Judge refuses to reopen due process case by Phila. School District parent

By Jon Campisi | Nov 23, 2012

Litigation against the Philadelphia School District’s Office for Dispute Resolution that

Litigation against the Philadelphia School District’s Office for Dispute Resolution that

had been initiated by the parent of a special needs student has officially come to a close after a federal judge denied a plaintiff’s motion to reopen and reconsider her case.

The case dates back to early February 2011, when Carmencita Maria Pedro filed suit at the U.S. District Court in Philadelphia on behalf of her minor son, identified in court papers only as “K.L.F.”

The complaint was framed as an appeal of a Jan. 9, 2011 administrative order from the school district’s Office for Dispute Resolution that dismissed an internal case brought by the plaintiff over claims that the due process rights of her son were violated in accordance with the Individuals with Disabilities Education Improvement Act of 2004.

Specifically, Pedro had objected to a psycho-educational evaluation that had been conducted on her son in August 2008 by the school district, and the accuracy and correctness of the information supplied within the re-evaluation reports, according to a copy of the complaint.

Pedro’s federal litigation claimed that she was never given the proper opportunity to respond to the school district’s decision with regard to the ODR’s administrative decision.

In addition to the School District of Philadelphia and its Office for Dispute Resolution, the other defendants who had been named in the complaint were Anne L. Carroll, a lawyer and the special education hearing officer under contract with the ODR, and Kimberly Caputo, an assistant general counsel with the school district.

The suit had claimed that Carroll’s ruling was “arbitrary, capricious, dubious, malicious and injurious” to the plaintiff and her minor son.

It further alleged that Carroll colluded with Caputo to dismiss the plaintiff’s administrative case.

On Nov. 14, U.S. District Judge William Yohn, while expressing sympathy for the plaintiff’s plight, dismissed Pedro’s request to reopen her case, essentially putting an end to the litigation.

Pedro had amended her complaint twice, in April and June 2011 respectively, to add various doctors and lawyers associated with the school district as defendants, court papers show.

In the summer of 2011, the defendants filed motions to dismiss. On Aug. 17 of last year, Pedro filed for an extension of time by which to respond, which Yohn granted about a week later, with deadline for the response set by the judge as Sept. 22, 2011.

Pedro, however, never filed a response, and on Oct. 3, 2011, Yohn granted the defendants’ dismissal motions with prejudice.

Meanwhile, however, the court had been unaware that Pedro and her family had been struck by a seemingly endless string of tragedies, Yohn’s latest memorandum states, including substance abuse and behavioral issues that had befallen the plaintiff’s son and led to his treatment at a residential facility and subsequent homelessness; home damage due to Hurricane Irene; and a work injury that prevented the plaintiff from being able to secure employment.

It wasn’t until one year after Yohn dismissed Pedro’s case at the federal court that Pedro filed her motion for reconsideration.

Yohn wrote that while he is sympathetic to the hardships the plaintiff has faced during the past year-and-a-half, including circumstances that were beyond her control, such as the damage caused by Hurricane Irene, he still feels Pedro’s explanation fails to account for the “length” of the delay in filing her response.

“While I would not expect Pedro to file her 60(b) motion immediately, there is no excuse for her waiting eleven months,” the judge wrote. “Any contention that she was completely unable to act until September 2012 (the point at which she fully healed from her injury ad supplemented her income) is simply incredible.”

Yohn further stated that nowhere in her brief did Pedro provide any indication that she would be able to survive the defendants’ motion to dismiss.

The defendants had argued for dismissal on various grounds, including judicial immunity, Eleventh Amendment immunity, failure to state a claim due to complete lack or insufficiency of factual allegations, lack of subject-matter jurisdiction, and failure to exhaust administrative remedies.

“I do not express any view on the merits of these arguments; however, Pedro’s complete failure to address them makes me reluctant to exercise my discretion at the cost of finality,” Yohn’s ruling states.

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