Statement of Jurisdiction
On October 25, 2006 the Southern District Court granted Defendants motions to dismiss
Plaintiff’s Third Amended Complaint. Plaintiff’s Third Amended Complaint was dismissed
in its entirety, without prejudice and without leave to amend. On October 30, 2006 the
CLERK JUDGMENT to Defendants motion to dismiss was granted. On November 7, 2006
Plaintiff filed a NOTICE OF APPEAL as to 113 Clerk’s Judgment. This Court has
jurisdiction pursuant to 28 U.S.C § 1291 as the District Court dismissed Plaintiff’s entire
case and entered judgment in favor of the school district and their charter school.
Alternatively, this Court has jurisdiction under the collateral order exception to 28 U.S.C.
§ 1291 as the court’s order conclusively determined the disputed question regarding the
parent’s ability to pursue claims under the I.D.E.A. without counsel, resolved an important
issue separate from the merits of the case, and is effectively unreviewable on appeal from
final judgment. See e.g. Devine v. Indian River Co. Sch. Bd., 121 F.3d 576 (11th Cir. 1997).
The Southern District Court ruled that parents and children are distinct legal entities
under the I.D.E.A. siding with the Third Circuit and quoting Johns v. County of San
Diego, 114 F.3d 874 (9th Cir. 1997); Osei-Afriyie v. Med. Coll. of Pennsylvania, 937 F.2d
876 (3d Cir. 1991); (See dismissal of original Plaintiff’s Complaint 10/29/2004 Doc. No. 19)
holding that parents who are not attorneys may not appear pro se in court on behalf of
their children in I.D.E.A. cases.
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Page 3
A denial of the right to proceed pro se comes within the collateral order doctrine. See
Devine v. Indian River County Sch. Bd., 121 F.3d 576, 578-81 (11th Cir. 1997) (holding
denial of motion to proceed pro se to fall within the collateral order doctrine); C.E. Pope
Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987) (deeming a claim of a
violation of the right to self-representation to come within the collateral order doctrine);
O'Reilly v. New York Times Co., 692 F.2d 863, 866-67 (2d Cir. 1982) (finding denial of
motion to proceed pro se appealable under the collateral order doctrine); 15B Charles
Alan Wright et al., Federal Practice and procedure, § 3914.21 (2d ed. 1992) (supporting
application of the collateral order doctrine to denials of motions to proceed pro se).
The Plaintiff’s son is not able to find counsel to bring forth his own claim and, as a result
of the court’s order, is not able to pursue the I.D.E.A. claims at issue in this case.
Statement of the Case
Plaintiff, Silvia Peters, filed original Complaint on June 6, 2004 together with Exhibits for
violations under I.D.E.A. 20 U.S.C.§ 1400 et seq., For Compensatory Damages, Punitive
Damages and Injunctive Relief for Violation of 42 U.S.C. § 1983, For Monetary Damages
for Violation of Section 504 of the Rehabilitation Act of 1973, For Monetary damages for
Violation of Title VI of the Civil Rights Act of 1964, For Monetary Damages for Violation
of Title IX of the Education Amendment of 1972, For Injunction Relief for Violation of
Government Code § 1090, For Monetary Damages for Violation of First Amendment Free
Speech Right, For other Injunctive Relief for Violations under California Education Codes
and Racketeering Influenced Corrupt Organization (Civil RICO).
The District Court entered order granting Defendants motion to dismiss Plaintiffs
Complaint pursuant to FRCP 12 (b) (1), (6), 12 (e). The Southern District Court declared
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Page 4
Peters’ complaint was dismissed because she was seeking relief for her minor son as next
friend and guardian but without a license attorney to represent her son’s interests. In her
supportive argument against dismissal Peters asserted she may urge her own I.D.E.A.
rights under 28 U.S.C § 1654 in pro se. In addition, under the I.D.E.A. her rights and her
son’s were interwoven and intertwined as Justice Roth J. dissenting opinion declared.
“Nothing in the legislative history of the I.D.E.A. suggests that congress intended that
I.D.E.A. cases as a whole or substantive I.D.E.A. claims alone could be brought in federal
court only by lawyers. Far from demonstrating an intent to circumscribe parental
involvement, the legislative history indicates congress’s commitment to encouraging
parental involvement and protection to assure that appropriate services are provided to a
handicapped child,” See Collinsgru v. Palmyra Bd. of Educ., 161 F. 3d at 237-38 (Roth. J.,
dissenting) (quoting the EHA, S. Rep. No. 94-168, at 11-12 (1975)).”
The court ordered Peters to separate her own rights apart from her son’s rights. Doc.
No. 58, pg.1 line. 26-28. The Complaint was dismissed in its entirety without prejudice,
and stated, Plaintiff may file an amended complaint within 30 days. Entered October 29,
2004. Plaintiff’s son was ordered to retain an attorney before bringing his I.D.E.A. claims
to the Southern District Court. Plaintiff Peters filed a First Amended Complaint on
November 29, 2004 together with additional Exhibits asserting her own rights under the
I.D.E.A. On September 29, 2004 Plaintiff filed a request to enter default against Guajome
Park Academy Charter School, “GPACS” and its Defendants the clerk grated a certificate
of default based on the fact that Defendants were served with the complaint. Defendant
GPACS legal counsel and insurance company acknowledged receipt, called Plaintiff after
all parties including insurance and legal counsel received the complaint, yet failed to
respond to the complaint.
