C.O. et al v. Portland Public Schools et al, No. 3:2005cv00558 - Document 174 (D. Or. 2009)

Court Description: OPINION AND ORDER: Ms. Omans motion for reconsideration (doc. # 161) is GRANTED, but the court adheres to its original rulings. Ms. Omans motion for sanctions under Rule 11 of the Federal Rules of Civil Procedure (doc. # 162) is DENIED. Signed on 12/18/09 by Magistrate Judge Dennis J. Hubel. (see formal 8-page opinion)Associated Cases: 3:05-cv-00558-HU, 3:05-cv-01715-HU (kb)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF OREGON 9 10 11 12 13 14 15 16 17 18 19 20 PAT OMAN, ) ) Plaintiff, ) ) vs. ) ) PORTLAND PUBLIC SCHOOLS, ) Multnomah School District No. 1, ) et al. ) ) Defendants. ) ) ) PAT OMAN, ) ) Plaintiff, ) vs. ) ) PORTLAND PUBLIC SCHOOLS, et al. ) ) Defendants. ) ___________________________________) 21 22 23 24 25 26 Pat Oman 4015 NE Multnomah Street Portland, Oregon 97232 Pro se Jeffrey D. Austin J. Michael Porter Sarah A. Lowinger Miller Nash 111 S.W. Fifth Avenue Suite 3400 Portland, Oregon 97204 27 28 OPINION AND ORDER Page 1 Case No. CV05-558-HU (Lead Case) Case No. CV05-1715-HU OPINION AND ORDER 1 2 3 4 5 Attorneys for PPS defendants John Kroger Attorney General Kenneth C. Crowley Senior Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97301 Attorneys for state defendants 6 HUBEL, Magistrate Judge: 7 These are consolidated actions1 brought by Pat Oman pursuant 8 to the Individuals with Disabilities Education Act (IDEA), 20 9 U.S.C. §§ 1400-1487. The defendants are Portland Public Schools 10 (PPS) and individuals employed with PPS (collectively, the PPS 11 defendants); the Oregon Department of Education (ODE), Susan Castillo, State 12 Superintendent for Public employed by Instruction and 13 individuals the ODE (collectively, the state 14 defendants). 15 Motion to Reconsider 16 Ms. Oman moves the court to reconsider its ruling of December 17 22, 2005 (doc. #31), dismissing claims asserted in the First 18 Amended Complaint in CV 05-558-HU, under the Americans with 19 Disabilities Act (ADA), Titles II and IV, 42 U.S.C. §§ 12101-12213, 20 and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, 21 for, among other things, Pat Oman s lack of standing. Ms. Oman 22 bases her motion on a recent case, Barker v. Riverside County 23 Office of Education, 2009 WL 3401986 (9th Cir. Oct. 23, 2009), in 24 25 1 27 C.O. v. Portland Public Schools, et al., CV 05-558-HU and Oman v. Portland Public Schools, et al., CV 05-1715-HU, were consolidated by order of the court on May 3, 2006 (doc. # 53). 28 OPINION AND ORDER Page 2 26 1 which the Ninth Circuit held that a person without a disability who 2 advocated on behalf of a person with a disability had standing to 3 assert a claim for retaliation pursuant to section 504 of the 4 Rehabilitation Act and Title II of the ADA. The defendants oppose 5 the 6 administratively exhausted such a claim. I am unpersuaded by the 7 defendants exhaustion argument, but nonetheless will adhere to my 8 original ruling. motion, primarily on the ground that Ms. Oman has not 9 The First Amended Complaint in CV 05-558, which was filed on 10 June 28, 2005, alleged retaliation against Pat Oman under the IDEA 11 claim, but did not allege retaliation in violation of the ADA or 12 the Rehabilitation Act. The allegations in the claims under the ADA 13 and Rehabilitation 14 education services mandated by the IDEA to Ms. Oman s son, C.O., 15 alleged to have a learning disability,2 although Ms. Oman did 16 incorporate by reference into these claims all the allegations of 17 the IDEA claim.3 The court dismissed the claims asserted by Ms. Act were based on the failure to provide 18 2 19 20 21 Both IDEA and § 504 of the Rehabilitation Act require the provision of a free appropriate public education (FAPE) to children with disabilities. The requirements are similar, but not identical. See, e.g., Mark H. v. Paul Lemahieu, 513 F.3d 922, 933 (9th Cir. 2008). Remedies are available under § 504 for acts that also violate the IDEA. Id. at 934. 