Albright v. Mountain Home School District et al
MEMORANDUM OPINION AND ORDER AFFIRMING the Hearing Officer on the IDEA Appeal, Granting Summary Judgment as to all federal claims with prejudice, and Dismissing state claims without prejudice. See Order for details as to other motions that were denied or mooted. (Brooks, Timothy)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
JACQUIE ALBRIGHT, as Parent and Next Best Friend of
CASE NO. 3:16-CV-3011
MOUNTAIN HOME SCHOOL DISTRICT;
DEBBIE ATKINSON, Director of Special Education; and
SUSANNE BELK, BCBA Consultant
MEMORANDUM OPINION AND ORDER
Currently before the Court are:
Plaintiff Jacquie Albright’s Brief Supporting IDEA Appeal (Doc. 49) from the
Hearing Officer’s Final Decision and Order (Doc. 72-1); and Defendants Mountain
Home School District’s (“the District”), Debbie Atkinson’s, and Susanne Belk’s Brief
in Opposition (Doc. 53);
Plaintiff’s Motion to File Amended and Supplemental Complaint and Related Relief
(Doc. 75) and Brief in Support (Doc. 76); and Defendants’ Response in Opposition
Plaintiff’s Motion to Accept Response to Summary Judgment Out of Time (Doc.
84); and Defendants’ Response in Opposition (Doc. 90);
Plaintiff’s Motion to File Pretrial Conference Information Sheet Out of Time (Doc.
93); Defendants’ Response in Opposition (Doc. 94) and Supplement (Doc. 95);
and Plaintiff’s Response to Defendants’ Opposition (Doc. 96);
Defendants’ Motion for Summary Judgment (Doc. 72), Statement of Undisputed
Facts in Support (Doc. 73), and Brief in Support (Doc. 74); and Plaintiff’s Response
in Opposition (Doc. 81), Supplements (Docs. 82–85), Brief in Support (Doc. 86),
Statement of Facts Precluding Summary Judgment (Doc. 87), and Response to
Defendants’ Statement of Material Facts (Doc. 88);
Defendants’ Combined Motion to Exclude Opinions of Dr. Howard Knoff and Brief
in Support (Doc. 67); Plaintiff’s Response in Opposition (Doc. 68) and Brief in
Support (Doc. 69); and Defendants’ Reply (Doc. 71);
Defendants’ Motion Requesting that the Court Disregard Plaintiff’s Improperly
Filed Reply (Doc. 97); and
Defendants’ four Motions in Limine and Briefs in Support (Docs. 98–104).
For the reasons given below, the decision of the Hearing Officer is AFFIRMED; Plaintiff’s
Motion to File Amended and Supplemental Complaint and Related Relief (Doc. 75),
Motion to Accept Response to Summary Judgment Out of Time (Doc. 84), and Motion to
File Pretrial Conference Information Sheet Out of Time (Doc. 93) are DENIED;
Defendants’ Motion for Summary Judgment (Doc. 72) is GRANTED; and Defendants’
Motion to Exclude Opinions of Dr. Howard Knoff (Doc. 67), Motion Requesting that the
Court Disregard Plaintiff’s Improperly Filed Reply (Doc. 97), and four Motions in Limine
(Docs. 98, 99, 101, 103) are MOOT.
Ms. Albright is an employee of the District, and her daughter, Child Doe, is a
student at the District.
Child Doe has autism spectrum disorder, attention deficit
hyperactivity disorder, and mild mental retardation. Under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., the District must provide Child Doe with
a free appropriate public education (“FAPE”), id. at § 1412(a)(1), which includes special
education and related services in conformity with an individualized education program
(“IEP”), id. at § 1401(9)(D). The IDEA sets out a process by which teachers, school
officials, and a child’s parents should collaborate to draft an IEP that fits the child’s unique
needs. See id. at § 1414(d)(1)(B).
When a parent disagrees with other members of the IEP team over what the IEP
should include, the parties may attempt to resolve the disagreement, either through a
“preliminary meeting” or through mediation. Id. at §§ 1415(e), (f)(1)(B)(i). If unsuccessful,
then the parent may file a complaint with the Arkansas Department of Education to initiate
a “due process hearing.” See id. at § 1415(f)(1)(A). Following the Hearing Officer’s
decision, the losing party may appeal it by filing a lawsuit in federal court. See id. at
§ 1415(i)(2)(A). And that is what happened here.
By now, a long history of bad blood has accumulated between Ms. Albright and
the District concerning Child Doe’s educational needs. The due process complaint that
is the subject of the instant appeal, for example, was actually the third such complaint
that Ms. Albright filed against the District; the previous two were settled in August 2012
and March 2014, respectively, before their due process hearings occurred. Ms. Albright
also filed three more due process complaints against the District after the instant one.
While it would probably be impossible to identify any single coup de gras for any
remaining shreds of trust or good will between the parties, some strong contenders would
likely be Ms. Albright’s practice of concealing audio recorders in Child Doe’s clothes at
school, or the various reports that District personnel have filed with the Arkansas
Department of Human Services and the local police department against Ms. Albright.
The due process complaint that is the subject of the instant appeal concerns
whether Child Doe was denied a FAPE between November 15, 2013 and October 17,
2014. The Hearing Officer issued his decision on October 29, 2015, finding that no such
denial of a FAPE occurred. See Doc. 72-1. Plaintiff filed her Complaint (Doc. 1) in this
Court on January 27, 2016, and then replaced it on August 23, 2016 with her Amended
Complaint (Doc. 41), which sets forth six counts regarding: (1) her IDEA appeal from the
Hearing Officer’s October 2015 decision; (2) various violations of the United States
Constitution under 42 U.S.C. § 1983; (3) disability discrimination in violation of Section
504 of the Rehabilitation Act; (4) retaliation in violation of Section 504 of the Rehabilitation
Act; (5) disability discrimination in violation of Title II of the Americans with Disabilities Act
(“ADA”); and (6) various causes of action under Arkansas state law. In addition to the
District, Plaintiff has also named two individuals as Defendants: Debbie Atkinson, who is
the District’s Director of Special Education, and Susanne Belk, who is a Board Certified
Behavior Analyst consultant for the District and a member of Child Doe’s IEP team.
