J.P.E.H. v . Hooksett School 07-CV-276-SM 03/18/09 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
J.P.E.H., by his parent and next friend, Elizabeth Campbell, Plaintiff
v. Civil N o . 07-cv-276-SM Opinion N o . 2009 DNH 026 Hooksett School District, Defendant
O R D E R
As a result of two previous orders (documents 37 & 3 8 ) , this
IDEA case now consists of a claim for tuition reimbursement
against the Hooksett School District. Before the court are
thirteen pending motions, eleven filed by plaintiff, two by
defendant.
In documents 54 and 6 3 , plaintiff moves to recuse the
undersigned. Plaintiff says the court is biased against her
because of her race, and against her son, because of his race and
disabilities. One federal statute, 28 U.S.C. § 455(a), provides
that a “judge . . . of the United States shall disqualify himself
in any proceeding in which his impartiality might reasonably be
questioned.” Another relevant federal statute provides that
[w]henever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice against [her] in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
28 U.S.C. § 144. Plaintiff has not filed a legally sufficient
affidavit. While plaintiff vaguely speaks of evidence showing
bias, she does not say what that evidence i s , other than
suggesting that other IDEA plaintiffs in other cases who are
white have not suffered the various financial and emotional
hardships that she and her son have suffered. Plaintiff’s
unsupported belief that she is the victim of bias is not evidence
of bias. Nothing in the record or in any pleading filed or
rulings made supports plaintiff’s claim, and no reasonable person
fully informed of the relevant facts would have reason to
question my impartiality in this case. A judge has as strong a
duty not to recuse when recusal is inappropriate as to recuse
when it i s . And, litigants cannot be permitted to engage in
judge shopping simply by resort to baseless allegations of bias.
The motions to recuse presented in documents 54 and 63 are
denied.
Three pending motions, those presented in documents 6 1 , 6 4 ,
and 7 1 , pertain to the administrative record. Despite
plaintiff’s documented acknowledgment that defendant had
assembled the complete administrative record, she now informs the
court that certain additional items should be added to the record
2 (document 6 1 ) , and moves for the addition of thirty specific
items (document 7 1 ) . (Document 71 appears to supersede document
6 4 , which moves to add twenty-two specific items, all of which
are listed in document 7 1 ) . Defendant objects. Document 6 1 ,
which does not ask for any particular relief, and document 6 4 ,
which is superseded, are both denied as moot. While defendant’s
objection to the inclusion of additional material in the
administrative record appears to be meritorious, the motion in
document 71 i s , nevertheless granted. The court will accept the
documents proffered by plaintiff, and give them the consideration
and weight due as relevant. However, the administrative record
is now closed; no further additions will be accepted.
Two motions pertain to the joint statement of material facts
required by Local Rule 9.3, over which the parties seem to have
reached an impasse. In response to plaintiff’s apparent refusal
to comply with the procedure outlined in Rule 9.3(d), defendant
moves to dismiss plaintiff’s action for lack of prosecution o r ,
in the alternative, for an alteration of the procedure required
by Rule 9.3(d). Plaintiff objects.
Defendant’s motion (document 53) is granted to the extent
that the joint statement requirement is waived, see L.R. 1.3(b),
and each party shall, within thirty days of the date of this
3 order, file a narrative statement of facts, with record
citations, that summarizes procedural developments and relevant
facts, that i s , facts pertinent to the resolution of this case.
If plaintiff is satisfied with the Amended Statement of Facts she
filed on February 1 8 , 2009 (document 6 9 ) , she shall notify the
court within thirty days that she wishes to have document 69
serve as her statement of facts.
The parties are cautioned that the court will consider only
facts supported by the record. This case consists of a single
issue: Whether plaintiff is entitled to reimbursement for private
school tuition? Factual allegations related to other matters are
not germane to any issue the court must decide in this case.
Based upon the foregoing, plaintiff’s motion to add her statement
of facts (document 55) is granted, to the extent that any facts
she seeks to add may be incorporated into her properly supported
narrative statement.
In document 6 0 , plaintiff moves the court to add relief and
details. Defendant objects. Document 72 appears to be an
expanded version of document 6 0 . The court has ruled that the
relief plaintiff seeks in those motions is not available from
this defendant. Accordingly, the motions presented in documents
60 and 72 are denied. Document 6 2 , which appears to be a motion
4 to amend the complaint to add a claim under FERPA, is denied for
failure to comply with Local Rule 15.1, and because plaintiff’s
FERPA claim was previously dismissed, by order dated January 1 5 ,
2008 (document 1 6 ) .
