Burke v . Brookline 06-CV-317-JD 1/29/07 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Catherine Burke and Mikael Rolfhamre v. Civil N o . 06-cv-317-JD Opinion N o . 2007 DNH 012 Brookline School District
O R D E R
Catherine Burke and Mikael Rolfhamre, who are proceeding pro
s e , bring suit against the Brookline School District, alleging
violations of the Americans with Disabilities Act (“ADA”),
Section 504 of the Rehabilitation Act, the Individuals with
Disabilities in Education Act (“IDEA”), and the Family
Educational Rights and Privacy Act (“FERPA”), and alleging a
claim under 42 U.S.C. § 1983. The plaintiffs seek $250,000 in
damages.1 The Brookline School District moves to dismiss the
plaintiffs’ claims.
Standard of Review
In considering a motion to dismiss, the court “take[s] as
true all well-pleaded allegations and draw[s] all reasonable
inferences in the plaintiff’s favor.” Ezra Charitable Trust v .
1 Their claim for attorneys’ fees was previously stricken. Tyco Int’l, Ltd., 466 F.3d 1 , 5-6 (1st Cir. 2006). “The court
need not accept a plaintiff’s assertion that a factual allegation
satisfies an element of a claim, however, nor must a court infer
from the assertion of a legal conclusion that factual allegations
could be made that would justify drawing such a conclusion.”
Cordero-Hernandez v . Hernandez-Ballesteros, 449 F.3d 2 4 0 , 244 n.3 (1st Cir. 2006). In addition, the court will “disregard bald
assertions, unsupportable conclusions, and opprobrious epithets.”
Ezra Charitable Trust, 466 F.3d at 6. “‘A complaint should not
be dismissed unless it is apparent beyond doubt that the
plaintiff can prove no set of facts in support of his claim that
would entitle him to relief.’” Stanton v . Metro Corp., 438 F.3d
119, 123-24 (1st Cir. 2006) (quoting Conley v . Gibson, 355 U.S.
4 1 , 45-46 (1957)) (other quotation marks omitted).
Background
Catherine Burke and Mikael Rolfhamre lived within the
Brookline School District from 1998 until August of 2005. They
adopted three sisters, Kasey, Sasha, and Ilona, from a Russian
orphanage in 1998. The plaintiffs allege that the girls were
identified as students in need of special education under the
IDEA, as individuals with disabilities under the ADA, and as
handicapped persons under Section 504 of the Rehabilitation Act.
2 The plaintiffs’ pro se complaint does not provide a clear
chronological description of the events that led to their claims.
It appears that the plaintiffs’ problems with the special
education program in the Brookline School District began in 2003.
The plaintiffs state that they met with members of the Brookline
school board, starting in 2003, to report the problems they were experiencing with the special education program. They contend
that school board members acknowledged problems but failed to
take any action.
The plaintiffs allege that Kasey and Sasha attended Mont
Blanc Academy for the 2003-2004 school year. The Academy is a
small private school located in Hooksett, New Hampshire. It is
not approved for special education by the New Hampshire
Department of Education. They also allege that they sought an
evaluation of Kasey in 2003 and then were embroiled in a disagreement with the District about who would serve as the
evaluator and how the evaluation would be conducted.
They state that they filed a Section 504 grievance on
September 1 5 , 2003, and requested a due process hearing in
October of 2003. They contend that the hearing was not provided
until September of 2004, after the “Office for Civil Rights”
intervened in the matter. The plaintiffs assert that the hearing
officer was not impartial and that the District interfered with
3 the investigation of their complaint by failing to make complete
records available and by providing incorrect and misleading
information to the investigator. The plaintiffs do not state
what decision was reached by the hearing officer.2
They allege that the District did not obtain their consent
to continue Sasha’s placement at Mont Blanc Academy for the 2003- 2004 year. They also allege that the District did not obtain
their consent to provide special education services to Sasha and
Kasey and did not include the plaintiffs in developing an
Individual Education Plan (“IEP”) for Sasha and Kasey. They
criticize the qualifications of the person the District hired to
provide services to their daughters for the 2004-2005 school
year. They also criticize the District’s handling of their
daughters’ school records and contend that the District failed to
make the records available to them. The plaintiffs state that the District requested a hearing
