endrew f. and fry one year later: practice considerations€¦ · kerry mcgrath. is a . senior...

Endrew F. and Fry One Year Later: Practice Considerations

Continuing Legal Education Materials

DATE: Friday, March 23, 2018

TIME: 12:15 p.m. – 1:30 p.m.

LOCATION: New York Law School 185 West Broadway Auditorium New York, New York 10013

PANELISTS: Keren Farkas, Supervising Attorney, Education & Employment, Brooklyn Defender Services

Joshua Feuer, Managing Attorney, NYC DOE Special Education Unit Kerry McGrath, The Cuddy Law Firm, PLLC Neal H. Rosenberg, Private Practice MODERATOR: Laura D. Barbieri, Esq., Chair, Education and the Law Committee,

Association of the Bar of the City of New York CLE: 1.5 Continuing Legal Education Credits

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Endrew F. and Fry One Year Later: Practice Considerations

March 23, 2018

Table of Contents

Panelist Biographies …………………………………………………………………………………... 4 Fry and its Progeny, Richard Marsico …………………………………………………………….… 6 CASES: Supreme Court Fry v. Napoleon Cmty. Sch., 580 U.S. ___, 137 S.Ct. 743 (2017) ……………………. 14 First Circuit Doucette v. Jacobs, 2018 WL 457173 (D. Mass. Jan. 17, 2018) …………………...… 31 A.R. v. Sch. Admin. Unit # 23, 2017 WL 4621587 (D.N.H. Oct. 12, 2017)…………… 45 Second Circuit Condit v. Bedford Cent. Sch. Dist., 2017 WL 4685546 (S.D.N.Y. Oct. 16, 2017) ...… 52 Third Circuit S.D. v. Haddon Heights Bd. of Educ., 2018 WL 636653 (3d Cir. Jan 31 2018) …..… 66 Wellman v. Butler Area Sch. Dist., 2017 WL 6328988 (3d Cir. Nov. 7, 2017). ……… 75 A.P. v. Allegro Sch., Inc., 2017 WL 4330363 (D.N.J. Sept. 29, 2017) ……………..… 84 Rohrbaugh v. Lincoln Intermediate Unit, 255 F.Supp. 3d 589 (M.D. Pa. 2017)…...… 93 Fourth Circuit A.H. v. Craven Cnty. Bd. of Educ., 2017 WL 3493612 (E.D.N.C. Aug 14, 2017) ..…100 Sixth Circuit Sophie G. v. Wilson Cnty. Sch., 265 F.Supp. 3d 765 (M.D. Tenn.) ………………… 108 N.S. v. Tenn. Dep’t of Educ., Case No. 3:16-cv-0610 (M.D. Tenn. Apr. 12, 2017)… 117 Seventh Circuit

Considine-Brechon v. Dixon Pub. Sch. Dist. #170, 2017 WL 2480751 (N.D. Ill. June 8, 2017) ……………………………………………………………..………………………… 130 Bowe v. Eau Claire Area Sch. Dist., 2017 WL 1458822 (W.D. Wisc. April 24, 2017)…………………………………………………………………………………………138

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Eighth Circuit J.M. v. Francis Howell Sch. Dist., 850 F.3d 944 (8th Cir. 2017). ……………….…… 144

K.G. v. Sergeant Bluff-Liton Cmty. Sch. Dist., 244 F.Supp. 3d 904 (N.D. Iowa 2017)…………………………………………………………………………………...…….150

Ninth Circuit L.D. v. L.A. Unified Sch. Dist., 2017 WL 1520417 (C.D. Cal. April 26, 2017) ……….172 P.H. v. Tehachapi Unified Sch. Dist., 2017 WL 3085020 (E.D. Cal. June 9, 2017)......................................................................................................................... 176

Paul G. v. Monterey Penninsula Unified Sch. Dist., 256 F.Supp.3d 1064(N.D. Cal. 2017) ………………………………………………………………………..….……………181

Hurd v. Clark Cnty. Sch. Dist., 2017 WL 4349231 (D. Nev. Sept. 29, 2017)…..…… 192 Williams v. Eugene Sch. Dist., 2017 WL 1282220 (D. Ore. March 10, 2017)..………201 Tenth Circuit

Gallegos v. Adams Cnty. Sch. Dist. 14, 2017 WL 4236320 (D. Col. Sept. 25, 2017) ……………………………………………………………………………………..… 203

Eleventh Circuit Prunty v. U.S. Dep’t of Educ., 2017 WL 1165090 (M.D. Fla. March 29, 2017)…….. 219

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Panelist Biographies

Laura D. Barbieri is Of Counsel to Advocates for Justice, a New York-based, non-profit, public interest law firm since 2012. There, she litigates major issues of civil rights, and racial and social inequity and injustice in public education. She now serves as Chair of the New York City Bar Association’s Standing Committee on Education and the Law. Prior to joining AFJ, Ms. Barbieri was a partner at Schoeman, Updike & Kaufman, LLP and an adjunct professor of law at Pace University School of Law. She also served as Chief, Charities, Trusts & Estates Bureau; as Deputy Commissioner of Investigations and Health Management Services at the NYC Department of Correction; as Assistant AG of the Office of the Attorney General of the State of New York; and, as Supervising ADA for Kings County DA.

Ms. Barbieri received her JD from Pace University School of Law and her Bachelor’s in Accounting from Franklin & Marshall College. She and her husband Zach have four children, and live in Washington Heights with their Labrador Retriever, Oswald.

Keren Farkas is a supervising attorney at Brooklyn Defender Services’ Education Advocacy Project. There, she works to address the educational needs of young people facing criminal convictions and families involved in abuse or neglect proceedings. Prior to joining BDS, Ms. Farkas worked at the New York Lawyers for the Public Interest, where she was an attorney in their Disability Justice program and worked primarily in education law. Before NYLPI, she represented parents in abuse and neglect proceedings at The Bronx Defenders. Ms. Farkas graduated from NYU School of Law in 2007. During law school, she interned with the Los Angeles Public Defender, The Door: A Center for Alternatives, the U.S. Attorney’s Office, Eastern District, and Fried, Frank, Harris, Shriver and Jacobson LLP. Additionally, she served as co-managing editor of the Review of Law and Social Change. She also holds a Master’s in Education from Harvard Graduate School of Education and a Bachelor’s degree in Economics from U.C. Berkeley. Joshua Feuer is Managing Attorney in the Office of General Counsel’s Special Education Unit at the NYC Department of Education, where he has worked for nearly eleven years. There, he manages a team of attorneys and paralegals in the investigation, litigation, and settlement of complex special education cases, including legal analysis, the development of trial and settlement strategies, the review of motions, and the creation of final closing memorandums of law. Prior to his work at the DOE, Mr. Feuer served as an Assistant District Attorney in the Bronx DA’s office for seven years, working in the Criminal Court, Grand Jury, and Trial Divisions. Mr. Feuer received his JD from The Benjamin N. Cardozo School of Law in 2000. During law school, he interned in the school’s Criminal Law Clinic, the Legal Aid Society’s Juvenile Rights Division, and The Innocence Project. He was a member of the Intensive Trial Advocacy Program and Criminal Law Society. He received his Bachelor’s degree in Government from Skidmore College.

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Kerry McGrath is a senior attorney at the Cuddy Law Firm. Her practice is focused on special education advocacy and litigation. Kerry is a graduate of Syracuse University (B.A., magna cum laude, Maxwell School of Public Citizenship), City College of New York (M.S., Ed.) and New York Law School (J.D.). Prior to beginning a career in special education law, Ms. McGrath was a New York City public school teacher. She taught English as a Second Language (ESL) at Intermediate School 52. As an NYLS law student, she was a member of the Justice Action Center, participated in the civil rights clinic and participated in the New York Law School Street Law Program. Neal H. Rosenberg has been representing parents of students with disabilities for more than forty years. Mr. Rosenberg completed his Bachelor of Arts from City College of New York and was awarded an honors degree. Mr. Rosenberg then continued his education at Rutgers Law School. After law school, Mr. Rosenberg received his Master of Science degree and a professional diploma in educational administration and supervision from Pace University. He achieved an honors degree while at Pace University. Mr. Rosenberg's professional experience includes being a teacher and intern in administration in the New York City public schools. Mr. Rosenberg is also a certified school principal. Prior to opening the Law Offices of Neal Howard Rosenberg, Mr. Rosenberg worked as a Board of Education Attorney for the City of New York in the Office of Counsel to the Chancellor. After leaving the Board of Education, Mr. Rosenberg worked for the State Education Department of the State of New York. While at the State Education Department, Mr. Rosenberg was involved in the codification of the laws and regulations for students with disabilities, in addition to developing program standards for students with disabilities. Upon completion of the codification of the laws and regulations project, Mr. Rosenberg opened his own private law practice and has been advocating on behalf of students with disabilities for more than thirty-five years. He is admitted to the New York State Bar and the Southern and Eastern District Federal Courts of New York.

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FRY AND ITS PROGENY

INTRODUCTIONAlthough the IDEA provides for judicial relief for IDEA violations, the path to court is

not an easy one. One obstacle is the IDEA’s exhaustion requirement. A party seeking judicialrelief for an IDEA violation must first exhaust the IDEA’s administrative remedies—an impartialhearing and state-level appeal if available—prior to seeking judicial relief. 20 U.S.C. §1415(i)(2) (2012). There are several exceptions to the exhaustion requirement: 1) the plaintiff ischallenging a statute, practice, or procedure that is contrary to law; 2) the administrative processdoes not offer the relief plaintiff seeks; 3) the administrative forum is not adequate to resolveplaintiff’s claims; 4) exhausting remedies would cause the child severe or irreparable harm; and5) the school did not notify the plaintiff of the availability of the administrative process.1

The second exception comes into play when a plaintiff files a claim for relief under a lawor statute that overlaps with the IDEA in that it prohibits discrimination but offers relief that isdifferent from what the IDEA allows, particularly monetary damages. Section 1415(l) of theIDEA establishes the rules for exhaustion in such situations:

Nothing in this Chapter shall be construed to restrict or limit the rights, procedures, andremedies available under the Constitution, the Americans with Disabilities Act of 1990,title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights ofchildren with disabilities, except that before the filing of a civil action under such lawsseeking relief that is also available under . . . [the IDEA, the plaintiff must exhaustadministrative remedies].

20 U.S.C. § 1415(l). In Fry v. Napoleon Cmty. Sch., 580 U.S. ___, 137 S.Ct. 743 (2017), the Supreme Court

considered the second exception to the exhaustion requirement. In Fry, the parents obtained atrained service dog named Wonder for their child with cerebral palsy, E.F., to help her liveindependently. Wonder helped E.F. with dropped items, her walker, doors, lights, removing hercoat, and using the toilet. The Frys asked E.F.’s school to allow Wonder to attend E.F.’skindergarten class, but the school refused, stating that E.F.’s IEP included a one-to-one aid toassist her during the day and the dog was thus not necessary. The Frys claimed this refusalviolated the ADA and Section 504, which prohibit discrimination against people withdisabilities. The lower courts dismissed their claims for failure to exhaust IDEA’s administrativeremedies. The Supreme Court vacated the judgment and remanded.

The Court ruled that in determining whether a plaintiff is “seeking relief” that is “alsoavailable” under the IDEA, a court must look at the substance—or gravamen—of the complaint. The Court identified two “clues” to identify the gravamen of the complaint. First, a court can asktwo hypothetical questions: 1) could the plaintiff have brought the same complaint against apublic facility that is not a school; and 2) could an adult at the school have brought the same

1See DEBORAH N. ARCHER & RICHARD D. MARSICO, SPECIAL EDUCATION LAW AND

PRACTICE 541 (Carolina Academic Press 2017).

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claim. If the answer to both questions is yes, that is a strong indicator that the gravamen is otherthan the IDEA. A second clue is the history of the proceedings, including, for example, whetherthe plaintiff initially utilized the IDEA’s administrative proceedings to resolve the dispute.

Because the court of appeals did not consider these factors, the court vacated its judgmentand remanded the case for reconsideration based on the Court’s decision.

S e veral courts have applied Fry since it was decided. The following is a list of such cases along with brief descriptions. A topical index follows the summaries.

CASE SUMMARIES

First Circuit

District of Massachusetts

Doucette v. Jacobs, 2018 WL 457173 (D. Mass. Jan. 17, 2018). The plaintiffs sued theschool district for violating the rights of their son, who has an IEP and had since left the district,under Section 504 and Section 1983. They alleged that the defendants’ refusal to allow their sonto have his service dog at school, their failure to evaluate him, and their inappropriate placementdeprived their son of a free appropriate education and caused severe physical and emotionalharm. Applying Fry, the court concluded that the gravamen of the plaintiffs’ complaint was thatthe defendants denied their son a FAPE, and dismissed the case. The court reasoned that theSection 504 and 1983 claims were so inextricably interwoven with claims relating to the child’sIEP that it was impossible to segregate them.

District of New Hampshire

A.R. v. Sch. Admin. Unit # 23, 2017 WL 4621587 (D.N.H. Oct. 12, 2017). Plaintiffsclaimed that the school district violated their son’s ADA and Section 504 rights by refusing topay for a handler for his service dog. The court found that even though the plaintiffs argued thatthey were not taking issue with the adequacy of their child’s education or his IEP, the complaintindicates that they are dissatisfied with the level of services he is receiving. The court also foundthat the child could not have brought this claim against an institution other than a school and thatan adult at the school could not have brought this claim.

Second Circuit

Southern District of New York

Condit v. Bedford Cent. Sch. Dist., 2017 WL 4685546 (S.D.N.Y. Oct. 16, 2017). Theparents claimed that the school violated their First Amendment rights by retaliating against themfor advocating on behalf of their son who has a disability and that the district violated hisconstitutional right to an equal education by failing to protect him. The court denied thedefendant’s motion to dismiss the failure to protect claim for failure to exhaust administrative

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remedies. The court ruled that gravamen of the complaint was that the school’s failure to protectthe child from bullying denied him an equal education, and not any dissatisfaction with thechild’s IEP.

Third Circuit

Court of Appeals

S.D. v. Haddon Heights Bd. of Educ., 2018 WL 636653 (3d Cir. Jan. 31, 2018). Thecourt dismissed the complaint for failure to exhaust. It agreed with the district court’scharacterization of the claim as educational in nature and that it thus falls within the IDEA’sexhaustion requirement.

Wellman v. Butler Area Sch. Dist., 2017 WL 6328988 (3d Cir. Nov. 7, 2017). Plaintiffsued the school district alleging that it mishandled a concussion that he suffered at school. Hebrought claims under Section 504, the ADA, and Section 1983 alleging violation of his equalprotection rights. Applying Fry, the court ruled that the gravamen of the complaint was thedistrict’s failure to provide appropriate accommodations for his condition, and dismissed the casefor failure to exhaust.

District of New Jersey

A.P. v. Allegro Sch., Inc., 2017 WL 4330363 (D.N.J. Sept. 29, 2017). The courtdismissed plaintiffs’ Section 504 claim because it alleged that the defendant failed to collect datarequired by the child’s IEP and thus could only be brought against a school.

Middle District of Pennsylvania

Rohrbaugh v. Lincoln Intermediate Unit, 255 F.Supp. 3d 589 (M.D. Pa. 2017). Theplaintiff claimed that the district violated her rights under Section 504 and the Due ProcessClause when it restrained her during lunch. Applying Fry, the court held that the gravamen ofthe complaint was an IDEA violation. The court identified several clues that suggested thenature of the claim was an IDEA violation: the plaintiff was identified as a child with a disabilityunder the IDEA; the restraint was improper because it was not authorized by the IEP; theplaintiff’s personal care assistant assigned pursuant to the IDEA was not properly trained; and thesecond amended complaint cited state regulations involving the IDEA. Answering Fry’squestions, the court stated that restraint cases are particular to children in schools and that otherinstitutions do not utilize such restraints.

Fourth Circuit

Eastern District of North Carolina

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A.H. v. Craven Cnty. Bd. of Educ., 2017 WL 3493612 (E.D.N.C. Aug 14, 2017). Theplaintiff alleged that the defendants violated his rights under the ADA and Section 504 bysubjecting him to a hostile educational environment and denying him equal access to education. The court dismissed the complaint for failure to exhaust administrative remedies. It ruled thatthe plaintiff’s complaints, including the school district’s failure to address independent livingskills and overuse and underuse of restraints, were intertwined with the districts’ attempts toimplement plaintiff’s IEP.

Sixth Circuit

Middle District of Tennessee

Sophie G. v. Wilson Cnty. Sch., 265 F.Supp. 3d 765 (M.D. Tenn. 2017). The child’smother sued the school district for violating Sophie’s Section 504 and ADA rights by refusing toadmit her to an after school program. The court dismissed the complaint for failure to exhaustadministrative remedies. It ruled that the answer to both of Fry’s questions was “no” and thatplaintiff had included a similar claim in a due process complaint it had previously filed againstthe district.

N.S. v. Tenn. Dep’t of Educ., Case No. 3:16-cv-0610 (M.D. Tenn. Apr. 12, 2017). Thecomplaint alleged that the defendants allowed misuse and overuse of restraints against childrenwith developmental disabilities, in violation of the ADA, the IDEA, and Section 504. Thedefendants moved to dismiss based on Fry. The court ruled that its pre-Fry decision thatplaintiffs were not required to exhaust on the basis that it would be futile was not affected by Frybecause its earlier decision was based on a different exception to the exhaustion requirement. Seventh Circuit

Northern District of Illinois

Considine-Brechon v. Dixon Pub. Sch. Dist. #170, 2017 WL 2480751 (N.D. Ill. June 8,2017). The court dismissed without prejudice plaintiff’s ADA and Section 504 claims on thegrounds that they were all related to the denial of a FAPE. The complaint alleged that the districtviolated several of the plaintiff’s IDEA procedural rights, denied her child a FAPE, and retaliatedagainst her for seeking to enforce her IDEA rights.

Western District of Wisconsin

Bowe v. Eau Claire Area Sch. Dist., 2017 WL 1458822 (W.D. Wisc. April 24, 2017). The plaintiff, who has autism, sued the school district, claiming that it was deliberatelyindifferent to the harassment and bullying he suffered, in violation of the ADA, Section 504,Title IX, and the Equal Protection Clause. The court denied the defendant’s motion to dismissfor failure to exhaust administrative remedies. Applying Fry, the court ruled that plaintiff could

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have brought his claim even if he did not have a disability and could have brought the EqualProtection claim even if he were not a student.

Eighth Circuit

Court of Appeals

J.M. v. Francis Howell Sch. Dist., 850 F.3d 944 (8th Cir. 2017). Plaintiff claimed that theschool unlawfully used isolation and restraints against her son in violation of the EqualProtection Clause, Section 1983, the ADA, and Section 504. Applying Fry, the Eighth Circuitaffirmed the dismissal of the complaint. It ruled that the gravamen of the complaint was anIDEA violation because the complaint alleged that the child’s IEP prohibited isolation andrestraint. The court also pointed out that the procedural history of the case supported its holdingbecause the plaintiff originally alleged that the isolation and restraint violated the IDEA.

Northern District of Iowa

K.G. v. Sergeant Bluff-Liton Cmty. Sch. Dist., 244 F.Supp. 3d 904 (N.D. Iowa 2017). Theplaintiff claimed that the school district violated his rights pursuant to the Fourth and FourteenthAmendments, the ADA, and Section 504 when his teacher dragged him across the floor. Thecourt denied the defendant’s motion to dismiss for failure to exhaust administrative remedies. The court examined the complaint and found that the gravamen of the complaint was not aviolation of the IDEA. The references in the complaint to the plaintiff receiving specialeducation services and that his teacher was a special education teacher were only for purposes ofidentification and only one of the twenty-nine paragraphs describing the factual allegationsreferred to the IDEA. Finally, the court ruled that plaintiff’s claims could have been broughtagainst any institution and by an adult at the school.

Ninth Circuit

Central District of California

L.D. v. L.A. Unified Sch. Dist., 2017 WL 1520417 (C.D. Cal. April 26, 2017). Theplaintiff filed claims pursuant to the ADA and Section 504. Applying Fry, the court dismissedthe case for failure to exhaust. The court stated that plaintiff’s claims that the school district didnot adequately address his behavioral issues and that as a result he could not access hiscurriculum could not have been brought against another institution or by an adult. The court alsocited the fact that the parents initially sought to resolve their complaint through an impartialhearing.

Eastern District of California

P.H. v. Tehachapi Unified Sch. Dist., 2017 WL 3085020 (E.D. Cal. June 9, 2017).

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Plaintiff, who suffers from multiple disabilities, sued her school district alleging that it violatedthe ADA and Section 504 when it tied her to a chair with a blanket and left her there for entireschool days over the course of two months. The district moved to dismiss for failure to exhaust. The court denied the motion. Analogizing this case to Fry, the court ruled that like Fry, this caseinvolves equal access to education, not the adequacy of special education services.

Northern District of California

Paul G. v. Monterey Peninsula Unified Sch. Dist., 256 F.Supp.3d 1064 (N.D. Cal. 2017). Plaintiff Paul G., who requires placement in a residential facility for people with autism ageseighteen to twenty-two, alleged that the defendants’ failure to provide such a facility in Californiaviolates Section 504 and the ADA. Applying Fry, the court dismissed the complaint for failureto exhaust. The court held that plaintiff’s claim could not exist outside of a school, that an adultat the school could not bring the case, and that plaintiff had previously attempted to invoke theIDEA to address his claim.

District of Nevada

Hurd v. Clark Cnty. Sch. Dist., 2017 WL 4349231 (D. Nev. Sept. 29, 2017). Theplaintiffs, who receive special education, alleged that the defendants subjected them to verbal andphysical abuse and failed to take action to prevent it, in violation of Section 1983. The courtdenied the defendants’ motion to dismiss for failure to exhaust. It ruled that the gravamen of theplaintiffs’ complaint was not a denial of FAPE because the actions plaintiffs complain of couldhave occurred in another public setting and involved adults.

District of Oregon

Williams v. Eugene Sch. Dist., 2017 WL 1282220 (D. Ore. March 10, 2017). The courtruled that Fry left intact the Ninth Circuit’s exhaustion standard, which is based on the relief theplaintiff seeks.

Tenth Circuit

District of Colorado

Gallegos v. Adams Cnty. Sch. Dist. 14, 2017 WL 4236320 (D. Col. Sept. 25, 2017). Plaintiffs’ complaint alleged that the school district failed to create a sufficient 504 plan for thechild in violation of the ADA and Section 504. The court dismissed the case for failure toexhaust. Although the court cited Fry, it did not explicitly rely on Fry’s test to grant the motion;instead, it relied on Tenth Circuit precedent to rule that exhaustion was required because theplaintiffs’ complaint was educational in nature.

Eleventh Circuit

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Middle District of Florida

Prunty v. U.S. Dep’t of Educ., 2017 WL 1165090 (M.D. Fla. March 29, 2017). The courtruled that the plaintiff was required to exhaust administrative remedies for his claim, which wasbased on a violation of the IDEA and had originally been brought as an administrativeproceeding that the plaintiff withdrew.

TOPICAL INDEX

After school programSophie G. v. Wilson Cnty. Sch., 265 F.Supp. 3d 765 (M.D. Tenn. 2017)

BullyingCondit v. Bedford Cent. Sch. Dist., 2017 WL 4685546 (S.D.N.Y. Oct. 16, 2017)Bowe v. Eau Claire Area Sch. Dist., 2017 WL 1458822 (W.D. Wisc. April 24, 2017)Hurd v. Clark Cnty. Sch. Dist., 2017 WL 4349231 (D. Nev. Sept. 29, 2017)

Corporal punishmentK.G. v. Sergeant Bluff-Liton Cmty. Sch. Dist., 244 F.Supp. 3d 904 (N.D. Iowa 2017)

FAPE (denial)A.H. v. Craven Cnty. Bd. of Educ., 2017 WL 3493612 (E.D.N.C. Aug 14, 2017)Considine-Brechon v. Dixon Pub. Sch. Dist. #170, 2017 WL 2480751 (N.D. Ill. June 8, 2017)L.D. v. L.A. Unified Sch. Dist., 2017 WL 1520417 (C.D. Cal. April 26, 2017)

IDEA violationPrunty v. U.S. Dep’t of Educ., 2017 WL 1165090 (M.D. Fla. March 29, 2017)

IEP (failure to implement)A.P. v. Allegro Sch., Inc., 2017 WL 4330363 (D.N.J. Sept. 29, 2017)

Personal injury Wellman v. Butler Area Sch. Dist., 2017 WL 6328988 (3d Cir. Nov. 7, 2017)

Residential placementPaul G. v. Monterey Peninsula Unified Sch. Dist., 256 F.Supp. 3d 1064 (N.D. Cal. 2017)

RestraintsRohrbaugh v. Lincoln Intermediate Unit, 255 F.Supp. 3d 589 (M.D. Pa. 2017)A.H. v. Craven Cnty. Bd. of Educ., 2017 WL 3493612 (E.D.N.C. Aug 14, 2017)N.S. v. Tenn. Dep’t of Educ., Case No. 3:16-cv-0610 (M.D. Tenn. Apr. 12, 2017)P.H. v. Tehachapi Unified Sch. Dist., 2017 WL 3085020 (E.D. Cal. June 9, 2017)J.M. v. Francis Howell Sch. Dist., 850 F.3d 944 (8th Cir. 2017)

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RetaliationCondit v. Bedford Cent. Sch. Dist., 2017 WL 4685546 (S.D.N.Y. Oct. 16, 2017)Considine-Brechon v. Dixon Pub. Sch. Dist. #170, 2017 WL 2480751 (N.D. Ill. June 8, 2017)

Service dogDoucette v. Jacobs, 2018 WL 457173 (D. Mass. Jan. 17, 2018)A.R. v. Sch. Admin. Unit # 23, 2017 WL 4621587 (D.N.H. Oct. 12, 2017)

504 planGallegos v. Adams Cnty. Sch. Dist. 14, 2017 WL 4236320 (D. Col. Sept. 25, 2017)

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743FRY v. NAPOLEON COMMUNITY SCHOOLSCite as 137 S.Ct. 743 (2017)

to make or use a patented product outsideof the United States.’’ 406 U.S., at 527, 92S.Ct. 1700. The new § 271(f) ‘‘expand[ed]the definition of infringement to includesupplying from the United States a patent-ed invention’s components,’’ as outlined insubsections (f)(1) and (f)(2). Microsoft,550 U.S., at 444–445, 127 S.Ct. 1746.

The effect of this provision was to fill agap in the enforceability of patent rightsby reaching components that are manufac-tured in the United States but assembledoverseas and that were beyond the reachof the statute in its prior formulation. Ourruling today comports with Congress’ in-tent. A supplier may be liable under§ 271(f)(1) for supplying from the UnitedStates all or a substantial portion of thecomponents (plural) of the invention, evenwhen those components are combinedabroad. The same is true even for a singlecomponent under § 271(f)(2) if it is espe-cially made or especially adapted for use inthe invention and not a staple article orcommodity. We are persuaded, however,that when as in this case a product is madeabroad and all components but a singlecommodity article are supplied fromabroad, this activity is outside the scope ofthe statute.

III

We hold that the phrase ‘‘substantialportion’’ in 35 U.S.C. § 271(f)(1) has aquantitative, not a qualitative, meaning.We hold further that § 271(f)(1) does notcover the supply of a single component of amulticomponent invention. The judgmentof the Court of Appeals for the FederalCircuit is therefore reversed, and the caseis remanded for further proceedings con-sistent with this opinion.

It is so ordered.

THE CHIEF JUSTICE took no part inthe decision of this case.

Justice ALITO, with whom JusticeTHOMAS joins, concurring in part andconcurring in the judgment.

I join all but Part II–C of the Court’sopinion. It is clear from the text of 35U.S.C. § 271(f) that Congress intended notonly to fill the gap created by DeepsouthPacking Co. v. Laitram Corp., 406 U.S.518, 92 S.Ct. 1700, 32 L.Ed.2d 273 (1972)—where all of the components of the inven-tion were manufactured in the UnitedStates, id., at 524, 92 S.Ct. 1700—but to goat least a little further. How much furtheris the question in this case, and the genesisof § 271(f) sheds no light on that question.

I note, in addition, that while the Courtholds that a single component cannot con-stitute a substantial portion of an inven-tion’s components for § 271(f)(1) purposes,I do not read the opinion to suggest thatany number greater than one is sufficient.In other words, today’s opinion establishesthat more than one component is neces-sary, but does not address how muchmore.

,

Stacy FRY, et vir, as next friendsof minor E.F., Petitioners

v.

NAPOLEON COMMUNITYSCHOOLS, et al.

No. 15–497.

Argued Oct. 31, 2016.

Decided Feb. 22, 2017.

Background: Parents sued local and re-gional school districts and principal, alleg-ing that they violated Title II of Americans

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744 137 SUPREME COURT REPORTER

with Disabilities Act (ADA) and Rehabili-tation Act when they refused to allowchild, who had cerebral palsy, to bringservice dog to school. The United StatesDistrict Court for the Eastern District ofMichigan, Lawrence P. Zatkoff, J., 2014WL 106624, granted defendants’ motion todismiss. Parents appealed. The UnitedStates Court of Appeals for the Sixth Cir-cuit, John M. Rogers, Circuit Judge, 788F.3d 622, affirmed. Certiorari was granted.

Holdings: The Supreme Court, JusticeKagan, held that:

(1) if, in a suit brought under a statuteother than the Individuals with Disabil-ities Education Act (IDEA), the reme-dy sought is not for the denial of a freeappropriate public education (FAPE),then exhaustion of the IDEA’s proce-dures is not required, abrogating Char-lie F. v. Board of Ed. of Skokie SchoolDist. 68, 98 F.3d 989, and

(2) to determine whether a plaintiff insuch a suit seeks relief for the denial ofa FAPE, a court should look to thegravamen of the plaintiff’s complaint.

Vacated and remanded.

Justice Alito filed opinion concurring inpart and concurring in the judgment, inwhich Justice Thomas joined.

1. Education O863An eligible child acquires a substan-

tive right to a free appropriate public edu-cation (FAPE) once a State accepts theIDEA’s financial assistance. Individualswith Disabilities Education Act, § 602(9),20 U.S.C.A. § 1401(9).

2. Education O863The free appropriate public education

(FAPE) requirement of the IDEA pro-vides the yardstick for measuring the ade-quacy of the education that a school offersto a child with a disability, and, under thatstandard, a child is entitled to meaningful

access to education based on her individualneeds. Individuals with Disabilities Edu-cation Act, § 615(f)(3)(E)(i), 20 U.S.C.A.§ 1415(f)(3)(E)(i).

3. Education O898(1)

A court in IDEA litigation may pro-vide a substantive remedy only when itdetermines that a school has denied a freeappropriate public education (FAPE). In-dividuals with Disabilities Education Act,§ 601 et seq., 20 U.S.C.A. § 1400 et seq.

4. Education O893

If, in a suit brought under a statuteother than the IDEA, the remedy soughtis not for the denial of a free appropriatepublic education (FAPE), then exhaustionof the IDEA’s procedures is not required;abrogating Charlie F. v. Board of Ed. ofSkokie School Dist. 68, 98 F.3d 989. Indi-viduals with Disabilities Education Act,§ 615(l ), 20 U.S.C.A. § 1415(l ).

5. Education O893

To determine whether a plaintiff in asuit brought under a statute other than theIDEA seeks relief for the denial of a freeappropriate public education (FAPE), suchthat the plaintiff is required to exhaustIDEA’s remedies, a court should look tothe crux, or the gravamen, of the plaintiff’scomplaint, setting aside any attempts atartful pleading. Individuals with Disabili-ties Education Act, § 615(l ), 20 U.S.C.A.§ 1415(l ).

6. Education O893

The examination of whether a plaintiffin a suit brought under a statute otherthan the IDEA seeks relief for the denialof a free appropriate public education(FAPE), such that the plaintiff is requiredto exhaust IDEA’s remedies, should con-sider substance, not surface; the use ornon-use of particular labels and terms isnot what matters. Individuals with Dis-

15


abilities Education Act, § 615(l ), 20U.S.C.A. § 1415(l ).

7. Education O893

The examination of whether a plaintiffin a suit brought under a statute otherthan the IDEA seeks relief for the denialof a free appropriate public education(FAPE), such that the plaintiff is requiredto exhaust IDEA’s remedies, does not rideon whether a complaint includes or omitsthe precise terms ‘‘FAPE’’ or ‘‘IEP’’ (indi-vidualized education program). Individu-als with Disabilities Education Act,§ 615(l ), 20 U.S.C.A. § 1415(l ).

8. Education O893

In addressing whether a complaintbrought under a statute other than theIDEA seeks relief for the denial of a freeappropriate public education (FAPE), suchthat the plaintiff is required to exhaustIDEA’s remedies, a court should attend tothe diverse means and ends of the statutescovering persons with disabilities, includ-ing the IDEA on the one hand, and theADA and Rehabilitation Act, most notably,on the other. Americans with DisabilitiesAct, § 2 et seq., 42 U.S.C.A. § 12101 etseq.; Individuals with Disabilities Edu-cation Act, § 615(l ), 20 U.S.C.A.§ 1415(l ); Rehabilitation Act of 1973, § 2et seq., 29 U.S.C.A. § 701 et seq.

9. Education O893

One clue to whether the gravamen ofa complaint against a school concerns thedenial of a free appropriate public edu-cation (FAPE), such that the plaintiff isrequired to exhaust IDEA’s remedies, orinstead addresses disability-based discrim-ination, can come from asking a pair ofhypothetical questions, which are, firstwhether the plaintiff could have broughtessentially the same claim if the allegedconduct had occurred at a public facilitythat was not a school, and, second, whether

an adult at the school could have pressedessentially the same grievance; when theanswer to those questions is yes, a com-plaint that does not expressly allege thedenial of a FAPE is also unlikely to betruly about that subject, but when theanswer is no, then the complaint probablydoes concern a FAPE, even if it does notexplicitly say so. Individuals with Disabili-ties Education Act, § 615(l ), 20 U.S.C.A.§ 1415(l ).

10. Education O893

A sign that the gravamen of a suit isthe denial of a free appropriate publiceducation (FAPE), such that the plaintiffis required to exhaust IDEA’s remedies,can emerge from the history of the pro-ceedings, and, in particular, a court mayconsider that a plaintiff has previously in-voked the IDEA’s formal procedures tohandle the dispute, thus starting to ex-haust the IDEA’s remedies before switch-ing midstream; a plaintiff’s initial choice topursue that process may suggest that sheis indeed seeking relief for the denial of aFAPE, but whether that is so depends onthe facts. Individuals with Disabilities Ed-ucation Act, § 615(l ), 20 U.S.C.A.§ 1415(l ).

11. Education O893

Court of Appeals applied wrong stan-dard for determining whether gravamen ofIDEA suit was denial of free appropriatepublic education (FAPE), such that par-ents would be required to exhaust IDEA’sremedies, when it asked whether child’salleged injuries were, broadly speaking,‘‘educational’’ in nature; such inquiry wasnot the same as asking whether gravamenof complaint charged, and sought relief for,denial of FAPE. Individuals with Disabili-ties Education Act, § 615(l ), 20 U.S.C.A.§ 1415(l ).

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Syllabus *

The Individuals with Disabilities Edu-cation Act (IDEA) offers federal funds toStates in exchange for a commitment tofurnish a ‘‘free appropriate public edu-cation’’ (FAPE) to children with certaindisabilities, 20 U.S.C. § 1412(a)(1)(A), andestablishes formal administrative proce-dures for resolving disputes between par-ents and schools concerning the provisionof a FAPE. Other federal statutes alsoprotect the interests of children with dis-abilities, including Title II of the Ameri-cans with Disabilities Act (ADA) and § 504of the Rehabilitation Act. In Smith v. Rob-inson, 468 U.S. 992, 104 S.Ct. 3457, 82L.Ed.2d 746, this Court considered theinteraction between those other laws andthe IDEA, holding that the IDEA was‘‘the exclusive avenue’’ through which achild with a disability could challenge theadequacy of his education. Id., at 1009,104 S.Ct. 3457. Congress responded bypassing the Handicapped Children’s Pro-tection Act of 1986, overturning Smith ’spreclusion of non-IDEA claims and addinga carefully defined exhaustion provision.Under that provision, a plaintiff bringingsuit under the ADA, the RehabilitationAct, or similar laws ‘‘seeking relief that isalso available under [the IDEA]’’ mustfirst exhaust the IDEA’s administrativeprocedures. § 1415(l ).

Petitioner E.F. is a child with a severeform of cerebral palsy; a trained servicedog named Wonder assists her with vari-ous daily life activities. When E.F.’s par-ents, petitioners Stacy and Brent Fry,sought permission for Wonder to join E.F.in kindergarten, officials at Ezra Eby Ele-mentary School refused. The officials rea-soned that the human aide provided aspart of E.F.’s individualized education pro-

gram rendered the dog superfluous. Inresponse, the Frys removed E.F. fromEzra Eby and began homeschooling her.They also filed a complaint with the De-partment of Education’s Office for CivilRights (OCR), claiming that the exclusionof E.F.’s service animal violated her rightsunder Title II and § 504. OCR agreed,and school officials invited E.F. to returnto Ezra Eby with Wonder. But the Frys,concerned about resentment from schoolofficials, instead enrolled E.F. in a differ-ent school that welcomed the service dog.The Frys then filed this suit in federalcourt against Ezra Eby’s local and region-al school districts and principal (collective-ly, the school districts), alleging that theyviolated Title II and § 504 and seekingdeclaratory and monetary relief. The Dis-trict Court granted the school districts’motion to dismiss the suit, holding that§ 1415(l ) required the Frys to first ex-haust the IDEA’s administrative proce-dures. The Sixth Circuit affirmed, reason-ing that § 1415(l ) applies whenever aplaintiff’s alleged harms are ‘‘educational’’in nature.

Held :1. Exhaustion of the IDEA’s admin-

istrative procedures is unnecessary wherethe gravamen of the plaintiff’s suit issomething other than the denial of theIDEA’s core guarantee of a FAPE. Pp.752 – 758.

(a) The language of § 1415(l ) com-pels exhaustion when a plaintiff seeks ‘‘re-lief’’ that is ‘‘available’’ under the IDEA.Establishing the scope of § 1415(l ), then,requires identifying the circumstances inwhich the IDEA enables a person to ob-tain redress or access a benefit. Thatinquiry immediately reveals the primacy ofa FAPE in the statutory scheme. The

* The syllabus constitutes no part of the opinionof the Court but has been prepared by theReporter of Decisions for the convenience of

the reader. See United States v. Detroit Tim-ber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.282, 50 L.Ed. 499.

17


IDEA’s stated purpose and specific com-mands center on ensuring a FAPE forchildren with disabilities. And the IDEA’sadministrative procedures test whether aschool has met this obligation: Any deci-sion by a hearing officer on a request forsubstantive relief ‘‘shall’’ be ‘‘based on adetermination of whether the child re-ceived a free appropriate public edu-cation.’’ § 1415(f)(3)(E)(i). Accordingly,§ 1415(l )’s exhaustion rule hinges onwhether a lawsuit seeks relief for the deni-al of a FAPE. If a lawsuit charges such adenial, the plaintiff cannot escape§ 1415(l ) merely by bringing the suit un-der a statute other than the IDEA. But ifthe remedy sought in a suit brought undera different statute is not for the denial of aFAPE, then exhaustion of the IDEA’s pro-cedures is not required. Pp. 752 – 755.

(b) In determining whether a plaintiffseeks relief for the denial of a FAPE, whatmatters is the gravamen of the plaintiff’scomplaint, setting aside any attempts atartful pleading. That inquiry makes cen-tral the plaintiff’s own claims, as § 1415(l )explicitly requires in asking whether a law-suit in fact ‘‘seeks’’ relief available underthe IDEA. But examination of a plaintiff’scomplaint should consider substance, notsurface: § 1415(l ) requires exhaustionwhen the gravamen of a complaint seeksredress for a school’s failure to provide aFAPE, even if not phrased or framed inprecisely that way. In addressing wheth-er a complaint fits that description, a courtshould attend to the diverse means andends of the statutes covering persons withdisabilities. The IDEA guarantees indi-vidually tailored educational services forchildren with disabilities, while Title II and§ 504 promise nondiscriminatory access topublic institutions for people with disabili-ties of all ages. That is not to deny someoverlap in coverage: The same conductmight violate all three statutes. But still,these statutory differences mean that a

complaint brought under Title II and§ 504 might instead seek relief for simplediscrimination, irrespective of the IDEA’sFAPE obligation. One clue to the grava-men of a complaint can come from askinga pair of hypothetical questions. First,could the plaintiff have brought essentiallythe same claim if the alleged conduct hadoccurred at a public facility that was not aschool? Second, could an adult at theschool have pressed essentially the samegrievance? When the answer to thosequestions is yes, a complaint that does notexpressly allege the denial of a FAPE isalso unlikely to be truly about that subject.But when the answer is no, then the com-plaint probably does concern a FAPE. Afurther sign of the gravamen of a suit canemerge from the history of the proceed-ings. Prior pursuit of the IDEA’s admin-istrative remedies may provide strong evi-dence that the substance of a plaintiff’sclaim concerns the denial of a FAPE, evenif the complaint never explicitly uses thatterm. Pp. 754 – 758.

2. This case is remanded to theCourt of Appeals for a proper analysis ofwhether the gravamen of E.F.’s complaintcharges, and seeks relief for, the denial ofa FAPE. The Frys’ complaint alleges onlydisability-based discrimination, withoutmaking any reference to the adequacy ofthe special education services E.F.’s schoolprovided. Instead, the Frys have main-tained that the school districts infringedE.F.’s right to equal access—even if theiractions complied in full with the IDEA’srequirements. But the possibility remainsthat the history of these proceedings mightsuggest something different. The partieshave not addressed whether the Frys ini-tially pursued the IDEA’s administrativeremedies, and the record is cloudy as tothe relevant facts. On remand, the courtbelow should establish whether (or to whatextent) the Frys invoked the IDEA’s dis-

18


pute resolution process before filing suit.And if the Frys started down that road,the court should decide whether their ac-tions reveal that the gravamen of theircomplaint is indeed the denial of a FAPE,thus necessitating further exhaustion. Pp.757 – 759.

788 F.3d 622, vacated and remanded.

KAGAN, J., delivered the opinion ofthe Court, in which ROBERTS, C.J., andKENNEDY, GINSBURG, BREYER, andSOTOMAYOR, JJ., joined. ALITO, J.,filed an opinion concurring in part andconcurring in the judgment, in whichTHOMAS, J., joined.

Samuel R. Bagenstos, Ann Arbor, MI,for Petitioners.

Roman Martinez, for the United Statesas amicus curiae, by special leave of theCourt, supporting Petitioners.

Neal K. Katyal, Washington, DC, forRespondents.

Samuel R. Bagenstos, Cooperating At-torney, American Civil Liberties Union,Fund of Michigan, Ann Arbor, MI, StevenR. Shapiro, American Civil Liberties Un-ion, Foundation, New York, NY, Jill M.Wheaton, James F. Hermon, Dykema Gos-sett PLLC, Ann Arbor, MI, Michael J.Steinberg, American Civil Liberties Union,Fund of Michigan, Detroit, MI, Susan P.Mizner, Claudia Center, American CivilLiberties Union, Foundation, San Francis-co, CA, for Petitioners.

Thomas P. Schmidt, Hogan Lovells USLLP, New York, NY, Timothy J. Mullins,Kenneth B. Chapie, Giarmarco, Mullins &Horton, P.C., Troy, MI, Neal Kumar Ka-tyal, Eugene A. Sokoloff, Mitchell P.Reich, Hogan Lovells US LLP, Washing-ton, DC, for Respondents.

For U.S. Supreme Court briefs, see:

2016 WL 4473465 (Pet.Brief)

2016 WL 5667526 (Resp.Brief)

2016 WL 6216131 (Reply.Brief)

Justice KAGAN delivered the opinion ofthe Court.

The Individuals with Disabilities Edu-cation Act (IDEA or Act), 84 Stat. 175, asamended, 20 U.S.C. § 1400 et seq., ensuresthat children with disabilities receive need-ed special education services. One of itsprovisions, § 1415(l ), addresses the Act’srelationship with other laws protectingthose children. Section 1415(l ) makesclear that nothing in the IDEA ‘‘restrict[s]or limit[s] the rights [or] remedies’’ thatother federal laws, including antidiscrimi-nation statutes, confer on children withdisabilities. At the same time, the sectionstates that if a suit brought under such alaw ‘‘seek[s] relief that is also availableunder’’ the IDEA, the plaintiff must firstexhaust the IDEA’s administrative proce-dures. In this case, we consider the scopeof that exhaustion requirement. We holdthat exhaustion is not necessary when thegravamen of the plaintiff’s suit is some-thing other than the denial of the IDEA’score guarantee—what the Act calls a ‘‘freeappropriate public education.’’§ 1412(a)(1)(A).

I

A

[1] The IDEA offers federal funds toStates in exchange for a commitment: tofurnish a ‘‘free appropriate public edu-cation’’—more concisely known as aFAPE—to all children with certain physi-cal or intellectual disabilities. Ibid.; see§ 1401(3)(A)(i) (listing covered disabilities).As defined in the Act, a FAPE comprises‘‘special education and related services’’—both ‘‘instruction’’ tailored to meet a child’s‘‘unique needs’’ and sufficient ‘‘supportiveservices’’ to permit the child to benefit

19


from that instruction. §§ 1401(9), (26),(29); see Board of Ed. of Hendrick Hud-son Central School Dist., Westchester Cty.v. Rowley, 458 U.S. 176, 203, 102 S.Ct.3034, 73 L.Ed.2d 690 (1982). An eligiblechild, as this Court has explained, acquiresa ‘‘substantive right’’ to such an educationonce a State accepts the IDEA’s financialassistance. Smith v. Robinson, 468 U.S.992, 1010, 104 S.Ct. 3457, 82 L.Ed.2d 746(1984).

Under the IDEA, an ‘‘individualized ed-ucation program,’’ called an IEP for short,serves as the ‘‘primary vehicle’’ for provid-ing each child with the promised FAPE.Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct.592, 98 L.Ed.2d 686 (1988); see § 1414(d).(Welcome to—and apologies for—the acro-nymic world of federal legislation.) Craft-ed by a child’s ‘‘IEP Team’’—a group ofschool officials, teachers, and parents—theIEP spells out a personalized plan to meetall of the child’s ‘‘educational needs.’’§§ 1414(d)(1)(A)(i)(II)(bb), (d)(1)(B). Mostnotably, the IEP documents the child’scurrent ‘‘levels of academic achievement,’’specifies ‘‘measurable annual goals’’ forhow she can ‘‘make progress in the generaleducation curriculum,’’ and lists the ‘‘spe-cial education and related services’’ to beprovided so that she can ‘‘advance appro-priately toward [those] goals.’’§§ 1414(d)(1)(A)(i)(I), (II), (IV)(aa).

Because parents and school representa-tives sometimes cannot agree on such is-sues, the IDEA establishes formal proce-dures for resolving disputes. To begin, adissatisfied parent may file a complaint asto any matter concerning the provision of aFAPE with the local or state educationalagency (as state law provides). See§ 1415(b)(6). That pleading generallytriggers a ‘‘[p]reliminary meeting’’ involv-ing the contending parties,§ 1415(f)(1)(B)(i); at their option, the par-ties may instead (or also) pursue a full-

fledged mediation process, see § 1415(e).Assuming their impasse continues, thematter proceeds to a ‘‘due process hear-ing’’ before an impartial hearing officer.§ 1415(f)(1)(A); see § 1415(f)(3)(A)(i).Any decision of the officer granting sub-stantive relief must be ‘‘based on a deter-mination of whether the child received a[FAPE].’’ § 1415(f)(3)(E)(i). If the hear-ing is initially conducted at the local level,the ruling is appealable to the state agen-cy. See § 1415(g). Finally, a parent un-happy with the outcome of the administra-tive process may seek judicial review byfiling a civil action in state or federal court.See § 1415(i)(2)(A).

Important as the IDEA is for childrenwith disabilities, it is not the only federalstatute protecting their interests. Of par-ticular relevance to this case are two anti-discrimination laws—Title II of the Ameri-cans with Disabilities Act (ADA), 42 U.S.C.§ 12131 et seq., and § 504 of the Rehabili-tation Act, 29 U.S.C. § 794—which coverboth adults and children with disabilities,in both public schools and other settings.Title II forbids any ‘‘public entity’’ fromdiscriminating based on disability; Section504 applies the same prohibition to anyfederally funded ‘‘program or activity.’’ 42U.S.C. §§ 12131–12132; 29 U.S.C.§ 794(a). A regulation implementing TitleII requires a public entity to make ‘‘rea-sonable modifications’’ to its ‘‘policies,practices, or procedures’’ when necessaryto avoid such discrimination. 28 C.F.R.§ 35.130(b)(7) (2016); see, e.g., Alboniga v.School Bd. of Broward Cty., 87 F.Supp.3d1319, 1345 (S.D.Fla.2015) (requiring an ac-commodation to permit use of a serviceanimal under Title II). In similar vein,courts have interpreted § 504 as demand-ing certain ‘‘reasonable’’ modifications toexisting practices in order to ‘‘accommo-date’’ persons with disabilities. Alexanderv. Choate, 469 U.S. 287, 299–300, 105 S.Ct.712, 83 L.Ed.2d 661 (1985); see, e.g., Sulli-

20


van v. Vallejo City Unified School Dist.,731 F.Supp. 947, 961–962 (E.D.Cal.1990)(requiring an accommodation to permit useof a service animal under § 504). Andboth statutes authorize individuals to seekredress for violations of their substantiveguarantees by bringing suits for injunctiverelief or money damages. See 29 U.S.C.§ 794a(a)(2); 42 U.S.C. § 12133.

This Court first considered the interac-tion between such laws and the IDEA inSmith v. Robinson, 468 U.S. 992, 104 S.Ct.3457, 82 L.Ed.2d 746.1 The plaintiffsthere sought ‘‘to secure a ‘free appropriatepublic education’ for [their] handicappedchild.’’ Id., at 994, 104 S.Ct. 3457. Butinstead of bringing suit under the IDEAalone, they appended ‘‘virtually identical’’claims (again alleging the denial of a ‘‘freeappropriate public education’’) under § 504of the Rehabilitation Act and the Four-teenth Amendment’s Equal ProtectionClause. Id., at 1009, 104 S.Ct. 3457; seeid., at 1016, 104 S.Ct. 3457. The Courtheld that the IDEA altogether foreclosedthose additional claims: With its ‘‘compre-hensive’’ and ‘‘carefully tailored’’ provi-sions, the Act was ‘‘the exclusive avenue’’through which a child with a disability (orhis parents) could challenge the adequacyof his education. Id., at 1009, 104 S.Ct.3457; see id., at 1013, 1016, 1021, 104 S.Ct.3457.

Congress was quick to respond. In theHandicapped Children’s Protection Act of1986, 100 Stat. 796, it overturned Smith ’spreclusion of non-IDEA claims while alsoadding a carefully defined exhaustion re-quirement. Now codified at 20 U.S.C.§ 1415(l ), the relevant provision of thatstatute reads:

‘‘Nothing in [the IDEA] shall be con-strued to restrict or limit the rights,

procedures, and remedies available un-der the Constitution, the [ADA], title Vof the Rehabilitation Act [including§ 504], or other Federal laws protectingthe rights of children with disabilities,except that before the filing of a civilaction under such laws seeking reliefthat is also available under [the IDEA],the [IDEA’s administrative procedures]shall be exhausted to the same extent aswould be required had the action beenbrought under [the IDEA].’’

The first half of § 1415(l ) (up until ‘‘exceptthat’’) ‘‘reaffirm[s] the viability’’ of federalstatutes like the ADA or RehabilitationAct ‘‘as separate vehicles,’’ no less integralthan the IDEA, ‘‘for ensuring the rights ofhandicapped children.’’ H.R.Rep. No. 99–296, p. 4 (1985); see id., at 6. According tothat opening phrase, the IDEA does notprevent a plaintiff from asserting claimsunder such laws even if, as in Smith itself,those claims allege the denial of an appro-priate public education (much as an IDEAclaim would). But the second half of§ 1415(l ) (from ‘‘except that’’ onward) im-poses a limit on that ‘‘anything goes’’ re-gime, in the form of an exhaustion provi-sion. According to that closing phrase, aplaintiff bringing suit under the ADA, theRehabilitation Act, or similar laws must incertain circumstances—that is, when‘‘seeking relief that is also available under’’the IDEA—first exhaust the IDEA’s ad-ministrative procedures. The reach ofthat requirement is the issue in this case.

B

Petitioner E.F. is a child with a severeform of cerebral palsy, which ‘‘significantlylimits her motor skills and mobility.’’ App.

1. At the time (and until 1990), the IDEA wascalled the Education of the Handicapped Act,or EHA. See § 901(a), 104 Stat. 1141–1142

(renaming the statute). To avoid confusion—and acronym overload—we refer throughoutthis opinion only to the IDEA.

21


to Brief in Opposition 6, Complaint ¶ 19.2

When E.F. was five years old, her par-ents—petitioners Stacy and Brent Fry—obtained a trained service dog for her, asrecommended by her pediatrician. Thedog, a goldendoodle named Wonder,‘‘help[s E.F.] to live as independently aspossible’’ by assisting her with various lifeactivities. Id., at 2, ¶ 3. In particular,Wonder aids E.F. by ‘‘retrieving droppeditems, helping her balance when she usesher walker, opening and closing doors,turning on and off lights, helping her takeoff her coat, [and] helping her transfer toand from the toilet.’’ Id., at 7, ¶ 27.

But when the Frys sought permissionfor Wonder to join E.F. in kindergarten,officials at Ezra Eby Elementary Schoolrefused the request. Under E.F.’s exist-ing IEP, a human aide provided E.F. withone-on-one support throughout the day;that two-legged assistance, the school offi-cials thought, rendered Wonder superflu-ous. In the words of one administrator,Wonder should be barred from Ezra Ebybecause all of E.F.’s ‘‘physical and aca-demic needs [were] being met through theservices/programs/accommodations’’ thatthe school had already agreed to. Id., at8, ¶ 33. Later that year, the school offi-cials briefly allowed Wonder to accompanyE.F. to school on a trial basis; but eventhen, ‘‘the dog was required to remain inthe back of the room during classes, andwas forbidden from assisting [E.F.] withmany tasks he had been specificallytrained to do.’’ Ibid., ¶ 35. And when thetrial period concluded, the administratorsagain informed the Frys that Wonder wasnot welcome. As a result, the Frys re-moved E.F. from Ezra Eby and beganhomeschooling her.

