COMPLAINT FOR DAMAGES - 1 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
ERICA MILLER, individually, and as guardian for minor child, I.M.,
Plaintiff
vs. MONROE SCHOOL DISTRICT, a political subdivision of the State of Washington; MONROE SCHOOL BOARD, a local governing body of the MONROE SCHOOL DISTRICT; KATY WOODS, an individual; JASON HUTCHINSON, an individual; NANCY TRUITT PEIRCE, an individual; DARCY CHESSMAN, an individual; JIM SCOTT, an individual; LARA COLE, an individual; KEN HOOVER, an individual; MELISSA HART, an individual; MAIREAD KINNEY, an individual; and, JANNA DMOCHOWSKY, an individual,
Defendants.
CASE NO. CV14-1946 COMPLAINT FOR DAMAGES BASED UPON: (1) VIOLATION OF VIOLATION OF 42 USC 1983; (2) VIOLATION OF THE ADA; (3) VIOLATION OF THE WDS; (4) RETALIATION; (5) OUTRAGE; (6) BATTERY; (7) ASSAULT; AND, (8) NEGLIGENCE DEMAND FOR JURY TRIAL
Comes now, ERICA MILLER, individually and in her capacity as legal guardian of I.M.,
and alleges as follows:
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COMPLAINT FOR DAMAGES - 2 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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PARTIES
1. Plaintiff Erica Miller (Miller), is the natural mother and legal guardian of I.M.,
a nine-year-old boy with autism. Miller brings this action in her own right and on I.M.s behalf
pursuant to FRCP 17(a)(1) and (c)(1). Miller has a legally cognizable interest in I.M.s
education. Winkelman v. Parma City School Dist., 550 U.S. 516 (2007).
2. Autism is a disability within the meaning of the Individuals with Disabilities
Education Act (IDEA), 20 USC 1402(3)(A) and 34 CFR 300.8. I.M. is a qualified
individual with a disability within the meaning of 504 of the Rehabilitation Act, 29 USC
705(20), the Americans with Disabilities Act (ADA), 42 USC 12131(2), 28 CFR 35.104
and the Washington Law Against Discrimination (WLAD), RCW 49.60.040(7).
3. Plaintiffs are informed and believe and thereon allege that Defendant Monroe
School District (the District) is a political subdivision of the state and a local education agency
and recipient of federal funds under the IDEA (20 USC 1401(15) and 34 CFR 300.28). The
District is a public entity as defined by the ADA, (43 USC 12131(1) and 28 CFR 35.104) and
the WLAD (RCW 49.60.040(2) and WAC 162-28-030). The District has the responsibility to
provide I.M. with full and equal access to a free and appropriate public education in compliance
with federal and state laws and regulations, including those pertaining to the use of restraints and
seclusions. The District is the governmental body responsible for the operation of the Districts
schools, including Chain Lake Elementary and Salem Woods Elementary and is responsible for
the training and supervision of all of its faculty and staff. The District is located in and carries
out its functions in the State of Washington.
4. Plaintiffs are informed and believe and thereon allege that Defendant Monroe
School Board (the Board) is the local governing body of the District and functions under
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COMPLAINT FOR DAMAGES - 3 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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powers delegated to it by the State Legislature. Its legal powers, duties and responsibilities are
derived from State statute. The Board establishes District policies to be administered by the
District Superintendent. Its Mission statement is as follows: [T]he Monroe Public Schools will
provide a safe, nurturing learning environment with a highly qualified, effective staff; promote
active, engaging instruction for all students; and partner with families and community support
agencies in order to ensure a learning community that practices shared leadership, embraces
diversity and demonstrates a belief that each child can succeed. The Board is chargeable with
reviewing the performance of the Superintendent and deals with the District through its
Superintendent. The Board is located and carries out its function in the State of Washington.
5. Defendant Katy Woods (Woods), defendant Jason Hutchinson (Hutchinson),
defendant Nancy Truitt Peirce (Truitt Peirce), defendant Darcy Chessman (Chessman) and
defendant Jim Scott (Scott) are the individual members of the Board and at all times relevant
herein, were the duly constituted and acting governing board of the District with the ultimate
responsibility for the education of those students attending the schools within the District
(hereinafter collectively referred to as Individual Board Members). Based on information and
belief, all Individual Board Members are residents of Washington State. Each of the Individual
Board Member defendants is being sued in their individual capacity.
6. The Defendants are not entitled to immunity for any claim asserted herein.
Hason v. Med. Bd. Of California, 279 F.3d 1167 (9th Cir. 2002); Preschooler II v. Clark County
School Board of Trustees, 479 F.3d 1175 (9th Cir. 2007); 42 USC 2000d-7(a)(1). By accepting
funds under the Rehabilitation Act, the District waived immunity for claims brought under 504
of the Rehabilitation Act. Pugliese v. Dillenberg, 346 F.3d 937 (9th Cir. 2003).
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COMPLAINT FOR DAMAGES - 4 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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7. Plaintiffs are informed and believe and thereon allege that Defendant Lara Cole
(Cole) is and at all times relevant to this complaint was, an employee of the District and holds
the position of Director of Student Services. Cole is responsible for ensuring compliance with all
state and federal laws governing education for children with disabilities and for ensuring that
qualifying children with a disability receive an education in compliance with their individual
education programs under the IDEA. Coles acts and omissions alleged herein were taken under
color of law and in the course and scope of her employment with the District. The Board and the
Direct are liable for Coles conduct, as set forth below. Based upon information and believe,
Cole is a resident of Washington State. Cole is also being sued in her individual capacity.
8. Plaintiffs are informed and believe and thereon allege that Defendant Ken Hoover
(Hoover) is, and all times relevant, was employed by the District and holds the position of
Superintendent. Hoover is responsible for all matters relating to the day-to-day operations of the
District and ensuring that District employees comply with federal and state laws and are properly
trained. All of Hoovers actions alleged herein were taken under color of law and in the course
and scope of his employment with the District. The Board and the District are liable for
Hoovers conduct, as set forth below. Based upon information and believe, Hoover is a resident
of Washington State. Hoover is also being sued in his individual capacity.
9. Plaintiffs are informed and believe and thereon allege that Defendant Melissa
Hart (Hart) is, and at all times relevant, to this complaint was, a special education teacher
employed by the District. Hart exercised direct and immediate control over I.M. and was
directly responsible for providing him with educational services pursuant to his May 2013
individual education plan and in compliance therewith. All of Harts actions alleged herein were
taken under color of law and in the course and scope of her employment with the District. The
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COMPLAINT FOR DAMAGES - 5 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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Board and the District are liable for Harts conduct, as set forth below. Based upon information
and believe, Hart is a resident of Washington State. Hart is also being sued in her individual
capacity.