in June of 2004 to approve Kasey’s placement at “CSDA,” which is
the District’s “upper elementary school.” Compl. at 1 8 . They
allege that the hearing officer issued a decision in August of
2004 which ordered that Kasey be home schooled. The plaintiffs
state that the hearing officer’s decision was not appealed. They
2 It is not clear whether the hearing in the fall of 2004 was resolved by the November 2004 settlement agreement.
4 allege that the District failed to provide for Kasey’s education
and intimidated them by telling them that keeping Kasey at home
violated New Hampshire’s compulsory education laws. As a result,
the plaintiffs enrolled Kasey at CSDA in September of 2004 to
avoid truancy charges.
The plaintiffs sought an independent evaluation of Kasey in the fall of 2004. They allege that the District did not approve
the independent evaluator the parents had chosen. They signed a
settlement agreement on the evaluation issue on November 5 , 2004,
which they allege approved their independent evaluator but
imposed conditions on them. They claim that they were coerced
into signing the settlement agreement because they believed the
District had passed a new policy that would have allowed the
District to exclude the plaintiffs’ evaluator absent the
agreement. They contend that they learned after signing the agreement that the District’s policy was different than they had
understood it to b e , and they contend that the District
deliberately misled them.
The plaintiffs refer to a New Hampshire Department of
Education hearing in May of 2005 as a placement hearing for
Kasey. They state that they were seeking reimbursement for
placing Kasey at a private school when the District failed to
provide her with a free and appropriate public education as
5 required by the IDEA. They contend that the District interfered
with the hearing by misrepresenting the record, providing false
testimony, and giving incorrect information about the programming
that had been provided to Kasey. The plaintiffs also contend
that the District attempted to show that they were uncooperative
by falsely claiming that the plaintiffs were seeking a residential placement for Kasey and by falsely stating that the
plaintiffs had not objected to the District’s evaluation until
the hearing. The complaint does not indicate what result was
achieved through the hearing.
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Burke v . Brookline 06-CV-317-JD 1/29/07 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Catherine Burke and Mikael Rolfhamre v. Civil N o . 06-cv-317-JD Opinion N o . 2007 DNH 012 Brookline School District
O R D E R
Catherine Burke and Mikael Rolfhamre, who are proceeding pro
s e , bring suit against the Brookline School District, alleging
violations of the Americans with Disabilities Act (“ADA”),
Section 504 of the Rehabilitation Act, the Individuals with
Disabilities in Education Act (“IDEA”), and the Family
Educational Rights and Privacy Act (“FERPA”), and alleging a
claim under 42 U.S.C. § 1983. The plaintiffs seek $250,000 in
damages.1 The Brookline School District moves to dismiss the
plaintiffs’ claims.
Standard of Review
In considering a motion to dismiss, the court “take[s] as
true all well-pleaded allegations and draw[s] all reasonable
inferences in the plaintiff’s favor.” Ezra Charitable Trust v .
1 Their claim for attorneys’ fees was previously stricken. Tyco Int’l, Ltd., 466 F.3d 1 , 5-6 (1st Cir. 2006). “The court
need not accept a plaintiff’s assertion that a factual allegation
satisfies an element of a claim, however, nor must a court infer
from the assertion of a legal conclusion that factual allegations
could be made that would justify drawing such a conclusion.”
Cordero-Hernandez v . Hernandez-Ballesteros, 449 F.3d 2 4 0 , 244 n.3 (1st Cir. 2006). In addition, the court will “disregard bald
assertions, unsupportable conclusions, and opprobrious epithets.”
Ezra Charitable Trust, 466 F.3d at 6. “‘A complaint should not
be dismissed unless it is apparent beyond doubt that the
plaintiff can prove no set of facts in support of his claim that
would entitle him to relief.’” Stanton v . Metro Corp., 438 F.3d
119, 123-24 (1st Cir. 2006) (quoting Conley v . Gibson, 355 U.S.
4 1 , 45-46 (1957)) (other quotation marks omitted).
