United States District Court, D. Columbia.
Filed: August 24, 2015
CASSUNDRA TILLMAN, Parent and Next Friend of K.C., a minor,
K. C., Plaintiffs: Robert Wilson Jones, JAMES E. BROWN &
ASSOCIATES, PLLC, Washington, DC.
DISTRICT OF COLUMBIA, A Municipal Corporation, Defendant:
Tasha Monique Hardy, LEAD ATTORNEY, OFFICE OF ATTORNEY
GENERAL/DC, Washington, DC.
KOLLAR-KOTELLY, United States District Judge.
29, 2015, the Magistrate Judge G. Michael Harvey's Report
and Recommendation was entered, and the parties were allowed
14 days to file objections to the recommendations made by the
magistrate judge. No objections have been filed as of this
date. Upon careful consideration of the record in this case
and of Magistrate Judge Harvey's  Report and
Recommendation, the Court ADOPTS and ACCEPTS the Report and
Recommendation in full. The Court GRANTS IN PART and DENIES
IN PART both Plaintiff's  Motion for Summary Judgment
and Defendant's  Cross-Motion for Summary Judgment.
is awarded total fees and costs of $38,353.31 as calculated
at page 25 of Magistrate Judge Harvey's Report and
Recommendation. Defendant shall make this payment to
Plaintiff no later than October 1, 2015.
Court dismisses this case in its entirety.
appropriate Order accompanies this Memorandum Opinion.
reasons set forth in the accompanying Memorandum Opinion, it
is, this 24th day of August, 2015, hereby
that Magistrate Judge G. Michael Harvey's  Report and
Recommendation is ADOPTED and ACCEPTED in full.
hereby ORDERED that Plaintiff's  Motion for Summary
Judgment is GRANTED IN PART and DENIED IN PART.
further ORDERED that Defendant's  Cross-Motion for
Summary Judgment is GRANTED IN PART and DENIED IN PART.
further ORDERED that Plaintiff is awarded total fees and
costs of $38,353.31 as calculated at page 25 of Magistrate
Judge Harvey's Report and Recommendation
further ORDERED that Defendant shall make this payment to
Plaintiff no later than October 1, 2015.
case is dismissed in its entirety.
is a final, appealable order.
MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE.
an action for attorney's fees brought pursuant to the
Individuals with Disabilities Education Act ("
IDEA" ), 20 U.S.C. § § 1400 et seq. Complaint
(" Compl." ) [Dkt. 1] at ¶ 1. On February 19,
2015, this case was referred to the undersigned for full case
management and for a report and recommendation on the
parties' cross motions for summary judgment [Dkts. 10 and
12] concerning plaintiffs'
counsel's request for reimbursement of their
attorney's fees. Plaintiffs' counsel's motion
seeks a total of $49,542.49 in fees arising from an
administrative proceeding challenging whether the District of
Columbia provided their client, a minor child, with a free
appropriate public education (" FAPE" ) as required
by the IDEA. For the reasons stated below, the undersigned
recommends that the parties' cross motions for summary
judgment be GRANTED IN PART and DENIED IN PART.
K.C.'s Public Education
K.C. is a minor child living in the District of Columbia who
has been deemed eligible to receive special education and
related services from the District of Columbia. Compl. at
¶ 6. In general, the IDEA guarantees all children with
disabilities a FAPE. 20 U.S.C. § 1400(d)(1)(A).
Plaintiff Cassundra Tillman is K.C.'s
grandmother. Compl. at ¶ 7.
defendant is the District of Columbia, which operates the
District of Columbia Public Schools (" DCPS" ).
Id. at ¶ 3. Because the District receives funds
pursuant to the IDEA to ensure access to FAPE, it is obliged
to comply with applicable federal regulations and statutes,
including the IDEA. See 20 U.S.C. § 1411.
