Tallman v. Barnegat Board of Education

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
8-21-2002
Tallman v. Barnegat Bd of Ed
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-2423
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-2423
JANE TALLMAN; RICHARD TALLMAN, individually, and as
Administrators ad Prosequendum on behalf of Jason Michael
Tallman, deceased
v.
BARNEGAT BOARD OF EDUCATION; THE STATE OF NEW JERSEY;
THE STATE OF NEW JERSEY DEPARTMENT OF EDUCATION,
Division of Special Education, Division of Compliance,
Bureau of Controversies and Deputies; STATE OF NEW JERSEY
DEPARTMENT OF HUMAN SERVICES, DIVISION OF YOUTH AND FAMILY
SERVICES; JILL STANICK; ANNE G. STERNER; JOAN HELEINE; GAYLE
GUNNING; JEFFREY OSOWSKI, DR.; ROBERT L. HORBERT, DR.;
CHERYL L. GOLDEN
v.
BARNEGAT BOARD OF EDUCATION; JILL STANICK; ANNE G. STERNER;
JOAN HELEINE; GAYLE GUNNING; ROBERT L. HORBERT, DR.,
Third-Party Plaintiffs
v.
KIDSPEACE CORP. d/b/a WILEY HOUSE; DEAN SINE,
Third-Party Defendants
(District Court No. 95-cv-02351)
JANE TALLMAN; RICHARD TALLMAN, individually, and as
Administrators as Prosequendum on behalf of Jason
Michael Tallman, deceased
v.
BARNEGAT BOARD OF EDUCATION; THE STATE OF NEW JERSEY;
THE STATE OF NEW JERSEY DEPARTMENT OF EDUCATION, Division/
Office of Special Education, Division of Compliance, Bureau
of Controversies and Disputes; STATE OF NEW JERSEY OFFICE
OF ADMINISTRATIVE LAW; JILL STANICK; ANNE G. STERNER; JOAN
HELEINE; GAYLE GUNNING; ROBERT L. HORBERT, DR.; CHERYL L.
GOLDEN; DAVIS C. HESPE, Commissioner of the Department of
Education; JEFFREY OSOWSKI, Assistant Commissioner Division
of Information and Management Services
v.
BARNEGAT BOARD OF EDUCATION; JILL STANICK; ANNE G. STERNER;
JOAN HELEINE; GAYLE GUNNING; ROBERT L. HORBERT, DR.,
Third-Party Plaintiffs
v.
DEAN SINE; KIDSPEACE CORPORATION d/b/a WILEY HOUSE,
Third-Party Defendants
(District Court No. 00-cv-01175)
JANE TALLMAN; RICHARD TALLMAN, individually, and as
Administrators as Prosequendum on behalf of Jason
Michael Tallman, deceased,
Appellants
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Dist. Court Nos. 95-CV-02351 and 00-CV-01175 (consolidated)
District Judge: Anne E. Thompson
Argued March 8, 2002
Before: BECKER, Chief Judge, and ALITO and RENDELL, Circuit Judges.
(Opinion Filed: August 21, 2002)
S. ROBERT PRINCIOTTO (Argued)
Marcus & Levy
80 Broadway, 2nd Floor
Elmwood Park, NJ 07407
Counsel for Appellants
ROBERT A. MORLEY (Argued)
Law Office of Stephen E. Gertler
1350 Campus Parkway
Wall, NJ 07719
Counsel for Appellees Barnegat
Board of Education, et al.
TODD J. SCHWARTZ
HOWARD J. McCOACH (Argued)
Office of Attorney General
of New Jersey
25 Market Street
Trenton, NJ 08625
Counsel for Appellees State of
New Jersey, et al.
