UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT
Dana DeMerchant and Gary : DeMerchant, : Plaintiffs, :
v. : File No. 1:05-CV-316
Springfield School District, : Vermont Department of : Education, and Dan Jerman, : Defendants. :
OPINION AND ORDER (Papers 11 and 15)
Plaintiffs Dana and Gary DeMerchant, each proceeding pro
se, are the parents of a child who is seeking special
education services under the Individuals with Disabilities
Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”). The
DeMerchants claim not only that their child has been
wrongfully denied the services to which he is entitled, but
also that their rights as parents have been violated. With
respect to the latter claim, the DeMerchants assert that they
tried to raise their concerns at a due process hearing, but
the hearing officer barred them from presenting the issues
they wanted reviewed.
Defendant Vermont Department of Education (“DOE”) has
moved for judgment on the pleadings (Paper 11), arguing that
the proper defendant is the hearing officer, and that the
complaint alleges no specific wrongdoing by the DOE.
Defendant Springfield School Department (“School Department”)
has moved to dismiss (Paper 15), arguing that the DeMerchants
cannot bring claims on behalf of their son while proceeding
pro se. The School Department concedes, however, that the
DeMerchants may bring claims pro se for violations of their
own rights under the IDEA. For the reasons set forth below,
the motions submitted by the DOE and the School Department are
GRANTED.
Factual Background
For purposes of the pending motions, the allegations in
the complaint will be accepted as true. The DeMerchants’ son,
K.D., has attended school in the Springfield School District
since 2002. He arrived in Springfield with an Individualized
Education Plan (“IEP”) that “hinted at an Autism Spectrum
Disorder . . . .” (Paper 5 at 1). After the DeMerchants
repeatedly requested testing for their son, the School
Department authorized an observation in February, 2004. As a
result of the observation, the DeMerchants were told that
K.D.’s education plan needed to be altered. The School
Department did not implement the recommended changes, and
K.D.’s condition quickly declined. As the DeMerchants explain
in their complaint:
None of the school districts [sic] doctors [sic] recommendations from the observation were put into place. One month later our son collapsed. He was vomiting, had total loss of bowel control to the point of being put into a diaper and he refused to eat. He refused to eat for about 7 weeks, he went
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from 130 lbs to 106 lbs and in the end he was admitted into the hospital.
Id.
During his hospitalization, K.D. was diagnosed with “an
Autism Spectrum Disorder.” Id. Upon his release, it was
recommended that he receive a one-on-one aide. This
recommendation was never adopted. Moreover, the School
District “felt the need to try to prove [K.D.] truant,” and
K.D. was “forced back into school without any of the supports
his doctors say he needs. It was at this point that he
started to collapse again and had to be medicated.” Id.
In November, 2004, the School District allegedly removed
K.D.’s IEP based upon a physician’s statement that K.D.’s
diagnosis had been withdrawn. The DeMerchants challenged the
removal of the IEP, and a telephonic due process hearing was
held. The hearing officer, defendant Dan Jerman, allegedly
limited the hearing to the question of whether testing had
been performed on K.D., and did not allow the DeMerchants to
speak. When the DeMerchants attempted to challenge the
results of the testing, and to present evidence of independent
test results, Jerman allegedly informed them that those issues
would need to be raised in a second due process hearing. Id.
at 2.
A second due process hearing was scheduled, but the
DeMerchants were told that they would not be allowed to
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present any issues that could have been raised at the first
due process hearing. Consequently, the DeMerchants are
appealing the first due process hearing “based on the fact
that it was solely limited to a phone call, it did not address
the scope of the corrective measures outlined in the
administrative complaint or any of our documented protest
letters . . . .” Id. The DeMerchants further claim that
Jerman failed to allow “the evidence to be presented and
argued.” Id. In a separate filing (Paper 20), the
DeMerchants have submitted a “Request for Relief” seeking
substantive relief for their son, including independent
testing at a specific hospital in Boston, removal of Jerman as
a hearing officer, and monitoring of Jerman’s past and present
cases.
