McKnight v. Lyon County School District

Filing 41

ORDER granting in part and denying in part Lyon County School District (LCSD)'s ECF No. 32 Motion for Summary Judgment; denying without prejudice LCSD's ECF No. 33 Motion on Plaintiff's Appeal of Administrative Decisions of Special Education Review Officers; granting LCSD's ECF No. 38 Motion to Strike, directing Clerk to strike Plaintiff's ECF No. 37 Supplementary Pleading; giving Defendant 30 days to file records from the administrative proceedings. Plaintiff to file opening brief within 30 days thereafter (see order for further details). Signed by Judge Miranda M. Du on 8/17/2017. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 9 TERRIA MCKNIGHT, PARENT OF JAREL MCKNIGHT, 10 Plaintiff, LYON COUNTY SCHOOL DISTRICT, Defendant. 13 14 ORDER v. 11 12 Case No. 3:15-cv-00614-MMD-VPC I. SUMMARY 15 Before the Court is Defendant Lyon County School District’s (“Defendant” or 16 “LCSD”) Motion for Summary Judgment (“Motion”) (ECF No. 32), Motion on Plaintiff’s 17 Appeal of Administrative Decisions of Special Education Review Officers (“Motion to 18 Affirm”) (ECF No. 33), and Motion to Strike Plaintiff’s Supplementary Pleading (“Motion 19 to Strike”) (ECF No. 38). The Court has reviewed Plaintiff’s response to Defendant’s 20 Motion and Motion to Affirm (ECF No. 35) and Defendant’s reply (ECF No. 36) as well as 21 all accompanying exhibits. Plaintiff also filed a supplementary pleading (ECF No. 37) 22 further opposing Defendant’s Motion and Motion to Affirm almost a month after filing her 23 initial response, which Defendant has now moved to strike. Because Plaintiff filed this 24 document without leave of court, the Court declines to consider it in ruling on Defendant’s 25 Motion and Motion to Affirm and will strike the supplement.1 26 27 28 1Pursuant to LR 7-2(g), a party is required to ask for leave of court before filing a supplementary pleading. The document Plaintiff filed includes the decision of a state hearing officer relating to events that transpired in the fall of 2016. More specifically, this administrative decision concerns a due process complaint Plaintiff filed after the start of this lawsuit, which is outside the scope of the claims brought in her complaint. 1 For the reasons discussed below, Defendant’s Motion is granted in part and denied 2 in part but without prejudice as to Count 4. Defendant’s Motion to Affirm is denied without 3 prejudice. Defendant’s Motion to Strike is granted. The Clerk is instructed to strike 4 Plaintiff’s supplementary pleading (ECF No. 37). 5 II. BACKGROUND 6 Plaintiff, Terria McKnight, proceeding pro se, asserts claims on behalf of her son, 7 Jarel (“Student”), against LCSD.2 Plaintiff filed her initial complaint on January 26, 2016.3 8 (ECF No. 4.) With leave of court, she filed her first amended complaint (“FAC”) (ECF No. 9 17) on June 16, 2016. (ECF No. 16.) 10 Student attends Yerington Elementary School in the Lyon County School District. 11 The claims in this case primarily concern Student’s individualized education program 12 (“IEP”) for the 2014-15 and 2015-164 school years5 and the process by which these plans 13 were developed. During the 2014-2015 school year, Student was eligible for special 14 education and related services based on a diagnosis of autism spectrum disorder. Under 15 the Individuals with Disabilities Education Act (“IDEA”), Student is entitled to an IEP that 16 17 18 19 20 21 22 23 24 25 26 27 28 2Plaintiff only listed and served LCSD as a proper defendant in this action. However, in the FAC she also lists nine other individuals as defendants. (ECF No. 17 at 2-3.) Because these individuals were not identified as defendants in the case caption of her complaint or her FAC—or in her application to proceed in forma pauperis (ECF No. 1) or civil cover sheet (ECF No. 1-2)—and because Plaintiff did not request summons for any of these individuals, the Court construes the claims in the FAC as against LCSD only. 3The allegations in the FAC concerning events that occurred after the filing of the initial complaint (see ECF No. 17 at 13-14) will not be considered in assessing the merits of Plaintiff’s claims because an amended complaint may not add facts that occurred after the date that the original complaint was filed. See Fresno Unified School Dist. v. K.U. ex rel. A.D.U., 980 F. Supp. 2d 1160, 1174 (E.D. Cal. 2013) (“An amended complaint under Rule 15(a) permits the party to add claims or to allege facts that arose before the original complaint was filed.”) (emphasis added). 