10. Plaintiffs are informed and believe and thereon allege that Defendant Mairead
Kinney (Kinney) is and at all times relevant to this complaint was, a special education teacher
employed by the District. Kinney exercised direct and immediate control over I.M. and was
directly responsible for providing him with educational services pursuant to and in compliance
with his individual education plan. All of Kinneys actions alleged herein were taken under
color of law and in the course and scope of her employment with the District. The Board and the
District are liable for Kinneys conduct, as set forth below. Based upon information and believe,
Kinney is a resident of Washington State. Kinney is also being sued in her individual capacity.
11. Plaintiffs are informed and believe and thereon allege that Defendant Janna
Dmochowsky (Dmochowsky) is and at all times relevant to this complaint was, an employee
of the District and is the principal at Salem Woods Elementary, a school within the District. All
of Dmochowskys actions alleged herein were taken under color of law and in the course and
scope of her employment with the District. As principal of Salem Woods, Dmochowsky was
responsible for ensuring the training of the special education staff at the school and ensuring that
I.M. received educational services pursuant to and in compliance with his individual education
plan. The Board and the District are liable for Dmochowskys conduct, as set forth below.
Based upon information and believe, Dmochowsky is a resident of Washington State.
Dmochowsky is also being sued in her individual capacity.
12. The District and the Board are liable for the conduct of the individual defendants
named herein because: 1) their acts and omissions were carried out within the course and scope
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COMPLAINT FOR DAMAGES - 6 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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of their employment with the District or their membership in the Board; 2) Cole, as Director of
Student Services, Hoover, as Superintendent, Dmochowky, as Principal of Salem Woods and
Hart and Kinney, as I.M.s special education teachers, had final authority to make decisions
affecting I.M.s rights as alleged herein; 3) the acts and omissions of these individually named
defendants were carried out pursuant to and consistent with a policy, custom or practice of the
District and the Board, including a policy of inaction; 4) the Board and the District acted with
deliberate and intentional indifference or disregard for the rights, safety and wellbeing of I.M.;
and 5) the District and the Board ratified the conduct of each of the individual defendants named
herein.
13. Plaintiffs are informed and believes and thereon allege that each defendant named
in this Complaint was at all times herein mentioned and now is the agent, servant and employee
of the other defendants herein, and was at all such times was acting within the course and scope
of said agency and employment and with the consent and permission of each of the other co-
defendants, and each of the defendants herein ratified each of the acts of each of the other co-
defendants, and each of them.
14. With respect to the each individually named defendant, it is specifically alleged
that all acts performed by them were done for the benefit of their marital community.
JURISDICTION & VENUE
15. This action arises under the Fourth and Fourteenth Amendments to the United
States Constitution, and other federal laws, including but not limited to the ADA, the
Rehabilitation Act of 1973 and the IDEA.
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COMPLAINT FOR DAMAGES - 7 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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16. This Court has original jurisdiction of this matter pursuant to 28 USC
1331(federal question jurisdiction) and 1343 (federal civil rights jurisdiction). This Court
has supplemental jurisdiction pursuant to 28 USC 1367 to hear all related state law claims.
17. Venue is proper in this district pursuant to 28 USC 1391 because all parties
reside in this judicial district.
EXHAUSTION
18. None of the claims asserted herein are subject to the exhaustion provisions of the
IDEA because:
a) Plaintiffs are seeking remedies that are not available under the IDEA, including
damages for physical and emotional injuries.
b) Exhaustion is not required for any claim sounding in a violation of civil rights,
disability discrimination or for claims asserted under state law.
d) Exhaustion is not required for failure to provide a free and appropriate
education under 504 of the Rehabilitation Act, as distinct from a free and appropriate
education under the IDEA.
e) Exhaustion is not required when a claim is premised on the failure to implement
an existing individual education program under the IDEA.
f) Exhaustion is not required when doing so would be futile.
g) Exhaustion is not required when a District has adopted a policy or pursued a
practice that is contrary to law.
h) Fundamental notions of justice and judicial economy undermine exhaustion in
this case. A due process proceeding was instituted October 30, 2014, and is currently
pending. The District has taken affirmative action in an attempt to stall that proceeding
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COMPLAINT FOR DAMAGES - 8 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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and has obtained two continuances that have extended the decision deadline to April 29,
2015 - 106 days after the deadline set forth in. WAC 392-172A-05090(2) and 392-172A-
05110(1).
FACTUAL ALLEGATIONS
I.M.s Disability
19. I.M. was diagnosed with autism in 2011, at the age of five. Autism is complex
neurobiological disorder that affects the manner in which the brain processes and organizes
information. The hallmark of autism is impaired social cognition the ability to read and
interpret verbal and non-verbal cues and communicative nuances. Because these modes of
communication are inherent in all human interaction, deficits in this area lead to frustration and
anger that manifest in behavioral problems and tantrums. As such, educational plans for school
aged children with autism focus heavily on teaching self-regulation and relaxation skills as well
as tools for recognizing situations that contain potential triggers so that self-regulation skills can
be employed before an escalated emotional response takes hold.
20. The IDEA was drafted in recognition of the unique challenges facing those with
disabilities such as autism and guarantees them a free appropriate public education by
mandating the provision of educational and related services in conformity with an individual
education program (IEP) 20 USC 1401(9),(26) and (29); and 1412(a)(1). The IEP sets forth
the unique needs and abilities of the child and the manner in which educational services are to be
delivered based upon those unique needs and skills.
I.M.s IEP
21. I.M. was enrolled in the District for the 2012/2013 year and attended second
grade in Amy Mudrovichs (Mudrovich) Positive Behavioral Support classroom at Chain Lake
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COMPLAINT FOR DAMAGES - 9 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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Elementary. During the course of that year, Miller worked closely with Mudrovich and the
classroom staff to create a comprehensive IEP specifically tailored to I.M.s unique challenges
and abilities. The IEP centered on five identified key characteristics. First, I.M. loves
technology. He learns easily on the computer and is highly motivated by the ability to earn free
time to play computer games. As such, computer time is I.M.s primary positive behavioral
support and considered to be integral to his academic success. Second, I.M. suffers from
depressed fine motor skills that make handwriting difficult, if not excruciating. As a result, I.M.
is extremely resistant to writing and any task that requires writing is inevitably met with a
behavioral outburst. Because I.M. readily learned keyboarding skills, the continuous writing
goal was removed from his IEP in 2013. Third, I.M. requires preferential seating that is away
from stimulus and equipped with a sensory seat cushion. This also allows him to create a zone
of autonomy and calm when feeling threatened or over stimulated. Fourth, I.M. is reluctant to
changes in routine and resists abrupt transitions in the day. Finally, I.M. cannot read social cues
or interpret nuances in tone or rhythm of speech. He is unable to infer the motivation or intent
behind the actions of others and requires the consistent use of familiar vocabulary. I.M. is
equally challenged in his ability to express his own thoughts and feelings as he cannot
spontaneously connect words necessary to express himself. All five of these traits were carefully
incorporated into his IEP.