Count 1, the IDEA appeal, has been fully briefed by the parties for many months
now. A hearing for oral argument on the IDEA appeal was continued multiple times, and
its most recent setting of March 30, 2017 was cancelled two days before it was to be held,
on account of counsel’s illness. Since its cancellation, and upon further review of the
quite voluminous administrative record, the Court has concluded that oral argument would
not be useful to its decisionmaking process on the IDEA appeal, and that accordingly the
hearing need not be reset. Therefore, the IDEA appeal is ripe for decision.
Defendants have moved for summary judgment on Counts 2 through 6, and moved
to exclude opinions by an expert witness for Plaintiff named Dr. Howard Knoff. Plaintiff
has three pending motions to untimely file various documents. All five of these motions
have also been fully briefed and are likewise ripe for decision.
Below, the Court will first rule on Plaintiff’s IDEA appeal. Then the Court will take
up Plaintiff’s three motions regarding timeliness. Next, the Court will address Defendants’
summary judgment motion. And finally, the Court will deal with Defendants’ expert
motion, as well as five other motions that Defendants filed on July 5, 2017.
A. Plaintiff’s IDEA Appeal—Count 1 of the Amended Complaint
The Court begins with Count 1 of Plaintiff’s Amended Complaint: her appeal from
the Hearing Officer’s Final Decision and Order (Doc. 72-1), which found in favor of the
District with respect to her October 17, 2014 Due Process Complaint (Doc. 49-1). This
Court must “review the administrative record, hear additional evidence if requested, and
‘basing its decision on the preponderance of the evidence, . . . grant such relief as [it]
determines is appropriate.’” K.E. ex rel. K.E. v. Indep. Sch. Dist. No. 15, 547 F.3d 795,
803 (8th Cir. 2011) (quoting 20 U.S.C. § 1415(i)(2)(C)) (alterations in original). In so
doing, this Court “must independently determine whether the child in question has
received a FAPE,” while also giving “due weight to agency decision-making” since the
Hearing Officer “had an opportunity to observe the demeanor of the witnesses and
because a district court should not substitute its own notions of sound educational policy
for those of the school authorities that it reviews.” See id. (internal alterations and
quotation marks omitted). The centerpiece of a FAPE is the IEP, see Honig v. Doe, 484
U.S. 305, 311 (1988), which must be “reasonably calculated to enable a child to make
progress appropriate in light of the child’s circumstances,” see Endrew F. ex rel. Joseph
F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001 (2017).
In her Appeal Brief, Plaintiff argues that the Hearing Officer erred in finding that
Child Doe was not deprived of a FAPE, and that this ultimate error rested primarily on
three erroneous findings: (1) that Ms. Albright had meaningful participation in the IEP
process, see Doc. 49, pp. 12–16; (2) that it was unnecessary to perform a new functional
behavioral assessment (“FBA”) on Child Doe and develop a new behavioral intervention
plan (“BIP”) for her during the relevant time period, see id. at 16–21; and (3) that the IDEA
does not require the use of evidence-based practices in an IEP, see id. at 21–22. With
regard to the issue of parental involvement, Plaintiff is certainly correct that “[t]he core of
the [IDEA] . . . is the cooperative process that it establishes between parents and schools
. . . .” Schaffer v. Weast, 546 U.S. 49, 53 (2005). But this Court wholeheartedly agrees
with the Hearing Officer’s observation that “[t]he District’s compilation of over several
hundred pages of emails and the Parent’s multiple pages of transcriptions of various IEP
meetings is evidence enough to deny the Parent’s claim that she was not provided
opportunity to participate in the development of the Student’s IEPs.” (Doc. 72-1, p. 7).
As for the necessity or lack thereof for a new FBA and BIP—it was proper for the Hearing
Officer to credit the testimony of Ms. Belk that none was necessary because she had
already conducted an FBA when Child Doe was in second grade, Child Doe’s function of
maladaptive behavior had not changed since then, and the BIP that was already in place
was working well. See id. at pp. 14–15. This is consistent with the requirements of the
IDEA, which mandates that an FBA be conducted after the child is removed because of
disability-caused disciplinary problems unless one was already conducted prior to the
problematic behavior’s occurrence, and which only requires modification of preexisting
BIPs “as necessary, to address the behavior.” See 20 U.S.C. § 1415(k)(1)(F)(i)–(ii).
The matter of “evidence-based practices” presents a more difficult and nuanced
issue here. Plaintiff’s Appeal Brief takes issue with the Hearing Officer’s statement that
“[a]fter a lengthy bantering with the District’s counsel on cross examination [Plaintiff’s
expert witness] admitted that the IDEA does not require the use of evidence-based
practices.” See Doc. 72-1, p. 25; Doc. 49, p. 21. Plaintiff then asserts in rather broad
language that the District “fail[ed] to address [Child Doe]’s escalating behaviors utilizing
evidence based practices to effectively address problematic behaviors in children with
autism,” and that this failure “violated IDEA’s requirement to utilize evidence based
practices to educate students with disabilities.” See Doc. 49, p. 22. As a threshold matter,
the Court would observe that regardless of whether the IDEA requires the use of
evidence-based practices, it is abundantly clear from the record that the District made
extensive use of evidence-based practices to educate Child Doe and to deal with her
problematic behaviors. Ms. Belk testified at great length about the nature and variety of
such practices that the District uses with Child Doe—including a great many that Plaintiff’s
expert, Dr. Jason Travers, specifically recommended—and the Hearing Officer found her
testimony to be credible. See Hearing Transcript, Volume V, pp. 110–27. At any rate,
though, it appears that at the present stage Plaintiff’s objection on this point goes primarily
to one particular practice that the District employed: the use of sensory integration
treatment in Child Doe’s BIP. 1
The Court gleans this from the Amended Complaint, see Doc. 41, ¶¶ 36–37, as the
IDEA appeal briefing does not specify any particular practices which Plaintiff finds
At this point it is useful to turn to the text of the IDEA, which it turns out, does not
use the phrase “evidence based practices.” Rather, it simply requires the IEP’s “special
education and related services and supplementary aids and services” to be “based on
peer-reviewed research to the extent practicable.” See 20 U.S.C. § 1414(d)(1)(A)(i)(IV)
(emphasis added). The Court has not found any evidence in the record that sensory
integration treatment is not based on peer-reviewed research, nor has it found any
evidence in the record that the District’s use of sensory integration treatment somehow
prevented the District from utilizing services that are based on peer-reviewed research.
