United States District Court, M.D. Pennsylvania
For Stephen Buckley, Plaintiff: Dennis C. McAndrews, Michael E. Gehring, LEAD ATTORNEYS, McAndrews Law Offices, Berwyn, PA.
For State Correctional Institution - Pine Grove, Pennsylvania Department of Corrections, Defendants: Debra S. Rand, Chief Counsel's Office, Pennsylvania Department of Corrections, Mechanicsburg, PA.
For mediator, Mediator: Jane Rigler, LEAD ATTORNEY, Professor of Law, The Dickinson School of Law, Carlisle, PA.
Hon. John E. Jones III, United States District Judge.
This matter involves an apparently novel legal question arising at the intersection of a student's right to a free appropriate public education under the Individuals with Disabilities Education Act (" IDEA" ) and a correctional institution's legitimate interest in security and prison management. Specifically, we are tasked to interpret the strictures of 20 U.S.C. § 1414(d)(7)(B), which allows certain incarcerated students' Individualized Education Programs to be modified where the state proves a bona fide security interest that cannot otherwise be accommodated. The action is before us on the parties' cross motions for judgment on the supplemented administrative record. (Docs. 36, 38).
Plaintiff is 21 years old (born October 8, 1993) and at all times relevant to this
matter was incarcerated at SCI-Pine Grove, a young adult offender institution. (Doc. 17-2, pp. 6, 7). He is diagnosed with Attention Deficit Hyperactivity Disorder and an Emotional Disturbance ( id. at p. 6), and has been identified as eligible for services under the IDEA. ( Id. at p. 2). As required by the statute, various Individualized Education Programs (" IEPs" ) have been developed for Plaintiff for the delivery of special education and related services. ( Id. at p. 6); see 20 U.S.C. § 1414(d)(1)(A).
The IEP in place before Plaintiff was incarcerated at SCI-Pine Grove was dated May 8, 2009, and developed while he was in the custody of Lackawanna County Prison. (J2). Pertinently, the IEP included a description of Plaintiff's then-present levels of academic achievement and functional performance based on recent testing. (J2, pp. 4-5); see 20 U.S.C. § 1414(d)(1)(A)(i)(I). The program stated annual academic goals in math computation and reading fluency, and a functional goal related to transitioning between activities. (J2, pp. 10-12); see 20 U.S.C. § 1414(d)(1)(A)(i)(II). The academic objectives were to be measured by " progress monitoring," and his functional goal was to be tracked by documenting his class participation and conduct, with progress on all goals to be reported quarterly. (J2, pp. 10-12); see 20 U.S.C. § 1414(d)(1)(A)(i)(III). The IEP also listed numerous program modifications and specially designed instructions (" SDI" ). (J2, p. 13); see 20 U.S.C. § 1414(d)(1)(A)(i)(IV). Under the IEP, Plaintiff received one hour per day of education with one hour of supplemental services. (J2, p. 15). In terms of classes, he was enrolled in Math, English, Science, and History. ( Id. ).
While incarcerated at the Lackawanna County Prison, Plaintiff received services in accordance with his IEP. (Doc. 17-2, p. 6). On December 11, 2009, he was sent to the Diagnostic and Classification Center of the Pennsylvania Department of Corrections (" DOC" ) at SCI-Camp Hill. ( Id. ). Within three weeks of his arrival, Plaintiff was placed in SCI-Camp Hill's Restricted Housing Unit (" RHU" ), a section of the prison housing inmates with disciplinary infractions. ( Id. at pp. 6-7). On February 2, 2010, Plaintiff was transferred to SCI-Pine Grove, apparently directly into that institution's RHU. ( Id. at p. 6).
Inmates in SCI-Pine Grove's RHU spend 23 hours per day in their cells. ( Id. at p. 7). Each cell is approximately 8' by 10', with a cot, desk, chair, toilet, and sink, all furnishings being secured to the building structure. ( Id. ). Cell doors are of solid metal with a small window and a food tray aperture (sometimes called a " pie slot" ). ( Id. ). Some RHU inmates are double-celled, but Plaintiff did not have a cell mate. ( Id. ). The RHU is cacophonously loud at all hours. ( Id. at p. 9). Inmates are permitted exercise five days a week for one hour and get showers throughout the week. ( Id. at p. 7). They may also be transported from their cells, for example, to receive visitors, medical assistance, or counseling. ( Id. ). A specific protocol is followed every time an RHU inmate is removed from his cell: two officers
handcuff the inmate behind the back through the cell's tray aperture, and they open the door only after the inmate is handcuffed. ( Id. ). RHU inmates are always escorted by two officers. ( Id. ).
