H. et al. v. Dry Creek Joint Elementary School District et al.

Filing 175

MEMORANDUM AND ORDER signed by District Judge Morrison C. England, Jr. on 5/12/2017 ORDERING while the CDE's Motion for Reconsideration as to the availability of injunctive relief (ECF No. #150 ) is DENIED, the Court GRANTS Plaintiffs' Request for Reconsideration (ECF No. #161 ) as to the availability of compensatory damages for Plaintiffs' allegations of intentional discrimination and retaliation under Title II of the ADA and Section 504 of the Rehabilitation Act, including under a "deliberate indifference" standard. The Court accordingly strikes lines 14-23 from page 25 of its Memorandum and Order filed 9/30/2016 (ECF No. #138 ). (Reader, L) Modified on 5/15/2017 (Reader, L).

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EVERETT H., a minor, by and through
his Guardians Ad Litem REBECCA
HAVEY and HEATH HAVEY;
REBECCA HAVEY, an individual; and
HEATH HAVEY, an individual,

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No. 2:13-cv-00889-MCE-DB

MEMORANDUM AND ORDER

Plaintiffs,
v.
DRY CREEK JOINT ELEMENTARY
SCHOOL DISTRICT, BOARD OF
TRUSTEES OF DRY CREEK JOINT
ELEMENTARY SCHOOL DISTRICT;
MARK GEYER, individually and in his
official capacity as Superintendent of
Dry Creek Joint Elementary School
District; EVONNE ROGERS,
individually in her official capacity as
Assistant Superintendent of
Educational Services; LYNN
BARBARIA, individually and in her
official capacity as Director of Special
Education; ANDREW GIANNINI,
individually and in his official capacity
as Principal at Olive Grove Elementary
School; CALIFORNIA DEPARTMENT
OF EDUCATION; and TOM
TORLAKSON, individually and in his
official capacity as State
Superintendent of Public Instruction for
the State of California,
Defendants.
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Through the present action, Plaintiffs Heath and Rebecca Havey, both individually

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and on behalf of their son Everett H. (hereinafter “Plaintiffs” unless otherwise indicated)

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allege educational harms based on purported violations of Everett’s right as a disabled

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student to a free and appropriate public education (“FAPE”) pursuant to the provisions of

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the Individuals with Disabilities Education Improvement Act, 20 U.S.C. § 1400, et seq.

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(“IDEA”), and various state statutes. Plaintiffs also assert associated violations of Title II

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of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”), and § 504 of

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the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”). By way of damages,

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Plaintiffs seek compensatory education and reimbursement, compensatory and punitive

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damages, and attorneys’ fees.
The Dry Creek Joint Elementary School District, Everett’s local school district,

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was originally named as a Defendant by Plaintiffs, along with Dry Creek’s Board of

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Trustees and four individual Dry Creek administrators, Lynn Barbaria, Mark Geyer,

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Andrew Giannini and Evonne Rogers in their official capacities (collectively referred to

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hereafter as “Dry Creek”). On or about November 23, 2014, however, Plaintiffs settled

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their claims against Dry Creek by accepting its offer of entry of judgment pursuant to

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Federal Rule of Civil Procedure 68.1 Although that terminated all claims against Dry

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Creek, Plaintiffs also included the California Department of Education (the “CDE”) as a

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named Defendant.2

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The CDE moved for summary judgment and, by Memorandum and Order filed

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September 30, 2016 (ECF No. 138), that motion was granted with respect to Plaintiffs’

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third claim for relief, which alleged a violation of California Education Code § 37252.2.

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Summary adjudication was also granted with respect to certain relief sought in the prayer

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to Plaintiffs’ Second Amended Complaint. Presently before the Court are cross-motions

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All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless
otherwise noted.
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Plaintiffs also initially sued Tom Torlakson, California’s State Superintendent of Public
Instruction, but all claims against Torlakson were dismissed by Memorandum and Order filed August 6,
2015 (ECF No. 56).

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for reconsideration asking the Court to revisit its rulings as to the propriety of damages

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requested by Plaintiffs in their prayer for relief. The CDE, in its motion (ECF No. 15),

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asks the court to reconsider its order denying the CDE’s request to strike Plaintiffs’

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prayer for injunctive relief. Plaintiffs, for their part, urge the Court to find that

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compensatory damages are indeed available for Plaintiffs’ allegations of intentional

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discrimination and retaliation under Title II of the ADA and Section 504.

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A court should not revisit its own decisions unless extraordinary circumstances

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show that its prior decision was wrong. Christianson v. Colt Indus. Operating Corp.,

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486 U.S. 800, 816 (1988). This principle is generally embodied in the law of the case

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doctrine. That doctrine counsels against reopening questions once resolved in ongoing

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litigation. Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 369 n.5 (9th Cir.

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1989) (citing 18 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure

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§ 4478). Nonetheless, a court order resolving fewer than all of the claims among all of

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the parties is “subject to revision at any time before the entry of judgment adjudicating all

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the claims and the rights and liabilities of all the parties.” Fed. R. Civ. P. 54(b). Where

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reconsideration of a non-final order is sought, the court has “inherent jurisdiction to

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modify, alter or revoke it.” United States v. Martin, 226 F.3d 1042, 1048-49 (9th Cir.

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2000). The major grounds that justify reconsideration involve an intervening change of

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controlling law, the availability of new evidence, or the need to correct a clear error or

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prevent manifest injustice. Pyramid, 882 F.2d at 369.

