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Tillman v. District of Columbia

United States District Court, D. Columbia.

July 29, 2015

CASSUNDRA TILLMAN et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant

         Order Filed: August 24, 2015

Page 50

          For CASSUNDRA TILLMAN, Parent and Next Friend of K.C., a minor, K. C., Plaintiffs: Robert Wilson Jones, JAMES E. BROWN & ASSOCIATES, PLLC, Washington, DC.

         For DISTRICT OF COLUMBIA, A Municipal Corporation, Defendant: Tasha Monique Hardy, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL/DC, Washington, DC.

Page 51

         MEMORANDUM OPINION

         COLLEEN KOLLAR-KOTELLY, United States District Judge.

         On July 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 [21] 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 [10] Motion for Summary Judgment and Defendant's [12] Cross-Motion for Summary Judgment.

         Plaintiff 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.

         This Court dismisses this case in its entirety.

         An appropriate Order accompanies this Memorandum Opinion.

         ORDER

         For the reasons set forth in the accompanying Memorandum Opinion, it is, this 24th day of August, 2015, hereby

         ORDERED that Magistrate Judge G. Michael Harvey's [21] Report and Recommendation is ADOPTED and ACCEPTED in full.

         It is hereby ORDERED that Plaintiff's [10] Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART.

         It is further ORDERED that Defendant's [12] Cross-Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART.

         It is 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

         It is further ORDERED that Defendant shall make this payment to Plaintiff no later than October 1, 2015.

         This case is dismissed in its entirety.

         SO ORDERED.

         This is a final, appealable order.

         REPORT AND RECOMMENDATION

         G. MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE.

         This is 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][1] concerning plaintiffs'

Page 52

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.

         I. FACTUAL BACKGROUND

         A. K.C.'s Public Education

         Plaintiff 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.[2] Compl. at ¶ 7.

         The 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.

         In 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.

         The IEP 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).

         K.C.'s 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.

         K.C. 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 achievement and

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functional performance, and developed strategies to address K.C.'s behavior. Id.

         To 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.

         On December 16, 2013,[3] 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.

         On 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 disorders." Id.

         On 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.

         On May 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.

         B. Plaintiffs' Administrative ...


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