                                                                             FILED
                           NOT FOR PUBLICATION                               DEC 24 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


G. M., a minor, by and through his               No. 12-17242
Guardian ad litem, Kevin R. Marchese, an
individual, and Lyndi Marchese, an               D.C. No. 2:10-cv-00944-GEB-
individual; et al.,                              GGH

              Plaintiffs - Appellants,
                                                 MEMORANDUM*
  v.

DRY CREEK JOINT ELEMENTARY
SCHOOL DISTRICT,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
              Garland E. Burrell, Jr., Senior District Judge, Presiding

                     Argued and Submitted December 8, 2014
                            San Francisco, California

Before: O’SCANNLAIN, N.R. SMITH, and HURWITZ, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      G.M. and his parents (“G.M.”) appeal a grant of summary judgment to the

Dry Creek Joint Elementary School District (the “District”). We have jurisdiction

under 28 U.S.C. § 1291, and affirm.

      1. The administrative law judge (“ALJ”) did not err in refusing to enter a

default judgment against the District for failing to file a pleading responsive to the

parents’ complaint within 10 days of service. The Individuals with Disabilities

Education Improvement Act (“IDEA”) only required the District to “send to the

parent a response” to the complaint. 20 U.S.C. § 1415(c)(2)(B); 34 C.F.R.

§ 300.508(e). A due process hearing is the redress for an unsatisfactory response.

See 20 U.S.C. § 1415(f)(1)(B)(ii).

      2. The ALJ’s finding that G.M. was offered a free appropriate public

education (“FAPE”) for the 2009-2010 school year was supported by the evidence.

G.M. was not denied any educational benefits; he remained in his preferred

educational placement. See Doug C. v. Haw. Dep’t of Educ., 720 F.3d 1038, 1046

(9th Cir. 2013); A.M. ex rel. Marshall v. Monrovia Unified Sch. Dist., 627 F.3d

773, 779 (9th Cir. 2010).

      3. The ALJ properly considered the August 28, 2009 individualized

educational program (“IEP”) meeting when evaluating whether G.M. was offered a

FAPE. The prehearing conference order filed six days before the hearing expressly


                                           2
provided that the August 28 meeting would be addressed at the hearing. See 20

U.S.C. § 1415(c)(2)(E)(i)(II). Even if the August 5, 2009 IEP meeting was

procedurally deficient, the August 28, 2009 meeting cured these deficiencies. See

Ms. S. ex rel. G. v. Vashon Island Sch. Dist., 337 F.3d 1115, 1136 (9th Cir. 2003)

(holding that defective parental notice for IEP meetings did not cause a denial of

FAPE in light of a later meeting), superseded by statute on other grounds, 20

U.S.C. § 1414(d)(1)(B).

      4. The district court properly granted summary judgment to the District on

G.M.’s claims under section 504 of the Rehabilitation Act of 1973, 29 U.S.C.

§ 794(a). G.M. failed to present evidence that the District acted with deliberate

indifference or that he was denied any educational benefits.1 See Duvall v. Cnty. of

Kitsap, 260 F.3d 1124, 1135, 1138 (9th Cir. 2001).

      5. The district court correctly held that G.M.’s state law claims for money

damages were barred by the California Government Claims Act. See Cal. Gov’t

Code § 945.4; Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 627 (9th Cir.

1988).




1
       G. M.’s 42 U.S.C. § 1983 claim against the California Department of Education
for alleged IDEA violations is barred by Blanchard v. Morton School District, 509
F.3d 934, 936 (9th Cir. 2007).

                                          3
      6. The ALJ did not clearly err in awarding attorneys’ fees to the District.

See Cal. Gov’t Code § 11455.30; 1 Cal. Code Regs. § 1040(a).2

      7. G.M.’s request for judicial notice of his 2011 appeal is denied as moot

because documents relating to that appeal are already in the record. His request for

judicial notice of a proposed stipulation not filed in the administrative proceedings

is denied. Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003) (“Save in

unusual circumstances,” this court considers “only the district court record on

appeal.”).

      AFFIRMED.




2
      We reject any attempt by G.M. to re-litigate the district court’s stay-put order,
which was held moot in light of G.M.’s promotion to high school in G.M. v. Dry
Creek Joint Elementary School District, 458 Fed. App’x. 654 (9th Cir. 2011). See
Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036, 1037 (9th Cir. 2009) (“A
motion for stay put functions as an ‘automatic’ preliminary injunction. . . .”);
Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. USDA, 499
F.3d 1108, 1114 (9th Cir. 2007) (finding that, when ruling on a preliminary
injunction, “[a]ny of our conclusions on pure issues of law . . . are binding”). In light
of our prior disposition, G.M.’s request for judicial notice of his certificate of
promotion from the District is moot.

                                           4
