UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Elena Katz

v. Civil No. 06-cv-149-PB

Timberlane Regional School District

REPORT AND RECOMMENDATION

Elena Katz files this action pro se and in forma pauperis,

appealing the results of administrative decisions rendered in

2004 regarding her daughter’s special education. This action is

brought pursuant to the Individuals with Disabilities Education

Act (“IDEA”), 20 U.S.C. § 1400 et seq. For the reasons explained

herein, I recommend that this action be dismissed.

Standard of Review

Under this Court’s local rules, when a plaintiff commences

an action pro se and in forma pauperis, the magistrate judge is

directed to conduct a preliminary review to:

(i) report and recommend to the court that the 

filing is frivolous or malicious, fails to state a 

claim upon which relief may be granted, or seeks 

monetary relief against a defendant who is immune 

from such relief under 28 U.S.C. § 1915(e)(2); or 

it fails to establish subject mater jurisdiction 

under Fed. R. Civ. P. 12(b)(1); or

Case 1:06-cv-00149-PB Document 4 Filed 07/19/06 Page 1 of 8
2

(ii) grant the party leave to file an amended 

filing in accordance with the magistrate judge’s 

directives; or

(iii) pursuant to Fed. R. Civ. P,. 4(c)(2), appoint

 a person to effect service.

United States District Court for the District of New Hampshire

Local Rule 4.3(d)(1)(B). In conducting the preliminary review,

the Court construes pro se pleadings liberally. See Ayala

Serrano v. Lebron Gonzales, 909 F.2d 8, 15 (1st Cir. 1990)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976) to construe

pro se pleadings liberally in favor of the pro se party). “The

policy behind affording pro se plaintiffs liberal interpretation

is that if they present sufficient facts, the court may intuit

the correct cause of action, even if it was imperfectly pled.” 

Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert.

denied, Ahmed v. Greenwood, 522 U.S. 1148 (1998).

At this preliminary stage of review, all factual assertions

made by the plaintiff and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996) (stating the “failure to state a claim” standard

of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). This

review ensures that pro se pleadings are given fair and

Case 1:06-cv-00149-PB Document 4 Filed 07/19/06 Page 2 of 8
1My findings and recommendations are based on the claims

asserted in the complaint as nearly as they can be deciphered. 

Plaintiff’s complaint contains typographical errors too numerous

to count. These errors, while not entirely fatal to the

complaint’s readability, frequently obscure the plaintiff’s

assertions. As I have previously pointed out to the plaintiff in

response to other pleadings she has filed in this Court, Fed. R.

Civ. P. 8 requires that a pleading contain a “short and plain

statement of the claim showing that the pleader is entitled to

relief” (emphasis added).

3

meaningful consideration. See Eveland v. Dir. of C.I.A., 843

F.2d 46, 49 (1st Cir. 1988).

Background1

Elena Katz files this action in the stead of her disabled

daughter, E.G., alleging that the defendant has failed to provide

E.G. with the free and adequate public education to which she is

entitled as a child with a disability. The facts and

circumstances of this case are well-known to the Court as they

have been extensively litigated, and continue to be litigated, in

another case pending before the court, G., et al v. Timberlane

Reg’l Sch. Dist., Civ. No. 04-188-PB. It appears that the claims

raised in this complaint are similar, if not identical, to the

claims raised in G., but the claims in the present complaint

attempt to include incidents that have occurred since the filing

of the complaint in G.. It is also worth noting that the

plaintiff attempted to file the later claims in another action,

Case 1:06-cv-00149-PB Document 4 Filed 07/19/06 Page 3 of 8
4

Katz v. Menzie, Civ. No. 05-463-JD. On May 9, 2006, that action

was dismissed after preliminary review for plaintiff’s failure to

exhaust her claims. I find that the claims alleged herein are

repetitive of the claims that are currently pending in G. v.

Timberlane and that were raised in Katz v. Menzie. Since the

facts alleged in this case are repetitive of the facts well known

to the court and parties in this matter, I decline to reiterate

them at this point. 

Discussion

Katz’s action is brought pursuant to the IDEA, which “is a

comprehensive education statute which seeks to ensure that

children with disabilities receive ‘a free appropriate public

education ... designed to meet their unique needs.’” Rose v.