In addition, the Frys filed a complaintwith the U.S. Department of Education’sOffice for Civil Rights (OCR), chargingthat Ezra Eby’s exclusion of E.F.’s serviceanimal violated her rights under Title II ofthe ADA and § 504 of the RehabilitationAct. Following an investigation, OCRagreed. The office explained in its deci-sion letter that a school’s obligations underthose statutes go beyond providing edu-cational services: A school could offer aFAPE to a child with a disability but stillrun afoul of the laws’ ban on discrimina-tion. See App. 30–32. And here, OCRfound, Ezra Eby had indeed violated thatban, even if its use of a human aide satis-fied the FAPE standard. See id., at 35–36. OCR analogized the school’s conductto ‘‘requir[ing] a student who uses a wheel-chair to be carried’’ by an aide or ‘‘re-quir[ing] a blind student to be led [aroundby a] teacher’’ instead of permitting him touse a guide dog or cane. Id., at 35. Re-gardless whether those—or Ezra Eby’s—policies denied a FAPE, they violated TitleII and § 504 by discriminating againstchildren with disabilities. See id., at 35–36.

In response to OCR’s decision, schoolofficials at last agreed that E.F. couldcome to school with Wonder. But aftermeeting with Ezra Eby’s principal, theFrys became concerned that the schooladministration ‘‘would resent [E.F.] andmake her return to school difficult.’’ App.to Brief in Opposition 10, ¶ 48. According-ly, the Frys found a different public school,in a different district, where administra-tors and teachers enthusiastically receivedboth E.F. and Wonder.

CThe Frys then filed this suit in federal

court against the local and regional school

2. Because this case comes to us on review ofa motion to dismiss E.F.’s suit, we accept astrue all facts pleaded in her complaint. See

Leatherman v. Tarrant County Narcotics Intel-ligence and Coordination Unit, 507 U.S. 163,164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993).

22


districts in which Ezra Eby is located,along with the school’s principal (collective-ly, the school districts). The complaintalleged that the school districts violatedTitle II of the ADA and § 504 of theRehabilitation Act by ‘‘denying [E.F.]equal access’’ to Ezra Eby and its pro-grams, ‘‘refus[ing] to reasonably accommo-date’’ E.F.’s use of a service animal, andotherwise ‘‘discriminat[ing] against [E.F.]as a person with disabilities.’’ Id., at 15,¶ 68, 17–18, ¶¶ 82–83. According to thecomplaint, E.F. suffered harm as a resultof that discrimination, including ‘‘emotionaldistress and pain, embarrassment, [and]mental anguish.’’ Id., at 11–12, ¶ 51. Intheir prayer for relief, the Frys sought adeclaration that the school districts hadviolated Title II and § 504, along withmoney damages to compensate for E.F.’sinjuries.

The District Court granted the schooldistricts’ motion to dismiss the suit, hold-ing that § 1415(l ) required the Frys tofirst exhaust the IDEA’s administrativeprocedures. See App. to Pet. for Cert. 50.A divided panel of the Court of Appeals forthe Sixth Circuit affirmed on the sameground. In that court’s view, § 1415(l )applies if ‘‘the injuries [alleged in a suit]relate to the specific substantive protec-tions of the IDEA.’’ 788 F.3d 622, 625(2015). And that means, the court contin-ued, that exhaustion is necessary whenever‘‘the genesis and the manifestations’’ of thecomplained-of harms were ‘‘educational’’ innature. Id., at 627 (quoting Charlie F. v.

Board of Ed. of Skokie School Dist. 68, 98F.3d 989, 993 (C.A.7 1996)). On that un-derstanding of § 1415(l ), the Sixth Circuitheld, the Frys’ suit could not proceed:Because the harms to E.F. were generally‘‘educational’’—most notably, the courtreasoned, because ‘‘Wonder’s absence hurther sense of independence and social confi-dence at school’’—the Frys had to exhaustthe IDEA’s procedures. 788 F.3d, at 627.Judge Daughtrey dissented, emphasizingthat in bringing their Title II and § 504claims, the Frys ‘‘did not allege the denialof a FAPE’’ or ‘‘seek to modify [E.F.’s]IEP in any way.’’ Id., at 634.

We granted certiorari to address confu-sion in the courts of appeals as to thescope of § 1415(l )’s exhaustion require-ment. 579 U.S. ––––, 136 S.Ct. 2540, 195L.Ed.2d 867 (2016).3 We now vacate theSixth Circuit’s decision.

II

Section 1415(l ) requires that a plaintiffexhaust the IDEA’s procedures before fil-ing an action under the ADA, the Rehabili-tation Act, or similar laws when (but onlywhen) her suit ‘‘seek[s] relief that is alsoavailable’’ under the IDEA. We first holdthat to meet that statutory standard, a suitmust seek relief for the denial of a FAPE,because that is the only ‘‘relief’’ the IDEAmakes ‘‘available.’’ We next conclude thatin determining whether a suit indeed‘‘seeks’’ relief for such a denial, a courtshould look to the substance, or gravamen,of the plaintiff’s complaint.4

3. See Payne v. Peninsula School Dist., 653F.3d 863, 874 (C.A.9 2011) (en banc) (cata-loguing different Circuits’ understandings of§ 1415(l )). In particular, the Ninth Circuithas criticized an approach similar to theSixth Circuit’s for ‘‘treat[ing] § 1415(l ) as aquasi-preemption provision, requiring admin-istrative exhaustion for any case that fallswithin the general ‘field’ of educating dis-abled students.’’ Id., at 875.

4. In reaching these conclusions, we leave foranother day a further question about themeaning of § 1415(l ): Is exhaustion requiredwhen the plaintiff complains of the denial of aFAPE, but the specific remedy she requests—here, money damages for emotional distress—is not one that an IDEA hearing officer mayaward? The Frys, along with the SolicitorGeneral, say the answer is no. See ReplyBrief 2–3; Brief for United States as Amicus

23


A

In this Court, the parties have reachedsubstantial agreement about what ‘‘relief’’the IDEA makes ‘‘available’’ for childrenwith disabilities—and about how the SixthCircuit went wrong in addressing thatquestion. The Frys maintain that such achild can obtain remedies under the IDEAfor decisions that deprive her of a FAPE,but none for those that do not. So in theFrys’ view, § 1415(l )’s exhaustion require-ment can come into play only when a suitconcerns the denial of a FAPE—and not,as the Sixth Circuit held, when it merelyhas some articulable connection to the edu-cation of a child with a disability. SeeReply Brief 13–15. The school districts,for their part, also believe that the SixthCircuit’s exhaustion standard ‘‘goes toofar’’ because it could mandate exhaustionwhen a plaintiff is ‘‘seeking relief that isnot in substance available’’ under theIDEA. Brief for Respondents 30. And inparticular, the school districts acknowledgethat the IDEA makes remedies availableonly in suits that ‘‘directly implicate[ ]’’ aFAPE—so that only in those suits can§ 1415(l ) apply. Tr. of Oral Arg. 46. Forthe reasons that follow, we agree with theparties’ shared view: The only relief thatan IDEA officer can give—hence the thinga plaintiff must seek in order to trigger§ 1415(l )’s exhaustion rule—is relief forthe denial of a FAPE.

We begin, as always, with the statutorylanguage at issue, which (at risk of repeti-tion) compels exhaustion when a plaintiffseeks ‘‘relief’’ that is ‘‘available’’ under theIDEA. The ordinary meaning of ‘‘relief’’ inthe context of a lawsuit is the ‘‘redress[ ]or benefit’’ that attends a favorable judg-

ment. Black’s Law Dictionary 1161 (5thed. 1979). And such relief is ‘‘available,’’as we recently explained, when it is ‘‘acces-sible or may be obtained.’’ Ross v. Blake,578 U.S. ––––, ––––, 136 S.Ct. 1850, 1858,195 L.Ed.2d 117 (2016) (quoting Webster’sThird New International Dictionary 150(1993)). So to establish the scope of§ 1415(l ), we must identify the circum-stances in which the IDEA enables a per-son to obtain redress (or, similarly, to ac-cess a benefit).

[2] That inquiry immediately revealsthe primacy of a FAPE in the statutoryscheme. In its first section, the IDEAdeclares as its first purpose ‘‘to ensurethat all children with disabilities haveavailable to them a free appropriate publiceducation.’’ § 1400(d)(1)(A). That princi-pal purpose then becomes the Act’s princi-pal command: A State receiving federalfunding under the IDEA must make suchan education ‘‘available to all children withdisabilities.’’ § 1412(a)(1)(A). The guaran-tee of a FAPE to those children gives riseto the bulk of the statute’s more specificprovisions. For example, the IEP—‘‘thecenterpiece of the statute’s education de-livery system’’—serves as the ‘‘vehicle’’ or‘‘means’’ of providing a FAPE. Honig, 484U.S., at 311, 108 S.Ct. 592; Rowley, 458U.S., at 181, 102 S.Ct. 3034; see supra, at746 – 747. And finally, as all the abovesuggests, the FAPE requirement providesthe yardstick for measuring the adequacyof the education that a school offers to achild with a disability: Under that stan-dard, this Court has held, a child is enti-tled to ‘‘meaningful’’ access to education

Curiae 16. But resolution of that questionmight not be needed in this case because theFrys also say that their complaint is not aboutthe denial of a FAPE, see Reply Brief 17—and, as later explained, we must remand that

distinct issue to the Sixth Circuit, see infra, at757 – 759. Only if that court rejects the Frys’view of their lawsuit, using the analysis we setout below, will the question about the effect oftheir request for money damages arise.

24


based on her individual needs. Rowley,458 U.S., at 192, 102 S.Ct. 3034.5

[3] The IDEA’s administrative proce-dures test whether a school has met thatobligation—and so center on the Act’sFAPE requirement. As noted earlier, anydecision by a hearing officer on a requestfor substantive relief ‘‘shall’’ be ‘‘based ona determination of whether the child re-ceived a free appropriate public edu-cation.’’ § 1415(f)(3)(E)(i); see supra, at747.6 Or said in Latin: In the IDEA’sadministrative process, a FAPE denial isthe sine qua non. Suppose that a parent’scomplaint protests a school’s failure to pro-vide some accommodation for a child witha disability. If that accommodation isneeded to fulfill the IDEA’s FAPE re-quirement, the hearing officer must orderrelief. But if it is not, he cannot—eventhough the dispute is between a child witha disability and the school she attends.There might be good reasons, unrelated toa FAPE, for the school to make the re-quested accommodation. Indeed, anotherfederal law (like the ADA or RehabilitationAct) might require the accommodation onone of those alternative grounds. See in-fra, at 754 – 755. But still, the hearingofficer cannot provide the requested relief.His role, under the IDEA, is to enforce thechild’s ‘‘substantive right’’ to a FAPE.Smith, 468 U.S., at 1010, 104 S.Ct. 3457.And that is all.7

[4] For that reason, § 1415(l )’s ex-haustion rule hinges on whether a lawsuitseeks relief for the denial of a free appro-priate public education. If a lawsuitcharges such a denial, the plaintiff cannotescape § 1415(l ) merely by bringing hersuit under a statute other than theIDEA—as when, for example, the plain-tiffs in Smith claimed that a school’s fail-ure to provide a FAPE also violated theRehabilitation Act.8 Rather, that plaintiffmust first submit her case to an IDEAhearing officer, experienced in addressingexactly the issues she raises. But if, in asuit brought under a different statute, theremedy sought is not for the denial of aFAPE, then exhaustion of the IDEA’s pro-cedures is not required. After all, theplaintiff could not get any relief from thoseprocedures: A hearing officer, as just ex-plained, would have to send her away emp-ty-handed. And that is true even whenthe suit arises directly from a school’streatment of a child with a disability—andso could be said to relate in some way toher education. A school’s conduct towardsuch a child—say, some refusal to make anaccommodation—might injure her in waysunrelated to a FAPE, which are addressedin statutes other than the IDEA. A com-plaint seeking redress for those otherharms, independent of any FAPE denial,is not subject to § 1415(l )’s exhaustion

5. A case now before this Court, Endrew F. v.Douglas County School Dist. RE–1, No. 15–827, presents unresolved questions about theprecise content of the FAPE standard.

6. Without finding the denial of a FAPE, ahearing officer may do nothing more thanorder a school district to comply with theAct’s various procedural requirements, see§ 1415(f)(3)(E)(iii)—for example, by allowingparents to ‘‘examine all records’’ relating totheir child, § 1415(b)(1).

7. Similarly, a court in IDEA litigation mayprovide a substantive remedy only when it

determines that a school has denied a FAPE.See School Comm. of Burlington v. Depart-ment of Ed. of Mass., 471 U.S. 359, 369, 105S.Ct. 1996, 85 L.Ed.2d 385 (1985). Withoutsuch a finding, that kind of relief is (onceagain) unavailable under the Act.

8. Once again, we do not address here (oranywhere else in this opinion) a case in whicha plaintiff, although charging the denial of aFAPE, seeks a form of remedy that an IDEAofficer cannot give—for example, as in theFrys’ complaint, money damages for resultingemotional injury. See n. 4, supra.

25


rule because, once again, the only ‘‘relief’’the IDEA makes ‘‘available’’ is relief forthe denial of a FAPE.

B

[5] Still, an important question re-mains: How is a court to tell when aplaintiff ‘‘seeks’’ relief for the denial of aFAPE and when she does not? Here, too,the parties have found some commonground: By looking, they both say, to the‘‘substance’’ of, rather than the labels usedin, the plaintiff’s complaint. Brief for Re-spondents 20; Reply Brief 7–8. And here,too, we agree with that view: What mat-ters is the crux—or, in legal-speak, thegravamen—of the plaintiff’s complaint, set-ting aside any attempts at artful pleading.

That inquiry makes central the plain-tiff’s own claims, as § 1415(l ) explicitlyrequires. The statutory language askswhether a lawsuit in fact ‘‘seeks’’ reliefavailable under the IDEA—not, as astricter exhaustion statute might, whetherthe suit ‘‘could have sought’’ relief avail-able under the IDEA (or, what is much thesame, whether any remedies ‘‘are’’ avail-able under that law). See Brief for UnitedStates as Amicus Curiae 20 (contrasting§ 1415(l ) with the exhaustion provision inthe Prison Litigation Reform Act, 42U.S.C. § 1997e(a)). In effect, § 1415(l )treats the plaintiff as ‘‘the master of theclaim’’: She identifies its remedial basis—and is subject to exhaustion or not basedon that choice. Caterpillar Inc. v.Williams, 482 U.S. 386, 392, and n. 7, 107S.Ct. 2425, 96 L.Ed.2d 318 (1987). A courtdeciding whether § 1415(l ) applies musttherefore examine whether a plaintiff’scomplaint—the principal instrument bywhich she describes her case—seeks relieffor the denial of an appropriate education.

[6, 7] But that examination should con-sider substance, not surface. The use (ornon-use) of particular labels and terms is

not what matters. The inquiry, for exam-ple, does not ride on whether a complaintincludes (or, alternatively, omits) the pre-cise words(?) ‘‘FAPE’’ or ‘‘IEP.’’ After all,§ 1415(l )’s premise is that the plaintiff issuing under a statute other than theIDEA, like the Rehabilitation Act; in sucha suit, the plaintiff might see no need touse the IDEA’s distinctive language—evenif she is in essence contesting the adequa-cy of a special education program. Andstill more critically, a ‘‘magic words’’ ap-proach would make § 1415(l )’s exhaustionrule too easy to bypass. Just last Term, asimilar worry led us to hold that a court’sjurisdiction under the Foreign SovereignImmunities Act turns on the ‘‘gravamen,’’or ‘‘essentials,’’ of the plaintiff’s suit. OBBPersonenverkehr AG v. Sachs, 577 U.S.––––, ––––, ––––, ––––, 136 S.Ct. 390, 395,396, 397, 193 L.Ed.2d 269 (2015). ‘‘[A]nyother approach,’’ we explained, ‘‘would al-low plaintiffs to evade the Act’s restric-tions through artful pleading.’’ Id., at––––, 136 S.Ct., at 396. So too here. Sec-tion 1415(l ) is not merely a pleading hur-dle. It requires exhaustion when the gra-vamen of a complaint seeks redress for aschool’s failure to provide a FAPE, even ifnot phrased or framed in precisely thatway.

[8] In addressing whether a complaintfits that description, a court should attendto the diverse means and ends of the stat-utes covering persons with disabilities—the IDEA on the one hand, the ADA andRehabilitation Act (most notably) on theother. The IDEA, of course, protects only‘‘children’’ (well, really, adolescents too)and concerns only their schooling.§ 1412(a)(1)(A). And as earlier noted, thestatute’s goal is to provide each child withmeaningful access to education by offeringindividualized instruction and related ser-vices appropriate to her ‘‘unique needs.’’§ 1401(29); see Rowley, 458 U.S., at 192,

26


198, 102 S.Ct. 3034; supra, at 753 – 754.By contrast, Title II of the ADA and § 504of the Rehabilitation Act cover people withdisabilities of all ages, and do so bothinside and outside schools. And thosestatutes aim to root out disability-baseddiscrimination, enabling each covered per-son (sometimes by means of reasonableaccommodations) to participate equally toall others in public facilities and federallyfunded programs. See supra, at 749 – 750.In short, the IDEA guarantees individual-ly tailored educational services, while TitleII and § 504 promise non-discriminatoryaccess to public institutions. That is not todeny some overlap in coverage: The sameconduct might violate all three statutes—which is why, as in Smith, a plaintiff mightseek relief for the denial of a FAPE underTitle II and § 504 as well as the IDEA.But still, the statutory differences just dis-cussed mean that a complaint brought un-der Title II and § 504 might instead seekrelief for simple discrimination, irrespec-tive of the IDEA’s FAPE obligation.

[9] One clue to whether the gravamenof a complaint against a school concernsthe denial of a FAPE, or instead addressesdisability-based discrimination, can comefrom asking a pair of hypothetical ques-tions. First, could the plaintiff havebrought essentially the same claim if thealleged conduct had occurred at a publicfacility that was not a school—say, a publictheater or library? And second, could anadult at the school—say, an employee orvisitor—have pressed essentially the samegrievance? When the answer to thosequestions is yes, a complaint that does notexpressly allege the denial of a FAPE is

also unlikely to be truly about that subject;after all, in those other situations there isno FAPE obligation and yet the samebasic suit could go forward. But when theanswer is no, then the complaint probablydoes concern a FAPE, even if it does notexplicitly say so; for the FAPE require-ment is all that explains why only a childin the school setting (not an adult in thatsetting or a child in some other) has aviable claim.

Take two contrasting examples. Sup-pose first that a wheelchair-bound childsues his school for discrimination underTitle II (again, without mentioning the de-nial of a FAPE) because the building lacksaccess ramps. In some sense, that archi-tectural feature has educational conse-quences, and a different lawsuit mighthave alleged that it violates the IDEA:After all, if the child cannot get inside theschool, he cannot receive instruction there;and if he must be carried inside, he maynot achieve the sense of independence con-ducive to academic (or later to real-world)success. But is the denial of a FAPEreally the gravamen of the plaintiff’s TitleII complaint? Consider that the childcould file the same basic complaint if amunicipal library or theater had no ramps.And similarly, an employee or visitor couldbring a mostly identical complaint againstthe school. That the claim can stay thesame in those alternative scenarios sug-gests that its essence is equality of accessto public facilities, not adequacy of specialeducation. See supra, at 751 – 752 (de-scribing OCR’s use of a similar example).And so § 1415(l ) does not require exhaus-tion.9

But suppose next that a student with alearning disability sues his school under

9. The school districts offer another exampleillustrating the point. They suppose that ateacher, acting out of animus or frustration,strikes a student with a disability, who thensues the school under a statute other than theIDEA. See Brief for Respondents 36–37.

Here too, the suit could be said to relate, inboth genesis and effect, to the child’s edu-cation. But the school districts opine, wethink correctly, that the substance of theplaintiff’s claim is unlikely to involve the ade-quacy of special education—and thus is un-

27


Title II for failing to provide remedialtutoring in mathematics. That suit, too,might be cast as one for disability-baseddiscrimination, grounded on the school’srefusal to make a reasonable accommoda-tion; the complaint might make no refer-ence at all to a FAPE or an IEP. But cananyone imagine the student making thesame claim against a public theater orlibrary? Or, similarly, imagine an adultvisitor or employee suing the school toobtain a math tutorial? The difficulty oftransplanting the complaint to those othercontexts suggests that its essence—eventhough not its wording—is the provision ofa FAPE, thus bringing § 1415(l ) intoplay.10

[10] A further sign that the gravamenof a suit is the denial of a FAPE canemerge from the history of the proceed-ings. In particular, a court may considerthat a plaintiff has previously invoked theIDEA’s formal procedures to handle thedispute—thus starting to exhaust the Act’sremedies before switching midstream.Recall that a parent dissatisfied with herchild’s education initiates those administra-

tive procedures by filing a complaint,which triggers a preliminary meeting (orpossibly mediation) and then a due processhearing. See supra, at 748 – 749. Aplaintiff’s initial choice to pursue that pro-cess may suggest that she is indeed seek-ing relief for the denial of a FAPE—withthe shift to judicial proceedings prior tofull exhaustion reflecting only strategiccalculations about how to maximize theprospects of such a remedy. Whether thatis so depends on the facts; a court mayconclude, for example, that the move to acourtroom came from a late-acquiredawareness that the school had fulfilled itsFAPE obligation and that the grievanceinvolves something else entirely. But pri-or pursuit of the IDEA’s administrativeremedies will often provide strong evi-dence that the substance of a plaintiff’sclaim concerns the denial of a FAPE, evenif the complaint never explicitly uses thatterm.11

III

[11] The Court of Appeals did not un-dertake the analysis we have just set for-

likely to require exhaustion. See ibid. Atelling indicator of that conclusion is that achild could file the same kind of suit againstan official at another public facility for inflict-ing such physical abuse—as could an adultsubject to similar treatment by a school offi-cial. To be sure, the particular circumstancesof such a suit (school or theater? student oremployee?) might be pertinent in assessingthe reasonableness of the challenged conduct.But even if that is so, the plausibility of bring-ing other variants of the suit indicates that thegravamen of the plaintiff’s complaint does notconcern the appropriateness of an education-al program.

10. According to Justice ALITO, the hypotheti-cal inquiries described above are useful onlyif the IDEA and other federal laws are mutu-ally exclusive in scope. See post, at 759(opinion concurring in part and concurring injudgment). That is incorrect. The point ofthe questions is not to show that a plaintiff

faced with a particular set of circumstancescould only have proceeded under Title II or§ 504—or, alternatively, could only have pro-ceeded under the IDEA. (Depending on thecircumstances, she might well have been ableto proceed under both.) Rather, these ques-tions help determine whether a plaintiff whohas chosen to bring a claim under Title II or§ 504 instead of the IDEA—and whose com-plaint makes no mention of a FAPE—never-theless raises a claim whose substance is thedenial of an appropriate education.

11. The point here is limited to commence-ment of the IDEA’s formal administrative pro-cedures; it does not apply to more informalrequests to IEP Team members or otherschool administrators for accommodations orchanges to a special education program. Af-ter all, parents of a child with a disability arelikely to bring all grievances first to thosefamiliar officials, whether or not they involvethe denial of a FAPE.

28


ward. As noted above, it asked whetherE.F.’s injuries were, broadly speaking,‘‘educational’’ in nature. See supra, at752; 788 F.3d, at 627 (reasoning that the‘‘value of allowing Wonder to attend[school] with E.F. was educational’’ be-cause it would foster ‘‘her sense of inde-pendence and social confidence,’’ which is‘‘the sort of interest the IDEA protects’’).That is not the same as asking whether thegravamen of E.F.’s complaint charges, andseeks relief for, the denial of a FAPE. Andthat difference in standard may have led toa difference in result in this case. Under-stood correctly, § 1415(l ) might not re-quire exhaustion of the Frys’ claim. Welack some important information on thatscore, however, and so we remand theissue to the court below.

The Frys’ complaint alleges only disabil-ity-based discrimination, without makingany reference to the adequacy of the spe-cial education services E.F.’s school pro-vided. The school districts’ ‘‘refusal toallow Wonder to act as a service dog,’’ thecomplaint states, ‘‘discriminated against[E.F.] as a person with disabilities TTT bydenying her equal access’’ to public facili-ties. App. to Brief in Opposition 15, Com-plaint ¶ 68. The complaint contains noallegation about the denial of a FAPE orabout any deficiency in E.F.’s IEP. More,it does not accuse the school even in gen-eral terms of refusing to provide the edu-cational instruction and services that E.F.needs. See 788 F.3d, at 631 (acknowl-edging that the Frys do not ‘‘state thatWonder enhances E.F.’s educational op-portunities’’). As the Frys explained inthis Court: The school districts ‘‘have saidall along that because they gave [E.F.] aone-on-one [human] aide, that all of herTTT educational needs were satisfied. Andwe have not challenged that, and it wouldbe difficult for us to challenge that.’’ Tr.of Oral Arg. 16. The Frys instead main-tained, just as OCR had earlier found, that

the school districts infringed E.F.’s rightto equal access—even if their actions com-plied in full with the IDEA’s requirements.See App. to Brief in Opposition 15, 18–19,Complaint ¶¶ 69, 85, 87; App. 34–37; su-pra, at 751 – 752.

And nothing in the nature of the Frys’suit suggests any implicit focus on theadequacy of E.F.’s education. Consider,as suggested above, that the Frys couldhave filed essentially the same complaint ifa public library or theater had refusedadmittance to Wonder. See supra, at 756.Or similarly, consider that an adult visitorto the school could have leveled much thesame charges if prevented from enteringwith his service dog. See ibid. In eachcase, the plaintiff would challenge a publicfacility’s policy of precluding service dogs(just as a blind person might challenge apolicy of barring guide dogs, see supra, at751) as violating Title II’s and § 504’sequal access requirements. The suitwould have nothing to do with the provi-sion of educational services. From all thatwe know now, that is exactly the kind ofaction the Frys have brought.

But we do not foreclose the possibilitythat the history of these proceedings mightsuggest something different. As earlierdiscussed, a plaintiff’s initial pursuit of theIDEA’s administrative remedies can serveas evidence that the gravamen of her latersuit is the denial of a FAPE, even thoughthat does not appear on the face of hercomplaint. See supra, at 756 – 758. TheFrys may or may not have sought thoseremedies before filing this case: None ofthe parties here have addressed that issue,and the record is cloudy as to the relevantfacts. Accordingly, on remand, the courtbelow should establish whether (or to whatextent) the Frys invoked the IDEA’s dis-pute resolution process before bringingthis suit. And if the Frys started downthat road, the court should decide whether

29

759BUCK v. DAVISCite as 137 S.Ct. 759 (2017)

their actions reveal that the gravamen oftheir complaint is indeed the denial of aFAPE, thus necessitating further exhaus-tion.

With these instructions and for the rea-sons stated, we vacate the judgment of theCourt of Appeals and remand the case forfurther proceedings consistent with thisopinion.

It is so ordered.

Justice ALITO, with whom JusticeTHOMAS joins, concurring in part andconcurring in the judgment.

I join all of the opinion of the Court withthe exception of its discussion (in the textfrom the beginning of the first new para-graph on page 756 to the end of the opin-ion) in which the Court provides severalmisleading ‘‘clue[s],’’ ante, at 756, for thelower courts.

The Court first instructs the lowercourts to inquire whether the plaintiffcould have brought ‘‘essentially the sameclaim if the alleged conduct had occurredat a public facility that was not a school—say, a public theater or library.’’ Ibid.Next, the Court says, a court should askwhether ‘‘an adult at the school—say, anemployee or visitor—[could] have pressedessentially the same grievance.’’ Ibid.These clues make sense only if there is nooverlap between the relief available underthe following two sets of claims: (1) therelief provided by the Individuals with Dis-abilities Education Act (IDEA), and (2) therelief provided by other federal laws (in-cluding the Constitution, the Americanswith Disabilities Act of 1990 (ADA), andthe Rehabilitation Act of 1973). The Courtdoes not show or even claim that there isno such overlap—to the contrary, it ob-serves that ‘‘[t]he same conduct might vio-late’’ the ADA, the Rehabilitation Act andthe IDEA. Ibid. And since these clues

work only in the absence of overlap, Iwould not suggest them.

The Court provides another false clue bysuggesting that lower courts take into ac-count whether parents, before filing suitunder the ADA or the Rehabilitation Act,began to pursue but then abandoned theIDEA’s formal procedures. Ante, at 756 –758. This clue also seems to me to be ill-advised. It is easy to imagine circum-stances under which parents might startdown the IDEA road and then changecourse and file an action under the ADA orthe Rehabilitation Act that seeks reliefthat the IDEA cannot provide. The par-ents might be advised by their attorneythat the relief they were seeking under theIDEA is not available under that law butis available under another. Or the parentsmight change their minds about the reliefthat they want, give up on the relief thatthe IDEA can provide, and turn to anotherstatute.

Although the Court provides these cluesfor the purpose of assisting the lowercourts, I am afraid that they may have theopposite effect. They are likely to confuseand lead courts astray.

,

Duane Edward BUCK, Petitioner

v.

Lorie DAVIS, Director, Texas Depart-ment of Criminal Justice, Correc-

tional Institutions Division.No. 15–8049.

Argued Oct. 5, 2016.

Decided Feb. 22, 2017.

Background: State prisoner convicted ofcapital murder and sentenced to death pe-

30

Doucette v. Jacobs

United States District Court for the District of Massachusetts

January 17, 2018, Decided; January 17, 2018, Filed

CIVIL ACTION NO. 15-13193-JGD

Reporter2018 U.S. Dist. LEXIS 7438 *

RACHEL DOUCETTE, et al., Plaintiffs, v. CAROL JACOBS, et al., Defendants.

Counsel: [*1] For Rachel Doucette, for herself and minor son B.D., Michael Doucette, for himself and minor son B.D., Plaintiffs: Carol A. Kelly, Philip E. Murray, Jr., LEAD ATTORNEYS, Kimberly D. Goodman Cooperstein, Murray, Kelly & Bertrand, P.C., Woburn, MA.

For Carol Jacobs, Margaret Maher, Cathleen Estep, Donna Straight, Town of Georgetown, Massachusetts, Georgetown School Committee, Gerogetown Public Schools, Defendants: Alexandra R. Hassell, Regina M. Ryan, Louison, Costello, Condon & Pfaff, LLP, Boston, MA.

Judges: Judith Gail Dein, United States Magistrate Judge.

Opinion by: Judith Gail Dein

Opinion

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTIONS FOR JUDGMENT ON THE PLEADINGS

DEIN, U.S.M.J.

I. INTRODUCTION

The plaintiffs, Rachel and Michael Doucette, are the parents of a severely disabled child, B.D., who attended the Georgetown Public Schools ("GPS") from age three until he was able to obtain an out-of-

district placement at age six. B.D. attended GPS under an Individualized Education Plan ("IEP") pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. ("IDEA") and the Massachusetts Special Education statute, Mass. Gen. Laws ch. 71B. The Doucettes have brought this action individually and on behalf of their son, [*2] alleging that B.D. suffered serious physical and emotional harm, including five stress-induced, life-threatening, tonic-clonic seizures, due to the defendants' failure to provide him with appropriate services in school, in violation of his federal and state law rights. The seizures allegedly stopped once B.D. was removed from the Georgetown schools, and the plaintiffs are seeking monetary damages only against the entities and individuals involved in providing B.D. services while he was at GPS.1

In addition to asserting state law claims for intentional infliction of emotional distress (Count I), negligence (Count II), loss of consortium (Count III), and negligent infliction of emotional distress (Count VI),2 in their Amended Complaint (Docket Nos. 20-2

1 The defendants are the Town of Georgetown, Massachusetts (the "Town"); the Georgetown School Committee (the "School Committee"); GPS; Carol C. Jacobs, who was the Superintendent of GPS (the "Superintendent"); Margaret Maher, who was the Principal of the Perley Elementary School and Penn Brook Elementary School that B.D. attended (the "Principal"); Cathleen Estep, Ph.D., who was the Interim Special Education Director for GPS (the "Interim Special Education Director"); and Donna F. Straight, who was the Special Education Director for GPS (the "Special Education Director"). The parents have sued the Superintendent, Principal, Interim Special Education Director, and Special Education Director (collectively, the "individual defendants") in their official and individual capacities.

2 The plaintiffs have voluntarily dismissed the claims of negligence and negligent infliction of emotional distress against the individual defendants. (See Docket No. 51).

31

of 14

at 6-15, and 20-3) ("Am. Compl."), the plaintiffs have alleged a violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), against GPS, the School Committee, and the Town (Count IV), and a violation of 42 U.S.C. § 1983 against all defendants (Count V). The Rehabilitation Act claim is based on the plaintiffs' contention that "[t]he defendants' refusal to permit B.D. access to his service dog in his educational setting was illegal disability-based discrimination that violated [*3] Section 504." (Am. Compl. ¶ 104). In support of their § 1983 claim, the plaintiffs challenge, inter alia, the defendants' failure to "evaluate[] the extent of B.D.'s visual impairment to determine the implication on his fine motor skills, education and related services" as well as the defendants' initial refusal to approve an in-district or out-of-district placement despite the inadequacies of the services available at GPS. (See id. ¶¶ 111-15). According to the plaintiffs, "[a]s a result of the defendants' deliberate indifference and severe, pervasive disregard for his safety and well-being, B.D. was deprived of a free and appropriate education and was caused to suffer great physical and emotional harm." (Id. ¶ 116).

This matter is presently before the court on "Defendants' Motion for Judgment on the Pleadings" (Docket No. 48) and "Defendants' Supplemental Motion for Judgment on the Pleadings" (Docket No. 61),3 by which the defendants are seeking the dismissal of all claims asserted against them on the grounds (1) that the plaintiffs were required and failed to exhaust their administrative remedies under the IDEA before they could bring any of the claims asserted, (2) that the plaintiffs are not entitled [*4] to damages under the IDEA, (3) that the state tort claims against GPS, the School Committee and the Town are barred by the Massachusetts Tort Claims Act ("MTCA"), Mass. Gen. Laws ch. 258, § 2, and (4) that the plaintiffs have failed to state a claim against the individual defendants for intentional infliction of

3 The defendants' Supplemental Motion (Docket No. 61) expands on their argument that the plaintiffs are not entitled to compensatory damages. Where convenient, the motions will be referred to collectively as a single motion for judgment on the pleadings.

emotional distress.

After consideration of the parties' written submissions, including their supplemental briefing, and the parties' oral arguments, and for all of the reasons described herein, this court finds that the plaintiffs' federal law claims must be dismissed for failure to exhaust administrative remedies under the IDEA. This court declines to exercise jurisdiction over the remaining state claims. See Wilber v. Curtis, 872 F.3d 15, 23 (1st Cir. 2017) ("the Supreme Court has instructed that 'in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims.'") (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7, 108 S. Ct. 614, 619 n.7, 98 L. Ed. 2d 720 (1988)). Therefore, the defendants' motions for judgment on the pleadings are ALLOWED, and the remaining state law claims will be remanded to state court. [*5]

II. STATEMENT OF FACTS

As the defendants have filed an answer to the complaint, their motion before the court is properly one for judgment on the pleadings, brought pursuant to Fed. R. Civ. P. 12(c). See Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54 (1st Cir. 2006). "A motion under Fed. R. Civ. P. 12(c) for judgment on the pleadings is treated like a Rule 12(b)(6) motion to dismiss." Díaz-Nieves v. United States, 858 F.3d 678, 689 (1st Cir. 2017) (citing Curran v. Cousins, 509 F.3d 36, 43-44 (1st Cir. 2007)). "Accordingly, 'the court must view the facts contained in the pleadings in the light most favorable to the nonmovant and draw all reasonable inferences therefrom.'" Id. (quoting Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008)). Dismissal on the pleadings is appropriate "if it appears that the nonmovant could prove no set of facts that would entitle him or her to relief." Id. (citing Mass. Nurses Ass'n v. N. Adams Reg'l Hosp., 467 F.3d 27, 31 (1st Cir. 2006))

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(additional citation omitted).

Applying these principles, the relevant facts are as follows.

B.D. and His IEP

B.D. has Isodicentric Chromosome 15q Duplication Syndrome, a rare de novo genetic disorder. (See Am. Compl. ¶ 15). As described in the Amended Complaint:

As a consequence of this syndrome, B.D. has a number of substantial educational limitations, including global developmental delay, with a diagnosis of Pervasive Developmental Disability, Not Otherwise Specified (PDD, NOS), autistic spectrum disorder, seizure disorder, anxiety disorder, sleep disorder and gastrointestinal [*6] issues. B.D. also has been diagnosed with attention-deficit hyperactivity disorder (ADHD), a history of choking, low muscle tone and balance defects, together with a high threshold for pain, limited ability to report injury or discomfort, sensory process disorder, visual problems, decreased personal safety awareness, maladaptive behaviors such as bolting and aggression, cognitive impairment, and communication deficits.

(Id.). Furthermore, of significance to the issues before this court, "[c]hildren with Chromosome 15q Duplication Syndrome have an increased risk of sudden unexpected death (SUD)" caused by respiratory or cardiac arrest. (Id. ¶ 16). The plaintiffs contend that this increased risk "is typically correlated with seizure activity[,]" as a result of which "the prevention of seizures in such children is of critical importance." (Id.).

In July 2009, when he was almost three years old, B.D. began attending Perley Elementary School ("Perley") in Georgetown. (Id. ¶ 19). At Perley, B.D. received special education and related services provided by GPS under an IEP developed pursuant to the IDEA and the Massachusetts Special

Education statute, Mass. Gen. Laws ch. 71B. (Id.). "Pursuant [*7] to his IEP, B.D. received individual instruction, occupational therapy, physical therapy, speech-language services both within and outside the classroom, home training by an aide, and . . . a 1:1 aide trained in CPR and Heimlich maneuvers because of a risk of choking and a risk of bolting." (Id.). Also pursuant to his IEP, B.D. attended school both during the regular school year and over the summer as part of an "Extended School Year" ("ESY") program. (Id.).

B.D.'s parents were not satisfied with the services that B.D. was receiving at GPS. For example, but without limitation, as early as October 2009, three months after B.D. began attending Perley, B.D.'s parents expressed concerns to GPS, its administrators, educators and staff, based on Mrs. Doucette's personal observations, "that B.D. was not receiving the educational programming and services required under his IEP and these failures were placing his safety and well-being at risk." (Id. ¶ 20). When B.D. was diagnosed with an anxiety disorder and a seizure disorder in December 2009, B.D.'s parents requested that his IEP be amended to include a Seizure Plan. (Id. ¶¶ 22-23). While the Seizure Plan was eventually added, according to [*8] B.D.'s parents, the appropriate personnel were never properly trained, and the Plan was not appropriately followed. (Id. ¶¶ 31-34).

From January to early March 2010, B.D.'s parents had B.D. evaluated by a number of medical specialists who recommended that an educational program that utilized, to a substantial degree, applied behavior analysis (ABA) methodology, including structured sensory breaks and discrete trials, be added to B.D.'s IEP. (Id. ¶ 25). On March 29, 2010, B.D.'s parents complained at an IEP team meeting at which the Superintendent and the Principal were in attendance, that B.D.'s placement at GPS was inappropriate because B.D. was not making educational progress and his developmental delays were increasing. (Id. ¶ 26). They also argued that B.D. should be immediately placed in an in-district or out-of-district placement that incorporated ABA

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methodologies. (Id.). Members of B.D.'s IEP team "disagreed that B.D. was not making educational progress, that he needed structured sensory breaks, or that GPS was an inappropriate placement." (Id.).

After the March 2010 IEP team meeting, B.D.'s parents continued to complain verbally and in emails to GPS, its administrators, educators [*9] and staff, that B.D.'s safety and well-being were at risk because the school "was not implementing the kinds of interventions he needed to learn, that his aides were not appropriately trained, that he was not receiving sufficient sensory therapies, that he was not being monitored closely and was bolting from class, that he was becoming more aggressive toward other students, and that, after falling and hitting his head, his medical condition and disability were not taken into consideration and he was not provided proper care." (Id. ¶ 27). As a result of these concerns, on May 10, 2010, B.D.'s parents removed B.D. from Perley, and B.D. remained out of school until September 2, 2010. (Id.).

The 2010 BSEA Hearing

On July 12, 2010, B.D.'s parents filed a Request for Hearing with the Massachusetts Bureau of Special Education Appeals ("BSEA"), seeking an out-of-district placement for B.D. for the 2010-2011 school year on the basis that GPS's proposed IEP was inappropriate. (Id. ¶ 28). B.D.'s parents also sought compensatory services for the time B.D. had been out of school. (Id.).

After conducting hearings in late August 2010, the BSEA hearing officer found that B.D.'s proposed IEP "was not [*10] appropriate and not reasonably calculated to provide B.D. with a free and appropriate public education ("FAPE") in the least restrictive environment[.]" (Id. ¶ 29). Nevertheless, the hearing officer found that GPS was an appropriate placement because "GPS could amend the IEP to make it appropriate through additions and modifications," and because GPS "had the capacity to develop an appropriate ABA-based substantially-separate classroom placement for B.D. at the start of

the 2010-2011 school year." (Id.). Plaintiffs allege that based on the BSEA decision and on explicit assurances from GPS "that it would develop an ABA-based, substantially separate Transition classroom that would be ready for the September 2010 start of school, and that an Individual Student Safety Plan and Seizure Plan would be integrated in his IEP," they allowed B.D. to return to Perley in September 2010. (Id. ¶ 30). As detailed below, the plaintiffs were of the opinion that the defendants never fulfilled their obligations under the IEP or provided the services that B.D. needed and to which he was entitled. However, they never filed any additional administrative claims.

B.D.'s Service Dog

B.D.'s seizure activity increased [*11] after he returned to school. (Id. ¶¶ 31-32). B.D.'s parents allege that despite assurances to the contrary, the defendants were not prepared to handle B.D.'s seizure activity appropriately. (Id. ¶ 32). As a result, B.D. was inappropriately sent home on occasion. (Id. ¶ 33). This caused B.D. to lose educational and developmental opportunities and to suffer a disruption in his schedules and routines. (Id. ¶¶ 32-33).

In September 2011, B.D. began attending Kindergarten at Perley. (Id. ¶ 34). Shortly thereafter, in or about November 2011, B.D. privately received a specially trained and certified service dog that provided "autism assistance service, facilitated guide, search and rescue, and assistance with behavior disruption, anxiety, balance and seizure alerting, all of which were of benefit to B.D." (Id. ¶ 35). B.D.'s parents allege that "[t]he service dog permitted B.D. to develop some independence and confidence and helped him bridge social barriers" and that "B.D.'s behavior in social situations improved when his service dog was present." (Id. ¶ 36). Nevertheless, B.D. was not permitted to bring his service dog to school. (Id. ¶ 37). This denial constitutes the basis of the plaintiffs' [*12] Rehabilitation Act claim.

In or about the spring of 2012, B.D. began exhibiting

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increased anxiety, staring, and inattention, and the Principal and B.D.'s mother discussed whether the use of B.D.'s service dog in school would help with B.D.'s anxiety. (Id. ¶ 39). However, the plaintiffs allege that the School Committee and Superintendent "blocked B.D.'s access to his service dog." (Id.). Specifically, B.D.'s parents allege that "[i]n order for B.D. to have access to his service dog with GPS as the handler, [B.D.'s parents] were requested to sign and agree to a School Committee approved policy that was in violation of the Americans with Disabilities Act (ADA)." (Id.). B.D.'s parents allegedly declined to sign and agree to the policy. (Id.). B.D.'s parents also allege that the Superintendent "directed the performance of a Functional Behavior Assessment (FBA) to determine whether B.D. required the use of a service dog as an accommodation and to determine whether the IEP would be amended to include a service dog as an accommodation. The FBA data was to be collected in a trial period to take place during the academic school year, not during ESY and with B.D.'s mother present as the [dog's] [*13] handler." (Id.). No further details regarding this FBA are provided.

The 2012 ESY Program and B.D.'s Seizures

The 2012 ESY program was held at Penn Brook Elementary School ("Penn Brook") as opposed to its previous location at B.D.'s school, Perley. (Id. ¶ 43). As represented by the parties at oral argument, the location change was due to necessary repairs at Perley. B.D.'s parents were very upset by the location change, and were very concerned that Penn Brook would not be a safe facility for B.D. and that GPS would not be able to implement B.D.'s IEP appropriately there. (Id. ¶¶ 45-46). In their view, the defendants never lived up to their assurances that the ESY program would be ready and appropriate for B.D. (Id. ¶¶ 46-47).

Plaintiffs allege that from the start of the 2012 ESY program, GPS failed to appropriately implement B.D.'s IEP. (Id. ¶¶ 46-48). For example, B.D.'s parents allege that pursuant to his IEP in effect at

that time, B.D. was to have:

limited environmental stimuli, special consideration for his sensory processing needs in any larger group environment, a "quiet area" such as a "tent and/or pillow area" for "quiet time," picture schedule, picture supports such as a choice [*14] board, first/then board, mini schedules, "consistent routine," transition cues, preferential seating for sensory needs, a slant board, supported seating that provided 90/90/90 degree angles (Rifton chair), discrete trials, preparation "for planned changes in staffing/schedule," [and] structured sensory breaks[.]

(Id. ¶ 47). Nevertheless, "many of these accommodations were not provided." (Id.).4 Instead, B.D. was faced with an unfamiliar setting and improperly trained staff who failed to follow his IEP, and he was placed with unfamiliar students. (Id. ¶¶ 48-49). As alleged, "[t]hese drastic changes were overwhelming for B.D., then six (6) years old and suffering from an anxiety disorder, visual impairment, sensory process disorder and autistic spectrum disorder." (Id. ¶ 50). The problem was exacerbated by the fact that "B.D. was not permitted to be accompanied by his service dog, with whom he had been working since 2011, and who could have helped him visually comprehend this new environment and minimize the stress from his new environment." (Id.).

On July 5, 2012, while at ESY at Penn Brook, B.D. experienced a tonic-clonic seizure, which lasted over twenty minutes and required the administration [*15] of Diastat gel. (Id. ¶ 51). 911 was called and B.D. was transported by ambulance to Lawrence General Hospital. (Id.). As a result of this seizure, B.D.'s doctor prescribed Keppra in addition to his other medications. (Id.).

On July 6, 2012, B.D.'s parents "demanded that

4 While many facts about the sufficiency of the services provided are in dispute, the defendants admit that there was a delay in providing B.D. with his original slant board and Rifton chair. (Defs. Answer (Docket No. 21) ¶ 48).

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B.D.'s IEP be amended and that his service dog be added as an accommodation effective immediately." (Id. ¶ 52). GPS and the School Committee "denied the Parents' request and refused to amend B.D.'s IEP to include a service dog as an accommodation." (Id.). However, they allowed B.D. to bring his service dog to school with his mother as the dog's handler, on a trial basis beginning on or about July 10, 2012. (Id.).

B.D.'s parents continued to express their concern that B.D.'s aide/special education teacher was not appropriately trained, and that "the constant program changes and inconsistencies in how his IEP was being implemented" contributed to increased aggressive behavior and anxiety on the part of B.D. (Id. ¶¶ 53-54). However, nothing improved. (Id. ¶ 54). On July 18, 2012, while attending the ESY program, B.D. suffered a second tonic-clonic seizure "reported as two (2) separate seizures, one lasting forty-five (45) [*16] seconds and a second lasting twenty-five (25) minutes, and require[ing] the administration of Diastat gel." (Id. ¶ 55). 911 was called and B.D. was transported to Massachusetts General Hospital ("MGH"). (Id.). B.D.'s doctor adjusted his medications. (Id.).

On July 26, 2012, one of B.D.'s doctors noted that B.D. had "regressed a bit in his development over the summer with less academic support" and that his gastrointestinal issues had worsened. (Id. ¶ 57). On July 30, 2012, B.D.'s parents met with the Special Education Director, the Principal, and the Superintendent and took the position that B.D.'s "continued placement at GPS was inappropriate, that B.D. was at risk [there], and that GPS had failed to take actions to effectively mitigate those risks." (Id. ¶ 58). B.D.'s parents allege that "GPS continued to refuse to consider the continuum of educational placements for B.D. as required under his IEP." (Id.).

On July 31, 2012, while attending his ESY program, B.D. suffered a third tonic-clonic seizure which lasted approximately eight minutes and required the administration of Diastat gel. (Id. ¶ 59). 911 was called and B.D. was transported to Lawrence General Hospital. (Id.).

Then, on [*17] August 6, 2012, while attending his ESY program, B.D. suffered a fourth tonic-clonic seizure which lasted approximately eleven minutes and required the administration of Diastat gel. (Id. ¶ 60). 911 was called and B.D. was transported to MGH. (Id.). On that same day, B.D.'s mother communicated to the Superintendent, the Principal, and the Special Education Director that "the most probable cause for B.D.'s extraordinary increase in seizure activity over the past month" was GPS's "extremely poor and ineffective" implementation of B.D.'s IEP and GPS's "unacceptable" "lack of planning, training and execution [of his IEP]." (Id. ¶ 61). B.D.'s mother also expressed her concern that B.D.'s ESY placement was not only inappropriate, but was also unsafe. (Id.). B.D.'s parents would no longer "subject their son to unsafe, unhealthy and life threatening situations at GPS, and wanted answers as to GPS's proposed plan to implement the agreed upon services and education in a safe and appropriate learning environment." (Id.). B.D.'s parents then removed B.D. from GPS. (Id. ¶ 62).

On August 13, 2012, the Superintendent advised B.D.'s mother that "her questions needed to be answered by 'the team'" and [*18] that "input from medical personnel should also be considered." (Id. ¶ 63). The Superintendent also advised that she would work with the Principal and the Special Education Director to determine if GPS would offer compensatory services, and stated that she believed that GPS could provide "the program detailed in his IEP beginning in September without an out-of-school placement." (Id. ¶ 63). Despite input from B.D.'s doctor recommending that B.D. be removed from his current classroom setting, and kept out of school until an appropriate placement was located, on August 30, 2012, the Special Education Director advised B.D.'s parents that B.D.'s placement would remain at GPS, that GPS was expecting B.D. to attend the start of school on September 5, 2012, and that any "extended absences will be considered truancy." (Id. ¶¶ 64-65).

Shortly after arriving at Perley for the first day of school on September 5, 2012, B.D. suffered a fifth

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tonic-clonic seizure, which lasted approximately four minutes before the administration of Diastat gel. (Id. ¶ 66). 911 was called and B.D. was transported unresponsive to MGH. (Id.). After B.D. suffered the fifth tonic-clonic seizure, his parents rescinded his [*19] educational placement at GPS. (Id. ¶ 67). He has not returned to the Georgetown schools since then.

B.D.'s Eye Examinations

In addition to defendants' refusal to allow B.D. to have his service dog, the plaintiffs further challenge the defendants' treatment of his visual impairment as being in violation of his constitutional rights. On March 23, 2012, B.D.'s parents had taken him to his pediatric ophthalmologist because he had failed a school vision screening. (Id. ¶ 41). B.D.'s doctor found B.D. to have depth perception issues and recommended that B.D. be evaluated by a Developmental Optometrist. (Id.). B.D.'s parents then requested that GPS pay for the recommended evaluation, but "their request was denied." (Id.). B.D.'s parents further allege that they "continued to request that B.D. be evaluated by a Developmental Optometrist" but "the request was declined by GPS" until July 6, 2012, the day after B.D.'s first tonic-clonic seizure at GPS. (Id.). On that day, GPS informed the parents that GPS would pay for B.D. to be evaluated by an optometrist. (Id.).

On or about July 19, 2012, B.D. was evaluated, at GPS's expense, by an optometrist, Dr. Robin S. Blair, who found his "vision performance [*20] 'unskilled,' his focusing ability 'passable,' and his eye teaming ability 'unskilled,'" recommended further testing, and referred B.D. to a practitioner who specialized in behavioral and developmental optometric vision care. (Id. ¶ 56). B.D.'s parents allege that the Special Education Director "denied the recommended further evaluation[,]" advising B.D.'s mother that GPS had "only agreed to the initial eye exam." (Id.). These facts form the basis of plaintiffs' allegation that

GPS violated the IDEA's "child find" provision5 by failing to appropriately identify and evaluate B.D.'s visual impairment. (See id. ¶¶ 111-13).

Out-of-District Placement and Subsequent Health Issues

In November 2012, GPS and the School Committee agreed to place B.D. in an extended evaluation in an out-of-district placement, and, after the evaluation period, agreed to an out-of-district placement. (Id. ¶¶ 67, 69-70). As of the filing of the amended complaint in this matter, B.D. has remained in an out-of-district placement. (Id. ¶ 75).

In April 2013, B.D. was diagnosed with Cerebral Visual Impairment. (Id. ¶ 72). On March 19, 2014, B.D. was admitted overnight [*21] to the Acute Psychiatric Services department at MGH due to "increased aggression, paranoia and hallucinations." (Id. ¶ 73). From May 9, 2014 until July 31, 2014, B.D. was hospitalized at Hampstead Hospital for severe aggression and hallucinations and was diagnosed with "Disruptive Behavior Disorder NOS and Psychotic Disorder NOS." (Id. ¶ 74).

According to the plaintiffs, B.D. has been attending Berkshire Meadows in Great Barrington, Massachusetts, since July 2014, "through his IEP" and "making developmental and educational progress." (Id. ¶ 75). Plaintiffs allege that B.D. has not suffered a seizure since being removed from GPS. (Id. ¶ 76).

Additional facts relevant to this court's analysis are described below where appropriate.

5 The IDEA's "child find" provision states: "All children with disabilities residing in the State, ... regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services." CBDE Public Sch. v. Mass. Bureau of Special Educ. Appeals, Civil Action Nos. 11-10874-DPW, 2012 U.S. Dist. LEXIS 139060, 2012 WL 4482296, at *2 n.5 (D. Mass. Sept. 27, 2012) (quoting 20 U.S.C. § 1412(a)(3) and citing 34 C.F.R. § 300.111(a)(1)(i)).

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III. ANALYSIS

A. Standard of Review

As detailed above, a motion for judgment on the pleadings is analyzed under substantially the same standard as a motion to dismiss. Therefore, the court accepts as true all well-pleaded facts and draws all reasonable inferences in favor of the plaintiffs. Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir. 1999). To survive a motion to dismiss, the complaint "must contain sufficient factual matter . . . to state a claim to relief that is plausible on its face." Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)) (additional [*22] quotation and citation omitted).

"The plausibility inquiry necessitates a two-step pavane." García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). "First, the court must distinguish 'the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited).'" Id. (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). "Second, the court must determine whether the factual allegations are sufficient to support 'the reasonable inference that the defendant is liable for the misconduct alleged.'" Id. (quoting Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011)) (additional citation omitted). This second step requires the reviewing court to "draw on its judicial experience and common sense." Id. (quoting Ashcroft v. Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950). "If the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal." Morales-Cruz, 676 F.3d at 224 (quoting SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010)).

Applying these principles to the instant case compels the conclusion that the defendants' motion for judgment on the pleadings must be allowed, as the plaintiffs have failed to exhaust their federal law

claims.