On December 15, 2004 Plaintiff’s son R.P. filed a motion, “in support of”
appointment of counsel. On February 18, 2005 the court denied plaintiff’s son motion for
“appointment of counsel for R.P.” (See Court transcript on record of Reporter’s Transcript
of Proceedings of February 18, 2005 transcribed by Gayle Wakefield RPR, CRR.). On
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February 28, 2005 the Court granted Defendants GPACS motion to set aside default. On
April 1, 2005 the Court granted JOINER by defendants for VUSD and GPACS et al.
despite GPACS status as a 501C3 ‘Corporation’ recipient of State and federal funds and
part of the State as to the entitlement of equal funding, but not an arm of the State for the
principle of liability and immunity. On May 5, 2005 Order was entered by the court
granting dfts’ JOINT motions (s) to dismiss Plaintiff’s Amended Complaint pursuant to
FRCP 12 (b) (1), 12 (b) (6) and 12 (e) [32-1], [44-1] Again the Court stated; Peters’
complaint was dismissed because she was seeking relief for her minor son but without a
licensed attorney to represent her son’s interests. Doc. 58 pg.1 line. 26-28. Further the
Court goes on to say, “Plaintiff’s First Amended Complaint is 36 pages and 153 paragraphs
long.” Attached to the Amended Complaint are approximately 350 pages of exhibits. The
Amended Complaint does not contain “short and plain statement of the claim [s]” as
required by the Rule 8 (a). of the Federal Rues of Civil Procedures. Doc. No. 58, Page 2
line 1-5 and “that the claims are long and rambling.” The court further questioned the
exhaustion of administrative remedies and believes that Peters as Defendants alleged is in
the same position as Robb v. Bethel School District 308 F. 3d at 1048.
Further adding, “Peters like in Robb is couching her claims in terms of civil rights
violations in an effort to avoid the administrative exhaustion required under the I.D.E.A.”
See Doc. 58, Pg. 3 line 1-9. The Court dismissed Plaintiff’s Amended Complaint [24-1]
w/o prejudice and with leave to amend w/30 days. The court ordered Plaintiff to submit a
Second Amended Complaint that complies with Rule 8 (a) See Doc. 58, Pg. 3 line 23-28.
Plaintiff filed an appeal to the Ninth Circuit Court of Appeals on May 19, 2005. 9th
Cir. No. 05-55861. On June 6, 2005 Plaintiff filed a Second Amended Complaint [1-1] With
additional Exhibits. On August 15, 2005 The Ninth Circuit Court of Appeals dismissed
Plaintiff’s appeal [59-1] for lack of jurisdiction. On February 15, 2006 the court granted
Defendants motion to dismiss Plaintiff’s Second Amended Complaint pursuant to FRCP 12
(b) (1); 12 (b) (6), 12 (e) [65-1] without prejudice and with leave to amend complaint.
Doc. No. 76, pg. 2 line 11-13.
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Page 6
The court declared that, “Plaintiff is sufficiently clear in describing that she is seeking
to vindicate her own rights, the source of those rights and the type of relief she seeks”,
nevertheless, Plaintiff’s Second Amended Complaint was dismissed. On March 14, 2006
Plaintiff filed a Third Amended Complaint with additional Exhibits but the court did not
enter it until April 28, 2006 while the Defendants motion to dismiss Plaintiff’s Third
Amended Compliant was entered by the court on April 18, 2006. Defendants Vista
Unified School District “VUSD” et. al. motion to have Plaintiff’s Third Amended
dismissed Complaint did not include Guajome Park Academy Charter School “GPACS.”
On April 28, 2006 the Court ordered striking Exhibits submitted by Plaintiff with her
Third Amended Complaint of March 14, 2006. After GPACS failed to answer Plaintiff’s
Third Amended Complaint once more and fail to reimburse Plaintiff’s for the cost of
service pursuant to FRCP 4 (c) (1) and 4 (d) for the previous service of complaint in
which Plaintiff had previously discussed with GPACS legal counsel Ms. Jacobs in
compliance FRCP 4 (c) (1) and 4 (d) in which Plaintiff needed to be reimbursed because
GPACS failed to return summons. Plaintiff filed a notice of Summary Judgment against
GPACS on May 8, 2006. On October 17, 2006 court ordered denying Plaintiff’s motion
for Summary Judgment. On October 17, 2006 the court ordered Plaintiff’s motion to
reconsider “Striking of Exhibits” of 06/05/06 denied. On October 25, 2006 the court
ordered Defendants motions to dismiss Plaintiff’s Third Amended granted.
Plaintiff’s Third Amended Complaint was dismissed in its entirety, without prejudice
and without leave to amend. On October 30, 2006 the CLERK JUDGMENT to
defendants motion to dismiss was granted. Plaintiff’s Third Amended Complaint was
dismissed in its entirety, without prejudice and without leave to amend. On November 7,
2006 Plaintiff filed a NOTICE OF APPEAL as to 113 Clerk’s Judgment.
The district court dismissed Plaintiff’s case and entered judgment in favor of the
school district and their charter school ruling that (a). Plaintiff had failed to exhaust
administrative remedies under the I.D.E.A., (b). Plaintiff was alleging claims belonging
to her son, (c). Plaintiff had not meet the heighten pleading requirement to sustain a §
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Page 7
1983 Claim, (d). Ruling that plaintiff was recasting under § 504 her I.D.E.A. claims in
order to avoid the exhaustion requirements under I.D.E.A., and (e). Failure to comply
with the Voluntary Resolution Plan “VRP” does not give rise to rights such as third
parties as Plaintiff.
Issues on Appeal
1. Whether Parents Have Standing To Bring Claims For Substantive And
Procedural Violations Of The I.D.E.A. And May Bring Such Claims With or
Without An Attorney.
A. Whether The District Court Erred In Ruling That Plaintiff Cannot
Pursue Claims For Substantive Violations Of The Individuals with
Disabilities Education Act Without An Attorney, As The Claims Are
Her Own.
2. Whether Parents Have a Statutory Right To Bring Claims For Substantive
And Procedural Violations Of The I.D.E.A. And May Bring Such Claims
Without An Attorney.
3. Whether The District Court Erred In Denying The Request For Appointment
Of Counsel For Plaintiff’s Son.