4Claims brought under the Rehabilitation Act and IDEA for failure to provide an adequate FAPE (Counts 4 and 5) for the 2015-2016 school year will not be addressed based on Plaintiff’s failure to exhaust her administrative remedies until June 13, 2016— after the filing of the original complaint—when the state review officer issued its final decision regarding Plaintiff’s second due process complaint (see ECF No. 32-33). 5In the FAC, Plaintiff states that “[t]here was a period of inactivity during the 20132014 school year” and that no meetings or goals were set for Student during that school year. (ECF No. 17 at 4.) Because Plaintiff does not provide proof that she exhausted her claims regarding LCSD’s failure to meet the requirements of FAPE during the 2013-14 school year, the Court will not address claims for that school year. 2 1 complies with the requirements of a free appropriate public education (“FAPE”) under the 2 statute. See M.L. v. Fed. Way Sch. Dist., 394 F.3d 634, 642 (9th Cir. 2005). An IEP is an 3 educational program designed specifically for a student with a disability. 20 U.S.C. § 4 1414(d). FAPE is also required under Section 504 of the Rehabilitation Act of 1973 5 (“Section 504” or “Rehabilitation Act”), but the requirements for FAPE under Section 504 6 are not identical to those under IDEA. See Mark H. v Lemahieu, 513 F.3d 922, 933 (9th 7 Cir. 2008). For instance, where a school adopts a valid IDEA IEP, this is “sufficient but 8 not necessary” to satisfy Section 504’s FAPE requirements. Id. (citing 34 C.F.R. § 9 104.33(b)(2)). Pursuant to IDEA, if a parent believes her child’s IEP is inappropriate, they 10 may request an impartial due process hearing. Schaffer ex rel. Schaffer v. Weast, 546 11 U.S. 49, 51 (2005) (citing 20 U.S.C. § 1415(f)) (internal quotation marks removed). 12 Plaintiff filed a due process complaint for Student’s March, April, and May 2015 IEPs, 13 which was administratively exhausted by the time she filed suit on January 26, 2016. 14 Plaintiff asks for injunctive and compensatory relief as well as relief for emotional 15 distress, requesting damages in the amount of $5,952,004.80. (ECF No. 17 at 27.) She 16 also asks for a declaratory judgment that LCSD violated her and Student’s rights. (Id.) 17 III. MOTION FOR SUMMARY JUDGMENT 18 A. Legal Standard 19 The purpose of summary judgment is to avoid unnecessary trials when there is no 20 dispute as to the facts before the court. Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 21 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, 22 the discovery and disclosure materials on file, and any affidavits show “there is no genuine 23 issue as to any material fact and that the moving party is entitled to judgment as a matter 24 of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” if there 25 is a sufficient evidentiary basis on which a reasonable fact-finder could find for the 26 nonmoving party and a dispute is “material” if it could affect the outcome of the suit under 27 the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where 28 reasonable minds could differ on the material facts at issue, however, summary judgment 3 1 is not appropriate. See id. at 250-51. “The amount of evidence necessary to raise a 2 genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties' 3 differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th 4 Cir. 1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). 5 In evaluating a summary judgment motion, a court views all facts and draws all inferences 6 in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & 7 Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 8 The moving party bears the burden of showing that there are no genuine issues of 9 material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “In order 10 to carry its burden of production, the moving party must either produce evidence negating 11 an essential element of the nonmoving party’s claim or defense or show that the 12 nonmoving party does not have enough evidence of an essential element to carry its 13 ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd v. Fritz Cos., 14 Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party satisfies Rule 56’s 15 requirements, the burden shifts to the party resisting the motion to “set forth specific facts 16 showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving 17 party “may not rely on denials in the pleadings but must produce specific evidence, 18 through affidavits or admissible discovery material, to show that the dispute exists,” Bhan 19 v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply 20 show that there is some metaphysical doubt as to the material facts.” Orr v. Bank of Am., 21 NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). “The mere 22 existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient.” 23 Anderson, 477 U.S. at 252. 