B. Statutory Framework

The IDEA "offers federal funds to States in exchange for a commitment: to furnish a 'free appropriate public education' — more concisely known as [*23] a FAPE — to all children with certain physical or intellectual disabilities." Fry v. Napoleon Community Schs., U.S. , 137 S. Ct. 743, 748, 197 L. Ed. 2d 46 (2017) (citing 20 U.S.C. §§ 1412(a)(1)(A) and 1401(3)(A)(i)). "[A] FAPE comprises 'special education and related services' — both 'instruction' tailored to meet a child's 'unique needs' and sufficient 'supportive services' to permit the child to benefit from that instruction." Id. at 748-49 (quoting 20 U.S.C. §§ 1401(9), (26), (29)) (additional citations omitted). "The FAPE required by the IDEA is tailored to the needs of a disabled child through the creation and implementation of an 'individualized educational program' ("IEP")." S.S. by S.Y. v. City of Springfield, Mass., 146 F. Supp. 3d 414, 417 (D. Mass. 2015) (citing Bd. of Educ. of Hendrick Hudson Central Sch. Dist. of Westchester Cty. v. Rowley, 458 U.S. 176, 181-82, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982)). "An extensive set of procedural safeguards grant parents or guardians the right to participate in the meetings that lead to the development of the IEP and give them a mechanism to challenge the IEP before an impartial 'state educational agency.'" Id. at 418 (citing Rowley, 458 U.S. at 182-83, 102 S. Ct. at 3039) (additional citation omitted). "The scope of the due process hearing is broad, encompassing 'complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.'" Rose v. Yeaw, 214 F.3d 206, 210 (1st Cir. 2000) (quoting 20 U.S.C. § 1415(b)(6)). In Massachusetts, the "state educational agency" tasked with conducting an impartial due process hearing [*24] regarding such a complaint is the Bureau of Special Education Appeals ("BSEA"). S.S. by S.Y., 146 F. Supp. 3d at 418 (citing Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 58-59 (1st Cir. 2002)) (additional citation

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omitted).

A party "who proceeds through the state administrative procedure and is 'aggrieved by the findings and decision' of the independent hearing officer . . . can bring a civil action in federal court." Id. (citing 20 U.S.C. § 1415(i)(2)). However, a party who fails to exhaust the administrative review process set forth in the IDEA "is foreclosed from pursuing their IDEA claim in federal court." Id.

What Types of Claims Need to be Exhausted

At issue in this motion for judgment on the pleadings is whether the plaintiffs needed to exhaust the administrative review process with respect to their claims under the Rehabilitation Act or 42 U.S.C. § 1983 before they could maintain the instant action.6 In the recent case of Fry v. Napoleon Community Schs., 137 S. Ct. 743, 197 L. Ed. 2d 46 (2017), the United States Supreme Court clarified the scope of the IDEA's exhaustion requirement. As the Court held:

[the IDEA] ensures that children with disabilities receive needed special education services. One of its provisions, § 1415(l), addresses the Act's relationship with other laws protecting those children. Section 1415(l) makes clear that nothing in the IDEA "restrict[s] or limit[s] the rights [or] remedies" that other [*25] federal laws, including antidiscrimination statutes, confer on children with disabilities. At the same time, the section states that if a suit brought under such a law "seek[s] relief that is also available under" the IDEA, the plaintiff must first exhaust the IDEA's administrative procedures.

Id. at 748. The Supreme Court explained that "exhaustion is not necessary when the gravamen of the plaintiff's suit is something other than the denial of the IDEA's core guarantee — what the Act calls a

6 This court expresses no opinion as to whether the state law claims need to be exhausted before suit can be brought. The parties disagree as to this issue.

'free appropriate public education.'" Id. (citing § 1412(a)(1)(A)). However, "[i]f a lawsuit charges such a denial, the plaintiff cannot escape § 1415(l) merely by bringing her suit under a statute other than the IDEA." Id. at 754.

The Court further held that "in determining whether a suit indeed 'seeks' relief for such a denial [of a FAPE], a court should look to the substance, or gravamen, of the plaintiff's complaint." Id. at 752. The labeling of the complaint is not dispositive. Id. at 755. The Court offered a pair of hypothetical questions designed to provide "clue[s]" as "to whether the gravamen of a complaint against a school concerns the denial of a FAPE, or instead addresses disability-based discrimination." Id. at 756. These are (1) "could the plaintiff have [*26] brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school — say, a public theater or library?" and (2) "could an adult at the school — say, an employee or visitor — have pressed essentially the same grievance?" Id. (emphasis omitted). If the answers to the two questions are "yes," the Court explained, "a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject" because "in those other situations there is no FAPE obligation and yet the same basic suit could go forward." Id. If one or both of the answers is "no," then "the complaint probably does concern a FAPE, even if it does not explicitly say so; for the FAPE requirement is all that explains why only a child in the school setting (not an adult in that setting or a child in some other) has a viable claim." Id.

The Court provided another piece of guidance regarding how to determine whether the gravamen of a complaint concerns the denial of a FAPE: "[a] further sign that the gravamen of a suit is the denial of a FAPE can emerge from the history of the proceedings. In particular, a court may consider that a plaintiff has previously [*27] invoked the IDEA's formal procedures to handle the dispute—thus starting to exhaust the Act's remedies before switching midstream." Id. at 757. The Court explained that a plaintiff's initial choice to pursue the

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administrative process "before switching midstream . . . may suggest that she is indeed seeking relief for the denial of a FAPE — with the shift to judicial proceedings prior to full exhaustion reflecting only strategic calculations about how to maximize the prospects of such a remedy." Id. "Whether that is so depends on the facts; a court may conclude, for example, that the move to a courtroom came from a late-acquired awareness that the school had fulfilled its FAPE obligation and that the grievance involves something else entirely." Id. "But prior pursuit of the IDEA's administrative remedies will often provide strong evidence that the substance of a plaintiff's claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term." Id.

Applying these principles to the instant case, this court concludes that the gravamen of the Doucettes' federal claims are for the denial of a FAPE, and, therefore, that they had to exhaust their administrative remedies. Their failure [*28] to do so mandates that their federal claims be dismissed.

C. Exhaustion of the Federal Claims was Required

Defendants argue that this court must enter judgment in their favor on plaintiffs' Rehabilitation Act and Section 1983 claims on the basis that plaintiffs were required, but failed, to exhaust their administrative remedies under the IDEA. Plaintiffs argue that the IDEA's exhaustion requirement does not apply to their claims, and, in the alternative, that they should be excused from complying with the exhaustion requirement on the grounds of futility and undue burden. For the reasons set forth below, this court finds that plaintiffs were required to exhaust their administrative remedies under the IDEA with respect to their Rehabilitation Act and Section 1983 claims, and are not excused from doing so.

Rehabilitation Act

Plaintiffs claim that the defendants' "refusal to permit B.D. access to his service dog in his educational

setting" constituted a violation of Section 504 of the Rehabilitation Act. (Am. Compl. ¶ 104). They argue that by that claim, they are not alleging the denial of a FAPE, but are only alleging discrimination on the basis of B.D.'s disability. (See Pl. Suppl. Opp. (Docket No. 66) at 4). This argument [*29] is not persuasive.

To determine whether plaintiffs seek relief under the IDEA, the court must evaluate the "gravamen" of the complaint. Fry, 137 S. Ct. at 752. As the facts detailed above establish, there can be no question that the plaintiffs' entire complaint is premised on their contention that the defendants failed to provide an adequate IEP, failed to provide the services they agreed to provide under an IEP, and failed to address B.D.'s physical and psychological needs. Applying the hypothetical suggested by the Fry court, these are not grievances that an adult at the school, such as an employee or visitor, could have pressed. See id. at 756. Rather, the entire complaint is based on B.D.'s IEP, B.D.'s parents' concern that B.D. was not receiving appropriate services in his public education, and their contention that the lack of such services was causing B.D. serious harm.

As further evidence that the plaintiffs' claims relate to the denial of a FAPE, the plaintiffs "previously invoked the IDEA's formal procedures to handle the dispute[.]" Id. at 757. Even the resolution of the plaintiffs' issues with GPS — an out-of-district placement for B.D. — was done under the auspices of an IEP. (See Am. Compl. ¶ 75). It is impossible [*30] to conclude other than the essence of the Amended Complaint is the denial of a FAPE to B.D.

The plaintiffs attempt to segregate out the request that B.D. be allowed to bring his service dog with him to school as being distinct from his IEP. This argument is defeated by the allegations of the complaint, as well as logic. Plaintiffs specifically allege that they "demanded that B.D.'s IEP be amended and that his service dog be added as an accommodation" and that the defendants "denied the Parents' request and refused to amend B.D.'s IEP to include a service dog as an accommodation." (Id. ¶

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52; see also id. ¶ 39 (school considers a Functional Behavior Assessment "to determine whether the IEP would be amended to include a service dog as an accommodation.")). The plaintiffs' claims relating to the denial of B.D.'s use of service dog are part and parcel of their contentions about the failure of the defendants to provide a FAPE.

Moreover, the demand for the use of the service dog is the type of complaint that could appropriately be raised before the BSEA in connection with a challenge to an IEP. See Rose, 214 F.3d at 209 ("any matter relating to the identification, evaluation, or educational placement of the child, [*31] or the provision of a free appropriate public education" may be brought before the BSEA); see also Am. Compl. ¶ 29 (dispute over whether B.D. was entitled to ABA therapies as part of his IEP was resolved by the BSEA in 2010). In sum, plaintiffs' Rehabilitation Act claim is in essence a claim under the IDEA. Unless excused, the plaintiffs were obligated to exhaust their administrative remedies. See Weber v. Cranston Sch. Comm., 212 F.3d 41, 51-52 (1st Cir. 2000) (requiring exhaustion for § 504 claims that fall under the scope of the IDEA).

Section 1983

Defendants also argue that they are entitled to judgment in their favor on plaintiffs' Section 1983 claim because this claim is essentially an unexhausted IDEA claim. (See Defs. Mem. (Docket No. 49) at 6; Defs. Suppl. Mem. (Docket No. 62) at 2-4). Plaintiffs argue that the IDEA does not preclude them from recovering under Section 1983, and in the alternative, that they should be excused from exhausting their administrative remedies under the IDEA. For the reasons provided below, this court disagrees.

To state a claim under 42 U.S.C. § 1983, "a plaintiff first must identify an act or omission undertaken under color of state law" and then "must allege what is colloquially known as 'constitutional injury,' that is, he or she must identify a deprivation of some [*32] federally secured right." Aponte-Torres, 445 F.3d at 55 (internal quotations and citations omitted). In their

Amended Complaint, plaintiffs allege that their 1983 claim is premised on violations of the rights protected by "Procedural Due Process under the Fourteenth Amendment to the United States Constitution, the Equal Protection Clause under the Fourteenth Amendment to the United State[s] Constitution, and rights secured by IDEA, its regulations and Section 504." (Am. Compl. ¶ 108). In their pleadings in opposition to the present motion, the plaintiffs do not address procedural due process or the equal protection clause, and those claims are deemed waived. Vysedskiy v. OnShift, Inc., No. CV 16-12161-MLW, 2017 U.S. Dist. LEXIS 161616, 2017 WL 4391725, at *4, n.2 (D. Mass. Sept. 29, 2017) (citing United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (where plaintiff did not argue or develop legal theory alluded to in complaint in connection with a motion to dismiss, theory deemed waived)). Rather, they describe their Section 1983 claim as being "for the defendants' deliberate indifference and severe, pervasive disregard for B.D.'s safety and well-being[.]" (See Pls. Opp. (Docket No. 57) at 15; Pls. Supp. Opp. (Docket No. 66) at 5). This court assumes that the plaintiffs are asserting a substantive due process claim. See also Pollard, 132 F. Supp. 3d 208, 227 (D. Mass. 2015) ("To establish a substantive due process claim, a plaintiff 'must show . . . that the acts were so egregious as to shock the conscience' and 'that they deprived him [*33] of a protected interest in life, liberty, or property.'") (quoting Pagan v. Calderon, 448 F.3d 16, 32 (1st Cir. 2006)). In any event, all of these claims must be dismissed.

It is well-established that "Section 1983 cannot be used as a vehicle for ADA or other statutory claims that provide their own frameworks for damages." M.M.R.-Z ex rel. Ramirez-Senda v. Puerto Rico, 528 F.3d 9, 13 n.3 (1st Cir. 2008) (and cases cited). Thus, "reconstituted IDEA claims cannot be brought under other federal statutes in an attempt to secure remedies that are unavailable under the IDEA." D.B. v. Esposito, 675 F.3d 26, 38 (1st Cir. 2012). Where, as here, "the underlying claim is one of violation of the IDEA, plaintiffs may not use § 1983 — or any other federal statute for that matter — in an attempt

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to evade the limited remedial structure of the IDEA." Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 29 (1st Cir. 2006). Similarly, "§ 1983 is not available to provide a remedy for defendants' alleged violations of [plaintiff's] rights under Section 504" of the Rehabilitation Act. A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 806 (3rd Cir. 2007) (cited in Ramirez-Senda, 528 F.3d at 13 n. 3). For these reasons, the Doucettes cannot maintain their Section 1983 claims based on alleged violations of the IDEA or the Rehabilitation Act.7

The plaintiffs' substantive due process claim fares no better. As an initial matter, it is an open question whether a substantive due process claim can be maintained by a student against his or her school. See Pollard, 132 F. Supp. 3d at 227-28. Assuming, arguendo, that such a claim can be maintained, [*34] in the instant case the gravamen of the allegations remain the denial of a FAPE. As detailed above, the plaintiffs' contention is that failing to have an adequate IEP, and failing to comply with their obligations under the IEP, the defendants caused B.D. serious harm. Whether stated in terms of substantive due process, or a denial of a FAPE, B.D.'s parents contend that their son was placed in "unsafe, unhealthy and life threatening situations at GPS" and needed to be provided "agreed upon services and education in a safe and appropriate learning environment." (Am. Compl. ¶ 61). For all the reasons detailed above in connection with the Rehabilitation Act claim, these § 1983 claims are, in essence, a denial of a FAPE and subject to the exhaustion requirements of the IDEA.

Finally, this court notes that in addition to the denial of the use of the service dog, the plaintiffs base their Section 1983 claim on the failure of the defendants to agree to an in-district or out-of-district placement and the failure to appropriately implement B.D.'s IEP. They also contend that GPS violated the IDEA's "child find" provision by delaying B.D.'s evaluation by an optometrist and, ultimately, denying B.D.'s

7 Moreover, as detailed above, the plaintiffs' Rehabilitation Act claim is, in essence a claim under the IDEA.

evaluation [*35] by an optometric behavioral specialist. These specific objections are well-suited for evaluation by a BSEA hearing officer, especially given the broad scope of such hearings. See Rose, 214 F.3d at 210 (quoting 20 U.S.C. § 1415(b)(6)). For all these reasons, the plaintiffs were obligated to exhaust all of the federal claims unless they were excused from doing so. For the reasons detailed below, they were not.

D. The Plaintiffs Were Not Excused from the IDEA's Exhaustion Requirements

Plaintiffs argue that they should be excused from having exhausted their administrative remedies under the IDEA with respect to their Rehabilitation Act and Section 1983 claims on the grounds of futility and undue burden. This court disagrees.

"Exhaustion may not be required where the pursuit of administrative remedies would be futile or inadequate; waste resources, and work severe or irreparable harm on the litigant; or when issues raised involve purely legal questions." Pihl v. Mass. Dep't of Educ., 9 F.3d 184, 190 (1st Cir. 1993). "A party who seeks to bypass the administrative process 'bears the burden' of showing why futility applies." Pollard, 132 F. Supp. 3d at 222 (quoting Frazier, 276 F.3d at 59). Here, the plaintiffs' principal argument in support of their contention that administrative exhaustion is futile is that the remedies plaintiffs seek (compensatory damages [*36] for physical injuries B.D. sustained while attending GPS from July to September 2012 and for physical and psychological injuries to his parents including the cost of medical care for B.D.'s five seizures) are unavailable under the IDEA. (See Pl. Opp. (Docket No. 57) at 6-14). Admittedly, in Fry the Supreme Court left open the question whether "exhaustion [is] required when the plaintiff complains of the denial of a FAPE, but the specific remedy she requests — here, money damages for emotion distress — is not one that an IDEA hearing officer may award[.]" Fry, 137 S. Ct. at 752 n. 4. However, First Circuit precedent clearly requires that the plaintiffs exhaust their administrative

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remedies in such circumstances.

In Frazier v. Fairhaven School Committee, 276 F.3d 52 (1st Cir. 2002), the First Circuit expressly held that plaintiffs bringing an IDEA-based claim and who seek only money damages "must exhaust the administrative process available under the IDEA as a condition precedent to entering a state or federal court." Id. at 64. The First Circuit explained,

[e]xhaustion is beneficial regardless of whether the administrative process offers the specific form of remediation sought by a particular plaintiff. After all, the administrative process facilitates the compilation of a fully developed [*37] record by a factfinder versed in the educational needs of disabled children — and that record is an invaluable resource for a state or federal court required to adjudicate a subsequent civil action covering the same terrain.

Id. at 61. "The IDEA's administrative machinery places those with specialized knowledge — educational professionals — at the center of the decisionmaking process, entrusting to them the initial evaluation of whether a disabled student is receiving a free appropriate public education." Id. at 60. Thus, "the educational expertise of the BSEA and its capacity to collect and evaluate a complicated educational record" can greatly assist a court "not only in crafting appropriate educational services, but also where the ultimate question is whether a disabled child was denied his/her right to an equal education[.]" CBDE Public Sch. v. Mass. Bureau of Special Educ., Civil Action Nos. 11-10874-DPW, 12-11082-DPW, 2012 U.S. Dist. LEXIS 139060, 2012 WL 4482296, at *9 (D. Mass. Sept. 27, 2012) (internal quotations and citations omitted). Consequently, it is clear in the First Circuit that the fact that the plaintiffs are seeking only monetary damages does not relieve them of the requirement that they exhaust their administrative remedies.

The plaintiffs' other arguments are [*38] equally unavailing. For example, they argue that development of the factual record is not required in this case because the record has already been developed in the

2010 BSEA proceeding, and in connection with the parties' communications and agreement pertaining to B.D.'s IEP and eventual out-of-district placement. (See Pl. Opp. at 11-12). Similarly, plaintiffs argue that exhaustion should be excused on the basis that it would have been overly burdensome because plaintiffs had already adjudicated defendants' inability to implement B.D.'s IEP and provide for his education and safety needs in connection with the 2010 BSEA hearings. (Id. at 11). However, these arguments do not excuse exhaustion. The facts central to this matter, relating to the circumstances that allegedly caused B.D. to suffer seizures during the summer of 2012 (in other words, the failure to appropriately implement his IEP and provide the supports he needed), had not occurred at the time of the 2010 BSEA hearing and have yet to be determined.8 In particular, but without limitation, the issue whether B.D.'s IEP should have been amended to add a service dog, or whether B.D. should have been entitled to additional visual screenings [*39] had not even arisen by the time of the 2010 hearing. "[T]he BSEA's record [would] provide a fundamental and useful compilation of facts and initial legal analysis by an educational expert with respect to the educational claims. Consequently, neither the record nor the analysis would be, as [plaintiff] contends, inherently wasteful." CBDE Public Sch., 2012 U.S. Dist. LEXIS 139060, 2012 WL 4482296 at *10.

Finally, plaintiffs argue that exhaustion is futile and should be excused because the condition creating the damage has ceased in that B.D. is no longer at GPS. (See Pl. Opp. at 10). This argument was expressly rejected by the Frazier court in response to an argument that exhaustion should not be required where the student had already graduated. Frazier, 276 F.3d at 63. As the Frazier court held, not only is compensatory education an available remedy even after graduation, but "[t]he IDEA provides a comprehensive remedial scheme, and the plaintiffs could have invoked it at any of several different

8 Moreover, the fact that GPS eventually agreed to an out-of-district placement does not mean that relevant, disputed facts have been established.

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points during [the student's . . .] school years. It would be a hollow gesture to say that exhaustion is required — and then to say that plaintiffs, by holding back until the affected child graduates, can evade the requirement." Id.

In sum, proceedings before the BSEA would provide [*40] a reviewing court with valuable information in this case, including, without limitation, whether the service dog should have been added to the IEP, whether B.D. was entitled to further optometric services, whether an in or out-of-district placement was required after the 2010 BSEA decision but before GPS agreed to one, and whether the defendants were appropriately implementing B.D.'s IEP during the summer of 2012. The plaintiffs have not met their burden of establishing that exhaustion of administrative remedies would be futile or unduly burdensome, since such proceedings would involve issues not previously addressed by the BSEA. Since the plaintiffs have failed to exhaust their administrative remedies, the federal claims must be dismissed.

IV. CONCLUSION

For the reasons detailed herein, the defendants' Motion for Judgment on the Pleadings (Docket No. 48) and Supplemental Motion for Judgment on the Pleadings (Docket No. 61) are ALLOWED as to plaintiffs' Rehabilitation Act claim (Count IV) and Section 1983 claim (Count V). This court declines to exercise its pendant jurisdiction over the remaining state law claims, which are to be remanded to the state court.

/s/ Judith Gail Dein

Judith Gail Dein

United [*41] States Magistrate Judge

End of Document

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A.R. v. Sch. Admin. Unit #23

United States District Court for the District of New Hampshire

October 12, 2017, Decided; October 12, 2017, Filed

Case No. 15-cv-152-SM

Reporter2017 U.S. Dist. LEXIS 169466 *; 2017 DNH 219

A.R., Jamie Riley and Alan Riley, on behalf of their son, Plaintiffs v. School Administrative Unit #23, Defendant

Prior History: Riley v. Sch. Admin. Unit #23, 2015 U.S. Dist. LEXIS 174832 (D.N.H., Dec. 21, 2015)

Counsel: [*1] For Jamie Riley Individually, and as parent of minor child, A.R. other A.R., Plaintiff: Kirk C. Simoneau, Nixon Vogelman Barry Slawsky & Simoneau PA, Manchester, NH.

For Alan Riley Individually, and as parent of minor child, A.R., Plaintiff: David P. Slawsky, Nixon Vogelman Barry Slawsky & Simoneau PA, Manchester, NH; Kirk C. Simoneau, Nixon Vogelman Barry Slawsky & Simoneau PA, Manchester, NH.

For School Administrative Unit #23 other SAU #23, Defendant: Melissa A. Hewey, LEAD ATTORNEY, Drummond Woodsum & MacMahon (ME), Portland, ME; Dona Feeney, Joshua S. Hilliard, Maggiotto Belobrow Feeney & Fraas PLLC, Concord, NH; Jeanne M. Kincaid, DrummondWoodsum (NH), Portsmouth, NH.

Judges: Steven J. McAuliffe, United States District Judge.

Opinion by: Steven J. McAuliffe

Opinion

ORDER

Plaintiffs, A.R., and Jamie Riley and Alan Riley, on

behalf of their son, A.R., filed suit on April 29, 2015, asserting violations of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("Section 504") by defendant School Administrative Unit #23 (the "District").1

A.R. is a student at Woodsville Elementary School who has been diagnosed with developmental delays, hypotonia, hearing loss, dysphagia, epilepsy, and cortical [*2] blindness. A.R., who is non-verbal, suffers from frequent seizures of multiple types (drop, grand mal, temporal lobe). Those seizures impact A.R's independent mobility, and he requires significant support to be safe, to be mobile within his classroom and on the school campus, to care for his personal needs, and to communicate those needs to others.

A.R. receives special education and related services from the District pursuant to his individualized education plan ("IEP"). Those services include instruction from a special education teacher, a teacher of the deaf, and a teacher of the visually impaired, as well as related services of speech, physical therapy and occupational therapy. Since June of 2012, A.R. has also been accompanied by a one-on-one aide who, currently, is a registered nurse. The aide's responsibilities include: wiping his mouth to prevent skin irritation, feeding A.R., treating A.R.'s multiple seizures (by monitoring his breathing, placing him a safe location during seizures, and checking for ill effects resulting from the seizures), assisting A.R.

1 Plaintiffs also brought suit against Dr. Donald A. LaPlante, the District's Interim Superintendent, but have since voluntarily dismissed all claims against him. See Document No. 46.

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with walking from place to place, and, on some days, providing instructional support.

A.R. has a service dog named Carina. [*3] Carina was trained by 4 Paws for Ability ("4 Paws") as a multipurpose service animal. Carina alerts for seizures by licking A.R.'s face. While Carina is trained to go through the school day without needing to be walked, eat or relieve herself, she requires a service animal handler during the school day. Because of A.R.'s cognitive, sensory and physical limitations, he is not in a position to act in that capacity. After some initial resistance, the District allows Carina to accompany A.R. at school. However, the District requires that A.R.'s parents provide and pay for a handler to supervise Carina during the school day. Plaintiffs contend that, by refusing to provide and pay for a service dog handler for Carina while A.R. is at school, the District has failed to reasonably accommodate A.R.'s disability.

Upon filing suit, plaintiffs moved for a preliminary injunction. The Magistrate Judge held a hearing on that motion on November 12, 2016, and issued her Report and Recommendation on December 22, 2016, (document no. 39), recommending that plaintiffs' motion be denied. Neither party objected to the Magistrate Judge's recommendation, and, on January 13, 2016, the court approved that Report [*4] and Recommendation, denying plaintiffs' motion for injunctive relief.

The IDEA: Background

In opposing plaintiffs' motion for preliminary relief, the District argued, in part, that plaintiffs were unlikely to succeed on the merits because they were required, but failed, to first exhaust their administrative remedies under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA"). As our Supreme Court has explained, the IDEA:

ensures that children with disabilities receive needed special education services. One of its provisions, § 1415(l), addresses the Act's

relationship with other laws protecting those children. Section 1415(l) makes clear that nothing in the IDEA "restrict[s] or limit[s] the rights [or] remedies" that other federal laws, including antidiscrimination statutes, confer on children with disabilities. At the same time, the section states that if a suit brought under such a law "seek[s] relief that is also available under" the IDEA, the plaintiff must first exhaust the IDEA's administrative procedures.

Fry v. Napoleon Cmty. Sch., U.S. , 137 S. Ct. 743, 748, 197 L. Ed. 2d 46, (2017).

The IDEA "offers federal funds to States in exchange for a commitment: to furnish a 'free appropriate public education' — more concisely known as a FAPE — to all children with certain physical [*5] or intellectual disabilities." Id. at 748 (citing 20 U.S.C. §§ 1412(a)(1)(A) and 1414(a)(3)(A)(i)). "[A] FAPE comprises 'special education and related services' — both 'instruction' tailored to meet a child's 'unique needs' and sufficient 'supportive services' to permit the child to benefit from that instruction." Id. at 748-49 (quoting 20 U.S.C. § 1401(9), (26), (29) (additional citations omitted).

The scope of "related services" under the IDEA is fairly broad. As the Supreme Court observed, "related services," as defined by the IDEA, "broadly encompass[] those supportive services that 'may be required to assist a child with a disability to benefit from special education.'" Cedar Rapids Community Sch. Dist. v. Garret F. by Charlene F., 526 U.S. 66, 73, 119 S. Ct. 992, 143 L. Ed. 2d 154 (1999). "A service that enables a handicapped child to remain at school during the day is an important means of providing the child with the meaningful access to education that Congress envisioned." Irving Independent School Dist. v. Tatro, 468 U.S. 883, 891, 104 S. Ct. 3371, 82 L. Ed. 2d 664 (1984). "Services . . . that permit a child to remain at school during the day are no less related to the effort to educate than are services that enable the child to reach, enter or exit the school." Id.

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An "individualized education program, called an IEP for short, serves as the 'primary vehicle' for providing each child with the promised FAPE." Fry, 137 S. Ct. at 749 (quoting Honig v. Doe, 484 U.S. 305, 311, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988)). In addition to documenting "the child's current 'levels of academic [*6] achievement,'" and specifying "measurable annual goals," the IEP also "lists the 'special education and related services' to be provided so that" the child may "advance appropriately toward [those] goals." Id. (quoting 20 U.S.C. §§ 1414(d)(1)(A)(i)(I), (II), (IV)(aa)).

The IDEA "establishes formal procedures for resolving disputes" between parents and school representatives when they "cannot agree on such issues," and requires exhaustion of those procedures before seeking judicial review. Id. A plaintiff asserting claims arising "under the ADA, the Rehabilitation Act, or other similar laws, must in certain circumstances" exhaust the IDEA's administrative procedures prior to filing. Id. at 750. Our court of appeals has "recognized that exhaustion is mandatory in such cases, even though a party might seek relief that 'is not available in the administrative venue.' Mandatory exhaustion in such cases is both consistent with the legislative intent of the IDEA and practical because it 'facilitate[s] the development of a useful record.'" S.S. by S.Y. v. City of Springfield, Mass., 146 F. Supp. 3d 414, 418 (D. Mass. 2015) (quoting Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 62 (1st Cir. 2002)). However, before the Supreme Court's February, 2017, opinion in Fry v. Napoleon Cmty. Sch., the full scope of the IDEA's exhaustion requirement was unsettled. See Fry, 137 S. Ct. at 752 (explaining that the Court granted [*7] certiorari "to address confusion in the courts of appeals as to the scope of § 1415(l)'s exhaustion requirement.").

Fry v. Napoleon

In Fry, a Michigan elementary school refused to allow E.F., a student with a severe form of cerebral palsy, to bring her service dog, Wonder, to school. Fry, 137 S. Ct. at 750. The Frys filed suit under Title II of the

ADA and Section 504 of the Rehabilitation Act. The school district moved to dismiss, arguing that the Frys were required to first exhaust the IDEA's administrative remedies procedures. Id. at 752. The Sixth Circuit agreed, finding that, "[b]ecause the harms to E.F. were generally 'educational' — most notably, the court reasoned, because 'Wonder's absence hurt her sense of independence and social confidence at school' — the Frys had to exhaust the IDEA's procedures." Id. (quoting Fry v. Napoleon Cmty. Schs., 788 F.3d 622, 627 (6th Cir. 2015)). In making that determination, the Sixth Circuit took the view that the IDEA's exhaustion requirements apply "whenever 'the genesis and manifestations' of the complained-of harms were 'educational' in nature." Id. (quoting Fry, 788 F.3d at 627).

In this case, the District relied primarily upon the Sixth Circuit's opinion in Fry, arguing that the IDEA's administrative remedies must be exhausted before A.R.'s suit could be filed. In her report and recommendation, [*8] the Magistrate Judge carefully considered the Sixth Circuit's opinion, but found it distinguishable. She noted that, in Fry, the primary reason Wonder was in school was to develop and maintain a "bond" with E.F., which, the Sixth Circuit found was an educational goal. See Document No. 39, at 19. Here, the Magistrate Judge determined, the evidence demonstrated that Carina, A.R.'s service dog, was not related to A.R.'s educational goals. Instead, Carina was a "health and safety service used by A.R. to identify and alert for seizures." Id. at 18. And, she noted, the defendants seemingly agreed, as "defendants' counsel acknowledged that if Carina does not come to school, A.R. is not denied any program activity or service offered by the district." Id. Accordingly, the magistrate concluded, the IDEA's exhaustion requirement did not apply, as plaintiffs were not contending that A.R.'s IEP was inadequate or that he was receiving a substandard education. See id. at 17.

On February 22, 2017, the Supreme Court vacated the Sixth Circuit's decision in Fry, and clarified the scope of the IDEA's exhaustion requirement. 137 S. Ct. at 752. The Court held that "exhaustion is not

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necessary when the gravamen of the plaintiff's suit is something [*9] other than the denial of the IDEA's core guarantee — what the Act calls a 'free appropriate public education.'" Id. at 748. However, "[i]f a lawsuit charges such a denial, the plaintiff cannot escape § 1415(l) merely by bringing her suit under a statute other than the IDEA." Id. at 754.

The Court further held that, "in determining whether a suit indeed 'seeks' relief for such a denial [of a FAPE], a court should look to the substance, or gravamen, of the plaintiff's complaint." Id. at 752. The Court stated:

In addressing whether a complaint fits that description, a court should attend to the diverse means and ends of the statutes covering persons with disabilities — the IDEA on the one hand, the ADA and Rehabilitation Act (most notably) on the other. The IDEA, of course, protects only "children" (well, really, adolescents too) and concerns only their schooling. § 1412(a)(1)(A). And as earlier noted, the statute's goal is to provide each child with meaningful access to education by offering individualized instruction and related services appropriate to her "unique needs." § 1401(29); see Rowley, 458 U.S., at 192, 198; supra, at 753 - 754.

By contrast, Title II of the ADA and § 504 of the Rehabilitation Act cover people with disabilities of all ages, and do so both inside and outside schools. And those statutes aim [*10] to root out disability-based discrimination, enabling each covered person (sometimes by means of reasonable accommodations) to participate equally to all others in public facilities and federally funded programs. See supra, at 749 - 750. In short, the IDEA guarantees individually tailored educational services, while Title II and § 504 promise non-discriminatory access to public institutions. That is not to deny some overlap in coverage: The same conduct might violate all three statutes — which is why . . . a plaintiff might seek relief for the denial of a FAPE under Title II and § 504 as well as the IDEA. But still, the statutory differences just discussed mean that

a complaint brought under Title II and § 504 might instead seek relief for simple discrimination, irrespective of the IDEA's FAPE obligation.

One clue to whether the gravamen of a complaint against a school concerns the denial of a FAPE, or instead addresses disability-based discrimination, can come from asking a pair of hypothetical questions. First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school — say, a public theater or library? And second, could an adult [*11] at the school — say, an employee or visitor — have pressed essentially the same grievance? When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject; after all, in those other situations there is no FAPE obligation and yet the same basic suit could go forward. But when the answer is no, then the complaint probably does concern a FAPE, even if it does not explicitly say so; for the FAPE requirement is all that explains why only a child in the school setting (not an adult in that setting or a child in some other) has a viable claim.

Id. at 755-56. The Court continued: "[a] further sign that the gravamen of a suit is the denial of a FAPE can emerge from the history of the proceedings. In particular, a court may consider that a plaintiff has previously invoked the IDEA's formal procedures to handle the dispute — thus starting to exhaust the Act's remedies before switching midstream." Id. at 757.

The Court determined that the Sixth Circuit had erred by asking whether E.F.'s injuries were, broadly speaking, "educational" in nature, rather than "asking whether the gravamen of E.F.'s complaint charges, and seeks relief [*12] for, the denial of a FAPE." Id. at 758. And, because "[u]nderstood correctly, § 1415(l) might not require exhaustion of the Frys' claim," the court remanded the case to the court below. Id.

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Given the intervening Supreme Court precedent since the Magistrate Judge's report and recommendation was issued, this court issued an order on March 10, 2017, asking that plaintiffs show cause why the case should not be stayed pending exhaustion of IDEA's remedies, or dismissed for failure to exhaust those administrative remedies. At that time, the court denied defendants' pending summary judgment motion without prejudice, pending consideration of the IDEA administrative remedies issue. Both parties filed legal memoranda in response.

Discussion

Plaintiffs argue that the relief they are seeking (provision of a service dog handler by the District) is not available to them under the IDEA, because that relief is not necessary to A.R.'s obtaining an appropriate education. They say that the requested accommodation relates only to medical issues, not A.R.'s educational needs. The District argues that while plaintiffs would not be entitled to the requested relief on the merits under the IDEA, still, the gravamen of plaintiffs' [*13] complaint is whether the District must provide supportive services necessary for Carina to attend school with A.R. - a request unique to the relationship between a disabled student and a school, and one that falls within the reach of the IDEA. That is, such relief "could" be obtained under the IDEA if necessary in a specific case. Therefore, defendants say, plaintiffs were required to first exhaust their IDEA administrative remedies before bringing suit.

This case is somewhat unique in that both parties agree, for different reasons, that plaintiffs cannot obtain the requested relief under the IDEA, because A.R. is not suffering educational harm. Neither party argues that Carina is educationally necessary for A.R., and both parties agree that Carina does not assist A.R. in achieving any of the educational goals described in his IEP. And, plaintiffs are not alleging that A.R. is, in any way, being denied the benefit of a free and appropriate public education. In fact, as the

magistrate judge noted, during the preliminary injunction hearing, A.R.'s mother testified that she was satisfied with the education that A.R. was receiving. See Document No. 47-1, at 111:23-112:1. However, the parties' [*14] agreement with respect to the IDEA issue is not dispositive: If the gravamen of plaintiffs' complaint implicates A.R.'s rights to a free and appropriate public education, then plaintiffs are required to exhaust their IDEA administrative remedies.

Distinguishing this case from most of those relied on by plaintiffs, is the fact that the District readily accommodates A.R.'s need for a service animal. Several courts have determined that claims involving a school district's refusal to allow a service dog to accompany a student to school do not implicate the IDEA and its administrative scheme. See, e.g., Sullivan v. Vallejo City Unified Sch. Dist., 731 F. Supp. 947, 951 (E.D. Cal. 1990). Here, however, plaintiffs are not complaining that the District is discriminating against A.R. on the basis of his disability by refusing him access when accompanied by his service dog. Instead, the crux of plaintiffs' complaint is that the District discriminates against A.R. by refusing to pay for and provide a handler for Carina. So, plaintiffs are not merely asking that the District allow A.R. to be accompanied by his service dog while he is at school. Instead, plaintiffs want the District to hire, train and pay for a handler for Carina.

Plaintiffs argue that the gravamen of their complaint [*15] actually addresses an entirely unrelated issue: the District's failure to comply with a settlement agreement the parties reached in earlier proceedings before the Office of Civil Rights of the U.S. Department of Education. See Pls.' Br. at 8. But that argument is not supported by the filed complaint, which contains only one passing reference to the settlement agreement, no discussion of its terms, or the parties' respective obligations under it, no specifics concerning how the District failed to comply with the agreement, and no claims for relief for its breach. There surely is a venue and a means by which claims of right arising under an agreement or

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administrative consent decree can be resolved, but this lawsuit does not provide either given the complaint as filed.

In their complaint, plaintiffs allege that, through Carina's alerts, "A.R. can be directed to a safe location and decrease the chance that an injury will result," that Carina provides "psychological benefit" to A.R. as a constant presence in his life, and that Carina's presence at school is necessary to maintain her bond with A.R. Compl. PP 11, 16-17. Plaintiffs allege that A.R. is being denied "equal access" to school [*16] because the school will not provide him with the necessary handler for Carina.

With respect to A.R.'s IEP, plaintiffs allege in their complaint that the District refused to include Carina in A.R.'s IEP. See compl. ¶¶ 18, 20. At the preliminary injunction hearing, Ms. Riley testified that, at some point, she had asked to add Carina and a handler to A.R.'s IEP, but was told "no." See Document No. 47-1 at 112. On March 6, 2012, plaintiffs sent a letter to the District indicating that they were not:

currently going to pursue adding Carina to [A.R.'s] IEP. However, if you plan to address a change in [A.R.'s] aide managing Carina in the school settling then I wish to proceed under the ADA.

Preliminary Inj. Hearing, Pls. Exh. 5. Finally, A.R.'s current IEP notes that his parents will provide him with certain items and supplies while he attends school, including a seizure alert dog and an adult handler for the service dog. See Document No. 44-7.

So, while plaintiffs insist that they are not taking issue with the adequacy of A.R.'s education or his IEP, the complaint discloses that plaintiffs are dissatisfied with the level of services (or support) the District is providing to A.R. In Fry, the [*17] court noted that the complaint "allege[d] only disability-based discrimination, without making any reference to the adequacy of the special education services [plaintiff's] school provided." 137 S. Ct. at 758. Here, in contrast, plaintiffs do allege that the level of supportive services provided by the District is inadequate,

because the District refuses to provide a handler to issue verbal commands to Carina, hold Carina's leash while she is with A.R., and employ Carina in accordance with A.R.'s seizure protocol.

Given the hypothetical questions identified by the Court in Fry, one must ask: (1) Could plaintiffs bring the same claim if the alleged conduct occurred at a public institution other than a school?; and (2) Could an adult at the school have pressed essentially the same grievance? Fry, 137 S. Ct. at 756. The answer to both questions is no. Plaintiffs could not state a cognizable claim for relief under the ADA or Rehabilitation Act against, for example, a public library based on the library's failure to provide a handler for Carina while A.R. was visiting the library. Nor could an adult state a cognizable claim against a school based on that school's refusal to provide a handler for the adult's service animal while [*18] visiting the school. That is in part because, under the ADA, "[a] public entity is not responsible for the care or supervision of a service animal." 28 C.F.R. § 35.136(e); Cf., U.S. v. Gates-Chili Central Sch. Dist., 198 F. Supp. 3d 228, 234 (W.D.N.Y. 2016) (finding that school district had no obligation under the ADA or its regulations to "provide handling services" for a student's service dog).

Of course, Fry's hypothetical questions were not meant to be taken as bright line tests. But the answers here suggest that the rights claimed by plaintiffs are unique to a student's effort to obtain an appropriate public education. And, the parties' past relationship plainly suggests that plaintiffs are, in actuality, seeking relief related to A.R.'s educational entitlements, notwithstanding their denials in unison. In her March 6, 2012, letter, A.R.'s mother stated that, rather than initiating IDEA administrative proceedings to add Carina to A.R.'s IEP, the family would instead be proceeding under the ADA. While the record is unclear as to whether plaintiffs at any point did attempt to invoke the IDEA's formal procedures with respect to Carina's services, the March 6, 2012, letter lends some support to a finding that the gravamen of plaintiffs' suit concerns the denial of a FAPE.

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Finally, [*19] plaintiffs seem to argue that exhaustion of their IDEA remedies would have been futile. They contend that, even if they were to seek relief through the IDEA's administrative remedies, the hearing officer would have no authority to order that relief because A.R.'s FAPE is not affected by the purported discrimination at issue. Plaintiffs' expectations about what a hearing officer might determine with respect to whether providing A.R. with a handler for Carina is necessary for a FAPE are of course not dispositive. A hearing officer might determine that providing a handler for Carina falls within "related services" that the District is required to provide to A.R. under the IDEA.

As the magistrate judge fully explained in her order on their motion for preliminary relief, plaintiffs are not entitled to the relief they seek under either the ADA or the Rehabilitation Act. See Document No. 39 at 21-30; 32-37; see also Alboniga v. Sch. Bd. of Broward Cty. Fla., 87 F. Supp. 3d 1319, 1341 (S.D. Fla. 2015) ("Turning to the specific regulatory provisions at issue, 28 C.F.R. § 35.136(d) provides that '[a] service animal shall be under the control of its handler.' By implication, requiring a public entity to act as handler for and to control the service animal would not be a reasonable accommodation mandated [*20] by the ADA.") (citations omitted); U.S. v. Gates-Chili Central Sch. Dist., 198 F. Supp. 3d at 234. To the extent the relief sought by plaintiffs might be available at all, it is only available under the IDEA. Accordingly, plaintiffs' claims fall within the reach of the IDEA, and Fry requires that they be dismissed for failure to first exhaust available administrative remedies.

CONCLUSION

For the foregoing reasons, as well as those set forth in defendants' briefing (document no. 55), plaintiffs' claims against the defendants are dismissed, albeit without prejudice. The Clerk of Court shall close the case.

SO ORDERED.

/s/ Steven J. McAuliffe

Steven J. McAuliffe

United States District Judge

October 12, 2017

End of Document

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51

Condit v. Bedford Cent. Sch. Dist.

United States District Court for the Southern District of New York

October 16, 2017, Decided; October 16, 2017, Filed

No. 16-CV-6566 (CS)

Reporter2017 U.S. Dist. LEXIS 171701 *; 2017 WL 4685546

SUSAN CONDIT and BRAD CONDIT, as legal guardians for W.C. and in their individual capacities, Plaintiffs, - against - BEDFORD CENTRAL SCHOOL DISTRICT, MT. KISCO ELEMENTARY SCHOOL, JERE HOCHMAN, SUSAN OSTROFSKY, KWEON STAMBAUGH, BEVERLY DESUZA, PAULA FRIEDMAN, HELEN TEDESCO, LAURIE BAUER, MARGARET BARNACLE, DAVID GEE, MELANIE GILBERT, STEPHANIE ROEBUCK, KEANE & BEAN, PC, Defendants.

Subsequent History: Later proceeding at Condit v. Bedford Cent. Sch. Dist., 2017 U.S. Dist. LEXIS 185325 (S.D.N.Y., Nov. 7, 2017)

Counsel: [*1] For Plaintiffs: Anthony M. Giordano, Ossining, New York.

For Keane & Beane, Defendants: Judson K. Siebert Keane & Beane, P.C., White Plains, New York.

For District, Defendants: Lewis R. Silverman, Karen C. Rudnicki, Silverman & Associates, White Plains, New York.

Judges: CATHY SEIBEL, UNITED STATES DISTRICT JUDGE.

Opinion by: CATHY SEIBEL

Opinion

OPINION AND ORDER

Seibel, J.

Before the Court are the motions to dismiss of Defendants Bedford Central School District ("District"), Mount Kisco Elementary School ("School"), and District employees Margaret Barnacle, Laurie Bauer, Beverly Desuza, Paula Friedman, David Gee, Melanie Gilbert, Jere Hochman, Susan Ostrofsky, Kweon Stambaugh, and Helen Tedesco's (the "District Defendants"), (Doc. 17), and of Keane & Beane, P.C. ("K&B")1 and Stephanie Roebuck, a lawyer at K&B (the "K&B Defendants"), (Doc. 25).

I. BACKGROUND

I accept as true the facts, but not the conclusions, set forth in Plaintiffs' First Amended Complaint. (Doc. 12 ("AC").)

A. Facts

Plaintiffs are W.C., a minor, and his parents, Susan and Brad Condit ("Plaintiff Parents"). (Id. ¶ 21.) W.C. is diagnosed with Attention Deficit Hyperactivity Disorder, Dyslexia, Expressive Language Disorder, Irritable Bowel Syndrome, and [*2] Post Traumatic Stress Disorder. (Id. ¶ 22.) W.C. had an Individualized Education Program ("IEP") that provided, among other things, special assistance from his teachers. (Id. ¶ 24.) In September 2012, W.C. entered the fifth grade at Mt. Kisco Elementary School, at which point he began experiencing bullying and harassment from a student in his class,

1 Plaintiffs incorrectly named K&B as "Keane & Bean, PC." (Doc. 12; see Doc. 1 ¶ 1.)

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L.C., who suffered from learning and psychological disabilities. (Id. ¶¶ 23, 26.) For example, L.C. would leave her seat, approach W.C., touch him in various places, push him, place her face directly in front of his and stare at him, all of which resulted in W.C.'s anxiety and distraction from schoolwork. (Id. ¶ 27.) Plaintiff Parents allege that even though these activities were occurring "on a daily basis," they were "wholly ignored" by W.C.'s teacher, Beverly Desuza, (id. ¶ 26), and although they made numerous complaints about L.C. to the School and the District by phone, letter, appointments, and email, "little or nothing [was done] to address the situation," (id. ¶ 30).

As an apparent result of this prolonged harassment and bullying, Plaintiff Parents increased W.C.'s anxiety medication under medical supervision in March 2013. (Id. [*3] ¶ 31.) Later that month, W.C. suffered a seizure brought on by the increase in his medication, had to be revived after he stopped breathing, and was hospitalized for four days. (Id. ¶¶ 32-33.) After W.C. returned to school, "he reported no changes implemented to protect him from bullying and harassment from" L.C., which continued. (Id. ¶¶ 34-35.) In April 2013, frustrated by the District's inaction, Plaintiff Parents filed a report with the local police regarding L.C. and the alleged failure of the District Defendants to protect their son. (Id. ¶ 37.)

On April 11, 2013, Roebuck sent a letter to Plaintiff Parents in her role as legal counsel for the District. (Id. ¶ 38; Doc. 33 ("Roebuck Decl.") Ex. B ("Letter").)2 Plaintiffs claim that the letter "falsely accuse[d] them of abusive threatening behavior towards the" District Defendants, was sent in

2 While Plaintiffs did not attach the April 11, 2013 letter to their AC, the K&B Defendants attached the letter — which I may properly consider on this motion, as I will discuss shortly — to their motion to dismiss. I need not take as true any allegations regarding the contents of the letter that are contradicted by the actual letter. See MBIA Inc. v. Certain Underwriters at Lloyd's, 33 F. Supp. 3d 344, 353 (S.D.N.Y. 2014) ("Allegations in the complaint that are 'contradicted by more specific allegations or documentary evidence' are not entitled to a presumption of truthfulness.") (quoting Kirkendall v. Halliburton, Inc., 707 F.3d 173, 175 n.1 (2d Cir. 2013)).

"retaliation for exercising their right to petition their government by filing a police report," and "threatened plaintiff guardians with criminal prosecution." (AC ¶¶ 38-40.) Plaintiffs further contend that the Letter "sought to justify [the District's] improper and unconstitutional retaliatory action by falsely claiming that plaintiff guardians [sic] exercise of speech constituted behavior that violated the 'District Code of Conduct' and the 'Board's harassment policies regarding employee harassment,' . . . without citing any specific behavior or speech in support of this claim." (Id. ¶ 41.)

The Letter itself states that "[t]he District comes to this point for one reason and one reason only — your behavior [*4] towards the staff." (Letter at 1.) Roebuck opines that Plaintiff Parents "crossed the line with" several specified written communications sent in March and April of 2013, and directs that in the future, "should [they] wish to communicate with" the District staff, they "must send a written communication through [K&B's] office . . . [and that Roebuck] will send the District's response after consultation with the appropriate staff." (Id. at 2.) The Letter also restricted Plaintiffs Parents' access to the School, stating that they would "not be allowed onto any . . . District property, except in limited circumstances." (Id.) It enumerated the circumstances (including, among other things, drop-off and the spring concert) and provided that "the District will accommodate any public event after school hours your sons participate in that other parents are invited to attend not mentioned . . . above," stating that "[a]s these events arise, [Roebuck] will contact you in writing regarding how your presence will be arranged." (Id. at 3.) The Letter makes reference to the police incident report filed earlier that month, but states that "the District welcomes any and all third party review of the actions it has taken regarding [*5] [W.C.] and his education." (Id.) Finally, the Letter informed Plaintiff Parents that L.C. "w[ould] not be removed from W.C.'s class, nor will changes be made to her IEP, unless her own education progress calls for same." (Id. at 4.)

Plaintiffs allege that K&B never contacted them to

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inform them of events at the school involving other parents or to provide any guidance as to how their presence would be arranged, resulting in their being barred from attending every school event involving W.C. and their other son for a period of twenty-seven months. (AC ¶ 43.) As a consequence, they allege that they were denied their constitutional rights to protect W.C. from abusive behavior occurring in a public classroom, (id. ¶ 50), to control the upbringing of W.C. free from abuse, (id. ¶ 51), and to participate in their son's education, (id. ¶ 52), and were denied "information essential to their constitutional rights as parents to participate in their son's education," (id. ¶ 54; see id. ¶ 53).

On May 23, 2013, Plaintiff Parents went to the School to vote in a public election. (Id. ¶ 46.) As they approached the School, security guards stopped them, ordered them off the premises, escorted them from School property [*6] without having had the opportunity to vote, and threatened them with arrest should they return. (Id. ¶ 47.) K&B informed Plaintiff Parents later that day that they were allowed to return to vote, but Plaintiff Parents chose not to do so for fear that it was a ploy to have them arrested. (Id. ¶ 49.)

Plaintiffs bring four claims, including: (1) a claim under 42 U.S.C. § 1983 for First Amendment retaliation and violations of the Fourteenth Amendment resulting in denial of voting rights; (2) a § 1983 claim for due process violations for denying Plaintiff Parents a "right to contest or appeal the punitive sanctions imposed against them" under the Fourteenth Amendment; (3) § 1983 claim for retaliation resulting in disparate treatment under the First and Fourteenth Amendments; and (4) a violation of W.C.'s constitutional right to an equal education by the failure to protect him.

B. Procedural History

Plaintiffs filed a summons and notice in Westchester County Supreme Court on May 20, 2016. (Doc. 1 Ex. A.) Defendants were served with the summons and notice on or around July 28, 2016, (Doc. 1 ¶ 5), and

removed the case to this Court on August 18, 2016, (see id. at 4). Plaintiffs filed a Complaint in this Court on October 27, 2016, (Doc. 8), and an Amended Complaint on December 7, 2015, (Doc. 12), but the docket [*7] does not reflect that either was served on any of the Defendants. Both sets of Defendants filed the instant motions on March 22, 2017. (Docs. 17, 25.)

The District Defendants argue that (1) the claims are time-barred and the continuing violation doctrine does not apply, (2) Plaintiffs fail to state a First Amendment retaliation claim because their speech was not chilled and they fail to allege disparate treatment, (3) Plaintiffs fail to state a due process claim, (4) Plaintiffs fail to allege a custom, policy, or practice that would support a Monell claim, (5) Plaintiffs fail to allege that the individual Defendants were personally involved, (6) Plaintiffs fail to exhaust administrative remedies for the "failure to protect" claim, which Defendants contend is more akin to an IDEA claim, (7) Plaintiffs should have appealed the Letter pursuant to New York State law, and (8) Defendants are entitled to qualified immunity. (See generally Doc. 19 ("Dist. Ds' Mem.").) The District Defendants also contend in a footnote that the Court lacks personal jurisdiction and move to dismiss under Federal Rule of Civil Procedure 12(b)(2) because Plaintiffs did not properly serve the initiating documents on the individual Defendants. (Id. at 11 n.2.) The K&B Defendants [*8] make similar arguments and join the District Defendants' motion, (Doc. 26 ("K&B Ds' Mem.") at 6), but add that they are not state actors under § 1983, (id. at 11-16). Plaintiffs respond, in essence, that they properly pleaded each of their claims, that the continuing violation doctrine applies, and that the K&B Defendants are state actors under a conspiracy/joint liability theory. (See generally Doc. 22 ("Ps' Dist. Opp."); Doc. 37 ("Ps' K&B Opp.").)

II. DISCUSSION

A. Legal Standard

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"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (alteration, citations, and internal quotation marks omitted). While Federal Rule of Civil Procedure 8 "marks [*9] a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 556 U.S. at 678-79.

In considering whether a complaint states a claim upon which relief can be granted, the court "begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth," and then determines whether the remaining well-pleaded factual allegations, accepted as true, "plausibly give rise to an entitlement to relief." Id. at 679. Deciding whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not 'shown' — 'that the pleader is entitled to relief.'" Id. (alteration omitted) (quoting Fed. R. Civ. P. 8(a)(2)).

B. Documents Properly Considered

When deciding a motion to dismiss, a court is entitled

to consider:

(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents [*10] "integral" to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint . . . , and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.

Weiss v. Inc. Vill. of Sag Harbor, 762 F. Supp. 2d 560, 567 (E.D.N.Y. 2011) (internal quotation marks omitted). To be incorporated by reference, the complaint must make "a clear, definite and substantial reference to the documents." DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 60 (S.D.N.Y. 2010) (internal quotation marks omitted). "A document is integral to the complaint where the complaint relies heavily upon its terms and effect. Merely mentioning a document in the complaint will not satisfy this standard; indeed, even offering limited quotation[s] from the document is not enough." Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (alteration in original) (internal quotation marks and citation omitted).

