Burke v. Hillsborough County School Board

Filing 30

ORDER: This case is dismissed consistent with the foregoing. The Clerk is directed to enter JUDGMENT in favor of Defendant and thereafter, CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 3/2/2018. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHAD BURKE,
Plaintiff,
v.

Case No.:

8:17-cv-993-T-33JSS

HILLSBOROUGH COUNTY SCHOOL BOARD,
Defendant.
______________________________/
ORDER
Pro se Plaintiff Chad Burke is the parent of a minor
child with Autism, “A.B.”

A.B. is a gifted third-grade

student

who

with

a

disability

is

eligible

to

receive

exceptional student services. Burke seeks judicial review of
the

Final

Order

entered

on

February

3,

2017,

by

the

Administrative Law Judge pursuant to an evidentiary hearing.
In

the

Final

Order,

the

ALJ

denied

A.B.’s

Request

for

Exceptional Student Education Due Process in its entirety.
(Doc. # 23-4 at 161-209).

Burke filed his brief on October

17, 2017 (Doc. # 26), and the School Board filed its Response
Brief (Doc. # 28) on November 17, 2017. Burke filed his Reply
(Doc. # 29) on November 30, 2017.

For the reasons that

follow, the Court dismisses the case.
I.

Background Discussion
A.B.

is

a

former

elementary

school

student

of

the

Hillsborough County School District. A.B. was enrolled in

Bevis Elementary School starting in the first grade. (Doc. #
23-4 at 163).

A.B. receives exceptional student education

services under the Autism Spectrum Disorder, Speech Impaired,
and Language Impaired eligibility categories. (Id.).

During

A.B.’s time at Bevis, he frequently engaged in challenging,
unsafe, and inappropriate behaviors, including but not limited
to:
pushing, hitting, pinching, biting, kicking, loud
vocalizations/yelling,
property
destruction,
eloping, escaping out of windows, running around
the classroom, throwing things, forcefully grabbing
and groping adults, hair pulling, stabbing others,
putting inedible objects in his mouth, pushing and
knocking over furniture, etc.
(Doc.

#

28

at

5-6).

During

the

ALJ

hearing,

credible

witnesses descried A.B.’s classroom destruction, including
“damaging bookcases, pulling cords from computers and sockets,
pulling down and knocking down numerous items throughout the
classroom, dumping glue all over the floor, [and] swinging a
meter stick.” (Doc. # 23-4 at 179).

The classroom started as

a vibrant and rich setting for young minds to explore. (ALJ
Hearing Tr. at 380).

However, to accommodate A.B., the

stimulating learning tools were removed. (Id. at

561-62).

Bookcases that were once accessible to the students were
turned so that the books face the wall because A.B. was prone

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to climbing bookcases. (Id. at 561).

The art supply cabinets

had to be “zip-tied shut.” (Id. at 381).
During the ALJ hearing, A.B.’s teachers testified that he
violently attacked them.

One ESE teacher, Ms. Rissler,

testified that A.B. bit her so hard that she has to wear a
brace on her arm and she requires continuing medical care,
including an MRI. (ALJ Hearing Tr. at 542).

Another teacher

testified that A.B. tried to pull down children in the
playground

when

the

children

were

on

top

of

playground

equipment, such as monkey bars, posing a real threat of
physical injury to his peers. (Id. at 617).

A.B. yells

threats such as “I’m going to shoot you.” (Id. at 518).
A.B.’s classroom has to be evacuated when A.B. displays
unsafe behaviors or when he is in crisis. (Id. at 604).
During the evacuations, which are frequent and “extremely
tense,” the other students in the class are displaced on a
moment’s notice and divested of the opportunity to learn. (Id.
at 384-86).

