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Michelle K. v. Pentucket Reg'l School District

United States District Court, D. Massachusetts

January 16, 2015

MICHELLE K. IN HER OWN RIGHT, AND AS GUARDIAN AND NEXT FRIEND OF ALICE K., Plaintiffs
v.
PENTUCKET REGIONAL SCHOOL DISTRICT and THE BUREAU OF SPECIAL EDUCATION, Defendants. and K., Plaintiff
v.
PENTUCKET REGIONAL SCHOOL DISTRICT COMMITTEE, ET AL., Defendants. and KEATING, Plaintiff
v.
PENTUCKET REGIONAL SCHOOL DISTRICT, ET AL., Defendants

Page 362

Pro se Party Michelle Keating, As Guardian and Next Friend of Alicia K., and in Her Own Right, Plaintiff (1:13-cv-11414-DPW), Pro se, Groveland, MA.

For Pentucket Regional School District, Defendant (1:13-cv-11414-DPW): Paige L Tobin, LEAD ATTORNEY, Julie A. Muse-Fisher, Murphy, Lamere & Murphy P.C., Braintree, MA.

For The Bureau of Special Education, Defendant (1:13-cv-11414-DPW): Amy Spector, LEAD ATTORNEY, Attorney General's Office, Boston, MA.

Michelle K., In Her Own Right and As Natural Parent of C.K. and A.K., Plaintiff (1:14-cv-10071-DPW), Pro se, Groveland, MA.

For Pentucket Regional School District School Committee, In their Official Capacity, Jeffrey Mulqueen, Superintendent, In his Official Capacity, Michael Jarvis, Special Education Director, In his Official Capacity, John Tiano, Prior Special Education Education, in his Official Capacity, Elaine Champion, Principal of Bagnall Elecmentary Shcool, in her Official and Individual Capacity, Defendants (1:14-cv-10071-DPW): Paige L Tobin, LEAD ATTORNEY, Julie A. Muse-Fisher, Murphy, Lamere & Murphy P.C., Braintree, MA.

For Bureau of Special Education Appeals, Division of Administrative Law Appeals, Reece Erlichman, Director of BSEA, in the Official and Individual Capacity, Cathryn Putney-Yaceshyn, Hearing Office in her Official Capacity, Sara Berman, Hearing Officer in her Official Capacity, Rosa Figueroa, in her Official Capacity, Massachusetts Department of Elementary and Secondary Education (DESE), Mitchell D. Chester, Commissioner, Division of Adminstrative Law Appeals, Richard Heidlage, Chief Administrative Magistrate, in his Official Capacity, Honorable Justice Timothy Feeley, In his Official Capacity, Defendants (1:14-cv-10071-DPW): Amy Spector, LEAD ATTORNEY, Attorney General's Office, Boston, MA.

Alicia Keating, Plaintiff (1:14-cv-10325-DPW), Pro se, Groveland, MA.

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MEMORANDUM & ORDER

DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE.

Michelle Keating brought the suit docketed as Civil Action No. 13-11414 against the Bureau of Special Education (" the BSEA" ) and the Pentucket Regional School District (" Pentucket" ) on her own behalf and on behalf of her daughter, Alicia Keating.[1] Thereafter, two actions, which I find essentially duplicative, Civil Action No. 14-10071 and Civil Action No. 14-10035, were filed by the plaintiffs. This Memorandum and Order will deal principally with Civil Action No. 13-11414 before turning to dismissal of Civil Action No. 14-10071 and Civil Action No. 14-10035.

Alicia was a student in Pentucket from Kindergarten (1999) through the 12th grade (2012). The plaintiffs allege that Pentucket knew or should have known since 2002 that she had a disability and that the school district failed to provide her with a " free appropriate public education" (" FAPE" ) as required by the Individuals with Disabilities Improvement Act (" IDEA" ), 20 U.S.C. § § 1401 et seq., failed to properly evaluate her educational needs, failed to find her eligible for appropriate educational services, and violated her procedural rights in doing so.

I. BACKGROUND

A. Proceedings Before the BSEA

On May 23, 2012, Michelle initiated a proceeding before the BSEA seeking a hearing regarding Alicia's rights under IDEA, Section 504 of the Rehabilitation Act of 1973, codified as 29 U.S.C. § 704 (" Section 504" ), and the Americans with Disabilities Act (" ADA" ). At the time of the hearing request in May 2012, Alicia was two months shy of her 18th birthday. In the hearing request, in addition to asserting Alicia's educational rights, Michelle also asserted a claim on her own behalf for reimbursement of the cost of an independent educational evaluation (" IEE" ) that she had obtained for Alicia.