The District Defendants, the K&B Defendants, and Plaintiffs each attached documents to their motion papers. The District Defendants attached three exhibits: (1) Plaintiffs' Amended Complaint, (2) a June 5, 2015 letter from Jere Hochman, the District's Superintendent, (AC ¶ 7), to Plaintiff Parents, and (3) Decision No. 14,829 of the Commissioner [*11] of Education. (See Doc. 18 ("Silverman Decl.") Exs. A-C.) The K&B Defendants attached five exhibits: (1) Plaintiffs' Amended Complaint, (2) the April 11, 2013 Letter from Roebuck to Plaintiff Parents, (3) the written communications from Plaintiff Parents to which the Letter refers, (4) the District's Code of Conduct, and (5) an email dated May 21, 2013 from Roebuck to Plaintiff Parents regarding their ability to return to school to vote. (See Roebuck Decl. Exs. A-E.) Finally, Plaintiffs attached the same five exhibits

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to each of their opposition motions: (1) emails between Plaintiff Parents and Defendants discussing W.C., (2) additional emails between Plaintiff Parents and Defendants discussing W.C., (3) a letter from Hochman to Plaintiff Parents dated March 1, 2013 regarding W.C.'s attendance, (4) a letter from Plaintiff Parents to Hochman dated April 7, 2013 regarding W.C.'s attendance and Plaintiff Parents' demands moving forward, and (5) the New York State Education Department's Procedural Safeguards Notice dated July 2013. (See Doc. 38 ("Giordano Decl.") Exs. A-E.)

First, the April 11, 2013 Letter, attached as Exhibit B to the Roebuck Declaration, may be considered on this motion [*12] because it forms the basis for Plaintiffs' claims, and is discussed at length, rendering it integral to the Amended Complaint. (See, e.g., AC ¶¶ 38-42, 50-55, 57, 61-62, 64-67.)

Second, "material that is a matter of public record may be considered in a motion to dismiss," Byrd v. City of N.Y., No. 04-CV-1396, 2005 U.S. App. LEXIS 10820, 2005 WL 1349876, at *1 (2d Cir. June 8, 2005), and thus the Decision No. 14,829 of the Commission of Education,3 the District's Code of Conduct,4 and the New York State Education Department's Procedural Safeguards Notice5 may be considered on this motion.

With the exception of the Amended Complaint, the remaining documents may not be considered on this motion. The May 23, 2013 email from Roebuck to Plaintiff Parents, attached as Exhibit E to the Roebuck Declaration, may be the communication mentioned once in passing in the Amended Complaint, (see AC ¶ 49), but even assuming it is, "[m]erely mentioning a document in the complaint"

3 Oliver ex rel. C.O. v. Bd. of Educ. of Bay Shore Union Free Sch. Dist., N.Y.S. Educ. Dep't, No. 14,829 (Jan. 9, 2003).

4 Bedford Cent. Sch. Dist., 5300 Code of Conduct, http://www.bcsdny.org/Page/1674 (last visited Oct. 16, 2017).

5 N.Y.S. Educ. Dep't, Procedural Safeguards Notice, Rights for Parents and Children with Disabilities, Ages 3-21 (July 2013), http://www.p12.nysed.gov/specialed/formsnotices/psgn/PSGN-July2013.pdf .

will not suffice to render it "integral," Goel, 820 F.3d at 559. The other correspondence between Plaintiff Parents and District employees submitted by both parties is not integral to or referenced in the Amended Complaint, even if some of it is mentioned in the Letter. Accordingly, the Court may [*13] not consider Exhibit B to the Silverman Declaration, Exhibits C or E to the Roebuck Declaration, or Exhibits A-D to the Giordano Declaration.

C. Personal Service

The District Defendants state in a footnote, without further discussion, that "personal service of the initiating documents has not been effectuated upon the individual [D]efendants," which would divest this Court of personal jurisdiction over the individually named parties and require dismissal of all claims against them pursuant to Federal Rule of Civil Procedure 12(b)(2). (Dist. Ds' Mem. at 11 n.2.)6

A Court must "dismiss an action against a defendant over which it has no personal jurisdiction upon motion by that defendant." Stone v. Ranbaxy Pharms., Inc., No. 10-CV-8816, 2011 U.S. Dist. LEXIS 64221, 2011 WL 2462654, at *1 (S.D.N.Y. June 16, 2011) (internal quotation marks omitted). "Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Dynegy Midstream Servs., LP v. Trammochem, 451 F.3d 89, 94 (2d Cir. 2006) (internal quotation marks omitted). The Federal Rules of Civil Procedure dictate that "[a] summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service." Fed. R. Civ. P. 4(c)(1). The New York Civil Practice Law and Rules

6 Generally, when defendants move to dismiss on the basis of improper service of process, they move under Federal Rule of Civil Procedure 12(b)(5). See generally Mende v. Milestone Tech., Inc., 269 F. Supp. 2d 246 (S.D.N.Y. 2003). But because improper service of process divests a Court of personal jurisdiction, as discussed below, the defense may be raised under Federal Rule of Civil Procedure 12(b)(2).

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("C.P.L.R.") [*14] states that "[t]he complaint may be served with the summons," and if the summons is served without the complaint, "the defendant may serve a written demand for the complaint." N.Y. C.P.L.R. §§ 3012(a), (b). In that event, the complaint must be served on Defendants within twenty days. Id. § 3012(b). "If service of process was not sufficient, the Court has discretion to dismiss the action, but dismissal is not mandatory," in that a court may grant a plaintiff leave to properly serve the defendants. Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F. Supp. 2d 382, 387 (S.D.N.Y. 2002).

The District Defendants correctly point out that Plaintiffs failed to respond to their argument regarding insufficient service of process, (Doc. 23 at 9), and thus apparently concede the point. In any event, the docket in the state court action, Condit et al. v. Bedford Cent. Sch. Dist. et al., No. 57203/2016 (Sup. Ct. Westchester Cty. May 20, 2015), https://iapps.courts.state.ny.us/nyscef/DocumentList?docketId=5jnrLdGJhU2b_PLUS_OcpQUQ ZfQ==&display=all&courtType=Westchester County Supreme Court, does not reflect that the Summons with Notice was served on any of the Defendants.7 Similarly, no affidavits of service of the Summons or the subsequently filed Complaint and Amended Complaint have been filed on the docket in this Court, and Plaintiffs have pointed to no evidence of service otherwise. "When a defendant raises [*15] a Rule 12(b)(5) challenge to the sufficiency of service of process, the plaintiff bears the burden of proving its adequacy." Mende, 269 F. Supp. 2d at 251 (internal quotation marks omitted). Thus, because Plaintiffs have failed to provide proof that the Summons, Complaint, and Amended Complaint were served on the Defendants, I could dismiss the action or grant leave for Plaintiffs to properly serve Defendants. I would, in the interest of deciding the case on its merits, follow the latter course if any of Plaintiffs' claims survived, but as discussed below, they do not.8

7 I may take judicial notice of documents filed (or not filed) in another court to establish the fact of such litigation and filings (or lack thereof). See Glob. Network Commc'ns, Inc. v. City of N.Y., 458 F.3d 150, 157 (2d Cir. 2006).

D. K&B Defendants Are Not State Actors

The K&B Defendants argue that they are not state actors, and thus not subject to liability under § 1983. (K&B Ds' Mem. at 11-16.) "'Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action.'" Fabrikant v. French, 691 F.3d 193, 206 (2d Cir. 2012) (quoting Flagg v. Yonkers Sav. & Loan Ass'n, 396 F.3d 178, 186 (2d Cir. 2005)). Thus, as the plain language of § 1983 indicates, § 1983 liability may be imposed only upon wrongdoers "who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it." Nat'l Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 191, 109 S. Ct. 454, 102 L. Ed. 2d 469 (1988) (internal quotation [*16] marks omitted); see, e.g., Singletary v. Chalifoux, No. 13-CV-4205, 2013 U.S. Dist. LEXIS 135860, 2013 WL 5348306, at *2 (E.D.N.Y. Sept. 23, 2013) ("Section 1983 constrains only state conduct, not the acts of private persons or entities.") (internal quotation marks omitted).

The conduct of a private party may constitute state action if it is "'so entwined with governmental policies or so impregnated with a governmental character that it can be regarded as governmental action.'" Fabrikant, 691 F.3d at 206-07 (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 847, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982)); see, e.g., Filarsky v. Delia, 566 U.S. 377, 383, 132 S. Ct. 1657, 182 L. Ed. 2d 662 (2012) ("Anyone whose conduct is fairly attributable to the state can be sued as a state actor under [Section] 1983.") (internal quotation marks omitted). But "a private entity does not become a state actor for purposes of [Section] 1983 merely on the basis of 'the private entity's creation, funding, licensing, or regulation by the government.'"

8 To the extent the Court allows Plaintiffs to file a Second Amended Complaint, it and the summonses must be properly served on all Defendants.

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Fabrikant, 691 F.3d at 207 (quoting Cranley v. Nat'l Life Ins. Co. of Vt., 318 F.3d 105, 112 (2d Cir. 2003)). "Rather, 'there must be such a close nexus between the [s]tate and the challenged action' that the state is 'responsible for the specific conduct of which the plaintiff complains.'" Id. (alterations and emphasis in original) (quoting Cranley, 318 F.3d at 111).

In particular, the Second Circuit has recognized "[t]hree main tests" to determine whether the conduct of a private party constitutes state action: (1) whether "the entity acts pursuant to the coercive power of the state or is controlled by the state ('the compulsion test');" (2) [*17] whether "the state provides significant encouragement to the entity, the entity is a willful participant in joint activity with the state, or the entity's functions are entwined with state policies ('the joint action test' or 'close nexus test');" or (3) whether "the entity has been delegated a public function by the state ('the public function test')." Id. (citations omitted). In determining whether a private party has acted under color of state law, the Second Circuit considers "the specific conduct of which the plaintiff complains, rather than the general characteristics of the entity." Id. (citations and internal quotation marks omitted); see Bodmann v. JPMorgan Chase Bank, N.A., No. 14-CV-833, 2014 U.S. Dist. LEXIS 91980, 2014 WL 3058551, at *3 (E.D.N.Y. July 7, 2014).

Plaintiffs argue that the K&B Defendants "willfully participated in 'joint activity' to violate" their rights by conveying the District's prohibitions, (Ps' K&B Opp. at 8-9), or conspired to do so, (id. at 9). But "[t]he conduct of an attorney acting in his professional capacity while representing his client does not constitute action under color of state law for the purposes of § 1983," even if the client is a state actor. Goetz v. Windsor Cent. Sch. Dist., 593 F. Supp. 526, 528 (N.D.N.Y. 1984); see Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005) (same); Luo v. Baldwin Union Free Sch. Dist., No. 12-CV-3073, 2013 U.S. Dist. LEXIS 39570, 2013 WL 1182232, at *4 (E.D.N.Y. Mar. 21, 2013) ("To the extent that Plaintiff's claims against Gibson arise out of her legal advice to Gallo or in her role as advocate for the District, [*18]

Gibson was not acting under color of state law.").

Here, Plaintiffs have failed to allege that the K&B Defendants were doing anything other than acting in their capacity as counsel for the District Defendants. And while Plaintiffs try to distinguish Goetz from the instant case, arguing that the lawyers there were merely giving legal advice as opposed to the "far more extensive" role the K&B Defendants played here, they provide no citations to the Amended Complaint or case law for this proposition. (P's K&B Opp. at 9.) Indeed, as in Goetz, "[t]here is no allegation that [D]efendant[s] [Roebuck and K&B] ha[ve] a direct interest in this lawsuit or that [they] w[ere] acting in any capacity other than as a privately retained attorney" for a school district. Goetz, 593 F. Supp. at 528-29.

Nor does the allegation of a conspiracy save Plaintiffs' claim.9 Plaintiffs' only support in the Amended Complaint for this proposition is that the K&B Defendants issued the Letter to Plaintiffs "on behalf of the School and [the District Defendants]." (AC ¶ 38.) But "an attorney representing a client cannot conspire within the attorney-client relationship." Hanifee v. Bd. of Educ. of Kent Cty., No. 09-CV-2381, 2010 U.S. Dist. LEXIS 16203, 2010 WL 723772, at *7 (D. Md. Feb. 24, 2010) ("[A]ttorneys were not acting 'under color of state law' merely because they provided legal services to the Board, and . . . were incapable [*19] of conspiring with other state actors."). That Roebuck and K&B sent

9 "Allegations of a conspiracy to violate civil rights must be pleaded with specificity, and an otherwise invalid § 1983 claim cannot survive a motion to dismiss merely by mentioning the word 'conspiracy.'" Scalpi v. Town of E. Fishkill, No. 14-CV-2126, 2016 U.S. Dist. LEXIS 24694, 2016 WL 858925, at *5 (S.D.N.Y. Feb. 29, 2016) (alterations, citation, and internal quotation marks omitted). "Rather, a plaintiff must allege: '(1) an agreement between a state actor and a private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.'" Id. (quoting Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002)). Here, as in Luo, "[t]o the extent Plaintiff[s] claim[] that [Roebuck and K&B] conspired to deny Plaintiff[s] of [their] rights, [their] [c]omplaint contains only conclusory allegations of conspiracy, which are insufficient to overcome a motion to dismiss." 2013 U.S. Dist. LEXIS 39570, 2013 WL 1182232, at *4; see Scalpi, 2016 U.S. Dist. LEXIS 24694, 2016 WL 858925, at *5.

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the Letter with the District's authorization, (AC ¶¶ 38-42), thus does not suffice to make a conspiracy allegation plausible so as to render them state actors. See Beedle, 422 F.3d at 1073 (facts showing private attorney acting in professional capacity representing state actor are insufficient to plausibly allege conspiracy).

Thus, all claims against the K&B Defendants are dismissed.

E. Statute of Limitations

Defendants argue that Plaintiffs' First Amendment retaliation and Fourteenth Amendment due process claims are time-barred because the continuing violation doctrine does not apply, and the April 11, 2013 Letter was sent outside the three-year statute of limitations for § 1983 claims. (Dist. Ds' Mem. at 4-5.)

"The statute of limitations for actions under § 1983 is the statute of limitations applicable to personal injury actions occurring in the state in which the federal court sits." Harris v. Bd. of Educ. of the City Sch. Dist. of the City of N.Y., 230 F. Supp. 3d 88, 97 (E.D.N.Y. 2017) (internal quotation marks omitted); see Milan v. Wertheimer, 808 F.3d 961, 963 (2d Cir. 2015). New York provides a three-year statute of limitations for personal injury claims. N.Y. C.P.L.R. § 214(5). Thus, the statute of limitations for a § 1983 claim in this District is three years. See Owens v. Okure, 488 U.S. 235, 251, 109 S. Ct. 573, 102 L. Ed. 2d 594 (1989). "[W]hen a plaintiff knows or ought to know of a wrong, the statute of limitations on that claim [*20] starts to run . . . ." Pinaud v. Cty. of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995).

Plaintiffs filed their Summons and Notice on May 20, 2016 in state court, (see Doc. 1 Ex. A), which renders any claims arising before May 20, 2013 untimely, absent some exception. Plaintiffs do not contest that the three-year statute of limitations applies, but argue that the claims arising from the Letter, which was sent on April 11, 2013, are not time-barred because they are subject to the continuing violation doctrine. (Ps' Dist. Opp. at 9-11.)

"The continuing violation doctrine allow[s] all claims resulting from a discriminatory policy or practice to be considered timely, even if untimely standing alone." Plumey v. New York State, 389 F. Supp. 2d 491, 498 (S.D.N.Y. June 15, 2005). "[T]o assert a continuing violation, a plaintiff must establish both (1) a policy or practice which caused the alleged discrimination, and (2) that the timely claim is continuous in time with the untimely claims," id. — in other words, that the "specific and related instances of discrimination are permitted . . . to continue unremedied for so long as to amount to a discriminatory policy or practice," Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998) (internal quotation marks omitted), abrogated in part on other grounds by AMTRAK v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002); see Fitzgerald v. Henderson, 251 F.3d 345, 363 (2d Cir. 2001) (finding continuing violation where there is a "constant stream" of almost daily abuse with "no interruption"). [*21] "The mere fact that wrongful acts may have a continuing impact is not sufficient to find a continuing violation." Rebrovich v. Cty. of Erie, 544 F. Supp. 2d 159, 170 (W.D.N.Y. 2008).

The Letter itself is a discrete act not subject to the continuing violation doctrine. See, e.g., Troeger v. Ellenville Cent. Sch. Dist., 523 F. App'x 848, 851 (2d Cir. 2013) (summary order); Andrews v. Town of Wallingford, No. 16-CV-1232, 2017 U.S. Dist. LEXIS 133486, 2017 WL 3588571, at *3 (D. Conn. Aug. 21, 2017). Plaintiffs argue that the May 23, 2013 voting incident is timely, (Ps' Dist. Opp. at 10), but that incident was plainly an effect of the April 11, 2013 Letter, not evidence of a continuing violation. See Harris v. City of N.Y., 186 F.3d 243, 250 (2d Cir. 1999) ("[A] continuing violation cannot be established merely because the claimant continues to feel the effects of a time-barred discriminatory act.").10 Thus, to the extent that Plaintiffs are arguing that the Letter and its limitations on Plaintiff Parents' presence at

10 It also was not plausibly retaliatory, given that it was clearly an error by the security guards that was promptly rectified by Defendants, and because the harm Plaintiffs suffered — not being able to vote — was by their own account the result of a choice they made, (AC ¶ 49), not any prohibition by Defendants.

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the School and communication with the District and its employees were retaliatory, claims based on that specific injury are time-barred.

Plaintiffs mention another injury in their Amended Complaint, however, that might support a First Amendment retaliation claim and seemingly would be timely: that Roebuck and K&B failed to contact Plaintiff Parents to inform them of school events "involving other parents or to provide guidance as to how their presence would be arranged at these events, resulting in plaintiff guardians being barred [*22] and prohibited from attending every school held event involving . . . their sons" for a period of twenty-seven months. (AC ¶ 43.)11 Thus, if Plaintiffs can in good faith amend to allege such a claim, they may do so (as further discussed below).

F. Due Process and Disparate Treatment Claims

Even if Plaintiffs' due process and disparate treatment claims were not dismissed as untimely, Plaintiffs have failed a state a claim for both. "To state a due process violation — procedural or substantive — Plaintiff[s] must first show a deprivation of a constitutionally protected property or liberty interest." Perez v. Metro. Transp. Auth., No. 11-CV-8655, 2012 U.S. Dist. LEXIS 74123, 2012 WL 1943943, at *8 (S.D.N.Y. May 29, 2012) (internal quotation marks omitted); see White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1061-62 (2d Cir. 1993) (addressing procedural due process). Plaintiffs have failed to allege any deprivation of a constitutionally protected property or liberty interest. First, "[i]t is well-established that school authorities have the right to limit access to school property, and the courts afford great deference to their decisions to do so." Burke v. Cicero Police Dep't, No. 07-CV-624, 2010 U.S. Dist. LEXIS 31414, 2010 WL 1235411, at *3 (N.D.N.Y. Mar. 31, 2010) (finding order forbidding legal guardian from entering school grounds failed to implicate constitutional deprivation); see Silano v. Sag

11 Plaintiffs do not raise this argument in their brief and do not seem to articulate this theory in their Amended Complaint, but the facts could plausibly support such a theory, as discussed in more detail below.

Harbor Union Free Sch. Dist. Bd. of Educ., 42 F.3d 719, 724 (2d Cir. 1994) ("[O]rder forbidding [Board of Education member] from entering the school grounds . . . fails to implicate a protected liberty or property [*23] interest."); Eskenazi-McGibney v. Connetquot Cent. Sch. Dist., 84 F. Supp. 3d 221, 230 (E.D.N.Y. 2015) ("[P]arents do not enjoy a protected liberty or property interest in unfettered access to their child's school grounds.") (collecting cases). Second, insofar as Plaintiffs are arguing that the Letter deprived them of their right to participate in their sons' education, Plaintiffs have alleged no facts rendering such a conclusion plausible. The Letter did not forbid them from participating in their sons' education, but only required that communications go through the K&B Defendants, and Plaintiffs provide not a single example of an education-related concern they were unable to raise or as to which they received no response.

With respect to the disparate treatment claim, it is unclear exactly what kind of claim Plaintiffs are alleging. Defendants are correct that disparate treatment is not an element of a First Amendment retaliation claim. See Dorsett v. Cty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013) (laying out elements of First Amendment retaliation claim). To the extent Plaintiffs seek to use evidence of disparate treatment as evidence of retaliation, they have put forth no facts showing how Defendants treated other similarly situated parents, leaving the Court no way to determine whether the treatment of Plaintiffs was "disparate." To the extent Plaintiffs intend [*24] to bring an equal protection claim in that they were singled out for mistreatment based on their exercise of their First Amendment right, such a claim coalesces with their First Amendment retaliation claim, see Heusser v. Hale, 777 F. Supp. 2d 366, 385 (D. Conn. 2011), and would be dismissed as duplicative in any event.12

12 Insofar as Plaintiffs intend to bring a "class of one" equal protection claim, it would fall short for failure to plausibly allege that others with an "extremely high" level of similarity were treated differently. Pape v. Bd. of Educ. of the Wappingers Cent. Sch. Dist., No. 07-CV-8828, 2009 U.S. Dist. LEXIS 91738, 2009 WL 3151200, at *6 (S.D.N.Y. Sept. 29, 2009)

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G. "Right to Education" Claim

1. Exhaustion of Administrative Remedies

Defendants argue that Plaintiff's fourth claim — for "violation of W.C.'s constitutional right to an equal education by the failure to protect him" — should be dismissed because the claim can only be properly construed as a claim under the Individuals with Disabilities in Education Act ("IDEA"), and thus Plaintiffs were required to exhaust their administrative remedies, which they failed to do. (Dist. Ds' Mem. at 11-14.) Plaintiffs respond that "the allegations are that [P]laintiff W.C.'s rights were violated by the failure to protect him from physical harassment at school. That is neither a [Free Appropriate Public Education, or "FAPE"] nor an IDEA complaint." (Ps' Dist. Opp. at 15.)

In Fry v. Napoleon Community Schools, 137 S. Ct. 743, 197 L. Ed. 2d 46 (2017),13 the Supreme Court set forth a framework for determining whether or not a claim involving a student with a disability seeks relief under the IDEA, requiring an exhaustion of administrative procedures. See id. at 752. The Court reasoned:

If a [*25] lawsuit charges . . . a denial [of a FAPE], the plaintiff cannot escape [the IDEA] merely by bringing her suit under a statute other than the IDEA . . . . Rather, that plaintiff must first submit her case to an IDEA hearing officer, experienced in addressing exactly the issues she

(first quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000) (per curiam); then quoting Rafano v. Patchogue-Medford Sch. Dist., No. 06-CV-5367, 2009 U.S. Dist. LEXIS 23731, 2009 WL 789440, at *5 (E.D.N.Y. Mar. 20, 2009)).

13 Fry was decided on February 22, 2017. Neither of Plaintiffs' opposition memoranda dated March 8, 2017 nor Defendants' reply memoranda dated March 22, 2017 cited to it. At the pre-motion conference on November 2, 2016 (Minute Entry dated Nov. 2, 2016), I mentioned that there was a pending case in the Supreme Court regarding this exact issue, and the District Defendants' counsel assured me that they would look into it. In the future, counsel are advised to track and incorporate new and on-point case law, particularly when it is specifically suggested by the Court that they do so.

raises. But if, in a suit brought under a different statute, the remedy sought is not for the denial of a FAPE, then exhaustion of the IDEA's procedures is not required. . . . And that is true even when the suit arises directly from a school's treatment of a child with a disability — and so could be said to relate in some way to [his] education. A school's conduct toward such a child — say, some refusal to make an accommodation — might injure her in ways unrelated to a FAPE, which are addressed in statutes other than the IDEA.

Id. at 754.

Here, the gravamen of Plaintiffs' Amended Complaint is that the School and the District failed to protect W.C., which "resulted in the denial of . . . an opportunity to an equal education due to his disability by [the Defendants'] failure to insure that he could be taught within a safe environment with due consideration of his disabilities." (AC ¶ 69.) While this assertion is admittedly [*26] confusing, Plaintiffs' Amended Complaint as a whole sounds in a concern that the Defendants failed to protect W.C. from harassment and bullying by another student, not that Plaintiff Parents were displeased with W.C.'s IEP or were seeking changes to it. Indeed, the Amended Complaint's recitation of the facts begins with the history between W.C. and L.C., Desuza's alleged failure to address L.C.'s behavior, and W.C.'s subsequent "stress and trauma." (Id. ¶ 31; see id. ¶¶ 22-36.) The Letter, which seems to be the primary basis for Plaintiffs' suit, was sent in response to previous correspondence between Plaintiff Parents and the District regarding L.C.'s bullying of W.C. and the Parents' perception that the Defendants were failing to take action. (See Letter at 2.) Thus, Plaintiffs' "claims could have brought in a situation in which there is no obligation to provide a FAPE," Bowe v. Eau Claire Area Sch. Dist., No. 16-CV-746, 2017 U.S. Dist. LEXIS 61496, 2017 WL 1458822, at *5 (W.D. Wis. Apr. 24, 2017), as W.C. could have been bullied, and the District could have failed to address it, notwithstanding his disability. Because Plaintiffs do not seek relief for the denial of a FAPE, Plaintiffs

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need not have exhausted the IDEA's administrative procedures before filing suit.

2. Failure to Protect Claim

Because Plaintiffs' fourth [*27] claim does not sound in the IDEA, the case must be analyzed under some other standard, but neither party suggests one, and the exact parameters of Plaintiffs' claim are unclear. On the one hand, the allegations in the Amended Complaint suggest that it is a negligence claim — that the District failed to protect W.C. from harassment and bullying. But it is well settled that "schools do not owe a duty to protect students from harm from fellow students . . . ." Faccio v. Eggleston, No. 10-CV-699, 2011 U.S. Dist. LEXIS 93649, 2011 WL 3666588, at *13 (N.D.N.Y. Aug. 22, 2011) (collecting cases).

On the other hand, a claim regarding a school's failure to protect a student from bullying and harassment may be brought as a violation of the Substantive Due Process Clause of the Fourteenth Amendment. See, e.g., S.C. v. Monroe Woodbury Cent. Sch. Dist., No. 11-CV-1672, 2012 U.S. Dist. LEXIS 100622, 2012 WL 2940020 (S.D.N.Y. July 18, 2012). While children W.C.'s age have a property interest in a public education protected by the Fourteenth Amendment, see Handberry v. Thompson, 446 F.3d 335, 353 (2d Cir. 2006); S.C., 2012 U.S. Dist. LEXIS 100622, 2012 WL 2940020, at *6, Plaintiffs have not alleged facts suggesting that their son did not receive a public education from Defendants, see S.C., 2012 WL 2940020, at *6 (noting that because the defendants did not suspend student, they did not deprive him of his property interest); Saggio v. Sprady, 475 F. Supp. 2d 203, 210 (E.D.N.Y. 2007) ("[T]he District did not exclude [the student] from attending school. It thus cannot be said that the District infringed upon her right to an education."), nor have they alleged conduct by Defendants so egregious as to rise [*28] to the level of a substantive due process violation, see H.B. v. Monroe Woodbury Cent. Sch. Dist., No. 11-CV-5881, 2012 U.S. Dist. LEXIS 141252, 2012 WL 4477552, at *12-13 (S.D.N.Y. Sept. 27,

2012) (collecting cases); Chambers v. N. Rockland Cent. Sch. Dist., 815 F. Supp. 2d 753, 770-71 (S.D.N.Y. 2011); Risica ex rel. Risica v. Dumas, 466 F. Supp. 2d 434, 440 (D. Conn. 2006).

Finally, Plaintiffs' Amended Complaint does not set forth facts showing that Defendants were deliberately indifferent to the bullying of W.C., as opposed to negligent, "which cannot give rise to a deprivation of a property interest." S.C., 2012 U.S. Dist. LEXIS 100622, 2012 WL 2940020, at *6 (citing Grune v. Rodriguez, 176 F.3d 27, 33 (2d Cir. 1999)). Accordingly, Plaintiffs have failed to state a claim that Defendants violated W.C.'s "constitutional rights to an equal education by the failure to protect him," regardless of what legal framework is applied.14

H. First Amendment Retaliation

The only remaining claim is whether Defendants impermissibly retaliated against Plaintiffs' exercise of their First Amendment rights.15

Before turning to the substantive claim, I must first address whether, as Defendants argue, (Dist. Ds' Mem. at 10-11), Plaintiffs have failed to allege Monell liability and personal involvement of the individual Defendants.

A school district may only face liability under § 1983 for constitutional violations pursuant to the well-established doctrine of municipal liability under Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). See Lopez v. Bay Shore Union Free Sch. Dist., 668 F. Supp. 2d 406, 417 (E.D.N.Y. 2009) (applying Monell

14 In any event, to the extent Plaintiffs were seeking relief under § 1983, those claims would be barred by the statute of limitations because Plaintiffs make no allegations regarding bullying that occurred after May 20, 2013.

15 Plaintiffs state in their Amended Complaint that Defendants violated Plaintiffs' First and Fourteenth Amendment rights in denying Plaintiffs their right to vote. Plaintiffs fail to elaborate as to how these facts could form a basis for a Fourteenth Amendment claim. To the extent that they do, I have already discussed why Plaintiffs do not have a claim under the Fourteenth Amendment, and need not do so again here.

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in the context of a school's liability under § 1983). Municipal liability under § 1983 requires a showing of a policy or custom. Monell, 436 U.S. at 694. Such a "policy or [*29] custom . . . need not be contained in an explicitly adopted rule or regulation." Sorlucco v. N.Y.C. Police Dep't, 971 F.2d 864, 870 (2d Cir. 1992). But "a conclusory allegation that [official] conduct constituted a custom, usage, practice, procedure or rule that deprived [plaintiff] of his constitutional rights [is not] sufficient to state a claim for municipal liability." Byrd v. Metro. Transit Auth., No. 15-CV-1364, 2015 U.S. Dist. LEXIS 98622, 2015 WL 4546718, at *3 (E.D.N.Y. July 28, 2015); see Guzman v. United States, No. 11-CV-5834, 2013 U.S. Dist. LEXIS 131345, 2013 WL 5018553, at *6 (S.D.N.Y. Sept. 13, 2013) ("[M]erely recit[ing], without factual support, that the threats . . . to which [Plaintiffs were] subjected are the products of an unofficial policy, carried out by" school officials is not enough.). "[A] custom or policy cannot be shown by pointing to a single instance of unconstitutional conduct by a mere [government] employee," Newton v. City of N.Y., 566 F. Supp. 2d 256, 271 (S.D.N.Y. 2008), but a municipality may still be subject to Monell liability if a constitutional deprivation was caused by a person acting with final decision or policy-making authority on behalf of the municipality, see Lozman v. City of Rivera Beach, 39 F. Supp. 3d 1392, 1403 (S.D. Fla. 2014); Harvey v. City of Bradenton, No. 04-CV-1748, 2005 U.S. Dist. LEXIS 38095, 2005 WL 3533155, at *10 n.10 (M.D. Fla. Dec. 22, 2005) (collecting cases).

Plaintiffs argue that because the April 11, 2013 Letter was sent "on behalf of the District" and articulated "the policy banning [P]laintiffs from the school, denying communications with teachers and faculties," it constituted board policy under Monell. (Ps' Dist. Opp. at 14.) But because any claims based the Letter are barred by the statute of limitations, the Letter itself cannot [*30] form the basis of Monell liability. Moreover, the May 23, 2013 voting incident was a single occurrence — seemingly a mistake that was promptly corrected — that was not the result of a policy, custom, or decision by a policymaker.

If Plaintiffs could plausibly allege that the District

engaged in a policy or custom of failing to notify Plaintiff Parents of events for a period of twenty-seven months, they could plausibly plead municipal liability under Monell.16 Plaintiffs have not made clear in their Amended Complaint, however, under what theory they seek to hold the School and the District liable — that is they have not alleged a policy or custom or suggested who was responsible for it. As discussed further below, Plaintiffs will be given an opportunity to amend to address these issues.

If Plaintiffs are able to provide facts plausibly alleging a policy or custom of failing to notify Plaintiff Parents of school events, they must also provide additional facts to allege a plausible First Amendment retaliation claim. In the Second Circuit, the elements of a First Amendment retaliation claim are dependent on the "factual context" of the case before the district court. Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir. 2008). In the context of a private citizen's action against [*31] public officials, the plaintiff must show that: "(1) [plaintiff] has an interest protected by the First Amendment; (2) defendants' actions were motivated or substantially caused by [plaintiff's] exercise of that right; and (3) defendants' actions effectively chilled the exercise of [plaintiff's] First Amendment right," Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001), or caused plaintiff to suffer some other concrete harm, Dorsett, 732 F.3d at 160.

"On a motion to dismiss, a reasonable inference of a causal connection is all that is required." Morey v. Somers Cent. Sch. Dist., No. 06-CV-1877, 2007 U.S. Dist. LEXIS 20265, 2007 WL 867203, at *11

16 One of the documents I cannot consider on this motion, Exhibit B to the Silverman Declaration, suggests that Plaintiff Parents attended meetings and school events between April 2014 and June 2015. If that is so, it would undermine a theory that Defendants retaliated against Plaintiff Parents by not informing them of school events. To show a policy, Plaintiffs would have to show, among other things, that Plaintiff Parents were not informed of school events and that this failure was attributable to a Defendant and not the result of negligence. See Cash v. Cty. of Erie, 654 F.3d 324, 334 (2d Cir. 2011) ("The operative inquiry is whether th[e] facts [in the complaint] demonstrate that the policymaker's inaction was the result of 'conscious choice' and not 'mere negligence.'").

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(S.D.N.Y. Mar. 21, 2007). "This can be established either indirectly by means of circumstantial evidence, for example, by showing that the protected activity was followed by adverse treatment in employment, or directly by evidence of retaliatory animus." Id. (internal quotation marks omitted). "Temporal proximity is strong circumstantial evidence of improper intent." Fierro v. City of N.Y., 591 F. Supp. 2d 431, 444-45 (S.D.N.Y. 2008), rev'd in part on other grounds, 341 F. App'x 696 (2d Cir. 2009).

Plaintiffs correctly argue that they have a protected First Amendment interest in filing the police report regarding L.C.'s bullying and the District's failure to protect W.C. (Ps' Dist. Opp. at 12-13.) See Estate of Morris ex rel. Morris v. Dapolito, 297 F. Supp. 2d 680, 692 (S.D.N.Y. 2004) ("The rights to complain to public officials and to seek administrative and judicial relief are protected by the First Amendment."). The Amended Complaint as currently pleaded does not provide sufficient information regarding [*32] the timing of the alleged failure to inform Plaintiff Parents of school events to give rise to an inference of retaliation. The Letter states that Plaintiff Parents could attend the spring concert and the moving-up ceremony at the end of 2013, and does not specify any events from which they were specifically barred, other than to generally state that they were barred from School property, except in limited instances. (Letter at 2-3.) The Amended Complaint does not provide examples of events after the 2012-2013 school year of which Plaintiff Parents were not notified, only that Roebuck and K&B did not contact them about future events "for a period of 27 months" after the Letter was sent. (AC ¶ 43.) Plaintiffs do not allege that nobody contacted them or that they were prevented from attending school events (although they may be able to do so). Accordingly, if they can do so in good faith, Plaintiffs may amend their complaint to include additional facts supporting a First Amendment retaliation claim under the theory that a specified Defendant or Defendants failed to notify Plaintiff Parents of school events for a period of twenty-seven months.

As to the individual Defendants' liability, a person

cannot be held liable [*33] for violations of § 1983 unless he or she was personally involved in the alleged constitutional deprivation. See Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010). Defendants argue that Plaintiffs fail to allege personal involvement of the individual Defendants in the alleged constitutional violations. (Dist. Ds' Mem. at 11.) In response, Plaintiffs point to three paragraphs in the Amended Complaint, wherein they alleged that it was "'retaliation that all [D]efendant teachers engaged in by accepting the terms of the [L]etter,'" and that in the context of the First Amendment retaliation claim in particular, their rights were violated with the "'consent, authorization and acquiescence of" the individual Defendants. (Ps' Dist. Opp. at 17 (quoting AC ¶¶ 55, 57, 61).)

Allegations of personal involvement in formulating and sending the Letter are not relevant to the remaining claims as they are barred by the statute of limitations. With respect to the May 23, 2013 voting incident that is the basis for Plaintiffs' first claim as it currently exists, there are no allegations that any of the individual Defendants were involved in any way. Plaintiffs allege that when they arrived at the School on May 23, 2013, security guards — not any of the named Defendants — "intercepted them, ordered them off the premises, escorted [*34] them from the school property . . . and threatened them with arrest should they return." (AC ¶ 47.) Plaintiffs further allege that "later that day," the K&B Defendants — who are not state actors and thus are not subject to suit under § 1983 as previously discussed — notified Plaintiffs that they could return. (Id. ¶ 49.) These two allegations alone do not render plausible the conclusion that any of the individual Defendants consented to, authorized, or acquiesced in the alleged denial of Plaintiffs' voting rights. Indeed, there are no allegations that that the security guards were acting on behalf of any of the individual Defendants, that the individual Defendants were present at the School on May 23, 2013, or that they had planned to deny Plaintiffs their voting rights. Accordingly, the individual District Defendants cannot be held liable for First Amendment retaliation under § 1983, unless Plaintiffs provide facts implicating an individual

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Defendant in a decision not to notify Plaintiff Parents of school events.

III. LEAVE TO AMEND

Leave to amend a complaint should be freely given "when justice so requires." Fed. R. Civ. P. 15(a)(2). It is "within the sound discretion of the district court to grant or deny leave to amend." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). "Leave [*35] to amend, though liberally granted, may properly be denied for: 'undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.'" Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962)).

Plaintiffs have already amended once, (see Doc. 12), after a conference at which Defendants' potential motions were discussed, (Minute Entry dated Nov. 2, 2016). Plaintiffs have not asked to amend again or otherwise suggested they are in possession of facts that would cure the deficiencies identified in this opinion. Accordingly, except as noted above, the Court declines to grant leave to amend sua sponte. See TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (plaintiff need not be given leave to amend if he fails to specify how amendment would cure the pleading deficiencies in his complaint); Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (district court did not err in dismissing claim with prejudice in absence of any indication plaintiff could or would provide additional allegations leading to different result); see also Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015) (denial of leave to amend would be proper where "request gives no clue as to how the complaint's defects would be cured") (internal quotation [*36] marks omitted).

IV. CONCLUSION

For the reasons stated above, the motions to dismiss of the District Defendants, (Doc. 17), and the K&B Defendants, (Doc. 25), are GRANTED. The Clerk of Court is respectfully direct to terminate the pending motions. (Docs. 17, 21.) Plaintiffs have leave to replead only their First Amendment retaliation claim as it relates to the alleged failure to notify them as to when and how to attend school events. The case will be closed if no Amended Complaint is submitted by November 4, 2017.

SO ORDERED.

Dated: October 16, 2017

White Plains, New York

/s/ Cathy Seibel

CATHY SEIBEL, U.S.D.J.

End of Document

2017 U.S. Dist. LEXIS 171701, *34

65

S.D. v. Haddon Heights Bd. of Educ.

United States Court of Appeals for the Third Circuit

January 20, 2016, Argued; August 18, 2016, Opinion Filed

No. 15-1804

Reporter833 F.3d 389 *; 2016 U.S. App. LEXIS 15172 **

S.D., a minor, by his parents and natural guardians, A.D. and R.D.; A.D.; R.D., Appellants v. HADDON HEIGHTS BOARD OF EDUCATION

Subsequent History: Vacated by, Remanded by S.D. v. Haddon Heights Bd. of Educ., 137 S. Ct. 2121, 198 L. Ed. 2d 193, 2017 U.S. LEXIS 3107 (U.S., May 15, 2017)

Prior History: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. (1:14-cv-01880). District Judge: Honorable Jerome B. Simandle.

A.D. v. Haddon Heights Bd. of Educ., 90 F. Supp. 3d 326, 2015 U.S. Dist. LEXIS 24638 (D.N.J., Mar. 2, 2015)

Case Summary

OverviewHOLDINGS: [1]-Although appellants' Rehabilitation Act, 29 U.S.C.S. § 794(a) (§ 504), and ADA, 42 U.S.C.S. § 12101 et seq., discrimination claims did not arise from appellants' enforcement of rights explicitly under the IDEA, 20 U.S.C.S. §§ 1400-1482, their alleged injuries related to the provision of an FAPE as defined by the IDEA since they claimed that appellee failed to provide instruction to their child tailored to meet his special needs resulting from his disability; [2]-Appellants' retaliation claims alleged that appellee's revised attendance policy prevented the child from making educational progress and that appellee took retaliatory actions against them as a result of their efforts to vindicate the child's right to a FAPE; [3]-As the claims related to the provision of a FAPE as defined by the IDEA, appellants had to

exhaust their claims through the IDEA administrative process.

OutcomeJudgment affirmed.

Counsel: Judith A. Gran, Esq., Sarah E. Zuba, Esq. [ARGUED], Catherine Merino Reisman, Esq., Reisman, Carolla & Gran, Haddonfield, NJ, Counsel for Appellants.

Joseph F. Betley, Esq., Capehart Scatchard, Mount Laurel, NJ; William S. Donio, Esq. [ARGUED], Cooper Levenson, Atlantic City, NJ, Counsel for Appellee.

Judges: Before: JORDAN, HARDIMAN, and GREENAWAY, JR., Circuit Judges.

Opinion by: GREENAWAY, JR.

Opinion

[*390] OPINION OF THE COURT

GREENAWAY, JR., Circuit Judge.

A.D. and R.D., individually and on behalf of their son S.D. (collectively, "Appellants"), filed suit against Haddon Heights Board of Education ("Appellee"), alleging violations of the Rehabilitation Act, 29 U.S.C. § 794(a) ("Section 504"), the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, the First and [*391] Fourteenth Amendments of the Constitution of the United States pursuant to 42 U.S.C. § 1983, and New Jersey's Law Against Discrimination, N.J. Stat. Ann. § 10:5-1 et seq. The

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District Court dismissed Appellants' claims pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction because Appellants failed to exhaust the administrative process provided for by the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482. In doing so, the District Court relied on our opinion in Batchelor v. Rose Tree Media School District, 759 F.3d 266 (3d Cir. 2014), in which [**2] we held that claims that a school district retaliated against a child and/or the child's parents for enforcing the child's rights under the IDEA, although brought pursuant to non-IDEA statutes, were subject to the IDEA exhaustion requirement.

The narrow question before us here is whether claims that a board of education discriminated against a student and/or the student's parents based on his disability, and retaliated against them for enforcing the child's rights under a non-IDEA statute, are subject to the IDEA exhaustion requirement. Because Appellants' alleged injuries are educational in nature and implicate services within the purview of the IDEA, we conclude that Appellants' claims must be exhausted under the IDEA.

I. BACKGROUND1

A. The 2012-13 School Year

S.D. suffers from "multiple medical problems including chronic sinusitis with frequent acute exacerbations, allergic rhinitis, and intermittent asthma." Am. Compl., Ex. C at 2. Appellants allege that these medical "impairments [] substantially limit him in . . . the life activity of [**3] learning." Id. ¶ 12. S.D.'s doctor concluded that these medical problems "make it likely that he will have frequent school absence[s] due to acute [and] underlying chronic illness," and suggested that S.D. "should qualify for [Section] 504 plan modifications for

1 The following facts are taken from Appellants' Amended Complaint and exhibits. As explained infra Part II, we accept Appellants' allegations as true.

school." Id. ¶¶ 25-26; Ex. C at 2.

During the 2012-13 school year, when S.D. was in ninth grade at Haddon Heights Junior/Senior High School in New Jersey, Appellee developed a student accommodation plan for S.D. pursuant to Section 504 ("Section 504 Plan"). Id. ¶ 29, Ex. A. This initial Section 504 Plan, dated October 25, 2012, provided S.D. with "extra time for assignments, tests, and quizzes" and required Appellants to "communicate" with S.D.'s teachers about "any missed work" and absences. Id. ¶¶ 29-30; Ex. A at 2. Appellants allege that the initial Section 504 Plan "was not properly implemented or effective" because it "did not impose any enforceable obligation on [Appellee] and its teachers" and "did not give S.D. any way to be instructed in and learn the material that he missed while absent." Id. ¶¶ 31-32.

After S.D.'s parents met with Appellee and expressed their concerns, Appellee amended S.D.'s Section 504 Plan. The amended Section 504 Plan, dated April 19, 2013: required teachers to send weekly updates [**4] about S.D.'s missing assignments and to provide class notes; required S.D. to complete his assignments within two weeks of any absence; allowed teachers to reduce S.D.'s assignments at their discretion; and required S.D. to create a "to do" list, keep folders of complete and incomplete work, and communicate with teachers, the guidance counselor, and school nurse. Id. ¶ 39, Ex. B.

[*392] Appellants allege that these Section 504 Plans failed to "provide a mechanism . . . for S.D. to obtain homebound instruction or other supplemental instruction to enable him to keep up with the curriculum . . . and otherwise enjoy the benefits of the educational program to the same extent as his non-disabled peers." Id. ¶ 41. As a result, S.D. had "to teach himself the curriculum and try to identify and understand assignments that had been explained when he was absent." Id. ¶ 45. Therefore, according to Appellants, S.D. fell "further and further behind." Id.

The attendance policy in effect during the 2012-13 school year prohibited a student from earning credit

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for a year-long course in which the student had accrued more than fifteen absences, unless the student provided certain documentation to excuse the excess absences, [**5] including, inter alia, a "[m]edical note from a physician." Id., Ex. D. During the 2012-13 school year, S.D. accrued "over 33 absences[,] . . . most of [which] related to S.D.'s disabilities." Id. ¶¶ 48-49. Nevertheless, he passed his courses and earned the requisite number of credits for promotion to the tenth grade. Id. ¶ 50.

B. New Attendance Policy for the 2013-14 School Year

In the summer of 2013, Appellee enacted a new attendance policy for the 2013-14 school year that required students to be retained if they accrued more than 33 absences in a school year—regardless of whether the absences were "excused, approved, [or] unexcused." Id. ¶ 53; Ex. E.2 Students with more than fifteen unexcused absences were required to attend a "Saturday Credit Reinstatement Program" in order to obtain credit sufficient to pass their courses. Id. ¶ 60; Ex. E.

Appellants allege that Appellee "made a deliberate choice to enact [**6] the Policy," despite Appellee's knowledge that it was "substantially likely" that the new attendance policy would harm S.D.'s ability to advance in school, in order to "target" students like S.D. who had frequent excused absences. Id. ¶¶ 54-55. Appellants assert that, because the new attendance policy allowed students with unexcused absences to make up credits and progress to the next grade through the Saturday Credit Reinstatement Program, but offered no such mechanism for

2 The Policy reads in full:

STUDENTS ARE LIMITED TO A TOTAL OF 33 ABSENCES IN A SCHOOL YEAR. THIS INCLUDES ANY ABSENCE (INCLUDING EXCUSED, APPROVED, AND UNEXCUSED). The only exception is home instruction approved by the district. STUDENTS WITH MORE THAN 33 DAYS ABSENT WILL BE RETAINED.

Id. ¶ 53.

students with absences excused by, for example, a disability, to make up credits, the policy had an impermissible discriminatory effect. Id. ¶¶ 61-62.

C. The 2013-14 School Year

Appellee readopted S.D.'s amended Section 504 Plan for the 2013-14 school year without reference to, or accommodation for, the new attendance policy. Id. ¶¶ 40, 70. By March 2014, S.D. had accumulated thirty-seven absences due to his disability, all of which were excused by medical notes. Id. ¶ 76.3 In a letter dated March 13, 2014, the principal of S.D.'s school informed S.D.'s parents that S.D. would be retained pursuant to the new attendance policy. Id. ¶¶ 73-75. After S.D.'s parents received the principal's letter, they filed a complaint with the [**7] Office of Civil Rights, [*393] but then decided to pursue litigation to try to prevent S.D. from being retained for the 2014-15 school year. Id. ¶ 83-84. Appellants commenced the instant federal action on March 25, 2014 by filing a two-count complaint alleging violations of Section 504 and the ADA.

On April 11, 2014, Appellants filed a motion for a preliminary injunction, seeking to enjoin Appellee from retaining S.D. based on his number of absences. On April 15, 2014, Appellee notified S.D.'s parents that it had revised S.D.'s Section 504 Plan to require him to make up absences excused by his disability by attending "Saturday school for credit reinstatement." Id. ¶ 85. The new Section 504 Plan also provided for "make-up attendance with homebound instruction for absences related to" S.D.'s disability. Id.

Appellants allege that the April 2014 Section 504 Plan was insufficient because it required S.D. to "log[] time in the school building" and failed to "appropriately compensate for instruction S.D. missed for earlier absences." Id. ¶¶ 91-92. Appellants assert that the requirement for S.D. to attend the Saturday credit [**8] reinstatement program was "punitive rather than educational" because S.D. had

3 S.D. accrued fifty-eight absences during the 2013-14 school year, fifty-six of which were excused by a doctor's note. Id. ¶¶ 66-67.

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to "serve" Saturdays with students who had unexcused absences and the program did not "provide a means of obtaining instruction missed." Id. ¶ 94.

In June 2014, the parties reached a settlement agreement that resolved Appellants' motion for a preliminary injunction. S.D.'s parents paid for him to complete a summer driver's education course in order to be promoted to eleventh grade. Id. ¶ 96. However, Appellants now allege that this requirement was "punitive and retaliatory" because it "serve[d] no educational purpose." Id. ¶ 99.

D. Appellants' Amended Complaint and the District Court's Opinion

In August 2014, the District Court granted Appellants leave to file an amended complaint that alleged six counts of discrimination and retaliation by Appellee based on S.D.'s disability and assertion of his rights under Section 504. The Amended Complaint attached several exhibits, including two letters from S.D.'s doctor, S.D.'s four Section 504 Plans, and the Board's two attendance policies. Appellants sought thirteen forms of relief, including, inter alia, compensatory education and compensatory and punitive damages. Id. at 27-28.

Appellee subsequently filed [**9] a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectively. The District Court concluded that Appellants' claims required compliance with the IDEA's administrative process and dismissed the claims without prejudice for lack of subject matter jurisdiction. See A.D. v. Haddon Heights Bd. of Educ., 90 F. Supp. 3d 326, 341-43 (D.N.J. 2015).4 Upon dismissing Appellants' federal claims, the District Court declined to exercise supplemental jurisdiction over Appellants' state law claims, and dismissed those as well. Id. at 342 n.14.

4 It is undisputed that Appellants have not exhausted the IDEA administrative process.

This timely appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW

Appellants invoked federal jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343; however, the District Court's jurisdiction is squarely at issue in this case. We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291.

[*394] We exercise plenary review over a district court's order dismissing a complaint for lack of subject matter jurisdiction. Batchelor, 759 F.3d at 271. We construe Appellee's motion as a facial challenge to the District Court's subject matter jurisdiction, and, therefore, we apply the same standard of review in considering a motion to dismiss under Rule 12(b)(6)—i.e., we view the alleged facts [**10] in favor of Appellants, the non-moving party. See Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014).5

5 Challenges to subject matter jurisdiction under Rule 12(b)(1) may be "facial" or "factual," and the "distinction determines how the pleading must be reviewed." Aichele, 757 F.3d at 357. "Facial attacks . . . contest the sufficiency of the pleadings, and the trial court must accept the complaint's allegations as true." Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006) (quoting Turicentro, S.A. v. Am. Airlines, 303 F.3d 293, 300 n.4 (3d Cir. 2002)). In contrast, a factual challenge "concerns the actual failure of a plaintiff's claims to comport factually with the jurisdictional prerequisites," and permits the district court to independently evaluate all the evidence to resolve disputes over jurisdictional facts. Aichele, 757 F.3d at 358 (quoting CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008))); see S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329, 332, 56 V.I. 901 (3d Cir. 2012). Here, the District Court construed Appellee's motion to dismiss as a factual attack. Because Appellee neither answered Appellants' Amended Complaint, nor offered any factual averments in support of its motion to dismiss, we conclude that the District Court erred. See Aichele, 757 F.3d at 358 ("The Commonwealth filed the [jurisdictional] attack before it filed any answer to the Complaint or otherwise presented competing facts. Its motion [to dismiss] was therefore, by definition, a facial attack."). However, at oral argument, both parties conceded that any error was harmless. We agree. [**11] The District Court stated that it accepted Appellants' allegations as true for purposes of the motion to dismiss, and only considered the Amended Complaint and attached exhibits.

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III. ANALYSIS

A. The IDEA Statutory Scheme

Congress enacted the IDEA to "ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs . . . ." 20 U.S.C. § 1400(d)(1)(A). States receive federal education funding upon complying with several requirements, including making available a free appropriate public education ("FAPE") to children with disabilities and ensuring that such children and their parents are provided with due process. Batchelor, 759 F.3d at 271-72. If a child's parents believe that a school has not fulfilled its statutory obligations, the IDEA provides them an avenue to file a complaint and obtain an administrative hearing "with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." 20 U.S.C. § 1415(b)(6)(A); see also id. § 1415(f). After exhausting this administrative hearing process, "[a]ny party aggrieved by the findings and decision[s]" made during [**12] the hearing may seek judicial review in federal court. Id. § 1415(i)(2)(A). "In the normal case, exhausting the IDEA's administrative process is required in order for the statute to 'grant subject matter jurisdiction to the district court.'" Batchelor, 759 F.3d at 272 (quoting Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775, 778 (3d Cir 1994)).

Section 1415(l) of the IDEA requires exhaustion of the administrative hearing process not only in actions brought directly under the IDEA, but also "in non-IDEA actions where the plaintiff seeks relief that can be obtained under the IDEA." Id. Section 1415(l) provides:

Nothing in this chapter shall be construed to restrict or limit the rights, [*395] procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C. § 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C. § 791 et

seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

20 U.S.C. § 1415(l). "This provision bars plaintiffs from circumventing [the] IDEA's exhaustion requirement by taking claims that could have been brought under [the] IDEA [**13] and repackaging them as claims under some other statute." Batchelor, 759 F.3d at 272 (quoting Jeremy H. v. Mount Lebanon Sch. Dist., 95 F.3d 272, 281 (3d Cir. 1996)).

In Batchelor, we explained that "determining if the IDEA's administrative process must be exhausted before bringing claims in federal court turns on whether the parties could have asserted the claims under the IDEA." Id. at 273. "Intertwined with this inquiry is whether the claim could have been remedied by the IDEA's administrative process." Id. We reiterate here that the ultimate question is whether a non-IDEA claim falls within the scope of a complaint contemplated by the IDEA—i.e., whether the non-IDEA claim "relate[s] to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." Id. at 274 (quoting 20 U.S.C. § 1415(b)(6)(A)). To answer this question, a court must evaluate the nature of a plaintiff's claims and the "theory behind the grievance." Id. at 276 (quoting Charlie F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 992 (7th Cir. 1996)).

