Oskowis v. Sedona Oak-Creek Unified School District

          ORDER

          DOMINIC W. LANZA UNITED STATES DISTRICT JUDGE

         Pending before the Court is an amended motion for attorneys' fees filed by Defendant Sedona Oak-Creek Unified School District #9 (“the District”) (Doc. 124) and a motion to review taxation of costs filed by Plaintiff Matthew Oskowis (Doc. 129). For the following reasons, both motions will be granted in part and denied in part.

         BACKGROUND

         Oskowis is the father of E.O., a minor diagnosed with infantile autism. Because E.O. suffers from an intellectual disability, he is entitled to a free appropriate public education (“FAPE”) as guaranteed by the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq. This case arises from three administrative proceedings that were initiated when Oskowis filed due process complaints with the Arizona Department of Education, each arguing that E.O. had been denied a FAPE.

         Oskowis filed those due process complaints between June 2016 and March 2017, initiating administrative proceedings 16C-DP-066-ADE, 17C-DP-013-ADE, and 17C-DP-053-ADE. In each of those proceedings, the respective administrative law judge (“ALJ”) dismissed Oskowis's complaint without a hearing, determining that the complaint was frivolous.

         On April 13, 2017, Oskowis filed this lawsuit. (Doc. 1.) The operative complaint asserted three causes of action, each corresponding to one of the administrative proceedings. (Doc. 17.) Oskowis claimed that the ALJs erred in dismissing his due process complaints. (Id.)

         On June 22, 2018, the District moved for summary judgment on all three causes of action. (Doc. 68.)

         On February 19, 2019, the Court granted summary judgment in favor of the District. (Doc. 77.)

         On August 22, 2019, the District filed an amended motion for attorneys' fees. (Doc. 124.)

         On August 28, 2019, Oskowis filed a motion to review taxation of costs. (Doc. 129).

         DISCUSSION

         I. The District's Motion For Attorneys' Fees

         The District seeks attorneys' fees incurred while defending the action in this Court and while pursuing the pending request for attorneys' fees. It does not, in contrast, seek any fees arising from its defense of the three administrative proceedings. Nevertheless, because the administrative proceedings are relevant to understanding Oskowis's causes of action in this case, the Court reviews them below.

         A. Oskowis's Causes Of Action

         1. Cause Of Action I: 17C-DP-013-ADE

         Cause of Action I arose from administrative proceeding 17C-DP-013-ADE, which Oskowis initiated on September 1, 2016 by filing a due process complaint. (Doc. 17 ¶ 36.) Oskowis argued the District denied E.O. a FAPE by (1) failing “to monitor [E.O.'s] progress against the annual goals & objectives of [his] IEP [individualized education program] [and] their corresponding STOs [short term objectives]” and (2) failing “to engage the IEP Team to revise the IEP to address the lack of expected progress of [E.O.] toward those STOs.” (Id. ¶ 38.)

         The ALJ dismissed Oskowis's due process complaint on March 10, 2017. (Doc. 75-1 at 2-6.) The ALJ's order concluded: “Petitioners' Complaint fails as a matter of law and should be dismissed as the claims therein are not supported by the IDEA or its regulations. Given the [rejection of the same argument in past proceedings] and the lack of any support in the IDEA or its regulations on this claimed issued, the Petitioners' instant Complaint is deemed to be frivolous.” (Doc. 75-1 at 6.)^[1]

         This Court subsequently granted summary judgment in favor of the District on Cause of Action I, determining that the ALJ had properly rejected each of Oskowis's claims in that proceeding. (Doc. 77.) The Court rejected Oskowis's first claim-that the District had failed to monitor E.O.'s progress in relation to the objectives set out in his IEP- because, under the IDEA, how progress toward short-term objectives or benchmarks is to be monitored or provided “is left up to the IEP drafters.” (Id. at 9-10.) E.O.'s IEP “only required the District to provide three progress reports during the school year, ” which Oskowis acknowledged he received. (Id.) The Court also rejected Oskowis's second claim, that the District should have amended E.O.'s IEP because E.O. wasn't meeting his STOs, because “[t]here is no requirement that a school revise an IEP midway through the school year when a student isn't making progress toward STOs.” (Id. at 10-11.)

         2. Cause Of Action II: 16C-DP-066-ADE

         Cause of Action II arose from administrative proceeding 16C-DP-066-ADE, which Oskowis initiated on June 16, 2016 by filing a due process complaint. (Doc. 17 ¶ 57.) Oskowis argued the District denied E.O. a FAPE over three calendar years because: (1) the District didn't provide a qualified paraprofessional to E.O.; (2) the paraprofessional provided by the District wasn't adequately supervised by the special education teacher; and (3) the IDEA precluded E.O.'s paraprofessional from providing services within E.O.'s self-contained special education classroom. (Id. ¶ 59; Doc. 69-1 at 42-56.)

