United States District Court, D. New Mexico
ORDER OF CLARIFICATION
MATTER comes before the Court on Defendants'
Joint Motion for Reconsideration and/or Clarification of this
Court's September 18, 2019 Memorandum Opinion and Order,
Doc. 57, filed September 24, 2019 ("Order").
Tisha Brick asserted claims on behalf of herself and her son,
A.B., pursuant to Section 504 of the Rehabilitation Act
("Section 504"), the Americans with Disabilities
Act ("ADA"), and the Individuals with Disabilities
in Education Act ("IDEA"), and for retaliation,
along with various state law claims. The Court dismissed
without prejudice the claims Plaintiff Tisha Brick asserted
on behalf of her son because Plaintiff Tisha Brick, who is
not an attorney, cannot bring claims on behalf of others.
See Order at 3. The Court dismissed Plaintiff Tisha
Brick's claims pursuant to Section 504 and the ADA as to
all Defendants because Plaintiff Tisha Brick is not
handicapped. See Order at 4-5. The Court dismissed
Plaintiff Tisha Brick's claims pursuant to the IDEA as to
all Defendants except for Estancia Municipal School District
because the Complaint did not allege that those Defendants
are a State educational agency, State agency, or local
educational agency that receives assistance under the IDEA.
See Order at 6-7. The Court concluded that Plaintiff
Tisha Brick stated a plausible claim for retaliation under
the IDEA. See Order at 8.
decretal language in the Order stated in relevant part:
"Plaintiff Tisha Brick's federal law claims against
all Defendants, except Defendants Howard-Hand, Gerkey,
Estancia Municipal School District, Lingnau, Pai and Shirley,
are DISMISSED with prejudice." Order at
14. Defendants move the Court to reconsider and/or clarify
addressing Plaintiff Tisha Brick's retaliation claims,
the Court stated:
states a plausible claim for retaliation under the IDEA:
After almost two full school years of it being allowed and
after the parent began advocacy for [A.B.'s] educational
rights to be reviewed and lawfully upheld, on November 16,
2017 [Defendant Principal] Mindy Lingnau and [Defendant
Special Education Director] Karen Pai in an act of
retaliation to the advocacy, announced to the IEP team in an
EDT meeting without parent present, that they would no longer
allow Anthony Brick to be administered his medical cannabis
by [Plaintiff] Tisha Brick on or near school grounds due to
claims of allegedly being at sudden risk of violating state
and federal laws which allegedly prohibit the allowance of
medically prescribed cannabis on school premises and within
300 feet of school premises. . . . .
On January 23, 2018 [Defendant Superintendent] Joel Shirley
sent out a retaliatory and unlawful 3-page letter which . . .
ultimately banned Tisha Brick from campus and having contact
with 99 percent of the staff on campus.
Complaint at 10, ¶ 37; 16, ¶ 62. See Weber v.
Cranston School Committee, 212 F.3d 41, 51 (10th Cir.
2000) (stating "The IDEA statement of purposes
explicitly recognizes the statute's mission 'to
ensure that the rights of children with disabilities and
parents of such children are protected, '" and
finding that parent's claim that school committee
retaliated against her for complaints regarding education of
her child fell within the zone of interests protected by the
IDEA, in light of the central role played by parents in
assuring that their disabled children receive fee appropriate
public education) (emphasis in original).
at 7. The Court inadvertently failed to include the following
In September of 2018 EMSD counsel [Defendants] Evelyn
Howard-Hand and Lorie Gerkey sent [Plaintiff]Tisha Brick a
letter of settlement coercion with a deadline of response of
October 12th, 2018, followed by the threat of requiring EMSD
to make a CYFD referral. [Plaintiff] Tisha Brick did not
respond to the letter at all and another highly malicious and
false CYFD report was filed in conjunction with a malicious
referral to JPPO as well.
Complaint at 18, ¶ 73. The Court also inadvertently did
not state that Plaintiff Tisha Brick stated a plausible claim
for retaliation under Section 504 and the ADA against
Defendants Howard-Hand, Gerkey, Lingnau, Pai and Shirley.
See Jarvis v. Potter, 500 F.3d 1113, 1125 (10th Cir.
2007) (stating "the Rehabilitation Act, like the ADA,
prohibits retaliation for protected conduct," and
quoting an ADA provision, which is cross-referenced in the
Rehabilitation Act and states: "No person shall
discriminate against any individual because such
individual has opposed any act or practice made unlawful by
this chapter or because such individual made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this
chapter.") (emphasis added); see also
Reinhardt v. Albuquerque Public Schools Board of
Education, 595 F.3d 1126, 1131 (10th Cir. 2010)
(stating a teacher can establish a prima facie case of
retaliation under the ADA based on her advocacy for the
rights of disabled students upon showing she engaged in
protected activity, she suffered a materially adverse action,
and a causal connection between the protected activity and
the adverse action); Vives v. Fajardo, 472 F.3d 19,
21 (1st Cir. 2007) ("Under the Rehabilitation Act, the
[parents] may assert a retaliation claim based on [their]
complaint to the Office of Civil Rights on behalf of [their]
son, even though neither [parent is] disabled").
Construing the Complaint liberally, as the Court must because
Plaintiff Tisha Brick is pro se, Plaintiff Tisha
Brick has stated plausible claims for retaliation under
Section 504 and the ADA against Defendants Howard-Hand,
Gerkey, Lingnau, Pai and Shirley.
IS ORDERED that Defendants' Joint Motion for
Reconsideration and/or Clarification of this Court's
September 18, 2019 Memorandum Opinion and Order, Doc. 57,
filed September 24, 2019, is GRANTED in
part. The remaining federal claims are:
Retaliation under Section 504 of the Rehabilitation Act
against Defendants Howard-Hand, Gerkey, Lingnau, Pai and
Retaliation under the Americans with Disabilities Act against