United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER
(1) GRANTING DEFENDANT MICHIGAN DEPARTMENT OF EDUCATION'S MOTION TO DISMISS (ECF
NO. 10); (2) GRANTING IN PART UTICA COMMUNITY SCHOOLS' MOTION TO DISMISS (ECF
NO. 15); (3) STAYING THIS ACTION AGAINST UTICA COMMUNITY SCHOOLS TO PERMIT
PLAINTIFFS TO COMPLETE EXHAUSTION OF ADMINISTRATIVE REMEDIES AND TIMELY RETURN
TO THIS COURT; AND (4) PERMITTING PLAINTIFFS TO FILE A TIMELY AMENDED COMPLAINT AGAINST UTICA COMMUNITY SCHOOLS AS A TIMELY APPEAL OF ALJ SAUNDERS'S DISMISSAL OF PLAINTIFFS' DUE PROCESS COMPLAINT
PAUL D. BORMAN, District Judge.
Before the Court are Defendant Utica Community Schools ("Utica") and Michigan Department of Education's ("MDE") Motions to Dismiss. (ECF Nos. 10, 15.) Plaintiffs filed a Response (ECF No. 32) and Defendants filed Replies (ECF Nos. 33, 34.) The Court held a hearing on April 8, 2015. For the reasons that follow, the Court (1) GRANTS the MDE's motion to dismiss and DISMISSES Plaintiffs' Complaint against the MDE WITH PREJUDICE, (2) GRANTS IN PART Utica's motion to dismiss, (3) STAYS this action against Utica until May 6, 2015, or until the date on which Plaintiffs' right to timely appeal ALJ Saunders's dismissal of Plaintiffs' due process complaint expires and (4) GRANTS PLAINTIFFS LEAVE to file an Amended Complaint against Utica for the purpose of timely appealing ALJ Saunders's dismissal of Plaintiffs' due process complaint.
Defendants Utica and the MDE's long-pending motions to dismiss Plaintiffs' Complaint, based on statute of limitations and failure to exhaust administrative remedies, have been held in abeyance pending the Court's appointment of counsel for Plaintiffs and the parties efforts to arrive at a negotiated settlement of the case. After the appointment of counsel for Ms. Sharbowski and her minor son T.S. (ECF No. 23), and the efforts of an outside mediator to try to bring closure to the matter, the parties have been unable to agree to a resolution. Accordingly, the Court re-noticed Defendants' motions to dismiss, and permitted Plaintiffs' appointed counsel to file a response to the motions and also permitted the Defendants to file replies to Plaintiffs' response.
On July 18, 2011, Plaintiffs Gina Sharbowski and her minor child T.S. filed a complaint in a case previously assigned to this Court, T.S. and Gina Sharbowski v. Utica Community Schools, et al., No. 11-13092 ( Sharbowski I ). Plaintiffs claimed in that previously-filed case that Utica had improperly addressed T.S.'s special education needs, denying him a "free appropriate public education" (FAPE) and brought suit pursuant to the Americans With Disabilities Act (ADA), the Individuals with Disabilities Education Improvement Act (IDEA) and Family Educational Rights and Privacy Act of 1947 (FERPA). In that case, on April 18, 2012, this Court adopted the Report and Recommendation of Magistrate Judge, now District Judge, Laurie Michelson, recommending that Plaintiffs' case be dismissed without prejudice for failure to properly exhaust administrative remedies. ( Sharbowski I, ECF No. 34, Order Adopting Report and Recommendation, ECF No. 32, Report and Recommendation.) In dismissing the case, the Court followed Magistrate Judge Michelson's recommendation to stay the two-year statute of limitations under 34 C.F.R. § 300.507 to permit Plaintiffs to re-file that case within 90 calendar days from the date of the decision of the ALJ in any future due process proceeding. ( Id. at 9 n.4.) In granting the dismissal without prejudice, the Court denied Plaintiffs' request to stay the case rather than dismiss but did indicate that it would consider an application to proceed in forma pauperis at the time of any future filing. ( Id. at 2 n.2.)
Plaintiffs did not appeal the Court's dismissal of Sharbowski I and did proceed to administratively address their claims, which resulted in a decision in favor of the Plaintiffs issued by ALJ Susanne E. Harris on July 23, 2012. The essence of Plaintiffs' claim was that T.S. should have been classified as eligible for special education as a student with Autism Spectrum Disorder (ASD), not as a student who was only Mildly Cognitively Impaired. The ALJ (in a 45-page Opinion that was filed with this Court under seal) concluded that Utica had denied T.S. a FAPE, citing numerous failings on the part of Utica with regard to the "individualized education program" ("IEP") for T.S., and ordered Utica to adopt a host of remedial measures. The ALJ issued several corrective action orders to the Defendant school district and required the school district to file proof of compliance with her Opinion and Orders. On or about June 11, 2013, the MDE determined that Utica was in compliance with ALJ Harris's July 23, 2012 Order.