Dr. Travers testified that “behavior analysts don’t talk about sensory input or
sensory integration,” because sensory integration is “a pseudoscientific intervention” that
makes the unfalsifiable assumption that “the cause of these sensory seeking or sensory
avoiding behaviors is neurological” without exploring the possibility that there are other
motivations for the problematic behavior in question, such as seeking or avoiding
attention, or seeking or avoiding items or activities. See Hearing Transcript, Vol. III, pp.
When utilized thus, he opined, sensory integration treatment can lead to
reinforcement of maladaptive behaviors by rewarding them with pleasant activities. See
id. at 37–39. But however legitimate his criticisms may be in other circumstances, they
do not accurately describe the way that Child Doe’s BIP utilized sensory integration
techniques. Ms. Belk’s testimony repeatedly displayed keen awareness of the different
functions that Child Doe’s problematic behaviors served in different contexts, rather than
simply chalking it all up to bad neurological processing. See, e.g., Hearing Transcript,
Vol. V, p. 93 (Ms. Belk describing some of Child Doe’s “protest behavior” as being an
attempt to escape difficult work rather than an attempt to escape the classroom, which
she enjoyed); id. at 112 (Ms. Belk describing her use of differential reinforcement—an
evidence-based method in Dr. Travers’s opinion—by giving Child Doe “something
meaningful or functional to do with her hands” such as using a pencil to conduct an activity
with the rest of the class when “she’s taking a sheet of paper and she’s [self-stimulating]
quite a bit” with it). Furthermore, although Ms. Belk shared some of Dr. Travers’s general
concerns about the potential for sensory integration techniques to be counterproductive,
she concluded that “with a child with autism that has so many sensory issues like [Child
Doe] does, to not plan any programming for that, in my opinion is not appropriate.” Id. at
97. In reaching this conclusion, she relied in part on the professional judgment of, inter
alia, “Doctor Brandi Steele, who is a sensory certified occupational therapist that did [Child
Doe’s] eval.” Id. at 96.
There is undoubtedly a profoundly toxic lack of trust between Ms. Albright and
other District personnel, and the Court does not know who, if anyone, is primarily to blame
for the dismal state into which that relationship has fallen. It is also undoubtedly true that
Ms. Albright disagrees with other members of Child Doe’s IEP team about what Child
Doe’s true academic potential is. But ultimately, this Court’s independent review of the
administrative record, giving due weight to the Hearing Officer’s credibility determinations,
leads it to conclude by a preponderance of the evidence that the District provided Child
Doe “an educational program reasonably calculated to enable [her] to make progress
appropriate in light of [her] circumstances.” Endrew F., 137 S. Ct. at 1001. In other words,
Child Doe was not denied a FAPE, the Hearing Officer’s decision will be AFFIRMED, and
Count 1 of the Amended Complaint will be DISMISSED WITH PREJUDICE.
B. Plaintiff’s Motions Regarding Untimeliness (Docs. 75, 84, 93)
Before moving on to Defendants’ summary judgment motion, the Court needs to
take up three other motions filed by Plaintiff, all of which concern whether Plaintiff may
file various items after their respective deadlines to do so. On July 25, 2016, the Court
entered a Case Management Order requiring that “[l]eave to amend pleadings and/or to
add or substitute parties shall be sought no later than OCTOBER 23, 2016,” and stating
that “[t]he discovery deadline is MARCH 24, 2017.” (Doc. 34, p. 2, §§ 3, 5) (emphases in
original). Nevertheless, on May 4, 2017, Plaintiff filed her Motion to File Amended and
Supplemental Complaint (Doc. 75)—more than half a year after the deadline for her to do
so had passed, weeks after discovery had closed, see Doc. 65, p. 5, and six days after
Defendants had moved for summary judgment on Plaintiff’s claims in this case. Plaintiff
contends that since the filing of her Amended Complaint on August 23, 2016, Defendants
“have continued to violate the IDEA and discriminate and retaliate against Plaintiff and
Child Doe,” and that “[t]he hearing record on Plaintiff’s fourth due process complaint,”—
presumably arising from the same alleged post-August 23 violations—“was closed on 28
April 2017.” See Doc. 75, pp. 2–3. Accordingly, Plaintiff “requests that she be granted
leave to amend and supplement her Amended Complaint to include an appeal of the
hearing officer’s decision and/or a claim for attorneys’ fees if she is the prevailing party,”
id. at 3, “that Defendants’ Motion for Summary Judgment be denied as moot,” id. at 4,
and that discovery be re-opened and dispositive motions deadlines be reset after the new
pleading is filed many months from now, see id. at 4–5. Defendants oppose this motion.
See Doc. 80.