Sometimes, the other students are “evacuated” to

the cafeteria when other students are eating lunch, which is
obviously “not an ideal environment for the other kids to be
learning.” (Id. at 386).
School Principal Melanie Cochrane testified that she has
875 students under her care at Bevis Elementary, but she
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spends half of her time dealing with A.B. (Id. at 577-81).
She testified that she cannot adequately support the teachers
she supervises due to the situation with A.B. (Id. at 582).
And, the Assistant Principal, Rebecca Thomas, testified that
she spends “a large majority of her day” dealing with A.B.,
such as responding to his almost-daily crisis situations. (Id.
at 616). Likewise, Melissa McGuire, a school psychologist for
Hillsborough County, testified that she spends 75% of her time
working on A.B.’s case. (Id. at 120).
The professionals at Bevis, along with privately retained
therapists, attempted to assist A.B. during the school years
and

implemented

the

following

supports,

among

others:

“classroom behavior management system; individual student
behavior management system; behavior contract; individualized
student

supervision

plan;

Functional

Behavior

Assessment

(‘FBA’)/Positive Behavior Intervention Plan (‘PBIP’); a crisis
management plan; continuous additional adult assistance; and
daily home notes.” (Doc. # 28 at 2).

During the ALJ hearing,

Jamie LeSavage, A.B.’s home room teacher, explained that two
ESE professionals accompanied A.B. throughout the day, that
A.B. was given a “visual schedule” and has a special dismissal
procedure. (Id. at 398, 433).

A.B. was also rewarded when he

exhibited good behavior. (Id. at 434).
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A.B.’s assignments

were shortened and reduced, and he received assistance taking
notes and other support to stay on task. (Id. at 442).

He was

able to choose a “preferred activity” instead of working on
what the class was working on. (Id. at 447).

The door had to

be guarded because A.B. frequently ran from the classroom, and
he even jumped out of windows to leave the classroom. (Id. at
609-610).1

To implement such heroic measures, all devoted to

A.B.’s safety and success, teachers were required to give up
their lunch breaks and come in early before the scheduled
school day. (Id. at 613).
Despite

supports

and

interventions

too

numerous

to

describe, Burke felt as though A.B. was being denied a free
and appropriate public education and therefore filed a Due
Process Complaint on November 14, 2016. (Doc. # 23-4 at 2-8).
Among other grievances, Burke claimed:
The school is not currently in compliance with the
Student’s IEP.
The school is currently not in
compliance with the student’s behavior plan. The
school unilaterally decided to change placement and
assignment of the student to another school. The
school demonstrated procedural violations that
resulted in the failure to provide the student with
a free and appropriate education.

1

And, not surprisingly, many parents complained that
their children were not able to learn due to the many
disruptions. (Id. at 400).
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(Doc. # 23-4 at 8). The new school, Cimino, has the advantage
of

“a

licensed

clinical

social

worker,”

full

time

ESE

specialists, and “the full continuum” of supports for students
with Autism. (ALJ Hearing Tr. at 198).
The School Board filed its response on November 24, 2016.
(Doc. # 23-4 at 15-24).

Therein, the School Board defended

the decision to move A.B. from his neighborhood school to “a
separate

class

placement”

at

Cimino

due

to

A.B.’s

“664

incidents of unsafe behavior” that were “gravely impeding his
ability to receive a FAPE.” (Id. at 16). On December 14 and
15, 2016, a due process hearing was held in which A.B.
presented the testimony of five witnesses, and the School
Board presented the testimony of eleven witnesses. On February
3, 2017, the ALJ entered a lengthy and thoughtful opinion that
denied the Due Process Complaint in its entirety. (Id. at 161210).

The ALJ found that A.B. failed to demonstrate that (1)

the challenged recommendation set forth in the October 31,
2016, Individualized Education Program (IEP) were unilateral
and predetermined; (2) the School Board did not comply with
the student’s behavior plan; (3) the School Board did not
implement certain components of A.B.’s April 2016 IEP; and (4)
the proposed placement recommendation was inappropriate.

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On April 28, 2017, Burke initiated the present action by
filing his pro se Complaint seeking judicial review of the
ALJ’s decision. (Doc. # 1).

Burke filed an Amended Complaint

(Doc. # 9) on May 26, 2017.

The School Board filed its Answer

on

July

5,

2017.

(Doc.

#

17).

After

initiating

these

proceedings, Burke relocated to Alexandria, Virginia. (Doc. #
13).

The matter has been fully briefed. (Doc. ## 26, 28,

29)).
II.

