                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-21-2002

Tallman v. Barnegat Bd of Ed
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2423




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                          NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                               No. 01-2423


        JANE TALLMAN; RICHARD TALLMAN, individually, and as
          Administrators ad Prosequendum on behalf of Jason Michael
                              Tallman, deceased

                                      v.

   BARNEGAT BOARD OF EDUCATION; THE STATE OF NEW JERSEY;
     THE STATE OF NEW JERSEY DEPARTMENT OF EDUCATION,
            Division of Special Education, Division of Compliance,
      Bureau of Controversies and Deputies; STATE OF NEW JERSEY
DEPARTMENT OF HUMAN SERVICES, DIVISION OF YOUTH AND FAMILY
 SERVICES; JILL STANICK; ANNE G. STERNER; JOAN HELEINE; GAYLE
    GUNNING; JEFFREY OSOWSKI, DR.; ROBERT L. HORBERT, DR.;
                           CHERYL L. GOLDEN

                                      v.

BARNEGAT BOARD OF EDUCATION; JILL STANICK; ANNE G. STERNER;
    JOAN HELEINE; GAYLE GUNNING; ROBERT L. HORBERT, DR.,

                                           Third-Party Plaintiffs

                                      v.

         KIDSPEACE CORP. d/b/a WILEY HOUSE; DEAN SINE,

                                       Third-Party Defendants

                      (District Court No. 95-cv-02351)

        JANE TALLMAN; RICHARD TALLMAN, individually, and as
             Administrators as Prosequendum on behalf of Jason
                        Michael Tallman, deceased
                                     v.
  BARNEGAT BOARD OF EDUCATION; THE STATE OF NEW JERSEY;
 THE STATE OF NEW JERSEY DEPARTMENT OF EDUCATION, Division/
         Office of Special Education, Division of Compliance, Bureau
     of Controversies and Disputes; STATE OF NEW JERSEY OFFICE
 OF ADMINISTRATIVE LAW; JILL STANICK; ANNE G. STERNER; JOAN
  HELEINE; GAYLE GUNNING; ROBERT L. HORBERT, DR.; CHERYL L.
      GOLDEN; DAVIS C. HESPE, Commissioner of the Department of
      Education; JEFFREY OSOWSKI, Assistant Commissioner Division
                   of Information and Management Services

                                      v.

BARNEGAT BOARD OF EDUCATION; JILL STANICK; ANNE G. STERNER;
    JOAN HELEINE; GAYLE GUNNING; ROBERT L. HORBERT, DR.,

                                           Third-Party Plaintiffs
                                      v.

    DEAN SINE; KIDSPEACE CORPORATION d/b/a WILEY HOUSE,

                                      Third-Party Defendants

                     (District Court No. 00-cv-01175)

        JANE TALLMAN; RICHARD TALLMAN, individually, and as
             Administrators as Prosequendum on behalf of Jason
                        Michael Tallman, deceased,
                                                        Appellants


      ON APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE DISTRICT OF NEW JERSEY

       Dist. Court Nos. 95-CV-02351 and 00-CV-01175 (consolidated)
                      District Judge: Anne E. Thompson


                          Argued March 8, 2002

   Before: BECKER, Chief Judge, and ALITO and RENDELL, Circuit Judges.

                      (Opinion Filed: August 21, 2002)
                                                        S. ROBERT PRINCIOTTO (Argued)
                                                        Marcus & Levy
                                                        80 Broadway, 2nd Floor
                                                        Elmwood Park, NJ 07407

                                                                Counsel for Appellants

                                                        ROBERT A. MORLEY (Argued)
                                                        Law Office of Stephen E. Gertler
                                                        1350 Campus Parkway
                                                        Wall, NJ 07719

                                                                Counsel for Appellees Barnegat
                                                                      Board of Education, et al.

                                                        TODD J. SCHWARTZ
                                                        HOWARD J. McCOACH (Argued)
                                                        Office of Attorney General
                                                                of New Jersey
                                                        25 Market Street
                                                        Trenton, NJ 08625

                                                                Counsel for Appellees State of
                                                                      New Jersey, et al.




