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C. M. v. Independent School District of Boise City

United States District Court, D. Idaho

August 31, 2016

C. M. on behalf of herself and as legal guardian and parent of Z. M., a minor individual, Plaintiffs,


          Honorable Edward J. Lodge United States District Judge


         Pending before the Court in the above-entitled matter is the Defendants' Motion for Summary Judgment. (Dkt. 27.) The parties have filed their responsive briefing and the matter is now ripe for the Court's consideration. Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the Motion shall be decided on the record before this Court without oral argument.


         This case arises from events occurring when Plaintiff Z.M. was a student attending Liberty Elementary, a school and subdivision of the Defendant, the Independent School District of Boise City (BSD). Z.M. has been diagnosed with Becker muscular dystrophy, epilepsy, gray matter heterotopias, subependymal hamartomas, cognitive disorder, organic brain syndrome, impulse control disorder, and adjustment disorder. (Dkt. 20 at ¶ 2.) During the 2011 school year, Z.M. experienced incidents of bullying allegedly based on his disability. (Dkt. 20 at ¶ 7.) On October 3, 2011, a comprehensive evaluation of Z.M. was conducted and an Individual Education Plan (IEP) was put in place for Z.M. at Liberty Elementary for the 2012-2013 academic year. (Dkt. 20 at ¶¶ 8-15.)

         The Complaint alleges Z.M. continued to be bullied during the 2012-2013 and 2013-2014 academic years and that he was regressing from the goals in his IEP, had suicidal ideation, could not focus on school, and lacked the desire to attend school. The Complaint alleges that BSD failed to provide the services, supports, and accommodations required by the IEP. After incidents between Z.M. and other students in early to mid-September of 2013, Liberty Elementary suspended Z.M. and completed a Threat Assessment. Liberty Elementary also began the process of completing a Functional Behavioral Assessment (FBA).

         Following a different incident involving Z.M. and another student on September 25, 2013, Z.M.'s parents confirmed that Z.M. would not be returning to Liberty Elementary because the bullying and disparate treatment Z.M. suffered at Liberty Elementary was so pervasive that Z.M. could no longer attend. (Dkt. 20 at ¶ 45.) Instead, Z.M. attended Idaho Virtual Academy for the 2013-2014 academic year.

         In August of 2014, after a year at the Idaho Virtual Academy, Z.M. desired to return to a traditional academic setting. Z.M.'s parents attempted to enroll Z.M. at Garfield Elementary based on BSD's open enrollment policy. Garfield Elementary informed Z.M.'s parents that BSD policy requires students on an IEP to attend the school geographically nearest to their home; which was Liberty Elementary. Against their wishes, Z.M. was re-enrolled at Liberty Elementary for the 2014-2015 academic year. Because he was denied open enrollment at Garfield Elementary and to escape the disparate treatment and disability-based bullying he suffered at Liberty Elementary, the Complaint alleges, Z.M. attended Sage International School for the 2015-2016 academic year. (Dkt. 20 at ¶ 63.)

         Between October of 2013 and February of 2015, Z.M.'s parents attempted to obtain records from Liberty Elementary which, they allege, were not provided or were provided late. During this time, Z.M.'s parents also contested the accuracy of and requested amendments to the final Threat Assessment on three occasions: December 20, 2013, October 21, 2014, and February 25, 2015. All of the requested amendments were denied. (Dkt. 20 at ¶¶ 52, 57.) On January 14, 2015, Z.M.'s parents requested, and were granted, a hearing on the BSD's decision denying their requests to amend the Threat Assessment. The BSD, however, rescinded the hearing before it occurred.

         On March 27, 2015, Z.M.'s mother, Plaintiff C.M., filed a request for a due process hearing under the Individuals with Disabilities Education Act (IDEA). The request was denied on April 30, 2015 in a Memorandum Decision and Order by Hearing Officer Edwin L. Litteneker (Litteneker I). (Dkt. 20 at ¶ 64.) C.M. filed a second request for a due process hearing on May 8, 2015 which was denied on June 16, 2015 by Hearing Officer Litteneker based on res judicata (Litteneker II). (Dkt. 20 at ¶ 65.)

         On April 28, 2015, prior to either Litteneker decision being issued, Plaintiffs initiated this action by filing a pro se Complaint against the BSD raising claims under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (§ 504), violation of civil rights under 42 U.S.C. § 1983, violation of IDEA, intentional infliction of emotional distress, request for injunction, and violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq. (Dkt. 1.) On June 10, 2015 Plaintiffs filed the First Amended Complaint pro se. (Dkt. 3.) Thereafter, Plaintiffs retained counsel who filed a Second Amended Complaint raising two causes of action for discrimination under Title II of the ADA and § 504 of the Rehabilitation Act. (Dkt. 20.)

         Both causes of action raise allegations that BSD discriminated and acted with deliberate indifference with regards to Z.M. and denied him the benefits of its services, on the basis and because of his disability in at least nine specified ways including: the bullying Z.M. suffered, treating Z.M. differently from his peers, failing to provide Z.M. services, unilaterally lowering the IEP goals, denying a hearing prior to suspending, disparate manner in completing the Threat Assessment, making substantive decisions based on cost not necessity, untimely providing records and revoking the hearing to correct Z.M.'s records, and failing to permit Z.M. to enroll in a school of his choosing. (Dkt. 20 at ¶¶ 69, 76.) Defendants have filed this Motion for Summary Judgment arguing the Plaintiffs failed to exhaust administrative remedies and the claims are precluded by res judicata.


         Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides, in pertinent part, that judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material ...

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