Discussion
In addition to challenging the substance of Burke’s

arguments, the School Board raises a jurisdictional mootness
challenge. “Under Article III of the Constitution, federal
courts

may

adjudicate

only

actual,

ongoing

cases

or

controversies.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477
(1990). This requirement means that “a litigant must have
suffered, or be threatened with, an actual injury traceable to
the defendant and likely to be redressed by a favorable
judicial decision.” Id.
The actual case or controversy “must be extant at all
stages of review, not merely at the time the complaint is
filed.” Arizonans for Official English v. Arizona, 520 U.S.
43, 67 (1997).

“A case is moot when events subsequent to the

commencement of a lawsuit create a situation in which the
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court can no longer give the plaintiff meaningful relief.”
Nat’l Ass’n of Bds. of Pharm. v. Bd. of Regents of the Univ.
Sys. of Ga., 633 F.3d 1297, 1308 (11th Cir. 2011).
even

a

once-justiciable

case

becomes

moot

and

“Thus,
must

be

dismissed when the issues presented are no longer live or the
parties lack a legally cognizable interest in the outcome.”
Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs, Ga.,
868 F.3d 1248 (11th Cir. 2017)(internal citation omitted).
As noted, after Burke filed the present appeal of the
ALJ’s decision, A.B. moved to Virginia and is no longer
enrolled in any Hillsborough County School. (Doc. # 13).

The

School Board argues: “If A.B. has moved out of the District
and has no intent to return to the District, there is no
relief that the Court can grant Plaintiff. Thus, the Court
would essentially be issuing an opinion advising what the law
would be upon a hypothetical state of facts.” (Doc. # 28 at
23)(citing Hughes v. Dist. Sch. Bd. of Collier Cny., No. 2:06cv-629-FtM-29DNF, 2008 WL 4709325, at *4 (M.D. Fla. Sept. 22,
2008)).
Burke asks this Court to “return A.B. to a placement in
the general education classroom with appropriate support
services as identified in the IEP dated September 19, 2016"
and to “identify what actions will be taken against school
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personnel for the predetermiantion of student placement and
assignment.” (Doc. # 9 at 5; Doc. # 26 at 21).

This is not

relief that this Court can grant for a student located outside
of the Hillsborough County School District.
In response to the mootness argument, Burke postulates
that “there is a chance that I could be reassigned within the
school district, as it is home to MacDill AFB” and explains
that he moved away from Hillsborough County “in execution of
military permanent change of station orders.” (Doc. # 29 at
8).

Burke’s indication that there exists some possibility

that he will be reassigned to Hillsborough County again at
some time in the future does not overcome the School Board’s
mootness arguments.

The Court recognizes that Burke is a pro

se litigant, and the Court is not holding his pleadings and
briefs to the same standard as an attorney.

Tannenbaum v.

United States, 148 F.3d 1262, 1263 (11th Cir. 1998). However,
even with every leniency provided to Burke in the construction
of his submissions, the Court finds that Burke cannot overcome
the determination that all of his claims for prospective
relief

are

mooted.

GJR

Investments,

Inc.

v.

County

of

Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)(stating
that the lenience afforded to pro se parties “does not give a
court license to serve as de facto counsel for a party . . .
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or to rewrite an otherwise deficient pleading in order to
sustain an action”).
The Court realizes that the “capable of repetition”
doctrine can save a moot case, but only if the plaintiff is
likely to be placed in the same position again. See Weinstein
v. Bradford, 423 U.S. 147, 149 (1975)(“[T]he ‘capable of
repetition, yet evading review’ doctrine [is] limited to the
situation where two elements combined: (1) the challenged
action was in its duration too short to be fully litigated
prior to its cessation or expiration, and (2) there was a
reasonable expectation that the same complaining party would
be subjected to the same action again.”). Burke does not come
close to meeting these criteria.
Burke also attempts to revive his moot case by asserting
that, in addition to prospective relief, he is also making a
claim for money damages for ABA services from April 28, 2016,
through the present in the amount of $32,568.04. (Doc. # 9 at
5).

To be certain, Burke’s Amended Complaint filed in this

Court seeks money damages. (Doc. # 9 at 5).

But, the School

Board persuasively argues that “because A.B. did not make that
request in the proceedings below, he cannot seek those damages
here.” (Doc. # 28 at 24).

If a matter was not litigated at

the ALJ level, it is not a proper matter for the district
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court’s review.