OPINION OF THE COURT
PER CURIAM:
Richard and Jane Tallman, parents of the deceased Jason Tallman, take this appeal
from the District Court’s grant of summary judgment against them on their damages claim
under 42 U.S.C. § 1983 for violations of the Individuals with Disabilities Education Act, 20
U.S.C. § 1400 et seq. (“IDEA”). The Tallmans’ son, Jason, died after being restrained at a
3
residential school at which he had been placed under the IDEA, and the Tallmans contend
that violations of the IDEA and implementing regulations were proximate causes of his
death. Jason’s death was a tragedy, but we are compelled to conclude that summary
judgment was proper.
I.
A.
Jason Tallman, then 12 years old, died in May 1993 as a result of injuries suffered
while a student at Wiley House, a highly structured residential school in Pennsylvania for
troubled youth. Although blessed with a high I.Q., Jason had a long history of disruptive
behavior and had been diagnosed as suffering from hyperactivity, dysgraphia, metal toxicity,
and emotional disturbance.
Jason attended a public elementary school in Barnegat, New Jersey, through the
third grade, but he exhibited behavioral problems. In the fall of 1990, Jason’s parents
enrolled him in a Catholic school in Toms River, where his behavior was at times highly
inappropriate and threatening. He composed a rhyme that culminated in blowing his
teacher’s head off with a bazooka, and he threatened to kill his teacher and bomb the school.
See App. 340. After Christmas, he was asked to leave the school and was again enrolled in
the Barnegat public school system, where his behavioral problems, including running away
and threatening the vice-principal, continued.. See App. 365-70, 845-48. Jason was
evaluated, and during the following summer it was recommended to the Tallmans that they
consider a classification of emotionally disturbed.
4
Instead, the Tallmans again removed Jason from the Barnegat school system and
enrolled him in the fall of 1991 in Admiral Farragut Academy in Pine Beach, New Jersey.
In January 1992, he was asked to leave Admiral Farragut.
The Tallman family then admitted themselves for treatment at the Philaldelphia
Guidance Center. App. 380. During his first three days at the Center, Jason’s medication
was changed and, according to his mother, he became “[e]xtremely wild, totally out of
control.” App. 383. He was then admitted to the Horsham Clinic. See id. at 384. There,
according to a physician’ report, Jason “was extremely uncooperative with the examiner”
and “was often aggressive with his mother and required her to keep him in constant
restraint. He kicked and hit her several times, and at one point tried to trash [the doctor’s]
office” and “caused significant damage.” Id. at 570. At one point, Jason, who was then 10
years old, “had to be escorted out of the office by security and mental health technicians
because he was extremely aggressive and dangerous.” Id.In March 1992, the Tallmans once again enrolled Jason in the Barnegat public
school system, and he was classified as emotionally disturbed. He was assigned
temporarily to home instruction, while the Tallmans and staff of the Barnegat Board of
Education and New Jersey’s Division of Youth and Family Services (“DYFS”) began a
largely cooperative search for a school outside the Barnegat district where Jason could be
placed at public expense. At first, they applied only to day schools. Only one day school
accepted Jason’s application, but the Tallmans found that school, Archway, unacceptable,
primarily because it “did not take in the educational, the giftedness along with disabilities.”
5
App. 392. The search then widened to include in-state residential schools, but Jason was
rejected from the all those to which his application was sent.
The search was expanded further to include out-of-state residential institutions, and
this time the Wiley House in Pennsylvania offered to take Jason. Contemporaneously, the
Tallmans, acting independently, secured a place for Jason at the Grove School in
Connecticut. The Barnegat team visited both schools and decided that Wiley House was
“superior.” App. at 998. The Grove School soon rescinded its offer to Jason, after a DYFS
staffer provided the school with records from the Horsham Clinic suggesting (incorrectly,
according to the Tallmans) that Jason had started fires. Thus, after the Tallmans and the
Barnegat defendants together undertook three rounds of an ever-widening search, Wiley
House was the only residential school still willing to take Jason.