B. Batchelor and the Scope of Section 1415(l) of the IDEA

In Batchelor, a mother ("Ms. Batchelor") sued a school district individually and on behalf of her son, Ryan (collectively, "plaintiffs"). When Ryan was diagnosed with attention deficit hyperactivity disorder in his freshman year of high school, the school district developed an educational [**14] plan pursuant to

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Section 504. Id. at 269. By Ryan's sophomore year, however, he was struggling and Ms. Batchelor complained to the school district that it was not providing Ryan with the support services required by the Section 504 plan. Id. At that time, Ryan was tested and diagnosed with an additional math disability and the school district developed an individualized education plan ("IEP") for Ryan pursuant to the IDEA. Id. Ms. Batchelor and the school district also entered into a settlement agreement. Id. at 270.

However, plaintiffs alleged that, during Ryan's junior and senior years, the school district engaged in retaliatory acts against them, such as changing Ryan's tutor, assigning Ryan to a teacher who was known to be a bully, and refusing to allow Ryan to participate in extracurricular activities. See id. at 270, 274. The plaintiffs then sued, asserting three federal claims: (1) retaliation/failure to provide a FAPE, in violation of the IDEA; (2) retaliation in violation of Section 504; and (3) retaliation in violation of the ADA. Id. at 270.

We concluded that the Section 504 and ADA retaliation claims "relate[d] unmistakably" and "palpably relate[d]" to the school district's provision of a FAPE to Ryan. Id. at 273-74 (quoting Rose v. Yeaw, 214 F.3d 206, 210 (1st Cir. 2000)). In other words, there was "a logical path to be drawn from [plaintiffs' [**15] non-IDEA] claims of retaliation to the District's failure to [*396] provide, and Ms. Batchelor's effort to obtain for, Ryan" a FAPE pursuant to the IDEA. Id. at 274-75. Because the plaintiffs' Section 504 and ADA retaliation claims "relate[d] to . . . the provision of a [FAPE]," they could have been brought and remedied under the IDEA, and, pursuant to § 1415(l), had to be administratively exhausted. Id. at 274.

In so holding, we invoked the "strong policy reason [for] requiring exhaustion of remedies available under the IDEA." Id. at 275. Exhaustion "develop[s] the record for review on appeal," "encourag[es] parents and the local school district to work together to formulate an IEP for a child's education," and "allow[s] the education agencies to apply their expertise and correct their own errors." Id. (internal

quotation and citation omitted). Thus, based on "the plain language and structure of the IDEA, . . . the purpose of the IDEA's exhaustion requirement and the policy concerns supporting it," we concluded that "retaliation claims related to the enforcement of rights under the IDEA must be exhausted before a court may assert subject matter jurisdiction." Id.

C. Appellants' Non-IDEA Claims

Although Appellants' non-IDEA claims do not, as in Batchelor, arise from their enforcement of [**16] rights explicitly under the IDEA, we nevertheless conclude, based on the nature of Appellants' allegations, that their discrimination and retaliation claims are subject to the IDEA exhaustion requirement. Our holding here is a narrow extension of Batchelor, but we continue to focus on whether a plaintiff's alleged injuries could be remedied through the IDEA administrative process because they relate to the "the identification, evaluation, or educational placement" of a child or to "the provision of a free appropriate public education to such child," as defined by the IDEA, 20 U.S.C. § 1415(b)(6)(A).

Here, Counts I and II of the Amended Complaint assert discrimination claims under Section 504 and the ADA, respectively. Am. Compl. ¶¶ 102-113. The District Court succinctly summarized the relevant allegations as: "whether [Appellee] appropriately identified S.D. as a student with a disability; [] what constitutes a [FAPE] for S.D.; and whether, and to what extent, the various accommodations sufficiently addressed S.D.'s right to a FAPE." A.D., 90 F. Supp. 3d at 341. Importantly, Appellants' discrimination claims arise from educational harm to S.D.; Appellants allege that the Section 504 Plans developed by Appellee were deficient such that S.D. was denied "educational opportunities" [**17] and "fell further and further behind" regarding his progress with the curriculum. Am. Compl. ¶¶ 41-46; see Batchelor, 759 F.3d at 278 ("It is clear that [b]oth the genesis and the manifestations of the problem[s] are educational.") (quotation marks and citation omitted).

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We conclude that Appellants' alleged education injuries in Counts I and II of their Amended Complaint relate to the provision of a FAPE, as defined by the IDEA. The IDEA defines "FAPE" to include "special education and related services" that are free, include an "appropriate" education, and are provided in conformity with an IEP. 20 U.S.C. § 1401(9). Under the IDEA, "special education" means "specially designed instruction . . . to meet the unique needs of a child with a disability." Id. § 1401(29). Central to Appellants' discrimination claims is that Appellee should have provided alternative or supplemental instruction to S.D. See, e.g., Am. Compl. ¶ 41 (Appellee "did not provide . . . homebound instruction or other supplemental instruction" to S.D.); id. ¶ 46 (Appellee failed "to offer any alternative instruction [*397] to S.D."); id. ¶ 56 (referencing homebound instruction); id. ¶ 80 (Appellee failed to "offer S.D. any way to recoup the instruction he missed"); id. ¶ 92 ("[I]t is critical that [**18] arrangements for [S.D.] to make up educational time he has missed focus on the instruction he needs most."). The theory behind Appellants' grievance is that Appellee failed to provide instruction tailored to meet S.D.'s special needs resulting from his disability. Their claims therefore relate to the provision of a FAPE to S.D. Thus, Appellants' discrimination claims in Counts I and II could have been remedied through the IDEA's administrative process.

Appellants' retaliation claims in Counts III and IV challenge the appropriateness of Appellee's initial decision to retain S.D. in the tenth grade, its enactment of the revised attendance policy to retain students based on a total number of absences, and its choice of make-up courses to allow S.D. to progress to the eleventh grade. See id. ¶¶ 120-123, 129-132. Appellants allege that Appellee's revised attendance policy "prevent[ed] S.D. from making educational progress" and that Appellee took "retaliatory actions" and "adverse actions" against them as a result of "their efforts to vindicate S.D.'s right to a FAPE." Id. ¶¶ 9, 119-23, 129-32. These claims also arise from educational harm and challenge the provision of a FAPE to S.D. Here, as in Batchelor [**19] , there is a

"logical path to be drawn from [Appellants'] claims of retaliation to [Appellee's] failure to provide, and [Appellants'] effort to obtain for," S.D. a FAPE. 759 F.3d at 274-75. Moreover, because the revised attendance policy forms the basis for all the retaliation claims, and because that policy made express exception for "home instruction approved by the district," Am. Compl. ¶ 53; Ex. E, those claims too "could have been remedied by the IDEA's administrative process," Batchelor, 759 F.3d at 273.

Accordingly, Appellants' claims asserted pursuant to the ADA, Section 504, and § 1983 fall within the ambit of the IDEA and, because Appellants have not exhausted the IDEA administrative process, must be dismissed without prejudice. Again, we invoke the "strong policy" encouraging exhaustion of administrative remedies in these types of cases. Where parents challenge a school's provision of a FAPE and allege educational harm to a child, remediation of the alleged educational deficiencies is best addressed in the first instance by educational professionals, rather than a court.6

Appellants [**20] offer several arguments against dismissal, none of which are availing.

First, Appellants argue that S.D. is ineligible for IDEA services and therefore relief is not "available" to them under the IDEA. (Appellants' Br. at 17-20.) We, however, agree with the District Court that Appellants' allegations about S.D.'s disability and its effect on his education "potentially implicate[] the statutory entitlements of the IDEA." See A.D., 90 F. Supp. 3d at 338. For a student to be eligible for IDEA services, the student must both: (1) have a disability that falls into one or more of the statute's enumerated categories; and (2) because of that disability, need "special education and related services." 20 U.S.C. § 1401(3). Asthma is an enumerated disability. 34 C.F.R. § 300.8(c)(9). The IDEA also requires that asthma or any other health impairment "[a]dversly affect[]" the student's

6 Because we conclude that the District Court lacked jurisdiction over Appellants' federal claims, we will affirm the District Court's dismissal of Appellants' state law claims.

833 F.3d 389, *396; 2016 U.S. App. LEXIS 15172, **17

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educational performance. Id. Here, Appellants' Amended Complaint alleges that S.D.'s [*398] medical problems "impact[] his ability to attend school and to learn," Am. Compl. ¶ 3, and "substantially limit him in major life activities, specifically the life activity of learning," id. ¶ 12. Further, as we explained above, Appellants' allegations—in particular Appellants' complaint that S.D. never received [**21] supplemental instruction—implicate a potential need for "special education and related services." Therefore, we cannot conclude at this time that S.D. is ineligible for relief under the IDEA.

Second, Appellants argue that a FAPE under the ADA and Section 504 differs from the FAPE defined by the IDEA and, therefore, their ADA and Section 504 claims cannot be remedied through the IDEA administrative process. (Appellants' Br. at 33-40.) Although the statutes are not identical, we have previously recognized that the IDEA's substantive protections overlap with those of Section 504 and the ADA. See D.K. v. Abington Sch. Dist., 696 F.3d 233, 253 n.8 (3d Cir. 2012) ("[O]ur finding that the School District did not deny D.K. a FAPE [under the IDEA] is equally dispositive of Plaintiffs' §504 claim."); P.P. ex rel Michael P. v. W. Chester Area Sch. Dist., 585 F.3d 727, 735 (3d Cir. 2009) (stating that "[t]he IDEA and § 504 of the Rehabilitation Act do similar statutory work," reviewing similar provisions of the two statutes, and concluding that the IDEA's statute of limitations applies to plaintiffs' Section 504 claims); see also 34 C.F.R. § 104.33(b)(2) (Section 504 regulation providing that "[i]mplementation of an [IEP under the IDEA] is one means of meeting the standard" for a FAPE under Section 504). Moreover, as we have concluded above, the theory behind Appellants' grievances focuses in large part on Appellee's failure to provide special instruction to meet S.D.'s educational needs arising from [**22] his disability, so that their claims relate to the provision of a FAPE as defined by the IDEA.

Third, Appellants contend that the conclusion that S.D.'s educational injuries could be remedied through the IDEA administrative process assumes that

Appellee violated its "Child Find" duty imposed by the IDEA. (Appellants' Br. at 20.) We disagree. "School districts have a continuing obligation under the IDEA and § 504—called 'Child Find'—to identify and evaluate all students who are reasonably suspected of having a disability under the statutes." D.K., 696 F.3d at 249 (emphasis omitted) (quoting P.P., 585 F.3d at 738). We offer no opinion here as to whether Appellee violated its Child Find duty. We simply decline to equate our finding that Appellants' alleged educational harms could be remedied through the IDEA administrative process with a finding that Appellee violated its Child Find duty.

Our decision here does not foreclose future litigation arising from S.D.'s education. See Batchelor, 759 F.3d at 278 n.15 ("This is not to say that Appellants will not be entitled to compensatory damages for their retaliation claims after they exhaust the IDEA administrative process. . . . Appellants may very well file a complaint containing virtually identical claims as asserted in the [**23] Complaint before us today."). We only hold that Appellants must first exhaust their claims through the IDEA administration process. The District Court correctly determined that the Amended Complaint should be dismissed for lack of subject matter jurisdiction.

IV. CONCLUSION

For the foregoing reasons, we will affirm the judgment of the District Court.

End of Document

833 F.3d 389, *397; 2016 U.S. App. LEXIS 15172, **20

73

S.D. v. Haddon Heights Bd. of Educ.

Supreme Court of the United States

May 15, 2017, Decided

No. 16-1054.

Reporter137 S. Ct. 2121 *; 2017 U.S. LEXIS 3107 **; 198 L. Ed. 2d 193; 85 U.S.L.W. 3539; 2017 WL 846191

S.D., a Minor, By His Parents and Natural Guardians, A.D. and R.D., et al., Petitioners v. Haddon Heights Board of Education.

Prior History: S.D. v. Haddon Heights Bd. of Educ., 833 F.3d 389, 2016 U.S. App. LEXIS 15172 (3d Cir. N.J., Aug. 18, 2016)

Judges: [**1] Roberts, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan, Gorsuch.

Opinion

[*2121] On petition for writ of certiorari to the United States Court of Appeals for the Third Circuit. Petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Third Circuit for further consideration in light of Fry v. Napoleon [*2122] Community Schools, 580 U. S. ___, 137 S. Ct. 743, 197 L. Ed. 2d 46 (2017).

End of Document

74

Wellman v. Butler Area Sch. Dist.

United States Court of Appeals for the Third Circuit

November 7, 2017, Argued; December 12, 2017, Filed

No. 15-3394

Reporter877 F.3d 125 *; 2017 U.S. App. LEXIS 25009 **

ROBERT WELLMAN, JR., Appellant v. BUTLER AREA SCHOOL DISTRICT, DR. JOHN WYLLIE, Individually, and in his capacity as principal of the Butler Area High School

Prior History: [**1] Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. No. 2-13-cv-00616). District Judge: Hon. Mark R. Hornak.

Wellman v. Butler Area Sch. Dist., 2015 U.S. Dist. LEXIS 117146 (W.D. Pa., Sept. 2, 2015)

Case Summary

OverviewHOLDINGS: [1]-A student's claims under the Rehabilitation Act, the ADA, and 42 U.S.C.S. § 1983 would ordinarily have required exhaustion of IDEA administrative remedies because the gravamen of his suit was the denial of a FAPE. The student sought relief because the school district allegedly failed to provide him with academic accommodations that would have allowed him to succeed and stay in school despite head injuries; [2]-Dismissal with prejudice rather than without prejudice was required because the student's parents had signed a settlement agreement that released all claims related to the denial of a FAPE, and the student therefore had no claims to exhaust.

OutcomeJudgment vacated; case remanded with instructions to dismiss with prejudice.

Counsel: Edward A. Olds, Esq. [ARGUED], Olds Russ & Associates, Pittsburgh, PA, Counsel for

Appellants.

Thomas E. Breth, Esq. [ARGUED], Dillon McCandless King Coulter & Graham, Butler, PA, Counsel for Appellees.

Judges: Before: SMITH, Chief Judge, JORDAN and SHWARTZ, Circuit Judges.

Opinion by: SHWARTZ

Opinion

[*126] OPINION OF THE COURT

SHWARTZ, Circuit Judge.

Robert Wellman, Jr., appeals the District Court's order dismissing his complaint without prejudice for lack of subject matter jurisdiction because he failed to exhaust his administrative remedies under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. He contends that the Court erred because none of his claims seek relief under the [*127] IDEA and, in any event, exhaustion would be futile.

The outcome of this appeal is largely dictated by the Supreme Court's recent opinion in Fry v. Napoleon Community Schools, 137 S. Ct. 743, 197 L. Ed. 2d 46 (2017), which requires that we consider the "crux"—the "gravamen"—of the complaint to determine whether a plaintiff seeks relief for "denial of the IDEA's core guarantee [of] . . . a free and appropriate education [FAPE,]" id. at 748 (quotation marks omitted); if so, then [**2] the plaintiff must exhaust his administrative remedies under the IDEA. Because

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the gravamen of each count in Wellman's complaint seeks relief for the denial of a FAPE, Wellman would typically be required to exhaust his claims. Wellman concedes, however, that he released all claims seeking relief based on the denial of a FAPE, and thus, he has no claims to exhaust. As a result, we will vacate the District Court's order dismissing the complaint without prejudice and remand with instructions to dismiss the complaint with prejudice.

I1

Wellman attended high school in the Butler Area School District ("the School District"). He suffered a head injury while playing flag football in his freshman physical education class. After school that day, Wellman attended football practice, where he suffered additional head injuries. The following day, Wellman saw his doctor and later underwent a CT scan, which revealed that he had sustained a concussion. Wellman suffered "pain" and experienced "staring spells, trouble sleeping, and difficulty concentrating." App. 126.

Wellman returned to school, but his mother asked the school to assist him until his concussion healed. Wellman's mother requested that Wellman [**3] be taken out of his German and physical education classes, that he be given extra study halls, and that the football coach not allow him to engage in any unsuitable physical activity. Rather than allow him to rest during his extra study halls, however, the teachers required him to take make-up exams. Wellman alleges that the school's indifference to his need for accommodations increased his stress and aggravated his cognitive problems.

After performing an EEG test, Wellman's doctor wrote a letter asking the school to provide Wellman with academic accommodations, specifically tutors and more time to complete his assignments. The

1 The facts are taken from the Second Amended Complaint. Because this appeal involves a facial challenge to the existence of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), we accept as true the facts alleged in the complaint and construe them in favor of the nonmoving party. Constitution Party of Pa. v. Aichele, 757 F.3d 347, 357 n.12 (3d Cir. 2014).

school ignored these requests.

A few weeks later, Wellman attended a high school football game. Before the game, Wellman's mother told the football coach that Wellman had a concussion, was not cleared to participate in the game, and should not be exposed to any possibility of physical contact. Despite this conversation, the football coach asked Wellman to hold one of the markers on the sidelines. Wellman was not wearing any protective gear. During the game, a player in full uniform ran into Wellman and knocked him over, causing another head injury.

After this incident, [**4] Wellman's concussion symptoms worsened, and he experienced severe headaches, problems focusing, and exhaustion. A CT scan revealed that he had post-concussive syndrome. [*128] Wellman began to miss school because of his symptoms and medical appointments, and when he was able to attend school, his teachers refused to provide accommodations for him. As a result, Wellman suffered significant stress, embarrassment, and anxiety.

Wellman and his mother met with the principal regarding his teachers' failure to accommodate him,2 but the principal was dismissive of his problems. Because the School District would not accommodate him, Wellman requested and received homebound instruction but claimed that the teachers who provided the instruction were generally apathetic. Wellman attempted to return to school, but again his teachers denied his requests for accommodations,3 and he quickly returned to homebound instruction for the remainder of the 2009-10 academic year.

Wellman attempted to return to school for the 2010-11 academic year but was overwhelmed by severe anxiety. To reduce his anxiety, Wellman and his mother asked that he be allowed to switch his lunch

2 The Complaint states that Wellman's teachers ignored his doctor's request for accommodations and were "giving Wellman too much work." App. 131.

3 It is not clear from the complaint which accommodations were requested and denied during this time period.

877 F.3d 125, *127; 2017 U.S. App. LEXIS 25009, **2

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period so that he could eat lunch with his [**5] friends, but the request was denied. Wellman had panic attacks at the thought of returning to school, and he returned to homebound instruction.

In October 2010, Wellman's mother requested that he be evaluated for an Individualized Education Plan ("IEP").4 The school determined that Wellman was not eligible for an IEP. However, Wellman underwent an independent evaluation, which concluded that he met the criteria for anxiety disorder and cognitive disorder due to a medical condition. Thereafter, Wellman's mother, his therapists, and school officials met. The school proposed a "Chapter 15/504 plan"5 to help Wellman return to school, but the parties could not reach an agreement on its implementation. App. 134. Four months later, they met again to discuss a Chapter 15/504 plan, but school officials appeared uninterested in giving Wellman "any sort of accommodations." Id. Wellman finished his sophomore year in cyber school. The following year, he enrolled in private school, from which he eventually graduated.

[*129] Wellman and his parents filed a due process

4 The state administers a FAPE by developing an IEP for every child with disabilities. 20 U.S.C. § 1414(d). Once a child is identified as having special needs, "[a] school district provides a FAPE by designing and implementing an individualized instructional program set forth in an [IEP], which must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student's intellectual potential." G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 607 (3d Cir. 2015) (citations and internal quotation marks omitted).

5 Chapter 15 of the Pennsylvania Code implements the statutory and regulatory requirements of § 504 of the Rehabilitation Act, 29 U.S.C. § 794, 22 Pa. Code § 15.1(a). Section 504 requires schools to provide "a free appropriate public education," defined in the Rehabilitation Act as "the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of [students with disabilities] as adequately as the needs of [nondisabled students] are met and (ii) are based upon adherence to procedures that satisfy the requirements of § 104.34 [least restrictive setting], § 104.35 [evaluation and placement], and § 104.36 [procedural safeguards]." 34 C.F.R. § 104.33(b)(1). "Section 504 defines disability more broadly than the IDEA, and thus, some students covered by Section 504 are not covered under the IDEA." Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 269 n.4 (3d Cir. 2014) (citations omitted).

complaint with the Pennsylvania Department of Education against the School District, requesting a hearing, an IEP, compensatory education for [**6] two years, and payment of Wellman's private school tuition. Wellman and the School District eventually entered into a Settlement and Release Agreement ("the Settlement Agreement") with respect to the claims in the due process case. Under the Settlement Agreement, the Wellmans released the School District and its employees

from all rights, claims, causes of action, and damages of any nature including, but not limited to, any claim for legal fees and/or costs, which were pursued in the above-referenced case or which could have been pursued in the above-referenced case, pursuant to the [IDEA], as amended; the Americans with Disabilities Act (ADA); or any other Federal or State statute, including the regulations promulgated thereunder.

App. 101.

Wellman thereafter filed suit in the United States District Court for the Western District of Pennsylvania against the School District and the high school's principal. In the operative complaint, Wellman alleges that the School District and principal: (1) violated the Rehabilitation Act, 29 U.S.C. § 794, and the ADA, 42 U.S.C. § 12132, by refusing to accommodate Wellman and treating him as if his injuries were fabricated or exaggerated; (2) violated the Rehabilitation Act and ADA [**7] by insisting that Wellman hold the marker on the football field, even though the School District was aware that he had a concussion and should not have been exposed to unnecessary physical risk; and (3) sought relief under 42 U.S.C. § 1983 for a violation of Wellman's equal protection rights by failing to accommodate him, retaliating against him because he requested accommodations, and treating him differently from other disabled students.

The School District and principal filed a motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The District Court initially dismissed the claim against the

877 F.3d 125, *128; 2017 U.S. App. LEXIS 25009, **4

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principal in his official capacity but allowed all other claims to proceed. After this Court decided Batchelor v. Rose Tree Media School District, 759 F.3d 266 (3d Cir. 2014), which held that exhaustion under the IDEA was a jurisdictional requirement, the District Court concluded that it lacked subject matter jurisdiction and dismissed the Complaint without prejudice, because (1) each of Wellman's claims were related to the provision of a FAPE, and he failed to exhaust his claims before a special education hearing officer; (2) the Settlement Agreement did not render the claims exhausted because it did not serve the key purpose of developing an underlying factual record; and (3) no exception [**8] to exhaustion was applicable to the case, given that no underlying factual record was developed, there were no allegations of an emergency situation requiring immediate resolution, and Wellman's claims all principally related to his education. Wellman appeals.

II

We first address whether we have appellate jurisdiction over the challenged order. The District Court's order dismissed the complaint without prejudice for failing to exhaust administrative remedies. Wellman contends that exhaustion would be futile, and so he has chosen not to present the claims in his complaint to an administrative hearing officer. "[A]n appellant who does not attempt to avail himself of the administrative process, but who instead files an appeal raising the argument [*130] that exhaustion would be futile, 'effectively stands on his original complaint' and that in such cases we may exercise jurisdiction over an order dismissing a complaint without prejudice." Ghana v. Holland, 226 F.3d 175, 180-81 (3d Cir. 2000) (quoting Nyhuis v. Reno, 204 F.3d 65, 68 n.2 (3d Cir. 2000)).

Wellman has filed an appeal and argued that administrative exhaustion would be futile, and thus, he has effectively decided to stand on his complaint. We will therefore treat the order dismissing the complaint without prejudice as a final order and exercise [**9] appellate jurisdiction pursuant to 28 U.S.C. § 1291. See Booth v. Churner, 206 F.3d 289, 293 n.3 (3d Cir. 2000) ("[A] plaintiff can appeal from

a dismissal without prejudice when he declares his intention to stand on his complaint or when he cannot cure the defect in his complaint."), aff'd, 532 U.S. 731, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001).

III

We next address whether we have subject matter jurisdiction. Wellman invoked federal question jurisdiction pursuant to 28 U.S.C. § 1331 by raising claims under several federal statutes. The School District contends that the federal court lacks subject matter jurisdiction over the complaint because Wellman's claims seek relief under the IDEA and 20 U.S.C. § 1415(l) requires such claims be presented to an administrative hearing officer, which Wellman failed to do. In Batchelor, this Court held that exhaustion of the IDEA administrative process is normally required for a District Court to exercise subject matter jurisdiction. 759 F.3d at 272 (citing Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775, 778 (3d Cir. 1994)). While we have some doubts as to whether IDEA exhaustion is a jurisdictional requirement,6 we are bound by this precedent. Moreover, we need not wrestle with whether exhaustion is jurisdictional because the

6 There appears to be some tension in our precedent as to whether a jurisdictional exhaustion requirement could be subject to a futility exception. Compare Wilson v. MVM, Inc., 475 F.3d 166, 174 (3d Cir. 2007) (discussing the difference between "prudential exhaustion" and "jurisdictional exhaustion," and explaining that a prudential exhaustion requirement can be bypassed under certain circumstances, including futility, but that a jurisdictional exhaustion requirement "is a prerequisite to a court's subject matter jurisdiction. Regardless of whether there is a compelling reason a plaintiff failed to exhaust, a court is without subject matter jurisdiction to hear the plaintiff's claim"), and Nyhuis v. Reno, 204 F.3d 65, 69 (3d Cir. 2000) (noting that a jurisdictional exhaustion requirement "by definition cannot be subject to a futility exception" (emphasis in original)), with D.E. v. Cent. Dauphin Sch. Dist., 765 F.3d 260, 274-75 (3d Cir. 2014) (noting that exhaustion is a prerequisite to a district court's subject matter jurisdiction, but stating that there are four exceptions to the exhaustion requirement, including futility, and explaining that "[a]bsent the existence of any of those exceptions, failure to exhaust will deprive a federal court of subject matter jurisdiction"). Here, the exhaustion requirement can be excused, for example, if it is futile or if there are emergent circumstances that justify coming directly to federal court. The fact that the exhaustion requirement has exceptions suggests that it is not a jurisdictional prerequisite to our authority to hear an IDEA case.

877 F.3d 125, *129; 2017 U.S. App. LEXIS 25009, **7

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School District insists exhaustion is required for Wellman to proceed. We must therefore address the School District's contention that exhaustion is required, regardless [**10] of whether it is a prerequisite for us to exercise subject matter jurisdiction. See, e.g., J.B. ex rel. Bailey v. Avilla R-XIII Sch. Dist., 721 F.3d 588, 593 n.2 (8th Cir. 2013) ("Because the District has not waived the exhaustion argument and we conclude the Plaintiffs were required to exhaust their administrative remedies, we need not reach this issue."); Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775, 783 (10th Cir. 2013) ("Ultimately, however, for purposes [*131] of this case[,] IDEA exhaustion's status as a jurisdictional prerequisite is not at issue. Had defendants failed to raise IDEA exhaustion below or failed to renew that question here, then our obligation to do so independently would turn on its jurisdictional or nonjurisdictional nature." (citation omitted)). Thus, we will next examine whether Wellman's claims are subject to § 1415(l)'s exhaustion requirement.

IV

The IDEA requires participating states to provide disabled children with a FAPE, 20 U.S.C. § 1412(a)(1)(A), and sets forth an administrative mechanism for resolving disputes concerning whether a school has complied, id. § 1415. The IDEA provides for an impartial due process hearing conducted by the state or local educational agency, id. § 1415(f), and the right to appeal the results to the state educational agency if the due process hearing was conducted by the local educational agency, id. §1415(g). The [**11] IDEA also requires parties to use these procedures whenever they seek relief "available under this subchapter" even if they are pursuing relief under other federal laws. Id. § 1415 (l). Specifically, the IDEA provides that:

[n]othing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C. § 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C. § 791 et seq.], or other Federal laws protecting the rights

of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

Id. § 1415(l). Thus, a plaintiff who seeks relief available under the IDEA must exhaust his administrative remedies before filing a lawsuit, even if he relies on laws other than the IDEA.

Courts of Appeals have disagreed about how this provision applied to non-IDEA claims, such as claims under the ADA, Rehabilitation Act, and § 1983. The Supreme Court weighed in on this issue in Fry v. Napoleon Community Schools. In Fry, the plaintiffs alleged that their daughter's school [**12] district discriminated against her in violation of the ADA, the Rehabilitation Act, and state law when it barred her from bringing her service dog to school to assist her with mobility and balance problems. 137 S. Ct. at 750-52. The Court of Appeals for the Sixth Circuit held that Fry was required to exhaust her IDEA remedies, even though she filed non-IDEA claims. Id. at 752. The Supreme Court reversed, holding that "exhaustion is not necessary when the gravamen of the plaintiff's suit is something other than the denial of the IDEA's core guarantee—what the Act calls a 'free appropriate public education.'" Id. at 748 (quoting 20 U.S.C. § 1412(a)(1)(A)). In reaching this conclusion, the Court noted that the IDEA requires exhaustion only where the plaintiff "'seek[s] relief that is also available' under the IDEA." Id. at 752 (quoting 20 U.S.C. § 1415(l)). "[T]o meet that statutory standard, a suit must seek relief for the denial of a FAPE, because that is the only 'relief' the IDEA makes 'available.'" Id. The Court explained that "in determining whether a suit indeed 'seeks' relief for such a denial, a court should look to the substance, or gravamen, of the plaintiff's complaint." Id.7

7 The Court declined to decide whether exhaustion would be required if a plaintiff complained of the denial of a FAPE but sought remedies

877 F.3d 125, *130; 2017 U.S. App. LEXIS 25009, **9

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[*132] In determining whether the gravamen of a plaintiff's complaint is the denial of a FAPE, the Court directed [**13] courts to consider one "clue" in the form of two hypothetical questions: "First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? And second, could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance?" Id. at 756 (emphasis in original). The Court explained that if the answer to both of these questions is yes, then it is unlikely that the complaint is about the denial of a FAPE. Id. By contrast, when the answer to both of these questions is no, then the complaint probably concerns a FAPE. Id.

In addition to these two questions, the Court identified one additional consideration:

A further sign that the gravamen of a suit is the denial of a FAPE can emerge from the history of the proceedings. In particular, a court may consider that a plaintiff has previously invoked the IDEA's formal procedures to handle the dispute . . . . A plaintiff's initial choice to pursue that process may suggest that she is indeed seeking relief for the denial of a FAPE—with the shift to judicial proceedings prior to full exhaustion reflecting only strategic [**14] calculations about how to maximize the prospects of such a remedy. Whether that is so depends on the facts . . . . [b]ut prior pursuit of the IDEA's administrative remedies will often provide strong evidence that the substance of a plaintiff's claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term.

Id. at 757.

which were not available under the IDEA (e.g., money damages). Fry, 137 S. Ct. at 752 n.4. Under our precedent, however, a plaintiff's request for remedies not available under the IDEA does not remove the claim from being subject to exhaustion. Batchelor, 759 F.3d at 276-78. Thus, Wellman's request for damages unavailable under the IDEA or in the administrative forum does not exempt his claims from the exhaustion requirement.

Thus, under Fry, we must focus on the "gravamen of the plaintiff's suit." Fry, 137 S. Ct. at 748; see also id. at 752 ("[A] court should look to the substance, or gravamen, of the plaintiff's complaint."); id. at 755 ("What matters is the crux—or, in legal speak, the gravamen—of the plaintiff's complaint . . . ."). Black's Law Dictionary defines gravamen as "[t]he substantial point or essence of a claim, grievance, or complaint." Black's Law Dictionary (10th ed. 2014). Although the Supreme Court's language spoke in terms of the "complaint," which could mean that the Court was not endorsing a claim-by-claim approach, this is not how we understand the opinion. The word "gravamen" bespeaks concern with both individual claims as well as the collection of claims called a complaint. See id. To apply the Fry test without consideration of the actual claims could result in situations where claims that are included [**15] in a complaint because they involve the same parties or course of events but do not involve the provision of a FAPE get swept up and forced into administrative proceedings with claims that are seeking redress for a school's failure to provide a FAPE. Although these administrative proceedings ensure that FAPE claims are first reviewed by agencies with the appropriate subject matter expertise, these agencies do not employ similar expertise when it comes to claims that do not involve the provision of a FAPE. For example, if a student who was challenging the sufficiency of her IEP also happened to be physically assaulted on the bus going [*133] to school, one could envision the plaintiff bringing a single complaint with different claims arising from her school experience, one of which seeks relief for physical injuries sustained while on the school bus and which has nothing to do with her access to a FAPE and IDEA relief. Surely the Court would not have envisioned that such a claim would be subject to the IDEA's procedural requirements, nor would subjecting such a claim to these procedural requirements necessarily result in any benefit to either the parties or court reviewing the matter at a [**16] later date. Put differently, claims related to the implementation of an IEP involve the provision of a FAPE and are subject to exhaustion, see J.M. v. Francis Howell Sch. Dist., 850 F.3d 944, 951 (8th Cir.

877 F.3d 125, *131; 2017 U.S. App. LEXIS 25009, **12

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2017) ("[Plaintiff] also claims the administrative process would not have addressed all her claims. This, however, does not excuse exhaustion. Although the administrative process may not address all claims, this court has held [that] exhaustion is not futile because it would allow the agency to develop the record for judicial review and apply its expertise to the plaintiff's claims to the extent those claims are related to implementation of the IEP." (citations and internal quotation marks omitted)), but claims that go beyond the student's educational experience are not, see J.S. III v. Houston Cty. Bd. of Educ., No. 15-14306, 877 F.3d 979, 2017 U.S. App. LEXIS 19007, 2017 WL 4351313, at *4-5 (11th Cir. Oct. 2, 2017) (isolation of a severely disabled and cognitively impaired student could give rise to a FAPE claim for failing to follow his IEP but isolating him for no educational purpose is a form of discrimination similar to the type that could be brought by an institutionalized adult and thus is cognizable as an ADA claim and not "merely a FAPE violation under the IDEA"). In short, under Fry, a court must review both the entire complaint and each claim to determine if the plaintiff seeks [**17] relief for the denial of a FAPE.

Application of the Fry framework to Wellman's entire complaint and each of his claims shows that his grievances all stem from the alleged failure to accommodate his condition and fulfill his educational needs. A review of his detailed factual allegations shows that the conduct about which he complains would not have occurred outside the school setting and that a nonstudent could not (and would not) have "pressed essentially the same grievance." Fry, 137 S. Ct. at 756. Most of the more than thirty paragraphs within the section of the complaint entitled "Statement of Facts" set forth Wellman's requests for specific accommodations to help him achieve the level of learning expected from him, such as removing him from his German and physical education classes, providing him with extra study halls, tutors, and additional time to complete assignments, and conveying to the teachers and football coach that he not engage in any unsuitable activity that might aggravate his symptoms and

condition. Wellman alleges that, rather than being provided with these accommodations, he was taken out of study hall so he could take exams, given too much work and denied extra time to complete it, [**18] had apathetic homebound instructors, and was not given support to address the impact of his concussive condition on his ability to learn.

These factual allegations are expressly incorporated by reference into each count of the complaint, and each count includes additional allegations. In Count I, which seeks relief under the ADA and Rehabilitation Act, Wellman reiterates the allegation that the school did not make accommodations for his educational and physical activities while at school and he specifically asserts that "[t]he failure to provide accommodations made [his] inability to survive [*134] in the school inevitable" and that he was "effectively excluded from school." App. 138, 39. In short, in this count, he complains about the educational experience that he had while in the School District.8 This is not the sort of claim that would be brought by a nonstudent against a non-school facility. Thus, under Fry, this claim seeks relief under the IDEA and is subject to exhaustion.

Count II is also subject to exhaustion. Count II seeks relief under the ADA and Rehabilitation Act due to the school's alleged failure to ensure that Wellman was not exposed [**19] to danger after the initial head injury he sustained during physical education class but was still permitted to participate in school activities. In this regard, the complaint alleges that Wellman's mother asked that Wellman be given the accommodations of not being required to "suit[] up or [be] exposed to danger of playing conditions, but was still allowed to attend the [football] game." App. 140. Thus, football was an extracurricular school activity that Wellman's mother wanted him to

8 At oral argument, Plaintiff's counsel essentially acknowledged that Count I concerns the denial of a FAPE. Oral Arg. Recording at 2:00-3:30, Wellman v. Butler Area Sch. Dist., No. 15-3394 (3d Cir. Nov. 7, 2017), available at www2.ca3.uscourts.gov/oralargument/audio/15-3394 WellmanJrv.ButlerAreaSchooletal.mp3.

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experience safely.9 While there could be a scenario in which these events may not relate to a FAPE, as pleaded, it appears that the failure to ensure that Wellman was not placed in a dangerous situation at an extracurricular activity was offered as another example of how the school failed to accommodate him so that he could benefit from his educational experience. App. 142 (alleging that "[a]s a consequence of the deliberate indifference of the School District to Wellman's need for accommodations, Wellman was exposed to an extremely dangerous situation for a young man trying to recover from a concussion. . . . The [concussion he suffered while on the sidelines was] due to the deliberate indifference of the [**20] School District to Wellman's need for accommodations"). Because these factual allegations are intertwined with his complaints about the school's failure to accommodate his educational needs, which include his participation in extracurricular activities, see S.H. v. State-Operated Sch. Dist. of Newark, 336 F.3d 260, 264 (3d Cir. 2003) (observing that an IEP "must detail those special education services [that] . . . allow the child to progress in both the general curriculum and participate in extracurricular activities . . ." (citing 20 U.S.C. 1414(d)(1)(A)(iii))), and because such allegations could not be brought by a nonstudent or outside the school setting, the claim set forth in Count II seeks relief for failing to provide a FAPE and is subject to exhaustion.

Count III, which alleges a claim under § 1983, also seeks relief for failing to provide a FAPE. It incorporates all of the factual allegations within the complaint and further asserts that the School District's special education department refused to provide Wellman services, and that the school treated him differently because his claim for such services was based upon the concussions he sustained during school activities, which the principal did not view as a disabling condition. Again, his grievance is that he was unable to access educational [**21] services,

9 His mother also complained about how the school treated students who suffered sports-related injuries and that the players were pressured to ignore their injuries and to participate.

which is something only a student at school can seek. [*135] Thus, this is not a claim that could have been brought outside a school setting or by a nonstudent and, as a result, it is a claim that also seeks relief for failing to provide a FAPE and is subject to exhaustion.

In summary, both the entire pleading and each individual count show that Wellman seeks relief because the School District failed to provide him with academic accommodations that would have allowed him to succeed and remain enrolled in the school despite his injury. These allegations concern the denial of a FAPE, see Fry, 137 S. Ct. at 753-54 (explaining that the FAPE requirement entitles a child to "meaningful access to education based on her individual needs" (citation and internal quotation marks omitted)), and foreclose the conclusion that Wellman could have brought the same complaint against another public facility or that an adult at the school could have brought the same complaint.

The history of the proceedings also show that the gravamen of Wellman's suit seeks relief for the denial of a FAPE. As the Fry Court noted, "prior pursuit of the IDEA's administrative remedies will often provide strong evidence that the substance of a [**22] plaintiff's claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term." 137 S. Ct. at 757. Here, Wellman's parents filed a due process complaint against the School District requesting a hearing, an IEP, and compensatory education for two years based upon the same conduct alleged in the instant complaint. Under Fry, Wellman's pursuit of administrative remedies is further evidence that his complaint concerns the denial of a FAPE.

Therefore, considering Wellman's complaint, including each count therein, and the history of the proceedings, we conclude that the gravamen of Wellman's complaint is the denial of a FAPE and that the District Court correctly concluded that Wellman's complaint is the type that would ordinarily require administrative exhaustion.

Here, however, Wellman's parents signed a

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settlement agreement that explicitly released all claims that were or could have been pursued in the due process proceeding pursuant to the IDEA or any other federal or state statute. Wellman concedes that he released all claims within the jurisdiction of the administrative hearing officer. All of his claims for relief were based upon the denial of a FAPE.10 As a result, since his complaint [**23] seeks relief for the denial of a FAPE, and he has conceded that he released all claims related to the denial of a FAPE, he has no claims to present to an administrative hearing officer [*136] and thus no claims to exhaust. Wellman therefore has no basis upon which relief can be granted, and so his complaint must be dismissed with prejudice.

V

For the foregoing reasons, we will vacate the District Court's order dismissing the complaint without prejudice and remand with instructions [**24] to dismiss the complaint with prejudice.

End of Document

10 Even if we did not conclude that all of the claims in his complaint seek relief under the IDEA, the language of the release seems to convey a general release and would have released the claims that did not seek relief for failing to provide a FAPE. The Settlement Agreement states that the Wellmans "release[d], relinquish[ed], and discharge[d] the Butler School District . . . from all causes of action, and damages of any nature, . . . which were pursued in the above-referenced case or which could have been pursued in the above reference case, pursuant to . . . any . . . Federal or State statute . . . ." App. 101. While Wellman could try to argue that he could not have brought a claim for damages under the ADA, Rehabilitation Act, and § 1983 in the administrative case, it is unlikely he would succeed in making such an argument since all of the injuries he claims to have suffered, such as anxiety, severe emotional distress, embarrassment, and mental illness stem from educational deprivations that were or could have been the subject of the administrative proceedings and hence his ability to seek damages for those injuries has been released. And, as stated previously, the fact that he could not recover the compensatory damages he now seeks in this lawsuit as part of the administrative proceedings does not convert his claims into non-IDEA claims. See Batchelor, 759 F.3d at 276-78.

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83

A.P. v. Allegro Sch., Inc.

United States District Court for the District of New Jersey

September 29, 2017, Filed

Civ. No. 17-281 (KM) (JBC)


A.P., minor by her parent and guarding S.P. and S.P. individually, Plaintiffs, v. THE ALLEGRO SCHOOL, INC., DEBBY LEWINSON, RICHARD ZANELLA, PRINCIPAL, NIAMAH GRAHAM, TEACHER, JOHN DOES 1-5, (AS YET UNIDENTIFIED INDIVIDUALS) AND ABC ENTITIES 1-5 (AS YET UNIDENTIFIED ENTITIES), Defendants.

Counsel: [*1] For A. P., minor by her parent and guardian S.P., S. P., Individually, Plaintiffs: SHELLEY LYNN STANGLER, LEAD ATTORNEY, SPRINGFIELD, NJ.

For THE ALLEGRO SCHOOL, INC., DEBBY LEWINSON, RICHARD ZANELLA, Principal, NIAMAH GRAHAM, Teacher, Defendants: JEFFREY W. MORYAN, LEAD ATTORNEY, SUSAN M. KWIATKOWSKI, CONNELL FOLEY LLP, ROSELAND, NJ.

Judges: Kevin McNulty, United States District Judge.

Opinion by: Kevin McNulty

Opinion

Plaintiff, A.P., is on the autism spectrum and suffers from severe behavioral disorders. Represented by her mother, S.P., she seeks damages against the Allegro School, Inc. ("Allegro School"), as well as several current and former administrators and staff (collectively, "Allegro") for allegedly violating her individualized education plan ("IEP") by failing to collect data and, in some instances, fabricating reported data over the course of several years. She

asserts a claim under Section 504 of the Rehabilitation Act ("Rehab Act"), as well as state law claims for violation of the New Jersey Law Against Discrimination ("NJLAD"), negligence, breach of contract, promissory estoppel, misrepresentation, fraud, negligent infliction of emotional distress, and intentional infliction of emotional distress. Allegro School [*2] and the other defendants removed this case to federal court based on the Rehab Act claim. They now move to dismiss the complaint in its entirety.

Because I find that I lack subject matter jurisdiction over the only federal-law claims in the complaint, I grant the motion to dismiss. Having done so, I will sua sponte remand the case to State court.

I. Background and Procedural History1

I summarize the allegations of the Complaint, which are accepted as true for the purposes of this motion to dismiss only.

A.P suffers from severe autism, manifested in

1 Record items cited repeatedly will be abbreviated as follows:

"Cplt." = Complaint and Jury Demand, Exhibit A to Notice of Removal (ECF No. 1, ex. A)

"Def. Br." = Defendant's Brief for the Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) and 12(c) (ECF No. 5)

"Pl. Br." = Plaintiff's Brief in Opposition to Motion to Dismiss the Complaint [conforming] (ECF No. 17)

"Def. Reply" = Defendant's Reply Memorandum of Law in Further Support of Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) and 12(c) (ECF No. 20.)

"Pl. Sur." = Plaintiff's Surreply to Defendant's Reply Brief (ECF No. 24.)

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cognitive deficits, functional and behavioral problems, and severe learning disabilities, and has been in need of special programming for the disabled since birth. (Cplt. ¶ 12-13.) [*3] She is verbal, but her communication is impaired to the point that she has difficulty socializing and integrating with other students in a mainstream environment. (Id. ¶ 13.) S.P. is the parent and natural guardian of minor A.P., and they both reside within the Edison Township School District in New Jersey. (Id. ¶ 1.) The school board for the District placed A.P. at the Allegro School, a private school for special needs students in Morris County (Id. ¶¶ 2, 9.) She was a student there from July 9, 2007 to Dec. 10, 2010. (Id. ¶ 11.) Debby Lewinson, Richard Zanella, and Niamah Graham were all staff members and administrators at Allegro involved in A.P.'s education at some point or another. (Cplt. ¶¶ 3-5.)

Allegro was tasked with providing A.P. with Applied Behavior Analysis ("ABA") programming, a scientifically based method designed for students with autism that breaks down skills into smaller processes and uses various teaching methods to ensure that its students progress in their education. (Id. ¶ 14.) Particularly relevant to this litigation is that the ABA method requires strict and rigorous documentation of the student's behavior and progress through the course of the program, including [*4] graphing of skills, data acquisition, target and integrity skill documentation, and baseline evaluations, among other things. (Id.) Without proper documentation, the ABA program is not functional. (Id. ¶ 15.)

Initially, A.P. did well at Allegro. (Id. ¶ 16.) However, during the course of the 2009-10 school year, A.P. began to exhibit louder and more abusive verbal behavior and increased aggression. (Id. ¶ 17.) Concerned by this regression in her daughter's development, S.P. expressed her dissatisfaction at a June 1, 2010 IEP meeting, at which all the defendants were present. (Id. ¶ 18.) They explained to S.P. that A.P. was in fact doing well. (Id.) S.P. then conducted a classroom observation of A.P. with a Board Certified Behavior Analyst present on Oct. 6, 2010.

(Id. ¶ 19.) At this observation, S.P. requested the relevant data and discovered that some data was not being collected. (Id. ¶ 20.) She even discovered that some of the staff had fabricated some data, which was then used to support that contention that A.P. was progressing when she really wasn't. (Id.) She determined that the staff at Allegro had failed to take data for almost half a year. (Id. ¶ 21.) With the help of a sympathetic [*5] staff member at the school, S.P. began to learn of the full extent of the falsified data. (Id. ¶ 25-27.)

On Oct. 12, 2010, another meeting was convened to discuss these issues. (Id. ¶ 28.) S.P. alleges that Allegro admitted it had been inflating A.P.'s progress during the past year and said it was attempting to analyze some of the data that had been located. (Id. ¶ 30.) Soon after this, A.P. was removed from the school and placed in a home-based program pending placement in an appropriate out-of-district program. (Id. ¶ 33.) She was subsequently placed at the Douglass Developmental Disabilities Center in New Brunswick. (Id. ¶ 34.)

On May 13, 2011, A.P. filed an administrative complaint against the District with the New Jersey Department of Education ("NJDOE").2 The complaint initially requested mediation only, but was later amended to request compensatory education. After an unsuccessful mediation that occurred on July 21, 2011, A.P. amended her petition to include Allegro and Debby Lewison and converted the mediation request into a due process request. On

2 This account of the procedural history is supported by a certification accompanying plaintiff's brief. (Pl. Br., Certification of Shelly Stangler, Esq.) It in turn relies on a number of exhibits, consisting of documents in the public record. (Exs. A-P, ECF No. 14) These are properly considered on a motion to dismiss, not for facts recited therein, but for the limited purpose of establishing the history of proceedings between the parties. Generally, the Court in considering a Rule 12(c) motion is confined to the allegations of the complaint and answer, but may consider any "undisputedly authentic document that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document" without converting the motion to dismiss into one for summary judgment. PBGC v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993) (analyzing the standard under Fed. R. Civ. P. 12(b)(6), whose standard is applied in the context of Rule 12(c)).

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Sept. 1, 2011, the matter was transferred over to the Office of Administrative Law ("OAL") with a hearing scheduled for Sept. 13, [*6] 2011. Before that hearing could occur, the District and A.P. settled the case, but only as to the claims between themselves. The agreement specifically carved out Allegro from the settlement, stating "[t]he Allegro School shall not be deemed to be a party to this Settlement Agreement, and both parties retain their rights to proceed against the Allegro School in the [OAL] or in any other forum." (Def. Br., Settlement Agreement ¶ 16, Ex. B.) The settlement provided that A.P. would receive home-based education services, reimbursed partly by private insurance and partly by the district, and that placement would be secured for A.P. at another out-of-district site. The District did not admit any liability, and all claims were released against it. On Nov. 30, 2011, the Administrative Law Judge at OAL reviewed the settlement and found it fully disposed of all the issues in controversy between the parties.

Nearly a year and a half later, on April 26, 2013, A.P. filed suit against Allegro in New Jersey state court seeking compensatory damages and punitive damages for violations of the New Jersey Law Against Discrimination ("NJLAD"), fraud, and breach of contract. Allegro filed a motion to dismiss [*7] in response, but in December 2013, while that motion was pending, the parties entered into a provisional agreement to settle the case. The motion was withdrawn, but in the end S.P. did not find the settlement terms acceptable. A.P.'s counsel was replaced, and current counsel took over after prior counsel left on Dec. 4, 2015.

On Dec. 10, 2015, Allegro again moved to dismiss, while A.P. cross-moved to amend her complaint to add federal claims of violations of § 504 of the Rehab Act and aiding and abetting those violations, as well as additional state law claims. Allegro opposed much of the cross-motion to amend, but did not oppose addition of the § 504 claims. On Feb. 5, 2016, the state court denied Allegro's motion to dismiss and granted A.P.'s cross-motion to amend.

A.P. filed her newly amended complaint on Feb. 17,

2016. Allegro filed another motion to dismiss but then withdrew that motion, refiling it on May 23, 2016. After a case management conference and a phone conference, the parties agreed to a voluntary dismissal without prejudice. This seemingly operated as a suspension, with plaintiff reserving the right to refile the action within six months.

A.P. refiled the amended complaint on November [*8] 29, 2016, and served it on December 19, 2016. Allegro served a notice of removal on Jan. 13, 2017. Once in this federal court, on Feb. 3, 2017, Allegro filed the current motion to dismiss the complaint. (ECF no. 5) Plaintiff filed an opposition (ECF no. 14), defendant filed a reply (ECF no. 20), and plaintiff, with leave, filed a surreply (ECF no. 24). The matter is fully briefed and ripe for decision.

II. Legal Analysis

a. Standard of Review

1. Rule 12(c) or 12(b)(6) motion

Allegro brings this motion to dismiss as both a Rule 12(b)(6) and a Rule 12(c) motion. (Def. Br. 1.) A motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) is often indistinguishable from a motion to dismiss, except that it is made after the filing of a responsive pleading. Fed. R. Civ. P. 12(h)(2) "provides that a defense of failure to state a claim upon which relief can be granted may also be made by a motion for judgment on the pleadings." Turbe v. Gov't of Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991). Accordingly, when a 12(c) motion asserts that the complaint fails to state a claim, at least where no party relies on admissions in the answer, the familiar Rule 12(b)(6) standard applies. Id.

Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if it fails to state a claim upon which relief can be granted. The defendant, as the moving party, [*9] bears the

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burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a Rule 12(b)(6) motion, a court must take the allegations of the complaint as true and draw reasonable inferences in the light most favorable to the plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (traditional "reasonable inferences principle not undermined by Twombly, see infra).

Fed. R. Civ. P. 8(a) does not require that a complaint contain detailed factual allegations. Nevertheless, "a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Thus, the complaint's factual allegations must be sufficient to raise a plaintiff's right to relief above a speculative level, so that a claim is "plausible on its face." Id. at 570; see also Umland v. PLANCO Fin. Servs., 542 F.3d 59, 64 (3d Cir. 2008). That facial-plausibility standard is met "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that defendant is liable for misconduct alleged." Ashcroft v. Iqbal. 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Twombly, 550 U.S. at 556). While "[t]he plausibility standard is not akin to a 'probability requirement'... it asks for more than a sheer possibility." Iqbal, 556 U.S. at 678.

ii. Rule 12(b)(1) motion

A.P. argues, however, that at least part of this motion is properly reviewed under the [*10] standards of Rule 12(b)(1). That is so, she says, because a motion to dismiss for failure to exhaust administrative remedies under the IDEA, she says, implicates the subject matter jurisdiction of the court. (Pl. Br. 14-15.) In that, she is correct. A federal court may not exercise subject-matter jurisdiction over an IDEA dispute unless the administrative remedies have been exhausted. DM. v. N.J. Dep't of Educ, 801 F.3d 205, 212 (3d Cir. 2015) (citing Batchelor v. Rose Tree Media

Sch. Dist, 759 F.3d 266, 269 (3d Cir. 2014) ("Appellants' federal claims indeed fall within the ambit of the IDEA and require exhaustion .... We will therefore affirm the District Court's dismissal of Appellants' federal claims pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction.")). See also J.Q. v. Washington Twp. Sch. Dist, 92 F. Supp. 3d 241 (D.N.J. 2015) (Simandle, C.J.) (applying Rule 12(b)(1) and dismissing claims under Rehabilitation Act and NJLAD for failure to exhaust administrative remedies).3

Rule 12(b)(1) challenges may be either facial or factual attacks. See 2 Moore's Federal Practice § 12.30[4] (3d ed. 2007); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A facial challenge asserts that the complaint does not allege sufficient grounds to establish subject matter jurisdiction. Iwanowa, 67 F. Supp. 2d 424, 438 (D.N.J. 1999). A court considering such a facial challenge assumes that the allegations in the complaint are true. Cardio-Med. Assoc, Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983); Iwanowa, 67 F. Supp. 2d at 438. Thus the standard of review is similar to a Rule 12(b)(6) standard, see supra.

On the other hand, a factual attack permits the Court to [*11] consider evidence extrinsic to the pleadings. Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000), holding modified on other grounds by Simon v. United States, 341 F.3d 193 (3d Cir. 2003). Thus, a factual attack under Rule 12(b)(1) does not provide plaintiff's the procedural safeguards of Rule 12(b)(6). CNA v. United States, 535 F.3d 132, 144 (3d Cir. 2008).

Thus, I will analyze Allegro's motion to dismiss under the standard of a 12(b)(1). Because neither party relies on materials that could not be considered on a 12(b)(6) motion, I will treat it as a facial challenge.

3 Of course a federal court always has the ongoing obligation to verify its subject matter jurisdiction. See Mt. Healthy City Sch. Dist Bd. of Educ. v. Doyle, 429 U.S. 274, 278, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977). "A necessary corollary is that the court can raise sua sponte subject-matter jurisdiction concerns." Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 76-77 (3d Cir. 2003).

