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NOT FOR PUBLICATION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
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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
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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’
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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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