                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JAN 26 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LINDA PEDRAZA, individually and on               No.   12-15995
behalf of her son, M.P., and FRANCISCO
PEDRAZA, individually and on behalf of           D.C. No. 4:05-cv-04977-CW
his son, M.P.,

              Plaintiffs-Appellants,             MEMORANDUM*

 v.

ALAMEDA UNIFIED SCHOOL
DISTRICT; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                     Claudia Wilken, District Judge, Presiding

                           Submitted January 24, 2017**
                             San Francisco, California

Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.




         *
             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).
      Appellants appeal the district court’s dismissal of their claims under the

Individuals with Disabilities Education Act (“IDEA”), the dismissal of their breach

of contract claims, and the district court’s grant of summary judgment in favor of

Appellees. We affirm.

1.    The district court did not err in dismissing Appellants’ 42 U.S.C. § 1983

claim, because a plaintiff cannot predicate a § 1983 claim on an alleged violation

of the IDEA or § 504 of the Rehabilitation Act of 1973. See Blanchard v. Morton

Sch. Dist., 509 F.3d 936, 937-38 (9th Cir. 2007); Vinson v. Thomas, 288 F.3d

1145, 1156 (9th Cir. 2002).

2.    The district court did not abuse its discretion by consolidating Appellants’

related cases. A district court has broad discretion to consolidate cases pending

within its district, and Appellants have failed to demonstrate that the cases did not

share a common question of law or fact. See Pierce v. Cty. of Orange, 526 F.3d

1190, 1203 (9th Cir. 2008); see also Fed. R. Civ. P. 42(a).

3.    The district court did not err in dismissing M.P.’s individual claims for

failure to have counsel. A non-attorney parent cannot act as legal counsel for her

minor child. See Johns v. Cty. of San Diego, 114 F.3d 874, 876-77 (9th Cir. 1997).

4.    The district court did not err in granting the school district’s motion for

judgment on the pleadings in case no. 07-5989. An appeal from the California


                                           2
Office of Administrative Hearings must be filed within ninety days. 20 U.S.C.

§ 1415(i)(2)(B); 34 C.F.R. § 300.516(b); Cal. Educ. Code § 56505(k). The

deadline for Appellants to file their appeal was September 17, 2007. Appellants

filed their appeal nearly two months later on November 14, 2007.

5.    The district court did not err in dismissing the California Department of

Education (“CDE”) for lack of jurisdiction. The district court concluded that there

was no private right of action against the CDE with regard to the complaint

resolution procedure. Although the district court and the parties did not have the

benefit of M.M. v. Lafayette School District, 767 F.3d 842 (9th Cir. 2014), that

opinion supports the district court’s decision. In Lafayette, we concluded that

“§ 1415 is a mandate for a state to establish procedural safeguards” and did not

create a private right of action. Id. at 860. “[I]ndeed § 1415(f) specifically

requires complaints to be heard in an impartial due process hearing and then

provides an express right of appeal for review of any administrative decision.” Id.

In this case, a hearing was not held, rather the parties entered into a written

settlement agreement after mediation. The statute does not provide for CDE

review of a settlement agreement, see 20 U.S.C. § 1415(g), but rather provides that

the written settlement agreement is “enforceable in any State court of competent

jurisdiction or in a district court of the United States.” § 1415(e)(2)(F)(iii), see


                                            3
also § 1415(f)(1)(B)(iii)(II). The statute does not provide for CDE enforcement of

the settlement agreement. Further, even if the CDE were required to enforce the

settlement agreement, the district court correctly found that Appellants failed to

present evidence that the school district breached the contract. Therefore, any

claim that the CDE did not enforce the Settlement Agreement would be futile.

6.    The district court did not err in denying Appellants’ motion to dismiss the

school district’s counterclaims, when was based on the theory that the school

district failed to exhaust its administrative remedies. “The IDEA’s exhaustion

requirement applies to claims only to the extent that the relief actually sought by

the plaintiff could have been provided by the IDEA.” Payne v. Peninsula Sch.

Dist., 653 F.3d 863, 874 (9th Cir. 2011) (en banc), overruled on other grounds in

Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). The school district

sought relief under a breach of contract theory, not relief under the IDEA.

7.    The district court did not err in granting the school district’s motion for

summary judgment. There was no genuine dispute of material fact. Contrary to

Appellants’ argument, the district court did not deny Appellants the right to oppose

the district court’s motion, as Appellants had equal access to the administrative

record and filed an opposition. Further, the district court did not err in denying

Appellants’ breach of contract claim. The record does not support Appellants’


                                           4
contention that the school district breached the contract, but rather that any lack of

performance by the school district was a result of Appellants’ lack of cooperation

in working with the school district.

8.    The district court did not abuse its discretion by construing Appellants’ post-

summary judgment motions as motions for reconsideration. See Nunes v. Ashcroft,

375 F.3d 805, 807-08 (9th Cir. 2004); N.D. Cal. Civ. Local R. 7-9.

9.    Appellants’ request for stay of services pending appeal is denied as moot.

      AFFIRMED.




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