Document 7 0 , captioned “Motion for Relief in Light of the
Denial of a FAPE and Explanation of the Type of Proposed Relief,”
is difficult to characterize. To the extent that motion seeks
relief that has already been determined to be unavailable to
plaintiff from this defendant (such as testing and assessment of
J.P.E.H.) document 70 is necessarily denied.
Document 7 3 , titled “Plaintiff’s Motion in Response to
School District’s Response (Below 1-5),” is also difficult to
characterize. It has seven identifiable requests for relief. To
the extent it requests relief that has already been granted
(placement of plaintiff’s statement of facts and additional
exhibits on the record), document 73 is granted. To the extent
it seeks relief already deemed unavailable (an outside evaluation
and monetary damages) document 73 is denied. And, to the extent
it seeks reimbursement for private school tuition, document 73 is
denied without prejudice, as that issue will be decided on the
merits, on the basis of the parties’ decision memoranda.
5 The remaining pending motion, document 6 6 , is defendant’s
motion to strike plaintiff’s statement of facts (document 5 9 ) ,
and to preclude plaintiff from filing further frivolous motions.
Because document 59 appears to have been superseded by document
6 9 , defendant’s motion to strike document 59 is granted.
Moreover, by this order, plaintiff is on notice that the only
issue remaining in this case is her entitlement to private school
tuition reimbursement, and that all factual allegations, either
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J.P.E.H. v . Hooksett School 07-CV-276-SM 03/18/09 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
J.P.E.H., by his parent and next friend, Elizabeth Campbell, Plaintiff
v. Civil N o . 07-cv-276-SM Opinion N o . 2009 DNH 026 Hooksett School District, Defendant
O R D E R
As a result of two previous orders (documents 37 & 3 8 ) , this
IDEA case now consists of a claim for tuition reimbursement
against the Hooksett School District. Before the court are
thirteen pending motions, eleven filed by plaintiff, two by
defendant.
In documents 54 and 6 3 , plaintiff moves to recuse the
undersigned. Plaintiff says the court is biased against her
because of her race, and against her son, because of his race and
disabilities. One federal statute, 28 U.S.C. § 455(a), provides
that a “judge . . . of the United States shall disqualify himself
in any proceeding in which his impartiality might reasonably be
questioned.” Another relevant federal statute provides that
[w]henever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice against [her] in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
28 U.S.C. § 144. Plaintiff has not filed a legally sufficient
affidavit. While plaintiff vaguely speaks of evidence showing
bias, she does not say what that evidence i s , other than
suggesting that other IDEA plaintiffs in other cases who are
white have not suffered the various financial and emotional
hardships that she and her son have suffered. Plaintiff’s
unsupported belief that she is the victim of bias is not evidence
of bias. Nothing in the record or in any pleading filed or
rulings made supports plaintiff’s claim, and no reasonable person
fully informed of the relevant facts would have reason to
question my impartiality in this case. A judge has as strong a
duty not to recuse when recusal is inappropriate as to recuse
when it i s . And, litigants cannot be permitted to engage in
judge shopping simply by resort to baseless allegations of bias.
The motions to recuse presented in documents 54 and 63 are
denied.
Three pending motions, those presented in documents 6 1 , 6 4 ,
and 7 1 , pertain to the administrative record. Despite
plaintiff’s documented acknowledgment that defendant had
assembled the complete administrative record, she now informs the
court that certain additional items should be added to the record
2 (document 6 1 ) , and moves for the addition of thirty specific
items (document 7 1 ) . (Document 71 appears to supersede document
6 4 , which moves to add twenty-two specific items, all of which
are listed in document 7 1 ) . Defendant objects. Document 6 1 ,
which does not ask for any particular relief, and document 6 4 ,
which is superseded, are both denied as moot. While defendant’s
objection to the inclusion of additional material in the
administrative record appears to be meritorious, the motion in
document 71 i s , nevertheless granted. The court will accept the
documents proffered by plaintiff, and give them the consideration
and weight due as relevant. However, the administrative record
is now closed; no further additions will be accepted.
Two motions pertain to the joint statement of material facts
required by Local Rule 9.3, over which the parties seem to have
reached an impasse. In response to plaintiff’s apparent refusal
to comply with the procedure outlined in Rule 9.3(d), defendant
moves to dismiss plaintiff’s action for lack of prosecution o r ,
in the alternative, for an alteration of the procedure required
by Rule 9.3(d). Plaintiff objects.