                                     OPINION OF THE COURT


PER CURIAM:

        Richard and Jane Tallman, parents of the deceased Jason Tallman, take this appeal

from the District Court’s grant of summary judgment against them on their damages claim

under 42 U.S.C. § 1983 for violations of the Individuals with Disabilities Education Act, 20

U.S.C. § 1400 et seq. (“IDEA”). The Tallmans’ son, Jason, died after being restrained at a


                                                   3
residential school at which he had been placed under the IDEA, and the Tallmans contend

that violations of the IDEA and implementing regulations were proximate causes of his

death. Jason’s death was a tragedy, but we are compelled to conclude that summary

judgment was proper.

                                                      I.

                                                      A.

        Jason Tallman, then 12 years old, died in May 1993 as a result of injuries suffered

while a student at Wiley House, a highly structured residential school in Pennsylvania for

troubled youth. Although blessed with a high I.Q., Jason had a long history of disruptive

behavior and had been diagnosed as suffering from hyperactivity, dysgraphia, metal toxicity,

and emotional disturbance.

        Jason attended a public elementary school in Barnegat, New Jersey, through the

third grade, but he exhibited behavioral problems. In the fall of 1990, Jason’s parents

enrolled him in a Catholic school in Toms River, where his behavior was at times highly

inappropriate and threatening. He composed a rhyme that culminated in blowing his

teacher’s head off with a bazooka, and he threatened to kill his teacher and bomb the school.

See App. 340. After Christmas, he was asked to leave the school and was again enrolled in

the Barnegat public school system, where his behavioral problems, including running away

and threatening the vice-principal, continued.. See App. 365-70, 845-48. Jason was

evaluated, and during the following summer it was recommended to the Tallmans that they

consider a classification of emotionally disturbed.

                                                      4
        Instead, the Tallmans again removed Jason from the Barnegat school system and

enrolled him in the fall of 1991 in Admiral Farragut Academy in Pine Beach, New Jersey.

In January 1992, he was asked to leave Admiral Farragut.

        The Tallman family then admitted themselves for treatment at the Philaldelphia

Guidance Center. App. 380. During his first three days at the Center, Jason’s medication

was changed and, according to his mother, he became “[e]xtremely wild, totally out of

control.” App. 383. He was then admitted to the Horsham Clinic. See id. at 384. There,

according to a physician’ report, Jason “was extremely uncooperative with the examiner”

and “was often aggressive with his mother and required her to keep him in constant

restraint. He kicked and hit her several times, and at one point tried to trash [the doctor’s]

office” and “caused significant damage.” Id. at 570. At one point, Jason, who was then 10

years old, “had to be escorted out of the office by security and mental health technicians

because he was extremely aggressive and dangerous.” Id.

        In March 1992, the Tallmans once again enrolled Jason in the Barnegat public

school system, and he was classified as emotionally disturbed. He was assigned

temporarily to home instruction, while the Tallmans and staff of the Barnegat Board of

Education and New Jersey’s Division of Youth and Family Services (“DYFS”) began a

largely cooperative search for a school outside the Barnegat district where Jason could be

placed at public expense. At first, they applied only to day schools. Only one day school

accepted Jason’s application, but the Tallmans found that school, Archway, unacceptable,

primarily because it “did not take in the educational, the giftedness along with disabilities.”

                                                      5
App. 392. The search then widened to include in-state residential schools, but Jason was

rejected from the all those to which his application was sent.

        The search was expanded further to include out-of-state residential institutions, and

this time the Wiley House in Pennsylvania offered to take Jason. Contemporaneously, the

Tallmans, acting independently, secured a place for Jason at the Grove School in

Connecticut. The Barnegat team visited both schools and decided that Wiley House was

“superior.” App. at 998. The Grove School soon rescinded its offer to Jason, after a DYFS

staffer provided the school with records from the Horsham Clinic suggesting (incorrectly,

according to the Tallmans) that Jason had started fires. Thus, after the Tallmans and the

Barnegat defendants together undertook three rounds of an ever-widening search, Wiley

House was the only residential school still willing to take Jason.