24 Mindful of the fact that the Supreme Court has “instructed the federal courts to 25 liberally construe the ‘inartful pleading’ of pro se litigants,” Eldridge v. Block, 832 F.2d 26 1132, 1137 (9th Cir. 1987) (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per 27 curiam)), the Court will view Plaintiff’s pleadings with the appropriate degree of leniency. 28 /// 4 1 2 B. Discussion 1. Count 16 3 Count 1 of the FAC alleges that Plaintiff’s and her son’s rights under the First, 4 Fourth, Sixth, Eighth, and Ninth Amendments, and Article VI Section II of the Constitution 5 were violated. (ECF No. 17 at 14-15.) Preliminarily, there is no Section II to Article VI of 6 the United States Constitution. Therefore, the Court only considers the First, Fourth, 7 Sixth, Eighth, and Ninth Amendment claims.7 8 Plaintiff contends that her First Amendment rights were violated when “during the 9 first hearing [she] was restricted from giving testimony as to the facts of the case by not 10 being able to fully speak about the issues” and “during [the] second hearing [she] was not 11 allowed to quote laws that she felt were relevant to the facts of the case.” (ECF No. 17 at 12 14.) These claims appear to be against the hearing officers, who are not named as 13 defendants in this action. Therefore, the Court grants summary judgment in favor of 14 Defendant on this claim. 15 Plaintiff contends that her and/or her son’s Fourth Amendment rights were violated 16 when an autism specialist at LCSD conducted an observation of Student without Plaintiff’s 17 consent and also when LCSD permitted the local newspaper to take Student’s photo and 18 post his personally identifiable information in the paper without Plaintiff’s consent. (ECF 19 20 21 22 23 24 25 26 27 28 6Defendant argues that because Plaintiff failed to oppose Defendant’s Motion on Counts 1, 5, 6, 8 (ECF No. 17 at 22), 8 (id. at 24), 9 (id. at 23), 9 (id. at 24), 10, 11, 12, 17 and 18, these claims are waived. (ECF No. 36 at 7-8.) The Court disagrees. When a party fails to oppose a party’s argument that there is no genuine dispute of material facts on a particular claim and the party is entitled to judgment as a matter of law, the moving party must still meet its burden under Rule 56. See Local Rule 7-2(d) (emphasis added) (“[t]he failure of an opposing party to file points and authorities in response to any motion, except a motion under Fed. R. Civ. P. 56[,] . . . constitutes consent to the granting of the motion”); see also Henry v. Gill Industries, Inc., 983 F.2d 943, 950 (9th Cir. 1993) (citing Hibernia Nat’l Bank v. Administracion Central Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985)) (finding that where a party fails to oppose a motion for summary judgment, the motion should not be granted unless the moving party meets its burden under Rule 56 of showing that there are no genuine issues of material fact requiring a trial). 7There is no direct cause of action under the United States Constitution; instead a plaintiff must bring suit using the federal civil rights statute, 42 U.S.C. § 1983, and invoke the Fourteenth Amendment when bringing claims against state officials. Because Plaintiff is pro se, the Court will construe her claims as being brought under § 1983 and the Fourteenth Amendment. 5 1 No. 17 at 14-15.) The purpose of the Fourth Amendment is to safeguard the privacy and 2 security of individuals against arbitrary invasions by government officials. Michigan v. 3 Tyler, 436 U.S. 499, 504 (1978) (internal citation omitted). Because a newspaper 4 employee took the photograph (i.e., conducted the search/invaded Student and/or 5 Plaintiff’s privacy), and there is no allegation that the newspaper employee was a 6 government official, the Fourth Amendment does not apply to Plaintiff’s claim about the 7 photograph. Regarding Plaintiff’s claim concerning observation of her son for educational 8 purposes, because Student had already qualified for FAPE (see ECF No. 17 at 4 (stating 9 that the first IEP was implemented May 27, 2013)), the specialist’s routine observation of 10 Student for purposes of evaluating Student does not fall within the province of an 11 unreasonable search under the Fourth Amendment. Moreover, Plaintiff does not allege 12 that her son had a reasonable expectation of privacy concerning evaluations by LCSD for 13 his educational needs.8 Therefore, the Court grants summary judgment in favor of 14 Defendant on this claim. 