22. I.M.s IEP includes a Behavioral Intervention Plan (BIP). The BIP is designed
to provide the staff with instruction on how to respond to disruptive behavior while teaching I.M.
self-regulating and calming techniques. Calming methods that have proven effective with I.M.
include deep breathing and allowing I.M. the opportunity to independently remove himself from
the environment or create for himself a privacy zone, such as under his desk. The BIP requires
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COMPLAINT FOR DAMAGES - 10 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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the staff to model these techniques as disruptive behaviors surface so that he can ultimately learn
to employ them independently.
23. Aversive interventions are a last resort response to behavior that creates a risk
of physical harm to the child or others in the vicinity. Washington law provides strict guidelines
for the use of aversive interventions and mandates close scrutiny of instances in which they are
employed. WAC 392-172A-03130. Holds and seclusions are the two most severe forms of
aversive interventions. Both pose significant dangers of physical and psychological harm, and
even death. These risks are even greater when used on children with autism, as such children are
unable to discern why they are on the receiving of aggression and inclined to perceive it as
punitive or even cataclysmic.
24. Aversive interventions must be carried in full compliance with a childs written
aversive intervention plan (AIP). The written AIP serves to identify the specific aversive
interventions that are permitted and the conditions on their use. This is to ensure that the child is
safeguarded against the misuse of aversive interventions. In order to guarantee this level of
protection, the school is also required to take affirmative steps to ensure that all staff members
know the contents of a childs AIP. WAC 392-172A-03120(2).
25. With respect to isolation, the law requires seclusion rooms to be ventilated,
lighted and temperature controlled. The only circumstance in which a locked door is permitted
is when a staff member maintains constant visual contact through a window. Under no
circumstances is a child to be left unattended in seclusion and a staff member must remain in
visual or auditory range, at all times. WAC 392- 172A-03130(2)(d) and (e). The staff member
who carries out the aversive intervention must complete a detailed written report within two
business days of the incident. The school is required to make a reasonable effort to call the
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COMPLAINT FOR DAMAGES - 11 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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parent within 24 hours and provide a copy of the written report within 5 business days. RCW
28A.600.485.
26. I.M.s IEP includes written AIP, which authorizes the use of holds and seclusions
in very limited circumstances and only under certain conditions. First, only staff members that
are Right Response trained are authorized to carry out any type of aversive intervention. Second,
aversive interventions can only be used in situations that present a risk of physical injury to I.M.,
other students or staff. Under no circumstances are aversive interventions permitted as
punishment for behavioral outbursts. Third, no aversive intervention can be employed prior to
attempting the following positive behavioral interventions in the following order: 1) I.M. is
asked to take a time out at his desk with his head down; 2) I.M. is asked to take a time out in a
more secluded area of the classroom; 3) I.M. is to sit in the seclusion room with the door open
and with an adult in the doorway; and 4) I.M. remains in the seclusion room with door closed
and with an adult monitoring through a window. None of the conditions in the AIP are
discretionary.
27. The Right Response training mandated by I.M.s AIP requires completion of a 14-
hour certification course. The Right Response philosophy is founded on the notion that an
aggressive response to an escalated situation will only serve to make matters worse. As such
Right Response trainees are taught to assess and meet the childs needs and shift away from the
mindset of winning a power struggle. In fact, the first five hours of the Right Response training
course is devoted to de-escalation techniques. In the event that a physical hold or seclusion is
required after all de-escalation techniques have failed, the course provides training on how to
implement those interventions in the safest possible manner.
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COMPLAINT FOR DAMAGES - 12 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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28. In addition to the reporting requirements set forth in RCW 28A.600.485, I.M.s
BIP requires the staff to prepare a written summary at the end of each day that serves inform
Miller of the significant events of the day (hereinafter communication journal).
29. The efforts invested in the creation of I.M.s IEP, BIP and AIP paid off and I.M.
enjoyed a successful and productive second grade, with only isolated behavioral incidents.
Harts Abusive Interventions
30. In the fall of 2013, I.M. was assigned to attend third grade in defendant Harts
Positive Behavioral Support classroom at Chain Lake Elementary. It was Harts first year at
Chain Lake. Hart repeatedly violated the mandates set forth in I.M.s IEP as well as the
governing law, causing I.M. to suffer physical and emotional harm.
31. On the morning of the first day of school, Hart asked I.M. to write his name. As
the IEP predicted, I.M. resisted with a behavioral response. Without employing any of the
positive behavioral supports mandated in the BIP, Hart and a para-educator took I.M., via a 2
person escort to a tiny closet inside an adjacent room within the portable classroom. The closet
has no vents or air ducts. There are no windows to the outside. There is a small window in the
door to the room but, at the time of I.Ms seclusion, it was blacked out with construction type
paper. The door is, or at the time of I.M. seclusion was, equipped with locking mechanism that
is built into the handle so that the lock engages when the handle is pressed in, either by design
or by malfunction. There is no doorknob on the inside creating for the child a visual reminder
that he or she is not free to leave. Hart left I.M. locked in the closet, unattended, for five
minutes.
32. Hart also disregarded the provision in I.M.s IEP for computer accommodations.
Not only was no computer installed in the classroom, but also Hart stated that I.M. would have
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COMPLAINT FOR DAMAGES - 13 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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no access to any school computer except during designated lab times. Three hours after the
handwriting incident, Hart locked I.M. in the seclusion closet for 10 minutes after discovering
that he was playing with his PlayStation Portable. At 3:20 that afternoon, Hart locked I.M. in the
closet for a third time, because he was frustrated at another student in line [and] pushed the
other student into the wall. All three seclusions were imposed by a two-person escort to the
seclusion closet. No positive behavioral supports were attempted prior to seclusion as required
by the IEP in effect at the time.
33. Hart called Miller after the first day of school and advised that I.M. had been
escorted to time out though she did not provide specifics and did not disclose the nature of the
seclusion room. The communication journal states that the day started great and vaguely lists
three quiet room visits. Miller expressed her concern about the physical contact that may have
been involved in the escorts and reiterated I.M.s need for personal space and other
considerations as set forth in this IEP. Although Miller had yet to learn of the nature and scope
of the IEP violations, Miller was concerned enough to request that there be no further seclusions
and that any time outs take place in the principals office. When I.M. arrived home from
school, his face was flush with bright red dots that appeared to be broken capillaries. Because of
his communication deficits, I.M. was unable to tell Miller what had happened to him that day.