4. Whether The District Court Erred In Ruling That Guajome Park Academy
Charter School “GPACS” And Its School Officials, Through A Charter
School, is Part Of The California Public School System And Part Of The
State’s Eleventh Amendment Immunity; In Reference As To Accountability
And Liability Proposes. Doc. No. 112-1 Pg. 4 line 5-13.
5. First, Second, And Third Claim For Relief - Whether The District Court
Erred In Ruling That Plaintiff Has Not Exhausted Her Administrative
Remedies Under The IDEA.
6. Fourth, Fifth, Sixth And Tenth Claim For Relief –Whether The District Court
Erred In Requiring A Heighten Pleading to Assert A 42 U.S.C. § 1983 Claim
Against State Officials In Their Individual Capacity As Well As Official
Capacity.
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Page 8
8
7. Whether The District Court Erred In Ruling That The Ninth Claim Like The
Seventh And Eight Claims For Relief Is Brought Against The School District
Defendants And The Individual Defendants In Their Official Capacities Is An
I.D.E.A. Claim Impermissibly Recasted As A § 504 Seeking Money Damages
Unavailable Under The I.D.E.A. And Without Exhausting Administrative
Remedies Of The I.D.E.A. If The Ninth Claim for Relief Is An Improper
Claim.
8. Tenth, Eleventh And Twelfth Claim For Relief -Whether Individuals Have A
Cause Of Action To Enforce Section 601 of Title VI Of The Civil Rights Act
Of 1964.
9 Tenth, Eleventh and Twelve Claims for Relief.- Whether Parents Have Their
Own Rights Under the I.D.E.A.
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Page 9
Argument
1. Parents Have Standing To Bring Claims For Substantive And
Procedural Violations Of The I.D.E.A. And May Bring Such Claims
Without An Attorney
A. The district court erred in ruling that Plaintiff cannot pursue
claims for substantive violations of the Individuals with
Disabilities Education Act without an attorney, as the claims
are her own.
While the United States Supreme Court has not recognized a constitutional right to self-
representation in civil cases, there is a federal statutory right of long standing to self-
representation in civil cases under 28 U.S.C. § 1654. See Andrews v. Bechtel Power Corp.,
780 F.2d 124, 137 (1st Cir.1985), cert. denied, 476 U.S. 1172 (1986); O'Reilly v. New York
Times Co., 692 F.2d 863, 867 (2d Cir.1982); In re Las Colinas Dev. Corp., 585 F.2d 7, 12
(1st Cir.1978), cert. denied, 440 U.S. 931 (1979). The statutory right to self-representation
in
28 U.S.C § 1654 provides that "[i]n all courts of the United States the parties may plead
and
conduct their own cases personally or by counsel...." (emphasis added). A parent pursuing
claims under the I.D.E.A. is pursuing their own case and must be permitted to do so with
or
without an attorney under 28 U.S.C § 1654.
2. Parents Have A Statutory Right To Bring Claims For Substantive And
Procedural Violations Of The IDEA And May Bring Such Claims
Without An Attorney.
The main purposes of the I.D.E.A. are to (1) ensure that all children with disabilities
have available to them a free and appropriate public education that emphasizes special
education and related services designed to meet their unique needs and prepare them for
employment and independent living; and (2) to ensure that the rights of children with
disabilities and parents of such children are protected. 20 U.S.C § 1400(d)(emphasis added).
Plaintiff believes that she has standing to proceed on her substantive I.D.E.A. allegations
of
violations.
“The I.D.E.A. gives parents the right to present complaints with respect to any
matter relating to the identification, evaluation, or educational placement of the child, or
the provision of a free appropriate public education to such child. Parents are not limited
to enforcing those procedures which directly address parental participation but can
enforce any matter that relates to the provision of an appropriate education to their child.
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Page 10
It was to ensure that the parents would not be silenced by the very forces that had once
excluded disabled children from public education, that Congress granted parents the right
to seek review of their child’s IEP. It is the parents, then, who are specifically granted
the right to an impartial due process administrative hearing… Parents, therefore, have
standing under I.D.E.A. to assert violations of any matter relating to their child’s receipt
of a free and appropriate public education”
Goleta Union Elementary Sch. Distr. V. Ordway, 248 f. Supp.2d 936, 942 (C.D. Cal.
2002) Amanda J. ex rel. Annette J. v. Clark County Sch. Dist...267 F. 3d. 877, 892. (9th
Cir. 2001) (quoting W.G. v. Board of Trustees of Target Range Sch. Dist. 960 f. 2d 1479,
1485 (9th Cir. 1992) 20 U.S.C. § 1400 (c).
The I.D.E.A. ensures "all handicapped children . . . a free appropriate public education
which emphasizes special education and related services designed to meet their unique
needs." 20 U.S.C. § 1400c (1994). 20 U.S.C. § 1400 (c). Since the enactment and
implementation of the Education for All Handicapped Children Act of 1975, this Act has
been successful in ensuring children with disabilities and the families of such children
access to a free appropriate public education and in improving educational results for
children with disabilities. 20 U.S.C § 1400(c)(3) (2002)(emphasis added).
There are a number of other statements in the legislative history of the EHA
recognizing that the right to FAPE flows to both parents and students without distinction.
For example, the Senate report for the EHA states that “parents of handicapped children
have the right to expect that individually designed instruction to meet their children’s
specific needs is available” and that such instruction be provided at “no cost to the
parents of a handicapped child.” S.Rep. 94-168, 1975 USCCAN at 1434, 1456, 1464-65
(1975)(emphasis added). See Plaintiff’s Second Amended Complaint 11/29/04 Doc.24
pg. 7 line 1-28. Second Amended Complaint 11/29/04 Doc.24 pg. 10-11 line 18-28, 1-
28.