Plaintiff has committed multiple assaults and other rule infractions, resulting in his continued, restrictive detention. ( Id. at pp. 7-8). Specifically, Plaintiff has engaged in assaultive behavior on at least four occasions, including on January 2, 2010, July 27, 2010, November 2, 2010, and December 23, 2010. ( Id. at p. 8). He has engaged in other serious misconduct on approximately 25 separate occasions, such as threatening prison personnel or their families, destroying property, refusing to obey orders, and possessing contraband. ( Id. ). Plaintiff has used writing paper to cover the windows and tray aperture in his cell, creating an extremely dangerous situation for guards needing to enter. ( Id. ). Because of this conduct, Plaintiff's paper and writing utensil privileges were discontinued. ( Id. ). Plaintiff has also taken his tray aperture " hostage" by placing his arms through the slot, rendering it impossible for officers to secure the tray door. ( Id. ).
Each inmate's confinement in the RHU is reviewed every 30 days by a Program Review Committee (" PRC" ) consisting of prison officials. ( Id. at p. 9). The PRC reviewed Plaintiff's case at least three times and determined that Plaintiff was properly placed in the RHU on each occasion. ( Id. ). It appears that Plaintiff essentially spent the duration of his incarceration at SCI-Pine Grove in the RHU, amounting to a period of not days or months but years.
In terms of education, three IEPs were developed for Plaintiff while at SCI-Pine Grove (the " SCI-Pine Grove IEPs" ). (J5, J8, J10). The first IEP, dated June 8, 2010, stated Plaintiff's present academic level based on one test administered at SCI-Camp Hill on February 2, 2010. (J5, p. 5). It explained that, because Plaintiff was then housed in the RHU, there were no current classroom observations and represented that Plaintiff " receives cell study one time per week which he has been consistently completing." ( Id. ). In terms of functional needs, the IEP noted that Plaintiff " needs to follow institutional rules so that he can be transitioned into the general population where he can attend school." ( Id. ). The IEP included no academic goals and one functional goal, namely that Plaintiff " will comply to [sic] all rules, regulations, and academic requests while in the restricted housing unit and/or transition." ( Id. at p. 10). Progress was to be measured by discussion and observation and reported on Plaintiff's IEP form and through quarterly report cards. ( Id. ). As the Hearing Officer observed, the goal has no baseline and is not objectively measurable, unless of course Plaintiff was 100% compliant all of the time. (Doc. 17-2, p. 9). The IEP contained the following modifications and SDI: Feedback, Monitoring, and Modification to materials when needed. (J5, p. 11). The parties stipulated that the second IEP, dated February 1, 2011 (J8), and the third IEP, dated February 14, 2012 (J10), were virtually identical to the first IEP. (NT 125, 126). Before implementing the second IEP, SCI-Pine Grove issued a Reevaluation Report (" RR" ) on December 27, 2010, which did not contain new assessment data but relied on the single test administered at SCI-Camp Hill more than one year prior. (Doc. 17-2, p. 9). In the
words of the Hearing Officer, the " [r]ecommendations to the IEP team [were] conclusory, generic, and have no bearing whatsoever on the actual services that [Plaintiff] may have needed or was likely to have received at the time." ( Id. ).
Throughout his time in the RHU, pursuant to the prison's general policy for RHU inmates, Plaintiff received only in-cell study. Although SCI-Pine Grove has a school, which includes several classrooms and a gymnasium and provides special education services to eligible students, the inmates confined in the RHU are not permitted to attend. ( Id. at pp. 7, 8). Instead, a teacher would provide " self study packets" to Plaintiff through the tray aperture in his cell door. ( Id. at p. 8). The Hearing Officer found, and the parties do not dispute, that the packets were not individualized to Plaintiff. ( Id. at p. 9). Without opening the cell door, the teacher would remain outside of Plaintiff's cell to answer any questions. ( Id. at p. 8). However, Plaintiff was not obligated to and did not complete the packets and seldom spoke with the teacher. ( Id. ). In any event, the usual noise level in the RHU is so loud as to impede any attempt at instruction. ( Id. at p. 9 & n.5; NT 27-28). No additional educational or related services were provided to Plaintiff or any other student in the RHU. (Doc. 17-2, p. 9).