One day after filing her Motion to File Amended and Supplemental Complaint,
Plaintiff filed a Motion for Extension of Time to Respond to Defendant’s Motion for
Summary Judgment, see Doc. 77, which the Court denied by text-only order that same
day, pursuant to its explicit warning to the parties on March 17, 2017 that “[n]o further
extensions of deadlines will be granted for discovery or dispositive motions.” See
Doc. 65 (emphasis in original). Five days later, on May 10, Plaintiff filed a Second Motion
for Extension to File Response to Motion for Summary Judgment, see Doc. 78, which the
Court again denied by text-only order that same day. Plaintiff’s deadline of May 12 to
respond to Defendants’ Motion for Summary Judgment passed with no such response
being filed until around midnight from May 22 to 23, accompanied by yet another Motion
to Accept Response to Summary Judgment Out of Time (Doc. 89)—ten and eleven days
late, and notwithstanding the Court’s two previous denials of her motions for extensions.
Defendants also oppose this latest motion. See Doc. 90.
Finally, Plaintiff filed her Pretrial Disclosure Sheet (Doc. 92) on June 25, 2017, four
days after the Case Management Order’s deadline for her to do so. See Doc. 34, p. 4,
§ 9. This time, Plaintiff never even bothered to seek advance leave to do so. Instead,
she filed a Motion to File Pretrial Conference Information Sheet Out of Time (Doc. 93) on
the same day that she filed her Pretrial Disclosure Sheet (again, four days after the
deadline). As with the other motions, Defendants oppose this motion.
Deadlines set in the scheduling order “may be modified only for good cause and
with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “Rule 16(b)’s good-cause standard
governs when a party seeks leave to amend a pleading outside of the time period
established by a scheduling order, not the more liberal standard of Rule 15(a).” Hartis v.
Chicago Title Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012). “The primary measure of Rule
16’s ‘good cause’ standard is the moving party’s diligence in attempting to meet the case
management order’s requirements.” Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir.
2001). Sometimes other factors, such as prejudice to the nonmoving party, may be
considered—but not in the absence of diligence by the moving party. See id. Good cause
does not exist “[w]here there has been no change in the law, no newly discovered facts,
or any other changed circumstance after the scheduling deadline for amending
pleadings.” Hartis, 694 F.3d at 948 (internal quotation marks and alterations omitted).
Plaintiff’s Motion to File Amended and Supplemental Complaint does not state
whether the factual allegations she would add to her complaint occurred before or after
October 23, 2016, which was the deadline to seek leave to amend pleadings. Thus,
Plaintiff has not made any showing of changed circumstances that would be necessary
to support a finding of good cause to grant that particular Motion. Moreover, Plaintiff failed
to attach to this Motion a copy of the proposed pleading as required by Local Rule 5.5(e).
Furthermore, the Court finds that Plaintiff has not been diligent in attempting to
meet this Court’s deadlines. Of the eighteen motions that Plaintiff has filed in this case,
eleven of them have sought some sort of extension or continuance of a deadline. See
Docs. 37, 42, 47, 48, 50, 52, 75, 77, 78, 89, 93. And at least four of those eleven motions
for extensions were themselves filed after the deadline at issue had already passed. See
Docs. 42, 50, 89, 83. Plaintiff’s counsel represents that medical emergencies in Plaintiff’s
counsel’s family have made it difficult for her to meet the Court’s deadlines in this case.
The Court is very sympathetic to the difficulties that these medical emergencies are
causing to Plaintiff’s counsel, but at some point, a Court’s orders and deadlines must
mean something. The Court cautioned the parties in a text-only order dated October 31,
2016 that “[a]lthough the Court is very sympathetic to Plaintiff counsel’s current situation,
no further extensions will be granted, as she has already requested and received many
deadline extensions in not only this case but also several others in which she has recently
appeared before the Court.” Despite being put on very clear notice at that time that the
Court would not indulge any further requests for extensions, Plaintiff opted not to change
or add counsel.
As the Court observed in its October 31, 2016 text-only order, this is not the only
case before the undersigned in which Plaintiff’s counsel has struggled to meet deadlines.
In Brittany O v. Bentonville Sch. Dist. et al., Case No. 5:15-cv-5020, Plaintiff’s counsel
filed nineteen motions, of which twelve were requests for extensions or continuances of
deadlines, see id. at Docs. 2, 38, 48, 76, 78, 80, 99, 100, 136, 144, 154, 157, an additional
one which sought grossly untimely relief, see id. at Doc. 102, and an additional two which
were direct consequences of the Court’s rulings regarding timeliness, see id. at Docs.
105, 111. And of these fifteen motions related to timeliness issues, at least three of them
were themselves filed after the deadline at issue had already passed. See id. at Docs.
48, 154, 157. In Brittany O. v. New Boston Enters., Inc. et al., Case No. 5:15-cv-5269,
Plaintiff’s counsel filed four motions, of which two sought extensions or stays of deadlines,
see id. at Docs. 53, 58. And in Swearingen et al. v. Ozark Mountain Sch. Dist., Case No.
3:16-cv-3029, Plaintiff’s counsel filed six motions, of which three sought extensions of
deadlines, see id. at Docs. 22, 31, 42, at least one of which was filed after the deadline
at issue had already passed, see id. at Doc. 42.
In other words, the Court estimates that nearly three quarters of the motions that
Plaintiff’s counsel has filed in cases where she appears before the undersigned have
either sought relief from or disregarded this Court’s deadlines, or otherwise pertained to
untimeliness issues. 2 These motions are remarkable not only for the share they comprise
of Plaintiff’s counsel’s overall motion practice before the undersigned, but also for their
sheer objective numerosity: at least 31 such motions in four3 cases, many of which were
opposed and required significant oppositional briefing. And this does not even take into
account other situations in which Plaintiff’s counsel was technically compliant with a
deadline, but at such late moments as to create confusion and uncertainty about whether
the deadline was actually met, see, e.g., Brittany O v. Bentonville Sch. Dist. et al., Case
No. 5:15-cv-5020, Doc. 170-1, or to otherwise create inequitable circumstances for
opposing parties, see, e.g., Albright et al. v. Mountain Home Sch. Dist. et al., Case No.