The question of parents maintaining a cause of action for violations of I.D.E.A. that do
not specifically implicate the enumerated rights granted to a parent was answered in
Goleta v. Andrew Ordway et. al. 248 f. Supp.2d 936, 942 (C.D. Cal. 2002) U. S. District
Judge Dean D. Pregerson,
[Footnote]
“This approach requires dissecting I.D.E.A. into categories of rights, some of which
belong to the parents and some of which belong to the child. Under § 1983 “[e] very
person who, under color of any statute, ordinance, regulation, custom, or
usage……,subjects of causes to be subjected any citizen of the United States …to the
deprivation of any rights, privileges or immunities secured by the Constitution and laws,
shall be liable to the party injured.” Frazier v. Sch. Comm., 276 F. 3d 52, 58 (1st. Cir.
2002). The key question is whether the actions of the party deprived the plaintiff of a
federally secure rights. Id. ….The Supreme court has used three factor test to determine
whether or not a statutory provisions creates and enforceable right (1) whether the
plaintiff is an intended beneficiary of the statute; (2) whether the plaintiff’s asserted
interests are not so vague and amorphous as to be beyond the competence of the
judiciary to enforce; (3) whether the statute imposes a binding obligation on the
state. See Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 509 (1990). In Suter v. Artist
M., 503 U.S. 347, 357 (1992) the Supreme Court again addressed whether a statute
created a right that could form the basis of a § 1983 and held that the statute in question
must unambiguously confer upon the intended beneficiaries, one looks to the statutory
language to see whether it is “phrased in terms of the persons benefited,” Victorian v.
Miller, 813 F 2d. 718, 720-21 (5th Cir. 1987) (quoting Cannon v. University of Chicago,
441 U.S. 677, 692 n.13 (1979)). The I.D.E.A. statement of purpose recognizes that the
goal of the statute is “to ensure that the rights of children with disabilities and parents of
such children are protected.” 20 U.S.C. § 1400 (d) (1) (b) (emphasis added). Moreover
the I.D.E.A. unambiguously confers upon the parent beneficiaries of the statute an
endorsable right to the procedural mechanism that secure their disabled children a free
and appropriate public education. Courts have consistently recognized that importance of
parents to the proper functioning of the I.D.E.A. Porter v. Board of Tr. Of Manhattan
Beach; 307 F. 3d. 1064 (9th Cir. 2002) Amanda J. v. Clark County Sch. Dist. 267 F. 3d
877 882 (9th cir. 2001). The I.D.E.A. therefore, intends to protect and benefit not only
disabled children, but their parents, by recognizing that there is a unity of interest
between the parent and the child in obtaining a free and appropriate education.
Moreover, the court can find no precedent to support a parsing of I.D.E.A. into separate
rights for parents and children. In contrast, the Supreme Court, analyzing the National
Labor Relations Board Act (“NLRA”) in the context of § 1983, held that the NLRRA
created rights in both labor and management. Golden State Transit Corp. v. city of Los
Angles, 493 U.S. 103, 108 (1989)…the enforcement mechanism of I.D.E.A. evidences an
intent to create a comprehensive statutory scheme benefiting both parents and children
without distinction.”
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Page 11
The source of the right to a free and appropriate public education under the I.D.E.A.
comes from the parental obligation to send their children to school. Such an obligation
creates a parental right to have their child receive free and appropriate public educational
services. Thus, the right to a free and appropriate public education under the I.D.E.A.
belongs to both parents and to students without distinction. Students are entitled to
receive a free and appropriate public education and parents are entitled to have their
children receive free and appropriate educational services at no cost to the parent.
Parents of students with disabilities no longer have to provide these educational services
at their own expense and children with disabilities no longer have to depend on their
parent’s resources to receive educational services.
In California the parent is obligated to send their child to school between the
ages of 6-18. Education Code section 48200 which states that each person between the
age of 6 and 18 years shall attend the public full-time day school. A violation of this
law subjects the parent, and the child, to criminal punishment.
On October 25, 2006 the Southern District Court granted Defendants motions to dismiss
Plaintiff’s Third Amended Complaint. Plaintiff’s Third Amended Complaint was dismissed
in its entirety, without prejudice and without leave to amend. On October 30, 2006 the
CLERK JUDGMENT to Defendants motion to dismiss was granted. On November 7, 2006
Plaintiff filed a NOTICE OF APPEAL as to 113 Clerk’s Judgment. This Court has
jurisdiction pursuant to 28 U.S.C § 1291 as the District Court dismissed Plaintiff’s entire
case and entered judgment in favor of the school district and their charter school.
Alternatively, this Court has jurisdiction under the collateral order exception to 28 U.S.C.
§ 1291 as the court’s order conclusively determined the disputed question regarding the
parent’s ability to pursue claims under the I.D.E.A. without counsel, resolved an important
issue separate from the merits of the case, and is effectively unreviewable on appeal from
final judgment. See e.g. Devine v. Indian River Co. Sch. Bd., 121 F.3d 576 (11th Cir. 1997).
The Southern District Court ruled that parents and children are distinct legal entities
under the I.D.E.A. siding with the Third Circuit and quoting Johns v. County of San
Diego, 114 F.3d 874 (9th Cir. 1997); Osei-Afriyie v. Med. Coll. of Pennsylvania, 937 F.2d
876 (3d Cir. 1991); (See dismissal of original Plaintiff’s Complaint 10/29/2004 Doc. No. 19)
holding that parents who are not attorneys may not appear pro se in court on behalf of
their children in I.D.E.A. cases.
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Page 3
A denial of the right to proceed pro se comes within the collateral order doctrine. See
Devine v. Indian River County Sch. Bd., 121 F.3d 576, 578-81 (11th Cir. 1997) (holding
denial of motion to proceed pro se to fall within the collateral order doctrine); C.E. Pope
Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987) (deeming a claim of a
violation of the right to self-representation to come within the collateral order doctrine);
O'Reilly v. New York Times Co., 692 F.2d 863, 866-67 (2d Cir. 1982) (finding denial of
motion to proceed pro se appealable under the collateral order doctrine); 15B Charles
Alan Wright et al., Federal Practice and procedure, § 3914.21 (2d ed. 1992) (supporting
application of the collateral order doctrine to denials of motions to proceed pro se).