Background
Catherine Burke and Mikael Rolfhamre lived within the
Brookline School District from 1998 until August of 2005. They
adopted three sisters, Kasey, Sasha, and Ilona, from a Russian
orphanage in 1998. The plaintiffs allege that the girls were
identified as students in need of special education under the
IDEA, as individuals with disabilities under the ADA, and as
handicapped persons under Section 504 of the Rehabilitation Act.
2 The plaintiffs’ pro se complaint does not provide a clear
chronological description of the events that led to their claims.
It appears that the plaintiffs’ problems with the special
education program in the Brookline School District began in 2003.
The plaintiffs state that they met with members of the Brookline
school board, starting in 2003, to report the problems they were experiencing with the special education program. They contend
that school board members acknowledged problems but failed to
take any action.
The plaintiffs allege that Kasey and Sasha attended Mont
Blanc Academy for the 2003-2004 school year. The Academy is a
small private school located in Hooksett, New Hampshire. It is
not approved for special education by the New Hampshire
Department of Education. They also allege that they sought an
evaluation of Kasey in 2003 and then were embroiled in a disagreement with the District about who would serve as the
evaluator and how the evaluation would be conducted.
They state that they filed a Section 504 grievance on
September 1 5 , 2003, and requested a due process hearing in
October of 2003. They contend that the hearing was not provided
until September of 2004, after the “Office for Civil Rights”
intervened in the matter. The plaintiffs assert that the hearing
officer was not impartial and that the District interfered with
3 the investigation of their complaint by failing to make complete
records available and by providing incorrect and misleading
information to the investigator. The plaintiffs do not state
what decision was reached by the hearing officer.2
They allege that the District did not obtain their consent
to continue Sasha’s placement at Mont Blanc Academy for the 2003- 2004 year. They also allege that the District did not obtain
their consent to provide special education services to Sasha and
Kasey and did not include the plaintiffs in developing an
Individual Education Plan (“IEP”) for Sasha and Kasey. They
criticize the qualifications of the person the District hired to
provide services to their daughters for the 2004-2005 school
year. They also criticize the District’s handling of their
daughters’ school records and contend that the District failed to
make the records available to them. The plaintiffs state that the District requested a hearing
in June of 2004 to approve Kasey’s placement at “CSDA,” which is
the District’s “upper elementary school.” Compl. at 1 8 . They
allege that the hearing officer issued a decision in August of
2004 which ordered that Kasey be home schooled. The plaintiffs
state that the hearing officer’s decision was not appealed. They
2 It is not clear whether the hearing in the fall of 2004 was resolved by the November 2004 settlement agreement.
4 allege that the District failed to provide for Kasey’s education
and intimidated them by telling them that keeping Kasey at home
violated New Hampshire’s compulsory education laws. As a result,
the plaintiffs enrolled Kasey at CSDA in September of 2004 to
avoid truancy charges.
The plaintiffs sought an independent evaluation of Kasey in the fall of 2004. They allege that the District did not approve
the independent evaluator the parents had chosen. They signed a
settlement agreement on the evaluation issue on November 5 , 2004,
which they allege approved their independent evaluator but
imposed conditions on them. They claim that they were coerced
into signing the settlement agreement because they believed the
District had passed a new policy that would have allowed the
District to exclude the plaintiffs’ evaluator absent the
agreement. They contend that they learned after signing the agreement that the District’s policy was different than they had
understood it to b e , and they contend that the District
deliberately misled them.
The plaintiffs refer to a New Hampshire Department of
Education hearing in May of 2005 as a placement hearing for
Kasey. They state that they were seeking reimbursement for
placing Kasey at a private school when the District failed to
provide her with a free and appropriate public education as
5 required by the IDEA. They contend that the District interfered
with the hearing by misrepresenting the record, providing false
testimony, and giving incorrect information about the programming
that had been provided to Kasey. The plaintiffs also contend
that the District attempted to show that they were uncooperative
by falsely claiming that the plaintiffs were seeking a residential placement for Kasey and by falsely stating that the
plaintiffs had not objected to the District’s evaluation until
the hearing. The complaint does not indicate what result was
achieved through the hearing.
