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B.H. v. Johnston County Board of Education

United States District Court, E.D. North Carolina, Western Division

March 19, 2015

B.H., by his parents T.H. and J.H., T.H., and J.H., Plaintiffs,


JAMES E. GATES, Magistrate Judge.

In this action, plaintiffs B.H., a minor, through his parents T.H. and J.H., and T.H. and J.H., individually (collectively "plaintiffs"), assert that defendant Johnston County Board of Education ("the Board") failed to provide B.H. with a free and appropriate education ("FAPE") pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. ("IDEA").[1] The case is before the court on the parties' respective amended[2] cross-motions for judgment as a matter of law on the administrative record. (D.E. 95, 97). Specifically, plaintiffs seek review of unfavorable decisions rendered on their IDEA claims by both an administrative law judge ("ALJ") in the North Carolina Office of Administrative Hearings ("OAH") and a State Review Officer ("SRO") (collectively the "hearing officers"). ( See D.E. 65 at 541-609 (ALJ decision); D.E. 66 at 114-51 (SRO decision)).[3] The amended motions have been briefed[4] and were referred to the undersigned Magistrate Judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). ( See 1st Public D.E. dated 3 Sept. 2014). In addition to the merits of plaintiffs' claims, this case presents two preliminary matters relating to the scope of this proceeding-a request by the Board to strike portions of plaintiffs' amended complaint and a possible challenge by plaintiffs to the lawfulness of the SRO level of review. For the reasons set forth below, the court will deny the request to strike; hold that the issue of the lawfulness of the SRO level of review has not been brought before the court; and deny the pending amended motions without prejudice as moot pending submission of second amended motions for judgment, proposed findings of fact and conclusions of law, and new briefs fully addressing plaintiffs' claims.


In their amended complaint (D.E. 11), plaintiffs assert three claims relating to their contention that the Board denied B.H. a FAPE:

(1) the Board failed to implement material elements of B.H.'s individualized educational programs ("IEP's") throughout the 2010-11 school year (Am. Compl. ¶¶ 115-17), including those related to educational placement ( id. ¶ 115(a)-(d)), the provision of various supplementary aids and services ( id. ¶ 116(a)-(c)), and the provision of a certified teacher to deliver classroom instruction ( id. ¶ 117);
(2) the Board failed to educate B.H. in the least restrictive environment ("LRE") throughout the 2010-11 school year ( id. ¶¶ 118-21); and
(3) the Board's superintendent violated the procedural requirements of the IDEA when he unilaterally directed B.H.'s IEP team to change his placement to homebound services on 29 March 2011 ( id. ¶¶ 122-24).[5]

Plaintiffs seek "all appropriate relief available" under the IDEA ( id. ¶ 147(e)), including specifically: compensatory education for a period of three years in an amount and frequency sufficient to remedy the regression or other harm to B.H. as a result of the educational time lost during the 2010-11 school year due to the failure of the Board to implement his IEP's and provide a FAPE ( id. ¶¶ 127, 147(c)); a prospective injunction requiring the Board to fund a private educational program for B.H. ( id. ¶ 128); reimbursement for the costs of B.H.'s private educational program and services from 29 March 2011 until such time as the Board offers plaintiffs an IEP to which B.H.'s parents agree ( id. ¶¶ 137-38, 147(b)(i)-(iv)); an order directing that B.H.'s current private educational program remain as his placement ( i.e., his "stay put"[6] placement) pursuant to 20 U.S.C. § 1415(j) until modified by court order or by agreement of the parties ( id. ¶¶ 139-40, 147(b)(v)); attorneys' fees and costs ( id. ¶¶ 141-46, 147(d)); and a declaratory judgment stating that the Board failed to provide a FAPE for the 2010-11 school year, the current homebound IEP fails to provide a FAPE in the LRE, and plaintiffs' private educational program is and continues to be appropriate ( id. ¶ 147(a)).


I. The Board's Request to Strike Portions of Plaintiffs' Amended Complaint

In its answer to the amended complaint, the Board objects that certain allegations should be stricken pursuant to Rule 12(f) "because they are beyond the scope of the official administrative record on appeal." ( See, e.g., Ans. to Am. Compl. ¶ 11). The Board references these objections in a footnote in its supporting memorandum and "requests that [the allegations] be stricken from the record." (Bd.'s Mem. 3 n.2). The Board nowhere provides a listing of the allegations in question or any argument in support of its request to strike them.

The Board's casual request falls far short of meeting the requirements for motions in this court. See Local Civ. Rule 7.1, E.D. N.C. Indeed, the court does not deem the request a motion at all, effective to bring the matter before the court for resolution. To the extent that the request is deemed a motion, it is DENIED for defective form and lack of support.

II. Lawfulness of the SRO Level of Review

In their amended motion, plaintiffs assert that they are entitled to a declaratory judgment that North Carolina's two-tiered system of review is not authorized by the IDEA. Specifically, they assert that:

the [SRO]'s decision... was unauthorized under 20 U.S.C. § 1415(g), and is therefore entitled to no weight in these proceedings, because an administrative appeal is only available under IDEA where a local educational agency ["LEA"] conducts the due process hearing and there is no genuine dispute that the due process hearing in this case was not conducted by a[n] [LEA].

(Pls.' Mot. ¶ 8). In other words, plaintiffs contend that the IDEA does not permit an appeal to the SRO ( i.e., the state educational agency, or "SEA") since the due process hearing was conducted not by the Board ( i.e., the LEA), but rather by the OAH.

While plaintiffs raised this issue before both the ALJ and the SRO, unsuccessfully, [7] they did not include this claim in the amended complaint in the instant action. Accordingly, the ...

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