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b. Administrative Exhaustion under the IDEA

Allegro moves to dismiss the entire complaint with prejudice, arguing that the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. mandates exhaustion of its administrative procedures and that this exhaustion requirement applies to all of A.P.'s non-IDEA claims which seek relief that can be obtained under the IDEA. (Def. Br. 7-18.) Further, it says that A.P. is now time-barred from reasserting these claims administratively, as the IDEA carries a two year statute of limitations, 20 U.S.C. § 1415(f)(3)(C). (Def. Br. 18-22.) A.P. does not dispute that there is an exhaustion requirement; rather, she argues that exhaustion does not apply in her case since Allegro is a private school and New Jersey regulations allows a parent or a student to pursue administrative remedies only against [*12] a district board of education or a public agency. (Pl. Br. 20-21.) Furthermore, she says, no provision in any governing statute or regulation in New Jersey allows a private school to invoke the IDEA procedures. (Id.)

The IDEA'S primary purpose is "to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs." 20 U.S.C. § 1400(d)(1). Because parents and school representatives do not always agree on the most appropriate plan for educating a special needs student, the IDEA establishes formal procedures for resolving such disputes. Fry v. Napoleon Community Schools, 137 S. Ct. 743, 749, 197 L. Ed. 2d 46 (2017). A dissatisfied parent may file a complaint as to any matter concerning the provision of a FAPE with the local education agency responsible for the FAPE, as state law allows. Id. The matter, if not resolved between the parties, proceeds to a "due process hearing" before an impartial hearing officer, who will rule on it. Only then can a parent who remains unsatisfied seek judicial review of the hearing officer's decision by filing a civil action in state or federal court. Id. (citing 20 U.S.C. § 1415(f)(1)(A)).

The IDEA requires that a party exhaust its

administrative [*13] procedures before seeking relief in federal court. 20 U.S.C. § 1415(i)(2); Honig v. Doe, 484 U.S. 305, 326-27, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988). That exhaustion requirement applies to certain non-IDEA claims as well. Batchelor, 759 F.3d at 272; see discussion at pp. 11-13, infra. The Third Circuit has recognized three exceptions to the requirement of exhaustion: (1) where it "would be futile or inadequate"; (2) where the "issue presented is purely a legal question"; or (3) "the administrative agency cannot grant relief." AC. v. Scranton School Dist, 191 F. Supp. 3d 375, 394 (M.D. Pa. 2016) (citing Komninos v. Upper Saddle River Bd. of Educ, 13 F.3d 775, 778 (3d Cir. 1994)).

A.P. essentially makes a threshold futility argument. Even if the IDEA exhaustion requirements, in some generic sense, apply to Rehab Act claims, she says, they do not apply to claims against private schools like Allegro. New Jersey law, she argues, does not explicitly authorize administrative proceedings against a private school. Therefore, to have filed such administrative proceedings before suing would have been futile.

The problem with this argument lies in its premise. The New Jersey regulations do contemplate administrative proceedings against private entities involved with publicly funded educational programs. See N.J.A.C. 6A: 14-2.7(a) ("For students age three through 21 years, a due process hearing may be requested when there is a disagreement regarding identification, evaluation, [*14] reevaluation, classification, educational placement, the provision of a free, appropriate public education, or disciplinary action."); N.J.A.C. 6A:14-1.l(c) ("The rules in this chapter shall apply to all public and private education agencies providing publicly funded educational programs and services to students with disabilities.") (emphasis added); N.J.A.C. 6A:14-7.5(a) ("The educational program of a student with a disability provided through contractual agreements . . . shall be considered the educational program of the district board of education."). The OAL, likewise, acknowledges that parents have the ability to assert jurisdiction over private schools in these

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proceedings.4 See, e.g., B.H. by R.B.H. v. Paterson School Dist. & the Windsor Academy, No. 1345-00/00-3561, 2000 N.J. AGEN LEXIS 102, at *10-11 (N.J. O.A.L. Feb. 03, 2000) ("[T]he conclusion seems inescapable in New Jersey, when a student with a disability is placed by his/her district in a private receiving school, and the student alleges that the private school is interfering with the students [sic] right to FAPE, the private receiving school must answer the charge in the same tribunal as the district sending school: the OAL. A contrary conclusion would thwart the mandate expressed in the IDEA that children placed in private schools [*15] by their local school districts receive all of the same rights and protections as they would receive if educated in the local district, (citations omitted)").5

The Hon. Madeline Arleo dealt indirectly with this issue in a recent case, Barker v. Our Lady of Mt. Carmel Sch., No. 12-4308, 2016 U.S. Dist. LEXIS 118067, 2016 WL 4571388 (D.N.J. Sept. 1, 2016). There, a mother and her two children sued a Catholic school, its affiliated church, and the Roman Catholic Archdiocese of Newark, asserting federal claims of disability and race discrimination, as well as state law claims. Mount Carmel, 2016 U.S. Dist. LEXIS 118067, 2016 WL 4571388, at *1. They argued that the IDEA's exhaustion requirements were not mandatory for nonpublic school students, who were confined to either mediation or a suit in federal court. As support for that view, they cited a New Jersey Department of Education Handbook. 2016 U.S. Dist. LEXIS 118067, [WL] at *9. Judge Arleo pointed out that what governed were the "relevant statutes and rules

4 The Settlement Agreement, which was reviewed and approved by the OAL, also suggests that A.P. was able to pursue these claims against Allegro in that forum. (Def. Br., Settlement Agreement ¶ 16, Ex. B. ("The Allegro School shall not be deemed to be a party to this Settlement Agreement, and both parties retain their rights to proceed against the Allegro School in the [OAL] or in any other forum.").)

5 The Administrative Law Judge also pointed out that it should have come as no surprise to Windsor Academy that it was subject to the jurisdiction of a due process hearing, since "the very contract which [the private school] seeks to enforce obligates it to comply with State and Federal law." Windsor Academy, 2000 N.J. AGEN LEXIS 102, at *11.

that establish the exhaustion requirements, not a handbook." She held that the exhaustion requirements applied in that case.6

I conclude, therefore, that if the IDEA exhaustion requirements apply to this Rehabilitation Act claim, they apply to Allegro, despite it not being a public school.

I must consider, however, whether the administrative exhaustion requirements of IDEA apply to these Rehab Act claims [*16] at all. The Rehab Act, of course, is a separate statute from IDEA. Nevertheless, "before the filing of a civil action under such laws [referring to inter alia, the "Rehabilitation Act of 1973 [29 U.S.C. 790 et seq.], or other Federal laws protecting the rights of children with disabilities"] seeking relief that is also available under [IDEA], the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter." 20 U.S.C. § 1415(i).

The Supreme Court, in Fry v. Napoleon Community Schools, has made it clear that, in determining whether a non-IDEA claim is subject to the IDEA exhaustion requirement, a court is not bound by the label plaintiff attached to the claim. Rather, it must carefully look at the gravamen of the complaint to see whether the claim, however denominated, is essentially an IDEA claim. See Fry, 137 S. Ct. at 756. Specifically, a court may structure its analysis in relation to two questions:

(1) Could this claim have been brought if the alleged conduct had occurred at a public facility that is not a school?

(2) Could an adult have pressed the same grievance?

Id.7

6 She specifically dismissed their Rehabilitation Act, ADA, and § 1983 claims. Mount Carmel, 2016 U.S. Dist. LEXIS 118067, 2016 WL 4571388, at *9.

7 I extract those two questions from the following, more elaborate discussion in Fry:

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Thus, in Fry, a student sought damages under the Americans with Disabilities Act (ADA) where a school barred her from using a service dog in her kindergarten class. This, as the Court viewed it, was not a claim under IDEA that the student was being denied a FAPE; [*18] rather it was a claim for damages based on denial of access. Indeed, the Court compared it to a typical ADA case based on a facility's failure to provide wheelchair access. 137 S. Ct. at 756. Such an access claim, although brought against a school, could just as appropriately be brought against a theater or public library.

A.P.'s § 504 claims are different. They are based on a set of factual allegations which boil down to a contention that Allegro did not appropriately collect data. Collection of that data was required only because it was a necessary component of A.P.'s IEP under IDEA. Attempting to flee IDEA and find refuge in the Rehab Act, the plaintiff contends that this data collection failure created a "hostile education environment" (Pl. Cplt. ¶ 63), and makes generalized allegations that this discriminated against her on the basis of her disability. That attempt fails, in my view. Although she fashions her allegations as § 504 claims, they still fall within the first element of the Fry test. There is simply no way that these claims could be brought outside of the school context, and they lie within the heartland of IDEA. The

"One clue to whether the gravamen of a complaint against a school concerns the denial of a FAPE, or instead [*17] addresses disability-based discrimination, can come from asking a pair of hypothetical questions. First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? And second, could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance? When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject; after all, in those other situations there is no FAPE obligation and yet the same basic suit could go forward. But when the answer is no, then the complaint probably does concern a FAPE, even if it does not explicitly say so; for the FAPE requirement is all that explains why only a child in the school setting and (not an adult in that setting or a child in some other) has a viable claim."

Fry, 137 S. Ct. at 756.

expectation that data would be collected arose solely from the ABA program, which [*19] was prescribed as part of plaintiff's IEP and implemented by Allegro.

The claims asserted here, then, arise from Allegro's being the school where A.P. was placed under IDEA, and the program that was agreed to be implemented under IDEA. They are essentially IDEA claims brought in another guise. A.P. should have first exhausted her administrative remedies as prescribed in the New Jersey regulations before filing suit in state court.8

That administrative procedures under New Jersey regulations be exhausted is a prerequisite that goes to the heart of this court's subject matter jurisdiction over A.P.'s § 504 claim.9 I will dismiss A.P.'s claims brought under § 504 of the Rehab Act (Count I) for lack of subject matter jurisdiction, without prejudice.10

III. Federal Jurisdiction and Remand

Allegro based its removal petition on this court's federal question jurisdiction over A.P.'s § 504 claim. See 28 U.S.C. § 1331. (Notice of Removal ¶¶ 5-7, ECF No. 1) There being no claim of diversity of citizenship, see 28 U.S.C. § 1332, subject matter jurisdiction over the state law claims would

8 In its Notice of Removal, Allegro also claimed that other state law claims in the complaint were simply "repackaged" IDEA claims. (Id. ¶ 19) If that were true, the administrative exhaustion requirement would apply a fortiori.

9 See Section II.a.ii, supra (for ease of reference, citing D.M. v. N.J. Dep't of Educ., 801 F.3d 205, 212 (3d Cir. 2015); Batchelor v. Rose Tree Media Sch. Dist, 759 F.3d 266, 269 (3d Cir. 2014); J.Q. v. Washington Twp. Sch. Dist, 92 F. Supp. 3d 241 (D.N.J. 2015)).

10 "Where a district court lacks subject-matter jurisdiction, its 'disposition of such a case will ... be without prejudice.'" Siravo v. Crown, Cork & Seal Co., 256 F. App'x 577, 580-81 (3d Cir. 2007) (non-precedential) (citing In re Orthopedic "Bone Screw" Prods. Liab. Litig., 132 F.3d 152, 155 (3d Cir. 1997)). That is not to suggest, of course, that A.P. can simply refile this claim; that would require that she first exhaust administrative remedies. Defendant suggests that this is a practical impossibility under the applicable statute of limitations, but I do not reach that issue.

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necessarily be predicated on the supplemental jurisdiction statute, see 28 U.S.C. § 1367.11 I therefore consider whether it is appropriate [*20] to (a) dismiss the entire action; (b) dismiss the federal-law claims while retaining supplemental state-law claims; or (c) remand the remaining state-law claims to state court.

Here, the court never had jurisdiction over any federal-law claim in the first place. The very premise and foundation of supplemental jurisdiction is the existence of some claim over which the court possessed original jurisdiction, at least at some point. Because I have held that there is no such claim, the state law claims, too, cannot be heard. See Bermingham v. Sony Corp. of Am., 820 F. Supp. 834, 855 (D.N.J. 1992), aff'd, 37 F.3d 1485 (3d Cir. 1994) (dismissing state law claims after, inter alia, dismissing plaintiff's Title VII claim for failure to exhaust EEOC remedies, stating that "[s]upplemental jurisdiction . . . depends upon the existence of subject matter jurisdiction over other claims in the action.").12 The

11 The procedural niceties of removal and remand are largely mooted when the defect is one of subject matter jurisdiction, which robs the federal court of the power to proceed.

A case over which a federal court would have original jurisdiction may be removed from state court by the filing of a notice. 28 U.S.C. § 1441(a) There is, of course, jurisdiction over a federal law claim, see 28 U.S.C. § 1331, and the court may possess supplemental jurisdiction over related state law claims, see 28 U.S.C. § 1367; see also 1441(c)(1)(A).

Ordinarily, "[t]he notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting for the claim for relief upon which such action or proceeding is based . ..." 28 U.S.C. § 1446(b)(1). A motion to remand the case to state court "on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)." 28 U.S.C. § 1447(c). Still, a federal court cannot proceed in the absence of subject matter jurisdiction, even if the parties do not object. "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." Id.

12 There are unusual situations where the rule that jurisdiction is measured as of the time of filing may preserve subject matter jurisdiction, even where the original basis for federal subject matter jurisdiction has disappeared. Cf. Cal. Sun Tanning USA, Inc. v. Elec. Beach, Inc., No. CIV.A. 07-4762, 2008 U.S. Dist. LEXIS 91478, 2008 WL 4831694, at *1 (E.D. Pa. Nov. 4, 2008) (holding that although federal

provisions conferring discretion to retain state law claims after the dismissal of federal claims seem to imply that the federal claims must once have been substantial enough to confer original jurisdiction. See 28 U.S.C. § 1367(c)(3) (court may decline to exercise supplemental jurisdiction where it "has dismissed all claims over which it has original jurisdiction").

At least in the case of non-jurisdictional dismissals of federal claims, Section 1367(c) provides that dismissal of the remaining state claims is discretionary, not mandatory. And it must be said that, even in the case of jurisdictional dismissals, cases continue to cite the discretionary language of § 1367(c), albeit without analyzing the issue. See, e.g., Fuentes v. S. Hills Cardiology, 946 F.2d 196, 198 n.3 (3d Cir. 1991); J.Q. v. Washington Twp. Sch. Dist, 92 F. Supp. 3d 241, 253 n.4 (D.N.J. 2015) ("[h]aving dismissed Plaintiffs' federal claims [on a 12(b)(1) jurisdictional motion] without prejudice, the Court declines to exercise supplemental jurisdiction over their corresponding state law claim."); Sokolowski v. Metropolitan Transp. Authority, 849 F. Supp. 2d 412, 418 (S.D.N.Y. 2012) (after finding no subject matter jurisdiction over federal Railway Labor Act labor claim and declining to exercise supplemental jurisdiction over state law claims, citing § 1367(c)(3)).

I will therefore consider the § 1367(c) discretionary factors, for two reasons: First, out of caution, since it makes no difference to the result; and second, because I find the same factors relevant to the decision whether to dismiss outright or remand to state court.

[W]here the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the

claims had become moot, subject matter jurisdiction is measured at the time of filing, so the court was not divested of jurisdiction to retain supplemental state claims). In New Rock Asset Partners, L.P. v. Preferred [*21] Entity Advancements, Inc., however, the Third Circuit cautioned that the rule has very limited application to federal-question, as opposed to diversity, jurisdiction. 101 F.3d 1492, 1503 (3d Cir. 1996). And even that situation stands in contrast to the situation here, in which there never was a basis for federal-question jurisdiction, because plaintiff concededly did not exhaust administrative remedies.

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pendent state claims unless considerations of judicial economy, [*22] convenience and fairness to the parties provide an affirmative justification for doing so.

Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (quoting Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)). In short, the presumptive rule is that, even where supplemental jurisdiction may be found, the state claims shall be dismissed, unless reasons of economy and fairness dictate otherwise. Thus, where the case has been substantially litigated, it may be a proper exercise of discretion to retain it. See Growth Horizons, Inc. v. Delaware County, Pa., 983 F.2d 1277. 1284-85 (3d Cir. 1993) (remanding for exercise of discretion as to whether to retain pendent claim, noting that where the district court already heard evidence necessary to decide the state contract claim, it might retain jurisdiction). Where, on the other hand, the case is nowhere close to trial, remand is the proper course. Freund v. Florio, 795 F. Supp. 702, 710 (D.N.J. 1992) ("[A]t this early stage in the litigation, dismissal of the pendent state claims in a federal forum will result in neither a waste of judicial resources nor prejudice to the parties.").

This case is nowhere near trial. There has been no discovery conducted yet. The only substantive proceedings in this forum consist of this motion to dismiss. Nor does fairness dictate that I decide the state-law issues, as no party would be prejudiced by having another forum decide them.

This case originated [*23] in plaintiff's chosen state-court forum. It was pending there in some form, on-and-off, for nearly four years, from April 2013 until January 2017. It was only through a series of procedural happenstances that the January 2017 removal was even facially timely under the 30-day deadline of the removal statute. See 28 U.S.C. § 1446(b)(1). The removal statute does not restrict remand where subject matter jurisdiction is lacking. See 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."). Mere dismissal, moreover, might be prejudicial to the plaintiff, who never sought this

federal forum; it would require a new filing in state court, which the defendant could then oppose as untimely. It makes sense that this case should resume in state court, and I will therefore remand, rather than dismiss it.

IV. Conclusion

For the reasons stated above, I will GRANT Allegro's motion to dismiss Count I of A.P.'s complaint (§ 504 Claims) without prejudice for lack of subject matter jurisdiction, and REMAND all other claims to the Superior Court of New Jersey, Law Division, Morris County.

/s/ Kevin McNulty

Kevin McNulty


ORDER [*24]

KEVIN MCNULTY. U.S.D.J.:

The defendants having filed a motion (ECF No. 5) to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) and 12(c); and the plaintiffs having filed an opposition (ECF No. 14); and the defendants having filed a reply (ECF No. 20); and the plaintiffs having, with leave, filed a surreply (ECF No. 24); and the court having considered the matter without oral argument; for the reasons stated in the accompanying Opinion, and good cause appearing therefor;

IT IS this 29th day of September, 2017

ORDERED that the defendants' motion (ECF No. 5) is GRANTED without prejudice as to the Section 504 of the Rehabilitation Act claims (Count I) of the Complaint for lack of subject matter jurisdiction, and this action is REMANDED to the Superior Court of New Jersey, Law Division, Morris County.

/s/ Kevin McNulty

Kevin McNulty

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End of Document

2017 U.S. Dist. LEXIS 164371, *24

93

Rohrbaugh v. Lincoln Intermediate Unit

United States District Court for the Middle District of Pennsylvania

June 16, 2017, Decided; June 16, 2017, Filed

1:16-cv-2358

Reporter255 F. Supp. 3d 589 *; 2017 U.S. Dist. LEXIS 92624 **; 2017 WL 2608869

RANAY ROHRBAUGH, by and through LINDA ROHRBAUGH and JAMES ROHRBAUGH as Parents and Natural Guardians and in their own right, Plaintiffs, v. LINCOLN INTERMEDIATE UNIT, WEST YORK AREA SCHOOL DISTRICT, and MARYANNE KREUZ, Defendants,

Counsel: [**1] For Ranay Rohrbaugh, by and through, Linda Rohrbaugh, and, James Rohrbaugh, as Parents and Natural Guardians and in their own right, Plaintiffs: Beth G. Cole, Christopher Markos, LEAD ATTORNEYS, Williams Cuker Berezofsky, Philadelphia, PA; Gerald J. Williams, LEAD ATTORNEY, Williams, Cuker & Berezofsky, Philadelphia, PA.

For Lincoln Intermediate Unit, Defendant: Christopher J. Conrad, Marshall Dennehey Warner Coleman and Goggin, Camp Hill, PA.

For West York Area School District, Defendant: Sharon M. O'Donnell, Marshall Dennehey Warner Coleman and Goggin, Camp Hill, PA; Thomas A. Specht, Marshall, Dennehey, Warner, Coleman & Goggin, Scranton, PA.

For Maryanne Kreuz, Defendant: Christopher J. Conrad, Marshall Dennehey Warner Coleman and Goggin, Camp Hill, PA.

Judges: Hon. John E. Jones III, United States District Judge.

Opinion by: John E. Jones III

Opinion

[*591] MEMORANDUM & ORDER

Presently pending before the Court are two motions to dismiss filed by the Defendants. (Docs. 21, 23). Plaintiffs are Ranay Rohrbaugh ("Ranay"), a minor, by and through her parents Linda and James Rohrbaugh, and Linda and James Rohrbaugh individually. Defendants are Lincoln Intermediate Unit ("Lincoln"), West York Area School District ("West York"), [**2] and Maryanne Kreuz. Plaintiffs filed an amended complaint on January 27, 2017. (Doc. 16). Count I is against all Defendants and claims a violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. ("Section 504"). Count II is against all Defendants and claims a violation of Due Process, 42 U.S.C. § 1983. Count III is against Kreuz only and claims assault and battery under Pennsylvania common law. West York filed a motion to dismiss on February 10, 2017, along with a brief in support. (Docs. 21, 22). Lincoln and Kreuz also filed a motion to dismiss and a brief in support on February 10, 2017. (Docs. 23, 24). Plaintiffs filed a brief in opposition to both motions on March 13, 2017. (Doc. 29). The Defendants filed replies on March 27, 2017. (Docs. 31, 32). The motions are fully briefed and ripe for our review. For the reasons that follow, the motions are granted and the case closed.

I. BACKGROUND

The parties do not dispute that Ranay is, and was at all times, disabled pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1482 ("IDEA"), and Section 504. (Doc. 16, ¶ 10). Ranay has been in special education programs in West York since elementary school, which are provided by Lincoln. (Id., at ¶ 13). Ranay had an Individualized

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Education Plan [**3] ("IEP"), which noted her continued need for a Personal Care Assistant ("PCA"). (Id., at ¶ 16). The IEP noted the need for a PCA to implement her behavior intervention plan and safety in the school environment. (Id.). The behavior intervention plan requires the use of de-escalation techniques rather than physical intervention. (Id., at ¶ 18). Similarly, Ranay's IEP did not include the use of restraints. (Id., at ¶ 17).

On October 17, 2013, Ranay became aggressive in her classroom, but de-escalation techniques were successful and no physical restraint was used. (Id., at ¶ 20). On November 7, 2014, Ranay's PCA was Kreuz, who had been recently hired by Lincoln and been Ranay's PCA for a short time. (Id., at ¶ 21).

During lunchtime in the school cafeteria on November 7, 2014, Kreuz applied a restraint on Ranay, causing bruising and scratches on Ranay's arms, neck, and face. (Id., at ¶ 22). The use of the restraint was not authorized by the IEP or any other legitimate purpose, and it was applied incorrectly and inappropriately such that it caused injury to Ranay. (Id., at ¶ 25). Contrary to Lincoln's policies, the daily report prepared by Kreuz and sent home with Ranay did not make mention [**4] of the use of the restraint. (Id., at ¶ 27).

Ranay's classroom teacher, Tabitha Miller, prepared a "Report of Restraint" and provided it to Lincoln and West York. (Id., at ¶ 28). Miller called Ranay's mother after school that same day, on November 7, 2014, to inform her of Kreuz's use of a restraint on Ranay. (Id., at ¶ 29). In their amended complaint, Plaintiffs allege that [*592] Lincoln and West York failed to properly train Kreuz for her position as Ranay's PCA. (Id., at ¶ 31).

In Count I, Plaintiffs claim that the Defendants "subjected Ranay to discrimination compared to similarly situated students with IEPs and PCAs, and as compared to all West York Area School District Students," in violation of Section 504 of the Rehabilitation Act. (Id., at ¶ 41). Count II is brought pursuant to § 1983 and alleges that the Defendants "violated Ranay's 14th Amendment right to bodily

integrity." (Id., at ¶ 49). Counts I and II are brought by all Plaintiffs. Finally, Count III is on behalf of Ranay only and alleges assault and battery against Kreuz. (Id., at ¶¶ 56-60).

II. STANDARD OF REVIEW

A. Rule 12(b)(1) Standard

When considering a motion to dismiss under Rule 12(b)(1), a court must distinguish between facial and factual challenges to its subject matter jurisdiction. [**5] See Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A facial attack challenges whether the plaintiff has properly pled jurisdiction. Id. "In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen, 549 F.2d at 891). A factual attack, in contrast, challenges jurisdiction based on facts apart from the pleadings. Mortensen, 549 F.2d at 891. "When a defendant attacks subject matter jurisdiction 'in fact,' ... the Court is free to weigh the evidence and satisfy itself whether it has power to hear the case. In such a situation, 'no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.'" Carpet Group Int'l v. Oriental Rug Importers Ass'n, 227 F.3d 62, 69 (3d Cir. 2000) (quoting Mortensen, 549 F.2d at 891). Here, the Defendants' motions present a factual attack on subject matter jurisdiction due to Plaintiffs' alleged failure to exhaust administrative remedies. See Jupiter v. United States, 2014 U.S. Dist. LEXIS 72786, 2014 WL 2505670, at *2 (M.D. Pa. May 28, 2014) (Caputo, J.).

B. Rule 12(b)(6) Standard

In considering a motion to dismiss pursuant to Rule 12(b)(6), courts "accept all factual allegations as true,

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construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable [**6] reading of the complaint, the plaintiff may be entitled to relief." Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In resolving a motion to dismiss pursuant to Rule 12(b)(6), a court generally should consider only the allegations in the complaint, as well as "documents that are attached to or submitted with the complaint, . . . and any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).

A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirement of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief, "in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 [*593] L. Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). While a complaint attacked by Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations, it must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). To survive a motion to dismiss, a civil plaintiff must allege facts that "raise a right to relief above the speculative level...." Victaulic Co. v. Tieman, 499 F.3d 227, 235 (3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). Accordingly, to satisfy the plausibility [**7] standard, the complaint must indicate that defendant's liability is more than "a sheer possibility." Iqbal, 556 U.S. at 678. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

Under the two-pronged approach articulated in Twombly and later formalized in Iqbal, a district court must first identify all factual allegations that constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to the assumption of truth" and must be disregarded for purposes of resolving a 12(b)(6) motion to dismiss. Iqbal, 556 U.S. at 679. Next, the district court must identify "the 'nub' of the ... complaint — the well-pleaded, nonconclusory factual allegation[s]." Id. Taking these allegations as true, the district judge must then determine whether the complaint states a plausible claim for relief. See id.

However, "a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips, 515 F.3d at 231 (citing Twombly, 550 U.S. at 556-57). Rule 8 "does not impose a probability requirement at the pleading stage, but instead simply calls for [**8] enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234.

III. DISCUSSION

West York moves for the dismissal of Counts I and II on two grounds: (1) this Court lacks subject matter jurisdiction because Plaintiffs did not exhaust administrative remedies under the IDEA; and (2) the claims are barred by the applicable statute of limitations. (Doc. 24, p. 6). Lincoln and Kruez similarly argue that all counts must be dismissed due to Plaintiffs' failure to exhaust their administrative remedies and because they are barred by the statute of limitations. (Doc. 22, pp. 4-5). Lincoln and Kruez also argue that Count III against Kruez must be dismissed because she has immunity. (Id., at p. 14). We start first with the issue of administrative exhaustion, as our ruling on this matter renders consideration of the other arguments unnecessary. We find that the Plaintiffs are required to exhaust administrative remedies with the IDEA before consideration of the claims by a court and will


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therefore dismiss the matter without prejudice.

The IDEA ensures "that all children with disabilities have available to them a free appropriate public education." 20 U.S.C. § 1400(d)(1)(A). Recognizing the [**9] existence of other laws designed to protect children with disabilities, Section 1415(l) states "[n]othing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, [*594] or other Federal laws." 20 U.S.C. § 1415(l). The section goes on, however, to specifically state that "before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter." Id.

The Supreme Court recently addressed the scope of this administrative exhaustion requirement in Fry v. Napoleon Community Schools, et. al., 137 S. Ct. 743, 197 L. Ed. 2d 46 (2017). The Court held that "exhaustion is not necessary when the gravamen of the plaintiff's suit is something other than the denial of the IDEA's core guarantee — what the Act calls a 'free appropriate public education.'" Fry, 137 S. Ct. at 748. (hereinafter "FAPE"). Specifically, the Court stated:

We first hold that to meet the statutory standard, a suit must seek relief for the denial of a FAPE, because that is the only "relief" the IDEA makes "available." We next conclude that in determining [**10] whether a suit indeed "seeks" relief for such a denial, a court should look to the substance, or gravamen, of the plaintiff's complaint.

Id., at 752. The Court went on to provide some guidance on how courts can determine whether the "crux" or the "gravamen" of a plaintiff's complaint charges the denial of a FAPE, "setting aside any attempts at artful pleading." Id., at 755. The first step is to examine the complaint itself, although "[t]he use (or non-use) of particular labels and terms is not what matters." Id. The inquiry does not ride on whether a

complaint includes words like FAPE or IEP, or whether it invokes the IDEA at all. Id. The proper inquiry is "if she is in essence contesting the adequacy of a special needs program." Id.

"In addressing whether a complaint fits that description, a court should attend to the diverse means and ends of the statutes covering persons with disabilities — the IDEA on one hand, the ADA and Rehabilitation Act (most notably) on the other." Id. The Court noted that the IDEA protects only children and concerns only their schooling, whereas the ADA protects people with disabilities of all ages both in and outside of school. Id., at 756. "In short, the IDEA guarantees individually tailored [**11] educational services, while Title II and § 504 promise non-discriminatory access to public institutions." Id. While there is of course some overlap in coverage, the statutory differences illustrate whether the complaint seeks relief for IDEA's obligation to provide a FAPE. Id.

The Court instructs that "[o]ne clue to whether the gravamen of a complaint against a school concerns the denial of a FAPE" can be found based on the answers to a pair of hypothetical questions." Id., at 756.

First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? And second, could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance? When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject; after all, in those other situations there is no FAPE obligation and yet the same basic suit could go forward. But when the answer is no, then the complaint probably does concern a FAPE, even if it does not explicitly say so; for the FAPE requirement is all that explains why only a child [**12] in the school setting (not an adult in that [*595] setting or a child in some other) has a viable claim.


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Id. Finally, the Court instructs to look to "the history of the proceedings. In particular, a court may consider that a plaintiff has previously invoked the IDEA's formal procedures to handle the dispute."

Only a handful of courts have rendered opinions analyzing the requirement of IDEA administrative exhaustion post-Fry. See, e.g., J.M. v. Francis Howell Sch. Dist., 850 F.3d 944 (8th Cir. 2017) (holding administrative exhaustion required for complaint based on school repeatedly placing student in physical restraints and isolation); K.G. v. Sergeant Bluff-Luton Cmty. Sch. Dist., 244 F. Supp. 3d 904, 2017 U.S. Dist. LEXIS 42171, 2017 WL 1098829 (N.D. Iowa Mar. 23, 2017) (holding administrative exhaustion was not required for complaint based on teacher dragging student across the carpeted floor); N.S. v. Tenn. Dep't of Educ., 2017 U.S. Dist. LEXIS 55941, 2017 WL 1347753 (M.D. Tenn. Apr. 12, 2017) (finding that, under a Fry analysis, the complaint alleging overuse and misuse of physical restraints and isolation does seek the denial of a FAPE, but that an independent exception to exhaustion applied); Parrish v. Bentonville Sch. Dist., 2017 U.S. Dist. LEXIS 41149, 2017 WL 1086198 (W.D. Ark. Mar. 22, 2017) (holding administrative exhaustion required for complaint based on physical restraints and isolation). Of that small handful, three courts have held that complaints based on the use of physical restraints on disabled students in school required administrative [**13] exhaustion. See Francis Howell Sch. Dist., 850 F.3d at 950; Tennessee Dep't of Educ., 2017 U.S. Dist. LEXIS 55941, 2017 WL 1347753 at *11; Parrish, 2017 U.S. Dist. LEXIS 4114, 2017 WL 1086198 at *31.

Applying the analysis delineated by the Supreme Court in Fry, and consulting the few other opinions rendered post-Fry, we hold that the gravamen of the Plaintiffs' amended complaint concerns the denial of a FAPE, and Plaintiffs must therefore exhaust their administrative remedies with the IDEA before bringing civil suit.

Starting first with Plaintiffs' amended complaint, as Fry instructs, we note several allegations of significance. First, the parties were identified in

accordance with their IDEA definitions; Ranay was classified as "'disabled' pursuant to the IDEA" and West York as a "'Local Education Agency' pursuant to the IDEA". (Doc. 16, ¶¶ 7, 10). Second, the amended complaint states that Ranay's IEP notes her continued need for a PCA and for implementation of her behavioral intervention plan which requires the use of de-escalation techniques rather than the use of physical intervention. (Id., at ¶¶ 15-18). It also notes that her "IEP did not include the use of restraints." (Id., at ¶ 17). Third, the amended complaint alleges "Ranay was subjected to discrimination denied the benefits of her IEP and other education services on account of her disability" and [**14] alleges discrimination "compared to similarly situated students with IEPs and PCAs." (Id., at ¶¶ 39, 41).

Next, it is significant to note that the amended complaint alleges that "[t]he restraint was improper because it was not authorized by the IEP . . ." (Id., at ¶ 25) (emphasis added). In a similar vein, the amended complaint alleges that "[t]he application of a physical restraint on November 7, 2014, was not necessary because, among other reasons, de-escalation tactics had not yet failed and Ranay was not a serious harm to herself." (Id., at ¶ 52) (emphasis added). It is clear that Plaintiffs do not allege that the use of physical restraints on Ranay in general is violative of her rights, but that this particular use by Kreuz was not in accordance with the school's policies or her IEP.

[*596] Throughout the amended complaint, Plaintiffs make clear that their claims are, in essence, a charge that Ranay was provided with an ineffective PCA:

"Each failed to properly instruct Kreuz regarding Ranay's IEP, specifically the requirement of de-escalation techniques and not to use physical restraints without proper justification." (Id., at ¶ 31a).

"Each failed to properly train Kreuz on the proper application [**15] of physical restraints and the appropriate circumstances for their use." (Id., at ¶ 31b).


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"Each failed to train Kreuz and/or failed to ensure Kreuz was properly and appropriately trained to function as a full-time personal care assistant . . ." (Id., at 31d).

"Kruez, due to her lack of proper training and placement with a student of Ranay's disability and educational needs . . ." (Id., at ¶ 33).

Defendants were aware "of the need to train employees in the proper limited application of restraints." (Id., at ¶ 44).

"[D]efendants were deliberately indifferent to the need for proper training and instruction to be provided to Kruez . . ." (Id., at ¶ 49).

"[D]efendants' failure to provide proper training and instruction, as set forth more fully above, shocks the conscious . . ." (Id., at ¶ 51).

The Defendants' obligation to provide Ranay with an effective PCA, as required by her IEP, is squarely within the IDEA's guarantee to provide a FAPE. The allegation that Kreuz was improperly trained to serve as Ranay's PCA directly challenges the services provided to Ranay, such that the Plaintiffs are "in essence contesting the adequacy of a special needs program." Fry, 137 S. Ct. at 755. We also note that in their brief in opposition, in a section discussing [**16] exceptions to administrative exhaustion, Plaintiffs specifically state, "Plaintiffs' complaint for damages resulting from Ranay's Personal Care Assistant's single use of an illegal restraint is best characterized as a failure of implementation of Ranay's IEP." (Doc. 29, p. 9).

Another indicator that the amended complaint seeks relief for a denial of a FAPE is the Plaintiffs' citation to 22 Pa. Code §711.46. (Doc. 16, ¶¶ 49, 50). Section 711 of Title 22 of the Pennsylvania Administrative Code "specifies how the Commonwealth, through the Department, will meet its obligation to ensure that charter schools and cyber charter schools comply with IDEA and its implementing regulations ..." 22 Pa. Code § 711.2. Plaintiffs quote to language from the specific section of the code that concerns the strictures of using physical restraints in

compliance with the IDEA and individual IEPs. (Doc. 16, ¶¶ 49, 50). Plaintiffs' use of IDEA standards to illustrate the wrongfulness of the Defendants' conduct further supports the conclusion that the gravamen of the amended complaint charges a denial of a FAPE and falls within the purview of the IDEA administrative process.

Finally, turning to the pair of hypothetical questions provided by the Court in Fry [**17] , we now consider whether Plaintiffs could have brought essentially the same claim if the conduct occurred outside of a school and whether an adult at the school could have brought the same claim. Fry, 137 S. Ct. at 756. The answer to both of these questions is no. As the court in Tennessee Department of Education recognized, "restraint techniques are not implemented on adult employees or visitors of the . . . schools, nor are they implemented on minors such as the plaintiffs in other public institutions." 2017 U.S. Dist. LEXIS 55941, 2017 WL 1347753 at *11. The conduct alleged in Plaintiffs' amended complaint is unique to a disabled student at school, which indicates that "the complaint probably does concern a FAPE, [*597] even if it does not explicitly say so." Fry, 137 S. Ct. at 756.

Considering all of these factors, we find that the Plaintiffs' amended complaint seeks relief available under the IDEA-namely, the denial of a FAPE to Ranay. As such, the claims are subject to exhaustion, barring an applicable exception.

Plaintiffs argue that they are excused from complying with the exhaustion requirement because it would be futile and inadequate. (Doc. 29, pp. 8-10). In support, Plaintiffs highlight that the incident was a singular episode of physical harm, the incident did not cause educational harm, and the administrative process cannot remedy anything because Ranay's IEP has always been appropriate in not authorizing physical restraints. (Id., at p. 8). Plaintiffs cite to Joseph M. v. Northeastern Educational Intermediate Unit 19, 516 F. Supp. 2d 424 (M.D. Pa.) (Caputo, J.) in support of their argument that the futility exception applies. (Doc. 29, p. 8). There, the court held that "[w]hile a challenge to the contents of an IEP would require


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exhaustion of administrative remedies . . . exhaustion of administrative remedies when a plaintiff is challenging [**18] only a failure to implement an IEP would prove fruitless." Joseph M., 516 F. Supp. 2d at 438.

However, in light of an intervening decision by the Third Circuit, the Joseph M. court reversed this holding on a motion for reconsideration, recognizing that "[t]he Third Circuit Court of Appeals specifically held that there was a remedy under IDEA for violations of 'the provision of a free appropriate public education,' regardless of the underlying basis for such a violation." Joseph M. v. Northeastern Educ. Intermediate Unit 19,, 2007 U.S. Dist. LEXIS 71410, 2007 WL 2845004, at *3 (M.D. Pa. Sept. 26, 2007) (citing A.W. v. The Jersey City Public Schools, 486 F.3d 791 (3d Cir.2007)). Joseph M. therefore provides no support for finding that Plaintiffs are exempt from administrative exhaustion due to futility.

Circumstances that warrant the application of the futility exception include the Plaintiffs previously utilizing the IDEA administrative process, a fully developed factual record and resolved evidentiary issues, where the only issue left for determination is damages, and where the IDEA cannot provide a suitable remedy for the harms alleged. Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 281 (3d Cir. 2014). Plaintiffs have not adequately established that any of these circumstances apply. Because we have found that the gravamen of the Plaintiff's amended complaint seeks relief for the denial of a FAPE, the IDEA administrative process is the proper avenue to pursue those claims. Accordingly, [**19] Counts I and II shall be dismissed, without prejudice, for failure to exhaust administrative remedies.

Finally, the court will decline to exercise supplemental jurisdiction over Ranay's remaining tort claim against Kreuz pursuant to 28 U.S.C. § 1367(c)(3) because Plaintiffs' federal claims will be dismissed. 28 U.S.C. § 1367(c)(3) provides that district courts may decline to exercise supplemental jurisdiction over a state law claim when it has dismissed all claims over which it had original jurisdiction. Indeed, the Third Circuit has held that

"where the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so." Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995) (emphasis added). We see no reason justifying our exercise of supplemental jurisdiction over Ranay's claim of assault and battery against Kreuz. [*598] Therefore, we shall dismiss Count III without prejudice.

IV. CONCLUSION

In accordance with the foregoing, we shall grant Defendants' Motions to dismiss. (Docs. 21, 23). A separate order shall issue in accordance with this ruling.

[EDITOR'S NOTE: The following court-provided text does not appear at this cite in F. Supp. 3d.]

[*none] ORDER

Presently before [**20] this Court are two motions to dismiss filed by the Defendants. (Docs. 21, 23). In conformity with the Memorandum issued on today's date, IT IS HEREBY ORDERED THAT:

1. Defendant West York's motion to dismiss (Doc. 21) is GRANTED.

2. Defendants Kreuz and Lincoln Intermediate's motion to dismiss (Doc. 23) is GRANTED.

3. All claims are DISMISSED, without prejudice.

4. The Clerk of the Court SHALL CLOSE the file on this case.

/s/ John E. Jones III

John E. Jones III


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End of Document


101

A.H. v. Craven Cty. Bd. of Educ.

United States District Court for the Eastern District of North Carolina, Eastern Division

August 14, 2017, Decided; August 14, 2017, Filed

NO. 4:16-CV-282-BO


A.H., by and through his parent, H.C., and H.C., on behalf of herself, Plaintiffs, v. CRAVEN COUNTY BOARD OF EDUCATION, CARROLL G. IPOCK, II, Chair, KELLY L. FORBIS, in her individual and professional capacity, FANNIE E. RIVERS, in her individual and professional capacity, Defendants.

Counsel: [*1] For A. H., by and through his parent, H.C., H. C., on behalf of, herself, Plaintiffs: Stephon J. Bowens, Bowens Law Group, PLLC, Raleigh, NC.

For Craven County Board of Education, Carroll G. Ipock, II., Chair, Defendant: Deborah R. Stagner, Stephen G. Rawson, LEAD ATTORNEYS, Tharrington Smith, LLP, Raleigh, NC.

For Kelly L Forbis, in her individual and professional capacity, Defendant: Donna R. Rascoe, LEAD ATTORNEY, Nelson Mullins Riley & Scarborough, LLP, Raleigh, NC.

Judges: TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE.

Opinion by: TERRENCE W. BOYLE

Opinion

ORDER

This matter is before the Court on defendants' motions to dismiss pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, [DE 16, 18], and plaintiffs' motion for leave to file. [DE 25]. The matters have been fully briefed and are ripe for ruling. For the reasons discussed below, the

motions to dismiss are granted and the complaint is dismissed.

BACKGROUND

On December 2, 2016, plaintiffs filed a complaint asserting substantive and procedural violations of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., discrimination in violation of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq., violations of A.H.'s Fourth and Fourteenth Amendment rights under the United States Constitution, pursuant to 42 U.S.C. § 1983, violation [*2] of Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 20 U.S.C. § 794, as well as state law tort claims of battery and intentional and negligent infliction of emotional distress. [DE 1].

On March 16, 2017, defendants Craven County Board of Education ("Board") and Carrol Ipock filed a motion to dismiss, arguing that the Court lacks subject matter jurisdiction over the complaint and that the complaint fails to state a claim upon which relief can be granted. [DE 16]. On March 20, defendant Kelly Forbis also filed a motion to dismiss which raised essentially the same arguments. [DE 18]. Plaintiffs responded, [DE 22, 23], and defendants Board and Ipock filed a reply, [DE 26]. Plaintiffs also filed a motion for leave to file an Order for Appointment of Guardian Ad Litem from the Craven County Superior Court with their response. [DE 25].

DISCUSSION

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As an initial matter, and for good cause shown, the Court will grant plaintiffs' motion for leave to file to Order for Appointment of Guardian Ad Litem pursuant to Federal Rule of Civil Procedure 17(a)(3) and Local Rule of Civil Procedure 17.1.

The Court next turns to defendants' motions to dismiss and will first address the motions made under Rule 12(b)(1). Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a claim for lack of subject matter jurisdiction. [*3] When subject matter jurisdiction is challenged, the plaintiff has the burden of proving jurisdiction to survive the motion. Evans v. B.F. Perkins Co., 166 F.3d 642, 647-50 (4th Cir. 1999). "In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, F. & P. R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The movant's motion to dismiss should be granted if the material jurisdictional facts are not in dispute and the movant is entitled to prevail as a matter of law. Id.

Defendants first argue that the Court lacks the subject matter jurisdiction to adjudicate plaintiffs' claims under the IDEA. The IDEA was enacted in part

to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.

20 U.S.C. § 1400(d)(1)(A). To further this end, IDEA offers federal funds to states in exchange for a commitment to furnish a "free appropriate public education" ("FAPE") to all children with certain physical or intellectual disabilities. 20 U.S.C. § 1401(3)(A)(i). A FAPE comprises "special [*4] education and related services" and includes both "instruction" tailored to meet a child's "unique needs" and sufficient "supportive services" to permit the child to benefit from that instruction. 20 U.S.C. §§ 1401(9), (26), (29); see Board of Ed. of Hendrick Hudson

Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 203, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). An eligible child acquires a "substantive right" to such an education once a state accepts the IDEA's financial assistance. Smith v. Robinson, 468 U.S. 992, 1010, 104 S. Ct. 3457, 82 L. Ed. 2d 746 (1984).

Under the IDEA, an individualized education program ("IEP"), serves as the "primary vehicle" for providing each child with the promised FAPE. Honig v. Doe, 484 U.S. 305, 311, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988); 20 U.S.C. § 1414(d). An IEP is crafted by the child's school officials, teachers, and parents and spells out a personalized plan to meet all of the child's "educational needs." 20 U.S.C. §§ 1414(d)(1)(A)(i)(II)(bb), (d)(1)(B). The IDEA establishes that any disputes involving the FAPE or IEP are to be resolved through state administrative procedures. 20 U.S.C. § 1415.

A person wishing to file suit under the IDEA in North Carolina must first file a petition with the Office of Administrative Hearings ("OAH"). See E.L. ex rel. G.L. v. Chapel Hill-Carrboro Bd. of Educ., 975 F. Supp. 2d 528, 532 (M.D.N.C. 2013) (citing N.C. Gen. Stat. § 115C-109.6). A person may then appeal the decision at the OAH level to the State Board of Education which, "through its Exceptional Children Division, appoints an SRO [State Review Officer] to review the ALJ's [Administrative Law Judge's] findings appealed and issue an independent decision." [*5] Id. Following a decision by the SRO, a person has ninety days within which to file suit in federal court. 20 U.S.C. § 1415(i)(2)(B).

"The district court's jurisdiction under the IDEA is limited to review of the final 'findings and decision' of the administrative proceedings." 20 U.S.C. § 1415(i)(2)(A). Therefore, prior to filing an action in United States District Court for claims under the IDEA, a parent must exhaust her administrative remedies. E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of Educ., 773 F.3d 509, 514 (4th Cir. 2014). "The IDEA's exhaustion requirement serves the important purpose of allowing states to use their special expertise to resolve educational disputes," id., and a plaintiff's failure to exhaust administrative remedies

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deprives the federal courts of subject matter jurisdiction over an IDEA claim. See, e.g., M.M. ex rel. D.M. v. School Dist. of Greenville County, 303 F.3d 523, 536 (4th Cir. 2002).

The complaint alleges that plaintiff "filed a Petition for Contested Case based upon a dispute regarding the denial of a free and appropriate public education ("FAPE") to A.H. by the Board." [DE 1 at ¶ 97]. However, the complaint fails to allege that plaintiffs obtained any final findings or final decision from the state administrative proceedings that this Court could review. In fact, plaintiffs terminated that state administrative proceeding by voluntarily dismissing the Petition before [*6] it was fully adjudicated. [DE 16-1] Plaintiffs therefore have failed to allege that they pursued their administrative remedies to completion, and indeed have admitted to failing to do so.

Plaintiffs, while admitting that they have failed to meet IDEA's exhaustion requirement, argue that they were not required to in these circumstances. "The courts have recognized only three narrow exceptions to [the IDEA's] exhaustion requirement, each arising largely out of the legislative history of the IDEA: (1) when the administrative process would have been futile; (2) when a school board failed to give parents proper notification of their administrative rights; or (3) when administrative exhaustion would have worked severe harm upon a disabled child." M.M., 303 F.3d at 536. The burden of establishing an exception to the exhaustion requirement lies with the plaintiff. Learning Disabilities Ass'n of Maryland, Inc. v. Board of Educ. of Baltimore County, 837 F. Supp. 717, 723 (D. Md. 1993). "[T]he Court is not required to find that Plaintiffs are entitled to an exemption simply because they so state in their complaint. Instead, Plaintiffs must allege facts that, if proven, would support one of the narrow exceptions to IDEA's exhaustion requirement; 'they cannot rely on conclusory statements.' Id. (internal citations omitted).

Here, plaintiffs [*7] first claim no need to exhaust because they "are challenging policies and practices of general applicability that are contrary to numerous

federal laws." [DE 1 at 2]. Plaintiffs plead no facts to support this conclusory assertion. They have not identified any challenged policy of general applicability within their complaint, and all of the allegations in the complaint relate specifically to the individual treatment of A.H. by defendants. Furthermore, "structuring a complaint as a challenge to policies, rather than as a challenge to an individualized education program . . ., does not suffice to establish entitlement to a waiver of the IDEA's exhaustion requirement. Plaintiffs must demonstrate in addition that the underlying purposes of exhaustion would not be furthered by enforcing the requirement." Learning Disabilities Ass'n, 837 F. Supp. at 724. Here, plaintiffs have not demonstrated or put forth any argument as to why the underlying purposes of exhaustion, such as allowing states to use their special expertise to resolve educational disputes or allowing state agencies to correct errors on their own, would not be furthered if plaintiffs were required to exhaust their administrative remedies.

Plaintiffs also argue that exhaustion [*8] would be futile in this case because they "cannot obtain adequate relief through the administrative process," [DE 1 at 2], and because the ALJ "did not have the statutory authority to provide the relief sought." [DE 22 at 12]. In support of this argument, plaintiffs cite the ALJ's denial of their Motion for Temporary Restraining Order and Preliminary Injunction, [DE 22-4], and argue that this demonstrates that the ALJ "did not have the authority to aid Petitioner/Plaintiff A.H." [DE 22 at 12]. However, plaintiffs' motion before the ALJ sought only "to protect A.H. from individuals in a situation involving alleged assault and harm to him." Id. The ALJ's order stated that he was without jurisdiction "to issue the type of restraining order that Petitioner seeks." Id. (emphasis added). At no time did the ALJ conclude that he lacked jurisdiction to consider and order relief on plaintiffs' educational claims under the IDEA. Furthermore, Counts One through Four asserts claims under the IDEA and seek remedies available under the IDEA, and nearly identical claims were included in the plaintiff's state administrative process Petition which was later voluntarily dismissed. [DE 16-1]. That process, [*9]

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if completed and successful, would have given plaintiffs the relief they now seek in Counts One through Four, and plaintiffs cannot argue that the administrative process would be unable to grant them the relief they seek in these claims.

Plaintiffs also argue that they are not required to exhaust in these circumstances because the Board failed to inform H.C. that the investigation performed by attorney Richard Schwartz would not be independent, and that this failure caused her "to delay the assertion of her son's right to due process pursuant to the administrative procedures" under the IDEA. [DE 22 at 13]. Although the exhaustion requirement may be excused "when a school board failed to give parents proper notification of their administrative rights," M.M., 303 F.3d at 536, that exception is inapplicable here. Failing to disclose that an investigation would not be independent is not a failure to notify a plaintiff of her administrative rights, and plaintiffs were not precluded from pursuing their administrative remedies because they in fact filed a Petition and began the administrative process. Even if the filing of that Petition was delayed, there have been no facts alleged to show how such a delay was [*10] prejudicial to plaintiffs.

Finally, plaintiffs argue that they are not subject to the exhaustion requirement under the exception that it "would have worked severe harm upon a disabled child." M.M., 303 F.3d at 536. Plaintiffs generally allege that "the disabled child could have suffered further injury" at the hands of his teachers. In support, plaintiffs point to alleged "incidents of physical abuse" that occurred in the school, including the use of physical restraints on A.H. during a crisis without utilizing proper de-escalation techniques which led to bruising, pushing A.H. into a corner in the classroom instead of a proper "sensory area" in a different room for reducing anxiety and de-scalation, and an incident in which defendant Rivers allegedly failed to restrain A.H. properly such that he hit his head during class to point his ear started to bleed. [DE 22 at 12-13]. These purported ongoing injuries and incidents of physical abuse are the methods A.H.'s teachers used to restrain him, and state

administrative law judges have broad authority under the IDEA to direct appropriate changes to a child's educational program, including the methods used to accommodate disruptive manifestations of his disabilities. [*11] See 20 U.S.C. § 1415(b). While the ALJ may not have been able to issue a restraining order of the type sought by plaintiffs, the ALJ would have been able to remedy these alleged injuries by ordering a new IEP or directing that school employees utilize different methods for restraining A.H. Additionally, because these claims "relate to the discipline or safety of a student, the ability of staff to respond to manifestations of a student's disability, or maintaining order in the educational setting," then this Court is precluded from reviewing them until the state agency has issued its final findings and decision as to these claims. Z.G. v. Pamlico Cty. Pub. Sch. Bd. of Educ., No. 4:15-CV-183-D, 2017 U.S. Dist. LEXIS 15111, 2017 WL 477771, at *7 (E.D.N.C. Feb. 3, 2017). Finally, and as another court has explained,

mere allegations by plaintiffs of irreversible harm will not be enough to excuse the completion of administrative proceedings. Plaintiffs must provide a sufficient preliminary showing that the child will suffer serious and irreversible mental or physical damage (e.g., irremediable intellectual regression) before the administrative process may be circumvented. In order to meet that threshold, plaintiffs must provide affidavits from competent professionals along with other [*12] hard evidence that the child faces irreversible damage if the relief is not granted.

Komninos by Komninos v. Upper Saddle River Bd of Educ., 13 F.3d 775, 779 (3d Cir. 1994); see also Rose v. Yeaw, 214 F.3d 206, 212 (1st Cir. 2000). Plaintiffs have not offered any evidence to show how exhaustion would have worked irreversible and severe harm upon the child, and certainly have not met this burden to show such harm through the type of hard evidence envisioned by the Komninos case.

Because none of the exceptions to the exhaustion requirement are applicable here, plaintiffs' failure to exhaust deprives this Court of jurisdiction to adjudicate plaintiffs' claims under IDEA, and they

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therefore must be dismissed for lack of subject matter jurisdiction.

Defendants also argue in their motions to dismiss that plaintiffs' claims under the ADA and Section 504 must likewise be dismissed for lack of subject matter jurisdiction for failure to exhaust. Section 1415(l) of the IDEA states that if a suit brought under another law "seek[s] relief that is also available under" the IDEA, the plaintiff must first exhaust the IDEA's administrative procedures. 20 U.S.C. § 1415(l). As the Supreme Court has recently held in interpreting Section 1415(l), a plaintiff is required to exhaust the IDEA's administrative remedies before filing a suit under Section 504 or the ADA when the "gravamen" or essence of a plaintiff's suit concerns the [*13] denial of a FAPE. Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 752, 755, 197 L. Ed. 2d 46 (2017) ("A court deciding whether § 1415(l) applies must therefore examine whether a plaintiff's complaint—the principal instrument by which she describes her case—seeks relief for the denial of an appropriate education."). The Fry decision therefore mandates that this Court examine the substance of plaintiffs' claims and directs that plaintiffs not be permitted to evade the IDEA's exhaustion requirement by "artful pleading." Fry, 137 S. Ct. at 755.

