Katz v. Timberlane Reg. School Dist. CV-01-393-M 01/17/02 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Elena Katz, et a l .

v. Civil No. 01-393-M Opinion No.

Timberlane Regional School District, et a l .

REPORT AND RECOMMENDATION

Before the court is the amended complaint1 of pro se

plaintiff Elena Katz, filed on behalf of herself and her minor

daughter, Eleonora G., against the Timberlane School District and

the Danville Elementary School pursuant to the Individuals with

Disabilities in Education Act ("IDEA"),

, et

sea., and New Hampshire state law. Katz's suit seeks judicial

review of the New Hampshire Department of Education's final

administrative decision regarding the evaluation, testing, and

education of Katz's daughter. Because Katz is proceeding both

1Katz's first complaint was filed on October 17, 2001. Katz reworked and refiled her complaint as the original contained reference to her minor daughter by her full name. The amended complaint (document no. 1), filed October 31, 2001, contains a number of typographical errors. Liberally construing the complaint, I rely on the most reasonable and sensible reading of the complaint in determining the facts to be relied on here. pro se and in forma pauperis, the matter is before me for

preliminary review. See United States District Court for the

District of New Hampshire Local Rules ("LR") 4.3(d)(1)(B);

(e)(2). For the reasons stated below, I recommend

the complaint be dismissed.

Standard of Review

In reviewing a pro se complaint, the court is obliged to

construe the pleading liberally. See Avala Serrano v. Lebron

Gonzales,

(1st Cir. 1990) (following Estelle v.

Gamble,

(1976) to construe pro se pleadings

liberally in favor of that party). At this preliminary stage of

review, all factual assertions made by the plaintiff and

inferences reasonably drawn therefrom must be accepted as true.

See Aulson v. Blanchard,

(1st Cir. 1996) (stating

the "failure to state a claim" standard of review and explaining

that all "well-pleaded factual averments," not bald assertions,

must be accepted as true). This review ensures that pro se

pleadings are given fair and meaningful consideration. See

Eveland v. Dir, of C.I.A.,

(1st Cir. 1988).

2 Background

In April of 2000, Eleonora was a third grade student at

Danville Elementary School in the Timberlane School District.

During that month, Eleonora was referred by her teacher for a

diagnostic evaluation of her educational needs which would,

presumably, lead to the development of an individual education

plan ("IEP") for Eleonora. Eleonora's parents were apparently

already aware of Eleonora's need for evaluation and had obtained

an appointment for a private evaluation for Eleonora. The

defendants proposed their own assessment and diagnostic plan.

To make a long and rancorous story short, it is fair to

state that the school district and Eleonora's parents had

significant disagreements over what course of action should be

taken to properly evaluate Eleonora's educational status and

needs. This disagreement devolved into the parents' request for

a due process hearing pursuant to

(f) and N.H.

Rev. Stat. Ann. 186-C:16-b. A hearing took place and the matter

was resolved in favor of the defendants on January 23, 2001. The

plaintiff appealed the decision to the Rockingham County Superior

Court on February 5, 2001. After at least one hearing, and the

receipt of written pleadings, the Superior Court ruled in favor

3 of the defendants. Katz filed a timely appeal to the New

Hampshire Supreme Court, which was declined on September 12,

2001. This suit followed.2

Discussion

The IDEA guarantees a free and appropriate public education

to all children. In return for federal funding, state

educational agencies establish procedures to identify and

evaluate disabled students in need of special education services.

(d), 1412. For each identified child, an IFF is

developed. If a parent believes that a proposed IEP will not

provide an appropriate education, or that the procedures

established by the IDEA have not been properly followed in

developing the IEP, the parent may request an administrative due

process hearing to review the matter.

. In New

Hampshire, only one level of administrative review exists - the

due process hearing. If either party is dissatisfied with an

administrative hearing officer's ruling, the IDEA permits that

party to bring a civil suit "in any State court of competent

2Although this suit has followed on the heels of the New Hampshire Supreme Court's declination of Katz's appeal, it appears from a plain reading of her complaint that Katz's intent is for this court to exercise its original jurisdiction over the administrative decision, not for this court to directly review the state court proceedings.

