                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 05a0728n.06
                              Filed: August 19, 2005

                                               Case No. 03-4231

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT

 DAVID and BONNIE CAVANAUGH, for the                          )
 minor child, KYLE CAVANAUGH,                                 )
                                                              )
            Plaintiffs-Appellants,                            )        ON APPEAL FROM THE
                                                              )        UNITED STATES DISTRICT
                   v.                                         )        COURT FOR THE NORTHERN
                                                              )        DISTRICT OF OHIO
 CARDINAL LOCAL SCHOOL DISTRICT,                              )
                                                              )
            Defendant-Appellee.                               )
                                                              )
 _______________________________________                      )
                                                              )

BEFORE: SUHRHEINRICH, BATCHELDER and GIBSON*, Circuit Judges.

        ALICE M. BATCHELDER, Circuit Judge. Plaintiffs-Appellants David and Bonnie

Cavanaugh (“the Cavanaughs”), on behalf of their minor child, Kyle Cavanaugh, appeal the

Magistrate Judge’s order denying their claim that Defendant-Appellee Cardinal Local School

District (“Cardinal”) did not provide Kyle, who is disabled, with a “Free Appropriate Public

Education” (“FAPE”) as required by the Individuals with Disabilities in Education Act (“IDEA”),

20 U.S.C. § 1401 et seq. Bonnie Cavanaugh initiated this case on April 2, 2001, by filing a request

for a due process hearing with the Ohio Department of Education, claiming that the Individualized

Educational Plan drafted and implemented by Cardinal failed to provide Kyle with a FAPE. After

holding a hearing, an impartial hearing officer issued a decision finding that Cardinal had not

        *
         The Honorable John R. Gibson, Circuit Judge for the United States Court of Appeals, Eighth Circuit, sitting
by designation.
provided Kyle with a FAPE during the 2000-2001 school year and awarded the Cavanaughs one

year of compensatory education. The hearing officer also held, however, that complaints occurring

before April 2, 1999, were barred by a two-year statute of limitations and that the Cavanaughs were

not entitled to attorney fees. Both Cardinal and the Cavanaughs appealed to a state level review

officer.

           The review officer concluded that Cardinal had provided Kyle a FAPE, and that the

Cavanaughs were entitled to neither compensatory education nor attorney fees. The Cavanaughs

appealed this decision to the United States District Court and on June 30, 2003, Magistrate Judge

David S. Perelman issued an order upholding the decision of the review officer. Applying Ohio’s

two-year statute of limitations on personal injuries, the magistrate judge held that all claims accruing

before April 2, 1999, were time-barred. The court then upheld the review officer’s decision that

Kyle received a FAPE. The Cavanaughs, proceeding pro se, appealed the magistrate’s decision to

this court and filed briefs arguing that Kyle had indeed been denied a FAPE and that the magistrate

erred by applying a two-year statute of limitations. Because non-attorney parents cannot represent

their child in an IDEA action and because Kyle’s right to a FAPE was not a right that he shared

jointly with his parents, we held that the Cavanaughs could not proceed on their son’s behalf and

that their appeal would be dismissed unless they obtained counsel within 30 days. See Cavanaugh

v. Cardinal Local School District, 409 F.3d 753 (6th Cir. 2005). The Cavanaughs retained counsel

and submitted a supplemental brief arguing that Kyle was denied a FAPE because his Individualized

Educational Program was poorly written and did not contain clear standards with which to measure

his progress. They also contend that the magistrate judge erroneously applied a two-year statute of

limitations, but do not specify which limitation period should apply.


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       The Cavanaughs further argue that Cardinal violated the procedural requirements of the

IDEA by withholding some of Kyle’s scholastic records and that these procedural violations denied

Kyle a FAPE. The Cavanaughs’ brief, however, neither describes these records nor explains why

they are important. Instead, the brief references an attached affidavit in which Bonnie Cavanaugh

avers that portions of Kyle’s academic record, which she had previously requested in full, began

surfacing in June of 2005. She describes these documents as including, “but . . . not limited to, years

of teachers’ meetings notes regarding my son, medical reports dealing with my son, a history of

regular education intervention attempts concerning my son’s education progress, selected court

documents, outside evaluations of my son by professionals and correspondence and petitions

concerning my son.” Mrs. Cavanaugh’s affidavit does not elaborate on precisely why the records

are important; instead she avers “[h]ad I had copies or been aware of these records, at the

appropriate time, they would have been an important part of the record I would have presented in

my due process actions and my subsequent court appearances.”

       On August 10, 2005, the Cavanaughs filed a motion for extension of time to permit the

district court to consider a motion filed under FED. R. CIV. P. 60(b)(3), claiming newly discovered

evidence. Such a motion, we note, is properly brought under Rule 60(b)(2), but the erroneous

designation is immaterial: a motion under either of these subsections of Rule 60(b) must be filed

within one year of the entry of the judgment from which the movant seeks relief, and this motion

was filed more than two years after the judgment. While we have the authority pursuant to the

procedure outlined in First Nat’l Bank of Salem, Ohio v. Hirsch, 535 F.2d 343 (6th Cir. 1976), to

await an order from the district court indicating its inclination to grant a timely Rule 60(b) motion,

we have no reason to await such an order here.