3:16-cv-3011, Doc. 65. Although the Court tries to accommodate reasonable requests
for extensions, the Court’s indulgence is not limitless; at some point, deadlines must
become firm if cases are to proceed in an orderly and predictable manner that is fair to
all parties and stakeholders and that facilitates efficient docket management for all of the
But more to the point, the Court finds that Plaintiff did not make diligent efforts to
meet this Court’s deadlines with respect to her Response to Defendants’ Motion for
Summary Judgment or with respect to her Pretrial Disclosure Sheet. As described above,
Plaintiff’s counsel has also appeared before the Court in Gentry et al. v. Mountain Home
Sch. Dist., Case No. 3:17-cv-3008, which was opened fairly recently and has not yet seen
any motions filed by any party.
But see n.1, supra.
the Court gave ample warning on March 17, May 7, and again on May 10, that no
summary-judgment response would be accepted after May 12; a diligent effort to comply
with this Court’s orders would have been to file a summary-judgment response on or
before May 12, even if the response were skeletal and accompanied by yet another
motion for leave to file an untimely supplement. And as described above, Plaintiff did not
even bother to seek leave to file an untimely pretrial disclosure sheet until four days after
the deadline had passed.
Accordingly, Plaintiff’s Motions to Accept Response to
Summary Judgment Out of Time (Doc. 84), and to File Pretrial Conference Information
Sheet Out of Time (Doc. 93) will be DENIED, and Plaintiff’s Response to Motion for
Summary Judgment (Doc. 81), supporting materials thereto (Docs. 82–88), and Pretrial
Disclosure Sheet (Doc. 92) will be STRICKEN. 4 Plaintiff’s Motion to File Amended and
The Court observes that in paragraph 2 of Plaintiff’s Response to Motion for Summary
Judgment (Doc. 81), she moves the Court under Fed. R. Civ. P. 41(a)(2) to dismiss
without prejudice all of her individual claims against Ms. Atkinson and all of her claims
based on 42 U.S.C. § 1983. To whatever extent that motion were to survive the Court’s
striking of the Response in which it is embedded, the Court would deny it because, as
this Court has reminded Plaintiff’s counsel in another case, “a party is not permitted to
dismiss merely to escape an adverse decision nor to seek a more favorable forum.” See
Brittany O v. Bentonville Sch. Dist. et al., Case No. 5:15-cv-5020, Doc. 110, p. 4 (quoting
Hamm v. Rhone-Poulenc Rorer Pharms., Inc., 187 F.3d 941, 950 (8th Cir. 1999)). If
Plaintiff dismissed these claims without prejudice and then refiled them in another lawsuit,
she would evade this Court’s orders and her deadline to respond to Defendants’ Motion
for Summary Judgment; this would also waste judicial resources and prejudice
Defendants by forcing them to defend a second time against claims on which they had
already moved for summary judgment. Furthermore, the Court is skeptical whether Rule
41(a)(2) even authorizes voluntary dismissal of only some, rather than all, of a party’s
individual claims. “Both Rules 41(a)(1) and 41(a)(2) apply by their terms to dismissal of
an ‘action,’ which contrasts with Rule 41(b), which provides that ‘a defendant may move
for dismissal of an action or of any claim against him.’” Graco, Inc. v. Techtronic Indus.
N. Am., Inc., 2010 WL 915213, at *2 (D. Minn. Mar. 9, 2010) (quoting Gronholz v. Sears,
Roebuck and Co., 836 F.2d 515, 518 (Fed. Cir. 1987)). “As a consequence, while often
dubbed a Rule 41(a) voluntary dismissal, the procedure whereby a court grants plaintiff’s
motion to dismiss one count of a multi-count complaint is more properly viewed as a Rule
15 amendment to the complaint.” Id. (internal quotation marks and alterations omitted).
Supplemental Complaint and Related Relief (Doc. 75) will likewise be DENIED, not only
because as a general matter Plaintiff has not made diligent efforts to comply with this
Court’s deadlines, but also more specifically because, as described above, Plaintiff has
not shown changed circumstances that would warrant extending the deadline to amend
pleadings, and because Plaintiff has not complied with Local Rule 5.5(e).
C. Defendants’ Motion for Summary Judgment (Doc. 72)
Although the Court has denied Plaintiff’s Motion to Accept Response to Summary
Judgment Out of Time, that does not mean Defendants are automatically entitled to
summary judgment. See Local Rule 7.2(f). The Court will deem admitted or undisputed
all assertions of fact that Defendants have made for purposes of their Motion for Summary
Judgment, see Fed. R. Civ. P. 56(e)(2); Local Rule 56.1(c), but the Court must still make
an independent and reasoned determination of whether, given those undisputed or
admitted facts, Defendants are entitled to judgment as a matter of law, see Fed. R. Civ.
Accordingly, after reciting the legal standard, the Court will determine
whether Defendants are entitled to summary judgment on Plaintiff’s claims. In doing so,
the Court will first consider Defendants’ affirmative defense that Plaintiff failed to exhaust
her administrative remedies under the IDEA, because the temporal scope of Plaintiff’s
claims hinges on the validity of this defense. Then the Court will proceed to consider
Plaintiff’s claims under 42 U.S.C. § 1983 in Count 2 of her Amended Complaint, her claims
under the Rehabilitation Act and the ADA in Counts 3–5 of her Amended Complaint, and
finally her claims under Arkansas state law in Count 6 of her Amended Complaint.