15 Plaintiff contends that her Sixth Amendment rights were violated because she 16 should have been informed as to the reason the observation was conducted, because 17 she was denied the ability to confront witnesses during the first resolution meeting, and 18 because she was not presented with appropriate legal information from LCSD that would 19 have allowed her to obtain a lawyer who specialized in education law. (See ECF No. 17 20 at 15.) The Sixth Amendment applies only to criminal prosecutions. U.S. C ONST. amend. 21 VI (stating that the provisions apply “in all criminal prosecutions”). Therefore, summary 22 judgment is granted in favor of Defendant on this claim. 23 Plaintiff contends she was subjected to cruel and unusual punishment in violation 24 of the Eighth Amendment when “the hearing officer used a law from 1870 to say that 25 nothing has to be proven” so as to punish Plaintiff for filing her due process complaint. 26 (ECF No. 17 at 15.) The Eighth Amendment’s prohibition against cruel and unusual 27 claim is more properly asserted as a potential violation of Plaintiff’s rights under Section 504 of the Rehabilitation Act. 8The 28 6 1 punishment applies only to convicted prisoners. See, e.g., Solem v. Helm, 463 U.S. 277, 2 284 (“The [cruel and unusual punishment] clause prohibits not only barbaric punishments, 3 but also sentences that are disproportionate to the crime committed”). Therefore, as this 4 is not a legally cognizable claim, the Court grants summary judgment in favor of 5 Defendant. 6 Finally, Plaintiff contends that under the Ninth Amendment LCSD denied her son’s 7 right to an appropriate education. Plaintiff cites no case law establishing that the Ninth 8 Amendment guarantees individuals a right to an appropriate education. Moreover, the 9 Ninth Amendment does not independently create a constitutional right for purposes of 10 stating a claim. Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991) (citing 11 Strandberg v. City of Helena, 791 F.2d 744 (9th Cir. 1986)). Instead, the Amendment is 12 “simply a rule about how to read the Constitution.” San Diego Cnty. Gun Rights Comm. 13 v. Reno, 98 F.3d 1121, 1125 (9th Cir. 1996) (internal citation omitted). Therefore, as 14 Plaintiff has not stated a legally cognizable claim, summary judgment is granted to 15 Defendant on this claim. 16 17 In sum, Defendant’s Motion is granted as to Count 1. 2. Count 2 18 Count 2 alleges that LCSD violated the No Child Left Behind Act (“NCLB”), 20 19 U.S.C. § 6301 et seq., because LCSD failed to provide Plaintiff with the qualifications of 20 Student’s teachers, failed to give Plaintiff information on the level of achievement of 21 Student in each area of the state academic assessment, failed to provide a MAPS 22 assessment chart formatted in a manner that Plaintiff could understand, and failed to 23 update Plaintiff about the progress Student made in meeting skills needed to achieve 24 state standards. (ECF No. 17 at 16.) However, NCLB does not provide for a private right 25 of action. See Horne v. Flores, 557 U.S. 433, 456 n.6 (2009) (“NCLB is enforceable only 26 by the agency charged with administering it.”) Therefore, Plaintiff does not have a legally 27 cognizable claim under NCLB. 28 Summary judgment is granted in favor of Defendant on Count 2. 7 1 3. Count 3 2 Count 3 alleges that LCSD violated the Federal Educational Rights and Privacy 3 Act (“FERPA”), 20 U.S.C. § 1232g, because it allowed a newspaper photographer to take 4 a photograph of Student without Plaintiff’s consent. (ECF No. 17 at 26-27.) However, 5 there is no private right of action under FERPA. Gonzaga Univ. v. Doe, 536 U.S. 273, 287 6 (2002) (“FERPA’s nondisclosure provisions fail to confer enforceable rights”); see also 7 Coningsby v. Oregon Dep’t of Ed., No. 3:16-cv-00627-HZ, 2016 WL 4844078, at *7 (D. 8 Or. Sept. 13, 2016) (dismissing FERPA claims because the statutory scheme does not 9 create a private right of action). Therefore, Plaintiff does not have a legally cognizable 10 claim under FERPA. 11 Summary judgment is granted in favor of Defendant on Count 3. 12 4. Count 4 13 In order to bring a claim for LCSD’s failure to implement a FAPE for Student 14 pursuant to the requirements of Section 504, Plaintiff was required to exhaust her 15 administrative remedies pursuant to the administrative procedures outlined in IDEA. See 16 Fry v. Napoleon Community Schools, 137 S. Ct. 743, 746-47 (2017) (holding that a 17 plaintiff bringing suit under the Rehabilitation Act for a denial of FAPE must first exhaust 18 IDEA’s administrative procedures). Therefore, the Court will address this count in its 19 discussion of Defendant’s Motion to Affirm below. 