The Tallmans initially resisted placing Jason at Wiley House, contending that the
Grove School better served Jason’s needs because its structure was less rigid and its
environment was more suited for gifted students. Because of this disagreement over which
school was more appropriate, Mrs. Tallman did not sign the Individual Education Program1
(“IEP”) that she and the Barnegat Child Study Team had jointly drafted. The Tallmans
requested a due process hearing, and one was scheduled before Administrative Law Judge
Joseph Martone (“the ALJ”). Before the hearing, however, the parties entered into a
1
An IEP is a detailed instruction plan developed for each child classified as
disabled. The basic components of the IEP are mandated by § 1414(d) of the IDEA. State
regulations make further specifications.
6
settlement on January 28, 1993, and on February 1 the ALJ approved the settlement. Under
this settlement, Jason would enter Wiley House, but the question whether permanent
placement there was appropriate would be postponed until after Jason was admitted and
evaluated at Wiley House. Thus, Jason finally entered Wiley House on May 11, 1993, but
without a completed IEP. The next day, a staff member at Wiley House, while breaking up a
dispute between Jason and another student, physically restrained and fatally injured Jason.
Jason died within a day.
B.
The procedural history of this litigation begins in 1995, when the Tallmans,
proceeding in their individual capacities and as administrators ad prosequendum of Jason’s
estate, filed a complaint for money damages pursuant to the Individuals with Disabilities
Education Act (IDEA), 20 U.S.C. § 1400 et seq., Section 504 of the Rehabilitation Act, 29
U.S.C. § 794, the Civil Rights Act, 42 U.S.C. § 1983, the Handicapped Children’s
Protection Act of 1986 (HCPA), 20 U.S.C. § 1415(e), and the Family Education Rights and
Privacy Act (FERPA), 20 U.S.C. § 1232g. See App. at 25. The complaint named as
defendants the State of New Jersey, its Departments of Education (DOE) and Human
Services (DHS), Jason’s DYFS case worker (Cheryl Golden), and a DOE representative
(Jeffrey Osowski). Also named were the Barnegat Board of Education, Jason’s Child Study
Team (Jill Stanick, Anne Sterner, and Joan Heleine), the director of special education
(Gayle Gunning), and Barnegat’s superintendent (Robert Horbelt). (We will refer to this
latter group of defendants collectively as “the Barnegat defendants.”)
7
In January 1996, the District Court dismissed some of the Tallmans’ claims, viz.,
their § 1983 claims against the State of New Jersey and its departments, their FERPA
claims, and their direct claims under the IDEA against DHS and Golden. In September
1997, the District Court granted summary judgment in favor of the State, DOE, DHS, and
Cheryl Golden on the remaining claims against them. The Court also granted summary
judgment in favor of the Barnegat defendants on the claims under the Rehabilitation Act and
FERPA. In March 1998, the District Court “remanded” the case to ALJ Martone for an
evidentiary hearing to determine whether the Barnegat defendants had violated the IDEA.
The ALJ expressed doubt about his jurisdiction to conduct a hearing and make
determinations in this action, but he proceeded in accordance with the District Court’s
directions and considered eight violations of the IDEA alleged by the Tallmans: (1)
“exploring day placements and placing [Jason] on home instruction without the benefit of an
IEP,” (2) “failing to provide [Jason] with a continuum of alternative placements,” (3)
“placing [Jason] on home instruction for the 1992-93 school year, this being the most
restrictive placement,” (4) “placing [Jason] in [a] non-approved placement,” (5) “failing to
recognize the unsegregability of [Jason’s] disabilities,” (6) violating the child find
requirements,” (7) “failing to assess all areas of suspected disability,” and (8) failing to
include the parents as joint and equal participants in the IEP process.” App. 127. The ALJ
rejected all but two of these alleged violations.
The first violation found by the ALJ was that the Barnegat defendants had violated
the IDEA by placing Jason on home instruction without the benefit of an IEP during the
8
period from March to May of 1992 (one year before his death). The Barnegat defendants
contended that an initial IEP had probably been prepared in March before the period in
question, but Mrs. Tallman disagreed, and the earliest IEP produced by the defendants was
prepared in May. The ALJ accordingly found that the Barnegat defendants had “violated the
IDEA by placing [Jason] on home instruction wihout the benefit of an IEP from March until
May 1992.” Id at 130.
