"), Plaintiff Gina Sharbowski has been a tireless advocate for her son, T.S., in her efforts to obtain for T.S. the free appropriate public education ("FAPE") that is guaranteed under the IDEA. Plaintiffs currently appeal the ruling of the state Administrative Law Judge ("ALJ") Christopher S. Saunders, the latest in a long series of administrative defeats for Plaintiffs, in which ALJ Saunders dismissed the entirety of Plaintiffs' due process complaint and declined to address several of Plaintiffs' claims against the Defendant Utica Community Schools ("Utica') on jurisdictional grounds. The Court has reviewed the parties' briefs on appeal, thoroughly examined the administrative record and conducted a hearing on August 23, 2016. Regrettably, the Court must remand the matter to ALJ Saunders for further proceedings.

The Court is unable to determine, on this administrative record, whether ALJ Saunders correctly ruled, in an Order issued on August 27, 2014, that he lacked jurisdiction to consider, in the first instance, Plaintiffs' claims that Utica failed to implement the due process hearing decision issued by Administrative Law Judge Susan Harris on July 23, 2012, in which ALJ Harris concluded that Utica had failed to provide a FAPE to T.S. and ordered Utica to adopt a number of corrective actions. The jurisdictional issue is thus REMANDED to ALJ Saunders for reconsideration and clarification consistent with this Opinion and Order.

The Court further finds that ALJ Saunders erred in refusing to consider certain evidence and exhibits proffered by Ms. Sharbowski at the administrative hearing and in refusing to permit Ms. Sharbowski to return for the second scheduled hearing date to organize and present additional evidence. The Court therefore REVERSES ALJ Saunders's February 5, 2015 Decision and Order, in which he concluded that Plaintiffs did not carry their burden of proof to demonstrate that the 2013 and 2014 Individualized Education Plans ("IEPs") prepared by Utica for T.S. failed to provide T.S. with a FAPE, and REMANDS the matter to ALJ Saunders for further proceedings consistent with this Opinion and Order.

I. BACKGROUND

On July 18, 2011, Plaintiffs Gina Sharbowski and her minor child T.S. filed a complaint in a case previously assigned to this Court, T.S. and Gina Sharbowski v. Utica Community Schools, et al., E.D. Mich. No. 11-13092 (Sharbowski I). Plaintiffs claimed in that previously-filed case that Utica had improperly addressed T.S.'s special education needs, denying him a FAPE and brought suit pursuant to the Americans With Disabilities Act (ADA), the Individuals with Disabilities Education Improvement Act (IDEA) and Family Educational Rights and Privacy Act of 1947 (FERPA). In that case, on April 18, 2012, this Court adopted the Report and Recommendation of Magistrate Judge, now District Judge, Laurie Michelson, recommending that Plaintiffs' case bedismissed without prejudice for failure to properly exhaust administrative remedies. (Sharbowski I, ECF No. 34, Order Adopting Report and Recommendation, ECF No. 32, Report and Recommendation.) In dismissing the case, the Court followed Magistrate Judge Michelson's recommendation to stay the two-year statute of limitations under 34 C.F.R. § 300.507 to permit Plaintiffs to re-file that case within 90 calendar days from the date of the decision of the ALJ in any future due process proceeding. (Id. at 9 n.4.) In granting the dismissal without prejudice, the Court denied Plaintiffs' request to stay the case rather than dismiss but did indicate that it would consider an application to proceed in forma pauperis at the time of any future filing. (Id. at 2 n. 2.)

Plaintiffs did not appeal the Court's dismissal of Sharbowski I and did proceed to administratively address their claims, which resulted in a decision in favor of the Plaintiffs issued by ALJ Susanne E. Harris on July 23, 2012. The essence of Plaintiffs' claim was that T.S. should have been classified as eligible for special education as a student with Autism Spectrum Disorder (ASD), not as a student who was only Mildly Cognitively Impaired (MCI). The ALJ (in a 45-page Opinion that was filed with this Court under seal) concluded that Utica had denied T.S. a FAPE, citing numerous failings on the part of Utica with regard to the "individualized education program" ("IEP") for T.S., and ordered Utica to adopt a host of remedial measures. The ALJ issued several corrective action orders to the Defendant school district and required the school district to file proof of compliance with her Opinion and Orders. On or about June 11, 2013, the MDE determined that Utica was in compliance with ALJ Harris's July 23, 2012 Order.¹