        The Tallmans initially resisted placing Jason at Wiley House, contending that the

Grove School better served Jason’s needs because its structure was less rigid and its

environment was more suited for gifted students. Because of this disagreement over which

school was more appropriate, Mrs. Tallman did not sign the Individual Education Program1

(“IEP”) that she and the Barnegat Child Study Team had jointly drafted. The Tallmans

requested a due process hearing, and one was scheduled before Administrative Law Judge

Joseph Martone (“the ALJ”). Before the hearing, however, the parties entered into a




        1
          An IEP is a detailed instruction plan developed for each child classified as
disabled. The basic components of the IEP are mandated by § 1414(d) of the IDEA. State
regulations make further specifications.

                                                     6
settlement on January 28, 1993, and on February 1 the ALJ approved the settlement. Under

this settlement, Jason would enter Wiley House, but the question whether permanent

placement there was appropriate would be postponed until after Jason was admitted and

evaluated at Wiley House. Thus, Jason finally entered Wiley House on May 11, 1993, but

without a completed IEP. The next day, a staff member at Wiley House, while breaking up a

dispute between Jason and another student, physically restrained and fatally injured Jason.

Jason died within a day.

                                                    B.

        The procedural history of this litigation begins in 1995, when the Tallmans,

proceeding in their individual capacities and as administrators ad prosequendum of Jason’s

estate, filed a complaint for money damages pursuant to the Individuals with Disabilities

Education Act (IDEA), 20 U.S.C. § 1400 et seq., Section 504 of the Rehabilitation Act, 29

U.S.C. § 794, the Civil Rights Act, 42 U.S.C. § 1983, the Handicapped Children’s

Protection Act of 1986 (HCPA), 20 U.S.C. § 1415(e), and the Family Education Rights and

Privacy Act (FERPA), 20 U.S.C. § 1232g. See App. at 25. The complaint named as

defendants the State of New Jersey, its Departments of Education (DOE) and Human

Services (DHS), Jason’s DYFS case worker (Cheryl Golden), and a DOE representative

(Jeffrey Osowski). Also named were the Barnegat Board of Education, Jason’s Child Study

Team (Jill Stanick, Anne Sterner, and Joan Heleine), the director of special education

(Gayle Gunning), and Barnegat’s superintendent (Robert Horbelt). (We will refer to this

latter group of defendants collectively as “the Barnegat defendants.”)

                                                    7
        In January 1996, the District Court dismissed some of the Tallmans’ claims, viz.,

their § 1983 claims against the State of New Jersey and its departments, their FERPA

claims, and their direct claims under the IDEA against DHS and Golden. In September

1997, the District Court granted summary judgment in favor of the State, DOE, DHS, and

Cheryl Golden on the remaining claims against them. The Court also granted summary

judgment in favor of the Barnegat defendants on the claims under the Rehabilitation Act and

FERPA. In March 1998, the District Court “remanded” the case to ALJ Martone for an

evidentiary hearing to determine whether the Barnegat defendants had violated the IDEA.

        The ALJ expressed doubt about his jurisdiction to conduct a hearing and make

determinations in this action, but he proceeded in accordance with the District Court’s

directions and considered eight violations of the IDEA alleged by the Tallmans: (1)

“exploring day placements and placing [Jason] on home instruction without the benefit of an

IEP,” (2) “failing to provide [Jason] with a continuum of alternative placements,” (3)

“placing [Jason] on home instruction for the 1992-93 school year, this being the most

restrictive placement,” (4) “placing [Jason] in [a] non-approved placement,” (5) “failing to

recognize the unsegregability of [Jason’s] disabilities,” (6) violating the child find

requirements,” (7) “failing to assess all areas of suspected disability,” and (8) failing to

include the parents as joint and equal participants in the IEP process.” App. 127. The ALJ

rejected all but two of these alleged violations.

