McKnight v. United States Department of Education of Civil Rights Office

Filing 75

ORDERED that Motion for Summary Judgment (ECF No. 67 ) is GRANTED. IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case. Signed by Judge Robert C. Jones on 4/24/2019. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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______________________________________
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TERRIA MCKNIGHT,
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Plaintiff,
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vs.
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LYON COUNTY SCHOOL DISTRICT,
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Defendant.
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3:17-cv-00015-RCJ-WGC
ORDER

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This case arises out of a school district’s alleged failure to properly accommodate a child

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with a learning disability. Pending before the Court is a motion for summary judgment.

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I.

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FACTS AND PROCEDURAL HISTORY
Plaintiff Terria McKnight’s original Complaint alleged violations of the Fifth, Eighth,

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and Ninth Amendments, § 504 of the Rehabilitation Act of 1973, and the Americans with

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Disabilities Act of 1990 (“ADA”). Plaintiff had filed a complaint with the U.S. Department of

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Education, Office for Civil Rights (“OCR”) on August 5, 2015, complaining that the Lyon

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County School District (“LCSD”) had failed to provide her son with a free appropriate public

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education (“FAPE”) by failing to provide him with an aide. She also complained of the way

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OCR handled her case. Upon screening under 28 U.S.C. § 1915, the Magistrate Judge issued a

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Report and Recommendation (“R&R”) to grant the application to proceed in forma pauperis,

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strike the prayer for damages against OCR under § 504, dismiss the § 504 and ADA claims with

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leave to amend, permit the retaliation claim to proceed, and dismiss the remaining claims with

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prejudice. The Court adopted the R&R.

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After the Magistrate Judge issued the R&R, but before the Court ruled, Plaintiff filed an

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amended complaint. The Court struck that pleading because there was no leave to file it.

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Immediately after the Clerk filed the Complaint pursuant to the screening order, Plaintiff filed a

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new Amended Complaint (“AC”) as of right. The Nevada Department of Education (“NDOE”),

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Will Jensen, and Marva Cleven moved to dismiss the AC. The Court granted the motion, with

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leave to amend in part. The Court dismissed the sixth cause of action (titled “doctrine of

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exhaustion”) as against all Defendants and dismissed any claims under 42 U.S.C. § 1983 as

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against NDOE, without leave to amend. The Court dismissed Lyon County as a Defendant in

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accordance with Plaintiff’s separately filed clarification.

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Plaintiff filed the Third Amended Complaint (“TAC”), listing three claims (§ 504 of the

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ADA, Title II of the ADA, and retaliation) against “Seattle Office of Civil Rights,” Linda

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Mangel, Tania Lopez, Paul Goodwin, Monique Malson, Caitlin Burks, Monique Malson

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(collectively, “Federal Defendants”), and NDOE. Mangel, Lopez, Goodwin, Burks, and Malson

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are attorneys for OCR, which Plaintiff refers to as “Seattle Office of Civil Rights.” Federal

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Defendants moved to dismiss based on sovereign immunity, improper service of process, and

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failure to state a claim. NDOE separately moved to dismiss for failure to state a claim. The

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Court dismissed as against Federal Defendants based on sovereign immunity and dismissed the

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claims against NDOE, with leave to amend the claim under § 504 and the ADA discrimination

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claim against NDOE and/or LCSD.

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Plaintiff filed the Fourth Amended Complaint (“4AC”), and the Court screened it under

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§ 1915, permitting the ADA discrimination claim to proceed, but dismissing the claim under

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§ 504. The remaining Defendant, LCSD, answered the ADA claim. Plaintiff asked the Court to

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clarify. She did not ask the Court to clarify the effect of the order or the procedural posture of

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the case but to answer a list of factual and legal questions. The Court denied the motion because

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addressing Plaintiff’s questions would have constituted an advisory opinion and undermined the

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Court’s impartial role. Plaintiff then asked the Court to reconsider dismissal of the § 504 claim,

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and the Court denied the motion as untimely. LCSD has moved for summary judgment against

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the remaining claim under the ADA.

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II.

LEGAL STANDARDS
A court must grant summary judgment when “the movant shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

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Civ. P. 56(a). Material facts are those which may affect the outcome of the case. Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there

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is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. A

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principal purpose of summary judgment is “to isolate and dispose of factually unsupported

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claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

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In determining summary judgment, a court uses a burden-shifting scheme. The moving

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party must first satisfy its initial burden. “When the party moving for summary judgment would

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bear the burden of proof at trial, it must come forward with evidence which would entitle it to a

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directed verdict if the evidence went uncontroverted at trial.” C.A.R. Transp. Brokerage Co. v.

