1Both the Supreme Court and the First Circuit have been

presented with the issue of whether pro se parents can represent

their minor children in IDEA proceedings, but neither court has

definitively resolved the issue. See Winkelman v. Parma City

Sch. Dist., ___ U.S. ___, 127 S. Ct. 1994 (2007); Maroni v. PemiBaker Reg’l Sch. Dist., 346 F.3d 247 (1st Cir. 2003). The

Supreme Court did make clear, however, that the rights and

interests of parents and their children under the IDEA are coextensive. See Winkelman, 127 S. Ct. at 2004 (“IDEA does not

differentiate . . . between the rights accorded to children and

the rights accorded to parents.”). Consequently, even if P.K.

cannot, strictly speaking, represent her minor child in pursuing

IDEA claims against the School District, she may pursue her own

identical claims in her own right. 

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

P.K., parent and next friend of J.K.1

v. Civil No. 08-cv-150-JL

Middleton School District

O R D E R

Before the Court is P.K.’s complaint (document no. 1),

seeking relief under the Individuals with Disabilities Education

Act (“IDEA”), 20 U.S.C. § 701, et seq. Because P.K. is

proceeding pro se and in forma pauperis, the matter is before me

for preliminary review to determine, among other things, whether

or not the complaint asserts a claim upon which relief might be

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2

granted. See United States District Court District of New

Hampshire Local Rule (“LR”) 4.3(d)(1). As explained herein, I

find that the complaint does state sufficient facts to state a

claim under the IDEA, and, therefore, I direct that the complaint

be served on the defendant school district.

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. LR 4.3(d)(1)(B). In

conducting the preliminary review, the Court construes pro se

pleadings liberally, however inartfully pleaded. See Erickson v.

Pardus, ___ U.S. ___, 127 S. Ct. 2197, 2200 (2007) (following

Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines v. Kerner,

404 U.S. 519, 520-21 (1972) 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.” See Castro v.

United States, 540 U.S. 375, 381 (2003) (noting that courts may

construe pro se pleadings so as to avoid inappropriately

stringent rules and unnecessary dismissals of claims); Ahmed v.

Case 1:08-cv-00150-JL Document 4 Filed 06/17/08 Page 2 of 11
2School Administrative Unit 61 includes the Middleton School

District and the Farmington School District. Middleton, New

Hampshire does not have any schools in it, and Middleton

residents go to schools located in Farmington, New Hampshire, but

Middleton retains its own School District. See http://www.sau61.

com/html/districts.htm. While not relevant to my determination

on preliminary review, explanation of this arrangement serves to

clarify the otherwise confusing issue of which school district is

the proper defendant in a suit by a Middleton resident whose

child attends a Farmington school.

3

Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). All of the

factual assertions made by a pro se plaintiff and inferences

reasonably drawn therefrom must be accepted as true. See id.

This review ensures that pro se pleadings are given fair and

meaningful consideration.

Background

Plaintiff P.K. is the parent of J.K., an eleven year old

child. Plaintiff and J.K. live in Middleton, New Hampshire,

which is within the New Hampshire School Administrative Unit 61

area.2 J.K. was identified at age three as having educational

disabilities. In addition to educational disabilities, J.K. has

been diagnosed with a number of medical conditions, including a

documented allergy to latex. The school district has provided

J.K. and P.K. with an individual educational plan (“IEP”) to meet

J.K.’s educational needs, as well as an individual health plan

(“IHP”) to meet J.K.’s medical while he is in the school context. 

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With an IEP and IHP in place, J.K. attended school in Farmington,

New Hampshire from November of 2003 until June of 2006 without

incident. 