The plaintiffs allege that they were regarded as
troublemakers after they filed complaints. As a result, they
assert, special education department staff members “spread false
and damaging rumors about [the plaintiffs] to staff at [Mont
Blanc Academy] during the 2003-2004 school year and fueled negative attitudes toward [the plaintiffs].” Compl. at 2 9 . They
also allege that the District sought medical and mental health
records to use against the plaintiffs in litigation, enacted an
evaluation policy to disqualify the plaintiffs’ chosen
independent evaluator, conditioned Kasey’s IEP in February of
2005 on her mother agreeing to a psychiatric evaluation, and
provided their children with inferior treatment that was not in
compliance with state standards.
6 Discussion
The plaintiffs do not state separate claims in their
complaint. Instead, they cite Section 504 of the Rehabilitation
Act, the ADA, the IDEA, the FERPA, and § 1983 as the law that is
applicable to their claims. In a section titled “Factual
Allegations,” the plaintiffs allege that the District disregarded Section 5 0 4 , ADA, and IDEA regulations; violated the plaintiffs’
asserted rights under the IDEA and Section 504; and retaliated
against the plaintiffs for filing grievances and complaints. The
District interprets the plaintiffs’ complaint as alleging
violations of the ADA, Section 5 0 4 , FERPA, and § 1983 that are
all based on the IDEA and moves to dismiss. The plaintiffs
object to the motion to dismiss.
A. IDEA and FERPA
Money damages are not available in a suit brought under the
IDEA. Dias-Fonseca v . Puerto Rico, 451 F.3d 1 3 , 28 (1st Cir.
2006). In addition, the FERPA does not provide either a private
cause of action or rights that are actionable under § 1983.
Gonzaga Univ. v . Doe, 536 U.S. 273, 276, 280 (2002). Therefore,
to the extent the plaintiffs alleged claims under the IDEA or the
FERPA, those claims are dismissed.
In their objection, the plaintiffs do not address the FERPA
7 and contend that they are not alleging a claim under IDEA.
Instead, they assert, their claims are “that because of their
advocacy on behalf of their children, the District engaged in
retaliation, coercion, intimidation and interference; activities
which are prohibited by the ADA (42 U.S.C. § 12203)” and “that
the District as a matter of policy and practice failed to carry out the requirements of Section 504 that pertain to parents’
rights.” O b j . Mem. at 3 . Based on their statements in their
objection, the plaintiffs claim retaliation in violation of the
ADA, 42 U.S.C. § 12203, and violation of the procedural
requirements of Section 504 of the Rehabilitation Act.
B. ADA Claim
The ADA provides: “No person shall discriminate against any
individual because such individual has opposed any act or
practice made unlawful by this chapter or because such individual
made a charge, testified, assisted or participated in any manner
in an investigation, proceeding, or hearing under this chapter.”
42 U.S.C. § 12203(a). The ADA also prohibits coercion,
intimidation, threatening, and interference of any individual “on
account of his or her having aided or encouraged any other
individual in the exercise or enjoyment o f , any right granted or
protected by this chapter.” § 12203(b). The IDEA affords an
8 opportunity to parents to file complaints for retaliation or
coercion that are related to “the identification, evaluation, or
educational placement of the child or the provision of a free
appropriate public education to such child.” Weber v . Cranston
Sch. Comm., 212 F.3d 4 1 , 51 (1st Cir. 2000).
General compensatory damages are not available in an IDEA- based suit. Dias-Fonseca, 451 F.3d at 28-31. “[W]here the
underlying claim is one of violation of the IDEA, plaintiffs may
not use § 1983-or any other federal statute for that matter-in an
attempt to evade the limited remedial structure of the IDEA.”
Id. at 2 9 . Claims are based on the IDEA when they depend “on the
rights created by statute in the IDEA” and are not independent
claims under a different federal statute. Id.
In this case, the plaintiffs allege that they were coerced
into signing a settlement agreement to resolve their dispute with the District about an independent evaluation of their daughter,
Kasey. They allege that the District interfered with their
access to grievance procedures to address their dispute with the
District about Kasey’s evaluation. The plaintiffs’ retaliation
claim alleges that District personnel retaliated against them
because of the plaintiffs’ complaints and disputes about the
educational services provided to their children. The plaintiffs
contend that District staff members fueled negative attitudes
9 toward them among the staff at Mont Blanc Academy, demanded
access to medical and mental health records to be used in
litigation of the parents’ complaints, changed the evaluation
policy to exclude the plaintiffs’ chosen independent evaluator,
conditioned Kasey’s IEP on her mother’s consent to a psychiatric
evaluation, and provided inferior services and treatment that did
not comply with the IDEA.