The second violation found by the ALJ was that the Barnegat defendants made “the
determination to place [Jason] in either a day placement, or subsequently, in a residential
placement, without the benefit of an IEP.” App. 130. He credited the testimony of the
director of the child study team that the procedure in cases such as Jason’s was to find a
placement and prepare a conforming IEP later, and he concluded that this clearly violated
the IDEA and implementing regulations. Id.
The ALJ went on to observe that the entire proceeding should be dismissed because
the parties had settled all IDEA issues at the time of Jason’s placement at Wiley House.
“At that time,” the ALJ wrote, “it was agreed that [Jason] would become a resident of Wiley
House based on the agreement that Wiley House was a more appropriate placement tha[n]
home instruction, and that there would be an independent evaluation of [Jason]. At that
time, petitioners had the opportunity to pursue any claims they may have had that the
[district] violated the procedural requirements of the IDEA [in any of the ways alleged]’ but
that they “chose not to do so” and instead to settle the matter.” Id.
Apparently as a means to appeal the ALJ’s decision, the Tallmans filed a second
9
complaint in federal court in March 2000. This second action made virtually identical
claims as the 1995 action. It asserted violations of the IDEA, the Rehabilitation Act,
HCPA, FERPA, and § 1983. However, instead of naming the DHS or DYFS as defendants,
the new complaint named the State of New Jersey Office of Administrative Law (OAL) and
the Commissioner of the DOE.
In November 2000, the District Court reinstated the 1995 action and dismissed
most of the claims in the 2000 complaint under res judicata. The Court dismissed the
claims against the OAL on the ground that the complaint failed to state a claim on which
relief could be granted and on the ground of judicial immunity. App. 144-47. Finally, in
May 2001, the Court granted the Barnegat defendants’ motion for summary judgment on
the claims asserted in the 1995 complaint. The Court accepted the ALJ’s findings that
there had not been strict compliance with the IDEA in two respects, but the Court held that
these were “technical” and not “actual” violations. Id. at 158. In addition, the court found
that “the technical violations by the Barnegat defendants” did not constitute a proximate
cause of Jason’s death. Id. The Court also granted Wiley House’s motion for summary
judgment on the Barnegat defendants’ claim for indemnification and contribution. The
Tallmans then took this appeal.
II.
We first address the question whether the District Court erred in 1998 by remanding
the case to the ALJ for an evidentiary hearing on whether the defendants had violated the
IDEA. Most IDEA actions do not seek damages and are filed in federal district court only
10
after administrative proceedings that often result in the creation of an exhaustive
administrative record. The remand ordered by the District Court sought to place this
damages action in the same procedural posture as conventional IDEA actions, and we
therefore have no difficulty seeing why the District Court found this procedure to be
attractive. In addition, the District Court observed that neither party had objected to the
remand.
The Tallmans now argue, however, that this procedure constituted legal error for
two reasons -- because the ALJ lacked jurisdiction and because they were entitled to a jury
trial on their damages claims. The Tallmans take the position that the District Court’s error
in remanding the case to the ALJ should invalidate the District Court’s subsequent reliance
on the ALJ’s findings that the only IDEA violations were the two mentioned above.
We are inclined to agree that “remand” to the ALJ was improper. Neither the
District Court nor the defendants have offered a persuasive legal basis for this procedure.
We also note that the administrative remedial scheme could not provide the damages
sought by the Tallmans. See W.B. v. Matula, 67 F.3d 484, 495 (3d Cir. 1995) (“where the
relief sought in a civil action is not available in an IDEA administrative proceeding,
recourse to such proceedings would be futile”).
However, we see no reason why we cannot view the testimony of the various
witnesses at the hearing before the ALJ as the equivalent of depositions submitted in
support of a motion for summary judgment under Fed. R. Civ. P. 56(e). At oral argument,
counsel for the Tallmans conceded he had no objection to our taking this view of the
11
testimony before the ALJ.
III.