Discussion
I. Legal Framework
On a motion to dismiss or a motion for judgment on the
pleadings, the Court must read the plaintiff’s complaint with
generosity. See Irish Lesbian and Gay Organization v.
Giuliani, 143 F.3d 638, 644 (2d Cir. 1999) (same test applies
under Rules 12(b)(6) and 12(c)); Bolt Elec., Inc. v. City of
New York, 53 F.3d 465, 469 (2d Cir. 1995). Taking the
allegations in the complaint as true, the court must construe
the complaint in the light most favorable to the plaintiff,
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and must draw all inferences in plaintiff’s favor. See Warth
v. Seldin, 422 U.S. 490, 502 (1975); Cosmas v. Hassett, 886
F.2d 8, 11 (2d Cir. 1989). The complaint must not be
dismissed unless “‘it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.’” EEOC v. Staten Island Sav. Bank, 207
F.3d 144, 148 (2d Cir. 2000) (quoting Conley v. Gibson, 355
U.S. 41, 45-46 (1957)).
Indeed, there is an important difference between
disposing of a case at the outset and resolving the case later
in the proceedings, for example by summary judgment. See
Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998). In a
motion to dismiss, “the issue is not whether a plaintiff is
likely to prevail ultimately, but whether the claimant is
entitled to offer evidence to support the claims.” Id.
(citations and internal quotation marks omitted). Pro se
complaints are to be construed more liberally than complaints
drafted by trained attorneys. Haines v. Kerner, 404 U.S. 519,
520 (1972).
II. Department of Education’s Motion for Judgment
The DOE has moved for dismissal and judgment on the
pleadings pursuant to Fed. R. Civ. P. 12(b)(6) and 12(c),
arguing that the complaint is void of any specific allegations
against it. The DOE further claims that it cannot be held
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liable for the actions of an independent hearing officer. In
response, the DeMerchants contend that “the department allowed
Mr. Jermans [sic] failure to comply with the [IDEA] and
Vermont Department of Education’s Special Education
Regulations. . . . We also feel the department allowed its
own corrective measures to be violated by not ensuring that
Due Process came to a lawful end.” (Paper 19 at 2-3).
It is the obligation of the state DOE to establish a
process that complies with the IDEA, and for assuring that the
IDEA’s requirements are carried out. See 20 U.S.C. § 1415;
Fetto v. Sergi, 181 F. Supp. 2d 53, 74 (D. Conn. 2001) (“the
state has complied by establishing a due process hearing
procedure whereby any given IEP can be challenged and
changed”). Once a procedure is established and an independent
hearing officer is chosen, the DOE has no power to review the
hearing officer’s determination. See Lillebask v. Sergi, 117
F. Supp. 2d 192, 198 (D. Conn. 2000). Therefore, the general
rule is that the actions of individual hearing officers will
not impute IDEA liability to state defendants. See Pachl ex
rel. Pachl v. Seagren, 373 F. Supp. 2d 969, 980 (D. Minn.
2005); Lillebask, 117 F. Supp. 2d at 198; Fritschle v. Andes,
25 F. Supp. 2d 699, 705 (D. Md. 1998).
In Lillebask, the court explained that state departments
of education are deliberately separated from the hearing
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officer and his decision-making. “The IDEA affords parents
and children procedural safeguards to obtain appropriate
guarantees of education. . . . These procedural safeguards,
in part protect and insulate parents and their children, from
department of education political machinations. . . . With
the procedural system in place, parents, local school boards,
hearing officers, and this court must ensure that [a
plaintiff’s] substantive interests are protected.” Lillebask,
117 F. Supp. 2d at 198. Because the IDEA’s due process system
isolates the DOE from the decision of the independent hearing
officers, “[l]iability may not flow from decisions over which
State Defendants have no control and can not legally
influence.” Id.
The DeMerchants’ complaint focuses primarily on the
allegedly wrongful acts by the hearing officer. In their
subsequent filings, they argue that the DOE bears substantial
responsibility for those acts. The law dictates, however,
that because the DOE has no power over the hearing officer or
his rulings, it cannot be held liable for his actions. The
DOE’s motion for judgment on the pleadings is, therefore,
GRANTED, and the DOE is DISMISSED from this case.