22 3 Ms. Oman s allegations were as follows: 23 24 25 26 27 28 During two separate pre-hearing conferences for an administrative due process hearing (DP04-110), defendant Constance Bull stated that the parent could not contact or speak to C.O. s teachers or other PPS staff, and stated her intention of prohibiting C.O. s teachers from speaking to the parent/plaintiff, in retaliation for the plaintiffs participation in a due process hearing and because of OPINION AND ORDER Page 3 1 Oman on behalf of her son without prejudice, on the ground that Ms. 2 Oman, a non-attorney, could not bring a pro se action on behalf of 3 another person. The court held that Ms. Oman could not assert 4 claims on her own behalf under the Rehabilitation Act and the ADA 5 because she had not alleged that she was disabled. 6 In the Second Amended Complaint for CV 05-558-HU, filed on 7 January 23, 2006, Ms. Oman asserted claims for retaliation against 8 her in violation of IDEA and 42 U.S.C. § 1983. Second Amended 9 Complaint ¶¶ 22-25, 29, 58-63. On November 7, 2006, the court 10 entered an Opinion and Order holding that Ms. Oman could not assert 11 a claim for monetary relief under 42 U.S.C. § 1983 for alleged 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 parent s opposition to PPS s discriminatory and retaliatory practices. During the course of the due process hearing Defendant Bull also placed conditions on access to C.O. s educational records, and withheld records from the parent, in retaliation for plaintiffs participation in a due process hearing. First Amended Complaint ¶ 33. Defendants Maxine Kilcrease and Constance Bull unreasonably delayed reimbursement for a properly obtained IEE [independent educational evaluation], and this was in retaliation for the plaintiffs complaints about C.O. s education, and an attempt to coerce the parent to abandon the due process hearing. Defendants Bull and Kilcrease required a confidentiality agreement as a precondition of reimbursement, a condition to which the plaintiffs agreed; this also was in retaliation for the parent having filed a complaint with ODE. Id. at ¶ 34. In response to plaintiffs concerns about C.O. s education, filing complaints with the SEA under the state complaint process, initiating a due process hearing, and expressing opposition to illegal and discriminatory practices, defendants PPS, Kilcrease, and Bull intentionally retaliated against the plaintiffs, who were consequently prevented from obtaining a fair and independent administrative due process hearing. Id. at ¶ 35. OPINION AND ORDER Page 4 1 violations of the IDEA.4 (Doc. #76). Subsequent authority from the 2 Ninth Circuit has confirmed this decision. Blanchard v. Morton Sch. 3 Dist., 509 F.3d 934, 937-38 (9th Cir. 2007). 4 The issue raised by Ms. Oman s motion to reconsider is 5 whether, in light of the Barker decision, her allegations in the 6 First Amended Complaint support a claim that she was retaliated 7 against for advocating on behalf of her disabled son in violation 8 of the ADA and the Rehabilitation Act, and whether that claim may 9 include money damages. 10 As the Blanchard case has made clear, the comprehensive 11 enforcement scheme of the IDEA includes a judicial remedy for 12 violation of any right relating to the identification, evaluation, 13 or educational placement of a child, or the provision of a free 14 appropriate public education to such child. 509 F.3d at 937-38. 15 Ms. Oman s factual allegations in support of the retaliation claim 16 in the First Amended Complaint are all premised on conduct that 17 violates rights granted to parents by the IDEA: denying the parent 18 access to the child s educational records, refusing reimbursement 19 to the parent for an IEE, and hindering the parent s right to a 20 fair due process hearing. Congress has not provided the remedy of 21 money damages for IDEA violations, as it did for discrimination and 22 retaliation claims affecting an employee s rights, like those 23 asserted in Barker. 24 /// 25 4 27 Money damages are not available under the IDEA. Robb v. Bethel Sch. Dist. # 403, 308 F.3d 1047, 1049(9th Cir. 2002). Nor can pro se litigants recover attorney s fees. 28 OPINION AND ORDER Page 5 26 1 I find persuasive the First Circuit s holding that where the 2 underlying claim is one for violation of the IDEA, plaintiff may 3 not use any other statute to evade the IDEA s limited remedial 4 structure. Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 29 (1st Cir. 5 2006). The difference between this case and the Barker case is that 6 the IDEA does not provide for money damages, while the Barker 7 plaintiff s 8 against plaintiff for advocating on behalf of her students took the 9 form of depriving her of employment rights that were independent of 10 the IDEA and answerable in damages. In this case, Ms. Oman alleges 11 that the retaliation against her for advocating on behalf of her 12 child took the form of depriving her of rights conferred solely by 13 the IDEA -rights not independent of IDEA as in Barker. The IDEA 14 does not provide monetary damages as a remedy for violation of the 15 parental rights conferred by the IDEA. I conclude that allowing Ms. 16 Oman to claim money damages is contrary to Congress s intent. employment rights do. In Barker, the retaliation 17 To illustrate, Ms. Oman s remaining retaliation claims are 18 Claim Nine in CV 05-558 and Claim Seventeen in CV 05-1715. Against 19 PPS, these claims assert that defendant Bull hindered Ms. Oman s 20 ability to exercise her procedural rights under the IDEA and that 21 PPS failed to provide the additional instruction to C.O. as ordered 22 by the ODE hearings officer. Against ODE, they assert that ODE 23 failed to investigate PPS s denial of reimbursement to Ms. Oman for 24 the 25 procedural requirements of the IDEIA, effective in 2004; ratified 26 PPS s failure to provide the additional instruction to C.O., and IEE; failed to provide 27 28 OPINION AND ORDER Page 6 Ms. Oman adequate notice of the 1 refused to file the administrative record of DP 04-110 for two 2 years. 3 4 It is these claims, and these claims only, that remain for trial, without the possibility of money damages. 5 Motion for Sanctions 6 Ms. Oman also moves for sanctions pursuant to Rule 11 of the 7 Federal Rules of Civil Procedure against the state defendants (doc. 8 # 162). The basis for the motion is that the state defendants 9 answer, filed on February 27, 2006, contained only a general denial 10 of paragraphs 19 through 66 of the Second Amended Complaint. Ms. 11 Oman states that many of the paragraphs included in the general 12 denial contained specific, verifiable statements of fact, and 13 therefore failed to comply with the requirement of Rule 8(b)(3) of 14 the Federal Rules of Civil Procedure that a party not intending to 15 deny all the allegations of a pleading must either specifically 16 deny designated allegations or generally deny all except those 17 specifically admitted. 18 The state responds that the Second Amended Complaint was 19 voluminous and complicated, with the material facts and legitimate 20 claims ... far from obvious. Affidavit of Kenneth Crowley ¶ 4. Mr. 21 Crowley states further that the answer was filed in good faith. Id. 22 at ¶ 5. 23 A fundamental purpose of Rule 11 is to reduce frivolous 24 claims, 25 maneuvers, 26 litigation. Christian v. Mattel, Inc., 286 F.3d 1118, 1127 (9th Cir. defenses thereby or motions avoiding 27 28 OPINION AND ORDER Page 7 and delay to deter costly and unnecessary meritless expense in 1 2002). The rule imposes on an attorney the duty to conduct a 2 reasonable 3 research to confirm that the underpinnings of the pleading are 4 warranted by 5 extension, modification 6 Nonetheless, a finding of significant delay or expense is not 7 required under Rule 11. Id. factual investigation existing law or or a and good reversal perform faith of adequate argument existing legal for law. an Id. 8 The subjective intent to file a meritorious document is of no 9 moment. G.C. and K.B. Investments, Inc. v. Wilson, 326 F.3d 1096, 10 1109 (9th Cir. 2003). The standard is reasonableness, meaning that 11 the conduct tested is that of a competent attorney admitted to 12 practice before the district court. Id. 13 The state s general denials in its answer do not qualify for 14 the imposition of sanctions under Rule 11. Accordingly, the motion 15 for sanctions is denied. 16 Conclusion 17 Ms. Oman s motion for reconsideration (doc. # 161) is GRANTED, 18 but the court adheres to its original rulings. Ms. Oman s motion 19 for sanctions under Rule 11 of the Federal Rules of Civil Procedure 20 (doc. # 162) is DENIED. 21 IT IS SO ORDERED. 22 23 Dated this 18th day of December, 2009. 24 25 /s/Dennis James Hubel 26 Dennis James Hubel United States Magistrate Judge 27 28 OPINION AND ORDER Page 8

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