Yeaw, 214 F.3d 206, 209 (1st Cir. 2000) (quoting 20 U.S.C. §

1400(d)(1)(A)). The IDEA requires state and local agencies

receiving federal funds to “establish and maintain procedures ...

to ensure that children with disabilities and their parents are

guaranteed procedural safeguards with respect to the provision of

free appropriate public education by such agencies.” 20 U.S.C. §

1415(a); see also Honig v. Doe, 484 U.S. 305, 310-12 (1988). 

Parents who believe that their disabled children are not being

Case 1:06-cv-00149-PB Document 4 Filed 07/19/06 Page 4 of 8
5

properly served by these agencies as required by the IDEA may

present a complaint to the state or local educational agency who

will grant them an impartial due process hearing. 20 U.S.C. §§

1415(b)(6) & 1415(f)(1). The scope of such a hearing is broad,

encompassing “complaints with respect to any matter relating to

the identification, evaluation, or educational placement of the

child, or the provision of a free appropriate public education to

such child.” 20 U.S.C. § 1415(b)(6). If, after a due process

hearing, a parent is dissatisfied with the result, he or she may

file a civil action in either state or federal court. 20 U.S.C.

§ 1415(i)(2)(A). 

The IDEA claims alleged by Katz in this action fall into two

categories: those that arise from four administrative due process

hearings culminating on May 21, 2004, and claims that have arisen

since that time. I will take each of these categories of claims

in turn.

1. Claims Arising on or Before May 21, 2004

The claims alleged here as occurring before May 21, 2004 and

as having been exhausted by the May 21, 2004 due process hearing

are presently pending in G., which is the appeal taken in this

Court from that due process hearing. Even if these claims were

Case 1:06-cv-00149-PB Document 4 Filed 07/19/06 Page 5 of 8
6

not already pending in another action before the court, however,

I find that an appeal of the May 21, 2004 decision filed two

years later is untimely.

N.H. Rev. Stat. Ann. 186-C:16-a mandates that “[a]n appeal

from a final administrative decision in a special education due

process hearing to a court of competent jurisdiction pursuant to

20 U.S.C. section 1415(e) shall be commenced within 120 days from

receipt of the final decision.” In order to be timely, the

claims resulting in the May 21, 2004 due process hearing had to

have been appealed by September 18, 2004. This appeal was filed

April 20, 2006, approximately nineteen months after the statutory

limitations period expired. Accordingly, I recommend that this

action be dismissed as untimely.

2. Claims Arising After May 21, 2004

Before filing a suit under the IDEA, a plaintiff must

exhaust administrative remedies through the due process hearing. 

Rose, 214 F.3d at 210; see also Rafferty v. Cranston Pub. Sch.

Comm., 315 F.3d 21, 25 (1st Cir. 2002); Frazier v. Fairhaven Sch.

Comm., 276 F.3d 52, 59 (1st Cir. 2002). Katz does not allege any

facts that would indicate that she has exhausted any of her

claims arising out of events that occurred after May 21, 2004. 

Case 1:06-cv-00149-PB Document 4 Filed 07/19/06 Page 6 of 8
7

In Katz v. Menzie, Katz conceded that she did not exhaust the

post-May 21, 2004 claims and asserted instead that she should be

excepted from the exhaustion requirement. By its May 9 Order

accepting my Report and Recommendation, the Court found that Katz

was not excepted from the exhaustion requirement, and that the

claims should be dismissed due to Katz’s failure to exhaust. See

May 9, 2006 Order Approving Report and Recommendation, Katz v.

Menzie, Civ. No. 05-463-JD (DiClerico, C.J.). The present

complaint offers no facts upon which that decision should now be

changed. Accordingly, I recommend that all of the claims arising

out of events occurring after May 21, 2004 be dismissed for lack

of exhaustion. 

If this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for all

purposes to be the claims raised in the complaint. If the

plaintiff disagrees with the identification of the claims herein,

plaintiff must do so by filing an objection within ten (10) days

of receipt of this report and recommendation, or by properly

moving to amend the complaint. 

Any objections to this report and recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

Case 1:06-cv-00149-PB Document 4 Filed 07/19/06 Page 7 of 8
8

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Committee v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);

United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: July 19, 2006

cc: Elena Katz, pro se

Case 1:06-cv-00149-PB Document 4 Filed 07/19/06 Page 8 of 8