20 5. Count 9 (ECF No. 17 at 23) 21 In Count 9,9 Plaintiff claims that LCSD violated the federal trademark infringement 22 statute, 15 U.S.C. § 1125, by allowing a local newspaper to take photos of Student without 23 notifying her. (ECF No. 17 at 23-24.) However, there is no registered trademark identified 24 in the FAC or Plaintiff’s response, nor are there allegations that any trademark owned by 25 Plaintiff was infringed. 26 /// 27 28 9There is a Count 9 listed on page 23 as well as a Count 9 listed on page 24. 8 1 2 The Court therefore grants summary judgment in favor of Defendant on this Count. 6. Count 14 3 In Count 14, Plaintiff alleges that LCSD violated the anti-retaliation provisions of 4 the Americans with Disability Act (“ADA”) by refusing to provide Plaintiff with copies of 5 relevant records used to determine services for Student on the basis that such records 6 were copyright protected and could only be viewed by Plaintiff at school, and by refusing 7 to communicate through email with Plaintiff regarding Student’s IEP. (ECF No. 17 at 25.) 8 Plaintiff states that she informed LCSD that she had a disability but the school failed to 9 accommodate her requests. (Id.) 10 Defendant points out in their Motion that Plaintiff has not made out a prima facie 11 case of retaliation. (ECF No. 32 at 24.) In the Ninth Circuit, the Title VII burden-shifting 12 framework is applied to retaliation claims under the ADA. See Brown v. Tucson, 336 F.3d 13 1181, 1186-87 (9th Cir. 2003); see also Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1121 (9th 14 Cir. 2000) (en banc) (“we join our sister circuits in adopting Title VII retaliation framework 15 for ADA retaliation claims”), vacated on other grounds in U.S. Airways, Inc. v. Barnett, 16 535 U.S. 391 (2002). Under this framework, a plaintiff must make out a prima facie case 17 that she was engaged in protected activity, that she suffered an adverse action, and that 18 there was a causal link between the two. Brown v. City of Tucson, 336 F.3d 1181, 1192 19 (9th Cir. 2003). Once the plaintiff makes a prima facie showing, the burden shifts to the 20 defendant “to articulate some legitimate, nondiscriminatory reason” for the adverse 21 action. McConnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the defendant 22 presents a legitimate and nondiscriminatory reason for the adverse action, then the 23 plaintiff must produce specific, substantial evidence that the defendant’s proffered reason 24 is pretextual. Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994). 25 The Court finds that Plaintiff has made out a prima facie claim for retaliation but 26 that Defendant has offered legitimate, nondiscriminatory reasons for the adverse actions 27 and that Plaintiff failed to rebut these reasons through specific and substantial evidence. 28 From the FAC, the Court is able to reasonably infer that the protected activity Plaintiff 9 1 allegedly engaged in was filing due process complaints on behalf of her son, 10 that the 2 adverse actions she suffered were LCSD’s refusal to provide copies to her of a test11 3 Student had taken or to engage in an IEP review meeting via email with Plaintiff, and that 4 the adverse actions were a result of Plaintiff’s filing due process complaints. 5 Defendant offers legitimate reasons to explain the adverse actions. Defendant 6 asserts that the reason for refusing to provide a photocopy of the particular test requested 7 by Plaintiff is based on LCSD’s obligation to comply with copyright protections for the test. 8 (ECF No. 32 at 25.) More specifically, the company that created the test stated that under 9 its terms and conditions for the sale and use of their products, the company does not 10 permit “the making and giving of copies of test materials to students or their parents or 11 guardians.” (ECF No. 32 at 26; ECF No. 32-39 at 2-3.) LCSD also points to FERPA 12 regulations that state that a test protocol separate from the sheet on which a student 13 records his answers and which does not contain personally identifiable information would 14 not be part of a student’s education records and therefore not subject to the disclosure 15 requirements under FERPA. (ECF No. 32-38 at 3 (citing 34 C.F.R. § 99.3 and 64 Fed. 16 Reg. 12606, 12641 (March 12, 1999) (Analysis)).) LCSD also asserts that the reason for 17 refusing to conduct IEP meetings through email is that email-only participation would limit 18 collaboration by members of the IEP team. (ECF No. 32 at 