        The first violation found by the ALJ was that the Barnegat defendants had violated

the IDEA by placing Jason on home instruction without the benefit of an IEP during the

                                                       8
period from March to May of 1992 (one year before his death). The Barnegat defendants

contended that an initial IEP had probably been prepared in March before the period in

question, but Mrs. Tallman disagreed, and the earliest IEP produced by the defendants was

prepared in May. The ALJ accordingly found that the Barnegat defendants had “violated the

IDEA by placing [Jason] on home instruction wihout the benefit of an IEP from March until

May 1992.” Id at 130.

        The second violation found by the ALJ was that the Barnegat defendants made “the

determination to place [Jason] in either a day placement, or subsequently, in a residential

placement, without the benefit of an IEP.” App. 130. He credited the testimony of the

director of the child study team that the procedure in cases such as Jason’s was to find a

placement and prepare a conforming IEP later, and he concluded that this clearly violated

the IDEA and implementing regulations. Id.

        The ALJ went on to observe that the entire proceeding should be dismissed because

the parties had settled all IDEA issues at the time of Jason’s placement at Wiley House.

“At that time,” the ALJ wrote, “it was agreed that [Jason] would become a resident of Wiley

House based on the agreement that Wiley House was a more appropriate placement tha[n]

home instruction, and that there would be an independent evaluation of [Jason]. At that

time, petitioners had the opportunity to pursue any claims they may have had that the

[district] violated the procedural requirements of the IDEA [in any of the ways alleged]’ but

that they “chose not to do so” and instead to settle the matter.” Id.

        Apparently as a means to appeal the ALJ’s decision, the Tallmans filed a second

                                                    9
complaint in federal court in March 2000. This second action made virtually identical

claims as the 1995 action. It asserted violations of the IDEA, the Rehabilitation Act,

HCPA, FERPA, and § 1983. However, instead of naming the DHS or DYFS as defendants,

the new complaint named the State of New Jersey Office of Administrative Law (OAL) and

the Commissioner of the DOE.

        In November 2000, the District Court reinstated the 1995 action and dismissed

most of the claims in the 2000 complaint under res judicata. The Court dismissed the

claims against the OAL on the ground that the complaint failed to state a claim on which

relief could be granted and on the ground of judicial immunity. App. 144-47. Finally, in

May 2001, the Court granted the Barnegat defendants’ motion for summary judgment on

the claims asserted in the 1995 complaint. The Court accepted the ALJ’s findings that

there had not been strict compliance with the IDEA in two respects, but the Court held that

these were “technical” and not “actual” violations. Id. at 158. In addition, the court found

that “the technical violations by the Barnegat defendants” did not constitute a proximate

cause of Jason’s death. Id. The Court also granted Wiley House’s motion for summary

judgment on the Barnegat defendants’ claim for indemnification and contribution. The

Tallmans then took this appeal.

                                                    II.

        We first address the question whether the District Court erred in 1998 by remanding

the case to the ALJ for an evidentiary hearing on whether the defendants had violated the

IDEA. Most IDEA actions do not seek damages and are filed in federal district court only

                                                   10
after administrative proceedings that often result in the creation of an exhaustive

administrative record. The remand ordered by the District Court sought to place this

damages action in the same procedural posture as conventional IDEA actions, and we

therefore have no difficulty seeing why the District Court found this procedure to be

attractive. In addition, the District Court observed that neither party had objected to the

remand.

        The Tallmans now argue, however, that this procedure constituted legal error for

two reasons -- because the ALJ lacked jurisdiction and because they were entitled to a jury

trial on their damages claims. The Tallmans take the position that the District Court’s error

in remanding the case to the ALJ should invalidate the District Court’s subsequent reliance

on the ALJ’s findings that the only IDEA violations were the two mentioned above.

        We are inclined to agree that “remand” to the ALJ was improper. Neither the

District Court nor the defendants have offered a persuasive legal basis for this procedure.

We also note that the administrative remedial scheme could not provide the damages

sought by the Tallmans. See W.B. v. Matula, 67 F.3d 484, 495 (3d Cir. 1995) (“where the

relief sought in a civil action is not available in an IDEA administrative proceeding,

recourse to such proceedings would be futile”).