The Plaintiff’s son is not able to find counsel to bring forth his own claim and, as a result
of the court’s order, is not able to pursue the I.D.E.A. claims at issue in this case.
Statement of the Case
Plaintiff, Silvia Peters, filed original Complaint on June 6, 2004 together with Exhibits for
violations under I.D.E.A. 20 U.S.C.§ 1400 et seq., For Compensatory Damages, Punitive
Damages and Injunctive Relief for Violation of 42 U.S.C. § 1983, For Monetary Damages
for Violation of Section 504 of the Rehabilitation Act of 1973, For Monetary damages for
Violation of Title VI of the Civil Rights Act of 1964, For Monetary Damages for Violation
of Title IX of the Education Amendment of 1972, For Injunction Relief for Violation of
Government Code § 1090, For Monetary Damages for Violation of First Amendment Free
Speech Right, For other Injunctive Relief for Violations under California Education Codes
and Racketeering Influenced Corrupt Organization (Civil RICO).
The District Court entered order granting Defendants motion to dismiss Plaintiffs
Complaint pursuant to FRCP 12 (b) (1), (6), 12 (e). The Southern District Court declared
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Page 4
Peters’ complaint was dismissed because she was seeking relief for her minor son as next
friend and guardian but without a license attorney to represent her son’s interests. In her
supportive argument against dismissal Peters asserted she may urge her own I.D.E.A.
rights under 28 U.S.C § 1654 in pro se. In addition, under the I.D.E.A. her rights and her
son’s were interwoven and intertwined as Justice Roth J. dissenting opinion declared.
“Nothing in the legislative history of the I.D.E.A. suggests that congress intended that
I.D.E.A. cases as a whole or substantive I.D.E.A. claims alone could be brought in federal
court only by lawyers. Far from demonstrating an intent to circumscribe parental
involvement, the legislative history indicates congress’s commitment to encouraging
parental involvement and protection to assure that appropriate services are provided to a
handicapped child,” See Collinsgru v. Palmyra Bd. of Educ., 161 F. 3d at 237-38 (Roth. J.,
dissenting) (quoting the EHA, S. Rep. No. 94-168, at 11-12 (1975)).”
The court ordered Peters to separate her own rights apart from her son’s rights. Doc.
No. 58, pg.1 line. 26-28. The Complaint was dismissed in its entirety without prejudice,
and stated, Plaintiff may file an amended complaint within 30 days. Entered October 29,
2004. Plaintiff’s son was ordered to retain an attorney before bringing his I.D.E.A. claims
to the Southern District Court. Plaintiff Peters filed a First Amended Complaint on
November 29, 2004 together with additional Exhibits asserting her own rights under the
I.D.E.A. On September 29, 2004 Plaintiff filed a request to enter default against Guajome
Park Academy Charter School, “GPACS” and its Defendants the clerk grated a certificate
of default based on the fact that Defendants were served with the complaint. Defendant
GPACS legal counsel and insurance company acknowledged receipt, called Plaintiff after
all parties including insurance and legal counsel received the complaint, yet failed to
respond to the complaint.
On December 15, 2004 Plaintiff’s son R.P. filed a motion, “in support of”
appointment of counsel. On February 18, 2005 the court denied plaintiff’s son motion for
“appointment of counsel for R.P.” (See Court transcript on record of Reporter’s Transcript
of Proceedings of February 18, 2005 transcribed by Gayle Wakefield RPR, CRR.). On
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Page 5
February 28, 2005 the Court granted Defendants GPACS motion to set aside default. On
April 1, 2005 the Court granted JOINER by defendants for VUSD and GPACS et al.
despite GPACS status as a 501C3 ‘Corporation’ recipient of State and federal funds and
part of the State as to the entitlement of equal funding, but not an arm of the State for the
principle of liability and immunity. On May 5, 2005 Order was entered by the court
granting dfts’ JOINT motions (s) to dismiss Plaintiff’s Amended Complaint pursuant to
FRCP 12 (b) (1), 12 (b) (6) and 12 (e) [32-1], [44-1] Again the Court stated; Peters’
complaint was dismissed because she was seeking relief for her minor son but without a
licensed attorney to represent her son’s interests. Doc. 58 pg.1 line. 26-28. Further the
Court goes on to say, “Plaintiff’s First Amended Complaint is 36 pages and 153 paragraphs
long.” Attached to the Amended Complaint are approximately 350 pages of exhibits. The
Amended Complaint does not contain “short and plain statement of the claim [s]” as
required by the Rule 8 (a). of the Federal Rues of Civil Procedures. Doc. No. 58, Page 2
line 1-5 and “that the claims are long and rambling.” The court further questioned the
exhaustion of administrative remedies and believes that Peters as Defendants alleged is in
the same position as Robb v. Bethel School District 308 F. 3d at 1048.
Further adding, “Peters like in Robb is couching her claims in terms of civil rights
violations in an effort to avoid the administrative exhaustion required under the I.D.E.A.”
See Doc. 58, Pg. 3 line 1-9. The Court dismissed Plaintiff’s Amended Complaint [24-1]
w/o prejudice and with leave to amend w/30 days. The court ordered Plaintiff to submit a
Second Amended Complaint that complies with Rule 8 (a) See Doc. 58, Pg. 3 line 23-28.
Plaintiff filed an appeal to the Ninth Circuit Court of Appeals on May 19, 2005. 9th
Cir. No. 05-55861. On June 6, 2005 Plaintiff filed a Second Amended Complaint [1-1] With
additional Exhibits. On August 15, 2005 The Ninth Circuit Court of Appeals dismissed
Plaintiff’s appeal [59-1] for lack of jurisdiction. On February 15, 2006 the court granted
Defendants motion to dismiss Plaintiff’s Second Amended Complaint pursuant to FRCP 12
(b) (1); 12 (b) (6), 12 (e) [65-1] without prejudice and with leave to amend complaint.