III. School Department’s Motion to Dismiss
The School Department has also moved to dismiss, arguing
that the DeMerchants may not proceed pro se on behalf of their
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son. To the extent that the DeMerchants are claiming
infringements on their rights as parents under the IDEA, the
School Department concedes that such claims may be brought
without the assistance of counsel. Nonetheless, the School
Department maintains that any claims for substantive relief on
behalf of K.D. must be brought by an attorney.
The Second Circuit has recognized parents’ rights under
the IDEA, and has allowed for pro se suits brought by parents
seeking to enforce those rights. Wenger v. Canastota Cent.
Sch. Dist., 146 F.3d 123, 126 (2d Cir. 1998), cert. denied,
526 U.S. 1025 (1999). In Wenger, the court stated that the
father was “of course, entitled to represent himself on his
claims that his own rights as a parent under the IDEA were
violated by the defendants’ failure to follow appropriate
procedures.” Id. (emphasis in original). Therefore, as the
School Department properly acknowledges, the DeMerchants may
proceed on their claims that they, as parents, were wrongfully
denied meaningful participation in the due process hearing.
In response to the School Department’s motion, the
DeMerchants state that “[w]e in truth are not representing
[K.D.] we are representing ourselves, this case is about the
DOE ordered Due Process hearing and the fact that it did not
happen. It is the rights afforded to us that have been
violated, it is a sad end result that those violations impact
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[K.D.].” (Paper 18 at 1). It would appear from these
statements that the DeMerchants seek only to litigate their
claim that they, as parents, were denied meaningful
participation in the due process hearing. In a filing
submitted on the same date as their response, however, the
DeMerchants filed a “Request for Relief” (Paper 20) in which
they set forth the substantive relief they are seeking for
their son. This relief would consist of an order requiring
independent testing, which the DeMerchants prefer to have
performed at Children’s Hospital in Boston. In essence, this
request seeks to overturn the determination by the hearing
officer, and to grant K.D. the publicly-funded independent
testing that his parents claim he requires.
The Second Circuit has held that parents may not bring an
action pro se to enforce the rights of their child, and that
the child must instead be represented by counsel. See Cheung
v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61
(2d Cir. 1990); Wenger, 146 F.3d at 124-25. “Where [minors]
have claims that require adjudication, they are entitled to
trained legal assistance so their rights may be fully
protected.” Cheung, 906 F.3d at 61. Indeed, the Second
Circuit recently reiterated the “general rule . . . that a
parent not admitted to the bar cannot bring an action pro se
in federal court on behalf of his or her child.” Tindall v.
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Poultney High Sch. Dist., 414 F.3d 281, 286 (2d Cir. 2005).
Accordingly, to the extent that the DeMerchants seek to
enforce their son’s substantive rights, and to obtain
substantive relief on his behalf, they must retain counsel.
If, within 45 days after the date hereof, counsel files an
appearance on behalf of K.D., K.D.’s substantive claims may
proceed. The failure of counsel to enter such an appearance
will result in the dismissal of K.D.’s claims without
prejudice. The Court expresses no opinion at this time with
respect to the merits of K.D.’s substantive claims.1 To the
extent that the DeMerchants are claiming that their rights as
parents under the IDEA were violated, their pro se claims may
proceed.
Conclusion
For the reasons set forth above, the DOE’s motion for
judgment on the pleadings (Paper 11) and the School
Department’s motion to dismiss (Paper 15) are GRANTED. Any
substantive claims being brought on behalf of K.D. will be
1 The School Department has requested a pretrial conference “to elicit from the Plaintiffs specificity regarding their allegations so that this matter may proceed to its conclusion as efficiently and expeditiously as reasonably possible.” (Paper 23 at 5). In light of the Court’s ruling on the motions to dismiss, it is presumed that a conference may no longer be required. If the parties still seek a status conference, they shall so notify the Court.
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dismissed without prejudice unless counsel enters an
appearance on his behalf as set forth above.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this
7th day of August, 2006.
/s/ J. Garvan Murtha J. Garvan Murtha United States District Judge
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