United States District Court, E.D. Texas
D H H, A MINOR STUDENT WITH DISABILITIES, BY AND WITH AND THROUGH HER PARENT/GUARDIAN/NEXT FRIEND ROB ANNA H; AND ROB ANNA H., PARENT/GUARDIAN/NEXT FRIEND TO D.H.H., A MINOR STUDENT WITH DISABILITIES, Plaintiffs
KIRBYVILLE CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Defendant.
ORDER OVERRULING PLAINTIFFS' OBJECTIONS TO REPORT
A. CRONE UNITED STATES DISTRICT JUDGE
case is assigned to the Honorable Zack Hawthorn, United
States Magistrate Judge, for pretrial management. On July 12,
2019, Judge Hawthorn entered a report (Doc. No. 68) which
recommended denying Plaintiff D.H.H., a minor student with
disabilities, and her parent/guardian/next friend Rob-Anna
H.'s (collectively, Plaintiffs) “Motion for Summary
Judgment” (Doc. No. 44) and granting Defendant
Kirbyville Consolidated Independent School District's
(KCISD) “Motion for Summary Judgment. Doc. No. 45. On
July 26, 2019, Plaintiffs timely filed objections to the
report. Doc. No. 69. On August 9, 2019, KCISD timely filed
its response to Plaintiffs' objections.
who files timely, written objections to a magistrate
judge's report and recommendation is entitled to a de
novo determination of those findings or recommendations
to which the party specifically objects. 28 U.S.C. §
636(b)(1)(C); Fed.R.Civ.P. 72(b)(2)-(3). “Parties
filing objections must specifically identify those findings
[to which they object]. Frivolous, conclusive or general
objections need not be considered by the district
court.” Nettles v. Wainwright, 677 F.2d 404,
410 n.8 (5th Cir. 1982) (en banc), overruled on other
grounds by Douglass v. United Servs. Auto. Ass'n, 79
F.3d 1415 (5th Cir. 1996) (en banc).
raise objections to each of Judge Hawthorn's conclusions
in his report. First, Plaintiffs object to the conclusion
that D.H.H. does not qualify under the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1401
et seq., for special education and that KCISD did
not violate its child find duty. In turn, Plaintiffs state
that this caused three errors. Specifically, Plaintiffs argue
that to properly determine eligibility under the IDEA, one
only considers the information available to the committee at
the time of the decision. Doc. No. 69, at 5 (citing Lisa
M. v. Leander Indep. Sch. Dist., 924 F.3d 205 (5th Cir.
2019)). Yet, the information before the Special Education
Hearing Officer (SEHO), particularly Plaintiff's
expert's report, was utilized by Judge Hawthorn to
determine D.H.H.'s eligibility under the
IDEA. This is the same information available to
the committee and what was used to determine D.H.H.'s
eligibility under the IDEA.
then argue that the provision of remedial services through
Response to Intervention (RTI) was given undue consideration
by Judge Hawthorn for the period that D.H.H. was being
evaluated for special education, which delayed or defeated
her eligibility. After reviewing the Report and the record,
it is clear that limited consideration was given to the
provision of RTI, which is offered to all students. Instead,
to determine D.H.H.'s eligibility, experts' reports
utilizing multiple performance and assessment tools were used
to ascertain whether D.H.H. exhibited an emotional
disturbance or a specific learning disability. Therefore, RTI
was not given undue consideration like Plaintiffs allege.
also argue that D.H.H.'s behavioral problems at home were
not considered when evaluating whether she required special
education for her emotional disturbance. Under the IDEA
regulations,  a child must exhibit one or more
characteristics of an emotional disturbance to a marked
degree that adversely affects the child's educational
performance. See 20 U.S.C. §
1415(i)(3)(B)(i); 34 C.F.R. § 300.8(c)(4) (emphasis
added). Plaintiffs then incorrectly conclude that Judge
Hawthorn “erred by finding that behavioral issues
outside of school cannot be the basis for suspecting a child
needs special education.” Doc. No. 69, at 7. After
examining the record, the undersigned finds that the
conclusion that “D.H.H. exhibited
characteristics of an emotional disturbance, [but
that] these characteristics did not adversely affect her
educational performance to a marked degree” is
correct. Doc. No. 68, at 16 (emphasis in original).