We now turn to the central issue in this appeal: whether the record is sufficient to
defeat summary judgment on the Tallmans’ IDEA claims for damages. Under the IDEA,
states receive federal funds for special education programs on the condition that they
implement policies to assure a “free appropriate public education” for all of its disabled
children. 20 U.S.C. § 1412(a)(1)(a). New Jersey fulfills its IDEA obligations through a
complex statutory and regulatory scheme currently codified at N.J.S.A. § 18A:46-1 et seq.
and N.J.A.C. § 6A:14-1 et seq. (formerly codified at N.J.A.C. § 6:28-1 et seq.).
The United States Supreme Court has summarized the statutory definition of a “free
appropriate public education” as consisting of “educational instruction specially designed
to meet the unique needs of the handicapped child, supported by such services as are
necessary to permit the child ‘to benefit’ from the instruction.” Board of Ed. v. Rowley,
458 U.S. 176, 188-89 (1982); see also 20 U.S.C. § 1401. In Ridgewood Board of Ed. v.
N.E., 172 F.3d 238 (3d Cir. 1999), we elaborated that an IEP, in order to meet this
standard, must provide “significant learning” and confer “meaningful benefit.” Id. at 247.
While an IEP need not maximize the potential of a disabled child, the benefit must be more
than “trivial.” Id. at 247 (citing Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d
171 (3d Cir. 1988)). Our Court, unlike some other courts of appeals,2 has held that a claim
2
See, e.g., Hall v. Knott County Bd. of Educ., 941 F.2d 402, 407 (6th Cir. 1991);
Miener v. State of Missouri, 800 F.2d 749, 753-755 (8th Cir. 1986).
12
for a violation of the IDEA may be brought under § 1983. See W.B. v. Matula, 67 F.3d 484(3d Cir. 1995).
As previously noted, the District Court accepted the ALJ’s factual finding that
defendants violated the IDEA when they placed Jason on home instruction without the
benefit of an IEP from March until May 1992 and when they made the determination to
place him in either a day or residential placement without the benefit of an IEP. App. 130.
Nevertheless, the District Court held that these violations were “technical” rather than
“substantive” and thus not “actual violation[s] of IDEA.” App. at 156-58. Besides the two
matters identified by the ALJ, the Tallmans continue to assert the same additional
violations that they pressed before the ALJ. Specifically, they allege that the Barnegat
defendants violated the IDEA by sabotaging Jason’s chance to enter the Grove School, by
instead placing him inappropriately at Wiley House (for fiscal reasons), by failing to
provide him with a continuum of placement options3, by failing to consider all Jason’s
disabilities, by attempting to exclude the Tallmans from the IEP process, and by refusing to
provide Jason with an education in the least restrictive environment.
The Barnegat defendants mount two lines of defense. First, they argue that, contrary
to the findings of the ALJ, they did not commit even “technical” IDEA violations. Second,
3
A federal regulation promulgated under the IDEA requires that the state provide a
continuum of placement options for the child. See 34 C.F.R. § 300.551. A corresponding
state regulation requires that the child must be placed in the “least restrictive” environment
along this continuum, as befits his or her disability. N.J.A.C. § 6A:14-1.1(b)2 (formerly at
§ 6:28-1.1(b)1). State statute lists the options that form the continuum of education
programs, from least to most restrictive. See N.J.S.A. § 18A:46-14.
13
they maintain that even if the technical IDEA violations cited by the ALJ did occur, they
“were no[t] the bad faith type of violation that the IDEA targets.” Appellees’ Br. at 25. The
Barnegat defendants emphasize that the IEP required by the IDEA constitutes “only a basic
floor of opportunity,” which was satisfied by placement at Wiley House. Id. They argue
that the IDEA does not require the optimal services or additional benefits, which the
Tallmans allege that the Grove School offered. See id. (citing Christen G. v. Lower Merion
School Dist., 919 F. Supp. 793, 813 (E.D. Pa. 1996)).
