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UNITED STATES DISTRICT COURT FOR THE PJL ED

DISTRICT OF NEW HAMPSHIRE

Elena Kat z

v . Civil No. 05-cv-463-JD

Kris A . Menzie, et al .

REPORT AND RECOMMENDATION

Before the Court is Elena Katz's pro se complaint against

the Timberlane Regional School District ("TRSD"), School

Administrative Unit #55 ("SAU 55"), and a number of employees of

the TRSD and SAU 55 (document no . 1) . In this action, Katz

alleges that the defendants have violated her disabled minor

daughter's rights under the Individuals with Disabilities in

Education Act ("IDEA"), 20 U .S .C . § 1400, et sea . , the

Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U .S .C . 791,

et sea . , the Americans with Disabilities Act ("ADA"), 42 U .S .C . §

2000, et sea . , and 42 U .S .C . § 1983 . As explained fully herein,

I find that Katz has not exhausted her administrative remedies as

required to assert the claims in this action, and I therefore

recommend that the court dismiss this action in its entirety .

Standard of Revie w

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

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

Case 1:05-cv-00463-JD Document 4 Filed 04/06/06 Page 1 of 10
is directed to conduct a preliminary review and to prepare a

report and recommendation advising the District Judge whether the

complaint or any portion thereof should be dismissed because :

the allegation of poverty is untrue, the action is

frivolous, malicious, or fails to state a claim upo n

which

from a

relief may be granted, or seeks monetary relie f

defendant who is immune from such relief under 2 8

U .S .C .

matter

§ 1915(e)(2) ; or it fails to establish subject

jurisdiction under Fed . R . Civ . P . 12(b)(1) .

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" standar d

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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

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

F .2d 46, 49 (ist Cir . 1988) . Applying this standard, I find the

facts as follows .

Backaround'

'I must note at this point that while I am obligated to

construe the pleading liberally, the complaint is almost entirely

unreadable due to typographical errors, erroneously placed words

and inexplicable word choices . I cite the following excerpts

from the complaint as examples :

¶33-D : "tot OEPO imenentauoin provision pouf Face since at

least Ferrate 2002 . "

¶37 : "The par met were cones rend that all the works ales

sent hoe war undated, . . . world sales defendant menses acted do

not date works alsike do . . . "

¶41 : " . . .once ageism inelegantly withes and . . . Refuse to

provide with any instruction in teadinbf . "

¶56 : " . . .mad educational neglect of the didavleforce spew ."

161 : "Plaintoff request for private procumbent were refuse,

Related serviceman dimlem,emdtatioponm Jan-Nov-Jan 2004, Provide

placement was denied Requites for the rehearing commendatory

educations was denied pervaded placements Eleonora attended mad

was admitted . . . demised pelcemendt,m continue to be subjected to

harms districted . "

166 : " . . .the banged of educational setting dorm spew to

regular . "

¶73 : " . . .then retesting them in Terri Nova at the end of the

Yeti . "

Accordingly, my findings and recommendations are based on the

claims asserted in the complaint as nearly as they can be

deciphered . Plaintiff should note that Fed . R . Civ . P . 8

Case 1:05-cv-00463-JD Document 4 Filed 04/06/06 Page 3 of 10
Elena Katz files this action in the stead of her disabled

daughter, Eleonora, alleging that the TRSD, SAU 55, and employees

thereof, have failed to provide Eleonora with the free and

adequate public education to which she is entitled as a child

with a disability . Eleonora is in the eighth grade at Timberlane

Middle School . Eleonora has a non-verbal learning disability

that affects her ability to learn math, as well as juvenile

diabetes, and Attention Deficit Hyperactivity Disorder . Katz

alleges various violations of Eleonora's rights, including, among

other things, failure to provide Eleonora with the following

services : an appropriate placement, one-on-one tutoring, gradeappropriate materials, and safe medical care . Katz further

alleges that the defendants have taken improper administrativ e

actions which have adversely impacted her daughter's educational

rights .

Katz has litigated, and continues to litigate, a number o f

requires that a pleading contain a "short and plain statement of

the claim showing that the pleader is entitled to relief ." While

I will review this complaint as is, it comes very close to being

so unreadable as to, simply by virtue of its illegibility, fail

to state a claim upon which relief might be granted .

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these issues in another case pending in this Court . See G ., et

al v . Timberlane Re '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 include incidents that have occurred since the

filing of the complaint in G . .

