United States District Court, D. Maine
MATTHEW POLLACK and JANE QUIRION as next friends of B.P., Plaintiffs,
REGIONAL SCHOOL UNIT 75, et al., Defendants.
Torresen United States Chief District Judge
previously granted summary judgment for the Defendants on the
Plaintiffs' ADA, Section 504, and First Amendment claims
relating to B.P.'s right to wear a recording device at
school on the grounds that the Plaintiffs had not exhausted
their administrative remedies under the IDEA. While the case
was on appeal, the Plaintiffs exhausted the IDEA
administrative process. The Court of Appeals for the First
Circuit dismissed the appeal as moot, vacated the portion of
my order granting summary judgment for the District on the
ADA, Section 504 and First Amendment claims, and remanded the
case to me for determination of these claims on the merits.
Pollack v. Reg'l Sch. Unit 75, No. 16-1414, 2016
WL 5746263, at *2 (1st Cir. Oct. 4, 2016).
November 16, 2016, I held a conference to discuss with the
parties how the case should proceed. At the conference,
defense counsel indicated that they believed that the hearing
officer's most recent order has preclusive effect, and
they asked to supplement the summary judgment record with
materials from the record of the administrative due process
hearing. The Plaintiffs took the position that material from
the due process hearing should not be admitted into the
record for summary judgment. I directed the Defendants to
cull the record and present the portions of the record that
they believed were relevant and preclusive and invited
additional briefing on the issue of preclusion. The parties
agreed that they would “refresh” their summary
judgment briefs by removing material which was no longer
pertinent and adding a section on preclusion. The parties
indicated that they would confer and submit an agreed-upon
parties have been unable to agree on either a briefing
schedule or the parameters of the supplemental record.
Plaintiffs now inform me that they wish to introduce evidence
(apart from the administrative record) on incidents that have
arisen since the initial summary judgment motions were filed.
Plaintiffs' Proposed Schedule for Supplemental Summary
Judgment (ECF No. 249). The Defendants charge that the
Plaintiffs “seek to have an open, rolling summary
judgment record” and argue that additional evidence is
inappropriate and inconsistent with the Plaintiffs'
assertion to the First Circuit that the case was fully
briefed and ready for decision on the merits. Defendants'
Proposed Schedule for Supplemental Summary Judgment at 3 (ECF
No. 250). Plaintiffs respond by clarifying that they now seek
to introduce into the record only “two discrete items
of additional evidence” amounting to not more than five
pages. Plaintiffs' Response to Defendants' Proposed
Schedule for Supplemental Summary Judgment at 2 (ECF No.
case has been pending since March 27, 2013, and the parties
submissions suggest that they were contemplating a briefing
schedule to extend through March of 2017. The student at
issue is now 18 years old. The parties have already done one
exhaustive round of briefing on a motion to dismiss, filed
and responded to a new case that was consolidated with the
2013 case, participated in lengthy judicial settlement
conferences, filed extensive cross-motions for summary
judgment in the consolidated case, and appealed my order on
those summary judgment motions to the First Circuit. Because
the parties have been unable to agree on a briefing schedule
and parameters for the record, I am called upon to impose
some structure on the summary judgment process that remains.
After reviewing the previous submissions on summary judgment,
conclude that I do not need the parties to refresh their
previous briefs. I will permit the Defendants to file the
administrative record pertaining to the due process hearing
officer's decision dated May 31, 2016. I will permit the
Plaintiffs to file new factual material limited to the two
instances identified in the Plaintiffs' Response to
Defendants' Proposed Schedule for Supplemental Summary
Judgment. I will allow the parties to file simultaneous
supplemental summary judgment motions limited to this new
material and addressing legal issues pertaining to the new
material. The parties shall strictly adhere to the following
schedule for briefing and parameters for supplementation.
Supplemental Summary Judgment Briefs Schedule and
no later than January 16, 2017, both parties shall file: (1)
supplemental motions for summary judgment of no more than 15
pages; and (2) supplemental statements of material facts in
conformity with Local Rule 56(b) and paragraph 2 below.
no later than January 31, 2017, the parties shall file: (1)
responses to the motions for summary judgment of no more than
10 pages; and (2) opposing statements of material facts in
conformity with Local Rules 56(c) and 56(e) and paragraph 2
no later than February 8, 2017, the parties shall file: (1)
reply briefs to the motions for summary judgment of no more
than 7 pages; and (2) a reply statements of material facts in
conformity with Local Rule 56(d) and 56(e) and paragraph 2
Supplemental Statement of Material Fact.
parties shall create the sets of material facts as envisioned
by paragraph 1 above. The facts shall “snowball”
so that the final filing for each supplemental motion
includes the full text of all the facts, admissions, denials,
qualifications, requests to strike, and responses to request