34. On the morning of September 5, the second day of school, I.M. was locked in the
seclusion closet for 17 minutes. This incident was less than 20 minutes after the start of class
and because I.M. became aggressive after being asked to write his name. At 12:53, two staff
members placed I.M. in a floor hold for 5 minutes. No behavior is cited for the intervention.
Rather, the report states simply that I.M. was informed that he was expected to attend music.
At 1:57 that afternoon, I.M. was locked in the seclusion closet again, this time for kicking a
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COMPLAINT FOR DAMAGES - 14 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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classmate after I.M. was asked to participate in a group activity. Miller was not advised of the
aversive interventions on September 5. In fact, the communication journal sent home that
afternoon stated: Today was a great day. I.M. arrived home from school with feces in his
pants.
35. On the third day, Friday the 6th, I.M. was locked in seclusion at 9:32 after the
teacher asked him to sit safely in his chair and I.M. tried to hit her and kick her. At 12:45, I.M.
was sent back to seclusion, via a two-person escort, because he punched another student after
getting annoyed at another students words.
36. Just prior to the afternoon bell on Friday, I.M. ran out of the classroom and hid in
the library. Melissa Oliver (Oliver), the school principal, talked I.M. out of hiding and
ultimately onto the bus. Oliver and Hart then called Miller, advised of the library incident and
stated that I.M.s bus would be late as a result. Miller asked about the communication with I.M.
just prior to the incident, as language can be a trigger. Hart stated that she does not believe that
the vocabulary used with I.M. is important. Neither Oliver nor Hart mentioned the seclusions
that day, though it is unknown if Oliver knew of them at that time. The communication journal
described the day as follows: [I.M.] had a pretty good day. Each day has been better than the
day before. The journal references the second seclusion, although it is characterized as a time
out. No mention is made of the morning seclusion.
37. After the first day of school, I.M. began to develop unusual behaviors. He
became fixated on locks and insisted that all windows and doors in the home remain open. The
click sound of the automatic car door lock would ignite an inconsolable panic attack. He
started having nightmares. Upon entering a new environment, I.M. insisted on knowing all
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COMPLAINT FOR DAMAGES - 15 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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routes of escape even to the point of assessing how he might dig through the floor or a wall if
he were trapped. Over the course of the weekend of the 6th, these behaviors grew in intensity.
38. On the morning of Monday September 9, Miller called the school and asked for
copies of I.M.s BIP and AIP that Hart was to be following, as well as all aversive intervention
reports. Miller further requested the opportunity to observe in the classroom. There are no
documented reports of any aversive interventions that day.
39. On Tuesday September 10, at 11:35, Hart asked I.M. to stop making fart noises in
music. Although the report is unclear, it appears that I.M. stopped but then kicked and pinched
Hart. Hart responded by restraining I.M. on the floor for an unreported length of time. The
parent communication book described it as a pretty good day with a few hiccups. Miller did
not receive a phone call regarding the incident. Miller did not receive the intervention report
until September 16, when it was produced pursuant to her written formal request.
40. On Wednesday September 11 at 9:46, I.M. was restrained in a two-person hold,
first in a chair and then on the floor. There is no entry in the communication journal regarding
the incident and Miller did not receive a phone call.
41. On the afternoon of September 11 (and without knowledge of the restraint
employed earlier that morning), Miller appeared for the scheduled observation and saw the
seclusion closet for the first time. It was lined in padded material. One wall had brown smears
of what appeared to be dried feces. The other walls were stained with a clear liquid. Miller was
horrified. She collected I.M., went to Olivers office and informed her of the situation. Miller
then learned that Hart did not have the Right Response training mandated in I.M.s IEP. The
District never provided Miller a copy of the September 11 incident report and she saw it for first
time in a subsequent proceeding.
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COMPLAINT FOR DAMAGES - 16 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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District Refuses to Honor I.M.s IEP
42. Miller requested an immediate meeting of the IEP team and a meeting was
scheduled for September 16. Defendant Cole, the Direct of Student Services, emailed Miller and
asked if she would be bringing an attorney to the meeting. Cole explained that attorney
attendance would force a delay of the meeting, as the district would insist on having its own
attorney present as well. Miller responded that she would be attending alone, but requested that
Cole attend in person.
43. The IDEA considers parental participation in the IEP process critical to
ensuring a quality education. As such, the statute contains extensive procedural safeguards to
ensure that parental rights to full participation are guaranteed. Winkelman v. Parma City
School Dist., 550 U.S. 516, 524 (2007); Doug C. v. Hawaii Dept. of Educ., 720 F.3d 1038, 1040
(9th Cir. 2013); Shapiro v. Paradise Valley Unified School Dist., 317 F.3d 1072, 1079 (9th Cir.
2003); 42 USC 1415(a); WAC 392-172A-03100 and 05000(2). Access to complete and
accurate educational records is integral to a parents ability to fully participate in the IEP process.
20 USC 1415(b)(1); WAC 392-172A-05000(2). Whenever there is a proposed change to an
IEP, the school must document the matter in what the IDEA refers to as a prior written notice.
20 USC 1415(b)(3) and (c); WAC 392-172A-05010.
44. Sometime prior to September 16, Cole drafted a new AIP, which was presented to
Miller at the time of the September 16 meeting. Although the purpose of the meeting was to
address the improper use of aversive interventions, the September 16 draft AIP expanded the use
of these interventions. Specifically, the new draft permitted aversive interventions to deter future
disruptive behaviors or when I.M.s behavior disrupts the learning of others students. The new
AIP also eliminated the requirement that the staff members employing aversive interventions are
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COMPLAINT FOR DAMAGES - 17 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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Right Response certified. Miller objected to all proposed changes to the AIP. In fact, Miller did
not want the AIP or BIP changed but, rather, assurances that the current plans would be enforced
as written. She orally withdrew consent for any aversive interventions and requested records
regarding staff training. No prior written notice was drafted memorializing the September 16
meeting. On September 18, Miller provided the district with a written withdrawal of consent for
aversion interventions. Another IEP meeting was scheduled for September 19.
45. At the September 19 meeting, Cole presented Miller with yet another revised AIP.
This second revised AIP served to further expand the permissible the use of aversive
interventions by allowing seclusions in excess of 20 minutes. As with her prior draft, Cole
removed all reference to the requirement for Right Response training. Cole also provided Miller
with a new BIP from which she had stripped all positive behavioral supports, including computer
and Wii time - despite a determination that these supports are integral to I.M.s success. Cole
also deleted the requirement for the implementation of less invasive interventions prior to
seclusion, such as head down on desk. Cole also deleted all interventions that would enable I.M.
to self-regulate, such as the ability to remove himself from stimulus or creation a zone of
protected personal space.