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         The Cavanaughs have provided us with neither any copies of the records themselves nor a

sufficiently detailed description of their contents to permit us to determine the significance or the

relevance of these records, and their motion for an extension of time is, as we have explained above,

improper. Accordingly, we will proceed to consideration of the merits of their case.1

         When reviewing a district court’s denial of relief under the IDEA, we review the findings

of fact for clear error and the conclusions of law de novo. Berger v. Medina City School District,

348 F.3d 513, 519 (6th Cir. 2003). The district court undertakes a “modified de novo review” of the

administrative decision in an action brought under the IDEA. Board of Education v. Rowley, 458

U.S. 176, 206 (1982). “In doing so, the district court must make an independent examination of the

evidence and base its decision on a preponderance of the evidence contained in the complete record,

while giving due weight to the factual findings made in the state administrative proceedings;

particularly when educational expertise is essential to those findings.” Berger, 348 F.3d at 519

(quotation omitted).

         Having carefully considered the record on appeal and the briefs of the parties, we conclude

that the magistrate judge’s order contains no reversible error either in its findings of fact or its

conclusions of law. Because the issuance of a full opinion would serve no jurisprudential purpose

and would be duplicative, we affirm on the basis of the magistrate judge’s well-reasoned opinion

the order denying compensatory education. We note specifically that we agree with the magistrate

judge’s decision to apply Ohio’s two-year statute of limitations on personal injuries, O.R.C. §

2305.10(A), to the Cavanaughs’ IDEA action. As stated in King v. Floyd County Board of


         1
           We note that on June 30, 2005, Bonnie Cavanaugh, once again acting as a pro se advocate on behalf of her
son, filed a motion requesting that we dely our decision for 21 days so that Cardinal may “correct” the record. Because
a non-attorney parent may not represent her son in an IDEA action, see Cavanaugh, 409 F.3d at 756, and because, in
any event, Cardinal has no duty to supplement the record, we decline to consider Mrs. Cavanaugh’s request.

                                                          4
Education, “[b]ecause the [IDEA] contains no specific statute of limitations, the most appropriate

[state] statute of limitations must be determined by the Court.” 228 F.3d 622, 624 (6th Cir. 2000)

(quoting Janzen v. Knox County Board of Education, 790 F.2d 484, 486 (6th Cir. 1986)). We look

to the state cause of action that most closely parallels the action brought under the IDEA and then

apply in the federal proceedings the limitations period appropriate to that cause of action. Id. The

limitations period must be determined on a “case-by-case basis,” in view of the “facts, the

circumstances, the posture of the case and the legal theories presented.” Janzen, 790 F.2d at 486-87.

       Like a claim for personal injury, the Cavanaughs’ IDEA suit seeks to compensate Kyle for

his injuries by making him “whole.” See Birmingham v. Omaha School District, 220 F.3d 850, 856

(8th Cir. 2000) (applying Arkansas’s statute of limitations on personal injury actions to a claim

brought under the IDEA). We have applied a state statute of limitations on personal injury actions

in analogous situations. We have looked to O.R.C. § 2305.10 for claims brought under 42 U.S.C.

§ 1983, Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516, 519-20 (6th Cir. 1997) and K.R.S.

§ 413.140, Kentucky’s one-year statute of limitations on personal injury actions, to claims brought

under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, which prohibits the exclusion of

disabled people from federally funded programs. Southerland v. Hardaway Management Co., Inc.

41 F.3d 250, 253-55 (6th Cir. 1994). Borrowing Ohio’s two-year statute of limitations for both §

1983 and IDEA claims also yields a result consistent with Gean v. Hattaway, 330 F.3d 758, 773 (6th

Cir. 2003), in which we held that an IDEA claim may be brought either directly under the statute’s

own provisions or, in some circumstances, under § 1983. See Birmingham, 220 F.3d at 856.

       We think that the two-year limitation period allowed the Cavanaughs ample time in which

to assert Kyle’s rights under the IDEA, especially considering that Thomas Stone, an elementary


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principal in the Cardinal School District, provided the Cavanaughs with a statement of Kyle’s rights

under the IDEA in May of 1994. See Strawn v. Missouri State Board of Education, 210 F.3d 954,

958 (8th Cir. 2000) (“A two-year statute of limitations does not frustrate federal policy. A two-year

limitation provides for relatively quick resolution of the claims so that important years of education

are not lost. Two years is also not such a brief period that it undermines the IDEA policy of

providing parents the opportunity to protect their disabled children’s rights”).

       For the foregoing reasons, we AFFIRM the judgment of the magistrate judge.




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