        However, we see no reason why we cannot view the testimony of the various

witnesses at the hearing before the ALJ as the equivalent of depositions submitted in

support of a motion for summary judgment under Fed. R. Civ. P. 56(e). At oral argument,

counsel for the Tallmans conceded he had no objection to our taking this view of the

                                                     11
testimony before the ALJ.

                                                    III.

        We now turn to the central issue in this appeal: whether the record is sufficient to

defeat summary judgment on the Tallmans’ IDEA claims for damages. Under the IDEA,

states receive federal funds for special education programs on the condition that they

implement policies to assure a “free appropriate public education” for all of its disabled

children. 20 U.S.C. § 1412(a)(1)(a). New Jersey fulfills its IDEA obligations through a

complex statutory and regulatory scheme currently codified at N.J.S.A. § 18A:46-1 et seq.

and N.J.A.C. § 6A:14-1 et seq. (formerly codified at N.J.A.C. § 6:28-1 et seq.).

        The United States Supreme Court has summarized the statutory definition of a “free

appropriate public education” as consisting of “educational instruction specially designed

to meet the unique needs of the handicapped child, supported by such services as are

necessary to permit the child ‘to benefit’ from the instruction.” Board of Ed. v. Rowley,

458 U.S. 176, 188-89 (1982); see also 20 U.S.C. § 1401. In Ridgewood Board of Ed. v.

N.E., 172 F.3d 238 (3d Cir. 1999), we elaborated that an IEP, in order to meet this

standard, must provide “significant learning” and confer “meaningful benefit.” Id. at 247.

While an IEP need not maximize the potential of a disabled child, the benefit must be more

than “trivial.” Id. at 247 (citing Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d

171 (3d Cir. 1988)). Our Court, unlike some other courts of appeals,2 has held that a claim


        2
          See, e.g., Hall v. Knott County Bd. of Educ., 941 F.2d 402, 407 (6th Cir. 1991);
Miener v. State of Missouri, 800 F.2d 749, 753-755 (8th Cir. 1986).

                                                    12
for a violation of the IDEA may be brought under § 1983. See W.B. v. Matula, 67 F.3d 484

(3d Cir. 1995).

        As previously noted, the District Court accepted the ALJ’s factual finding that

defendants violated the IDEA when they placed Jason on home instruction without the

benefit of an IEP from March until May 1992 and when they made the determination to

place him in either a day or residential placement without the benefit of an IEP. App. 130.

Nevertheless, the District Court held that these violations were “technical” rather than

“substantive” and thus not “actual violation[s] of IDEA.” App. at 156-58. Besides the two

matters identified by the ALJ, the Tallmans continue to assert the same additional

violations that they pressed before the ALJ. Specifically, they allege that the Barnegat

defendants violated the IDEA by sabotaging Jason’s chance to enter the Grove School, by

instead placing him inappropriately at Wiley House (for fiscal reasons), by failing to

provide him with a continuum of placement options3, by failing to consider all Jason’s

disabilities, by attempting to exclude the Tallmans from the IEP process, and by refusing to

provide Jason with an education in the least restrictive environment.

        The Barnegat defendants mount two lines of defense. First, they argue that, contrary

to the findings of the ALJ, they did not commit even “technical” IDEA violations. Second,


        3
          A federal regulation promulgated under the IDEA requires that the state provide a
continuum of placement options for the child. See 34 C.F.R. § 300.551. A corresponding
state regulation requires that the child must be placed in the “least restrictive” environment
along this continuum, as befits his or her disability. N.J.A.C. § 6A:14-1.1(b)2 (formerly at
§ 6:28-1.1(b)1). State statute lists the options that form the continuum of education
programs, from least to most restrictive. See N.J.S.A. § 18A:46-14.

                                                    13
they maintain that even if the technical IDEA violations cited by the ALJ did occur, they

“were no[t] the bad faith type of violation that the IDEA targets.” Appellees’ Br. at 25. The

Barnegat defendants emphasize that the IEP required by the IDEA constitutes “only a basic

floor of opportunity,” which was satisfied by placement at Wiley House. Id. They argue

that the IDEA does not require the optimal services or additional benefits, which the

Tallmans allege that the Grove School offered. See id. (citing Christen G. v. Lower Merion

School Dist., 919 F. Supp. 793, 813 (E.D. Pa. 1996)).