Doc. No. 76, pg. 2 line 11-13.
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Page 6
The court declared that, “Plaintiff is sufficiently clear in describing that she is seeking
to vindicate her own rights, the source of those rights and the type of relief she seeks”,
nevertheless, Plaintiff’s Second Amended Complaint was dismissed. On March 14, 2006
Plaintiff filed a Third Amended Complaint with additional Exhibits but the court did not
enter it until April 28, 2006 while the Defendants motion to dismiss Plaintiff’s Third
Amended Compliant was entered by the court on April 18, 2006. Defendants Vista
Unified School District “VUSD” et. al. motion to have Plaintiff’s Third Amended
dismissed Complaint did not include Guajome Park Academy Charter School “GPACS.”
On April 28, 2006 the Court ordered striking Exhibits submitted by Plaintiff with her
Third Amended Complaint of March 14, 2006. After GPACS failed to answer Plaintiff’s
Third Amended Complaint once more and fail to reimburse Plaintiff’s for the cost of
service pursuant to FRCP 4 (c) (1) and 4 (d) for the previous service of complaint in
which Plaintiff had previously discussed with GPACS legal counsel Ms. Jacobs in
compliance FRCP 4 (c) (1) and 4 (d) in which Plaintiff needed to be reimbursed because
GPACS failed to return summons. Plaintiff filed a notice of Summary Judgment against
GPACS on May 8, 2006. On October 17, 2006 court ordered denying Plaintiff’s motion
for Summary Judgment. On October 17, 2006 the court ordered Plaintiff’s motion to
reconsider “Striking of Exhibits” of 06/05/06 denied. On October 25, 2006 the court
ordered Defendants motions to dismiss Plaintiff’s Third Amended granted.
Plaintiff’s Third Amended Complaint was dismissed in its entirety, without prejudice
and without leave to amend. On October 30, 2006 the CLERK JUDGMENT to
defendants motion to dismiss was granted. Plaintiff’s Third Amended Complaint was
dismissed in its entirety, without prejudice and without leave to amend. On November 7,
2006 Plaintiff filed a NOTICE OF APPEAL as to 113 Clerk’s Judgment.
The district court dismissed Plaintiff’s case and entered judgment in favor of the
school district and their charter school ruling that (a). Plaintiff had failed to exhaust
administrative remedies under the I.D.E.A., (b). Plaintiff was alleging claims belonging
to her son, (c). Plaintiff had not meet the heighten pleading requirement to sustain a §
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Page 7
1983 Claim, (d). Ruling that plaintiff was recasting under § 504 her I.D.E.A. claims in
order to avoid the exhaustion requirements under I.D.E.A., and (e). Failure to comply
with the Voluntary Resolution Plan “VRP” does not give rise to rights such as third
parties as Plaintiff.
Issues on Appeal
1. Whether Parents Have Standing To Bring Claims For Substantive And
Procedural Violations Of The I.D.E.A. And May Bring Such Claims With or
Without An Attorney.
A. Whether The District Court Erred In Ruling That Plaintiff Cannot
Pursue Claims For Substantive Violations Of The Individuals with
Disabilities Education Act Without An Attorney, As The Claims Are
Her Own.
2. Whether Parents Have a Statutory Right To Bring Claims For Substantive
And Procedural Violations Of The I.D.E.A. And May Bring Such Claims
Without An Attorney.
3. Whether The District Court Erred In Denying The Request For Appointment
Of Counsel For Plaintiff’s Son.
4. Whether The District Court Erred In Ruling That Guajome Park Academy
Charter School “GPACS” And Its School Officials, Through A Charter
School, is Part Of The California Public School System And Part Of The
State’s Eleventh Amendment Immunity; In Reference As To Accountability
And Liability Proposes. Doc. No. 112-1 Pg. 4 line 5-13.
5. First, Second, And Third Claim For Relief - Whether The District Court
Erred In Ruling That Plaintiff Has Not Exhausted Her Administrative
Remedies Under The IDEA.
6. Fourth, Fifth, Sixth And Tenth Claim For Relief –Whether The District Court
Erred In Requiring A Heighten Pleading to Assert A 42 U.S.C. § 1983 Claim
Against State Officials In Their Individual Capacity As Well As Official
Capacity.
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Page 8
8
7. Whether The District Court Erred In Ruling That The Ninth Claim Like The
Seventh And Eight Claims For Relief Is Brought Against The School District
Defendants And The Individual Defendants In Their Official Capacities Is An
I.D.E.A. Claim Impermissibly Recasted As A § 504 Seeking Money Damages
Unavailable Under The I.D.E.A. And Without Exhausting Administrative
Remedies Of The I.D.E.A. If The Ninth Claim for Relief Is An Improper
Claim.
8. Tenth, Eleventh And Twelfth Claim For Relief -Whether Individuals Have A
Cause Of Action To Enforce Section 601 of Title VI Of The Civil Rights Act
Of 1964.
9 Tenth, Eleventh and Twelve Claims for Relief.- Whether Parents Have Their
Own Rights Under the I.D.E.A.
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Page 9
Argument
1. Parents Have Standing To Bring Claims For Substantive And
Procedural Violations Of The I.D.E.A. And May Bring Such Claims
Without An Attorney
A. The district court erred in ruling that Plaintiff cannot pursue
claims for substantive violations of the Individuals with
Disabilities Education Act without an attorney, as the claims
are her own.
