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 : and Dan Jerman, : Defendants. :
OPINION AND ORDER (Paper 34)
Plaintiffs Dana and Gary DeMerchant, each proceeding pro
se, are the parents of a child who has sought special
education services under the Individuals with Disabilities
Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”). The
DeMerchants claim that their child was wrongfully denied the
services to which he was entitled, and that their rights as
parents were violated. With respect to the latter claim, the
DeMerchants assert that they tried to raise their concerns at
a due process hearing, but that hearing officer Dan Jerman
barred them from presenting the issues they wanted reviewed.
Currently pending before the Court is Jerman’s motion to
dismiss on grounds of quasi-judicial immunity. The
DeMerchants have not filed a response to the motion. For the
reasons set forth below, Jerman’s motion to dismiss (Paper 34)
is GRANTED.
Factual Background1
For the purpose of deciding Jerman’s motion to dismiss,
the allegations in the plaintiffs’ complaint will be accepted
as true. According to the complaint, 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
District 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
District did not implement the recommended changes, and K.D.’s
condition quickly declined. As the DeMerchants explain:
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
1 These facts were set forth in a prior decision (Paper 30), and are largely repeated here. The facts have been taken primarily from the allegations in the DeMerchants’ complaint. Additional facts come from the record of administrative proceedings, which the Court may consider on a motion to dismiss. See Blue Tree Hotels Inv. (Canada) Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004) (court may look to public records when deciding a motion to dismiss); Wang v. Pataki, 396 F. Supp. 2d 446, 453 n.1 (S.D.N.Y. 2005) (court may consider documents submitted in administrative proceedings, as well as public documents, when deciding a motion to dismiss).
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eat. He refused to eat for about 7 weeks, he went 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 doctor’s statement that K.D.’s
diagnosis had been withdrawn. After the School District
declined to pay for an independent evaluation of K.D., the
DeMerchants filed an Administrative Complaint with the Vermont
District of Education (“DOE”). The DOE assembled an
investigative team, which found that the School District had
failed to comply with the relevant state and federal
regulations. Specifically, the team concluded that the School
District had been required either to provide an independent
evaluation at public expense, or to initiate a due process
hearing to show that its evaluation was appropriate. As a
remedy for this violation, the DOE ordered the School District
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to “either ensure that it will provide for an [independent
evaluation] for KD at public expense” or initiate a due
process hearing by June 17, 2005. (Paper 34-2 at 7). The
School District subsequently filed a timely request for a due
process hearing. (Paper 34-3 at 1). As indicated in the
DOE’s order, the question presented at the hearing was whether
the School District’s evaluation of K.D. was appropriate.
The DeMerchants now claim that the due process hearing
was not properly conducted. In his role as hearing officer,
Jerman held a telephone conference on August 26, 2005.
According to the DeMerchants, Jerman limited the telephone
conference to the question of whether testing had been
performed on K.D., and did not allow them to speak. When they
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. (Paper 5 at 2).
Jerman issued a written decision on September 2, 2005,
finding that “there is no question that the District’s three
year evaluation of the student in 2004 met all the
requirements of the regulations regarding planning, notice,
scope, sufficiency and documentation.” (Paper 34-3 at 3-4).
Jerman also concluded that “the parents are seeking an
evaluation that will agree with their assessment of the
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student’s eligibility for special education.” Id. at 3.
Accordingly, Jerman allegedly advised the DeMerchants of their
right to pay for an evaluation themselves, and of their right
to challenge K.D.’s eligibility determination in a separate
due process proceeding. Id. at 3.
The DeMerchants allege that they were granted a second
due process hearing, but were told that they would not be
allowed to present any issues that could have been raised at
the first due process hearing. Because the DeMerchants wish
to argue “the total case,” they have declined the second due
process hearing and appealed the result of the first due
process to this Court. (Paper 5 at 2). For relief, the
DeMerchants seek the removal of Jerman as a hearing officer,
monitoring of Jerman’s past and present cases, independent
testing for K.D. at a specific hospital in Boston, and
monetary damages. (Paper 20). Jerman’s motion to dismiss
reports that he ceased serving as a hearing officer for the
DOE as of June, 2005. (Paper 34-1 at 4).
Discussion
I. Legal Framework
On a motion to dismiss, the Court must take the
allegations in the complaint as true, construe the complaint
in the light most favorable to the plaintiffs, and draw all
inferences in plaintiffs’ favor. See Warth v. Seldin, 422
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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)). 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.” See Chance v.
Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (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. Jerman’s Motion to Dismiss
In their claims against hearing officer Jerman, the
DeMerchants focus on Jerman’s rulings and statements during
the due process hearing. Specifically, they contend that
Jerman failed to allow them to speak and failed to consider
their evidence. The question now before the Court is whether
Jerman, as a hearing officer in an administrative proceeding,
is entitled to immunity.
The doctrine of judicial immunity was originally created
to shield judges from liability for acts performed in their
judicial capacities. Mireles v. Waco, 502 U.S. 9, 11-12
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(1991). The rule of absolute judicial immunity is necessary
because “principled and fearless decision-making” will be
compromised if a judge “fears that unsatisfied litigants may
hound him with litigation charging malice or corruption.”
Vasile v. Dean Witter Reynolds Inc., 20 F. Supp. 2d 465, 489
(E.D.N.Y. 1998) (internal quotations and citation omitted).
“The cloak of immunity is not pierced by allegations of bad
faith or malice.” Tucker v. Outwater, 118 F.3d 930, 932 (2d
Cir. 1997). The doctrine of judicial immunity is overcome
only when (1) the action is not taken in the judge’s judicial
capacity; or (2) the action, although judicial in nature, is
performed in the complete absence of any jurisdiction.
Mireles, 502 U.S. at 11-12.
The doctrine of quasi-judicial immunity extends immunity
to administrative officials performing discretionary acts of a
judicial nature. See Cleavinger v. Saxner, 474 U.S. 193, 200
(1985); Butz v. Economou, 438 U.S. 478, 513 (1978); Oliva v.
Heller, 839 F.2d 37, 39 (2d Cir. 1988). Indeed, many courts
have held that state hearing officers who exercise independent
quasi-judicial powers are entitled to absolute judicial
immunity. See, e.g., O’Neal v. Mississippi Bd. of Nursing,
113 F.3d 62, 66 (5th Cir. 1997) (absolute immunity protected
members of state licensing board who conducted adjudicatory
nursing license revocation hearings); Collyer v. Darling, 98
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F.3d 211, 222 (6th Cir. 1996) (state personnel review board
members were absolutely immune from monetary relief with
respect to their adjudicatory functions), cert. denied, 520
U.S. 1267 (1997); Gyadu v. Workers’ Comp. Comm’n, 930 F. Supp.
738 (D. Conn. 1996) (state workers’ compensation commissioner
entitled to absolute immunity), aff’d, 129 F.3d 113 (2d Cir.
1997), cert. denied, 525 U.S. 814 (1998).
In this case, Jerman is being sued for actions taken in
his role as a hearing officer. His alleged wrongdoing
includes barring certain arguments and evidence, and
ultimately reaching an unjustified conclusion. There is no
allegation that Jerman was acting outside of his role as an
adjudicator, or that he was acting without jurisdiction.
Jerman’s alleged actions were undoubtedly judicial in
nature. He presided over an administrative process, dictated
the scope of that process, acted as the trier of fact and
issued a decision based upon his legal conclusions. As the
Supreme Court has noted, “[t]he conflicts which . . . hearing
examiners seek to resolve are every bit as fractious as those
which come to court . . . . There can be little doubt that
the role of the modern [hearing officer] . . . is
‘functionally comparable’ to that of a judge.” Butz, 438 U.S.
at 513.
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Because Jerman’s role was truly quasi-judicial, and since
the DeMerchants’ claims against him pertain to actions taken
solely in his role as a hearing officer, he is entitled to
immunity. See Indep. Sch. Dist. No. 283 v. S.D., 948 F. Supp.
860, 877 n.28 (D. Minn. 1995) (concluding that hearing officer
in special education case was “wholly insulated from a claim
which arises from her conduct as an adjudicator, by the
principles of judicial immunity”) (citations omitted).
Therefore, his motion to dismiss is GRANTED.
Conclusion
For the reasons set forth above, defendant Dan Jerman’s
unopposed motion to dismiss (Paper 34) is GRANTED, and the
claims against him are DISMISSED.1
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this
8th day of February, 2007.
/s/ J. Garvan Murtha J. Garvan Murtha United States District Judge
1 The Court has previously dismissed the plaintiffs’ claims against the Department of Education (Paper 30), as well as any claims brought on behalf of K.D. (Paper 35). Therefore, the remaining claims in this case pertain to the violations of the parents’ rights under the IDEA, and the sole remaining defendant is the School District.
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