46. Miller now faced two problems: a teacher that displayed contempt for I.M.s
disability and a school district that openly admitted that it would not comply with I.M.s IEP.
With respect to the first problem, Miller requested that I.M. be transferred to another classroom
within the District, on the grounds that Harts classroom was an unsafe environment. Cole
refused, stating that there were no options in the District, other than Harts Chain Lake
classroom. With respect to the second problem, Cole stated that no matter where I.M. is placed,
the newly expanded AIP and the newly gutted BIP would govern the services provided,
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COMPLAINT FOR DAMAGES - 18 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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notwithstanding Millers objections. The District steadfastly refused to honor or implement
I.M.s May 2013 IEP and this refusal continues to this day.
Miller Seeks Resolution
47. Miller urged Cole to help her find another solution where I.M. could receive an
education without being physically and emotionally harmed. Cole stated that family had only
four options: 1) Harts classroom at Chain Lake; 2) an inter-district transfer; 3) home school; or
4) private school, solely at the familys expense. Miller stated that she would like to transfer
I.M. to the autism program in Sultan and asked if Cole would assist in facilitating the transfer.
Cole advised that she has no control over transfers and could offer no help. She further advised
that, if I.M. does transfer, the District would not provide transportation. Remarkably, Cole then
advised Miller that until she elected one of Coles four options, I.M.s absences would be marked
as unexcused for truancy purposes.
48. On September 26, Miller called Cole hoping to discuss placement options. The
office manager, Heidi Dalton, advised Miller that Cole would not speak to Miller on the phone
and that all future communication would have to be by email. Miller advised that she does not
have a home computer or Internet service and while she is able to retrieve email on her phone it
is cumbersome and she is unable to open attachments.
49. Miller then contacted Sound Options, a mediation service contracted with the
Office of the Superintendent for Public Instruction (OSPI) and asked for a mediation. A
mediation was held on October 9, 2013 before Sarah Bergdahl (Bergdahl). The District
continued in its refusal to comply with any of the safety measures in the May 2013 IEP and no
compromise was reached.
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LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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50. On October 14, Miller went to the office of defendant Hoover, the District
Superintendent, to plead for help. She was told that Hoover was unavailable. Hoovers secretary
took a written message stating that Miller needed to talk with him. Miller provided the secretary
with a handwritten letter outlining the events of the prior six weeks and a draft of a citizens
complaint that she was planning to file and urged Hoover to help. Although Cole was at the
center of the problem, Hoover gave to Cole the materials that Miller left with his office and
instructed Cole to respond on his behalf.
51. At this point, I.M. had been out of school for over a month. On October 21,
Miller emailed Oliver and requested homework materials so that I.M. could keep up with the
curriculum pending resolution of the placement. Unbeknownst to Miller, the District had since
removed I.M. from the registry due to unexcused absences. Oliver advised Miller of I.M.s
withdrawal from the district and stated that such prevented her from providing any sort of
curriculum. On the same day, the District instituted a truancy proceeding against I.M.
52. On October 29, 2013, Miller filed a citizens complaint with OSPI, in which she
outlined the conduct of the District and the emotional and psychological harm I.M. suffered as a
result of the improper aversive interventions. Prior this filing, the District agreed to attend an
IEP meeting on November 12, 2013 and agreed to have Bergdahl serve as a facilitator. The
meeting resulted in a compromise whereby I.M. would be placed in in defendant Kinneys
special education class at Salem Woods elementary. Although the District still refused to
comply with the May 2013 AIP and BIP and insisted on placement pursuant to its expanded AIP,
it agreed to the following conditions: 1) seclusions, if any, would take place in the front office; 2)
Miller would be immediately called if a seclusion lasted more than 20 minutes; 3) a follow up
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COMPLAINT FOR DAMAGES - 20 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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meeting would be held in 30 days and, most importantly; 4) all staff members employing
aversive interventions were to be Right Response trained.
53. While the District strongly advocated against the training requirement, Miller
insisted given the dangers presented when untrained staff implement aversive interventions. The
District relented and agreed to provide the training. Thereafter and prior to the time I.M. started
at Salem Woods, Miller requested confirmation that all staff had been trained. In an email dated
November 18, Cole confirmed in writing that the staff had been trained.
Kinney and Dmochowsky Abusive Interventions
54. I.M. started at Salem Woods on Tuesday November 19, 2013. At lunchtime, the
staff took from I.M. his home packed lunch on the grounds that only prepackaged commercially
prepared foods were allowed in the classroom, as a result of another childs food allergy. I.M.
was not provided with a substitute lunch.
55. On the morning of November 20, I.M. was carrying his chair from circle time to
his desk in a manner that the Kinney felt was unsafe. As a result, Kinney and a para-educator
placed I.M. in a two-person hold before escorting him to seclusion. The seclusion room was not
in front office, as provided in the November 12 agreement. Rather, Kinney took I.M. to a vacant
office in a separate building north of the main building in which the classroom and front office
were located. The vacant office is accessed by a single exterior door along an outside covered
pathway, adjacent to the playground. The window to the room is completely obscured by a
removable air conditioning unit. Kinney placed I.M. in the office, locked the door and left. She
returned 25 minutes later, at which time she determined that I.M. would remain in seclusion for
an additional period of time. No one called Miller, as required by the November 12 agreement.
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COMPLAINT FOR DAMAGES - 21 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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No one remained in visual or auditory contact as required by WAC 392- 172A-03130(2)(d) and
(e).
56. Upon learning that he would not be released from seclusion, I.M. began to panic.
He identified a switch on the wall that he believed to be an emergency call or help button. He
pounded the switch so hard that he punctured a shallow hole in palm of his hand and broke the
switch. At 10:40, after 65 minutes in unattended seclusion, Kinney returned for I.M. She then
took him to the nurses office for treatment of the hand injury.
57. The next day, at 12:50 pm, I.M. refused to wash his hands. According to the
report, I.M. then hit a teacher. Kinney and a para-educator placed I.M. in two person hold before
escorting him to the same vacant office where he had injured his hand the day before. Kinney
placed I.M. in the room, locked the door and left. Kinney returned 20 minutes later but decided
that I.M. would remain in seclusion for another 20 minutes. She again locked the door and left.
Miller was not called. Kinney prepared an incident report. At or about the same time, she
amended the November 20 report, prepared the day prior, to include the words clear and present
danger of serious harm next to the language regarding the manner in which I.M. was carrying
his chair.
58. On the morning of Tuesday November 26, I.M. panicked upon arrival of the
school bus and refused to get on the bus. He told Miller that the teachers were hurting him and
that he is afraid that they will do it again. Miller took I.M. back home and emailed Cole
requesting an emergency IEP meeting. Cole refused, stating that the circumstances do not
warrant a meeting despite the fact that the November 12 agreement required a meeting within
30 days of placement, irrespective of any incidents. Miller removed I.M. from Salem Woods
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COMPLAINT FOR DAMAGES - 22 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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and enrolled him in home school. It was later confirmed that Kinney was not Right Response
trained contrary to Coles November 18 written confirmation.