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Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citation and internal quotation marks

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omitted). In contrast, when the nonmoving party bears the burden of proving the claim or

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defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate

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an essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving

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party failed to make a showing sufficient to establish an element essential to that party’s case on

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which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 323–24.

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If the moving party fails to meet its initial burden, summary judgment must be denied and

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the court need not consider the nonmoving party’s evidence. Adickes v. S.H. Kress & Co., 398

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U.S. 144 (1970). If the moving party meets its initial burden, the burden then shifts to the

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opposing party to establish a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the

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opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient

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that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’

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differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809

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F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary

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judgment by relying solely on conclusory allegations unsupported by facts. Taylor v. List, 880

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F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and

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allegations of the pleadings and set forth specific facts by producing competent evidence that

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shows a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324.

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At the summary judgment stage, a court’s function is not to weigh the evidence and

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determine the truth, but to determine whether there is a genuine issue for trial. Anderson, 477

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U.S. at 249. The evidence of the nonmovant is “to be believed, and all justifiable inferences are

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to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely

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colorable or is not significantly probative, summary judgment may be granted. Id. at 249–50.

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Notably, facts are only viewed in the light most favorable to the nonmoving party where there is

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a genuine dispute about those facts. Scott v. Harris, 550 U.S. 372, 380 (2007). That is, even if

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the underlying claim contains a reasonableness test, where a party’s evidence is so clearly

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contradicted by the record as a whole that no reasonable jury could believe it, “a court should not

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adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Id.

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III.

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ANALYSIS
LCSD notes that Plaintiff’s ADA claim is based on the alleged discrimination against her

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son by failure to provide him a FAPE, specifically, failure to provide him with audiobooks or a

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professional assistant rather than giving him help by reading with other children. LCSD first

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argues that Plaintiff failed to exhaust administrative remedies, which is a requirement under

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§ 1415(l) when the crux of the complaint is failure to provide a FAPE, no matter what statute is

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invoked. Fry v. Napolean Cnty. Sch. Dist., 137 S. Ct. 743, 754 (2017). In other words, if

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administrative remedies under § 1415(l) were not exhausted, the action may not proceed on a

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failure-to-provide-a-FAPE theory, even under the ADA. LCSD admits there have been three due

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process hearings but notes that none of those hearings involved any claim that a FAPE had been

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denied via the use of students to help Plaintiff’s son read instead of audiobooks or professional

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assistants.

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The Court declines to engage in a complex analysis of whether the ADA claim has been

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exhausted under § 1415(l), because the claim fails on the merits. LCSD has adduced evidence

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negating the allegation that Plaintiff’s son was denied the benefits of LCSD with respect to his

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reading development. During the 40-minute period after the lunch recess at issue, Plaintiff’s son

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was given reading instruction (as were other children) by being allowed to read silently, listen to

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audiobooks, or read aloud with other students, until Plaintiff requested that her son not be

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permitted to read aloud with other students, (Petersen Aff., ECF No. 67-4), at which point

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Plaintiff’s son was no longer permitted to read aloud with other students but would work with his

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special education teacher or listen to audiobooks during this time, (Berrington Aff., ECF No. 67-

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5). The student’s reading skill eventually progressed from the 57 percentile nationally in third

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grade to the 84 percentile nationally in sixth grade. (Cleven Aff., ECF No. 67-2; MAP Report,

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ECF No. 67-6).

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In opposition, Plaintiff adduces no contrary evidence—not even her own declaration—

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but argues that the MAP scores are not as pertinent as Nevada state standards and that her son

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ultimately failed Nevada’s SBAC test. But even assuming Plaintiff had adduced evidence to

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support these claims, in reply, LCSD notes that although Plaintiff’s son scored only 2400 of

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2432 points needed for English proficiency on his third-grade SBAC test, there is no evidence

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LCSD’s program of instruction has hindered his reading progress, and the evidence is in fact to

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the contrary. That is, by the time of his fifth-grade SBAC test, he scored “proficient” in English

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and in fact scored above the school, district, and state averages. (SBAC Reports, ECF Nos. 70-7

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to 70-8). The Court finds there is no genuine issue of material fact as to whether Plaintiff’s son

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was denied the benefits of LCSD’s educational resources.

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CONCLUSION

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IT IS HEREBY ORDERED that Motion for Summary Judgment (ECF No. 67) is

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GRANTED.

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IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case.

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IT IS SO ORDERED.

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Dated This 24th of of April, 2019.
Dated this 2nd daydayJanuary, 2019.

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_____________________________________
ROBERT C. JONES
United States District Judge

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