The Supreme Court offered direction for determining whether the gravamen of a complaint against a school or board concerns the denial of a FAPE or instead addresses some other form of disability-based discrimination. There are two questions the courts can ask when assessing the problematic claim:

First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? And second, could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance? When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject; after all, in those [*14] other situations there is no FAPE obligation and yet the same basic suit could go

forward. But when the answer is no, then the complaint probably does concern a FAPE, even if it does not explicitly say so; for the FAPE requirement is all that explains why only a child in the school setting (not an adult in that setting or a child in some other) has a viable claim.

Fry, 137 S. Ct. at 756. As discussed in further detail below, the answer to these two hypothetical questions in this case is no. Each of plaintiffs' claims under federal law are viable only because they concern a child in a school setting and the alleged deprivation of an appropriate education, and thus plaintiffs' ADA and Section 504 claims are inextricably tied to their IDEA claims.

To support their claims under the ADA and Section 504, plaintiffs generally present two alleged injuries: first, that A.H. was subjected to a "hostile education environment," and second that he was denied equal access to educational services. As to this second injury which alleges that defendants denied A.H. equal access to educational services, plaintiffs first contend that they were not informed of independent living goals in A.H.'s IEP that would deny him "substantially similar treatment at meal time [*15] as his peers." [DE 1 at ¶ 17]. This allegation arises from an incident in which defendant Forbis insisted that A.H. open his own milk carton at lunch which led to anxiety and distress for A.H. Id. at 16. Plaintiffs also contend that A.H. was treated differently than his peers when he was denied opportunities to participate in activities like his peers, such as Special Olympics, checking out library books, and eating in the cafeteria. Id. at ¶¶ 74, 88. Although pled as injuries under the ADA and Section 504, these claims are inextricably tied to plaintiffs' claims under the IDEA. According to the complaint, the development of independent living skills goals or objectives was intended to be a part of A.H.'s IEP, thus plaintiffs' claim that they were injured when not informed of such goals amounts to a challenge to the IEP and is therefore a claim under the IDEA. Second, the complaint admits as much when it asserts that the lunchtime incident denied A.H. a FAPE, id. at ¶ 16, and when it states that the denial of equal

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opportunities to participate in activities denied A.H. "a free appropriate public education." Id. at ¶ 74. By the complaint's own terms, these claims are inextricably tied to the IDEA claims and seek [*16] the same relief available under that statute.

As to the allegations relating to plaintiffs' claims of a hostile education environment, these involve incidents in which A.H.'s teachers used or failed to use restraints and which allegedly resulted in injuries to A.H. According to the complaint, A.H. became easily agitated, frustrated and defiant and engaged in sometimes self-injurious behaviors as a manifestation of his disability. [DE 1 at ¶¶ 21-22, 28, 31, 33-34, 71-73, 75, 77, 81, 94]. A.H.'s IEP's were thus developed to include a crisis plan and de-escalation techniques which included the use of restraints. Id. at ¶¶ 15, 22, 28, 71-72. Plaintiffs assert that the A.H.'s IEPs were developed against H.C.'s wishes that A.H. not be restrained "except where exigent circumstances existed," Id. at ¶¶ 15, 22, that the Board did not offer a "reasonable alternative" to placing A.H. back in defendant Forbis' classroom and failed to develop a new IEP that would meet A.H.'s "specialized instructional needs and his newly formed anxiety and fear of Ms. Forbis" after an incident in which he was restrained, id. at ¶¶ 62-63, that defendant Rivers allegedly violated A.H.'s IEP and Crisis Intervention [*17] Plan ("CIP") by wearing padded arm protectors, which scared A.H. and increased his agitation and anxiety, id, at ¶ 71, and finally that A.H.'s teachers did not do enough to restrain A.H. or otherwise prevent him from injuring himself. Id. at ¶¶ 77-80.

These acts arise directly out of the defendants' alleged flawed attempts to address—or failures to address—A.H.'s severe disabilities in accordance with his IEP. They are thus inextricably tied to plaintiffs' claims under the IDEA, namely the claims that A.H.'s access to an appropriate education was denied due to defendants' failure to implement or create an IEP that addressed A.H.'s disabilities or moments of crisis properly. The proper recourse for these disagreements with the way an IEP is written or implemented is to first file a petition before the state

and pursue those state administrative remedies. Plaintiffs failed to do so and therefore failed to exhaust their remedies.

The facts alleged in support of the plaintiffs' claims under the IDEA are virtually indistinguishable from the facts alleged in support of their claims under the ADA and Section 504, and the facts alleged in this complaint are practically identical to the facts alleged in the plaintiffs' [*18] prior due process Petition filed pursuant to the IDEA. "A further sign that the gravamen of a suit is the denial of a FAPE can emerge from the history of the proceedings. In particular, a court may consider that a plaintiff has previously invoked the IDEA's formal procedures to handle the dispute—thus starting to exhaust the Act's remedies before switching midstream." Fry, 137 S. Ct. at 757. As before, this guidance from the Supreme Court signifies that the essence of the instant suit is to seek redress for the denial of a FAPE because plaintiffs previously sought redress through state procedures and sought relief under IDEA, and now have pled virtually the same facts and claims in the instant suit.

A final sign that plaintiffs' claims under the ADA and Section 504 are subject to the exhaustion requirement comes from the fact that the remedies plaintiffs now seek under those claims are remedies which would be available to them under IDEA. The declaratory and injunctive relief sought by plaintiffs, as well as reimbursement, compensatory education and services, and prospective placement, are all forms of relief available under the IDEA. While the additional claims for money damages are usually not available under the IDEA, Sellers by Sellers v. Sch. Bd of City of Mannassas, Va., 141 F.3d 524, 528 (4th Cir. 1998) [*19] , plaintiffs are not allowed "to circumvent the exhaustion requirement of the IDEA by an inclusion of a request for compensatory damages." A.W ex rel. Wilson v. Fairfax County Sch. Bd., 548 F.Supp.2d 219, 225 (E.D. Va. 2008); see also Wright v. Carroll County Bd. of Educ., No. 11-CV-3103, 2012 U.S. Dist. LEXIS 72598, 2012 WL 1901380, at *7 (D. Md. May 24, 2012) (collecting cases).

The Court therefore concludes that the gravamen of

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plaintiffs' claims under the ADA and Section 504 concern the alleged denial of a FAPE, and therefore finds that these claims are subject to IDEA's exhaustion requirements and must also be dismissed.

The Court next turns to Count Five which is brought under 42 U.S.C. § 1983 and alleges a violation of A.H.'s federal constitutional rights by defendants Forbis and Rivers. Specifically, plaintiffs allege that defendants Forbis and Rivers violated A.H.'s rights under the Fourth Amendment to the United States Constitution by "utilizing unjustified, unreasonable, and excessive force against him" when they were A.H.'s teachers, and also that their "conduct in subjecting A.H. to severe and brutal physical abuse violated A.H.'s rights under the due process clause of the Fourteenth Amendment." [DE 1 at ¶¶ 142-44]. Defendant Forbis filed a motion to dismiss arguing that, like plaintiffs' claims under the ADA and Section 504, this claim must also be dismissed for a failure to meet IDEA's exhaustion requirement.

Although Fry specifically discussed exhaustion under IDEA for claims brought under the ADA or Rehabilitation Act, it is clear [*20] that the same exhaustion requirement applies to claims under Section 1983 when such claims seek relief that is also available under the IDEA. The statute states in relevant part that,

Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution . . . , except that before the filing of a civil action under such laws seeking relief that is also available under [the IDEA], the [IDEA's administrative procedures] shall be exhausted to the same extent as would be required had the action been brought under [the IDEA].

20 U.S.C. § 1415(l) (emphasis added).

Therefore, the Court must again as whether the gravamen of this Section 1983 claim concerns the denial of a FAPE. As before, the Court concludes that it does because the constitutional injuries alleged in the complaint arise directly out of the defendants' allegedly flawed attempts to address A.H.'s severe

disabilities in accordance with his IEP. They are thus inextricably tied to plaintiffs' claims under the IDEA, namely that A.H.'s access to an appropriate education was denied due to defendants' failure to implement or create an IEP that addressed A.H.'s disabilities or moments of crisis properly.

Specifically, [*21] in Count One, brought under IDEA, plaintiffs allege that defendants "improperly used physical restraint against A.H. not as a last resort, but a first response instead of using other less invasive de-escalating techniques contained in the IEP." [DE 1 at ¶ 123]. This was one of a number of ways in which plaintiffs contend that the Board "failed to implement or incorporate material and/or appropriate elements of A.H.'s IEP." Id. Thus, the constitutional claims against defendants Forbis and Rivers which allege improper use of physical restraint are based upon the same conduct that makes up a specific component of plaintiffs' FAPE claim. Plaintiffs' constitutional claims therefore are not materially distinguishable from their claims under IDEA and are inextricably tied to those claims. The proper recourse for these disagreements with the way an IEP is written or implemented is to first file a petition before the state and pursue those state administrative remedies, which plaintiffs failed to pursue to completion.

Moreover, the remedies sought under Count Five are remedies that are also available under IDEA. Plaintiffs seek a declaratory judgment that the defendant Board failed to properly [*22] implement the [EP and failed to use physical restraint as a last resort. Plaintiffs also seek compensatory education services, reimbursement for expenses, and injunctive relief enjoining "Defendant Board and its employees from using restraint against A.H. as a means of first response to his disabling condition." These forms of relief are all expressly countenanced in and available to plaintiffs under the IDEA.

Thus, because Count Five seeks remedies available under the IDEA and concern injuries related to the alleged denial of a FAPE, this claim is also subject to IDEA's exhaustion requirement and thus must also be dismissed.

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Finally, plaintiffs brought several state law claims in Counts Eight through Eleven alleging battery, intentional infliction of emotional distress, and negligent infliction of emotional distress. Because plaintiffs' failure to exhaust their federal claims deprives this Court of subject matter jurisdiction over the claims over which the Court has original jurisdiction, the Court is also required to dismiss these state law claims over which the Court only exercises supplemental jurisdiction. See Crosby v. City of Gastonia, 635 F.3d 634, 644 (4th Cir. 2011).

For these reasons, the complaint must be dismissed in its entirety and [*23] the matter closed. Because it lacks jurisdiction over the complaint, the Court need not address defendants' other arguments in support of their motions to dismiss.

CONCLUSION

In sum, plaintiffs' motion for leave to file [DE 25] is GRANTED and defendants' motions to dismiss [DE 16, 18] are GRANTED. The Clerk is DIRECTED to close the case.

SO ORDERED, this 14 day of August, 2017.

/s/ Terrence W. Boyle

TERRENCE W. BOYLE

UNITED STATES DISTRICT JUDGE

End of Document

2017 U.S. Dist. LEXIS 128666, *22

109

Sophie G. v. Wilson Cty. Sch.

United States District Court for the Middle District of Tennessee, Nashville Division

September 19, 2017, Filed

No. 3:17-cv-00757


SOPHIE G., a minor child, by and through her parent and friend, KELLY G., Plaintiffs, v. WILSON COUNTY SCHOOLS, Defendant.

Case Summary

OverviewHOLDINGS: [1]-Plaintiffs were required to exhaust administrative remedies prior to bringing their suit in court, as the complaint was subject to the exhaustion requirement in the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.S. § 1415(l); plaintiffs' claims presented an IDEA/FAPE question best suited to a hearing officer familiar with a school setting; [2]-Plaintiffs were not entitled to a preliminary injunction because they failed to show a likelihood of success on the merits on either their ADA or Rehabilitation Act of 1973 claim, as they did not establish that the school daycare program was an activity within the meaning of the Rehabilitation Act, nor did they establish that the student's toileting issues were linked to her autism; plaintiffs did not show that the public interest weighed in favor of an injunction.

OutcomeCounty's motion to dismiss granted. Plaintiffs' motion for preliminary injunction denied.

Counsel: [**1] For Sophie G., a minor child, by and through her parent and next friend, Kelly G., Plaintiffs: Michael F. Braun, The ADA Group LLC, Brentwood, TN.

For Wilson County Schools, Defendant: Kenneth S. Williams, Madewell, Jared, Halfacre, Williams & Wilson, Cookeville, TN; Michael Ray Jennings,

Lebanon, TN.

Judges: WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE.

Opinion by: WAVERLY D. CRENSHAW, JR.

Opinion

[*767] MEMORANDUM

Pending before the Court in this case brought under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, and Title II of the Americans With Disabilities Act, 42 U.S.C. § 12131 et seq., is Kelly G.'s and Sophie G.'s Motion for Preliminary Injunction. (Doc. No. 8). Also pending is Wilson County Schools' Motion to Dismiss (Doc. No. 22). The Court held a hearing on both Motions on September 7, 2017. For the reasons that follow, the Motion to Dismiss will be granted and the Motion for Preliminary Injunction will be denied.

I. Factual Allegations

Sophie G. is a seven-year-old girl with autism who attends Tuckers Crossroad Elementary School in Wilson County. Her mother, Kelly G., is employed full time and needs day care for Sophie G., both during the school year and on school breaks.

Wilson County Public School operates an after-school program [**2] known as "Kids Club" at a dozen elementary schools, including Tuckers Crossroad. Kelly G. repeatedly sought to enroll her daughter into the program, but her requests were

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denied because Sophie G. is not fully toilet trained.

The refusal to admit Sophie G. into the Kid's Club program was also the subject of a November 3, 2016 Due Process Complaint against Wilson County Public Schools before the Tennessee State Department of Education, Special Education Division. More specifically, the Complaint alleged:

In the IEP [Individualized Education Program], Wilson County determined that "Sophie will have every opportunity to participate in extracurricular and nonacademic activities that she qualifies for." Despite saying so, Sophie is denied access to Tucker Crossroad Elementary School after school program because of her disability.

(Doc. No. 21-2, Due Process Complaint ¶ 23). The Due Process Complaint also alleged that Wilson County did not provide Sophie G. with a free and appropriate education ["FAPE"] because it failed to design and implement an appropriate IEP. (Id. ¶ 29).

On April 12, 2017, the parties entered into a Consent Order that settled the Due Process Complaint. However, no agreement [**3] was reached about after-school care, and that issue was voluntarily dismissed by Plaintiffs. Less than two weeks later, the two-count Complaint was filed in this Court.

II. Motion to Dismiss

Wilson County moves to dismiss the Complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and for lack of subject matter jurisdiction under Rule 12(b)(1). Its argument under both rules is the same — Plaintiff have not exhausted their administrative remedies under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.

A. Standards of Review

The Sixth Circuit has summarized the applicable standard of review for a Rule 12(b)(6) motion:

To survive a Rule 12(b)(6) motion, "'a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed.2d 929 (2007)). The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 557, [*768] 127 S. Ct. 1955). "If the plaintiffs do not nudge their claims across the line from conceivable to plausible, their complaint must be dismissed." Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013) (citation and brackets omitted). Dismissal is likewise appropriate where the complaint, however factually detailed, fails to state a claim as [**4] a matter of law. Mitchell v. McNeil, 487 F.3d 374, 379 (6th Cir. 2007).

In re City of Detroit, Mich., 841 F.3d 684, 699 (6th Cir. 2016). It has also summarized the standard of review for Rule 12(b)(1) motions:

A Rule 12(b)(1) motion for lack of subject matter jurisdiction can challenge the sufficiency of the pleading itself (facial attack) or the factual existence of subject matter jurisdiction (factual attack). United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). A facial attack goes to the question of whether the plaintiff has alleged a basis for subject matter jurisdiction, and the court takes the allegations of the complaint as true for purposes of Rule 12(b)(1) analysis. Id. A factual attack challenges the factual existence of subject matter jurisdiction. In the case of a factual attack, a court has broad discretion with respect to what evidence to consider in deciding whether subject matter jurisdiction exists, including evidence outside of the pleadings, and has the power to weigh the evidence and determine the effect of that evidence on the court's authority to hear the case. Id. Plaintiff bears the burden of establishing that subject


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matter jurisdiction exists. DLX, Inc. v. Commonwealth of Kentucky, 381 F.3d 511, 516 (6th Cir.2004).

Cartwright v. Garner, 751 F.3d 752, 759-60 (6th Cir. 2014).

While the Court agrees that dismissal is warranted because Plaintiffs did not exhaust their administrative remedies, it finds the proper vehicle for dismissal to be Rule 12(b)(6), not Rule 12(b)(1). This is because, even though "the distinction [**5] makes no difference . . . where the parties do not dispute the district court's exhaustion-related factual findings," many courts have found (as discussed below) that "Rule 12(b)(1) is not an appropriate avenue for dismissing an IDEA complaint for failure to exhaust," Gibson v. Forest Hills Local Sch. Dist. Bd. of Educ., 655 F. App'x 423, 430 (6th Cir. 2016) (collecting cases), because the exhaustion requirement is waiveable.

B. Application of Law

The IDEA ensures that children with disabilities receive necessary special education services and provides administrative remedies to achieve that goal. Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 245, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009); Covington v. Knox Cty. Sch. Sys., 205 F.3d 912, 915 (6th Cir. 2000). Section 1415(l) of the IDEA addresses that Act's relationship with other statutory remedies and contains an exhaustion requirement:

Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, Title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

20 U.S.C. § 1415(l) (emphasis added).

As this Court pointed [**6] out in its Order (Doc. No. 32) requesting supplemental briefs, the Supreme Court in Fry v. Napoleon [*769] Community Schools, 137 S. Ct. 743, 752, 197 L. Ed. 2d 46 (2017) (citation omitted) addressed "the confusion in the courts of appeals as to the scope of § 1415(l)'s exhaustion requirement," and held that "Section 1415(l) requires that a plaintiff exhaust the IDEA's procedures before filing an action under the ADA, the Rehabilitation Act, or similar laws when (but only when) her suit 'seek[s] relief that is also available' under the IDEA." Thus, "exhaustion is not necessary when the gravamen of the plaintiff's suit is something other than the denial of the IDEA's core guarantee—what the Act calls a 'free appropriate public education,'" or FAPE. Id. at 748.

The Supreme Court went on to explain that "in determining whether a suit indeed seeks relief for such a denial, a court should look to the substance, or gravamen, of the plaintiff's complaint," and offered the following guidance:

One clue to whether the gravamen of a complaint against a school concerns the denial of a FAPE, or instead addresses disability-based discrimination, can come from asking a pair of hypothetical questions. First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility [**7] that was not a school—say, a public theater or library? And second, could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance?

Id. at 757. The Court also observed:A further sign that the gravamen of a suit is the denial of a FAPE can emerge from the history of the proceedings. In particular, a court may consider that a plaintiff has previously invoked the IDEA's formal procedures to handle the dispute—thus starting to exhaust the Act's remedies before switching midstream. . . . A plaintiff's initial choice to pursue that process


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may suggest that she is indeed seeking relief for the denial of a FAPE—with the shift to judicial proceedings prior to full exhaustion reflecting only strategic calculations about how to maximize the prospects of such a remedy.

Id.

Applying the Fry inquiries to the facts of this case, the complaint is subject to IDEA's exhaustion requirement. Not only does it appear that Fry's hypotheticals must be answered in the negative, the history of the case suggests that Plaintiffs' claims present an IDEA/FAPE question best suited to a hearing officer familiar with a school setting.

"Congress enacted the ADA 'with the noble purpose of providing [**8] a clear and comprehensive mandate for the elimination of discrimination against individuals with disabilities," Melange v. City of Ctr. Line, 482 F. App'x 81, 84 (6th Cir. 2012) (citation omitted), by providing that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity," 42 U.S.C. § 12132. Similarly, "Congress sought with § 504 . . . 'to remedy a broad, comprehensive concept of discrimination against individuals with disabilities' Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 912 (6th Cir. 2004) (citation omitted), by providing that a qualified individual with a disability shall not, "solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance," 29 U.S.C. § 794(a).

Because the ADA and Rehabilitation Act "contain similar language and are 'quite similar in purpose and scope,'" they [*770] are said to be "roughly parallel[]." Babcock v. Michigan, 812 F.3d 531, 540 (6th Cir. 2016) (quoting McPherson v. Mich. High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459-60 (6th Cir.1997)). For example, "[e]ach Act allows disabled individuals to sue certain entities, like school districts,

that exclude them from participation in, deny them benefits of, or discriminate against [**9] them in a program because of their disability." Gohl v. Livonia Pub. Sch. Dist., 836 F.3d 672, 681 (6th Cir. 2016) (citing Anderson v. City of Blue Ash, 798 F.3d 338, 357 (6th Cir. 2015)). The statutes are also similar in what they do not require.

Despite its broad mandate, the ADA generally "does not require a public entity to provide to individuals with disabilities personal services, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; readers for personal use or study; or services of a personal nature including assistance in eating, toileting, or dressing." 28 C.F.R. § 35.135 (emphasis added). Though not as precise, an implementing regulation under the Rehabilitation Act is similar: "Attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature are not required under this section." 28 C.F.R. § 42.503(f) (emphasis added).

The Complaint before the Court is carefully drafted to suggest that this is strictly an ADA and/or Section 504 Rehabilitation Act case. It utilizes jargon that is the hallmark of such cases, including "reasonable accommodation," "qualified handicapped person," "impairment," "a record of physical or mental impairment that substantially limits a major life activity," "individuals with disabilities," and "reasonable modifications." [**10] (Doc. No. 1, Complaint ¶¶ 6, 7, 20, 28). It fails, however, to articulate the reasonable accommodation or reasonable modification that Sophie G. needs in order to participate in Kid's Club.

As the Supreme Court made clear in Fry, "what matters is the crux—or, in legal-speak, the gravamen—of plaintiff's complaint, setting aside any attempts at artful pleading." 137 S. Ct. at 755. Here, the Complaint concedes that "because of Sophie's Autism she is not fully toilet trained," and that Kelly G. "was told that Sophie could not attend Kids Club because she is not toilet trained." (Complaint ¶¶ 23, 30). This exclusive reason for denial was confirmed by Joann Vostala (who's position is not identified),


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Director Dawn Bradley and Rene Manning of the Department of Exceptional Children, and Dr. Donna Wright, Wilson County School Board Superintendent. (Id. ¶¶ 31, 33, 34, 35).

Plaintiffs cite Pilling v. Bay Area Rapid Transit, 881 F. Supp. 2d 1152, 1161 (N.D. Cal. 2012) for the proposition that "if a public facility excludes an individual from programs or facilities based on toileting difficulties, it can constitute a violation of Title II or Section 504." (Doc. No. 34 at 3). That may be true in some cases, but Pillling is inapposite to the facts presented here.

Pilling involved an "inflexible rule" implemented [**11] by a public transit system and a parking facility station that limited bathroom use to 10 minutes. Id. at 1154. Plaintiff used the facility on his commute to work but, because he had undergone a colostomy, required 12 to 18 minutes in the bathroom per day. At issue there was whether plaintiff stated a claims under the ADA or Section 504 because defendants refused to modify the time limit so as to provide a reasonable accommodation for his disability. Personal assistance in toileting was simply not an issue. There is an obvious distinction between being allowed more time to use a facility, and requiring assistance in the use of that facility.

[*771] Returning to Fry, the likely answer to both hypotheticals is "no."1 Plaintiffs likely could not state a viable claim under the ADA or Rehabilitation Act against a library or theater based on its refusal to provide personal assistants to help with toileting needs. Nor is it likely that an adult could successfully sue a school that refused to help with bathroom needs, even leaving aside the fact that enrollment in the Kid's Club program is limited to children. See Paul G. v. Monterey Peninsula Unified Sch. Dist., 256 F. Supp. 3d 1064, 2017 U.S. Dist. LEXIS 96066, 2017 WL 2670739, at *7 (N.D. Cal. June 21, 2017) (answering Fry's hypotheticals "no" where special

1 Because the Court is dismissing this case for failure to exhaust administrative remedies, the Court expresses no opinion on whether Plaintiffs could ultimately prevail on a claim under either the ADA or Rehabilitation Act.

education residential treatment facilities were limited [**12] to enrollment by students aged 18 to 22 and, thus, there would be no basis for an adult to request enrollment).

The remaining consideration in Fry—the history of the proceedings—also supports the conclusion that Plaintiffs were required to exhaust administrative remedies prior to bringing suit in this Court. It is undisputed that Plaintiffs included the Kid's Club claim in the administrative Due Process Complaint and that they voluntarily dismissed the claim. What is not clear is whether the claim was dropped as a part of a "strategic calculation[]," or "came from a late-acquired awareness that the school had fulfilled its FAPE obligation and that the grievance involves something else entirely." Fry, 137 U.S. at 757.

Because the basis for dismissal of the Kid's Club claim at the administrative level was not apparent from the record, the Court included that issue in the request for further briefing. (Doc. No. 32 at 3). However, in their supplemental brief, Plaintiffs do not address the issue. They merely parrot Fry's suggestion that the decision to file suit may be the result of a belated recognition that continuing the due process proceeding would be futile.

In both their supplemental brief and at oral argument, [**13] Plaintiffs argued that, in the words of Fry a plaintiff need not exhaust remedies if "[a] hearing officer . . . would have to send [them] away empty-handed." Id. at 757. This argument, however, simply begs the ultimate question — could Plaintiffs successfully pursue her present claim in a due process complaint or before an administrative judge? The answer to that inquiry was pretermitted when Plaintiffs dropped their Kid's Club claim, but "when a plaintiff has alleged injuries that could be redressed to any degree by the IDEA's administrative procedures and remedies, exhaustion of those remedies is required.'" S.E. v. Grant Cty. Bd. of Educ., 544 F.3d 633, 642-43 (6th Cir. 2008) (quoting Robb v. Bethel School District # 403, 308 F.3d 1047 (9th Cir. 2002)); see Reyes v. Manor Indep. Sch. Dist., 850 F.3d 251, 256 (5th Cir. 2017) ("Exhaustion requires more than pleading a claim . . . it requires


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'findings and decision' by the administrative body.").

At oral argument, counsel asserted that, from the beginning, he believed Wilson County's refusal to admit Sophie G. into the Kid's Club program presented a Rehabilitation Act violation. Nevertheless, he chose to include the Kid's Club issue in the Due Process Complaint, and conceded that he had a Rule 11 good faith basis for the factual allegations made therein. That Complaint not only alleged that Sophie G. was denied [**14] entry into the after school program, but also that, under her IEP, she was entitled to "have every opportunity to participate in extracurricular and nonacademic activities that she qualifies for." [*772] (Doc. No. 21-2, Complaint ¶ 23). Among the objectives in Sophie's current IEP is "improved independence with donning/doffing . . . clothing for toileting[.]" (Doc. No. 31-1 at 17). Given this record, the Court cannot conclude that a hearing officer would have no authority to require that Sophie G. be allowed to participate in the Kid's Club program, particularly because, there is "some overlap in coverage" as between the ADA, the Rehabilitation Act, and IDEA's FAPE obligation, and "[t]he same conduct might violate all three statutes." Fry, 137 S. Ct. at 756; see I.L. v. Knox Cty. Bd. of Educ., 257 F. Supp. 3d 946, 2017 U.S. Dist. LEXIS 92257, 2017 WL 2610505, at *4 (E.D. Tenn. June 15, 2017) (stating that "[s]ome claims can be brought under the IDEA, the Americans with Disabilities Act, and the Rehabilitation Act," and observing that "conduct by school staff can violate the IDEA, Title II, and § 504 all at once"); Considine-Brechon v. Dixon Pub. Sch. Dist. # 170, 2017 U.S. Dist. LEXIS 87942, 2017 WL 2480751, at *4 (N.D. Ill. June 8, 2017) (observing that "a plaintiff might seek relief for the denial of a FAPE under Title II and § 504 as well as the IDEA"). Accordingly, this case will be dismissed for failure to exhaust administrative remedies.

III. Motion [**15] for a Preliminary Injunction

In certain circumstance, the failure to exhaust administrative remedies can be jurisdictional,

meaning that a court lacks subject matter jurisdiction and the power to act further. Maronyan v. Toyota Motor Sales, U.S.A., Inc., 658 F.3d 1038, 1040 (9th Cir. 2011); Tan v. Attorney Gen. 210 F. App'x 169, 170 (3d Cir. 2006); Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2d Cir. 2008); MM ex rel. DM v. Sch. Dist. of Greenville Cty., 303 F.3d 523, 536 (4th Cir. 2002). Nevertheless, the Supreme Court has cautioned that "[n]ot all mandatory 'prescriptions, however emphatic, are . . . properly typed jurisdictional.'" Union Pac. R.R. Co. v. Bhd. of Locomotive Eng'rs & Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67, 81, 130 S. Ct. 584, 175 L. Ed. 2d 428 (2009) (citation omitted).

Specifically with regard to the IDEA, which Section 1415(l) amended, the Courts of Appeal are not entirely in agreement on whether the failure to exhaust administrative remedies is jurisdictional. Compare Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1037-38 (9th Cir. 2013) (holding that Section 1415(l) is a "claims processing provisions" and not jurisdictional) with L.K. v. Sewanhaka Cent. High Sch. Dist., 641 F. App'x 56, 57 (2d Cir. 2016) (stating that the failure to exhaust administrative remedies under the IDEA is jurisdictional and "deprives the court of subject-matter jurisdiction"). For its part, the Sixth Circuit appears not to have definitively resolved the issue, but has "lately broken with its precedent and implied that the IDEA's exhaustion requirement is not jurisdictional in nature." Gibson, 655 F. App'x at 430-31 (collecting cases).

Because the failure to exhaust remedies in this case may not be jurisdictional, the parties have briefed the issue and been provided an opportunity to present evidence, [**16] and the issue may arise again in substantially the same form after an administrative hearing or an appeal, the Court finds it appropriate to address Plaintiffs' request for preliminary injunction at this time.

In considering a request for preliminary injunctive relief, "courts 'must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.'" Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24,


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129 S. Ct. 365, 172 L. Ed. 2d 249 (2008) (quoting Amoco Production Co. v. Gambell, 480 U.S. 531, 542, [*773] 107 S. Ct. 1396, 94 L. Ed. 2d 542 (1987)).2 Generally, four factors are considered: "(1) the likelihood of success on the merits; (2) irreparable harm absent injunctive relief; (3) substantial harm to others from the proposed injunction; and (4) the broader public interest." Nat'l Credit Union Admin. Bd. v. Jurcevic, 867 F.3d 616, 622, 2017 U.S. App. LEXIS 14855, *6-7, 2017 WL 3442388, at *2 (6th Cir. Aug. 11, 2017); accord Flight Options, LLC v. Int'l Bhd. of Teamsters, Local 1108, 863 F.3d 529, 540 (6th Cir. 2017). "These four considerations are 'factors to be balanced, not prerequisites that must be met.'" Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007) (quoting Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003)). "The district judge 'is not required to make specific findings concerning each of the four factors used in determining a motion for preliminary injunction if fewer factors are dispositive of the issue.'" Id.

Given the extremely limited record before the Court,3 Plaintiffs have failed to carry their "burden of proving that the circumstances clearly demand," Serv. Employees Int'l Union Local 1 v. Husted, 698 F.3d 341, 344 (6th Cir. 2012), that Sophie G. be admitted

2 Citing Tenth Circuit authority, Wilson County argues that a heightened standard for issuance of a preliminary injunction is employed where, as here, a party is seeking affirmative relief rather than seeking to maintain the status quo. However, the Sixth Circuit has "conclude[d] that the distinction between mandatory and prohibitory injunctive relief is not meaningful," and, "reject[ed] the Tenth Circuit's 'heavy and compelling' standard[.]" United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg'l Transit Auth., 163 F.3d 341, 348 (6th Cir. 1998). Instead, "the traditional preliminary injunctive standard the balancing of equities applies to motions for mandatory preliminary injunctive relief as well as motions for prohibitory preliminary injunctive relief." Id.

3 The Complaint is unverified and no testimony was presented at the hearing. The parties agree that the evidence before the Court consists solely of (1) Sophie G.'s Autism Diagnosis and the June 29, 2012 Report by the Office of Civil Rights (Doc. Nos. 8-1 & 8-2); (2) the Due Process Complaint and Consent Order (Doc. Nos. 21-2 & 21-3); (3) Director Wright's Declaration and attached Kid's Club Handbook (Doc. Nos. 29-2 & 29-2); and (4) Kelly G.'s Affidavit and attached IEP Plan (Doc. No. 31-1).

to the Kid's [**17] Club program.

First, and for the reasons already discussed, Plaintiffs have failed to show a likelihood of success on the merits on either their ADA or Rehabilitation Act claim. Their Rehabilitation Act claim might be the stronger of the two because its regulations do not contain the exclusion for "toileting," but do require that a federal fund recipient "provide non-academic and extracurricular services and activities in such manner as is necessary to afford handicapped students an equal opportunity for participation in such services and activities." 34 C.F.R. § 104.37. However, Plaintiffs have not established that Kid's Club is an "extracurricular" activity within the meaning of the Rehabilitation Act, nor have they established that Sophie G's toileting issues are linked to her autism. This failure of proof is significant because the essential elements of a Rehabilitation Act claim include that the aggrieved individual be a "'handicapped person' under the Act" and that she be "'subjected to discrimination under the program solely by reason of h[er] handicap.'" G.C. v. Owensboro Pub. Sch., 711 F.3d 623, 634 (6th Cir. 2013)(quoting Campbell v. Bd. of Educ. of Centerline Sch. Dist., 58 F. App'x 162, 165 (6th Cir. 2003)). Further, in their Motion, Plaintiffs do not specify what accommodation Sophie G. would need, but "Section 504 by its terms does not compel educational [**18] institutions to disregard the disabilities of handicapped individuals or to make substantial modifications in their [*774] programs to allow disabled persons to participate." Se. Cmty. Coll. v. Davis, 442 U.S. 397, 405, 99 S. Ct. 2361, 60 L. Ed. 2d 980 (1979); see Sandison v. Michigan High Sch. Athletic Ass'n, Inc., 64 F.3d 1026, 1037 (6th Cir. 1995) (stating that under the Rehabilitation Act the word "'modification' connotes 'moderate change'").

Second, Plaintiffs have not shown irreparable injury. They cite Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976), for the proposition that "[t]he deprivation of a constitutional right, even briefly, constitutes irreparable harm." (Doc. No. 8 at 12). However, Elrod has been construed "to require movants to do more than merely allege a violation of


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[a constitutional right] in order to satisfy the irreparable injury prong of the preliminary injunction frame-work." Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 301, 372 U.S. App. D.C. 94 (D.C. Cir. 2006). That is, "to the extent that [movant] can establish a substantial likelihood of success on the merits of its [constitutional] claim, it also has established the possibility of irreparable harm as a result of the deprivation of the [constitutional] right." Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998); see Libertarian Party of Ohio v. Husted, 751 F.3d 403, 412 (6th Cir. 2014) (same). Because Plaintiffs have not established a substantial likelihood of success on their claims, Elrod's presumption of irreparable harm does not apply.

Plaintiffs also argue that Sophie G. is irreparably harmed by "being excluded from an integrated [**19] setting with children who are not disabled" and "the loss of learning and opportunity to model appropriate interpersonal social behavior cannot easily be measured in damages." (Doc. No. 8 at 12). No proof has been presented to support this assertion. Moreover, at oral argument, counsel indicated that Sophie G. was, in fact, in day care but that this care costs more than that provided by Kid's Club. To the extent that the day-care center Sophie attends is comparable with that provided by Wilson County, any alleged harm is likely compensable through damages (i.e. the cost differential), and "the general rule is that 'a plaintiff's harm is not irreparable if it is fully compensable by money damages.'" Nat'l Viatical, Inc. v. Universal Settlements Int'l, Inc., 716 F.3d 952, 957 (6th Cir. 2013) (quoting Langley v. Prudential Mortg. Capital Co., LLC, 554 F.3d 647, 649 (6th Cir. 2009)). To the extent that Kid's Club provides educational benefits beyond that which Sophie G. receives in her present daycare, this further supports the conclusion that Plaintiffs' request be addressed in the first instance at the administrative level.

Third, Plaintiffs have shown that the substantial harm to others prong is neutral at best. On the one hand, Plaintiffs conclusorily argue that permitting Sophie to attend Kid's Club will required only "minor

investments of staff time[.]" [**20] (Doc. No. 8 at 13). On the other hand, Wilson County conclusorily asserts that "personnel costs are essentially spread among all working parents who choose to participate" and that, "[a]dding more staff, and higher paid or additionally trained personnel could impact the costs to such parents, and the very existence of the program itself." (Doc. No. 30 at 8). Without factual proof, the Court is not in a position to decide this question.

Fourth, Plaintiffs have not shown that the public interest weighs in favor of an injunction. While it undoubtedly is in the public interest for a school system to comply with the disabilities statutes, whether Wilson County's refusal to allow Sophie G. to enroll Kids Club violated either the ADA or the Rehabilitation Act is an open question. It is also an open question whether accommodating Sophie G.'s needs would require the hiring and training of [*775] additional personnel and whether that additional costs would be passed onto other parents, such that they would be harmed by Sophie G.'s admission into the program.

"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008). Because Plaintiffs have not shown their entitlement to such extraordinary [**21] relief, a preliminary injunction requiring Sophie G.'s enrollment into the Kid's Club program will not issue.

IV. Conclusion

On the basis of the foregoing, Wilson County's Motion to Dismiss will be granted and this case will be dismissed without prejudice for failure to exhaust administrative remedies. Plaintiffs' Motion for a Preliminary Injunction will be denied.

An appropriate Order will enter.

/s/ Waverly D. Crenshaw Jr.

WAVERLY D. CRENSHAW, JR.


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CHIEF UNITED STATES DISTRICT JUDGE

ORDER

For the reasons set forth in the accompanying Memorandum, the Court rules as follows:

(1) Plaintiffs' Motion for a Preliminary Injunction (Doc. No. 8) is DENIED.

(2) Defendant's Motion to Dismiss (Doc. No. 22) is GRANTED. This case is hereby DISMISSED WITHOUT PREJUDICE to refiling after Plaintiffs have exhausted their administrative remedies under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq.

The Clerk of the Court shall enter final judgment in accordance with Rule 58 of the Federal Rules of Civil Procedure.

IT IS SO ORDERED.

/s/ Waverly D. Crenshaw Jr.

WAVERLY D. CRENSHAW, JR.

CHIEF UNITED STATES DISTRICT JUDGE

End of Document


118

N.S. v. Tenn. Dep't of Educ.

United States District Court for the Middle District of Tennessee, Nashville Division

April 12, 2017, Decided; April 12, 2017, Filed

Case No. 3:16-cv-0610


N.S., by and through his Parent (J.S.), and S.T., by and through his Parents (M.T. and M.T.), Plaintiffs, v. TENNESSEE DEPARTMENT OF EDUCATION, TENNESSEE STATE BOARD OF EDUCATION; KNOX COUNTY BOARD OF EDUCATION, and KNOX COUNTY, Defendants.

Prior History: N.S. v. Tenn. Dep't of Educ., 2016 U.S. Dist. LEXIS 91589 (M.D. Tenn., July 14, 2016)

Counsel: [*1] For N.S., A minor student, By and Through his parent, J.S., S.T., By and through his Parents, M.T. and M.T., Plaintiffs: Justin S. Gilbert, Gilbert Russell McWherter PLC (Chattanooga TN Office), Chattanooga, TN.

For Tennessee Department of Education, Tennessee State Board of Education, Defendants: Jay C. Ballard, Matthew D. Janssen, Tennessee Attorney General's Office, Nashville, TN.

For Knox County Board of Education, Knox County, Defendants: Joyce Grimes Safley, Law Office of Melinda Jacobs, Franklin, TN; Melinda H. Jacobs, The Law Office of Melinda Jacobs, Townsend, TN.

Judges: ALETA A. TRAUGER, United States District Judge.

Opinion by: ALETA A. TRAUGER

Opinion

MEMORANDUM

Pending before the court are two motions. The first

is a Motion to Strike (Docket No. 69), filed by defendants Knox County and Knox County Board of Education (collectively "the Knox Defendants"), to which the plaintiffs have filed a Response in opposition (Docket No. 75). The second is a Motion to Dismiss for Lack of Rule 12(b)(1) Subject Matter Jurisdiction filed by the Knox Defendants (Docket No. 78), to which the plaintiffs have filed a Response in opposition (Docket No. 79), the Knox Defendants have filed a Reply (Docket No. 81), and both sides have filed [*2] Memoranda of supplemental authority (Docket Nos. 84, 90). For the reasons discussed herein, both motions will be denied.

BACKGROUND & PROCEDURAL HISTORY

This education discrimination action was initially filed on March 16, 2016 against the Knox Defendants and the Tennessee Department of Education (the "TDOE"), bringing claims under 1) Tile II of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("Title II"); 2) the Individuals with Disabilities Education Act, 20 U.S.C. § 1415(e)(2) (the "IDEA"); and 3) Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"). The action is based on allegations that the minor plaintiffs, who are developmentally disabled and in need of special education services, have suffered injuries while enrolled in Knox County schools, which are overseen by the TDOE, due to the Knox Defendants' policy and practice of allowing and promoting the misuse and overuse of isolation and restraint techniques on students with disabilities. (Docket No. 1.) On July 14, 2016, the court issued an Order denying motions by the Knox Defendants and the TDOE to change venue and to dismiss the action for failure to exhaust

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state administrative remedies. (Docket No. 39.) In the accompanying Memorandum (Docket No. 38 (the "Prior [*3] Opinion")), familiarity with which is presumed, the court outlined the details of the allegations in this action, as well as the procedural history up to that point in time. Therefore, a full recitation of this information will not be repeated herein.

I. The Prior Opinion and the Amended Complaint

Briefly, the Prior Opinion explained that administrative exhaustion is generally required prior to bringing suit in federal court for claims that arise from the alleged denial of the free appropriate public education ("FAPE") guaranteed by the IDEA. In discussing this general administrative exhaustion requirement, the Prior Opinion cited the Sixth Circuit case Fry v. Napoleon Cmty. Schools, 788 F.3d 622 (6th Cir. 2015) (the "Sixth Circuit Fry Opinion"). As noted in the Prior Opinion, the Sixth Circuit Fry Opinion explains that the exhaustion requirement stems from the efficacy of having a student's individualized education plan ("IEP") reviewed first at the local level. (Docket No. 38, pp. 17-18.) The Prior Opinion then held that the instant action meets the narrow exception to the exhaustion requirement — outlined in Donoho ex rel. Kemp v. Smith County Board of Education, 21 F. App'x 293 (6th Cir. 2001) — made for cases where such exhaustion would be futile. The Prior Opinion also cited the Second Circuit case J.S. ex rel. N.S. v. Attica Central Schools, 386 F.3d 107, 114-15 (2d Cir. 2004), which held that administrative [*4] exhaustion is futile and should not be required where an action challenges systemic practices by the defendant that relate to the provision of a FAPE to all special education students, rather than challenging the content or implementation of any one student's IEP. The Prior Opinion did not, however, cite to the Sixth Circuit Fry Opinion with respect to the futility exception to the exhaustion requirement (nor is that exception discussed in the Sixth Circuit Fry Opinion (see 788 F.3d 622)).

The Prior Opinion ultimately held that exhaustion would be futile in this action because the plaintiffs have sufficiently alleged a systemic problem that reverberates throughout the Knox County school system and has been un-mitigated — if not encouraged — by the TDOE. The Prior Opinion further noted three primary factors that cut against requiring administrative exhaustion here: 1) it would be inefficient to address the issues in this action by looking at individual instances of isolation and restraint on a piecemeal basis, 2) requiring administrative exhaustion through the TDOE would overlook the allegations of misconduct by the TDOE itself, and 3) the purpose of the administrative exhaustion requirement — to [*5] allow local level review of IEPs by the parties most familiar with a student's needs — is not relevant here, where the dispute is not about the IEPs of the individual plaintiffs, but about system-wide practices.

Finally, the Prior Opinion directed the plaintiffs to file an amended complaint for the sole purpose of adding the Tennessee State Board of Education (the "TN Board") and the Tennessee Advisory Council for the Education of Students with Disabilities (the "Council") as defendants to the action. This was in response to some questions raised in the TDOE's briefing about which state educational agencies are liable for the misconduct alleged here, and the plaintiffs' express request to add these additional entities as parties.

On July, 15, 2016, in keeping with the Prior Opinion, the plaintiffs filed the Amended Complaint, adding as defendants the TN Board and the Council. (Docket No. 41.) Other than adding a description of these additional defendants and adding the names of these defendants to some of the specific factual allegations that had previously named only the TDOE, the Amended Complaint is nearly identical to the initial Complaint filed in this action and considered in the [*6] Prior Opinion.

On July 27, 2016, the Knox Defendants filed an answer to the Amended Complaint. (Docket No. 44.)

On December 15, 2016, the parties collectively filed a

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proposed Order of Dismissal to dismiss with prejudice all claims against the Council, on the grounds that it is not a true party in interest to this action (Docket No. 68), and this proposed Order was entered by the court the following day (Docket No. 71).

II. The Motion to Strike

Also on December 15, 2016, the Knox Defendants filed a Motion to Strike (Docket No. 69), along with a Memorandum in support (Docket No. 70), seeking to strike paragraphs 22 through 24 from the Amended Complaint on the grounds that the allegations therein are untrue and are offered only for inflammatory purposes. Paragraphs 22 through 24 of the Amended Complaint read as follows:

In the last two years, S.T. has suffered numerous unnecessary isolations, restraints, or abuses. In the 2014-2015 school year, while at Amherst Elementary School in Knox County for third grade, S.T. was placed in a "contained" classroom with other children with disabilities. There, an aggressive teacher engaged in numerous inappropriate restraints and isolations and abuse [*7] and did cause S.T. injury. Although notice was not given to S.T.'s parents, they heard from S.T. himself. By looking at Facebook, they discovered the teacher to have publicly written: "Another f***ed up day in special ed." The parents reported this to Knox County Schools but no disciplinary action was taken or made known to the parents. Nor was additional training about de-escalation techniques or proper positive behavior interventions undertaken.

(Docket No. 41 ¶¶ 22-24.) This exact language was also present in the initial Complaint filed in this action. (Docket No. 1, ¶¶ 20-22.)

To support their Motion to Strike, the Knox Defendants attach the Affidavit of Micah Hagood, who was plaintiff S.T.'s third grade teacher and is apparently the teacher referenced in the Amended Complaint as having posted the comment on

Facebook quoted above. (Docket No. 70-3.) In his affidavit, Mr. Hagood denies having personally restrained or isolated S.T. but acknowledges that other teachers who were members of a Crisis Team at S.T.'s school did so during the time that S.T. was in Mr. Hagood's class. Mr. Hagood also generally denies abusing S.T., causing him injury, or making any social media postings that [*8] expressly named or concerned S.T. Mr. Hagood admits, however, that he did post the language quoted above, though he states that the post was made on Twitter rather than Facebook. Also, while Mr. Hagood admits that this post was made during the school year when S.T. was a student in his class, he states that the post referenced a September 2014 incident involving another student that did not concern S.T. in any way and that the post was intended to be viewed only by Mr. Hagood's family and friends, not publicly. Mr. Hagood also recounts that S.T.'s parents brought this posting to the attention of the school where Mr. Hagood was employed in March of 2015 and that, as a result, Mr. Hagood was disciplined for inappropriate use of social media, and his contract was not renewed for the following school year.

Documentation of disciplinary action by S.T.'s school against Mr. Hagood is attached to the Motion to Strike as well, and it shows that Mr. Hagood was admonished about the proper use of social media (though there is nothing in this documentation about any other disciplinary action taken, nor does this documentation explain or reference Mr. Hagood's non-renewal for the following school [*9] year). (Docket No. 70-7.) The Knox Defendants also attach to the Motion to Strike another document that purports to confirm that the social media post in question was made on a day when S.T. did not have any recorded behavioral issues at school. (Docket Nos. 70-5.) Also attached is an entirely separate social media posting that the Knox Defendants claim was also discussed by the parties in connection with Mr. Hagoood's use of social media, but which is not referenced in the Amended Complaint. (Docket No. 70-4.) Finally, the Knox Defendants attach an email exchange between their counsel and counsel for the plaintiffs, in which the plaintiffs' counsel admits that

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the posting quoted in the Amended Complaint was made on Twitter rather than Facebook.1

On December 22, 2016, the plaintiffs filed a Response in opposition to the Motion to Strike. (Docket No. 75.)

III. The Rule 12(b)(1) Motion to Dismiss the Amended Complaint

On January 3, 2017, the Knox Defendants filed a Motion to Dismiss for Lack of Rule 12(b)(1) Subject Matter Jurisdiction (Docket No. 78), along with a Memorandum in support (Docket No. 77), once again arguing — among other things — that the plaintiffs should have been required to administratively exhaust [*10] their claims. This argument was already rejected in the Prior Opinion denying the Knox Defendants' earlier 12(b)(6) motion on the same grounds but, this time, the Knox Defendants frame the argument as a basis to challenge the court's subject matter jurisdiction over this action under Rule 12(b)(1). Attached to the Motion to Dismiss is the Affidavit of Honorable Ann Johnson (Retired), a former Administrative Law Judge for the Tennessee Department of State, which discusses the qualifications and training of administrative law judges in Tennessee, provides some details about the types of cases they handle, and expresses the opinion that they are equipped to handle, and regularly do handle, claims brought under the IDEA, including those that pose large-scale systemic challenges. (Docket No. 77-1.) On January 30, 2017, the plaintiffs filed a Response in opposition to the Motion to Dismiss (Docket No. 79) and, on February 14, 2017, the Knox Defendants filed a Reply (Docket No. 81).

1 The email contains a photo of the posting. The Knox Defendants assert that, when enlarged, it is clear that the date on the posting corresponds to the September 2014 incident involving a student other than S.T. that Mr. Hagood references in his affidavit, rather than the date approximately six months later when S.T.'s parents complained about the posting to the school. The date of the posting is not viewable from the document in the record, but the court finds this entire discussion to be irrelevant, for the reasons discussed more fully in the subsequent analysis section.

On February 22, 2017, the United States Supreme Court vacated and remanded the Sixth Circuit Fry Opinion that was cited by the court in the Prior Opinion to illustrate the basic exhaustion requirement for FAPE-related claims. [*11] Fry v. Napoleon Cty. Schs., 137 S.Ct. 743, 197 L. Ed. 2d 46 (2017) ("Supreme Court Fry Opinion"). On February 28, 2017, with leave of court, the plaintiffs filed a Memorandum of Supplemental Authority discussing the Supreme Court Fry Opinion. (Docket No. 84.)

On March 13, 2017, the Knox Defendants filed a Motion for Leave to File a Supplemental Memorandum of Law, also with respect to the Supreme Court Fry Opinion. In the body of the attached proposed Supplemental Memorandum, the Knox Defendants argue that, in light of the Supreme Court Fry Opinion, the court should reconsider the Prior Opinion's denial of their Rule 12(b)(6) Motion to Dismiss, though they have made no such official motion (and, in any event, such a motion would be redundant of the pending Motion to Dismiss for Lack of Subject Matter Jurisdiction, which is based, in part, on the same exhaustion issue that they argue is impacted by the Supreme Court Fry Opinion).

On March 14, 2017, the plaintiffs filed a Response to the Motion for Leave to File a Supplemental Memorandum of law, indicating that they are not opposed to the filing of a memorandum to discuss the Supreme Court Fry Opinion but that they do oppose the request that the court reconsider the Prior Opinion. (Docket No. 87.) On March 16, 2017, [*12] the court granted the Knox Defendants' Motion for Leave to file a Supplemental Memorandum of Law (Docket No. 89) and the Knox Defendants filed their Supplemental Memorandum on the same day (Docket No. 90).

MOTION TO STRIKE

Motions to strike are governed by Rule 12(f), which states that a court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). The Sixth Circuit has held that striking factual

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material from a pleading is a remedy to be used "sparingly by the courts" and, thus, only when the material to be stricken "has no possible relation to the controversy." Parlak v. U.S. Immigration and Customs Enforcement, No. 05-2003, 2006 U.S. App. LEXIS 32285, 2006 WL 3634385 *1 (6th Cir. Apr. 27, 2006) (quoting Brown & Williamson Tobacco Corp. v. U.S., 201 F.2d 819, 822 (6th Cir. 1953)). Rule 12(f) also provides that a motion to strike by a party must be made prior to the party's responding to the pleading, or within 21 days of the pleading being served if no response is allowed, though a court can act on its own, without a motion by a party, to strike material from a pleading where warranted.

The Motion to Strike is clearly untimely. Not only did the Knox Defendants neglect to move to strike the language in question from the initial Complaint, despite bringing a different Rule 12 motion as to that pleading, but they also did not file the instant Motion to Strike [*13] until months after the Amended Complaint was filed and they had filed an Answer thereto. They now attempt to justify this untimeliness by claiming that they have uncovered during the discovery process the fact that the allegations in the challenged paragraphs of the Amended Complaint are untrue. They further argue that the untimeliness of the motion should not preclude the court from exercising its own discretion, under Rule 12(f), to strike the challenged language from the Amended Complaint. Ultimately, the court need not reach the question of whether the motion is properly before the court at this time because the court finds that the motion is anyway wholly without merit, and, for the reasons discussed below, the court will neither grant the Motion to Strike nor exercise its own discretion to strike the challenged language from the record.

I. Allegations That Paragraphs 22-24 Are Knowingly False

As an initial matter, the Motion to Strike, along with the attached evidence, appears to be an attempt to force the court to resolve a factual dispute at this early stage of the litigation, before discovery has even

been completed. The Knox Defendants argue that the record clearly shows that the allegations [*14] in paragraphs 22 through 24 of the Amended Complaint are false, and they suggest that the plaintiffs made these knowingly false allegations in an intentional effort to disparage them. According to the Knox Defendants, it is the very falsity of the allegations that renders them irrelevant and scandalous and, therefore, subject to being stricken. In particular, the Knox Defendants state that these allegations will unfairly prejudice the court against them because they are "manifestly untrue, impertinent, and scandalous" and "are clearly offered for the purpose of inflaming the sensibilities of this Court against [them]." (Docket No. 69, p. 1.) The record, however, does not support a definitive finding that the allegations in paragraphs 22 through 24 are false, let alone a finding that the plaintiffs intentionally included them in the Amended Complaint despite knowing of their falsity.

In the paragraphs in question, the plaintiffs simply allege that S.T. was subjected to numerous inappropriate isolations and restraints while he was a student in third grade at a Knox County school, that a teacher of S.T.'s that year posted the comment "another f***ed up day in special ed" on social media, [*15] that S.T.'s parents complained to the school about these issues, and that the school responded inadequately. The evidence the Knox Defendants have placed in the record actually affirms, rather than disproves, the truth of at least some of these allegations. According to the Knox Defendants' own proffered evidence, 1) S.T. was subjected to at least some isolations and restraints during the course of his third grade school year in a Knox County school (if not by his primary classroom teacher, Mr. Hagood, then by other members of a school crisis team), 2) Mr. Hagood posted the comment quoted in the Amended Complaint on social media during that school year, 3) S.T.'s parents complained to the school about the comment and other issues, and 4) Mr. Hagood was disciplined solely with respect to his use of social media. The remaining factual questions — whether the isolations and restraints imposed on S.T. were improper or

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unnecessary, whether the school's response was adequate, and whether the social media posting evidenced a dysfunctional environment in Knox County's special education classrooms — are all open questions that cannot, and should not, be resolved at this time.