February of 2012, K.C. enrolled in Smothers Elementary
School, a public school in the District of Columbia. HOD at
¶ 3. Between February 2012 and May of 2014, K.C. engaged
in defiant behavior, verbal aggression, bullying, illegal
activity, and was suspended from school on several occasions
for reckless behavior and fighting. Id. at ¶
¶ 8, 11. On one occasion, K.C. brought explosives to
school. Id. at ¶ 15. During this period, four
Individualized Education Program (" IEP" ) Teams
met to assess how best to address K.C.'s behavioral
issues and to treat K.C.'s learning disabilities.
Id. at ¶ ¶ 4-19.
Team is the mechanism through which a FAPE is delivered to
disabled students. The IEP Team is required to review the IEP
periodically, but not less than annually, to determine
whether the annual goals for the child are being achieved,
and to revise the IEP goals as appropriate to address, inter
alia, any lack of expected progress toward meeting them. See
34 C.F.R. § 300.324(b)(1)(i) & (ii).
first IEP Team met on May 10, 2012. HOD at ¶ 4. The IEP
Team concluded that K.C. had a specific learning disability
and had exhibited " oppositional defiant behaviors"
and " aggressive and bullying behaviors" in school.
Id. The IEP Team developed emotional and academic
goals for K.C. Id. It concluded that K.C. required
five hours per week of specialized instruction, and two hours
per month of behavior support services, both outside of the
general education setting. Id.
enrolled in Kelly Miller Middle School for the 2012-2013
academic year. Id. at ¶ 5. In October 2012,
school officials conducted a Functional Behavioral Assessment
(" FBA" ) of K.C. Id. The evaluator noted
that K.C. exhibited " defiance, noncompliance, verbal
aggression, bullying, depression, . . . [and engaged in]
illegal activity." Id. It was also noted that
K.C. was " off task, withdraw[n], distract[ed] others, .
. . and [sought] attention." Id. The evaluator
concluded that K.C.'s behavior affected his academic
functional performance, and developed strategies to address
K.C.'s behavior. Id.
further address these issues, K.C. was enrolled in the
Behavior Education System program at Hart Middle School at
the beginning of the 2013-2014 school year. Id. at
¶ 7. K.C. was placed in a class with a nine to one
student to staff ratio and had access to a special education
teacher and two teacher aides. Id. The program was
also supported by a full time social worker, who provided
counseling services and crisis intervention. Id.
Nevertheless, K.C. was suspended on two occasions while
enrolled in the program, once for reckless behavior and once
for fighting. Id. at ¶ 8.
December 16, 2013, K.C's IEP Team met for a second
time. Id. at ¶ 9. The IEP Team concluded that
K.C. had an emotional disturbance that was affecting his
ability to be successful in a general education setting.
Id. In order to prevent his removal from that
setting, the IEP Team recommended that K.C. receive 26.5
hours of specialized instruction per week, and 120 minutes of
behavioral support services per month, both outside the
general education setting. Id.
February 27, 2014, K.C. received a psychoeducational
assessment. Id. at ¶ 11. Following an
examination of K.C., the evaluator recommended that K.C.
" be placed in a psychiatric residential treatment
program and a school with a therapeutic environment equipped
to work with youth who experience severe emotional
April 23, 2014, K.C's IEP Team met for a third time.
Id. at ¶ 12. It noted that K.C. continued to
behave inappropriately in school and concluded that his FBA
and Behavior Intervention Plan (" BIP" ) needed to
be updated. Id. at ¶ 12.
1, 2014, K.C.'s IEP Team met for a fourth time.
Id. at ¶ 13. It observed that K.C.'s
behavior continued to affect his educational performance,
that K.C. neither responded to the BIP in place nor any other
incentives, and that K.C. did not care whether he failed
seventh grade. Id. The IEP Team did not update
K.C.'s goals but it did revise his BIP and recommend that
he continue to receive 26.5 hours of specialized instruction
per week, and 120 minutes of behavioral support services per
month, both outside the general education setting.
Id. Nevertheless, in May of 2014, K.C. continued to
exhibit extremely erratic and disruptive behavior, including
bringing explosives to school. Id. at ¶ 15.
Plaintiffs' Administrative ...