The Court has already explained above that the deadline to seek leave to amend
pleadings has long ago passed, and that good cause for extending that deadline does
1. Legal Standard
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). The Court must view the facts in the light most favorable
to the non-moving party, and give the non-moving party the benefit of any logical
inferences that can be drawn from the facts. Canada v. Union Elec. Co., 135 F.3d 1211,
1212-13 (8th Cir. 1997). The moving party bears the burden of proving the absence of
any material factual disputes. Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986); Nat’l Bank of Commerce of El Dorado, Ark. v.
Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999).
If the moving party meets this burden, then the non-moving party must “come
forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita,
475 U.S. at 587 (quoting Fed. R. Civ. P. 56(c)). These facts must be “such that a
reasonable jury could return a verdict for the nonmoving party.” Allison v. Flexway
Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). “The nonmoving party must do more than rely on allegations
or denials in the pleadings, and the court should grant summary judgment if any essential
element of the prima facie case is not supported by specific facts sufficient to raise a
genuine issue for trial.” Register v. Honeywell Fed. Mfg. & Techs., LLC, 397 F.3d 1130,
1136 (8th Cir. 2005) (citing Celotex Corp v. Catrett, 477 U.S. 317, 324 (1986)).
2. IDEA Exhaustion
As previously discussed supra, the IDEA establishes an administrative framework
for securing the right of disabled children to receive a FAPE. A party may bring a lawsuit
in federal court to secure her right under the IDEA to receive a FAPE, but only after
exhausting her administrative remedies at the state level. See 20 U.S.C. § 1415(i)(2)(A),
(l). And although the IDEA does not preempt parties from also seeking relief under the
United States Constitution, the ADA, or the Rehabilitation Act, it does require “that before
the filing of a civil action under such laws seeking relief that is also available under [the
IDEA],” the IDEA’s administrative remedies “shall be exhausted to the same extent as
would be required had the action been brought under [the IDEA.]” See id. at § 1415(l).
Whether the relief being sought under these other laws is also available under the IDEA,
turns on whether the relief being sought is “for the denial of a FAPE.” Fry v. Napoleon
Comm. Schs., 137 S. Ct. 743, 752 (2017).
“[I]n determining whether a suit indeed seeks relief for such a denial, a court should
look to the substance, or gravamen, of the plaintiff’s complaint.” Id. (internal quotation
marks omitted). This inquiry is not a search for “magic words” in the complaint, and it
“does not ride on whether a complaint includes (or, alternatively, omits) the precise
words ‘FAPE’ or ‘IEP.’”
Id. at 755.
In Fry, the Supreme Court offered a pair of
hypothetical questions that may assist this inquiry:
First, could the plaintiff have brought essentially the same claim if the
alleged conduct had occurred at a public facility that was not at school—
say, a public theater or library? And second, could an adult at the school—
say, an employee or visitor—have pressed essentially the same grievance?
When the answer to those questions is yes, a complaint that does not
expressly allege the denial of a FAPE is also unlikely to be truly about that
subject; after all, in those other situations there is no FAPE obligation and
yet the same basic suit could go forward. But when the answer is no, then
the complaint probably does concern a FAPE, even if it does not explicitly
say so; for the FAPE requirement is all that explains why only a child in the
school setting (not an adult in that setting or a child in some other) has a
Id. at 756.
The instant case presents a couple of pertinent oddities. One is that Ms. Albright
not only is the mother of Child Doe, but also is an employee of the District; and in addition
to the claims she brings on her Child Doe’s behalf, she asserts on her own behalf a claim
that the District retaliated against her in violation of the Rehabilitation Act. However, all
of the alleged harms on which the Amended Complaint explicitly premises this claim also
happen to be various ways that she contends her daughter was denied a FAPE:
. . . denying the Plaintiff meaningful participation in Doe’s IEP meetings,
repeatedly agreeing to and then canceling a meeting to review the student’s
records; refusing to allow the Plaintiff to see certain records, despite the fact
that the Plaintiff is entitled to all of Doe’s records as her parent; destroying
certain records; refusing to respond to the Plaintiff’s letters or phone calls;
refusing to allow the Plaintiff to bring someone to assist her at an IEP
meeting; suddenly refusing to allow the Plaintiff to tape record an IEP
meeting; always having the Defendant’s attorney, Sharon Street[t], present
whenever there is an interaction with the Plaintiff (although the Defendant
District does not normally do this for other parents); and refusing to meet
with the Plaintiff if Streett could not be present at a time requested by the
(Doc. 41, ¶ 91). Thus, it would appear that Ms. Albright’s claims brought on her own
behalf are subject to the IDEA’s administrative exhaustion requirement.
Another oddity is that while the Amended Complaint includes an explicit appeal
from a formal administrative determination that Child Doe received a FAPE, it also
includes many factual allegations regarding events that were subjects of prior IDEA
administrative proceedings which were settled before final adjudication. As the Supreme
Court observed in Fry:
[A] court may consider that a plaintiff has previously invoked the IDEA’s
formal procedures to handle the dispute—thus starting to exhaust the
[IDEA]’s remedies before switching midstream. . . . A plaintiff’s initial choice
to pursue that process may suggest that she is indeed seeking relief for the
denial of a FAPE—with the shift to judicial proceedings prior to full
exhaustion reflecting only strategic calculations about how to maximize the
prospects of such a remedy. Whether that is so depends on the facts; a
court may conclude, for example, that the move to a courtroom came from
a late-acquired awareness that the school had fulfilled its FAPE obligation
and the grievance involves something else entirely. But prior pursuit of the
IDEA’s administrative remedies will often provide strong evidence that the
substance of a plaintiff’s claim concerns the denial of a FAPE . . . .
137 S. Ct. at 757.
Here, after a careful review of the Amended Complaint, the Court has been able
to identify only two allegations whose substance does not concern the denial of a FAPE.