Defendant’s motion (document 53) is granted to the extent
that the joint statement requirement is waived, see L.R. 1.3(b),
and each party shall, within thirty days of the date of this
3 order, file a narrative statement of facts, with record
citations, that summarizes procedural developments and relevant
facts, that i s , facts pertinent to the resolution of this case.
If plaintiff is satisfied with the Amended Statement of Facts she
filed on February 1 8 , 2009 (document 6 9 ) , she shall notify the
court within thirty days that she wishes to have document 69
serve as her statement of facts.
The parties are cautioned that the court will consider only
facts supported by the record. This case consists of a single
issue: Whether plaintiff is entitled to reimbursement for private
school tuition? Factual allegations related to other matters are
not germane to any issue the court must decide in this case.
Based upon the foregoing, plaintiff’s motion to add her statement
of facts (document 55) is granted, to the extent that any facts
she seeks to add may be incorporated into her properly supported
narrative statement.
In document 6 0 , plaintiff moves the court to add relief and
details. Defendant objects. Document 72 appears to be an
expanded version of document 6 0 . The court has ruled that the
relief plaintiff seeks in those motions is not available from
this defendant. Accordingly, the motions presented in documents
60 and 72 are denied. Document 6 2 , which appears to be a motion
4 to amend the complaint to add a claim under FERPA, is denied for
failure to comply with Local Rule 15.1, and because plaintiff’s
FERPA claim was previously dismissed, by order dated January 1 5 ,
2008 (document 1 6 ) .
Document 7 0 , captioned “Motion for Relief in Light of the
Denial of a FAPE and Explanation of the Type of Proposed Relief,”
is difficult to characterize. To the extent that motion seeks
relief that has already been determined to be unavailable to
plaintiff from this defendant (such as testing and assessment of
J.P.E.H.) document 70 is necessarily denied.
Document 7 3 , titled “Plaintiff’s Motion in Response to
School District’s Response (Below 1-5),” is also difficult to
characterize. It has seven identifiable requests for relief. To
the extent it requests relief that has already been granted
(placement of plaintiff’s statement of facts and additional
exhibits on the record), document 73 is granted. To the extent
it seeks relief already deemed unavailable (an outside evaluation
and monetary damages) document 73 is denied. And, to the extent
it seeks reimbursement for private school tuition, document 73 is
denied without prejudice, as that issue will be decided on the
merits, on the basis of the parties’ decision memoranda.
5 The remaining pending motion, document 6 6 , is defendant’s
motion to strike plaintiff’s statement of facts (document 5 9 ) ,
and to preclude plaintiff from filing further frivolous motions.
Because document 59 appears to have been superseded by document
6 9 , defendant’s motion to strike document 59 is granted.
Moreover, by this order, plaintiff is on notice that the only
issue remaining in this case is her entitlement to private school
tuition reimbursement, and that all factual allegations, either
in a statement of facts or her decision memorandum, must be
supported by record citation. Regarding defendant’s request for
an order prohibiting plaintiff from filing further frivolous
motions, the court recognizes that many of plaintiff’s pending
motions either cover matters that are irrelevant, or merely
duplicate previous filings. Neither type of pleading is remotely
helpful to plaintiff’s case, and plaintiff should carefully
consider future motions practice. But, even considering the
frivolous and duplicative nature of many of plaintiff’s motions,
the court declines to bar her from future filings at this point,
and, to that extent, document 66 is denied.
Plaintiff’s motion practice is on the verge of spiraling out
of control. To conserve judicial resources, as well as those of
the parties, it should be clearly stated that the court expects
to receive, from each party: (1) a narrative statements of facts,
6 with record support; and (2) a properly supported decision
memorandum that focuses, clearly and succinctly, on plaintiff’s
single remaining request for relief — her request for private
school tuition reimbursement. No other legal issue remains, and,
other than the statements of facts and decision memoranda
referenced above, nothing else is necessary for the court to
decide this case.
Conclusion
For the reasons given, documents 53 and 55 are granted in
part; documents 5 4 , 6 0 , 6 2 , 6 3 , 7 0 , and 72 are denied; documents
61 and 64 are denied as moot; documents 66 and 73 are granted in
part and denied in part; and document 71 is granted.
SO ORDERED.
Steven J./McAuliffe :hief Judge
March 1 8 , 2009
cc: Elizabeth J. Campbell, pro se Jeanne M . Kincaid, Esq. Melissa A . Hewey, Esq. Anthony I . Blenkinsop, Esq.