United States District Court, D. Arizona
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.
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