        We have carefully reviewed all of the alleged violations of the IDEA, both those

accepted and those rejected by the ALJ, and we see no ground for reversing the grant of

summary judgment. We begin with the Tallmans’ argument that the failure to adopt an IEP

prior to Jason’s placement in Wiley House proximately caused his death. See Appellants’

Br. at 55-56. The Tallmans claim that if an IEP had been developed before Jason was

placed at Wiley House his death would have been prevented in two ways: (1) the IEP would

have shown that Wiley House was inappropriate for Jason so he would not have been placed

there in the first place and (2) if a psychiatrist’s treatment plan had been attached to Jason’s

IEP, it “would have recommended against negative means of holding Jason down” because

he would “respond to positive reinforcements.” Appellants’ Br. at 56.

        This argument flies in the face of the settlement into which the Tallmans entered

prior to Jason’s placement at Wiley House. The settlement agreement provided for Jason

to be placed at Wiley House but also ordered an independent evaluation immediately upon

placement. The issue of whether Wiley House was an appropriate placement was held in

                                                     14
abeyance pending the completion of the independent evaluation. See App. at 731;

Appellants’ Br. at 17. Having agreed to Jason’s temporary placement at Wiley House, the

Tallmans cannot argue that his placement there without an IEP violated the IDEA.

        The Tallmans note that after the settlement was reached and approved by the ALJ,

there was a further dispute about certain forms that Wiley House required the Tallmans to

sign as a condition of admission. However, none of the disputed issues can possibly be

viewed as a proximate cause of Jason’s death shortly after arriving at Wiley House.4

        Some of the other violations alleged by the Tallmans also center on Jason’s

placement at Wiley House, and accordingly the settlement dooms these allegations as well.

In addition, these allegations suffer from other flaws. The Tallmans argue strenuously that

the Barnegat defendants violated the IDEA because Jason’s placement at Wiley House was

inappropriate. Appellants’ Br. at 35-37. The Tallmans recount Mrs. Tallman’s opposition

to Jason’s placement at the Archway School because it did not consider Jason’s “giftedness

along with the disabilities.” Id. at 36. The Tallmans also note the observations of a member

of the child study team that the Archway students were “streetwise” and “tough.” Id. The

Tallmans then argue that the Barnegat defendants nevertheless placed Jason in Wiley




        4
          The dispute concerned providing insurance and other financial data, granting
permission for Wiley House to conduct an evaluation of Jason, authorizing Wiley House to
provide certain mental health treatment, and Wiley House’s refusal to follow a vitamin
therapy regimen. See App. at 733.
         The ALJ held that the forms could be reconciled with Jason’s rights and determined
that the parents should sign the forms. Id. The Tallmans did not take an administrative
appeal, and they do not challenge this decision in the present appeal.

                                                   15
House, which they claim was similar to Archway. Id. at 36-37. This discussion fails to

show that placement at Wiley House violated the IDEA.                      As noted, in order to

comply with the IDEA, a placement need not provide the maximum possible benefit but

must provide “significant learning” and confer “meaningful benefit.” Ridgewood Board, 172

F.3d at 247. The Tallmans’ argument does not show that Wiley House would not have done

this.

        Moreover, the Tallmans fail to connect the features of Wiley House to which they

object with the events leading to Jason’s death. If the curriculum at Wiley House would not

have accommodated Jason’s intellectual gifts, that can hardly be viewed as a proximate

cause of his death within a short time after arriving at the school. As for the character of

the other students at Wiley House, it could be argued that character of the other students at

Wiley House precipitated the fight that led to the physical restraint that caused Jason’s

death, but the Tallmans have not pointed to evidence in the summary judgment record

supporting this chain of inferences. Jason had engaged in violent episodes in other settings,

and we have not been shown evidence from which a trier of fact might reasonably infer that

he would not have gotten into an altercation with another student if the students at Wiley

House had not been “streetwise” and “tough.”