26.) The special education 19 director sent Plaintiff a letter stating that the reason for LCSD’s position that IEP meetings 20 needed to occur in person was that “communication through e-mail does not provide an 21 22 23 24 25 26 27 28 10Defendant argues that Plaintiff has not actually alleged an adverse action as failure to provide a parent with photocopies of a test or to communicate solely via email for purposes of her child’s IEPs while affording Plaintiff other opportunities to accommodate her disability, would not be reasonably likely to deter a parent from requesting due process hearings in the future. (ECF No. 32 at 24.) Given that Plaintiff filed a supplementary pleading regarding a due process complaint filed after these allegedly adverse actions occurred, the Court agrees with Defendant that offering other accommodations to Plaintiff instead of sending copies of tests or performing IEP meetings via email chain did not actually deter Plaintiff from her protected activity. However, because Plaintiff is pro se, the Court will assume she has made out a prima facie case of retaliation and dispose of the claim at the next step of the analysis. 11Plaintiff also vaguely refers to other “documents” in the FAC that LCSD failed to provide her with copies of which she then attempts to identify in her opposition. (ECF No. 17 at 26.) 10 1 opportunity for the IEP team, including the parent, to engage in the discussions that 2 Congress contemplated when requiring IEP teams to meet and requiring that parents be 3 afforded an opportunity to participate in the meeting.” (ECF No. 32 at 26-27; ECF No. 32- 4 17 at 2.) LCSD also offered Plaintiff other dates and times to hold the IEP meeting, offered 5 Plaintiff the opportunity to attend the meetings via teleconference as well as to tape record 6 the meetings so that Plaintiff could view them at home, and offered to provide Plaintiff 7 with a draft IEP prior to the IEP meeting. (ECF No. 32 at 27; ECF No. 32-17 at 3; ECF N. 8 32-18 at 4.) 9 In response to Defendant’s proffered reasons for refusing Plaintiff’s requests, 10 Plaintiff makes unrelated claims12 and fails to identify specific or substantial evidence 11 demonstrating that LCSD’s reasons were pretextual. Regarding the failure of LCSD to 12 provide a copy of the test, the only evidence offered by Plaintiff13 is her statement that 13 she has received copies of other tests in the past. (ECF No. 35 at 11.) However, Plaintiff 14 does not state that the tests she previously received were created by the same company 15 that barred LCSD from making copies. With regards to LCSD’s failure to allow Plaintiff to 16 participate in IEP meetings via email, Plaintiff states that the hearing transcripts prove 17 LCSD failed to provide prior written notice before the meeting about the contents of the 18 meeting. (See id. at 12-13.) Beyond the fact that Plaintiff does not clearly identify what 19 transcripts she is referring to, her statement does not address whether LCSD’s reason 20 for declining to have IEP meetings via email was pretextual; rather this addresses whether 21 22 23 24 25 26 27 28 12For instance, Plaintiff claims that “LCSD did not have a legitimate reason for refusing to send parent detailed statement in reference to Jarels [sic] needs in areas of academics, developmental and Jarels [sic] functional needs.” (ECF No. 35 at 11.) However, in the FAC Plaintiff did not claim that a failure to receive statements about her son’s needs was an act of retaliation. Rather, the FAC vaguely stated that “District stated that test was copyright protected and that Parent could only view and inspect documents at school.” (ECF No. 17 at 26.) Therefore, Plaintiff may not bring up new allegations that Defendant did not have notice of from the FAC. 13Plaintiff also references the final decision of State Review Office Merced. (ECF No. 35 at 11.) That decision found that Plaintiff was not denied meaningful participation in the IEP meetings when Defendant declined to have IEP meetings by email and that Defendant’s refusal to make a copy of the Student’s test was permissible (id. at 129, 131), so it is unclear why Plaintiff cites it as support for her contention Defendant’s reasons for the two acts of retaliation were pretextual. 