Almost eight months after receiving the ALJ's decision, on March 11, 2013, the Plaintiffs filed, in the then-closed Sharbowski I, what was interpreted by Magistrate Judge Michelson as a Motion for Relief From Judgment in the previously-dismissed case, No. 11-13092. ( Sharbowski I, ECF No. 35, 3/11/2013 "Motion for Assistance from Higher Court to Address Ongoing Issues Post Due Process Hearing"). Plaintiffs complained that the Defendant school district had failed to comply with the ALJ's orders and stated that they needed the assistance of an attorney, that they did not understand the process and that they did not believe they qualified for in forma pauperis status but nor could they afford to refile their case as instructed by this Court in its earlier dismissal of the case without prejudice.
Judge Michelson interpreted the motion as one for relief from judgment and recommended that this Court deny the motion because Plaintiffs in fact prevailed in the administrative proceeding and appeared to be challenging not the outcome of that proceeding but the school district's failure to implement the ALJ's orders. The Magistrate Judge noted that if Plaintiffs had been challenging the decision of the ALJ, their motion, which came 232 days after the ruling, was time-barred by the 90-day limitation period imposed by the Court in dismissing the case previously. ( Sharbowski I, ECF No. 40, Report and Recommendation at 7 n. 2.) The Magistrate Judge concluded that the remedy for Plaintiffs' challenge to the school district's non-compliance was to participate in the state complaint resolution procedure ("CRP") found in 34 C.F.R. § 300.151, et seq., ( Id. at 7.) The Report and Recommendation outlined in great detail the process that Plaintiffs were required to follow to challenge the school district's failure to implement the ALJ's instructions. Over Plaintiffs' Objection ( Sharbowski I, ECF No. 41, Objection), which failed to cite any specific objection to the Report and Recommendation and largely complained that Plaintiffs needed the assistance of counsel, this Court adopted the Magistrate Judge's Report and Recommendation and denied the motion for relief from judgment. ( Sharbowski I, ECF No. 42.) Again, Plaintiffs did not appeal this Court's ruling.
On January 17, 2014, Plaintiffs filed a new case, No. 14-cv-10216 ( Sharbowski II ), that is presently before the Court. The Complaint in this case, titled "Re-Filed Complaint, " is a restatement of the claims asserted in Sharbowski I. In fact, in Sharbowski II Plaintiffs attach and incorporate the complaint from Sharbowski I. The Complaint in Sharbowski II expresses Plaintiffs' continued frustration with the process of administrative exhaustion and complains that Plaintiffs are adrift without the assistance of competent counsel, which they assert they cannot find or afford.
Recognizing that ALJ Harris's July 23, 2012 Opinion had noted certain failings on the part of Utica with respect to T.S.'s educational needs, the Court appointed pro bono counsel for Plaintiffs with the hope that with the proper guidance, the Plaintiffs would be able to better understand and see their way through the administrative exhaustion requirements that must precede any action in this Court. To their credit Defendants, despite their legally well-founded pending motions to dismiss, were in agreement that appointment of counsel for the Plaintiffs could help to move the case along to a fair and equitable resolution. On July 24, 2014, the Court assigned counsel, James E. Stewart of the Honigman, Miller firm, to represent Plaintiffs pro bono in this action. (ECF No. 23, Order of Assignment of Counsel.) The Court then directed the parties to participate in facilitation, under the guidance of Dr. Carla Harting, in an effort to resolve certain issues regarding the current educational placement of T.S. The parties met with Dr. Harting on two separate occasions and subsequently, at a status conference held before this Court on October 31, 2014, announced to the Court that they had reached a tentative agreement regarding the proper placement for T.S. for the current school year.
Despite what appeared to the Court to be good faith efforts on both sides to reach agreement on an acceptable plan for T.S. for the current school year, Plaintiffs were unwilling to agree to dismiss the claims in this action against Utica and the MDE based upon that agreement because Plaintiffs were of the opinion that Utica should be ordered to bear the cost of a private educational placement for T.S. as compensation for the past wrongs committed by prior administrations that were acknowledged in ALJ Harris's July 23, 2012 Opinion. Notably, while ALJ Harris did conclude that Utica had denied T.S. a FAPE, citing numerous failings on the part of Utica with regard to T.S.'s IEP, and ordered Utica to adopt numerous remedial measures, she did not order private placement of T.S. at that time.
This Court invited briefing on the issue of Plaintiffs' request that this Court order private placement for T.S. Following briefing, the Court concluded, particularly in view of the new due process Complaint that Plaintiffs had filed on July 23, 2014 that remains pending before Administrative Law Judge Christopher Saunders of the Michigan Administrative Hearing System, that this Court was without jurisdiction to consider/order private placement for T.S. at ...