59. After she removed I.M. from Salem Woods, Miller learned that the school
principal, defendant Dmochowsky, performed holds on I.M. that included pinning him to the
floor. Miller is informed and believes that Dmochowsky employed these interventions on at
least two occasions, though it is unknown if they were performed in connection with or in
addition to the two seclusions identified above. There is no written record of Dmochowskys
interventions. Dmochowsky is not Right Response trained.
District Attacks Miller and Challenges OSPI Corrective Action
60. During this time, the District hired the law firm of Perkins Coie to defend against
the claims asserted in the citizens complaint. Perkins attorney, Philip Thompson (Thompson),
prepared the response. Because the complaint was filed prior to the November 12 agreement, the
issues therein were limited to a review of the events at Chain Lake. Although Miller submitted
evidence with the complaint that unequivocally established the Districts failure to implement the
May 2013 IEP and Harts lack of Right Response training, the District denied all wrongdoing.
Thompson stated that the complaint was nothing more than a campaign to create conflict
arising out of Millers and I.M.s disappointment that Mudrovich (I.M.s second grade teacher)
was no longer teaching in the District. Thompson further accused Miller of being orally
abusive and discourteous.
61. In addition to ad hominem attacks, the Districts written response to the complaint
contained the following misrepresentations: 1) that Hart was Right Response trained at the time
of the aversive interventions; 2) that the Chain Lake seclusion closet was ventilated and
temperature controlled and, most remarkably; 3) that the amended AIP and BIP were created at
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LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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Millers request. Thompson, acting on behalf of the District, further stated that the District
advocated for a 10-minute limit on seclusions but that Miller insisted on giving the staff the
discretion to seclude her child for up to 20 minutes.
62. On January 3, 2014, Douglas Gill, OSPIs Director of Special Education, issued a
decision and concluded that the District: 1) failed to implement I.M.s May 2013 AIP and BIP;
2) failed to document decisions made at the September 16, 2013 IEP meeting justifying the
expansion of the AIP; 3) failed to show how the amendments to the AIP and BIP were warranted
and based upon I.M.s needs; 4) failed to properly train Hart on Right Response; 5) failed to
properly notify Miller of all aversion interventions; and 6) failed to provide Miller with all
documents responsive to Millers records request.
63. OSPI ordered corrective action that required the District to ensure that its staff is
trained on the issues surrounding these infractions so as to prevent reoccurrence. OSPI ordered
the District to prepare written training materials that would serve to train District employees on:
a) the procedures for amending IEPs; b) implementation of aversive and behavioral intervention
plans; and c) documentation and reporting requirements when restraints or seclusions are
employed. The District was ordered to submit the proposed training materials to OSPI by March
17. Once approved by OSPI, the District was required to disseminate the materials to District
personnel and thereafter submit proof to OSPI that all special education staff members had
received a copy.
64. Notwithstanding OPSIs decision, the District continued in its refusal to honor the
May 2013 IEP and attacked the OSPI decision as inexplicable. With respect to the finding of
Harts lack of training, the District submitted the declaration of Hart wherein she attests that,
earlier in the morning on the first day of the school year, prior to the start of class, she received
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LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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1.5 hours of the 14 hour Right Response training course. The District argued that such served to
satisfy the Right Response training requirement set forth in I.M.s IEP. OSPI defended its
decision and rejected the claim that 1.5 hours of a 14-hour training class served to satisfying the
training requirements in I.M.s AIP. OSPI further stated that judicial review of its decision could
be obtained pursuant to a due process hearing.
65. On March 8, 2014, Miller emailed the members of the school Board and advised
of the Districts continued refusal to concede the infractions cited in the OSPI decision. She
stated that the aversive interventions that District insists on employing are dangerous and that
I.M. suffered physical and emotional harm as a result. She further advised that the Districts
continued insistence on the right to employ these abusive interventions has caused I.M. to miss
almost a year of school and that Hoover has ignored all of her requests for help. Finally, Miller
requested permission to make a presentation on the issue of aversive interventions at the next
school board meeting, scheduled for March 24, 2014.
66. On March 14, defendant Woods, president of the Board, responded to Millers
email and confirmed Millers inclusion on the March 24 meeting agenda. Woods contacted
Hoover and inquired about Millers requests for help. Once again, Hoover abdicated all
responsibility and Woods advised Miller that Hoover had again delegated the matter to Cole
claiming that she is the most knowledgeable about special education rules.
67. On March 24, 2014, one hour prior to the Board meeting, Miller presented the
Board with the required audience comment form outlining the issues to be presented. The Board
then proceeded with its pre-board meeting before commencing the public meeting at 6:00 pm.
Just prior to the time allotted on the agenda for Miller to speak, the Board advised that it would
be holding a closed-door executive session with the Districts counsel, for the purpose of
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LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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discussing potential litigation. The session lasted 50 minutes, after which the public meeting
resumed and Miller spoke on the Districts improper use of aversive interventions.
68. On April 3, 2014, more than two weeks after the Districts draft training materials
were due, Thompson wrote OSPI and reiterated the Districts position that corrective action was
unwarranted as it was based on an erroneous decision. Thompson nonetheless agreed to provide
training materials in an effort to resolve the dispute with [OSPI]. Thompson then submitted to
OSPI what appeared to be copies of compliance materials prepared by another district in a
separate and unrelated matter. OSPI identified the materials as such and again requested that the
District comply with the January 3 decision and prepare its own training guidelines. It is
unknown if any such materials were thereafter provided.
I.M. Enrolls at Dolan Academy
69. During this time, Miller tried to convince the District to go back to mediation at
Sound Options so that I.M. could return to school in physically and emotionally safe
environment. The District refused. In an email dated May 2, 2014 Cole explained:
[T]he district declines your request [sic] address these issues in another mediation session. We have all devoted considerable energy toward resolving your concerns during the previous mediation and at both IEP meetings, concluding with the last IEP, with which you agreed. 70. In June 2014, I.M. began receiving tutoring services at Dolan Academy, a small
private school that provides customized instruction to learners of all abilities through science-
based data driven modalities. He has made significant academic gains. When he first started at
Dolan, considerable time was invested in addressing I.M.s anxieties and his association between
school and abuse. I.M. also fears that members of the staff at Chain Lake and Salem Woods are
searching for him and want to hurt him. He is particularly fearful that they will break into Dolan
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COMPLAINT FOR DAMAGES - 26 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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and capture him. The staff at Dolan have addressed this anxiety in a thoughtful and productive
manner. While I.M. has reached a level of comfort at Dolan, his fear of capture by District staff
remains with him to this day and is woven into his daily experience. He remains fixated on
knowing the routes of ingress and egress in all situations. He continues to have frequent
nightmares. I.M. has been diagnosed with post-traumatic stress disorder and he receives regular
therapy services from a licensed mental health counselor who specializes in autism and
childhood trauma.