11 1 LCSD complied with a particular requirement under IDEA. Plaintiff also makes unrelated 2 allegations when stating that the Department of Education Office of Civil Rights failed to 3 conduct a proper investigation of her complaint, purporting that hearing officers retaliated 4 against her, identifying a proffered settlement agreement from LCSD that she declined to 5 sign because it would have required her to waive her right to bring future complaints 6 against LCSD, and complaining of other failures of LCSD that occurred after she filed the 7 original complaint. (See id. at 11-14.) As a result, Plaintiff has failed to meet her burden 8 of showing that Defendant’s proffered reasons are a pretext for retaliation. 9 The Court therefore grants summary judgment in favor of Defendant on Count 14. 10 7. Count 15 11 In Count 15, Plaintiff alleges that there was a conspiracy to commit fraud because 12 LCSD manipulated Student in order to say that Student did not have autism,14 which was 13 meant to cause damage to Student. (ECF No. 17 at 26.) In their Motion, Defendant argues 14 that this count fails because there is no underlying action for fraud in the FAC. (ECF No. 15 32 at 28.) Under Nevada law, an actionable civil conspiracy to commit and aid fraud claim 16 exists where there is an agreement between two or more persons who intend to 17 accomplish an unlawful objective for the purpose of harming another, an overt act of fraud 18 in furtherance of the conspiracy, and resulting damages to the plaintiff. Jordan v. State 19 ex rel. Dep’t of Motor Vehicles and Pub. Safety, 110 P.3d 30, 51 (Nev. 2005). In addition, 20 Nevada law requires as a predicate to an action for conspiracy to defraud that there be 21 an underlying cause of action for fraud. Id. In her response, Plaintiff does not address 22 Defendant’s argument concerning Count 15 and the failure of the FAC to present a 23 separate count for fraud. Instead, Plaintiff merely states that she “believes the signatures 24 on the IEP document shows [sic] the conspiracy agreement.” (ECF No. 35 at 18.) It is 25 unclear to the Court which IEP document she is referring to. Moreover, Plaintiff’s 26 statements that the overt acts of conspiracy were the lack of full attendance at an IEP 27 14It 28 is unclear from the FAC whether the allegations concerning this count occurred before or after the filing of the original complaint. (See ECF No. 17 at 13.) 12 1 meeting—once again, Plaintiff fails to state what IEP meeting she is referring to—and the 2 withholding of information about Student’s “stereotypy and communication needs” do not 3 amount to authenticated facts for purposes of summary judgment, as Plaintiff does not 4 cite to any evidence in support of these claims. (Id.) Because Plaintiff has failed to put 5 forward any authenticated facts demonstrating an underlying cause of action for fraud, an 6 overt act of fraud, or any facts concerning who LCSD conspired with, the Court grants 7 summary judgment in favor of Defendant on Count 15. 8 8. Count 16 9 In Count 16, Plaintiff cites the federal sentencing guidelines to argue that Director 10 Frankie McCabe and other IEP team members used their position to manipulate the team, 11 deny Plaintiff email communications about Student’s IEP, and deny Plaintiff copies of 12 Student’s educational records. (ECF No. 17 at 26.) The federal sentencing guidelines are 13 used by federal judges to determine the appropriate prison sentence after a conviction is 14 rendered in a criminal case. Therefore, Plaintiff’s claim in her response that “the federal 15 sentencing statutes are applicable” here (ECF No. 35 at 18) is legally incorrect. 16 Therefore, the Court grants summary judgment in favor of Defendant on Count 16. 17 9. Remaining Counts 18 Defendant moves for summary judgment on Counts 6, 8 (ECF No. 17 at 22), 8 (id. 19 at 24), Count 9 (id. at 24), 10, 11, 12,15 17,16 and 18 based on the fact that none of these 20 counts present legally cognizable claims. Instead, Plaintiff cites to case law—primarily 21 /// 22 23 24 25 26 27 28 15In Count 12, Plaintiff cites to a Ninth Circuit case, Mark H. v. Hamamoto, 620 F.3d 1090 (9th Cir. 2010), to claim that LCSD acted with deliberate indifference in violating Section 504, which entitles her to compensatory damages. However, Count 4 specifically asserts a cause of action under Section 504. Therefore, the Court construes Count 12 as a legal theory advanced in support of Count 4 and not as a distinct cause of action. 16Plaintiff cites Supreme Court case law, Bd. Of Ed. Of the Hendrick Hudson Cent. Sch. Dist., Weschester Cnty. v. Rowley, 458 U.S. 176 (1982), to identify the two-prong test used when determining if a school has violated the requirements of FAPE under IDEA. Because Count 5 addresses Plaintiff’s claim that LCSD violated IDEA, the Court construes Count 17 as a legal theory advanced in support of Count 5 and not a distinct cause of action. 