Plaintiff submitted a due process complaint on October 16, 2012, centrally challenging that he was being denied a free appropriate public education (" FAPE" ). He demanded compensatory education for the denial of a FAPE, an order to provide a FAPE going forward, and an independent educational evaluation (" IEE" ). On March 22, 2013, a due process hearing was conducted, and a decision was rendered on May 1, 2013. ( Id. at p. 1).
The Hearing Officer ruled that the educational services offered to Plaintiff did not violate the IDEA. He concluded that, pursuant to 20 U.S.C. § 1414(d)(7)(B), SCI-Pine Grove had demonstrated " a bona fide security or compelling penological interest that cannot otherwise be accommodated," and that Plaintiff's IEP was permissibly modified accordingly. ( Id. at p. 13 (quoting 20 U.S.C. § 1414(d)(7)(B))). Specifically, the Hearing Officer found the existence of a bona fide security interest, describing that, " despite the extreme precautions taken with all inmates in the RHU, the Student is a constant security risk[,] . . . manag[ing] to commit assaults even with the RHU protocols in place." ( Id. ). The Hearing Officer rejected Plaintiff's argument that RHU protocols appropriately accommodated any security concerns and that Plaintiff could be safely removed from his cell in accordance with RHU procedures in order to receive one-on-one special education services. ( Id. ). While such contention may be compelling in the abstract, the Hearing Officer reasoned, the security risk particular to Plaintiff militated against frequently removing him from his cell as he advocated. ( Id. ).
The Hearing Officer further disagreed with Plaintiff's argument that his IEP was not " modif[ied]" within the meaning of the statute but, rather, completely eliminated.
The ruling provided the following rationale:
[The Student's] IEP does not come remotely close to satisfying the § 1414(d)(1)(A) requirements [for the content of an IEP] but, since the § 1414(d)(7)(B) exception is triggered, it does not have to. Said differently, the Student argues that he is still entitled to a FAPE even if the 1414(d)(7)(B) exception is triggered. . . . [H]owever, the exception exempts SCI-Pine Grove from the requirement to provide an IEP that includes special education and related services. This is the foundation upon which FAPE stands. I must find that, as a matter of law, whenever [a local educational agency] is not required to provide an IEP, it is not required to provide a FAPE.
( Id. at p. 13). To clarify, the Hearing Officer expressed that Plaintiff's IEP did not comply with IDEA standards and that Plaintiff received absolutely no special education, specially designed instruction, or related services, but that this failure -- though a great disservice to Plaintiff -- did not violate the IDEA. ( Id. at p. 14).
In light of the security-interest exception, the Hearing Officer denied Plaintiff's demand for compensatory education and a FAPE. ( Id. ). However, he found that such exception does not negate SCI-Pine Grove's duty to evaluate Plaintiff in accordance with the IDEA. ( Id. ). Observing that the prison had failed to appropriately evaluate Plaintiff, the Hearing Officer ordered an IEE consisting of a Neuropsychological Evaluation, Functional Behavioral Assessment, and Psychiatric Evaluation. ( Id. at p. 16).
II. PROCEDURAL HISTORY
Plaintiff commenced the present action with the filing of a Complaint on July 29, 2013 (Doc. 1), appealing the Hearing Officer's decision and alleging violations of the IDEA, Section 504 of the Rehabilitation Act, as amended, 29 U.S.C. § 794 (" RA" ), and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (" ADA" ). Plaintiff contends that the Hearing Officer erred in concluding that Plaintiff's IEP was appropriately modified under § 1414(d)(7)(B) of the IDEA and in reasoning that SCI-Pine Grove was not obligated to provide him with a FAPE. ( Id. ¶ 4). Plaintiff centrally requests an award of compensatory education; a declaration that SCI-Pine Grove's actions violated the IDEA, RA, and ADA; attorney's fees and costs; and compensatory damages. ( Id. at pp. 21-22).
On November 15, 2013, Plaintiff filed a Motion to Submit Additional Evidence (Doc. 18), seeking to admit two documents to supplement the administrative record: the IEE performed by Dr. Steven Kachmar, ordered by the Hearing Officer and dated October 15, 2013, and Plaintiff's Inmate Cumulative Adjustment Records (" ICAR" ), dated October 17, 2013. The IEE is a 42-page report purposed to establish " additional information related to [Plaintiff's] cognitive abilities, academic strengths and weaknesses, as well as his current social, emotional, and behavioral functioning." (Doc. 20-1, p. 2). The report describes that the psychologist conducted the evaluation on September 14, 2013, ...