71. Since attending sessions at Dolan, there has not been a single incident in which
I.M. engaged in behavior that presented a risk of harm to himself or others. There have been no
aversive interventions. In addition, I.M. is developing friendships with other students and is
learning fundamental social skills that will form the foundation of continued growth and success.
Miller Seeks Private Placement
72. The Miller family is unable to sustain full time tuition at Dolan Academy. As
such, on September 4, 2014, Miller requested another IEP meeting in the hope that I.M. could be
placed at Dolan, at the Districts expense. A meeting was scheduled for September 26, 2014.
On September 16, the District held a separate meeting, without Miller, for the purpose of
preparing yet another revised AIP. The District retained Margaret Brashers, a Board Certified
Behavioral Analyst to participate in the meeting. The new AIP provided for a liberal use of
aversive interventions and, like all of Coles prior drafts, completely eliminated all requirements
for Right Response training. Moreover, the plan stated that it was created at a meeting in which
Miller was in attendance. Miller did not attend the meeting and was unaware that it was being
held. Miller objected to the meeting and the resulting amended AIP.
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COMPLAINT FOR DAMAGES - 27 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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73. Miller again reached out to the Board and advised of the September 16 meeting
held in her absence. Defendant board member Scott responded stating that the meeting date
reflected on the draft AIP was likely the result of an auto re-date function that overrode the date
of an old a document. Once again rejecting Millers plea for help, Scott stated: [T]here is no
place within policy, procedures or state and federal law for me to intervene in this process. I
have complete trust that district employees are performing their duties in accordance with district
and board policy. Scott forwarded the email and attachments to Hoover for confirmation and
follow up. Neither the Board nor Hoover took any further action on the matter. With respect to
Scotts theory that the September 16, 2014 date on the new AIP was the result of an auto re-
dated of an old document, no prior draft matching its contents has been found.
74. Just prior to the September 26, 2014 meeting, Cole provided Miller with a new
draft IEP and a new draft BIP, in addition to the previously provided and mysteriously created
AIP. The draft IEP was replete with errors and significant portions were copied from prior years.
Even then, many of the copied portions were taken from IEPs that predated the May 2013 IEP.
The Fine Motor goal is a verbatim copy of the goal as it appeared in 2011 - which goal was
mastered in 2012. The typing goal is 1.3 wpm despite the fact that I.M. was typing 3.1 wpm in
May 2012. Goals for adaptive, written expression and math were unchanged from the goals in
2011. I.M.s disability is identified as developmental delay as opposed to autism. The draft
further provides that I.M. will repeat third grade despite the Districts failure to follow any of
the procedures required (including notice to the parent) for repetition of a grade level.
75. Miller appeared for the September 26, 2014 IEP meeting with attorney Erica
Krikorian (Krikorian). Cole advised Miller that she could not have an attorney present without
providing advanced notice to the District. Cole further advised that if Krikorian remained, the
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COMPLAINT FOR DAMAGES - 28 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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meeting would be cancelled. Miller elected to proceed with the meeting so as to avoid any
further delay. Because I.M.s IEP had expired in May 2014, at which time he was to be re-
evaluated, Miller signed a consent for a re-evaluation, though the specifics of the testing had yet
to be identified. Nothing further was accomplished and another meeting was scheduled for
October 20, 2014.
76. On October 1, Krikorian emailed Cole and asked to be included on future emails
from District staff to Miller. The next day, attorney Thompson emailed Krikorian stating that
she is to have no direct communication with the District and that all communication must be
directed to him. Krikorian agreed, though Thompson refused to instruct the District to refrain
from communicating directly with Miller. Krikorian proposed that the parties work together to
create a solution that centers on I.M.s safety. Remarkably, Thompson stated that he was
unaware of any claim that I.M. had been harmed. In an October 3, 2014 email, Thompson
stated:
I want to add, however, that I am not aware of the Millers having serious concerns
regarding Isaiahs safety with the placement proposed by the district. If you want to
provide me with the details of the Millers concerns, I will be happy to discuss them with
the District.
District Denies All Accommodations for Re-Evaluation
77. At the October 20, 2014 meeting, Miller requested that I.M. be placed at Dolan
Academy. Regarding the re-evaluation, Miller described I.M. fears and anxiety with regard to
District personnel requested that independent providers conduct all assessments. Miller further
agreed to provide the District with extensive testing completed at the UW Autism Center and
Childrens Hospital earlier in 2014, in the hope that District would not feel the need to duplicate
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COMPLAINT FOR DAMAGES - 29 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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some of the testing. The District agreed to consider the assessments. At the conclusion of the
meeting, Cole asked the IEP team members to vote on whether the District should implement
the latest draft of the IEP. Based upon the outcome of the vote, Cole declared the new IEP, AIP
and BIP to be operative.
78. On October 21, 2014, Krikorian wrote Thompson and requested confirmation that
the District would make the requested re-evaluation accommodations so as to avoid an
exacerbation of I.M.s anxiety. Krikorian further requested that Thompson provide a list, by
October 27, of the specific testing that the District sought to conduct. Thompson did not respond
to Krikorians letter. During this time, Cole emailed Miller directly and requested that I.M.
submit to assessments by District personnel and at the District office. On October 29, Krikorian
emailed Thompson asking that he respond to her October 21 letter and requesting that he
recommend the requested accommodations, out of compassion for I.M. Two days later,
Thompson responded as follows: I will respond to the issues raised in your letter in due course.
79. On November 6, the District denied all requested accommodations and instructed
Miller to deliver I.M. to the District office for testing by District personnel. The District further
advised that Miller would not be permitted to remain in the room during the testing. Miller did
not deliver I.M. to the District office. In a prior written notice dated November 13, 2014, the
District stated that it was unable to complete the re-evaluation on the grounds that Miller refused
to respond to its requests for scheduling.
Due Process Proceeding
80. On October 30, 2014, Miller instituted a due process proceeding against the
District and a hearing was scheduled for December 15, 2014. Pursuant to WAC 392-172A-
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COMPLAINT FOR DAMAGES - 30 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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05090(2) and 392-172A-05110(1), a final decision was required on or before January 13, 2014.
Miller felt that she was going to have an adjudicated review of these events.
81. The District responded with the same defenses set forth in opposition to the
citizens complaint, stating that Miller is discourteous, that her claims are a campaign to create
conflict and that all revisions to the AIP and BIP were made at Millers request.