For the 2006-2007 school year, J.K. attended the Henry

Wilson Memorial School (“HWMS”), a public elementary school in

Farmington, New Hampshire. P.K. asserts that during that school

year, there were a number of incidents where she believed that

J.K.’s health was being seriously endangered because the IEP and

IHP provisions designed to ensure J.K.’s safety, that were based

on J.K.’s medical conditions and allergy to latex, were not being

closely followed. P.K. states that during the school year, she

made numerous written and verbal complaints to school district

officials. While those officials never disputed the accuracy of

the reported incidents, they never took measures to insure

stricter compliance with J.K.’s IEP and IHP. J.K.’s most recent

IEP was created on June 18, 2007. Shortly after that date, P.K.

wrote to school officials and stated that she was withdrawing her

consent to that IEP and dispute that IEP, and that she wished to

file a due process complaint. 

P.K. filed a complaint in August of 2007. A due process

hearing was held on October 25, 2007 and November 14, 2007. On

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December 12, 2007, the hearing officer issued a decision in favor

of the school district, finding that none of the incidents

alleged resulted in a failure to provide J.K. with a free and

adequate public education (“FAPE”), or in any other harm to J.K. 

Accordingly, the hearings officer found that there was no

violation of the IDEA. 

P.K. now appeals the hearing officer’s decision, asserting

as follows:

1. The hearing officer did not consider evidence submitted

by P.K. that showed that the school district had been repeatedly

notified throughout the school year of incidents which had

jeopardized J.K.’s health and safety, despite the fact that the

incidents were not disputed by HWMS officials;

2. The hearing officer wrongly found that any concern

regarding exposure to harm had been “effectively and proactively”

addressed by the school, and that the school’s staff were “caring

professionals” who took every reasonable precaution to ensure

J.K.’s safety and well-being;

3. The hearing officer improperly refused to consider or

recognize the fact that between the fall of 2003 until May of

2006 there were no concerning incidents regarding J.K.’s safety,

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and that during the 2007-2008 school year, when P.K. had placed

J.K. in a private school setting, no concerning incidents

occurred. P.K. alleges this refusal resulted in the exclusion

of relevant evidence from consideration;

4. During the due process hearing, the hearing officer

permitted testimony from two witnesses that took the form of

personal attacks or diatribes against P.K., and that served to

prejudice P.K. personally while shedding no light on any relevant

issues regarding the provision of a FAPE to J.K. by the school

district;

5. During the due process hearing, over P.K.’s objection,

the hearing officer allowed “surprise” witnesses to testify for

the school district, of whom P.K. had not been given notice, and

as a result she was not prepared to confront their testimony;

6. The hearing officer applied the wrong standard in

assessing whether or not violations of J.K.’s IEP and IHP

violated the IDEA when he found that minor discrepancies between

the directives of the IEP and IHP and the actual provision of

services, particularly where no harm is alleged to have been

caused by the deviations from the IEP and IHP. Instead, P.K.

argues the hearing officer should have found that the IDEA was

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violated where the deviations from J.K.’s IEP and IHP created a

significant risk of serious harm to J.K.’s health and safety;

7. The hearing officer wrongly denied reimbursement to

P.K. for J.K.’s private school placement for the 2007-2008 school

year on the basis that the placement was not the best place for

J.K. P.K. argues that the hearing officer should have found that

the public school had defaulted in its obligations to J.K. under

the IDEA, and that she should therefore be reimbursed for any

placement that is reasonably calculated to enable J.K. to receive

educational benefits, even if it is not the best placement

available.

Discussion

As stated above, this matter is before me for a review of

whether or not the complaint, on its face, states any claim upon

which relief might be granted. LR 4.3(d)(1). To that end, I

will not examine the merits of the individual claims, but

instead, will determine whether or not P.K. has set forth

sufficient facts in her complaint to support an action under the

IDEA. If the complaint proceeds past this preliminary review,

the District Judge, in reviewing the administrative decision at

issue here, will determine whether the school district has

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complied with the IDEA’s procedural requirements, and will also

consider whether or not the IEP is reasonably calculated to

enable J.K. to receive educational benefits. 20 U.S.C. § 1400,

see Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir.

1997) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07

(1982)).