        The Tallmans complain at length that the Barnegat defendants “sabotaged” Jason’s

placement at the Grove School by providing the school with records from the Horsham

Clinic suggesting that Jason had been involved in starting fires. See Appellants’ Br. at 16-

17, 48-53. However, the only provision of law cited by the Tallmans in their discussion of

                                                    16
this matter is a New Jersey regulation providing that each district board of education shall

develop and adopt written policies and procedures to prevent “needless public labeling of

pupils with educational disabilities.” N.J.A.C. 6:28-1.4(a) (emphasis added) (former

codification scheme). Putting aside the question whether a violation of this state regulation

may be asserted under 42 U.S.C. § 1983, we do not see how privately providing records to a

school that specializes in the education of students with disabilities can be viewed as a

violation of this provision.5 The ALJ observed: “To claim that the reports of facilities at

which [Jason] was treated for his disability and illness should not be made available to a

prospective placement is illogical and inconceivable.” App. at 131. Without supporting

authority other than that cited to us by the Tallmans, we must likewise conclude that the

disclosure of the Horsham Clinic records did not violate the IDEA.

        The Tallmans have thus failed to show on appeal that the Barnegat defendants acted

improperly in connection with the Grove School’s decision to withdraw its offer to enroll

Jason, and this failure logically dooms two of the Tallmans other claims, i.e., (1) that the

Barnegat defendants violated several New Jersey regulations by placing Jason in a more

restrictive school (Wiley House) rather than a less restrictive one (the Grove School) and

(2) that the Barnegat defendants favored Wiley House over Grove School for financial

reasons. Unless the Barnegat defendants acted improperly in disclosing the Horsham

Clinic records to the Grove School, they cannot be faulted for failing to place Jason in a


        5
         The Tallmans have not adduced evidence showing that the Barnegats knew that the
information in the Horsham Clinic records was incorrect.

                                                     17
school that refused to accept him.

        With respect to the remaining violations alleged by the Tallmans, the summary

judgment record is insufficient to establish that the alleged violations were proximate

causes of Jason’s death. Proximate cause is an essential element of a claim seeking to

establish liability under § 1983. See Martinez v. California, 444 U.S. 277, reh’g denied,

445 U.S. 920 (1980).6 Although the question of proximate cause must often be submitted

to the trier of fact, summary judgment is proper if the record cannot reasonably support a

finding of proximate cause, and in prior § 1983 cases, we have upheld summary judgment

on this basis. See Best v. Essex County, 986 F.2d 54 (3d Cir. 1993) (no causal link

between prison overcrowding and assault of plaintiff-detainee by a fellow detainee);

Commonwealth Bank & Trust Co. v. Russell, 825 F.2d 12 (3d Cir. 1984), cert. denied, 471

U.S. 1131 (1985) (applying Martinez and finding insufficient causation between conduct of

prison and county officials and the murder committed by a recently escaped inmate).

        With respect to many of the violations asserted by the Tallmans, the lack of

proximate cause is glaring. Several of the alleged violations occurred more than a year

before Jason was placed at Wiley House, and the Tallmans have not satisfactorily explained

how these alleged violations can reasonably be viewed as even but-for causes of Jason’s




        6
          Courts have generally found that proximate cause under § 1983 simply incorporates
the causation principles of common-law torts. See Stevenson v. Koskey, 877 F.2d 1435
(9th Cir. 1989); Parratt v. City of Connersville, 737 F.2d 690 (7th Cir 1984); but see Doe v.
Rains County Indep. Sch. Dist., 66 F.3d 1402 (5th Cir. 1995) (adopting “a heightened
standard of proximate cause).

                                                    18
death. These alleged violations include the following: the failure to develop an IEP prior to

Jason’s placement in homebound instruction in March 1992 (Appellants’ Br. at 34-35); the

failure to provide a residential placement, rather than homebound instruction, during the

1991-92 school year (id. at 37-40); and the failure of the Barnegat Defendants to take

necessary steps to identify Jason’s disabilities before the time when they were finally

identified and evaluated in March 1992 (id. at 41).