We have carefully reviewed all of the alleged violations of the IDEA, both those
accepted and those rejected by the ALJ, and we see no ground for reversing the grant of
summary judgment. We begin with the Tallmans’ argument that the failure to adopt an IEP
prior to Jason’s placement in Wiley House proximately caused his death. See Appellants’
Br. at 55-56. The Tallmans claim that if an IEP had been developed before Jason was
placed at Wiley House his death would have been prevented in two ways: (1) the IEP would
have shown that Wiley House was inappropriate for Jason so he would not have been placed
there in the first place and (2) if a psychiatrist’s treatment plan had been attached to Jason’s
IEP, it “would have recommended against negative means of holding Jason down” because
he would “respond to positive reinforcements.” Appellants’ Br. at 56.
This argument flies in the face of the settlement into which the Tallmans entered
prior to Jason’s placement at Wiley House. The settlement agreement provided for Jason
to be placed at Wiley House but also ordered an independent evaluation immediately upon
placement. The issue of whether Wiley House was an appropriate placement was held in
14
abeyance pending the completion of the independent evaluation. See App. at 731;
Appellants’ Br. at 17. Having agreed to Jason’s temporary placement at Wiley House, the
Tallmans cannot argue that his placement there without an IEP violated the IDEA.
The Tallmans note that after the settlement was reached and approved by the ALJ,
there was a further dispute about certain forms that Wiley House required the Tallmans to
sign as a condition of admission. However, none of the disputed issues can possibly be
viewed as a proximate cause of Jason’s death shortly after arriving at Wiley House.4
Some of the other violations alleged by the Tallmans also center on Jason’s
placement at Wiley House, and accordingly the settlement dooms these allegations as well.
In addition, these allegations suffer from other flaws. The Tallmans argue strenuously that
the Barnegat defendants violated the IDEA because Jason’s placement at Wiley House was
inappropriate. Appellants’ Br. at 35-37. The Tallmans recount Mrs. Tallman’s opposition
to Jason’s placement at the Archway School because it did not consider Jason’s “giftedness
along with the disabilities.” Id. at 36. The Tallmans also note the observations of a member
of the child study team that the Archway students were “streetwise” and “tough.” Id. The
Tallmans then argue that the Barnegat defendants nevertheless placed Jason in Wiley
4
The dispute concerned providing insurance and other financial data, granting
permission for Wiley House to conduct an evaluation of Jason, authorizing Wiley House to
provide certain mental health treatment, and Wiley House’s refusal to follow a vitamin
therapy regimen. See App. at 733.
The ALJ held that the forms could be reconciled with Jason’s rights and determined
that the parents should sign the forms. Id. The Tallmans did not take an administrative
appeal, and they do not challenge this decision in the present appeal.
15
House, which they claim was similar to Archway. Id. at 36-37. This discussion fails to
show that placement at Wiley House violated the IDEA. As noted, in order to
comply with the IDEA, a placement need not provide the maximum possible benefit but
must provide “significant learning” and confer “meaningful benefit.” Ridgewood Board, 172
F.3d at 247. The Tallmans’ argument does not show that Wiley House would not have done
this.
Moreover, the Tallmans fail to connect the features of Wiley House to which they
object with the events leading to Jason’s death. If the curriculum at Wiley House would not
have accommodated Jason’s intellectual gifts, that can hardly be viewed as a proximate
cause of his death within a short time after arriving at the school. As for the character of
the other students at Wiley House, it could be argued that character of the other students at
Wiley House precipitated the fight that led to the physical restraint that caused Jason’s
death, but the Tallmans have not pointed to evidence in the summary judgment record
supporting this chain of inferences. Jason had engaged in violent episodes in other settings,
and we have not been shown evidence from which a trier of fact might reasonably infer that
he would not have gotten into an altercation with another student if the students at Wiley
House had not been “streetwise” and “tough.”