The IDEA is a federal law which conditions a state’s

eligibility to receive federal funds for education upon the

state’s adoption of laws and regulations that make a FAPE

available to all of the state’s disabled children. 20 U.S.C. §

1412(a)(1). The IDEA defines a FAPE as “special education and

related services that - (a) have been provided at public expense,

under public supervision and direction and without charge; (b)

meet the standards of the State educational agency; (c) include

an appropriate preschool, elementary or secondary school

education . . . and (d) are provided in conformity with the

individualized education program required under Section 1414(d)

of this title.” 20 U.S.C. § 1401(8). “Special Education” is

instruction specially designed to “meet the unique needs of the

child,” 20 U.S.C. § 1401(25), and “related services” includes

supportive services that may be required to assist the child in

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deriving benefit from special education services. 20 U.S.C. §

1401(22).

If the parents of a disabled student wish to challenge a

local school district’s compliance with the IDEA’s requirement

that a FAPE be provided to the student, they are entitled to an

“impartial due process hearing.” 20 U.S.C. § 1415(f); 34 C.F.R.

§ 300.507. The right to a due process hearing includes the

following rights: (1) to have an attorney attend the hearing; (2)

present evidence and cross-examine witnesses; (3) require the

local school district to disclose expert evaluations; (4) require

the state to produce a written or electronic verbatim record of

the hearing; and (5) require the hearing officer to produce a

written or electronic decision that includes findings of fact. 

See 20 U.S.C. § 1415(f)(2) & (h). 

P.K. asserts that her action arises under the IDEA because

the school district violated J.K.’s right to a FAPE by failing to

properly execute J.K.’s IEP and IHP and failure to establish an

appropriate IEP and IHP. As a result, she claims, J.K.’s safety

and well-being were repeatedly jeopardized. At the due process

hearing held to address P.K.’s concerns, she alleges that she was

denied a number of the due process protections to which she was

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entitled. Specifically, P.K. claims that the hearing officer

effectively precluded her from admitting evidence at the hearing

by refusing to consider it, and similarly denied her the right to

cross-examine witnesses by allowing the introduction of testimony

of witnesses for whom plaintiff had not received notice. 

P.K. argues that J.K. was denied a FAPE because the IEP and

IHP were not implemented in such a way that sufficiently

protected J.K.’s health and safety. “Issues of student safety .

. . may properly be raised in a substantive challenge under the

IDEA. . . . the Act’s ‘broad language suggests that Congress did

not intend to exclude from consideration any subject matter -

including safety concerns - that could interfere with a disabled

child’s right to receive a free appropriate public education.’” 

A.S. v. Trumbull Bd. of Educ., 414 F. Supp. 2d 152, 178 (D. Conn.

2006) (quoting Lillibask ex rel. Mauclaire v. Conn. Dep’t of

Educ., 397 F.3d 77, 93 (2d Cir. 2005)).

Conclusion

As I find that plaintiff has stated claims upon which relief

may be granted, and without any comment on the merits of those

claims, I order the complaint (document no. 1) be served on the

defendant school district. My review of the file indicates that

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plaintiff has filed a summons form for the defendant. The

Clerk’s office is directed to issue the summons forms and forward

to the United States Marshal for the District of New Hampshire

(the “U.S. Marshal’s office”) the summons, along with copies of

the complaint (document no. 1) and this Order. Upon receipt of

the necessary documentation, the U.S. Marshal’s office shall

effect service upon the defendants. See Fed. R. Civ. P. 4(c)(2). 

The defendants are instructed to answer or otherwise plead

within twenty days of service. See Fed. R. Civ. P. 12(a)(1)(A).

Plaintiff is instructed that all future pleadings, written

motions, notices, or similar papers shall be served directly on

the Defendants by delivering or mailing the materials to them or

their attorneys, pursuant to Fed. R. Civ. P. 5(b). 

SO ORDERED.

________________________________

James R. Muirhead

United States Magistrate Judge

Date: June 17, 2008 

cc: P.K., pro se

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