        Other alleged violations also have no apparent connection to Jason’s death. For

example, the Tallmans complain that the Barnegat defendants failed to recognize that Jason

had “problems with written language and medical problems” but that the Barnegat

defendants “only addressed his behavior.” Appellants’ Br. at 40. Jason’s death, however,

resulted from steps taken by a Wiley House employee to deal with a perceived behavioral

problem, and thus it is hard to see how the alleged failure of the Barnegat defendants to

recognize Jason’s other problems could be even a but-for cause of his death.

        The same is true of the Tallmans’ argument that the Barnegat defendants did not

include them as joint and equal participants in the IEP process because the Barnegat

defendants did not, among other things, support the Tallmans’ desire that vitamin therapy be

included as part of Jason’s IEP. See Appellants’ Br. at 41-42. How the inclusion of such

therapy might have prevented Jason’s death the Tallmans do not explain. In sum, we hold

that none of the violations alleged by the Tallmans provide a basis for recovering damages




                                                      19
for Jason’s death or injuries suffered at Wiley House.7

                                                IV.

        We come, finally, to the Tallmans’ argument that the District Court should not have

dismissed their second complaint and their new claim against the OAL. The Tallmans argue

that the second complaint and the OAL claim challenged “the OAL and Department of

education’s failure to provide [them] with the procedural safeguards required by the IDEA.”

Appellants’ Br. at 58. However, because we have not relied in any way on any

determination made by the ALJ, we cannot see how the Tallmans can possibly have been


        7
           Seeking to circumvent the lack of evidence showing that IDEA violations were
proximate causes of Jason’s death, the Tallmans argue that they are also seeking damages
for intangible injuries stemming directly from those violations. The Tallmans argue that
these IDEA violations proximately caused Jason to lose something in addition to his life,
namely, “the loss of a statutory right to a free appropriate public education” while he was
still alive. Appellants’ Br. at 56.
          However, the alleged violations that are not based on Jason’s placement at Wiley
House – for example, the failure to develop an IEP prior to Jason’s placement in
homebound instruction from March to May 1992 – are so insubstantial that they are not
actionable. See Doe v. Alabama State Dept. of Educ., 915 F.2d 651, 662 (11th Cir. 1990)
(because the IEP-related violations at issue “had no impact on the [parents’] full and
effective participation in the IEP process and because the purpose of the procedural
requirement was fully realized, . . . there has been no violation in this case which warrants
relief”); Tice v. Botetourt County School Board, 908 F.2d 1200 (4th Cir. 1990) (denying
relief for “procedural violations [that] had no impact on whether [the child’s ] IEP
adequately” provided him with a free appropriate public education); Evans v. District No. 17
of Douglas County, Neb., 841 F.2d 824 (8th Cir. 1988) (denying relief after concluding that
the school’s failure to reevaluate the child at the appropriate time did not harm the child’s
educational progress in any way). See also Doe v. Defendant I, 898 F.2d 1186 (6th Cir.
1990) (holding that a delay in completing IEP was acceptable where the parents requested
that intervention be postponed until after a trial period); Myles v. Montgomery County Bd.
of Educ., 824 F. Supp. 1549 (M.D. Alabama 1993) (excusing a delay in completing an IEP
as a merely technical violation).


                                                   20
harmed by any action taken by the ALJ, the OAL, or the DOE in connection with the

remand. In any event, we see no merit in the Tallmans arguments regarding this issue.

        We have the greatest sympathy for loss that the Tallmans have suffered and can well

understand their belief that the educational authorities collectively should have done

something to prevent the death of a gifted but troubled 12-year-old boy. However, after

carefully considering all of the Tallmans’ arguments, we see no ground for reversing the

order of the District Court. If Jason’s death was wrongful, the proper remedy is provided

by state tort law, not the IDEA. 8

                                                    III.

        For the reasons explained above, we affirm the District Court’s award of summary

judgment to the Barnegat defendants. As a result, we need not determine whether the thrid-

party defendants are subject to indemnification and contribution.




        8
        The Tallmans note in their brief that they filed a wrongful death action against
Wiley House and others in the United States District Court for the Eastern District of
Pennsylvania and that the case was settled. See Appellants’ Br. at 1.

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