One is the allegation that District personnel made multiple false police reports and
allegations of child abuse against Ms. Albright. See Doc. 41, ¶¶ 23, 31, 33. The other is
the allegation that District personnel subjected Child Doe to strip searches for recording
devices that Ms. Albright hid on her person. See id. at ¶ 32. Both of these allegations
articulate grievances that could be brought against public officials in non-educational
settings, by adults as well as by children; accordingly, to the extent any of Plaintiff’s
federal claims are premised on these particular allegations, they are not subject to the
IDEA’s administrative exhaustion requirement. However, in all other respects the IDEA’s
administrative exhaustion requirement applies to Plaintiff’s federal claims, because all
other facts on which they are premised fundamentally concern the appropriateness of
Child Doe’s education plan and environment.
Finally, as this Court and many other district courts within the Eighth Circuit have
previously observed, “[i]nvoking a due process hearing and then settling the claims prior
to the hearing does not rise to the level of an exhaustion of administrative remedies,”
because “[a]llowing the settlement to constitute exhaustion would permit plaintiffs to
proceed with their claims without developing a factual record, allowing the educational
system to exercise its expertise in resolving this conflict, or providing the parties a full
opportunity to avoid excessive litigation in direct contravention of Congress’ intent behind
the exhaustion requirement.” R.P. ex rel. K.P. v. Springdale Sch. Dist., 2007 WL 552117,
at *4 (W.D. Ark. Feb. 21, 2007) (Hendren, J.) (quoting S.A.S. v. Hibbing Pub. Sch., 2005
WL 1593011, at *3 (D. Minn. July 1, 2005)) (internal quotation marks and alterations
omitted); see also Smith v. Rockwood R-VI Sch. Dist., 2017 WL 1633065, at *6 (E.D. Mo.
May 2, 2017) (“Courts within this circuit have held that voluntary dismissals and
settlement agreements do not satisfy the IDEA exhaustion requirement.”) (collecting
cases). In other words, while Plaintiff may be entitled to bring a claim for breach of
contract based on alleged violations of her prior settlement agreements with the District,
that does not change the fact that she has not exhausted her administrative remedies
with respect to any alleged FAPE denials other than those that are the subject of the
specific administrative adjudication being appealed in Count 1 of her Amended
What this means is that, with the exception of allegations regarding the
aforementioned alleged strip searches and false reports, Plaintiff’s federal claims in this
case may only be premised on harms alleged to have occurred between November 15,
2013 and October 17, 2014, which is the temporal scope of the allegations undergirding
her sole IDEA administrative proceeding to have been exhausted. See Doc. 72-1, p. 1.
Those alleged harms can be summarized as follows: (1) District personnel filed false
allegations of child abuse against Ms. Albright, see Doc. 41, ¶ 31; (2) District personnel
subjected Child Doe to strip searches for recording devices that Ms. Albright had hidden
on her, see id. at ¶ 32; (3) Ms. Atkinson generally endeavored to discredit Ms. Albright
with District personnel and filed false police reports against her, see id. at ¶ 33; (4) Ms.
Belk failed to implement evidence-based practices when designing behavioral
interventions and strategies for Child Doe, see id. at ¶¶ 34–37; (5) Child Doe was denied
access to remedial instruction on account of her disability, see id. at ¶ 38; and (6) the
District held a meeting on September 5, 2014, at which the district attempted to change
Child Doe’s IEP without Ms. Albright attending or having been given notice, see id. at ¶
3. Counts 2–6 of the Amended Complaint
In Count 2 of her Amended Complaint, Plaintiff alleges that various violations of
Child Doe’s constitutional rights occurred. Specifically, she alleges that Child Doe was
denied “her constitutionally protected right to a free appropriate public education and right
to bodily integrity and right to be secure in her person,” see id. at ¶ 52, and “her right to
substantive due process,” see id. at ¶ 53, in violation of the Fourth Amendment, see id.
at ¶¶ 53, 56, as well as the Due Process and Equal Protection Clauses of the Fourteenth
Amendment, see id. at ¶¶ 53–59, 61, 64–65. Ms. Albright does not articulate any specific
constitutional rights of her own that she believes have been violated; the closest the
Amended Complaint comes to this is a statement that “Plaintiff has a liberty interest in
raising her child and in directing her education and the right to meaningful participation in
her educational programming, whose rights were violated by the Defendants’ actions.”
Id. at ¶ 66. Plaintiff brings these constitutional claims against the District and Ms. Atkinson
under 42 U.S.C. § 1983, which authorizes suits against state actors for violations of
federal constitutional rights.
For a substantive due process violation to occur, a state actor must have “violated
one or more fundamental rights,” Schmidt v. Des Moines Pub. Sch., 655 F.3d 811, 816
(8th Cir. 2011), in a manner that was “inspired by malice or sadism,” Christiansen v. West
Branch Cmty. Sch. Dist., 674 F.3d 927, 937 (8th Cir. 2012) (quoting C.N. v. Willmar Pub.
Schs., Indep. Sch. Dist. No. 347, 591 F.3d 624, 634 (8th Cir. 2010)). Education is not a
fundamental right under the Fourteenth Amendment, see San Antonio Indep. Sch. Dist.
v. Rodriguez, 411 U.S. 1, 34–35 (1973), and the Equal Protection Clause permits state
actors to discriminate on the basis of disability so long as there is a rational basis for doing
so, see Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367–68 (2001). So to whatever
extent Plaintiff’s substantive due process and equal protection claims are predicated on
the District or Ms. Atkinson having relied on Ms. Belk’s professional judgment with respect
to behavioral interventions and strategies, see Doc. 41, ¶¶ 34–37, having decided not to
provide Child Doe with certain remedial instruction on the grounds that it would be futile
to do so, see id. at ¶ 38, or having a meeting to discuss changes to Child Doe’s IEP
outside the presence of Ms. Albright, see id. at ¶ 39, those claims must be dismissed
because they complain of rational decisions that do not implicate fundamental rights.
