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Peacock v. Little Rock School Dist.

November 17, 2006

ARTHUR PEACOCK PLAINTIFF
v.
LITTLE ROCK SCHOOL DISTRICT DEFENDANT



The opinion of the court was delivered by: James M. Moody United States District Judge

ORDER

Pending are cross motions for summary judgment. (Docket #'s 9 and 15). For the reasons set forth herein, Plaintiff's motion for summary judgment, docket # 9, is GRANTED and Defendant's motion for summary judgment, docket # 15, is DENIED. Plaintiff is hereby awarded $14,727.64 for attorneys fees and costs incurred in connection with the due process hearing at issue herein. Plaintiff's request for attorneys fees and costs incurred in bringing this action is denied.

Facts

Plaintiff, Arthur Peacock, is a parent of a disabled child, C.P., as such is defined in 20 U.S.C. §1401(a)(1) who at all time pertinent hereto was enrolled as a student in the Little Rock School District ("District"). At the time the Plaintiff filed a Due Process Hearing Complaint he was not identified under the Individuals with Disabilities Education Act and had not been declared eligible to receive special education services. However, before the Due Process Hearing, C.P. had been referred for a determination of eligibility of special education services and was identified and received accommodations under Section 504 of the Rehabilitation Act.

The District is vested with the responsibility under the Individuals with Disabilities Act ("IDEA"), 20 U.S.C. §1400-1485, for providing a free and appropriate public education ("FAPE") in the least restrictive environment to students with disabilities within its District who have been identified under the Act. Under the requirements of the Act, the District is further given the obligation to locate, evaluate, and identify children with disabilities who are enrolled in the District. At all times pertinent hereto, Plaintiff's minor child, C.P., had been diagnosed with depression and a conduct disorder and had been identified under Section 504 of the Rehabilitation Act, but had not been declared eligible to receive special education services and had not been identified under the IDEA as having a disability.

Due to a dispute that arose between the Parent and the District concerning the District's unilateral placement of the child following a disciplinary action, on October 29, 2004, the Parent lodged a first request for an Expedited Due Process Hearing and filed a regular request for a Due Process Hearing asserting that the District had denied C.P. a free appropriate public education. This first petition was settled by the parties on December 2, 2004 and was dismissed on December 3, 2004. By the terms of the settlement agreement, C.P. was to remain on a 504 Plan and the school district was to provide counseling services for C.P. beginning January 3, 2005.

Plaintiff lodged a second request for a Due Process Hearing on February 11, 2005. Plaintiff's Complaint asserted that the District had denied C.P. a Free Appropriate Public Education due to a change of placement which occurred at the District as a result of a disciplinary action. In the Due Process Hearing, Plaintiff sought the following relief: (1) The Student to be declared eligible to receive special education services; (2) An appropriate IEP be developed in the LRE for the Student, to include a behavior intervention plan, if deemed appropriate; and (3) compensatory education for the denial of FAPE.

A due process hearing was commenced under the direction of the ADE by an Impartial Due Process Hearing Officer on March 1, 2005 and concluded on March 9, 2005. Following a conclusion of the hearing, on April 4, 2005, the Administrative Due Process Hearing Officer issued a written opinion outlining her findings. The Due Process Hearing Officer ordered the following relief: (1) After school tutoring with transportation; (2) Changing the level of one or more of the student's classes from Advanced Placement, while still providing the student with college preparatory subjects; (3) Allow the student to drop one or two of his current classes and take them during the summer instead, in order to allow him to concentrate during the current semester on the remaining classes; (4) To drop the requirement that the student make up all missed work by March 1, 2005, to cease requiring the student to make up missed work on his own without providing instruction, and to provide instructors and time for the student to complete such work through after school tutoring and in the summer; (5) Provide the student with after school transportation in order for him to participate in baseball or bowling; (6) Provide the student with a home teacher or a teacher in a residential psychiatric facility, if, in the opinion of the student's psychiatrist, it becomes again necessary; and (7) Provide the student with an appropriate Individualized Education Plan pursuant to the Individuals with Disabilities Education Act, in the least restrictive environment, to include a behavior intervention plan, and to exclude suspensions and expulsions as discipline, as such exclusion is inappropriate discipline for this student.

On April 19, 2005, a request and demand for payment of attorneys' fees was submitted to the District. Thereafter, Plaintiff contends that he incurred additional costs and expenditures in implementing the remedies granted by the Hearing Officer so that the Student would be placed with an IEP under the IDEA and receive special education services in the least restrictive environment. The District denies that it failed to implement the Due Process Hearing Officer's decision. The District refused Plaintiff's demand for attorney's fees because it contends that the Plaintiff is not the "prevailing party" as that term is defined by the IDEA in part because the Hearing Officer improperly placed the burden of proof on the District. The District has not appealed the Hearing Officer's decision.

Plaintiff attempted to negotiate and settle his claims for attorney's fees, but his attempts were unsuccessful. Accordingly, Plaintiff brought the present action. Plaintiff contends that he is entitled to $16,065.00 in fees and costs.

Standard for Summary Judgment

Summary judgment is appropriate only when there is no genuine issue of material fact, so that the dispute may be decided solely on legal grounds. Holloway v. Lockhart, 813 F.2d 874 (8th Cir. 1987); Fed. R. Civ. P. 56. The Supreme Court has established guidelines to assist trial courts in determining whether this standard has been met:

The inquiry is the threshold inquiry of determining whether there is a need for trial -- whether, in other words, there are genuine factual issues that properly can be resolved only by a finder of fact because ...


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