                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 9 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

EVERETT H.; et al.,                             No.   18-16642

                Plaintiffs-Appellants,          D.C. No.
                                                2:13-cv-00889-MCE-DB
 v.

DRY CREEK JOINT ELEMENTARY                      MEMORANDUM*
SCHOOL DISTRICT; et al.,

                Defendants-Appellees.

                  Appeal from the United States District Court
                      for the Eastern District of California
                Morrison C. England, Jr., District Judge, Presiding

                            Submitted January 6, 2020**
                             San Francisco, California

Before: WALLACE and FRIEDLAND, Circuit Judges, and HILLMAN,***
District Judge.

      Everett H. is a child with learning disabilities who attended an elementary



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Timothy Hillman, United States District Judge for the
District of Massachusetts, sitting by designation.
school in the Dry Creek Joint Elementary School District (“District”). His parents

sued the District, its administrators, and the California Department of Education

(“CDE”), asserting violations of the Individuals with Disabilities Education

Improvement Act (“IDEA”) and related statutes. His parents also brought claims

under 42 U.S.C. § 1983 against California’s Superintendent of Public Instruction,

Tom Torlakson (“Superintendent Torlakson”).

      The district court dismissed the section 1983 claims against Superintendent

Torlakson. The district court later denied the remaining parties’ cross-motions for

summary judgment. A trial was then held on Plaintiffs-Appellants’ claims against

the CDE.1 After the jury found in the CDE’s favor on all claims,2 Plaintiffs-

Appellants moved for judgment as a matter of law under Federal Rule of Civil

Procedure 50(b) and for a new trial under Federal Rule of Civil Procedure 59(a).

The district court denied both motions.

      Plaintiffs-Appellants now appeal from the district court’s dismissal of their

claims against Superintendent Torlakson, from the denial of their motion for



1
      Plaintiffs-Appellants settled their claims against the District and its
administrators before trial. Given the terms of that settlement, Plaintiffs-Appellants
have abandoned their appeal on their claims against the District.
2
       The district court did not err in submitting the IDEA claims to the jury.
Because Plaintiffs-Appellants requested that the district court submit the claims to
the jury, including by opposing the CDE’s motion to strike the jury trial demand as
to those claims, the doctrine of invited error bars their subsequent challenge.

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summary judgment, and from the denial of their post-trial motions under Rules 50(b)

and 59(a). We dismiss in part and affirm in part.

      We dismiss the appeal from the district court’s denial of Plaintiffs-Appellants’

motion for a new trial. Without a trial transcript, we cannot review the merits of the

district court’s finding of no prejudicial error. See Fed. R. App. P. 10(b)(2); see also

Syncom Capital Corp. v. Wade, 924 F.2d 167, 169 (9th Cir. 1991) (per curiam).

      Plaintiffs-Appellants have not identified any plain error with respect to the

portion of the appeal under Rule 50(b) based on any argument not raised in

Plaintiffs-Appellants’ Rule 50(a) motion. See EEOC v. Go Daddy Software, Inc.,

581 F.3d 951, 961 (9th Cir. 2009) (“[A] proper post-verdict Rule 50(b) motion is

limited to the grounds asserted in the pre-deliberation Rule 50(a) motion. Thus, a

party cannot properly ‘raise arguments in its post-trial motion for judgment as a

matter of law under Rule 50(b) that it did not raise in its preverdict Rule 50(a)

motion.’”) (quoting Freund v. Nycomed Amersham, 347 F.3d 752, 761 (9th Cir.

2003)). When, as here, a party seeks post-trial judgment as a matter of law as to an

issue that was not raised in a Rule 50(a) motion, “we are limited to reviewing the

jury’s verdict for plain error,” which requires “extraordinarily deferential review

that is limited to whether there was any evidence to support the jury’s verdict.” Id.

at 961–62 (first quoting Janes v. Wal-Mart Stores, Inc., 279 F.3d 883, 888 (9th Cir.

2002); then quoting Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101,


                                           3
1109 (9th Cir. 2001)). By failing to provide the transcripts reflecting what

evidence was presented to the jury, Plaintiffs-Appellants have provided no

persuasive reason to conclude that this standard is met.

      We affirm the district court’s denial of the preserved portion of Plaintiffs-

Appellants’ Rule 50(b) motion. Ample evidence supports the jury’s finding that the

CDE did not violate Everett’s right to a free and appropriate public education. First,

because the Office of Administration Hearings issued a binding Stay Put Order3

finding that the parties had in effect mutually amended the September 9, 2009

Individualized Education Plan to discontinue specialized academic instruction, it

was not unreasonable to find that the CDE was not required to provide specialized

instruction to Everett. See 34 C.F.R. § 300.152(c)(2)(i). Second, because Everett

received conflicting IQ scores in 2009,4 some of which placed him outside the

classification as mentally retarded, there was adequate evidence to support the jury’s

finding that the January 2012 complaint regarding his misclassification was time-




3
       To the extent Plaintiffs-Appellants assert error in the Stay Put Order, that
order is not before us here, and the CDE is not responsible for any error contained
within it. See M.M. v. Lafayette Sch. Dist., 767 F.3d 842, 860 (9th Cir. 2014).
4
      The district court did not abuse its discretion in admitting these scores at trial.
The scores were admissible because CDE offered them to prove what Plaintiffs-
Appellants knew or should have known.


                                           4
barred.5 See 20 U.S.C. § 1415(f)(3)(C).

         Plaintiffs-Appellants also argue that the district court erred in denying their

pre-trial motion for summary judgment. They contend that the CDE admitted all

material facts, and that “the district court made an error of law” that is reviewable

notwithstanding the general rule that we do “not review a denial of a summary

judgment motion after a full trial on the merits.” Escriba v. Foster Poultry Farms,

Inc., 743 F.3d 1236, 1243 (9th Cir. 2014) (quoting Banuelos v. Constr. Laborers’

Tr. Funds for S. Cal., 382 F.3d 897, 902 (9th Cir. 2004)). Even assuming this

summary judgment question could be reviewed post-trial, the district court’s denial

of summary judgment was based on the presence of disputed facts that the parties

had presented through their cross-motions. The CDE’s agreement with Plaintiffs-

Appellants that certain facts were undisputed does not mean that Plaintiffs-

Appellants are correct that those facts alone entitled them to judgment in their

favor.

         As to the district court’s dismissal of Plaintiffs-Appellants’ section 1983

claims against Superintendent Torlakson, we conclude that there was no error.

Because Everett no longer attends Dry Creek, the claims against Superintendent



5
       We also reject Plaintiffs-Appellants’ contention that the misclassification
caused Everett not to be in a general classroom. There is evidence to support a
finding that the January 2012 complaint was untimely because Everett was moved
to a general classroom in May 2010. See 34 C.F.R. § 300.153(c).

                                             5
Torlakson in his official capacity are moot. And because Plaintiffs-Appellants did

not plead facts establishing that Superintendent Torlakson had actual or constructive

notice of their complaints, they failed to state a claim against Superintendent

Torlakson in his individual capacity.

      DISMISSED in part and AFFIRMED in part.




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