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Morrison v. Perry School Department

United States District Court, D. Maine

December 28, 2018

JEFFREY MORRISON, as parent of minor child JM, Plaintiff
v.
PERRY SCHOOL DEPARTMENT, Defendant

          ORDER ON MOTION TO SUPPLEMENT THE RECORD AND RECOMMENDED DECISION ON MOTION FOR “STAY-PUT” ORDER

          John C. Nivison U.S. Magistrate Judge

         Plaintiff, as a parent of a minor child, JM, alleges the Perry School Department violated due process and the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.[1] (Complaint, ECF No. 1.) The matter is before the Court on two motions filed by Plaintiff: (1) a motion to supplement the record (Motion, ECF No. 29); and (2) a motion for a “stay-put” order requiring that JM and his two siblings remain at Perry Elementary School during this litigation, rather than attend school in Eastport, where Plaintiff and his children have lived since late 2015. (Motion, ECF No. 28).

         Following a review of Plaintiff's motions, Defendant's responses, and the record, I grant the motion to supplement the record, and I recommend the Court deny the motion for a stay-put order.

         Discussion

         1. Motion to Supplement the Record

         Following a scheduling conference, the Court issued a scheduling order that in part stated:

The issues in the case consist of the following: (1) whether the administrative decision on Plaintiff's challenge to the adequacy of the [individual education plan (IEP)] developed and implemented for JM during the 2015-2016 and 2016-2017 academic years was erroneous; and (2) whether Plaintiff's right to due process during the administrative proceedings was violated.
Plaintiff also asserts that the Hearing Officer improperly dismissed Plaintiff's request for a hearing as to the IEP developed for and implemented during the 2017-2018 academic year. On or before August 3, 2018, Plaintiff shall notify the Court and Defendant whether Plaintiff intends to pursue a substantive claim as to the 2017-2018 academic year, or whether Plaintiff seeks to cite the Hearing Officer's dismissal of the request for hearing as evidence in support of Plaintiff's due process claim. If Plaintiff asserts a substantive claim for the 2017-2018 academic year, Defendant intends to file a motion to dismiss the claim. Accordingly, if Plaintiff notifies the Court that he intends to assert a substantive claim for the 2017-2018 academic year, the Court will issue an order to govern the parties' briefing of the motion to dismiss.

(Scheduling Order, ECF No. 25 at 1-2.) In response to the scheduling order, Plaintiff filed a notice informing the Court he intended only to cite the hearing officer's dismissal of the request for a hearing as evidence in support of Plaintiff's due process claim. (Notice, ECF No. 26.)

         The Maine Department of Education filed the IDEA administrative record on two consolidated cases (## 18.008H, 18.029H). (IDEA Administrative Record (“Record”), ECF No. 27, Record Vol. I at i (Index), 101 (Order).)

         Case #18.008H is Plaintiff's due process hearing request filed on July 24, 2017. (Order, Record Vol. II at 327.) The hearing officer's prehearing report and order described the issue in the matter as follows: “Did Perry Public Schools deny Student a free, appropriate, public education (FAPE) during the two year period between July 24, 2015 and July 24, 2017?” (Prehearing Report and Order, Record Vol. I at 163.)

         Case #18.029 is Plaintiff's due process hearing request, filed on October 6, 2017. (Order, Record Vol. II at 327.) The hearing officer found Plaintiff had requested certain independent evaluations, and Defendant had refused the request. (Order, Record Vol. II at 331.) The hearing officer's prehearing report and order described the issue in the matter as follows: “Were the psychological and speech-language evaluations conducted by Perry Public Schools (i.e., those which were discussed at the October 5, 2017 IEP Team meeting) inadequate and inappropriate thereby warranting independent evaluations of same at public expense?” (Prehearing Report and Order, Record Vol. I at 163.)

         In Plaintiff's motion to supplement the record, Plaintiff requests the Court order the Department to provide the complete administrative record in the case that concerns the 2017-2018 academic year (Case # 18.060H).[2] (Motion, ECF No. 29 at 3.) Plaintiff filed an attachment that contains Plaintiff's proposed additions, evidently to complete the record as to all three cases (Case ## 18.008H, 18.029H, 18.060H). (Attachments, ECF Nos. 31-1 (index), 31-2 (proposed additions).) Plaintiff also requests the Court admit in evidence an “IDEA Hearing Officer Prequalification Notice, ” which Plaintiff asserts is relevant to his claims. (Motion, ECF No. 29 at 3; Attachment, ECF No. 31-2 at 66-67.)

         Defendant does not object to Plaintiff's proposed additions. (Response, ECF No. 33 at 2.) Defendant proposes several additional emails be added to the record for completeness. (Id.; Attachment, ECF No. 33-1.) Plaintiff did not file a reply in support of his motion to supplement the ...


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