The plaintiffs’ claims alleged under § 12203 are closely
related to the identification, evaluation, and educational
placement of their children for purposes of achieving a free and
appropriate public education. See Weber, 212 F.3d at 5 1 . In
fact, the plaintiffs state in their objection that the IDEA
violations they allege are “examples of specific instances of how
the District carried the retaliation, coercion, intimidation,
interference and deprivation of rights which are the basis of [their] claim.” O b j . Mem. at 3 . As such, they do not allege an
independent claim under the ADA but instead allege an IDEA-based
claim in the guise of the ADA. Therefore, the ADA claim seeking
general compensatory damages must be dismissed.3 See Diaz-
Fonseca, 451 F.3d at 2 9 .
3 In addition, an ADA claim is subject to administrative exhaustion, which does not appear to have occurred in this case. See Hess v . Rochester Sch. Dist., 396 F. Supp. 2d 6 5 , 72 (D.N.H. 2005).
10 C. Section 504 of the Rehabilitation Act Claim
Both Section 504 of the Rehabilitation Act and the IDEA
require states to provide disabled students with a free and
appropriate public education. See M o . Dep’t of Elementary &
Secondary Educ. v . Springfield R-12, 358 F.3d 9 9 2 , 998-99 (8th
Cir. 2004). The regulations promulgated under Section 5 0 4 , cited by the plaintiffs, 34 C.F.R. §§ 104.32, 104.25, and 104.36,
require school districts to locate qualified handicapped persons
and notify their parents of the district’s obligation to provide
a free and appropriate public education, to conduct evaluations
and make placement decisions in accord with certain procedures,
and to implement procedural safeguards that can be satisfied by
compliance with IDEA requirements. “The IDEA establishes an
elaborate scheme of identifying individuals with disabilities and
ensuring that the responsible school authorities develop, in consultation with parents and students, an educational program
for the student that accounts for and addresses that student’s
needs.” Weber v . Cranston Pub. Sch. Comm., 245 F. Supp. 2d 4 0 1 ,
405 (D.R.I. 2003).
The Section 504 regulations the plaintiffs cite in support
of their claim provide the same requirements and procedures for
ensuring a free and appropriate public education that are
required under the IDEA. Therefore, the Rehabilitation Act does
11 not provide a separate and independent cause of action for the
plaintiffs’ claim based upon the cited regulations. See Diaz-
Fonseca, 451 F.3d at 2 9 . The plaintiffs’ Rehabilitation Act
claim is dismissed.
D. § 1983 Claim
42 U.S.C. § 1983 provides a cause of action to persons who
are deprived of “any rights, privileges, or immunities secured by
the Constitution and laws” by a person acting under color of
state law. The plaintiffs cite § 1983 but do not provide any
further explanation of that claim in their complaint, and they
ignore § 1983 in their objection to the motion to dismiss. As is
stated above, plaintiffs may not invoke § 1983 to bring claims
for compensatory damages that are in essence IDEA claims. Diaz-
Fonseca, 451 F.3d at 28-31. In addition, no claim may be brought
under § 1983 based on an alleged violation of the FERPA.
Gonzaga, 536 U.S. at 280. Therefore, to the extent the
plaintiffs intended to bring a claim under § 1983 based on
alleged violations of the ADA, the IDEA, Section 504 of the
Rehabilitation Act, or FERPA, as alleged in this case, that claim
is dismissed.
12 Conclusion
For the foregoing reasons, the defendant’s motion to dismiss
(document no. 8) is granted. All of the plaintiffs’ claims are
dismissed for failure to state a claim upon which relief may be
granted. The clerk of court shall enter judgment accordingly and
close the case. SO ORDERED.
V j Joseph A. DiClerico, Jr. United States District Judge January 29, 2007
cc: Catherine E. Burke, pro se Dean B. Eggert, Esquire Mikael Rolfhamre, pro se