82. The District requested that Miller participate in a resolution meeting pursuant to
WAC 392-172A-05090. The meeting was held on November 14 and Miller attended with
Krikorian and her co-counsel Brian Krikorian (B. Krikorian). Cole attended with District
Attorney Thompson. B. Krikorian raised the issue of the Districts failure to offer any
accommodations to protect I.M. in the re-evaluation process. This angered Thompson and he
responded by telling B. Krikorian to just shut up. This served to end the meeting.
83. In order to ensure that all efforts at resolution were exhausted, Krikorian
thereafter presented Thompson with a proposed resolution that provided for placement at Dolan
and a waiver of reimbursement of tuition incurred to date. The District rejected the offer and
responded with a counter offer that included a release of all civil claims. Krikorian asked the
District to present a counter-proposal that is limited to a resolution of the due process issues, and
does not include a release of civil claims. The District has refused and will not agree to any
settlement of the due process issues unless Miller agrees to release all claims asserted in this
action.
84. Since then, the District has obtained two continuances of the due process hearing
date, on the grounds that it needs additional time to file a motion for summary judgment and on
the grounds that an amended fact statement, prepared at the Districts request and in direct
response to its claim of lack of specificity, constituted an amended due process hearing request
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COMPLAINT FOR DAMAGES - 31 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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necessitating a re-setting of the procedural clock. As of the date of this complaint, the due
process hearing is scheduled to commence on March 20, 2015, with a decision deadline of April
29 106 days after the expiration of the deadline set forth in WAC 392-172A-05090(2) and 392-
172A-05110(1). By the time of the decision deadline, I.M. will have missed almost two full
school years of a public education.
85. The conduct of Cole, Hart, Kinney and Dmochowsky was intentional, malicious
and/or in reckless and in callous disregard of I.M.s rights, safety and well being. As
Superintendent, Hoover had a duty to intervene upon notice of the Chain Lake violations and to
prevent the abuse at Salem Woods. Upon notice that Cole was refusing to honor the terms of
I.M.s IEP and was creating new aversive and behavioral plans in violation of the federal law,
Hoover had a duty to take all necessary action to stop her. Hoover failed and refused to take any
action with a deliberate and callous disregard of I.M.s rights, safety and well-being. As a result,
I.M. endured additional abuses at Salem Woods and has been deprived of a public education for
more than a year.
86. The District, the Board and the Individual Board Members were aware of the
conduct of Cole, Hoover, Hart, Kinney and Dmochowsky and the harm I.M. suffered as a result.
The Board was aware that the District was refusing to comply with I.M.s IEP and refusing to
comply with the OSPI order for remedial action. The acts and omissions alleged herein were
carried out pursuant to a policy, custom and/or practice of the District and the Board, including a
policy of inaction. The acts and omissions of the District and the Board constitute a deliberate
and callous indifference to clearly established federal and constitutional rights, of which all
defendants were aware.
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COMPLAINT FOR DAMAGES - 32 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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87. The wrongful conduct alleged herein is rendered all the more reprehensible given
I.M.s mental and emotional vulnerabilities and given that the abuses were perpetrated by the
very people that I.M. is supposed to trust and in a setting that supposed to be safe.
88. As a direct and proximate result of the conduct of the Defendants, and each of
them, I.M. has suffered physical, mental and emotional injuries including severe mental and
emotional distress, pain, suffering, anguish and humiliation. Plaintiffs have incurred medical
expenses in connection with the treatment of these injuries and will continue to incur such
expenses in future. I.M. has also incurred educational and related expenses that are the subject
of the pending due process administrative proceeding. To the extent the recovery sought in the
due process proceeding is denied or is awarded and unpaid, plaintiffs will amend this complaint
to include an appeal or enforcement of the decision of the Administrative Law Judge.
FIRST CLAIM FOR RELIEF Violation of 42 USC 1983: The Fourteenth Amendment
(By I.M. Against All Defendants)
89. Plaintiffs repeat, re-allege and incorporate herein by reference the allegations of
paragraphs 1 through 88 inclusive, as though set forth at length.
90. The Fourteenth Amendment to the United States Constitution states that no
citizen shall be deprived of life, liberty or property without due process of law. Section 1983 of
the Civil Rights Act prohibits any person, acting under the color of law, from depriving another
person of a federal or constitutional right.
91. The right to a public education is a constitutionally protected right. The IDEA
provides additional protections to children with disabilities by mandating that they receive a
free appropriate public education (FAPE), as set forth in the IEP that is specifically tailored
to the individual child. As such, an IEP does not set forth suggestions or guidelines for the
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COMPLAINT FOR DAMAGES - 33 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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provision of educational services. Rather, it defines the FAPE to which the child is legally
entitled. The District has no authority to unilaterally amend or modify an IEP. If a dispute arises
and the parent and the District are unable to agree on a resolution, the matter must be resolved
with an administrative due process hearing. 20 USC 1415; Dowler v. Clover Park School
Dist., 172 Wn.2d 471, 479 (2011).
92. The Defendants, acting under color of law, and without due process, denied I.M.
his federally and constitutionally protected FAPE by failing and refusing to implement, honor
and enforce the May 2013 IEP, AIP and BIP.
93. The Defendants, acting under the color of law, further deprived I.M. of a FAPE
by violating the procedural safeguards in the IDEA including but not limited to:
a) Denying Miller meaningful participation in the IEP process.
b) Failing to institute due process proceedings when agreements could not be
reached and, instead, making unilateral decisions over Millers objection.
c) Providing Miller with a finite list of four pre-determined options for I.M.s
placement, without Millers participation or input.
d) Misrepresenting the Districts obligations under the IDEA for a continuum of
services, including those regarding private placement tuition, transportation and
alternative placements.
e) Failing to maintain an updated IEP by continuing to designate I.M.s disability
developmental delay as opposed to autism and by setting goals for skills already
mastered.
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COMPLAINT FOR DAMAGES - 34 LAW OFFICES OF BRIAN H. KRIKORIAN 4100 194TH STREET S.W., SUITE 215
LYNNWOOD, WA 98036 Telephone: (206) 547-1942
Fax: (425) 732-0115
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f) Failing to maintain accurate records, falsifying records, creating misleading
records and failing to fully document all aversive interventions and otherwise
denying Miller access to a complete educational record.
g) Failing to honor the January 3, 2014 OSPI decision and thereafter continuing
assert that an expanded aversive intervention plan governed I.M.s FAPE.
h) Engaging in delay tactics that served to deprive I.M. a timely decision in the
due process proceeding.
i) Conditioning the future provision of a FAPE on a release of all claims alleged
herein.
j) Misrepresenting to the ALJ in the due process proceeding t