The Tallmans complain at length that the Barnegat defendants “sabotaged” Jason’s
placement at the Grove School by providing the school with records from the Horsham
Clinic suggesting that Jason had been involved in starting fires. See Appellants’ Br. at 16-
17, 48-53. However, the only provision of law cited by the Tallmans in their discussion of
16
this matter is a New Jersey regulation providing that each district board of education shall
develop and adopt written policies and procedures to prevent “needless public labeling of
pupils with educational disabilities.” N.J.A.C. 6:28-1.4(a) (emphasis added) (former
codification scheme). Putting aside the question whether a violation of this state regulation
may be asserted under 42 U.S.C. § 1983, we do not see how privately providing records to a
school that specializes in the education of students with disabilities can be viewed as a
violation of this provision.5 The ALJ observed: “To claim that the reports of facilities at
which [Jason] was treated for his disability and illness should not be made available to a
prospective placement is illogical and inconceivable.” App. at 131. Without supporting
authority other than that cited to us by the Tallmans, we must likewise conclude that the
disclosure of the Horsham Clinic records did not violate the IDEA.
The Tallmans have thus failed to show on appeal that the Barnegat defendants acted
improperly in connection with the Grove School’s decision to withdraw its offer to enroll
Jason, and this failure logically dooms two of the Tallmans other claims, i.e., (1) that the
Barnegat defendants violated several New Jersey regulations by placing Jason in a more
restrictive school (Wiley House) rather than a less restrictive one (the Grove School) and
(2) that the Barnegat defendants favored Wiley House over Grove School for financial
reasons. Unless the Barnegat defendants acted improperly in disclosing the Horsham
Clinic records to the Grove School, they cannot be faulted for failing to place Jason in a
5
The Tallmans have not adduced evidence showing that the Barnegats knew that the
information in the Horsham Clinic records was incorrect.
17
school that refused to accept him.
With respect to the remaining violations alleged by the Tallmans, the summary
judgment record is insufficient to establish that the alleged violations were proximate
causes of Jason’s death. Proximate cause is an essential element of a claim seeking to
establish liability under § 1983. See Martinez v. California, 444 U.S. 277, reh’g denied,
445 U.S. 920 (1980).6 Although the question of proximate cause must often be submitted
to the trier of fact, summary judgment is proper if the record cannot reasonably support a
finding of proximate cause, and in prior § 1983 cases, we have upheld summary judgment
on this basis. See Best v. Essex County, 986 F.2d 54 (3d Cir. 1993) (no causal link
between prison overcrowding and assault of plaintiff-detainee by a fellow detainee);
Commonwealth Bank & Trust Co. v. Russell, 825 F.2d 12 (3d Cir. 1984), cert. denied, 471
U.S. 1131 (1985) (applying Martinez and finding insufficient causation between conduct of
prison and county officials and the murder committed by a recently escaped inmate).
With respect to many of the violations asserted by the Tallmans, the lack of
proximate cause is glaring. Several of the alleged violations occurred more than a year
before Jason was placed at Wiley House, and the Tallmans have not satisfactorily explained
how these alleged violations can reasonably be viewed as even but-for causes of Jason’s
6
Courts have generally found that proximate cause under § 1983 simply incorporates
the causation principles of common-law torts. See Stevenson v. Koskey, 877 F.2d 1435(9th Cir. 1989); Parratt v. City of Connersville, 737 F.2d 690 (7th Cir 1984); but see Doe v.
Rains County Indep. Sch. Dist., 66 F.3d 1402 (5th Cir. 1995) (adopting “a heightened
standard of proximate cause).
18
death. These alleged violations include the following: the failure to develop an IEP prior to
Jason’s placement in homebound instruction in March 1992 (Appellants’ Br. at 34-35); the
failure to provide a residential placement, rather than homebound instruction, during the
1991-92 school year (id. at 37-40); and the failure of the Barnegat Defendants to take
necessary steps to identify Jason’s disabilities before the time when they were finally
identified and evaluated in March 1992 (id. at 41).