Plaintiff’s constitutional claims must also be dismissed to the extent they are
predicated on her allegations that Child Doe was strip-searched or that false reports were
filed, because there is no genuine dispute that these events never occurred. Defendants
contend that no strip search occurred and that no false reports were ever filed, see Doc.
74, p. 12, and they have submitted evidence to support those contentions in the form of
deposition testimony, see Doc. 72-6, pp. 4–5; Doc. 72-8, pp. 3–6, and a copy of a
pertinent police report that indicates it was not filed by Ms. Atkinson, see Doc. 72-7. As
discussed supra in this Opinion and Order, Plaintiff failed to timely rebut these factual
contentions, so they are deemed admitted. As there are no other factual allegations within
the time period circumscribed by the IDEA’s administrative exhaustion requirements,
Count 2 of the Amended Complaint will be DISMISSED WITH PREJUDICE.
Plaintiff’s claims in Counts 3, 4, and 5, also fail for similar reasons. These claims
are all brought only against the District, see Doc. 41, ¶¶ 71, 88, 96, and they respectively
allege disability discrimination against Child Doe in violation of Section 504 of the
Rehabilitation Act, retaliation against Ms. Albright in violation of that same statute, and
disability discrimination against Child Doe in violation of Title II of the ADA. Section 504
and Title II prohibit the exclusion of qualified individuals with disabilities from participation
in, or receiving benefits of, public services or programs receiving federal funding. 42
U.S.C. § 12132; 29 U.S.C. § 794(a). The enforcement, remedies, and rights under these
two statutes are identical. Birmingham v. Omaha Sch. Dist., 220 F.3d 850, 856 (8th Cir.
2000). “Where alleged ADA and § 504 violations are based on educational services for
disabled children, the plaintiff must prove that school officials acted in bad faith or with
gross misjudgment.” Id. “In order to establish bad faith or gross misjudgment, a plaintiff
must show that the defendant’s conduct departed substantially from accepted
professional judgment, practice or standards so as to demonstrate that the persons
responsible actually did not base the decision on such a judgment.” B.M. ex rel. Miller v.
South Callaway R-II Sch. Dist., 732 F.3d 882, 887 (8th Cir. 2013) (internal alterations and
quotation marks omitted). Mere noncompliance with the relevant federal statutes is not
enough; rather, the noncompliance “must deviate so substantially from accepted
professional judgment, practice, or standards as to demonstrate that the defendant acted
with wrongful intent.” Id.
The District contends there was no such bad faith or gross misjudgment here, and
that it did not attempt to obstruct Ms. Albright’s participation in the IDEA process, see
Doc. 74, pp. 17–18, and it has submitted evidence to support this contention in the form
of deposition testimony from Ms. Albright, see Doc. 72-2, pp. 11–12, and the District’s
former superintendent, see Doc. 72-6, p. 45. As with the factual allegations regarding
strip searches and false reports, these contentions are deemed admitted because Plaintiff
failed to timely rebut them. Accordingly, the District is entitled to summary judgment on
Plaintiff’s claims under the Rehabilitation Act and the ADA, and Counts 3–5 will be
DISMISSED WITH PREJUDICE.
This leaves only Plaintiff’s state-law claims in Count 6, which means no claims
remain over which the Court has original federal-question jurisdiction. Accordingly, the
Court will decline to exercise supplemental jurisdiction over Plaintiff’s state-law claims
under 28 U.S.C. § 1367(c)(3), and Count 6 of the Amended Complaint will be DISMISSED
D. Defendants’ Motion to Exclude (Doc. 67), Motion Requesting that the Court
Disregard Plaintiff’s Improperly Filed Reply (Doc. 97), and
Motions in Limine (Docs. 98, 99, 101, 103)
Defendants have filed a Motion to Exclude the opinions of Plaintiff’s expert Dr.
Howard Knoff. See Doc. 67. Dr. Knoff’s opinions are not referenced in the briefing on
the IDEA appeal, and they are not in the summary judgment record. 5 Given the Court’s
prior rulings in this Order, no claims remain for trial. Thus, this Motion, Defendants’ Motion
Plaintiff’s untimely Response to Defendants’ Motion for Summary Judgment does
reference Dr. Knoff’s expert report. See, e.g., Doc. 86, p. 19. But this material was
stricken from the record for the reasons given in Section II.B of this Order supra.
Requesting that the Court Disregard Plaintiff’s Improperly Filed Reply, and Defendants’
four Motions in Limine are MOOT.
IT IS THEREFORE ORDERED that:
The decision of the Hearing Officer is AFFIRMED, and Count 1 of Plaintiff Jacquie
Albright’s Amended Complaint is DISMISSED WITH PREJUDICE;
Plaintiff’s Motion to File Amended and Supplemental Complaint and Related Relief
(Doc. 75) is DENIED;
Plaintiff’s Motion to Accept Response to Summary Judgment Out of Time (Doc.
84) is DENIED, and her Response to Summary Judgment and supporting
materials (Docs. 81–88) are STRICKEN;
Plaintiff’s Motion to File Pretrial Conference Information Sheet Out of Time (Doc.
93) is DENIED, and her Pretrial Disclosure Sheet (Doc. 92) is STRICKEN;
Defendants’ Motion for Summary Judgment (Doc. 72) is GRANTED, in that Counts
2–5 of Plaintiff’s Amended Complaint are DISMISSED WITH PREJUDICE and
Count 6 of Plaintiff’s Amended Complaint is DISMISSED WITHOUT PREJUDICE;
Defendants’ Motion to Exclude Opinions of Dr. Howard Knoff (Doc. 67), Motion
Requesting that the Court Disregard Plaintiff’s Improperly Filed Reply (Doc. 97),
and four Motions in Limine (Docs. 98, 99, 101, 103) are MOOT.
Judgment will be filed contemporaneously with this Order.
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