G.M. Ex Rel. Marchese v. Dry Creek Joint Elementary School District

FILED
NOT FOR PUBLICATION DEC 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
G. M., a minor, by and through his No. 12-17242
Guardian ad litem, Kevin R. Marchese, an
individual, and Lyndi Marchese, an D.C. No. 2:10-cv-00944-GEB-
individual; et al., GGH
Plaintiffs - Appellants,
MEMORANDUM*
v.
DRY CREEK JOINT ELEMENTARY
SCHOOL DISTRICT,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding
Argued and Submitted December 8, 2014
San Francisco, California
Before: O’SCANNLAIN, N.R. SMITH, and HURWITZ, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
G.M. and his parents (“G.M.”) appeal a grant of summary judgment to the
Dry Creek Joint Elementary School District (the “District”). We have jurisdiction
under 28 U.S.C. § 1291, and affirm.
1. The administrative law judge (“ALJ”) did not err in refusing to enter a
default judgment against the District for failing to file a pleading responsive to the
parents’ complaint within 10 days of service. The Individuals with Disabilities
Education Improvement Act (“IDEA”) only required the District to “send to the
parent a response” to the complaint. 20 U.S.C. § 1415(c)(2)(B); 34 C.F.R.
§ 300.508(e). A due process hearing is the redress for an unsatisfactory response.
See 20 U.S.C. § 1415(f)(1)(B)(ii).
2. The ALJ’s finding that G.M. was offered a free appropriate public
education (“FAPE”) for the 2009-2010 school year was supported by the evidence.
G.M. was not denied any educational benefits; he remained in his preferred
educational placement. See Doug C. v. Haw. Dep’t of Educ., 720 F.3d 1038, 1046
(9th Cir. 2013); A.M. ex rel. Marshall v. Monrovia Unified Sch. Dist., 627 F.3d
773, 779 (9th Cir. 2010).
3. The ALJ properly considered the August 28, 2009 individualized
educational program (“IEP”) meeting when evaluating whether G.M. was offered a
FAPE. The prehearing conference order filed six days before the hearing expressly
2
provided that the August 28 meeting would be addressed at the hearing. See 20
U.S.C. § 1415(c)(2)(E)(i)(II). Even if the August 5, 2009 IEP meeting was
procedurally deficient, the August 28, 2009 meeting cured these deficiencies. See
Ms. S. ex rel. G. v. Vashon Island Sch. Dist., 337 F.3d 1115, 1136 (9th Cir. 2003)
(holding that defective parental notice for IEP meetings did not cause a denial of
FAPE in light of a later meeting), superseded by statute on other grounds, 20
U.S.C. § 1414(d)(1)(B).
4. The district court properly granted summary judgment to the District on
G.M.’s claims under section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§ 794(a). G.M. failed to present evidence that the District acted with deliberate
indifference or that he was denied any educational benefits.1 See Duvall v. Cnty. of
Kitsap, 260 F.3d 1124, 1135, 1138 (9th Cir. 2001).
5. The district court correctly held that G.M.’s state law claims for money
damages were barred by the California Government Claims Act. See Cal. Gov’t
Code § 945.4; Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 627 (9th Cir.
1988).
1
G. M.’s 42 U.S.C. § 1983 claim against the California Department of Education
for alleged IDEA violations is barred by Blanchard v. Morton School District, 509
F.3d 934, 936 (9th Cir. 2007).
3
6. The ALJ did not clearly err in awarding attorneys’ fees to the District.
See Cal. Gov’t Code § 11455.30; 1 Cal. Code Regs. § 1040(a).2
7. G.M.’s request for judicial notice of his 2011 appeal is denied as moot
because documents relating to that appeal are already in the record. His request for
judicial notice of a proposed stipulation not filed in the administrative proceedings
is denied. Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003) (“Save in
unusual circumstances,” this court considers “only the district court record on
appeal.”).
AFFIRMED.
2
We reject any attempt by G.M. to re-litigate the district court’s stay-put order,
which was held moot in light of G.M.’s promotion to high school in G.M. v. Dry
Creek Joint Elementary School District, 458 Fed. App’x. 654 (9th Cir. 2011). See
Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036, 1037 (9th Cir. 2009) (“A
motion for stay put functions as an ‘automatic’ preliminary injunction. . . .”);
Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. USDA, 499
F.3d 1108, 1114 (9th Cir. 2007) (finding that, when ruling on a preliminary
injunction, “[a]ny of our conclusions on pure issues of law . . . are binding”). In light
of our prior disposition, G.M.’s request for judicial notice of his certificate of
promotion from the District is moot.
4