See Irwin v. Colvin, 8:12-cv-1025-T-23MAP,

2013 WL 4804722, at *3 (M.D. Fla. Sept. 9, 2013)(“In this
Circuit, the general rule is that an argument not raised in an
administrative hearing cannot be raised on appeal.”).
In

Burke’s

request

for

Due

Process

Hearing,

dated

November 14, 2016, Burke sets out a lengthy description of
A.B.’s “public school experience and present school situation”
and recounts many instances in which he claims that A.B. was
treated unfairly or denied an appropriate education by the
School.

(Doc. # 23-4 at 2-8). The request for a Due Process

Hearing contains the following language:
We propose the following resolution to these
issues:
Student assignment returned to Bevis Elementary
School. School staff to comply with the current
IEP by returning [A.B.] to the general education
classroom with proper support as identified in the
IEP. School staff comply with and follow the
behavioral plan consistently.
Implement proper
monitoring to include behavior reports to the
parents and weekly fidelity checks of the school
staff. Award of compensatory consideration for the
amount of time and services denied the student as a
result of the denial of a free and appropriate
public education.
(Id. at 8)(emphasis added).
After mentioning an “award of compensatory consideration”
in the complaint, Burke never raised the issue at the ALJ
hearing. This Court has read every page of the transcripts of

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the multi-day ALJ hearing. (Doc. ## 23-1, 23-2). Not a single
mention was made regarding damages for ABA services by Burke.
But, Burke did request reimbursement for ABA therapy in his
27-page proposed order to the ALJ. (Doc. # 23-4 at 98).

That

proposed order says: “The parents provided for 279 hours of
ABA therapy between April and December 2016 . . . Because of
these facts, the petitioner is entitled to reimbursement

for

the ABA therapy as compensatory consideration to remedy the
multiple denials of FAPE.” (Id.).

The ALJ did not enter that

Order, and in the ALJ’s Final Order, the issue of compensatory
damages was not addressed.
The School Board correctly argues that Burke did not make
a

specific

request

for

damages

before

the

ALJ

and

“furthermore, there is no evidence before the Court regarding
the purported ABA services or the amount sought for the Court
to even consider said request had it been a proper one.” (Doc.
# 28 at 24).

In response, Burke submits that he demanded

compensatory damages “from the beginning of this process.”
(Doc. # 29 9).
On balance, the Court finds that Burke abandoned his
request for reimbursement for ABA services.

In T.P. ex rel.

T.P. v. Bryan County School District, 792 F.3d 1284, 1292
(11th Cir. 2015), the court found that the parents of a
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disabled student abandoned a claim for compensatory damages
under the IDEA because the parents did not support or litigate
such claim.

The court explained:

We do not consider any claim the Parents might have
made for reimbursement for the psychological
assessment they obtained in December 2012 because
they
have
neither
adequately
presented
nor
supported with argument such a claim at any stage
of this litigation. In their opening brief on
appeal, the Parents request “reimbursement for the
independent
psychological
evaluation
they
obtained.” Yet they make no argument – let alone
argument accompanied by citation - as to why
reimbursement is appropriate . . . . This has been
the case throughout the litigation: the Parents
requested reimbursement in their request for a due
process hearing and in the complaint, but they did
so by way of isolated sentence fragments without
supporting argumentation or citation and without
ever alleging when or if they actually paid for the
December 17-18 psychological assessment. Perhaps
the Parents might have successfully prosecuted a
claim for reimbursement.
But because they have
failed to shoulder the burden of pressing any such
claim throughout the course of this litigation, we
do not address its merits.
Id. at 1292-93.
Here, after making a request for compensatory damages in
the Complaint, Burke never litigated or otherwise supported
the request for damages.

He has accordingly abandoned that

claim. See also NLRB v. McClain of Ga., Inc., 138 F.3d 1418
(11th Cir. 1998)(“[I]ssues raised in a perfunctory manner,
without supporting arguments and citations to authorities, are
generally deemed to be waived.”).
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The Court therefore dismisses the case.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

This case is dismissed consistent with the foregoing.

(2)

The Clerk is directed to enter JUDGMENT in favor of
Defendant and thereafter, CLOSE THIS CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this 2nd

day of March, 2018.

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