Donahue v. Kansas Board of Education et al

Filing 106

MEMORANDUM AND ORDER denying 101 Motion for Reconsideration and Motion for Certificate of Appealability. Signed by District Judge Carlos Murguia on 10/24/2018. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TONI R. DONAHUE,

)
)
Plaintiff,
)
)
v.
)
)
KANSAS BOARD OF EDUCATION, et al., )
)
Defendants.
)
)

Case No. 18-2012

MEMORANDUM AND ORDER
Plaintiff Toni R. Donahue filed this action pro se, for judicial review of a due process hearing
and subsequent administrative review involving her child’s school district, both of which were
conducted pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(f),
and Kansas law. In a Memorandum and Order dated June 20, 2018, this court dismissed nearly all of
the parties from this case and denied plaintiff’s request for a preliminary injunction (Doc. 79). Plaintiff
filed a Notice of Appeal of the denial of her request for injunctive relief (Doc. 80), and also requested
permission to file an interlocutory appeal of the court’s other rulings (Doc. 88) and moved to stay this
case pending appeal (Doc. 85). On August 1, 2018, this court denied plaintiff’s motions to stay and for
an interlocutory appeal (Doc. 95). The court also advised plaintiff that if she did not demonstrate a
legal basis for keeping defendant Lloyd Swartz in the case, the court would dismiss him as an improper
party. After more than fourteen days passed with no response filed by plaintiff, the court dismissed the
claims against defendant Swartz on August 27, 2018 (Doc. 97).
Plaintiff filed a motion to reconsider the court’s order denying a stay of proceedings (Doc.
101). In that same motion, she also requests that the court allow her to add an interlocutory appeal of
the court’s order dismissing defendant Swartz to her pending interlocutory appeal (although this court

1

declined to certify its previous order for interlocutory appeal; the court held in Doc. 95 that the only
proper question for interlocutory appeal is whether the court should have granted plaintiff a
preliminary injunction). To the extent that plaintiff is requesting certification of this court’s order
dismissing defendant Swartz, the court denies the request for the same reason it declined to certify its
previous order. (See Doc. 95 at 3.)
As for plaintiff’s motion to reconsider, the court also denies that request. First, plaintiff filed
her motion more than fourteen days after the court entered its order denying the stay. Her filing is
untimely under D. Kan. R. 7.3(b). But even if the court were to consider her motion on its merits,
plaintiff has not shown that she is entitled to relief based on (1) an intervening change in law; (2) new
evidence; or (3) “the need to correct clear error or prevent manifest injustice.” D. Kan. R. 7.3(b).
Plaintiff merely reargues why she believes that this court’s underlying order (Doc. 79) was incorrect
and must be appealed now. Plaintiff’s arguments are more targeted at why the court should have
certified its underlying order for interlocutory appeal than why the court should have granted stay of
the proceedings before this court. Plaintiff has not shown how the court’s order denying the stay
constituted clear error or would result in manifest injustice.
IT IS THEREFORE ORDERED that plaintiff’s Motion for Reconsideration for Motion to
Stay Proceedings (Doc. 101) is denied. To the extent that plaintiff is also seeking certification for an
interlocutory appeal of the court’s order dismissing defendant Swartz (Doc. 97), that request is denied.
Dated this 24th day of October, 2018, at Kansas City, Kansas.

s/ Carlos Murguia________________
CARLOS MURGUIA
United States District Judge

2