13 1 case law from courts other than the Ninth Circuit Court of Appeals17—to assert various 2 legal theories as to why Defendant failed to comply with the requirements of IDEA and 3 the Rehabilitation Act as well as theories of recovery under both statutes. The Court 4 agrees with Defendant that none of these counts presents a legally cognizable cause of 5 action. (See ECF No. 32 at 22.) 6 Therefore, the Court grants summary judgment to Defendant on these eight 7 counts. 8 IV. MOTION TO AFFIRM18 9 The original complaint in this action was filed on January 16, 2016. (ECF No. 1). 10 As a result, this Court may address only those claims under Section 504 and IDEA related 11 to the March, April, and May 2015 IEPs that were administratively exhausted on 12 November 16, 2015, when the State Review Officer (“SRO”) issued its Final Decision. 13 (See ECF No. 32-31.) 14 In Defendant’s Motion to Affirm, they point out that the relevant statute requires 15 that this Court receive the records from the administrative proceedings, 20 U.S.C. § 16 1415(i)(C), and that the FAC fails to state specifically what portion of the SRO’s Interim 17 Partial Decision and Final Decisions19 are being appealed or the basis for the appeal 18 (ECF No. 33 at 3-4.) This Court does not have the records from the administrative 19 proceedings that led to Plaintiff’s claims, including records and transcripts relating to the 20 impartial hearing officer’s initial decision on September 17, 2015, the SRO’s Interim 21 Partial Decision on October 30, 2015, and the SRO’s Final Decision on November 16, 22 23 24 25 26 27 28 17Specifically, Plaintiff cites to case law from the Third Circuit, District of Hawaii, Middle District of Pennsylvania, District of Alaska, District of Maine, the Eighth Circuit, the Western District of Pennsylvania, and a Pennsylvania state court. 18The Motion to Affirm addresses only Count 5 of the FAC, in which Plaintiff alleges that LCSD committed violations of IDEA. However, in light of the Supreme Court’s decision in Fry, 137 S. Ct. 743 (2017), which was issued after Defendant filed its Motion for Summary Judgment and Motion to Affirm, the Court will also address Count 4 in this section. 19The SRO issued an interim partial decision on October 30, 2015, as to the first two issues on appeal. The SRO issued its final decision as to the remaining three issues. 14 1 2015. For this reason and in light of Plaintiff’s pro se status, the Court denies Defendant’s 2 request to affirm the SRO’s decisions but does so without prejudice. Defendant is directed 3 to file copies of the administrative records from each administrative proceeding. Plaintiff 4 is then directed to file a brief pointing out what portions of the SRO’s Interim Partial and 5 Final Decisions she is appealing and on what grounds, to which Defendant may then 6 respond. 7 V. CONCLUSION 8 The Court notes that the parties made several arguments and cited to several 9 cases not discussed above. The Court has reviewed these arguments and cases and 10 determines that they do not warrant discussion as they do not affect the outcome of the 11 motions addressed in this Order. 12 It is therefore ordered that Lyon County School District’s Motion for Summary 13 Judgment (ECF No. 32) is granted in part and denied in part. It is denied without prejudice 14 as to Count 4 and is granted as to all other counts. 15 It is also ordered that Lyon County School District’s Motion on Plaintiff’s Appeal of 16 Administrative Decisions of Special Education Review Officers (ECF No. 33) is denied 17 without prejudice pending this Court’s review of the relevant administrative records and 18 supplemental briefs. 19 It is further ordered that Lyon County School District’s Motion to Strike (ECF No. 20 38) is granted. The Clerk is instructed to strike Plaintiff’s supplementary pleading (ECF 21 No. 37) from the record. 22 Defendant has thirty (30) days to file the records from the administrative 23 proceedings as discussed above. Plaintiff has thirty (30) days from the date the 24 administrative records are filed to file her opening brief. Defendant has thirty (30) days to 25 respond. Plaintiff then has fifteen (15) days to file her reply. The opening brief and 26 response are limited to fifteen (15) pages, and the reply is limited to ten (10) pages. 27 /// 28 /// 15 1 2 Plaintiff’s failure to file an opening brief within the allocated time period will result in summary judgment being granted in favor of Defendant on Counts 4 and 5. 3 4 DATED THIS 17th day of August 2017. 5 6 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

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