         The District filed a response on June 24, 2016. Included as attachments to the response were “affidavits from two of [E.O.'s] prior special education teachers attesting that they provided direct supervision of the paraprofessional” as well as evidence demonstrating the paraprofessional's qualifications. (Doc. 75-1 at 11; see also Doc. 69 ¶¶ 12-15, 17-20.)

         During a “prehearing conference, ” the ALJ asked Oskowis to address the evidence that had been submitted by the District. Oskowis “acknowledged . . . that [he] had no information or belief to support [his] allegation that the paraprofessional did not meet the requirements . . . to be considered a qualified paraprofessional” and similarly “offered no basis for [his] allegation that the special education teacher did not properly supervise the paraprofessional.” (Doc. 75-1 at 10-11; see also Doc. 69 ¶ 16.)

         Accordingly, on March 13, 2017, the ALJ issued an order dismissing Oskowis's complaint for failure to state a claim. (Doc. 75-1 at 9-12.) The order concluded: “Given the baseless assertions presented in the Complaint, Petitioners' Complaint is deemed frivolous. IT IS ORDERED granting Respondent School District's Motion to Dismiss the Complaint.” (Id. at 12, emphasis omitted.)

         This Court granted summary judgment to the District on Cause of Action II, holding that the ALJ had properly dismissed each of Oskowis's claims in that proceeding. (Doc. 77 at 11-13.) First, the Court held that E.O.'s paraprofessional-Ms. Parry-was qualified because she “holds a high school diploma (Doc. 69-2 at 10) and she obtained a passing score on Education Testing Services' ParaPro Assessment (id. at 12-15), ” which means she satisfied the requirements to be deemed “highly qualified” under the NCLB, which was in effect during the three years at issue. (Doc. 77 at 12.) The Court also noted that, at the prehearing conference held by the ALJ in the administrative proceeding, Oskowis admitted “he didn't have any evidence to show the paraprofessional was unqualified.” (Id., citing Doc. 75-1 at 10-11.)

         Second, for similar reasons, the Court upheld the ALJ's determination that Oskowis hadn't demonstrated that the special education teacher failed to supervise Ms. Parry. (Id. at 13.) The Court explained that the District had presented evidence during the administrative proceedings that satisfied each of the supervision requirements in the NCLB.^[2] Moreover, Oskowis “conceded, during the prehearing conference, that he didn't have any contrary evidence, ” and had, during an earlier due process hearing, “testified he had never observed E.O. in the classroom and didn't have any first-hand knowledge of what occurred in the classroom.” (Doc. 77 at 13 & n.9, citing Doc. 75-1 at 11 n.2.)

         Third, the Court determined the ALJ correctly rejected Oskowis's claim “that the IDEA prohibits supplementary aids from rendering services outside a regular education classroom.” (Doc. 77 at 13.) This is because “[u]nder 34 C.F.R. § 300.42, ‘supplementary aids and services' mean ‘aids, services, and other supports that are provided in regular education classes, other education-related settings, and in extracurricular and nonacademic settings, to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate . . . .' Id. (emphases added). Therefore, “the ALJ properly concluded that ‘supplementary aids and services may be provided in a variety of academic and nonacademic settings' (Doc. 75-1 at 11) and that Oskowis's arguments on this issue didn't state a claim as a matter of law.” (Doc. 77 at 13.)

         3. Cause Of Action III: 17C-DP-053-ADE

         The third cause of action arose from proceeding 17C-DP-053-ADE, which Oskowis initiated by filing a due process complaint on March 2, 2017. (Doc. 17 ¶ 78.) Oskowis alleged the District denied E.O. a FAPE because, between August 5, 2015 and December 16, 2015, the District didn't begin delivering services to E.O. until 9:00 a.m., which “would not allow enough time for the services of the IEP to be adequately delivered.” (Doc. 69-3 at 8.)

         The ALJ issued an order on March 10, 2017 dismissing Oskowis's due process complaint and an order on March 28, 2017 denying reconsideration. (Doc. 75-1 at 14-17.) The March 28 order concluded: “Petitioners' instant due process complaint fails as a matter of law and should be dismissed. Based on the fact that Petitioners' previous two complaints on the exact same issue were dismissed, Petitioners knew or should have known that the Complaint does not raise a valid claim under the IDEA. For this reason, Petitioners' instant due process complaint is deemed to be frivolous.” (Doc. 75-1 at 16.)

         This Court granted summary judgment on Cause of Action III in favor of the District. (Doc. 77 at 14-15.) The Court reasoned that, even if “the District didn't begin delivering services to E.O. until 9:00 a.m.” each day, there would still be 1, 725 minutes in the school week in which to administer E.O.'s IEP, and the IEP only provided for 1, 170 minutes of special instruction. (Id.) Thus, Oskowis failed to state a claim as a matter of law.

         B. ...