Other alleged violations also have no apparent connection to Jason’s death. For
example, the Tallmans complain that the Barnegat defendants failed to recognize that Jason
had “problems with written language and medical problems” but that the Barnegat
defendants “only addressed his behavior.” Appellants’ Br. at 40. Jason’s death, however,
resulted from steps taken by a Wiley House employee to deal with a perceived behavioral
problem, and thus it is hard to see how the alleged failure of the Barnegat defendants to
recognize Jason’s other problems could be even a but-for cause of his death.
The same is true of the Tallmans’ argument that the Barnegat defendants did not
include them as joint and equal participants in the IEP process because the Barnegat
defendants did not, among other things, support the Tallmans’ desire that vitamin therapy be
included as part of Jason’s IEP. See Appellants’ Br. at 41-42. How the inclusion of such
therapy might have prevented Jason’s death the Tallmans do not explain. In sum, we hold
that none of the violations alleged by the Tallmans provide a basis for recovering damages
19
for Jason’s death or injuries suffered at Wiley House.7
IV.
We come, finally, to the Tallmans’ argument that the District Court should not have
dismissed their second complaint and their new claim against the OAL. The Tallmans argue
that the second complaint and the OAL claim challenged “the OAL and Department of
education’s failure to provide [them] with the procedural safeguards required by the IDEA.”
Appellants’ Br. at 58. However, because we have not relied in any way on any
determination made by the ALJ, we cannot see how the Tallmans can possibly have been
7
Seeking to circumvent the lack of evidence showing that IDEA violations were
proximate causes of Jason’s death, the Tallmans argue that they are also seeking damages
for intangible injuries stemming directly from those violations. The Tallmans argue that
these IDEA violations proximately caused Jason to lose something in addition to his life,
namely, “the loss of a statutory right to a free appropriate public education” while he was
still alive. Appellants’ Br. at 56.
However, the alleged violations that are not based on Jason’s placement at Wiley
House – for example, the failure to develop an IEP prior to Jason’s placement in
homebound instruction from March to May 1992 – are so insubstantial that they are not
actionable. See Doe v. Alabama State Dept. of Educ., 915 F.2d 651, 662 (11th Cir. 1990)
(because the IEP-related violations at issue “had no impact on the [parents’] full and
effective participation in the IEP process and because the purpose of the procedural
requirement was fully realized, . . . there has been no violation in this case which warrants
relief”); Tice v. Botetourt County School Board, 908 F.2d 1200 (4th Cir. 1990) (denying
relief for “procedural violations [that] had no impact on whether [the child’s ] IEP
adequately” provided him with a free appropriate public education); Evans v. District No. 17
of Douglas County, Neb., 841 F.2d 824 (8th Cir. 1988) (denying relief after concluding that
the school’s failure to reevaluate the child at the appropriate time did not harm the child’s
educational progress in any way). See also Doe v. Defendant I, 898 F.2d 1186 (6th Cir.
1990) (holding that a delay in completing IEP was acceptable where the parents requested
that intervention be postponed until after a trial period); Myles v. Montgomery County Bd.
of Educ., 824 F. Supp. 1549 (M.D. Alabama 1993) (excusing a delay in completing an IEP
as a merely technical violation).
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harmed by any action taken by the ALJ, the OAL, or the DOE in connection with the
remand. In any event, we see no merit in the Tallmans arguments regarding this issue.
We have the greatest sympathy for loss that the Tallmans have suffered and can well
understand their belief that the educational authorities collectively should have done
something to prevent the death of a gifted but troubled 12-year-old boy. However, after
carefully considering all of the Tallmans’ arguments, we see no ground for reversing the
order of the District Court. If Jason’s death was wrongful, the proper remedy is provided
by state tort law, not the IDEA. 8
III.
For the reasons explained above, we affirm the District Court’s award of summary
judgment to the Barnegat defendants. As a result, we need not determine whether the thrid-
party defendants are subject to indemnification and contribution.
8
The Tallmans note in their brief that they filed a wrongful death action against
Wiley House and others in the United States District Court for the Eastern District of
Pennsylvania and that the case was settled. See Appellants’ Br. at 1.
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