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With respect to the CDE’s claim that any injunctive relief available to Plaintiffs be

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precluded, the CDE claimed in their motion for summary judgment that because Everett

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left the Dry Creek Joint Elementary School District more than four years ago, he lacks

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standing to assert injunctive relief since he is currently being home-schooled and

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consequently cannot show any ongoing injury susceptible to injunctive redress. The

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Court declined to find a lack of standing on summary adjudication, however, reasoning

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that reassurances by way of injunctive relief could permit Everett to return to Dry Creek,

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where he continues to be geographically zoned, and that his parents’ decision to home
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school Everett for his own safety amounted to a “heavy burden” on their resources.

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Memorandum and Order, ECF No. 138, at 25:24-26:5. The CDE now requests

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reconsideration of that Order on grounds that by the time of the trial currently set for

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July 24, 2017, Everett will have graduated from eighth grade and consequently will no

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longer be able to attend Dry Creek (and qualify for CDE oversight over Dry Creek’s

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educational services) since Dry Creek is a K-8 school district. Thus, according to the

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CDE, any injunctive relief can no longer be had.

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In opposition, Plaintiff Heath Havey has submitted a declaration indicating that

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because Everett’s latest Triennial and IEP meetings confirm that he remains below

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grade level, being held back another year is being considered rather than currently

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advancing Everett to high school for the 2017-18 school year. Havey further indicates

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that an additional Triennial meeting has been scheduled for May 18, 2017 to address

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these concerns. Decl. of Heath Havey, ECF No. 160-1, ¶¶ 2-4. While the CDE argues

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that this is sheer speculation, the Court believes that the circumstances present are

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sufficient to permit standing at this time. In addition, by demonstrating alleged systemic

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shortcomings on the part of CDE that extend beyond FAPE issues applicable only to

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Everett, Plaintiffs’ standing in seeking redress is not necessarily limited by the scope of

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Everett’s particular concerns in any event. Consequently, the CDE’s Motion for

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Reconsideration fails.

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As indicated above, Plaintiffs’ cross-motion for reconsideration targeted

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specifically to the availability of compensatory damages for Plaintiffs’ claim under the

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ADA and Section 504. Plaintiffs failed to offer any meaningful opposition to the CDE’s

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request that the court deem those damages unavailable given the Ninth Circuit’s holding

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in Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1269-70 (9th Cir. 2009), and

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summary adjudication as to that portion of Plaintiffs’ prayer for relief was therefore

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granted. Now, Plaintiffs contend that the Court should have deduced that authority cited

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in their cross-motion for summary judgment should have been construed as opposition

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to CDE’s motion. Given the sheer volume of briefing submitted in connection with the
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parties’ respective requests for summary judgment, expecting the Court to apply

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authority buried within one motion to its adjudication of another is simply not reasonable.

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As the Seventh Circuit observed in United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.

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1991), “[j]udges are not like pigs, hunting for truffles buried in briefs.” Nonetheless,

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because the authority now cited goes directly to the legal merits of the CDE’s claim

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concerning the propriety of compensatory damages, the Court is compelled to examine it

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in light of reconsideration’s objective to prevent clear error. See Pyramid, 882 F.2d at

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369.

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While the Ninth Circuit’s decision in Alvarado did indeed preclude compensatory

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damages in an ADA retaliation claim, that case in fact was premised on a violation of

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Title I of the ADA. See Alvarado, 588 F.3d at 1263 (“After Alvarado was terminated he

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filed a lawsuit against Cajun alleging employment discrimination in violation of Title I of

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the ADA . . . .” (emphasis added)). At least two Eastern District cases, including a

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decision from the undersigned have found that the analysis changes, however, if a

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violation under Title II against a public entity is alleged. In that event, compensatory

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damages may be permitted. Lee v. Natomas Unified Sch. Dist., 93 F. Supp. 3d 1160,

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1171 (E.D. Cal. 2015); Herrera v. Giampietro, 2010 WL 1904827, at *9 (E.D. Cal.

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May 10, 2010). Here, because CDE is unquestionably a public entity, the provisions of

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Title II are implicated, and compensatory damages are conceivably proper.

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It must also be noted that where discriminatory intent is found, Ninth Circuit

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authority itself has recognized the availability of money damages. See Duvall v. County

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of Kitsap, 260 F.3d 1124, 1138-39 (9th Cir. 2001) (setting forth the level of discriminatory

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intent required to support compensatory damages under Title II of the ADA); Ferguson v.

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City of Phoenix, 157 F.3d 668, 674-75 (9th Cir. 1998) (finding that compensatory

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damages are available under Title II of the ADA and Section 504 for intentional

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discrimination). In addition, recent unpublished Ninth Circuit opinion, Rojo v. Bright,

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2016 WL 7378449, at *1 (9th Cir. Dec. 14, 2016), reaffirmed that compensatory

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damages are available under Title II of the ADA under a “deliberate indifference”
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standard. Here, given Plaintiffs’ allegations of intentional discrimination, such requisite

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intent cannot be ruled out. Therefore Plaintiffs’ reconsideration request as to such

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damages is well-taken on that ground as well.

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In sum, while the CDE’s Motion for Reconsideration as to the availability of

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injunctive relief (ECF No. 150) is DENIED, the Court GRANTS Plaintiffs’ Request for

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Reconsideration (ECF No. 161) as to the availability of compensatory damages for

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Plaintiffs’ allegations of intentional discrimination and retaliation under Title II of the ADA

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and Section 504 of the Rehabilitation Act, including under a “deliberate indifference”

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standard. The Court accordingly strikes lines 14-23 from page 25 of its Memorandum

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and Order filed September 30, 2016 (ECF No. 138).3
IT IS SO ORDERED.
Dated: May 12, 2017

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Having determined that oral argument was not of material assistance, the Court orders this
matter submitted on the briefing in accordance with E.D. Local Rule 230(g).

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