On March 11, 2013, almost eight months after receiving ALJ Harris's decision, the Plaintiffs filed, in the then-closed Sharbowski I, what was interpreted by then-Magistrate Judge Michelson as a Motion for Relief From Judgment in the previously-dismissed case, No. 11-13092. (Sharbowski I, ECF No. 35, 3/11/2013 "Motion for Assistance from Higher Court to Address Ongoing Issues Post Due Process Hearing"). Plaintiffs complained that the Defendant school district had failed to comply with the ALJ's Decision and Order and stated that Plaintiffs needed the assistance of an attorney, that they did not understand the process and that they did not believe they qualified for in forma pauperis status but nor could they afford to refile their case as instructed by this Court in its earlier dismissal of the case without prejudice.

Judge Michelson interpreted the motion as one for relief from judgment and recommended that this Court deny the motion because Plaintiffs in fact prevailed in the administrative proceeding and appeared to be challenging not the outcome of that proceeding but the school district's failure to implement the ALJ's Decision and Order. The Magistrate Judge noted that if Plaintiffs had been challenging the decision of the ALJ, their motion, which came 232 days after the ruling, was time-barred by the 90-day limitation period imposed by the Court in dismissing the case previously. (Sharbowski I, ECF No. 40, 9/9/13 Report and Recommendation at 7 n. 2.) The Magistrate Judge concluded that the remedy for Plaintiffs' challenge to the school district's non-compliance was to participate in the state complaint resolution procedure ("CRP") found in 34 C.F.R. § 300.151, et seq. (Id. at 7.) The Report and Recommendation outlined in great detail the process that Plaintiffs should follow to challenge the school district's alleged failure to implement the ALJ's Decision and Order. Over Plaintiffs' Objection (Sharbowski I, ECF No. 41, Objection), which failed to cite any specificobjection to the Report and Recommendation and largely complained that Plaintiffs needed the assistance of counsel, this Court adopted the Magistrate Judge's Report and Recommendation and denied the motion for relief from judgment on November 7, 2013. (Sharbowski I, ECF No. 42.) Again, Plaintiffs did not appeal this Court's ruling.

On January 17, 2014, Plaintiffs filed a new case, No. 14-cv-10216 (Sharbowski II), that is presently before the Court. The Original Complaint in this case, titled "Re-Filed Complaint," is a restatement of the claims asserted in Sharbowski I. In fact, in Sharbowski II Plaintiffs attach and incorporate the complaint from Sharbowski I. The Original Complaint in Sharbowski II expressed Plaintiffs' continued frustration with the process of administrative exhaustion and complained that Plaintiffs were adrift without the assistance of competent counsel, which they asserted they could not find or afford.

Recognizing that ALJ Harris's July 23, 2012 Decision and Order had noted certain failings on the part of Utica with respect to T.S.'s educational needs, the Court appointed pro bono counsel for Plaintiffs with the hope that with the proper guidance, the Plaintiffs would be able to better understand and see their way through the administrative exhaustion requirements that must precede any action in this Court. To their credit Defendants, despite their legally well-founded pending motions to dismiss, were in agreement that appointment of counsel for the Plaintiffs could help to move the case along to a fair and equitable resolution. On July 24, 2014, the Court assigned counsel, James E. Stewart of the Honigman, Miller firm, to represent Plaintiffs pro bono in this action. (ECF No. 23, Order of Assignment of Counsel.) The Court then directed the parties to participate in facilitation, under the guidance of Dr. Carla Harting, in an effort to resolve certain issues regarding the current educational placement of T.S. The parties met with Dr. Harting on twoseparate occasions and subsequently, at a status conference held before this Court on October 31, 2014, announced to the Court that they had reached a tentative agreement regarding the proper placement for T.S. for the current school year.

Despite the parties' agreement on an acceptable plan for T.S. for the then-current school year, Plaintiffs were unwilling to agree to dismiss the claims in this action against Utica and the MDE based upon that agreement because Plaintiffs were of the opinion that Utica should be ordered to bear the cost of a private educational placement for T.S. as compensation for the past wrongs committed by prior administrations that were acknowledged in ALJ Harris's July 23, 2012 Opinion. Notably, while ALJ Harris did conclude that Utica had denied T.S. a FAPE, citing numerous failings on the part...