Katz alleges that all of the incidents alleged to have

occurred prior to May 21, 2004 have been exhausted by the

administrative proceedings appealed to this Court in G ., and that

incidents that have occurred since that time have not been

exhausted . Katz claims that exhaustion would be futile due to

the positions taken and decisions made by the defendants in

previous administrative hearings regarding Eleonora's education,

and because this action seeks monetary relief, which is not an

available remedy through the administrative hearings process .

Discussion

The "IDEA 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)) . IDEA requires state an d

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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 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) .

"Before filing suit, however, the IDEA mandates that

plaintiffs 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) ;

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Frazier v . Fairhaven Sch . Comm . , 276 F .3d 52, 59 (1st Cir . 2002) .

Exhaustion is required even when the action is brought under a

different statute, such as the Rehabilitation Act, the ADA, or §

1983, so long as the party is seeking relief that is available

under the IDEA . Id . Section 1415(1) states that :

Nothing in this chapter shall be construed to

restrict or limit the rights, procedures, and

remedies available under the Constitution, the

Americans with Disabilities Act of 1990, title V o f

the Rehabilitation Act of 1973, or other Federal

laws protecting the rights of children with

disabilities, except that before the filing of a

civil action under such laws seeking relief that is

also available under this subchapter, the

procedures under subsections (f) and (g) of this

section shall be exhausted to the same extent as

would be required had the action been brought under

this subchapter .

20 U .S .C . § 1415(1) . Therefore, plaintiff must demonstrate that

she has exhausted her administrative remedies available under the

IDEA claims for all of the federal statutory claims brought in

this action .

Katz claims that she should be excepted from the IDEA's

exhaustion requirement because such exhaustion would be futile .

Katz claims that prior administrative hearings regarding

Eleonora's education have not resulted in decisions in her favor

and therefore, participation in new administrative hearing s

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regarding similar facts and circumstances will not bring any

different result . Further, Katz claims that she seeks monetary

damages in this action, a remedy that is not available in the

administrative hearings, and therefore, exhaustion of her claims

through administrative processes would be futile .

A plaintiff can be excused from the exhaustion requirement

if she "can show that the agency's adoption of an unlawful

general policy or practice would make resort to the agency

futile, or that the administrative remedies afforded by . . . IDEA

are inadequate given the relief sought ." Raffertv , 315 F .3d at

25 (citing Weber v . Cranston Sch . Comm . , 212 F .3d 41, 49 (1st

Cir . 2000)) . The burden is on the plaintiff to demonstrate that

an exception to the exhaustion requirement applies . Rose , 214

F .3d at 211 ; see also Honia , 484 U .S . at 327 . Here, Katz has not

demonstrated that she can meet any of the exceptions to the

exhaustion requirement .

As to the claim that exhaustion would be futile based on the

defendants' past decisions regarding Eleonora, Katz has not

pointed to any evidence indicating that the agencies adopted or

applied any "unlawful general policy or practice" that would

render exhaustion futile as to any claims Eleonora or her parent s

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might bring after the complaint in G . was filed . Absent a

showing that such a general unlawful policy prevented a hearing

officer from awarding relief, Katz cannot show that exhaustion is

futile . Raffertv , 315 F .3d at 25 .

To the extent that Katz claims exhaustion would be futile

because she cannot recover money damages at an administrative

hearing, this Circuit has held that "plaintiffs who bring an

IDEA-based claim under 42 U .S .C . § 1983, in which they seek only

money damages, must exhaust the administrative process available

under the IDEA as a condition precedent to entering a state or

federal court ." Frazier , 276 F .3d at 64 . Accordingly, Katz's

request for money damages does not excuse her from the necessity

of exhausting her claims administratively prior to filing suit in

this Court .

Exceptions to the exhaustion requirement are available in

situations where exhaustion will result in severe harm to a

litigant, or where the agency has prevented the litigant from

pursuing the administrative process . Rose , 214 F .3d at 210-11

(internal citations omitted) . However, Katz has neither

attempted to assert claims under these exceptions nor has sh e

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demonstrated facts that would support a finding that she is

excepted from the exhaustion requirement in this case .

Conclusion

For the reasons discussed herein, I find that Katz has not

exhausted the necessary administrative remedies available to her

to allow her suit to proceed here at this time . Further, I find

that Katz has not demonstrated that she is entitled to be excused

from the exhaustion requirement of 20 U .S .C . § 1415(1) .

Accordingly, I recommend that this action be dismissed in its

entirety . Any objections to this Report and Recommendation must

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

to file objections within the specified time waives the right to

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

Law Comm . v . Gordon , 979 F .2d 11, 13-14 (lst Cir . 1992) ; United

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

Date : April 1' , 2006

cc : Elena Katz, pro se

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