The BSEA docketed the matter as BSEA # 12-8636 and issued a Notice of Hearing on May 25, 2012. Following a pre-hearing conference on July 19, 2012, the BSEA bifurcated the proceeding. Under the bifurcation proceeding, the question of reimbursement of Michelle's out-of-pocket expenses incurred in obtaining an IEE would be decided based upon written submissions due August 23, 2012. A hearing related to the remaining issues, including Alicia's educational needs and whether

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she was provided FAPE, was set for September 25-26, 2012. Meanwhile, a separate matter regarding Michelle's son, Christopher, was docketed as BSEA #12-9569.

Alicia turned 18 on July 25, 2012, approximately two months after the filing of a hearing request with the BSEA.

On August 3, 2012, Pentucket wrote to the BSEA informing it that the parties had reached an agreement in principle and that therefore Pentucket would not be submitting its written argument regarding reimbursement for the costs of the IEE. Pentucket's letter also requested a two week postponement of the scheduled hearing.

That same day Pentucket's counsel emailed a draft settlement proposal to Michelle. The draft proposal stated that it " is made by and between Michelle . . . acting for herself and her minor child, Christopher[,] . . . and Alicia . . . acting on her own behalf, and the Pentucket Regional School District . . . ." It continued to provide:

PARENT'S Agreement to Dismiss Pending Cases: Upon execution of this document, PARENT will immediately dismiss with prejudice both Alicia's and Christopher's cases pending with the Bureau of Special Education Appeals (BSEA # 12-8636 and BSEA # 12-9569) are dismissed. [sic] PARENT will also dismiss with prejudice her Superior Court Case (Docket # ESCV2011-00691) [a case involving Christopher].
. . .
General Release. This AGREEMENT shall constitute full settlement and release of all claims that might exist between the Parties relating to STUDENTS' regular education, special education, and related services since he and she became a resident of PENTUCKET through the date this AGREEMENT is fully executed. More particularly, PARENT on her behalf and her minor child's behalf and Alicia Keating on her behalf specifically waives all rights against PENTUCKET, its officers, both elected and appointed, agents, employees, and/or attorneys that have accrued, or might have accrued, to them and/or STUDENTS with regard to the STUDENTS' regular education, special education, and related services . . .

In a letter dated August 14, 2012, Michelle wrote to Colby Brunt, an attorney for Pentucket, regarding the proposed settlement agreement:

I am prepared to sign the settlement agreement on Christopher's behalf. Unfortunately, Alicia is not prepared to sign the settlement agreement on her behalf. As the language indicates, now that Alicia is 18 years old I cannot represent her. I was not informed at the time of the verbal offer that Alicia's signature would be required which presents a problem. First, Alicia has not had the benefit of legal counsel and second since she personally derives no benefit from the settlement agreement so she has no incentive to sign it. Alicia's motivations are not the same as mine therefore we have a conflict of interest.

That same day, Michelle wrote to Julie Goldman, a Massachusetts Assistant Attorney General, regarding her claims for educational relief brought on behalf of her son Christopher. She explained that:

I do not have the legal authority to accept the terms of the settlement agreement Pentucket offered due to their requirement to attach an unrelated matter to this instant case requiring my daughter who just turned 18 to sign it on her own behalf. Alicia has not had the benefit of legal counsel and I cannot

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represent my daughter nor would I want to as it presents a conflict of interest.

Michelle wrote a letter dated September 14 confirming the request for a postponement of the hearing scheduled for September 25 and 26, and explaining that the parties were working on an agreement in principal which was contingent upon Superior Court approval and enforcement. She also requested a status conference to determine whether the hearing should be rescheduled, withdrawn or dismissed.

On November 20, 2012, the BSEA issued an order to show cause why the case should not be dismissed in light of the indication from the parties that a settlement agreement had been reached.

Michelle responded to the BSEA via letter on November 25, 2012, requesting that the hearing be put back onto the calendar. She closed her letter by writing:

Lastly, since the hearing request was submitted before Alicia turned 18 on July 25, 2012, pursuant to BSEA Rule I(1) Alicia would like her name added to the hearing request and for me to represent her as her advocate pursuant to BSEA Rule I(6). I remain an aggrieved party, financially as Parent, so I will also continue to represent myself Pro Se (BSEA Rule I(2). If this is not allowable please advise us so that we may seek legal counsel to represent Alicia.

That letter was signed by both Michelle and Alicia. Michelle states that she sent a copy of this letter to Pentucket, but Pentucket has no record of receiving it and was unaware of the letter until February 2013.

On November 28, 2012, there was an exchange of emails between Michelle and Ms. Brunt, with the subject line " stip of dismissal." Ms. Brunt wrote to Michelle that:

[Alicia's] case was taken out of the agreement. The only thing we had in the agreement was the payment of the independent evaluations. There was nothing about you dismissing her case. I clarified that issue with Sean.

Michelle replied:

Sorry but it wasn't. It went from dismissal with prejudice to dismissal without prejudice, but it's still there. The document you just attached this ...

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