While the United States Supreme Court has not recognized a constitutional right to self-
representation in civil cases, there is a federal statutory right of long standing to self-
representation in civil cases under 28 U.S.C. § 1654. See Andrews v. Bechtel Power Corp.,
780 F.2d 124, 137 (1st Cir.1985), cert. denied, 476 U.S. 1172 (1986); O'Reilly v. New York
Times Co., 692 F.2d 863, 867 (2d Cir.1982); In re Las Colinas Dev. Corp., 585 F.2d 7, 12
(1st Cir.1978), cert. denied, 440 U.S. 931 (1979). The statutory right to self-representation
in
28 U.S.C § 1654 provides that "[i]n all courts of the United States the parties may plead
and
conduct their own cases personally or by counsel...." (emphasis added). A parent pursuing
claims under the I.D.E.A. is pursuing their own case and must be permitted to do so with
or
without an attorney under 28 U.S.C § 1654.
2. Parents Have A Statutory Right To Bring Claims For Substantive And
Procedural Violations Of The IDEA And May Bring Such Claims
Without An Attorney.
The main purposes of the I.D.E.A. are to (1) ensure that all children with disabilities
have available to them a free and appropriate public education that emphasizes special
education and related services designed to meet their unique needs and prepare them for
employment and independent living; and (2) to ensure that the rights of children with
disabilities and parents of such children are protected. 20 U.S.C § 1400(d)(emphasis added).
Plaintiff believes that she has standing to proceed on her substantive I.D.E.A. allegations
of
violations.
“The I.D.E.A. gives parents the right to present complaints with respect to any
matter relating to the identification, evaluation, or educational placement of the child, or
the provision of a free appropriate public education to such child. Parents are not limited
to enforcing those procedures which directly address parental participation but can
enforce any matter that relates to the provision of an appropriate education to their child.
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Page 10
It was to ensure that the parents would not be silenced by the very forces that had once
excluded disabled children from public education, that Congress granted parents the right
to seek review of their child’s IEP. It is the parents, then, who are specifically granted
the right to an impartial due process administrative hearing… Parents, therefore, have
standing under I.D.E.A. to assert violations of any matter relating to their child’s receipt
of a free and appropriate public education”
Goleta Union Elementary Sch. Distr. V. Ordway, 248 f. Supp.2d 936, 942 (C.D. Cal.
2002) Amanda J. ex rel. Annette J. v. Clark County Sch. Dist...267 F. 3d. 877, 892. (9th
Cir. 2001) (quoting W.G. v. Board of Trustees of Target Range Sch. Dist. 960 f. 2d 1479,
1485 (9th Cir. 1992) 20 U.S.C. § 1400 (c).
The I.D.E.A. ensures "all handicapped children . . . a free appropriate public education
which emphasizes special education and related services designed to meet their unique
needs." 20 U.S.C. § 1400c (1994). 20 U.S.C. § 1400 (c). Since the enactment and
implementation of the Education for All Handicapped Children Act of 1975, this Act has
been successful in ensuring children with disabilities and the families of such children
access to a free appropriate public education and in improving educational results for
children with disabilities. 20 U.S.C § 1400(c)(3) (2002)(emphasis added).
There are a number of other statements in the legislative history of the EHA
recognizing that the right to FAPE flows to both parents and students without distinction.
For example, the Senate report for the EHA states that “parents of handicapped children
have the right to expect that individually designed instruction to meet their children’s
specific needs is available” and that such instruction be provided at “no cost to the
parents of a handicapped child.” S.Rep. 94-168, 1975 USCCAN at 1434, 1456, 1464-65
(1975)(emphasis added). See Plaintiff’s Second Amended Complaint 11/29/04 Doc.24
pg. 7 line 1-28. Second Amended Complaint 11/29/04 Doc.24 pg. 10-11 line 18-28, 1-
28.
The question of parents maintaining a cause of action for violations of I.D.E.A. that do
not specifically implicate the enumerated rights granted to a parent was answered in
Goleta v. Andrew Ordway et. al. 248 f. Supp.2d 936, 942 (C.D. Cal. 2002) U. S. District
Judge Dean D. Pregerson,
[Footnote]
“This approach requires dissecting I.D.E.A. into categories of rights, some of which
belong to the parents and some of which belong to the child. Under § 1983 “[e] very
person who, under color of any statute, ordinance, regulation, custom, or
usage……,subjects of causes to be subjected any citizen of the United States …to the
deprivation of any rights, privileges or immunities secured by the Constitution and laws,
shall be liable to the party injured.” Frazier v. Sch. Comm., 276 F. 3d 52, 58 (1st. Cir.
2002). The key question is whether the actions of the party deprived the plaintiff of a
federally secure rights. Id. ….The Supreme court has used three factor test to determine
whether or not a statutory provisions creates and enforceable right (1) whether the
plaintiff is an intended beneficiary of the statute; (2) whether the plaintiff’s asserted
interests are not so vague and amorphous as to be beyond the competence of the
judiciary to enforce; (3) whether the statute imposes a binding obligation on the
state. See Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 509 (1990). In Suter v. Artist
M., 503 U.S. 347, 357 (1992) the Supreme Court again addressed whether a statute
created a right that could form the basis of a § 1983 and held that the statute in question
must unambiguously confer upon the intended beneficiaries, one looks to the statutory
language to see whether it is “phrased in terms of the persons benefited,” Victorian v.
Miller, 813 F 2d. 718, 720-21 (5th Cir. 1987) (quoting Cannon v. University of Chicago,
441 U.S. 677, 692 n.13 (1979)). The I.D.E.A. statement of purpose recognizes that the
goal of the statute is “to ensure that the rights of children with disabilities and parents of
such children are protected.” 20 U.S.C. § 1400 (d) (1) (b) (emphasis added). Moreover
the I.D.E.A. unambiguously confers upon the parent beneficiaries of the statute an
endorsable right to the procedural mechanism that secure their disabled children a free
and appropriate public education. Courts have consistently recognized that importance of
parents to the proper functioning of the I.D.E.A. Porter v. Board of Tr. Of Manhattan
Beach; 307 F. 3d. 1064 (9th Cir. 2002) Amanda J. v. Clark County Sch. Dist. 267 F. 3d
877 882 (9th cir. 2001). The I.D.E.A. therefore, intends to protect and benefit not only
disabled children, but their parents, by recognizing that there is a unity of interest
between the parent and the child in obtaining a free and appropriate education.