4 jurisdiction or in a district court of the United States without

regard to the amount in controversy" to obtain judicial review of

the administrative resolution.

(1) (2) . State

and federal courts, therefore, have concurrent jurisdiction over

such cases. Spaulding v. Mingo County Bd. of Educ.,

(S.D.W.Va. 1995), (citing Town of Burlington v. Dep't.

of Educ. for Com, of Mass.,

, 788-89 (1st Cir. 1984),

aff'd,

(1985)).

Where different courts enjoy concurrent jurisdiction, which

permits the same parties to proceed simultaneously in different

judicial forums3, res iudicata issues frequently arise. Id.; see

Colo. River Water Conservation Dist. v. United States,

(1976). "The doctrine of res judicata--meaning, literally,

the thing has been decided--binds parties and their privies from

litigating or relitigating any issue or claim that was

adjudicated in a prior case." Vega Arriaga v. J.C. Penney, Inc.,

(D.P.R. 1987). Res judicata precludes

3T o the extent Katz may have been allowed to proceed with an action in this court simultaneously with her action in the state court, she would have had to file this action within 120 days of receipt of the due process hearing officer's final decision. N.H. Rev. Stat. Ann. 186-C:16 - b (IV). Katz received the notice of final decision on January 23, 2001 and filed this action initially on October 17, 2001, almost nine months later and clearly outside the 120 day deadline.

5 the relitigation of claims that were raised or could have been

raised in a prior case if three elements are satisfied: "(1) a

final judgement on the merits in an earlier suit, (2) sufficient

identicality between the causes of action asserted in the earlier

and later suits, and (3) sufficient identicality between the

parties in the two suits." Gonzalez v. Banco Central Corp.,

(1st Cir. 1994); see also Porn v. Nat'l Grange M u t .

Ins. Co.. 93 F .3d 31, 34 (1st Cir. 1996).

As to the first element, Katz indicates that she has

received a final judgment on the merits from the state court

system as she states that after the Superior Court decided the

matter and denied her motion to reconsider, she appealed the

matter to the New Hampshire Supreme Court. The appeal was

declined on September 12, 2001, finalizing the judgment of the

Superior Court.

As to the second element, a cause of action is defined as "a

set of facts which can be characterized as a single transaction

or series of related transactions." Apparel Art Int'l, Inc. v.

Amertex Enters., Ltd.,

(1st Cir. 1995). Simply

put, this examination amounts to whether or not the causes of

action alleged arise out of a common set of operative facts.

6 Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n,

(1st Cir. 1998). Here, the factual underpinnings of the two

suits are exactly the same. Although the plaintiff has not

provided information as to the exact claims raised in the state

court, "a single transaction may give rise to a multiplicity of

claims . . . and the mere fact that different legal theories are

presented in each case does not mean that the same transaction is

not behind each." Porn, 93 F.3d at 34 (quoting Maneqo v. Orleans

Bd. of Trade,

(1st Cir. 1985), cert, denied,

(1986)). Further, res iudicata precludes claims that

"were or could have been raised" in the earlier action. Bay

State HMO M q m t ., Inc. v. Tinqlev S v s ., Inc.,

(1st Cir. 1999) (emphasis added). There is no reason why all of

the claims presented in this complaint could not have been raised

in the earlier action.

As to the third element, Katz' complaint is clear that the

defendants to this suit were the defendants in the state court

proceeding. Therefore, the parties to the two suits are

identical.

7 Conclusion

Because all three of the elements of res iudicata are

satisfied, I find that the doctrine applies here and precludes

relitigation of the claims presented here. Because Katz has

therefore failed to state a claim upon which relief can be

granted, I recommend dismissal of the action in its entirety.

See

(e) (2) (B) (ii) .

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court's order. See Unauthorized Practice of

Law Comm, v. Gordon,

(1st Cir. 1992); United

States v. Valencia-Copete,

(1st Cir. 1986).

James R. Muirhead United States Magistrate Judge

Date: January 17, 2002

cc: Elena Katz, pro se

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