D.H.H.'s behavioral issues both in and out of
school have been assessed, and D.H.H.'s characteristics
of an emotional disturbance and any corresponding behavioral
issues manifested inside or outside of school did not
adversely affect her educational performance. D.H.H.
consistently makes A's and B's, maintains
friendships, and is liked by her teachers. Accordingly, her
educational performance has not been adversely affected by
the characteristics of her emotional disturbance, even the
ones allegedly only seen at home.
then point out that D.H.H.'s behavior caused her to be in
disciplinary placement which adversely impacted her
education. Her disciplinary record, however, is sporadic and
not consistent enough to warrant any type of pattern. See
e.g., Doc. No. 44, at App. 27 (showing SEHO considered
the disciplinary reports and disciplinary setting by finding
“[w]hile she had behaviors during her junior high
years, the record reflects that those behaviors were sporadic
and had no consistent pattern.”). Thus, there is
sufficient evidence supporting the SEHO's conclusion and
credibility determination regarding the parties'
experts' reports and Judge Hawthorn's subsequent
conclusion that D.H.H. is not eligible for special education
services under the IDEA. D.H.H. does not exhibit any specific
learning disabilities and the characteristics of her
emotional disturbance do not adversely impact her educational
performance to a marked degree, therefore she is not eligible
for special education under the IDEA.
Plaintiffs object that D.H.H.'s eighth-grade Section 504
and Title II ADA claims must proceed to trial because the
incorrect standard was applied. Plaintiffs, however, only
seek relief relating to the provision of a free appropriate
public education (FAPE)-a remedy found under the IDEA. When a
Section 504 or Title II ADA claim only relates to providing a
FAPE, a school district satisfies its obligations under
Section 504 and Title II of the ADA if it properly evaluates
a student in accordance with the IDEA, unless the district
engages in intentional discrimination. See Estate of
Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 992
(5th Cir. 2014). Intentional discrimination is characterized
as acting in bad faith or displaying gross misjudgment.
D.A. ex. rel. Latasha A. v. Houston Indep. Sch.
Dist., 629 F.3d 450, 454 (5th Cir. 2010).
previously discussed, D.H.H.'s emotional disturbance does
not qualify her for special education services and she does
not exhibit a specific learning disability. Because D.H.H. is
not eligible under the IDEA for special education, and
Plaintiffs' Section 504 and Title II ADA claims arise
from the same factual content and seek the same relief as the
IDEA claim, Plaintiffs have not successfully proven their
claims. Further, there was no allegation of intentional
discrimination. Accordingly, Plaintiffs did not successfully
establish their Section 504 or Title II ADA claims- either
pursuant to the IDEA or as independent causes of action.
Plaintiffs argue that they are entitled to attorneys'
fees because the SEHO ordered KCISD to reimburse Plaintiffs
with the cost of Dr. Simione's evaluation. Doc. No. 68,
at 7-8. In order to be considered a prevailing party, a
remedy must be obtained that alters the legal relationship
between the school district and the handicapped child, and
fosters the purposes of the IDEA. El Paso Indep. Sch.
Dist. v. Richard R., 591 F.3d 417, 422 (5th
Cir. 2009). Accordingly, the party must prevail on
“some significant issue in litigation which achieves
some of the benefit the parties sought in bringing
suit.” Alief Indep. Sch. Dist. v. C.C. Ex Rel.
Kenneth C., 713 F.3d 268, 270 (5th Cir. 2013) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).
the cost of reimbursement for Dr. Simione's evaluation
does not alter the legal relationship between KCISD and
D.H.H., because reimbursement for Dr. Simione's
evaluation was not the relief Plaintiffs sought. Plaintiffs
further argue that requiring a school district to comply with
its duties under the IDEA fosters the purposes of the IDEA.
Doc. No. 69, at 8. Yet, as Plaintiffs point out “[t]he
Simione report fulfilled Defendant KCISD's duty” by
conducting a classroom observation. Doc. No. 69, at 8.
Because Plaintiffs are not prevailing parties under the IDEA,
their request for attorneys' fees is denied.
therefore, ORDERED that Plaintiffs'
objections (Doc. No. 69) are OVERRULED, the
Magistrate Judge's report and recommendation (Doc. No.
68) is ADOPTED, and Plaintiffs'
“Motion for Summary Judgment” is
DENIED (Doc. No. 44), and Defendant's
“Motion for Summary Judgment” is
GRANTED. Doc. No. 45. Any other pending
motion is denied as moot.