Moreover, the court can find no precedent to support a parsing of I.D.E.A. into separate
rights for parents and children. In contrast, the Supreme Court, analyzing the National
Labor Relations Board Act (“NLRA”) in the context of § 1983, held that the NLRRA
created rights in both labor and management. Golden State Transit Corp. v. city of Los
Angles, 493 U.S. 103, 108 (1989)…the enforcement mechanism of I.D.E.A. evidences an
intent to create a comprehensive statutory scheme benefiting both parents and children
without distinction.”
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Page 11
The source of the right to a free and appropriate public education under the I.D.E.A.
comes from the parental obligation to send their children to school. Such an obligation
creates a parental right to have their child receive free and appropriate public educational
services. Thus, the right to a free and appropriate public education under the I.D.E.A.
belongs to both parents and to students without distinction. Students are entitled to
receive a free and appropriate public education and parents are entitled to have their
children receive free and appropriate educational services at no cost to the parent.
Parents of students with disabilities no longer have to provide these educational services
at their own expense and children with disabilities no longer have to depend on their
parent’s resources to receive educational services.
In California the parent is obligated to send their child to school between the
ages of 6-18. Education Code section 48200 which states that each person between the
age of 6 and 18 years shall attend the public full-time day school. A violation of this
law subjects the parent, and the child, to criminal punishment.
Silvia Peters
Plaintiff-Appellant
v.
BOARD OF TRUSTEES OF THE VISTA
UNIFIED SCHOOL DISTRICT; THE
VISTA UNIFIED SCHOOL DISTRICT
(VUSD),
DAVID HUBBARD individually
and in his official capacity as President of
the Board of Directors for VUSD,
DAVE COWLES, individually and in his
official capacity as Superintendent of VUSD,
JOHN HANNAMAN individually and in
his official capacity as Director of Special
Education Services for VUSD.
BOARD OF TRUSTEES OF GUAJOME
PARK ACADEMY; GUAJOME PARK
ACADEMY CHARTER SCHOOL
(GPACS),
BEVERLY KANAWI individually and in her
official capacity as teacher and Member of
the Board of Directors for GPACS,
MIKE HADJIAGHAI individually and in his
official capacity as Assistant Director of
GPACS,
STEPHEN HALFAKER
individually and in his official capacity as
CEO and Member of the Board of
Directors for GPACS, and DOES 1-50
inclusive.
Defendant-Appellee
Plaintiff-Appellant
v.
BOARD OF TRUSTEES OF THE VISTA
UNIFIED SCHOOL DISTRICT; THE
VISTA UNIFIED SCHOOL DISTRICT
(VUSD),
DAVID HUBBARD individually
and in his official capacity as President of
the Board of Directors for VUSD,
DAVE COWLES, individually and in his
official capacity as Superintendent of VUSD,
JOHN HANNAMAN individually and in
his official capacity as Director of Special
Education Services for VUSD.
BOARD OF TRUSTEES OF GUAJOME
PARK ACADEMY; GUAJOME PARK
ACADEMY CHARTER SCHOOL
(GPACS),
BEVERLY KANAWI individually and in her
official capacity as teacher and Member of
the Board of Directors for GPACS,
MIKE HADJIAGHAI individually and in his
official capacity as Assistant Director of
GPACS,
STEPHEN HALFAKER
individually and in his official capacity as
CEO and Member of the Board of
Directors for GPACS, and DOES 1-50
inclusive.
Defendant-Appellee
| UNITED STATES COURT OF APPEALS FOR THE NINTH JUDICIAL CIRCUIT COURT Appeal No. #06-56587 |
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA _____________________________________________________________ APPELLANTS' INFORMAL BRIEF Silvia Peters 760.941.5924 En Propia Persona |
Case No. 06-56587
Case No. 05-55861
D.C. No. 04 CV 1259 RTB (POR)
Case No. 05-55861
D.C. No. 04 CV 1259 RTB (POR)
| Peters v. Guajome Park Academy and Vista Unified School District |
| Plaintiff's son had to endure frequent physical assaults, mocking, humiliation in front of his peers, being spat on, called 'half breed, pita-pita, beaner, stupid, defiant...' |
"Plaintiff’s son would go into the office after lunch and informed P.C. that these
students were physically abusing and tormenting him. P.C. who had already
observed many of the events and failed to put a stop to them would say to the
Plaintiffs son, “tell me what you did to cause these kids to hurt you” which R.P.
responded “nothing.”
"P.C. would then say “well, you are not going to leave until you tell me what you
did to cause them to hurt you” The Plaintiff son sat in the office for hours. These
events took place many times, in addition to blatant denial of a Free Appropriate
Public Education (FAPE)...
"R.P. and another student went to teacher Mr. C.C. for help and Mr. C.C.
responded; “you can’t blame him, after what your mother is saying at the
meetings of the Board.”
"In addition when teacher M.G. would not allow R.P. to come into the classroom
and would make comments out loud to him, as soon as she saw R.P. walk into her
class she would say, “I feel like strangling somebody.”
"Then she would snap her fingers and say, go to the office, at which point
Principal P.C. would hand R.P. a trash bag and ask him to clean the lunch area.
"This event took place every day for a couple of weeks and Plaintiff reported it
to OCR."
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Education Reform Report
| Vista Unified School District |
| Judge Benitez' decision in this case was always interesting, so it's no wonder someone put it on the Internet. But why was it recently removed? That's what made me want to keep the decision available. Here it is: |