United States District Court, D. Colorado
ORDER ADOPTING NOVEMBER 5, 2018 RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the November 5, 2018
Recommendation (Doc. # 15) by United States Magistrate Judge
Gordon P. Gallagher that this Court grant Defendant Colorado
Department of Education's (“CDE”) Motion to
Dismiss (Doc. # 8). Plaintiff Samuel Collin Robinson filed an
Objection (Doc. # 16) to the Recommendation on November 16,
2018, and Defendant filed a Response (Doc. # 19) on December
13, 2018. For the reasons that follow, the Court affirms and
adopts the Recommendation, granting Defendant's Motion.
Magistrate Judge's Recommendation provides a recitation
of the factual and procedural background of this dispute and
is incorporated herein by reference. See 28 U.S.C.
§ 636(b)(1)(B); Fed.R.Civ.P. 72(b). Accordingly, this
Order will reiterate only what is necessary to address
is the father of a second-grade student, and he is divorced
from his son's mother. The parents share decision making
responsibilities with regard to their son's education.
Plaintiff and his ex-wife had a disagreement as to whether
their son may have a disability-Plaintiff did not believe his
son had a disability, but his ex-wife did. Accordingly, when
the school which Plaintiff's son was attending sought to
perform an evaluation to test for possible disabilities,
Plaintiff objected, but his ex-wife consented. (Doc. # 1 at
the school district informed Plaintiff that his ex-wife's
consent alone was sufficient for the evaluation to be
conducted without mediation. (Doc. # 1 at 8.) Therefore,
Plaintiff filed a due process complaint with the Colorado
Department of Education Exceptional Services Unit, opposing
the school district's determination denying mediation.
The matter was referred to the State of Colorado Office of
Administrative Courts. (Doc. # 15 at 2.) The parties to the
matter were Plaintiff and Mesa County Valley School District
No. 51 (“the District”). (Doc. # 1 at 10.)
Defendant was not a party.
3, 2018, the ALJ issued a decision granting the
District's Motion to Dismiss. (Id. at 13.)
Specifically, the ALJ determined that Plaintiff
may not use the due process complaint procedures to overcome
the Student's mother's consent for the evaluation.
Because both [Plaintiff] and the Student's mother share
equally in the Student's educational decision-making, the
District does not need the consent of both parents in order
to perform the evaluation. The District may proceed using the
written consent it obtained from the Student's mother.
(Id.) Additionally, the ALJ advised Plaintiff of his
result, Plaintiff filed the instant action, seeking reversal
of the ALJ's decision. (Id. at 6.) Plaintiff
named the Colorado Department of Education Exceptional
Services Unit as the only defendant. Plaintiff did not name
the District as a defendant, as he did below.
August 30, 2018, Defendant filed a Motion to Dismiss, which
was fully briefed. (Doc. ## 8, 10, 11.) This Court referred
the Motion to Magistrate Judge Gallagher. (Doc. # 9.)
Accordingly, the magistrate judge issued a Recommendation
(Doc. # 15) which concluded that Defendant's Motion
should be granted.
REVIEWING AN OBJECTION TO A MAGISTRATE JUDGE'S
magistrate judge issues a recommendation on a dispositive
matter, Federal Rule of Civil Procedure 72(b)(3) requires
that the district judge “determine denovo any part of the magistrate judge's
[recommended] disposition that has been properly objected
to.” An objection is properly made if it is both timely
and specific. United States v. One Parcel of Real
Property Known As 2121 East 30th Street, 73 F.3d 1057,
1059 (10th Cir. 1996). In conducting its review, “[t]he
district judge may accept, reject, or modify the ...