Mr. Hagood's denial [*16] of his own personal involvement in restraining or isolating S.T., as well as his denial that he ever abused or injured S.T., reveals only Mr. Hagood's account of the circumstances and does not constitute a final determination of the truth. Moreover, the Amended Complaint does not name Mr. Hagood, specifically, as the teacher who carried out isolations and restraints on S.T. and, thus, the allegations about the isolations and restraints that S.T. endured are not even necessarily inconsistent with Mr. Hagood's statements. As for the timing of Mr. Hagood's social media posting, whether the post referred to S.T. or to another student, and whether Mr. Hagood intended the post to be publicly viewable, these matters are not only unresolvable factual questions at this time, but also do not call into question the veracity of the allegations in the Amended Complaint, which simply state that the comment was posted by S.T.'s teacher during the school year when S.T. was in Mr. Hagood's class. The Amended Complaint does not reference any particular date on which this posting was made, nor does it limit the allegations about S.T.'s negative treatment in school that year to any particular date. Moreover, [*17] the Amended Complaint centers on allegations of system-wide misconduct and, so, the fact that the post might have been intended to be about a student other than S.T. neither undercuts the allegation that the post reflected negatively on S.T.'s classroom environment, nor does it render the post irrelevant to the larger thread of allegations giving rise to this action.2

2 The Knox Defendants frame the allegations related to the social media post as the product of a scheme by S.T.'s parents to uncover something unflattering that Mr. Hagood posted online, frame it as though it were about S.T. when it clearly was not, report the post to the Knox Defendants in order to have Mr. Hagood unfairly disciplined, and then use the incident to improperly support the plaintiffs' legal claims. Even if all of this were true, — a determination that the court

Finally, the evidence showing that Mr. Hagood was disciplined for his social media use does not show that he, or anyone else, received any discipline for any of the other issues that S.T.'s parents were concerned about — namely the overall environment in the special education classrooms surrounding the use of restraints and isolations and the alleged denial of a FAPE to S.T. and other special needs students. This evidence, therefore, does not negate the plaintiffs' allegations that the issues raised by S.T.'s parents were inadequately dealt with by the defendants. Specifically, the fact that Mr. Hagood was disciplined for his use of social media does not discredit the allegations that other types of discipline were not issued and that no additional training on the use of isolation and restraint was offered. Nor does any [*18] of the evidence disprove that the plaintiffs were unaware that any discipline whatsoever had been meted out.

The only allegation in the Amended Complaint that appears from the record to be clearly false, as admitted by the plaintiffs' own counsel in an email (Docket No. 70-6) and by the plaintiffs in their responsive briefing (Docket No. 75, p. 3), is the allegation that the social media posting was made on Facebook, when it was really posted to Twitter. The court finds this to be a wholly immaterial and harmless error that has no bearing on the substance of the allegations in the Amended Complaint and the issues raised in this action. It will, therefore, not be considered as a basis to strike any portion of the Amended Complaint.

II. Argument That Paragraphs 22-24 Should Be Stricken

More importantly, even if the allegations in paragraphs 22 through 24 of the Amended

cannot make at this time with an undeveloped record — this would not undermine the veracity or the relevance of the actual allegations in the Amended Complaint. The allegations would still stand to support a claim that S.T. was in an environment that was not serving his needs, including having a teacher who posted negative comments about the classroom on social media, and that the school failed to respond to S.T.'s parents' complaints in an adequate manner.

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Complaint are ultimately proven to be false, this is not grounds to strike a pleading, absent a showing that the allegations meet the Rule 12(f) criteria of being redundant, immaterial, or scandalous. The Knox Defendants argue that the allegations are irrelevant simply because they are untrue and scandalous because the plaintiffs knew [*19] them to be patently untrue at the time the Amended Complaint was filed. The Knox Defendants are not only unable to prove that to be the case, but they cite no authority for the proposition that the remedy for a plaintiff's knowingly making false allegations in a pleading is to strike the allegations. The entire purpose of the litigation process, including discovery, is for the trier of fact to ultimately determine the facts based on a thorough investigation and presentation by the parties. By their very nature, pleadings will often contain allegations that are ultimately found to be untrue, but this does not render the pleadings improper or subject to being stricken at the beginning of the litigation process. Otherwise, as the plaintiffs point out, courts would be overwhelmed with motions to strike allegations whenever they are factually denied by defendants.

Aside from the assertion that paragraphs 22 through 24 of the Amended Complaint were pled despite being known to be untrue, there is no other basis to find that they are irrelevant or scandalous. In fact, the allegations in paragraphs 22 through 24 not only highlight the particular injuries S.T. allegedly suffered as a result of [*20] the special education environment provided by the defendants, but also provide an illustration of how the alleged policies and practices being challenged in this action played out on an individual level. These allegations are, therefore, highly relevant. The Knox Defendants cite Johnson v. County of Macomb, No. 08-10108, 2008 U.S. Dist. LEXIS 38617, 2008 WL 2064968, * 1 (E.D. Mich. 2008), for the proposition that scandalous language should being stricken from a pleading. The district court in Johnson noted that language can be stricken as scandalous when it detracts from the dignity of the court or unnecessarily reflects on the moral character of an individual, citing as an example a pleading that referred to an opposing counsel as

racist. The Johnson court then struck allegations that a representative of a defendant organization had a relative with ties to organized crime, an allegation that was wholly unrelated to the claims at issue in the action (which were that the defendant organization had infringed on the plaintiff's religious freedoms).

The Amended Complaint is plainly distinguishable from the pleadings discussed in Johnson. While the language in Mr. Hagood's social media posting that is quoted in the Amended Complaint may be considered inappropriate, it is language that is attributed [*21] to Mr. Hagood rather than the plaintiffs' own wording. Any inappropriateness of the language, therefore, cannot itself be a reason to strike from the pleadings the allegations that the comment was made but, instead, supports the significance of the quote. While alleging the fact that a Knox County teacher posted this comment on social media may, in fact, cast the Knox Defendants in an unflattering light, or reflect poorly on the character of Mr. Hagood, including this fact in the Amended Complaint is not an unfettered attack by the plaintiffs on the Knox Defendants. The plaintiffs are simply relaying their version of the material events giving rise to this action. The Amended Complaint does not contain any editorializing about the social media comment or the other alleged misconduct referenced in the challenged paragraphs that would be akin to the name-calling or irrelevant character assaults referenced in Johnson. In fact, Mr. Hagood is not even named in the Amended Complaint but, to the extent the allegation still constitutes an assault on his character, it is neither unnecessary nor irrelevant for the reasons discussed above. The court is not prejudiced against the Knox Defendants [*22] because of these allegations, just as it is not prejudiced against any defendant based on allegations of wrongdoing made in a complaint. The court does not ever, and will not here, issue any dispositive ruling against a defendant based on unproven allegations. It will ultimately be the fully developed record of facts, along with any necessary credibility determinations, that will control the outcome of this

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action, not the allegations in the pleadings.3

For these reasons, the court finds that the Knox Defendants have made no showing that the language at issue warrants being stricken from the record. Accordingly, the court will not strike paragraphs 22 through 24 from the Amended Complaint, and the Motion to Strike will be denied.

MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND REQUEST TO RECONSIDER THE PRIOR OPINION IN LIGHT OF THE SUPREME COURT FRY OPINION

The court begins by noting that the Knox Defendants are plainly attempting to get a second bite at dismissing this action, where the court has already held that dismissal is not warranted. The Amended Complaint does not make any substantive changes to the pleadings, with respect to allegations or claims against the Knox [*23] Defendants, from the initial Complaint that was before the court when it issued the Prior Opinion. Moreover, the Knox Defendants had already long since filed an Answer to the Amended Complaint at the time they filed the currently pending Motion to Dismiss. While motions to dismiss for lack of jurisdiction may be raised at any time (see Fed. R. Civ. P. 12(h)(3)), the Knox Defendants have clearly taken great pains to frame their currently pending motion as a jurisdictional one when, for the reasons discussed more fully below, there is no real basis for such a jurisdictional challenge. Finally, the Supreme Court Fry Opinion is

3 The Knox Defendants argue that the court was improperly influenced in issuing the Prior Opinion by the allegations challenged here, citing the fact that the Prior Opinion refers to these allegations in its factual background section. While they acknowledge that the court was properly bound to assume the alleged facts to be true for purposes of considering the 12(b)(6) motion, the Knox Defendants argue that it was prejudicial to consider these particular facts which were pled despite their obvious falsity. For all of the reasons discussed above, the court finds that there is no obvious falsity to these allegations and no prejudicial error in the court's citing to them in the Prior Opinion. In fact, the court's reference to these allegations in the Prior Opinion further affirms the court's finding that these allegations are relevant to the plaintiffs' claims.

only tangentially related to the issues currently before the court and provides no basis for either reconsidering the Prior Opinion or otherwise dismissing this action. Nevertheless, the court will address the arguments raised and, once again, explain why dismissal is not appropriate, regardless of the procedural basis on which it is sought.

I. Legal Standard for Rule 12(b)(1) Motion4

"Rule 12(b)(1) motions to dismiss . . . generally come in two varieties: a facial attack or a factual attack." Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). When a Rule 12(b)(1) motion contests subject matter jurisdiction factually, the court must weigh the evidence in order to determine whether [*24] it has the power to hear the case, without presuming the challenged allegations in the complaint to be true. Id.; DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). When the facts are disputed in this way, "[t]he district court has broad discretion to consider affidavits, documents outside the complaint, and to even conduct a limited evidentiary hearing if necessary," without converting the motion into one for summary judgment. Cooley v. United States, 791 F. Supp. 1294, 1298 (E.D. Tenn. 1992), aff'd sub nom. Myers v. United States, 17 F.3d 890 (6th Cir. 1994); see also Gentek, 491 F.3d at 330. It is then the plaintiff's burden to show that jurisdiction is appropriate. DLX, 381 F.3d at 511. If a Rule 12(b)(1) motion challenges subject matter jurisdiction based on the face of the complaint, to the contrary, the plaintiff's burden is "not onerous," and the plaintiff need only demonstrate that the complaint alleges a "substantial" federal claim, meaning that prior decisions do not inescapably render the claim frivolous. Musson Theatrical Inc. v. Fed. Express Corp., 89 F.3d 1244, 1248 (6th Cir. 1996). A court evaluating this sort of facial attack to the assertion of subject matter jurisdiction must consider the allegations of fact in the complaint to be true. Gentek, 491 F.3d at

4 The court does not herein recount the legal standard for a Rule 12(b)(6) motion, as it is outlined in the Prior Opinion, though the court will discuss why there is no basis to vacate the Prior Opinion.

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330; Jones v. City of Lakeland, 175 F.3d 410, 413 (6th Cir. 1999). Thus, "the plaintiff can survive the motion by showing any arguable basis in law for the claim made." Musson Theatrical, 89 F.3d at 1248.

II. Analysis

The Knox Defendants argue that they are making a factual challenge to the court's subject matter jurisdiction over [*25] this action and that, as such, the court must review the factual evidence in the record, and the plaintiffs bear the burden of proving that jurisdiction is proper. While the Knox Defendants are correct that the court must weigh factual evidence when a challenge is made to a fact that is necessary to establish the court's subject matter jurisdiction, they make no such factual challenge here, as discussed more fully below. They do, however, make several facial challenges to the court's subject matter jurisdiction and also argue that the Supreme Court Fry Opinion warrants revisiting the issue of administrative exhaustion. The court will address each of these arguments in turn.

A. Purported Factual Challenge to the Court's Subject Matter Jurisdiction

The only factual allegation in the Amended Complaint that the Knox Defendants challenge is a statement that the administrative courts available in Tennessee to hear IDEA claims are not equipped to handle a wide-scale systemic challenge like this one. That allegation, however, is wholly immaterial to this action and is not being considered by the court in rendering its determination as to subject matter jurisdiction. Even assuming that the evidence [*26] in the record confirms that the plaintiffs' allegations in this regard are untrue and that the administrative forum is capable of hearing this action, these facts would not undermine this court's jurisdiction. Nor do they weigh against the court's finding that administrative exhaustion is not required here.5

5 The plaintiffs' allegations regarding the capabilities of the administrative forum were not considered by the court in issuing the

If the court lacked jurisdiction over this action, it would be unable to proceed regardless of the abilities or efficiencies of another forum where jurisdiction is proper.6 Likewise, the court's jurisdiction is not called into question by the concurrent jurisdiction of the administrative forum. Therefore, the Knox Defendants' evidence — the statements of Honorable Ann Johnson (Retired) as to the qualifications of the administrative forum to hear this case and the history of hearing similar actions in that forum — is wholly irrelevant. Accordingly, there is no burden shifting, and the plaintiffs need not respond to this evidence or meet any other heightened burden of proof on this factual issue in order to establish that jurisdiction is proper here.

B. Facial Challenges to the Court's Subject Matter Jurisdiction

The remainder of the Knox Defendants' subject matter jurisdiction argument [*27] challenges the plaintiffs' legal assertion that federal jurisdiction is appropriate over their claims. This argument is, at best, a facial attack on the court's subject matter jurisdiction in this action, and the court need only consider the legal question raised, while presuming the relevant factual allegations in the Amended Complaint to be true. In raising this facial challenge to the court's jurisdiction, the Knox Defendants argue, first, that all of the plaintiffs' claims are really a single claim for violation of the Tennessee Special Education Behavior Support Act, Tenn. Code Ann. § 49-10-1304 et seq. ("SEBSA"), disguised as federal claims. They then argue that, accordingly, the action must be dismissed because the SEBSA does not create a private right of action (and certainly not one over which the federal district court would have subject matter jurisdiction, since the SEBSA is a Tennessee statute).

Prior Opinion, which held that administrative exhaustion was not required, just as they will not be considered herein.

6 This is not a motion to transfer venue, where the relative efficiency of trying a case in two different forums which each have proper jurisdiction is weighed.

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While the Amended Complaint does cite to the SEBSA as providing regulations for the use of isolations and restraint in public school special education classrooms and alleges that these regulations were violated by the defendants, the court explained in the Prior Opinion that these allegations serve only to support [*28] the federal claims at issue and there is no direct claim for violation of the SEBSA before the court in this action. (Docket No. 38, p. 6.) Moreover, as discussed in the Prior Opinion (Docket No. 38, p. 15, n. 4), the Sixth Circuit has expressly held that the IDEA incorporates liability for upholding state regulations that extend the obligations of local school districts beyond those obligations expressly provided in the IDEA itself. See Doe by and through Doe v. Bd. of Educ. of Tullahoma City Schs., 9 F.3d 455 (6th Cir. 1993). Accordingly, a violation of the SEBSA may properly give rise to a violation of the IDEA. The fact that the SEBSA does not create a private right of action is, thus, wholly irrelevant to this action, and it neither provides grounds to dismiss the plaintiffs' sufficiently pled federal law claims nor to decline the exercise of federal jurisdiction. The question of subject matter jurisdiction must, then, be analyzed only with respect to the plaintiffs' IDEA, Section 504, and Title II claims.

The challenge to the court's jurisdiction over the plaintiffs' federal claims is clearly without merit, as federal courts have original subject matter jurisdiction over all claims that arise under federal statutes. 28 U.S.C. § 1331. Moreover, as the plaintiffs point out, the court's [*29] jurisdiction over IDEA claims is expressly provided for by the statute. 20 U.S.C § 1415(b)(2)(A)(i)(3)(A). In fact, the cases discussed in the prior opinion regarding the administrative exhaustion requirement — J.S. and the Sixth Circuit Fry Opinion — appear to begin with the basic premise that federal courts have subject matter jurisdiction over these types of claims and that the only question is whether the exhaustion of administrative remedies must take place before this jurisdiction can be exercised and the case can be heard. See generally J.S., 386 F.3d 107; Fry, 788 F.3d 622.

C. Argument That The Court Lacks Subject Matter Jurisdiction Due to the Plaintiffs' Failure to Exhaust Administrative Remedies

Next, the Knox Defendants argue that the administrative forum in Tennessee has proper jurisdiction over this sort of action and that, therefore, the federal district court does not. They cite 20 U.S.C. § 1415(1), which is the section of the IDEA that provides for the administrative exhaustion requirement. While the Knox Defendants correctly point out that this provision confers jurisdiction on the administrative forum, they do not — and cannot — explain how this provision in any way undermines federal court jurisdiction over IDEA claims. There is nothing in this provision, [*30] or elsewhere in the IDEA, that confers exclusive jurisdiction on the administrative forum or otherwise precludes jurisdiction in federal court. If anything, this provision reinforces the federal court's jurisdiction by explaining that there is a threshold requirement that must be met before such jurisdiction should be exercised. The Knox Defendants' arguments related to the administrative forum's jurisdiction, then, are relevant only to the extent that the Knox Defendants renew their argument that administrative exhaustion should be required before this action can proceed.

It is not entirely clear whether the question of exhaustion is a jurisdictional one, and there appears to be a split among courts on this issue that the Sixth Circuit has not conclusively addressed. See Gibson v. Forest Hills Local Sch. Dist. Bd. of Educ., 655 F. App'x 423, 430-32 (6th Cir. 2016).7 The court need not resolve this question, however, because, where exhaustion is not required — as it is not in this instance — then any challenge based on failure to exhaust cannot succeed, regardless of whether the exhaustion requirement is a jurisdictional threshold when it does apply.

The court will not fully rehash its entire basis for

7 As plaintiffs have pointed out, the Sixth Circuit has held that exhaustion is not jurisdictional in another non-IDEA context. See Lee v. Willey, 789 F.3d 673, 678 (6th Cir. 2015).

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finding that exhaustion is not required here, which is discussed in detail [*31] in the Prior Opinion. The court notes, however, that the additional legal arguments raised by the Knox Defendants in this round of briefing as to why exhaustion should be required are without merit. The Knox Defendants cite to Douglass v. District of Columbia, 750 F. Supp. 2d 54 (D.D.C. 2010), as an example of a similar action having been dismissed by a federal district court for failure to exhaust administrative remedies.8 Notably, the Douglass decision does not reject the existence of an exception to the exhaustion requirement for FAPE-related claims in instances where exhaustion would be futile. Rather, the D.C. District Court simply found that such an exception did not apply given the facts in Douglass. Douglass involved a challenge to the implementation of a plaintiff student's IEP, where the IEP stated that the plaintiff should have a goal of receiving a high school diploma, but he was placed in special education classes that did not lead to graduation credits. While the complaint suggested that all of the plaintiff's special education classmates were being equally deprived of the opportunity to earn graduation credits, it was not clear that any classmates had also been given IEPs with graduation as a stated goal, or that it would be a feasible [*32] component of the special education classes to incorporate the necessary criteria for earning graduation credits. The D.C. District Court ultimately found that the case should not be decided without the development of an administrative record regarding the plaintiff's particular IEP, the options for placement, and the curriculum goals of the classes he was enrolled in.

The instant action is very different from Douglass, in that it truly alleges practices that clearly impact the ability of all special education students within Knox County schools to receive a FAPE regardless of their

8 The district court in Douglass held that exhaustion is jurisdictional and, thus, technically dismissed the action for lack of subject matter jurisdiction. For the reasons discussed above, however, the court finds that this issue is without relevance to this action and considers only the basis on which the district court in Douglass found exhaustion to be required.

IEPs or other individualized considerations. While the curriculum of the special education classes in the Douglass case impacted many students, it clearly did not impact them in the same way. Thus, individualized reviews were necessary, making the administrative exhaustion requirement particularly appropriate. Here, by contrast, the alleged misconduct can be analyzed without any consideration of the plaintiffs' IEPs or the individualized education needs of any particular students. Thus, the fact that exhaustion was required in Douglass — an opinion from outside the Sixth Circuit that is not [*33] binding on this court — has no bearing on the court's finding that it is not so required here.

D. Argument That The Supreme Court Fry Opinion Warrants Revisiting the Prior Opinion's Holding on Exhaustion

Finally, the Supreme Court Fry Opinion is not material to this action and does not change the analysis from that conducted in the Prior Opinion. In the Prior Opinion, the court cited the Sixth Circuit Fry Opinion for the proposition that the IDEA generally requires exhaustion for claims based on the denial of a FAPE. (Docket No. 38, p. 17.) This proposition was not overturned by the Supreme Court Fry Opinion. Rather, the Supreme Court Fry Opinion held that, given the unique facts in that case, the gravamen of the action was not about the denial of a FAPE and, therefore, the general administrative exhaustion requirement did not apply. The Supreme Court Fry Opinion explained this to be the case because the challenge in Fry was to a plaintiff student having been denied by the defendant school district the right to bring her service dog to school to assist her with the logistics of moving throughout the building. The Supreme Court held that this was not sufficiently connected to the plaintiff's [*34] education for the action to be primarily about the denial of a FAPE (though the Supreme Court suggested that the issue could impact the plaintiff's ability to access a FAPE and, thus, support an IDEA claim).

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To illustrate the difference between a claim that is primarily about the denial of a FAPE and one that is not, the Supreme Court Fry Opinion suggested that district courts should consider two questions: 1) could someone in the school building other than a minor student bring a claim under Title II or Section 504 for the same alleged misconduct and 2) could the plaintiff bring a claim against a different public institution other than the school for the misconduct? In Fry, those questions could easily be answered in the affirmative: an adult employee or adult guest of the school could equally bring Title II or Section 504 claims if they were not permitted to bring a service dog on the premises to assist them, and the plaintiff could easily bring such a claim against a library or other public institution that she was unable to access due to restrictions on her service animal. Thus, the alleged misconduct was not primarily educational in nature but, rather, was about access to a public institution and, therefore, [*35] administrative exhaustion was not required.

The court agrees with the Knox Defendants that, in the instant case, the gravamen of the pleadings is primarily about the denial of a FAPE.9 The discipline of students is primarily educational in nature and isolations and restraints are considerations for the classroom environment, where students need to have their behavior managed in order to learn effectively. See Mallory ex. rel. BM v. Knox County School District, 2006 U.S. Dist. LEXIS 87832, 2006 WL 3484015, at *6, No. 3:06-cv-112 (E.D. TN Nov. 30, 2006) (citing Moore v. Harriman City Schools, 1994 U.S. App. LEXIS 1249, 1994 WL 18021, No. 92-5572 (6th Cir. Jan. 21, 1994)). Isolation and restraint techniques are not implemented on adult employees or visitors of the Knox County schools, nor are they implemented on

9 In their supplemental briefing regarding the Supreme Court Fry opinion, the plaintiffs argue that this is not a FAPE-related action. The court disagrees with this characterization and finds that the discipline issued to special education students is a part of their educational environment. The plaintiffs mis-cite to the Prior Opinion as holding that this is not a FAPE-related action but, as the Knox Defendants point out, the Prior Opinion said no such thing but, rather, stated that this case is not about a challenge to any student's IEP, which it is not. (Docket No. 38, p. 19.)

minors such as the plaintiffs in other public institutions. For this reason, the court finds that the Supreme Court Fry opinion changes nothing about the analysis in this instance. The Prior Opinion began by explaining that administrative exhaustion is generally required for cases arising from the alleged denial of a FAPE, and this premise was affirmed in the Supreme Court Fry Opinion. The fact that the Fry case itself was found not to primarily arise from the denial of a FAPE and, therefore, not to require administrative exhaustion, has no bearing on [*36] the instant action that is primarily about the alleged denial of a FAPE. The Prior Opinion held that exhaustion is not required here based on a wholly independent exception to the exhaustion requirement for cases that are primarily FAPE-related, but where exhaustion would, nonetheless, be futile. This exception was not addressed in the Sixth Circuit Fry Opinion and was, again, not addressed by the Supreme Court Fry Opinion.10

Accordingly, there is no basis in the Supreme Court Fry Opinion to vacate the Prior Opinion. Nor do any of the arguments raised by the Knox Defendants warrant reaching a different conclusion from the Prior Opinion as to whether exhaustion is required. Accordingly, this action will not be dismissed for failure to exhaust administrative remedies, under Rule 12(b)(1) or Rule 12(b)(6). There is no other basis to find that this court lacks subject matter jurisdiction over these claims that are clearly brought under federal statutes, nor is there any other basis for dismissing this action at this time.

CONCLUSION

10 The Knox Defendants attempt to cast the language in the Supreme Court Fry Opinion stating that exhaustion is required "when the gravamen of the complaint seeks redress for a school's alleged failure to provide a FAPE" (137 S.Ct. at 755) as suggesting that there are no exceptions to this rule. This is an overly literal reading of the Supreme Court Fry Opinion, which is clearly discussing the difference between a FAPE-related claim and a non-FAPE related claim and never references the caselaw on exceptions to the general exhaustion requirement, let alone provides any indication of the intent to overturn these well-established exceptions.

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For the foregoing reasons, the Motion to Strike and the Motion to Dismiss for Lack of Subject Matter Jurisdiction will be denied.

An appropriate order will enter.

/s/ Aleta A. [*37] Trauger

ALETA A. TRAUGER


ORDER

For the reasons discussed in the accompanying Memorandum, the Motion to Strike (Docket No. 69) and the Motion to Dismiss For Lack of Jurisdiction (Docket No. 79) filed by defendants Knox County and Knox County Board of Education are both hereby DENIED.

It is so ORDERED.

Enter this 12th day of April 2017.

/s/ Aleta A. Trauger

ALETA A. TRAUGER


End of Document

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131

Considine-Brechon v. Dixon Pub. Sch. Dist. # 170

United States District Court for the Northern District of Illinois, Western Division


Case No. 16 C 50133


Dawn Considine-Brechon, et al., Plaintiff, vs. Dixon Public School District # 170, et al., Defendant.

Counsel: [*1] For Dawn Considine-Brechon, as parent, in her individual capacity, legal guardian and next friend of S.C.C., Plaintiff: Joyce O'Neill Austin, Donald L. Shriver, Shriver, O'Neill & Thompson, Rockford, IL.

For S.C.C., an adult with a disability, Plaintiff: Joyce O'Neill Austin, Shriver, O'Neill & Thompson, Rockford, IL.

For Dixon Public School District #170, Corena Steinmeyer, in her individual capacity, Susan Stastny, in her individual capacity, Nancy Kane, in her individual capacity, Lee County Special Education Association, Margo Empen, in her official capacity, Michael Juenger, in his official capacity, Defendants: Pamela E. Simaga, Hodges, Loizzi, Eisenhammer, Rodick & Kohn Llp, Arlington Heights, IL; Stanley Bert Eisenhammer, Hodges, Loizzi, Eisenhammer, Rodick & Kohn, Arlington Heights, IL.

For Amanda Banks, in her individual capacity, Defendant: Mary N. Nielsen, LEAD ATTORNEY, Hall, Prangle & Schoonveld, Llc, Chicago, IL; John Warren Travis, Hall Prangle & Schoonveld, LLC, Chicago.

Judges: Philip G. Reinhard, United States District Judge.

Opinion by: Philip G. Reinhard

Opinion

ORDER

For the reasons stated below, the motions [21] [23] of the School Defendants and Banks to dismiss the federal claims are granted. [*2] Counts II, III, IV, and V.1 are dismissed without prejudice. The court declines to exercise supplemental jurisdiction over the remaining state law claims and they are dismissed without prejudice as well. Plaintiffs may file an amended complaint on or before July 14. 2017.

STATEMENT-OPINION

Plaintiff, Dawn Considine-Brechon ("Dawn"), brings this action, both in her individual capacity and as the legally appointed plenary guardian of the person and estate of her adopted daughter, Stevielyn Considine a/k/a Cyndel Considine ("SCC"), a disabled person.1 In the amended complaint [13], Dixon Public School District # 170 Board of Education, Dixon Public School District # 170 ("District"), Lee County Special Education Board of Directors, Lee County Special Education Association ("LCSEA"), and Amanda Banks, Corena Steinmeyer, Susan Stastny, Nancy Kane, Margo Empen and Michael Juenger (all in their individual capacities) are named as defendants. The "Unknown Employer of Amanda Banks" is also named as a defendant.2

1 Dawn was issued letters of office by an Illinois state court on May 10, 2016 appointing her the plenary guardian of the person and estate of SCC.

2 Appearances have been entered by all named defendants except Dixon Public School District # 170 Board of Education, Lee County Special Education Board of Directors, and the Unknown Employer of Amanda Banks. The docket sheet shows no service on or waiver of service by these three named defendants. The initial joint status report [10] indicates all defendants (other than Amanda Banks who

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The amended complaint originally contained a Count I alleging claims for violation of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA"). Plaintiffs, the District and the LCSEA settled [*3] these IDEA claims and a stipulated order [17] was entered dismissing the Count I claims with prejudice.

The remaining counts are as follows: Count II is a Section 1983 action asserting Fourteenth Amendment violations against all defendants; Count III is a Section 1983 action asserting Fourteenth Amendment violations against the District and the LCSEA; Count IV asserts violations of section 504 of the Rehabilitation Act (29 U.S.C. § 701 et seq.); Count V.13 asserts violations of the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) against the District and the LCSEA; Count V.2 asserts a state law claim for professional negligence against Banks, Steinmeyer, the District and the LCSEA; Count VI is a state law claim for intentional infliction of emotional distress against all defendants; Count VII is a state law claim for reckless infliction of emotional distress against all defendants; and Count VIII is a state law false imprisonment claim against Banks, Kane, Stastny, Steinmeyer, the District and the LCSEA.

Banks moves [21] to dismiss Counts II, V.2, VII and VIII for failure to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6), and the District, the LCSEA, Steinmeyer, Stastny, Kane, Empen and Juenger ("School Defendants") move [23] to dismiss all claims against them pursuant to Rule 12(b)(6).

The following facts [*4] are taken from the

subsequently entered her appearance) had been served as of the filing of the initial joint status report. The court concludes from this that the parties consider "Dixon Public School District # 170" and "Dixon Public School District # 170 Board of Education" to be different names describing the same entity and that likewise "Lee County Special Education Association" and "Lee County Special Education Board of Directors" are considered by the parties to be different names describing the same entity. Having never been identified or served, the Unknown Employer of Amanda Banks is not a party to this action.

3 The amended complaint contains two counts identified as Count V. The court adopts the parties' approach and will refer to the first Count V as V.1 and the second as V.2.

allegations in the amended complaint. SCC was 21 years of age when this action was commenced on May 16, 2016. From 2010-2015 she attended Dixon High School. In 2011 SCC was evaluated by defendant LCSEA and identified as a student in need of special education services with diagnoses of Attention Deficit Hyperactivity Disorder, Bipolar Disorder, Reactive Attachment Disorder, Oppositional Defiant Disorder, a learning disability, and a history of Factitious Disorder by Proxy. Banks is a special education and related services provider (speech therapist) for the District and/or LCSEA. Stastny is a special education teacher for the District and/or LCSEA. Kane is a special education paraprofessional for the District and/or LCSEA. Steinmeyer is the director of LCSEA and supervised Banks, Stastny and Kane. Juenger was the superintendent of the District prior to the 2015-16 school year. Empen was the assistant superintendent during that period and the superintendent during the 2015-16 school year. Each of the individually named defendants was involved in providing direct services to SCC.

At all times relevant, each of the defendants had specific knowledge that SCC "had mental [*5] health and educational issues which affected her judgment and decision-making, caused her to have a tendency to manipulate adults, and convey falsehoods, and which required a high level of care with consistency and structure and that such care would require a lifelong commitment by a caregiver." At school, SCC was subject to the control of teachers and administrators, and because of their influence SCC had no choice but to comply with the "policies, edicts, commands and suggestive statements of said teachers, administrative professionals and all defendants." Banks, Kane, Stastny and Steinmeyer sought to retaliate against Dawn "who had been such a strong advocate for [SCC] and her other children." Despite numerous medical, psychological and health professionals providing documentation of SCC's emotional and cognitive issues "defendants took deliberate and intentional actions" against SCC's best interest "which defied parental requests and concerns." Banks, Empen, Kane, Stastny, and

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Steinmeyer coerced, bribed, influenced and intimidated SCC into signing a document rescinding Dawn's right to make educational decisions for SCC and depriving Dawn of any notice of when those decisions were [*6] made. These defendants accomplished these actions by "surreptitiously promising, informing, notifying [SCC] that she did not have to complete her overdue homework, attend school anymore, could live in a home with fewer rules, could have sugar products whenever she wanted, did not have to take her physician-prescribed medications, and could immediately graduate from high school." The defendants' actions "displayed deliberate indifference to [SCC's] significant disabilities by depriving her of the advice, knowledge, and protection of her educational designee, Dawn, requiring [SCC] to actively waive her right to that protection, to encourage her to leave school, before she was prepared to do so, driving her away from school and away from her safe secure home with Dawn, and providing her homes to live in that created a danger to her of being physically left unprotected." Plaintiffs allege this left SCC significantly more vulnerable to the physical and emotional assault which they allege did occur during the time SCC was living with Banks.

Banks, during the 2014-15 school year and the summer of 2015, pressured SCC on many occasions by asking inappropriate questions about her home life. Banks [*7] pressured SCC and assisted her in revoking Dawn's educational rights as to SCC's Individualized Education Program ("IEP") and called an IEP meeting without Dawn present where IEP services were terminated and it was determined SCC would graduate from high school and receive a diploma without notice to Dawn. Banks influenced and assisted SCC in writing a letter to her treating psychiatrist stating Dawn no longer had any rights related to SCC and "accusing Dawn of a number of atrocities." Banks influenced and assisted SCC in signing Social Security applications and convinced SCC to come and live with Banks and her husband.

Banks convinced SCC to revoke powers of attorney on file at KSB Hospital and Medical Group, to

remove family members from Facebook and block them, and told SCC not to make contact with her family members. Banks influenced and assisted SCC in calling adult protective services and instructed SCC to report there was inadequate food in Dawn's home. Banks restrained SCC for six weeks keeping SCC from returning to Dawn's home. During this time SCC was not given her medication and encouraged by Banks not to take her prescribed medication.

While SCC was still living with Dawn, [*8] Stastny told SCC she could come live with Stastny if she did not like it at home and each day repeated her phone number to SCC and told her to remember it. Stastny went with SCC to SCC's sister's place of employment and said she would attempt to get the sister to move out of Dawn's house as well. Stastny persuaded and coerced SCC to run away from home, made arrangements for SCC to stay away from Dawn's home for multiple nights, paid SCC money and had her spend the night at Stastny's house. Stastny, with Banks, worked to prevent Dawn from locating SCC by telling SCC not to go to Whiteside to school as Dawn might appear there to see her.

Kane likewise encouraged SCC to move permanently out of Dawn's house. Along with Stastny and Banks, Kane convinced SCC to forfeit any future educational services available to her under the IDEA without giving notice to Dawn, SCC's father or educational advocate.

Steinmeyer failed to intervene though she was aware of the actions of the defendants described in the preceding paragraphs, refused to inform Dawn of SCC's location when asked, directly contradicted Dawn's wishes regarding SCC's intake of sugar products, failed to notify Dawn in advance of an IEP [*9] meeting where SCC's programming was changed thus denying Dawn an opportunity to participate in the meeting.

After plaintiffs filed this action, plaintiffs, District, and LCSEA entered a certain Settlement Agreement And Specific Release of Claims effective August 1, 2016 ("Agreement"). In the Agreement, the parties agreed "that this Agreement fully and finally settles all

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issues relating to the provision of services by the District to [SCC] under IDEA." The Agreement provided that plaintiffs "hereby release, waive and discharge any and all claims relating to the appropriateness of services provided to [SCC] in her IEP against the District and LCSEA, their boards, their members, individually and jointly, and their predecessors, successors, heirs and assigns, and the District's and LCSEA's past, present, and future administrators, officers, employees, and agents arising out of or relating to [SCC's] IEP programing at the District through and including the date of this Agreement. This Specific Release of Claims includes, and is limited to the appropriateness of [SCC's] IEP and claims under Article 14 of the Illinois School Code as it pertains to IDEA, and the Individuals with Disabilities [*10] Education Act, including attorney's fees, but does not include claims to enforce the terms of this Agreement." In the Agreement, Dawn agreed to withdraw with prejudice her due process complaint which was pending with the Illinois State Board of Education ("ISBE"). The ISBE due process complaint disputed "the appropriateness of services offered in [SCC]'s Individualized Education Program."

School Defendants argue the Agreement bars plaintiffs' federal claims against them because the federal claims are all actually claims for the denial of a free appropriate public education ("FAPE") which can only be brought under the IDEA and the Agreement settled all IDEA claims. Plaintiffs contend the remaining federal claims do not seek a remedy for the denial of a FAPE, are not brought under the IDEA and, therefore, were not settled and are not barred by the Agreement.

It is clear from the language of the Agreement that the parties to the Agreement intended to settle "all issues relating to the provision of services by the District to [SCC] under the IDEA." "A settlement agreement is a contract and as such, the construction and enforcement of settlement agreements are governed by principles of local [*11] law applicable to contracts generally. In Illinois, a court's duty in construing a settlement agreement is to effectuate the

intent of the parties to the agreement." Hillshire Brands Co. v. Travelers Casualty & Surety Co., No. 15 C 06859, 2016 U.S. Dist. LEXIS 162386, 2016 WL 6892885, * 2 (N.D. Ill. Nov. 23, 2016) (Tharp, J.) (citations and internal quotation marks omitted). Since the parties clearly intended to settle all of plaintiffs' claims brought under the IDEA, the court must determine the scope of relief available to plaintiffs under the IDEA and whether the relief plaintiffs now seek in this action falls outside that scope.

In Fry v. Napoleon Community Schools, U.S. , 137 S.Ct. 743, 197 L. Ed. 2d 46 (2017), the United States Supreme Court recently addressed 20 U.S.C. § 1415(l), which is the rule of construction provision of the IDEA. The Supreme Court quoted § 1415(l) as follows:

Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the [ADA], title V of the Rehabilitation Act [including § 504], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under [the IDEA], the [IDEA's administrative procedures] shall be exhausted to the same extent as would be required had the action been brought under [the IDEA].

Fry v. Napoleon Community Schools, U.S. , 137 S.Ct. 743, 750, 197 L. Ed. 2d 46 (2017). The Court examined the IDEA [*12] and held that the only relief available under the IDEA is relief from the denial of a FAPE. Id., at 755. Therefore, the Court held that the exhaustion provision of 20 U.S.C. § 1415(l) only comes into play when plaintiff's suit seeks relief for the denial of a FAPE. Id. Otherwise, plaintiff has no obligation to exhaust the IDEA's administrative procedures under the IDEA "even when the suit arises directly from a school's treatment of a child with a disability — and so could be said to relate in some way to her education." Id., at 754.

In determining whether a suit seeks relief for denial of a FAPE, a court should look to the substance, or

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gravamen, of the plaintiff's complaint. Id., at 755. "The IDEA, of course, protects only 'children' (well, really, adolescents too) and concerns only their schooling." Id. The IDEA's "goal is to provide each child with meaningful access to education by offering individualized instruction and related services appropriate to her 'unique needs'." Id. "Title II of the ADA and § 504 of the Rehabilitation Act cover people with disabilities of all ages, and do so both inside and outside schools." Id., at 756. "In short, the IDEA guarantees individually tailored educational services, while Title II and § 504 promise non-discriminatory access to public [*13] institutions." Id. "The same conduct might violate all three statutes" and "a plaintiff might seek relief for the denial of a FAPE under Title II and § 504 as well as the IDEA." Id. However, a child in a school could instead bring a complaint under Title II and § 504 which only seeks "relief for simple discrimination, irrespective of the IDEA's FAPE obligation." Id.

In light of Fry, the question that needs to be answered here is whether, after the settlement and dismissal by SCC and Dawn of their IDEA claims, their complaint plausibly alleges claims which only seek "relief for simple discrimination, irrespective of the IDEA's FAPE obligation." Id.

Counts IV and V.1 of the complaint are brought against the District and the LCSEA. Count IV is pursuant to Section 504 of the Rehabilitation Act and Count V.1 is pursuant to Title II of the ADA. Under Section 504 of the Rehabilitation Act, "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). Under Title II of the ADA, "no qualified individual with a [*14] disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. 12132.

Plaintiffs specifically allege in Count IV (after

incorporating all of the complaint's previous allegations by reference) that District and LCSEA "deliberately kept Dawn from participating in special education meetings and educational decisions by providing no notice of the same and forcing, coercing, pressuring, bribing, and demanding that [SCC] revoke a delegation of rights which resulted in severe neglect and physical, psychological, and emotional harm to [SCC], caused educational loss to [SCC], denied her right to free appropriate public education, and caused economic loss, psychological damage, and emotional distress to [SCC] and Dawn. Count IV also specifically alleges "District and LCSEA, retaliated against [SCC] and Dawn for asserting [SCC]'s educational rights by their essential denial of the same and caused educational loss to [SCC] and denied her right to free and appropriate public education and caused economic loss and emotional distress to [SCC] and [*15] Dawn."

Count V.1, after incorporating all of the complaint's prior allegations by reference, specifically alleges "District and LCSEA, intentionally and/or willfully and wantonly violated [SCC]'s rights under the [ADA] by retaliating against [SCC] because of her disabilities and by failing to provide her access to a free and appropriate public education in the ways described herein."

As noted above, the Agreement was clearly intended by the parties to settle all of plaintiffs' claims under the IDEA. Any claims relating to the denial of a free appropriate public education to SCC have therefore been settled. The allegations specifically set forth in Count IV go only to an alleged IDEA violation. The allegations assert the District and LCSEA took actions to keep Dawn from participating in SCC's special education process by forcing SCC to revoke the delegation of rights SCC had given to Dawn under the IDEA. That delegation gave Dawn the power to act for SCC in pursuing her rights under the IDEA after SCC attained majority. The revocation took that power away from Dawn and returned it to SCC. The complaint alleges this revocation resulted in harm to SCC and Dawn. The allegation in Count V.1 [*16] specifically alleges the ADA violation is

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failing to provide SCC with a FAPE. Count V.1 also alleges the District and LCSEA retaliated against SCC because of her disabilities. However, there are no allegations as to how she was retaliated against or subjected to discrimination beyond actions related to her right to a FAPE.

Looking at the allegations in the complaint as a whole (the allegations incorporated by reference into Counts IV and V.1), none of the facts alleged support an ADA or Section 504 claim. Apart from allegations that go to IDEA violations, plaintiffs' are complaining about the actions of various defendants which led to SCC moving out of Dawn's home and in with Banks and the resultant injuries SCC and Dawn suffered from these actions. None of these allegations go to an exclusion from the participation in, the denial of the benefits of, or subjection to discrimination under any program or activity receiving Federal financial assistance or by any public entity. The Section 504 and ADA claims asserted in Count IV and Count V.1 have been settled to the extent they seek relief for the denial of a FAPE. The allegations that seek relief for other actions taken by defendants fail to state claims within the [*17] scope of Section 504 or the ADA. Counts IV and V.1 must be dismissed.

Counts II and III are Section 1983 actions claiming violation of the Fourteenth Amendment to the United States Constitution. Count II alleges all defendants violated SCC's liberty interest by removing her "from the school premises in the car of one of the defendants" and by hiding the location of SCC from Dawn for a period of approximately six weeks. Count II also alleges the termination of SCC's educational programming, revocation of Dawn's parental rights, and coercion of SCC to make "multiple false reports about Dawn." It asserts the defendants either took or allowed others to take "harmful, discriminatory and unconstitutional actions against [SCC] and Dawn by retaliating against Dawn for her strong advocacy for [SCC] and her other children at District schools." Count II also asserts an equal protection violation because SCC "was entitled to a free and appropriate public education just like

other non-disabled peers."

As with the Section 504 and ADA claims discussed above, the allegations concerning termination of educational programs, revocation of parental rights, retaliation for pursuing SCC's educational rights all go the denial of a FAPE and, therefore, have been settled per the Agreement. The alleged [*18] equal protection violation, that SCC was entitled to a free and appropriate public education likewise was settled per the Agreement because it is expressly a claimed denial of a FAPE.

The remaining Count II allegations concern the actions of defendants in inducing SCC to move out of Dawn's home and in with Banks, the consequences to plaintiffs of that move, as well as other actions taken to sever SCC's mother-daughter relationship with Dawn. Plaintiffs' brief nicely sums up their allegations when it states: "The Plaintiffs allege the Defendants knew S.C.C. was disabled and deliberately conspired to use their positions of influence and control as educators to coerce her to separate her from her family." Dkt # 29.

"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." L.P. v. Marian Catholic High School, 852 F.3d 690, 696 (7th Cir. 2017) (internal quotation marks and citation omitted). Plaintiffs advance a violation of the Fourteenth Amendment's Due Process Clause. The Due Process Clause of the Fourteenth Amendment not only guarantees fair process but also was intended to prevent government officials from abusing their power. County of Sacramento v, Lewis, 523 U.S. 833, 840, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998). When the alleged abuse is of executive, [*19] rather than legislative, power, the abuse must rise to a level that "shocks the conscience". Id., at 846.

In support of their motions to dismiss, Banks and the School Defendants argue none of the alleged conduct of the defendants was taken "under color of state law." "[A]ction is taken under color of state law when

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it involves a misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with authority of state law. The mere assertion that one is a state officer does not necessarily mean that one acts under color of state law. A state officer's conduct does not constitute acting under color of state law unless it is related in some way to the performance of the duties of the state office." Wilson v. Price, 624 F.3d 389, 392 (7th Cir. 2010) (internal quotation marks and citations omitted).

The non-IDEA related allegations go to actions taken by defendants to persuade, induce or coerce SCC to move out of Dawn's house and in with Banks. They allege defendants convinced SCC to take certain actions detrimental to her well being (not taking her prescribed medication, moving to a place where she was placed in danger.) They allege defendants took advantage of their knowledge of SCC's disabilities to induce her to [*20] take these actions and to make certain allegations about Dawn. At the time these alleged actions occurred, SCC was an adult and legally able to make the decisions she made. It was not until six days before this lawsuit was commenced that a guardian of the person and estate, Dawn, was appointed for SCC by the state court. This was well after the alleged actions occurred.

The defendants were all school employees or, in the case of Banks, worked at the school. It is through their working at the school that they met SCC, learned of her disabilities and developed relationships with her. However, the allegations of defendants' conduct are not "related in some way to the performance of the duties of [their] state office." Id. The defendants served as a teacher, a paraprofessional, administrators and a speech therapist. None of the non-IDEA related allegations have anything to do with the duties of the defendants' positions in the school. Plaintiffs do not cite, nor did the court find, any authority holding that actions taken by a school worker are considered to be taken under color of state law, when those actions involve an adult special education student, but are not related to school-related [*21] services. This is

not a case where it is alleged a minor child was "removed" by an employee of a state child welfare agency from the child's home and "placed" with Banks where such an employee's official duties concern taking these sorts of actions. "Removal" and "placement" were not duties in any way related to the defendants' official duties.

The alleged actions also do not rise to the level of shocking the conscience. The "due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm." Lewis, 523 U.S. at 848. The "Fourteenth Amendment is not a font of tort law to be superimposed upon whatever systems may already be administered by the States." Id. (internal quotation marks and citation omitted.) The Constitution "does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society." Id. (internal quotation marks and citation omitted). "Lewis calls for judicial modesty in implementing a federal program of constitutional torts that lie outside any specific clause of the Constitution." Christensen v. County of Boone, 483 F.3d 454, 464 (7th Cir. 2007). "Our Constitution deals with the large concerns of the governors and the [*22] governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability." Daniels v. Williams, 474 U.S. 327, 332, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986).

The non-IDEA related allegations include: telling SCC she could live in a home with fewer rules, did not have to take her physician-prescribed medications, assisting SCC in writing to her psychiatrist stating Dawn no longer had any rights related to SCC and "accusing Dawn of a number of atrocities", assisting [SCC] with Social Security applications, convincing [SCC] to live with Banks, leaving [SCC] unsupervised which resulted in her being placed in dangerous situations which resulted in physical, emotional and psychological harm to [SCC]."

The essence of these allegations is that defendants induced SCC to exercise rights SCC legally possessed.

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Exercising these rights may well not have been in SCC's best interest, but they were rights that belonged to her. Bringing these claims within the scope of Fourteenth Amendment substantive due process would require expanding substantive due process beyond its existing intentionally narrow limits.

The complaint, in addition to alleging defendants induced SCC to move out of Dawn's home, also uses language ("restraining and false imprisoning") [*23] which would indicate something beyond convincing SCC to move out. However, "false imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official." Baker v. McCollan, 443 U.S. 137, 146, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979). The remedy for false imprisonment is under state tort law. Id.

There is a presumption in favor of granting plaintiffs at least one opportunity to file an amended complaint after the original complaint is dismissed. Runnion v. Girl Scouts of Greater Chicago, 786 F.3d 510, 518 (7th Cir. 2015). In the time since plaintiffs filed the complaint which is the subject of the motions to dismiss decided today, both the Settlement Agreement and the Supreme Court's decision in Fry have intervened. Given these intervening events, and this court's decision today, plaintiffs will be given an opportunity to assess their position and, if they wish, file an amended complaint alleging a federal claim or claims.4 Alternatively, plaintiffs may decide to pursue any state law claims they have in state court.

For the foregoing reasons, the motions [21] [23] of the School Defendants and Banks to dismiss the federal claims are granted. Counts II, III, IV, and V.1 are dismissed without prejudice. The court declines to exercise supplemental jurisdiction over the remaining state law claims and they are dismissed [*24] without prejudice as well. Plaintiffs may file an amended complaint on or before July 14. 2017.

4 Of course, plaintiffs may also invoke this court's supplemental jurisdiction and plead state law claims as well if they choose to file an amended complaint.

Date: 6/08/2017

ENTER:

/s/ Philip G. Reinhard

United States District Court Judge

End of Document

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139

Bowe v. Eau Claire Area Sch. Dist.

United States District Court for the Western District of Wisconsin


16-cv-746-jdp


CONNOR BOWE, Plaintiff, v. EAU CLAIRE AREA SCHOOL DISTRICT, DAVID OLDENBERG, and TIM O'REILLY, Defendants.

Subsequent History: Reconsideration denied by Bowe v. Eau Claire Area Sch. Dist., 2017 U.S. Dist. LEXIS 80173 (W.D. Wis., May 25, 2017)

Counsel: [*1] For Connor Bowe, Plaintiff: Paul A. Kinne, LEAD ATTORNEY, Gingras, Cates & Luebke, S.C., Madison, WI.

For Eau Claire Area School District, David Oldenberg, In his individual capacity, Tim O'Reilly, In his individual capacity, Defendants: Ronald S. Stadler, LEAD ATTORNEY, Mallery & Zimmerman, S.C., Milwaukee, WI; Jonathan Edward Sacks, Mallery & Zimmerman, Milwaukee, WI.

Judges: JAMES D. PETERSON, District Judge.

Opinion by: JAMES D. PETERSON

Opinion

OPINION & ORDER

Plaintiff Connor Bowe is a young man with autism who attended defendant Eau Claire Area School District. He brings suit against the District and two of its principals, defendants David Oldenberg and Tim O'Reilly, alleging that they were deliberately indifferent to the harassment and bullying that he suffered as a student.

Defendants move to dismiss Bowe's complaint under Federal Rule of Civil Procedure 12(b)(6), contending that Bowe failed to exhaust his administrative

remedies and fails to state a claim upon which relief can be granted. Dkt. 7. Bowe alleges facts sufficient to state plausible peer-harassment claims against the District under the Americans with Disabilities Act (ADA), the Rehabilitation Act (RA), Title IX, and the Equal Protection Clause. Bowe was not required to exhaust administrative remedies before [*2] filing those claims. Accordingly, the court will deny defendants' motion for the most party. The court will dismiss any direct discrimination claims under the ADA and the RA, and any racial discrimination claim under Title VI. It does not appear that Bowe intends to pursue these claims anyway.

ALLEGATIONS OF FACT

The court draws the following facts from Bowe's complaint, Dkt. 1, and accepts them as true for the purpose of deciding defendants' motion. Zahn v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016).

Connor Bowe is a 20-year-old man with autism. He attended two schools in the Eau Claire Area School District. Oldenberg and O'Reilly were the principals of those schools. Bowe's schoolmates bullied him for many years. They called him names, such as "gay," "queer," "fag," "pussy," "stupid," and "butt boy." Dkt. 1, ¶¶ 12, 13. They shoved him and threw things at him. "At some point prior to" February 2011, id. ¶ 11, when Bowe was about to turn 14, O'Reilly and non-party Kevin Stevens, another District official, told some of Bowe's classmates that Bowe suffered from autism. Bowe's parents did not consent to the disclosure of Bowe's disability.

The bullying continued, and in fact grew more serious. Between February 2011 and February 2014,

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Bowe's [*3] classmates called him "stupid," "fat," "weak," "fag," "pussy," "shit stain," and "bubble butt." Id. ¶ 12. They accused him of having "mental deficiencies" and told him to "go fucking die." Id. They threw things at him, threatened to hurt him, "physically assaulted him," threw eggs at his house, and left a bag of feces at his house. Id. Bowe and his parents complained to Oldenberg, O'Reilly, and other District officials about the bullying multiple times a year each year from 2010 to 2015, but no District official took any action to end the bullying. Because of the bullying, Bowe's grades fell significantly and he was prevented from fully participating in some of his classes.

On November 14, 2016, Bowe filed his complaint, claiming that the District violated the ADA and RA by "knowingly allow[ing] a hostile learning environment" and "intentionally exclud[ing] . . . Bowe from educational opportunities because of his disability" and violated Title VI and Title IX by "allow[ing] a sexually hostile learning environment." Dkt. 1, at 5. He also claimed that O'Reilly and Oldenberg violated the Equal Protection Clause of the Fourteenth Amendment by acting with deliberate indifference to Bowe's complaints of harassment and bullying because of Bowe's gender, because of the perception [*4] that he was homosexual, because of the perception that he was autistic, or without any rational basis "to justify the unequal treatment he faced, regardless of his membership in a protected class." Id. at 6.

The court has subject matter jurisdiction over Bowe's claims pursuant to 28 U.S.C. § 1331 because they arise under federal law.

ANALYSIS

To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege facts sufficient to state a plausible claim for relief, that is, facts "that allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 826 (7th Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). The court

is not bound to accept alleged legal conclusions. Id. at 827.

A. ADA and RA claims

Bowe brings peer-harassment claims against the District under the ADA and the RA. To state a claim against the District for "peer-to-peer disability-based harassment under § 504 and the ADA," Bowe must allege that (1) he has a disability, (2) he "was harassed based on that disability," (3) "the harassment was sufficiently severe or pervasive that it altered the condition of his . . . education and created an abusive educational environment," (4) the District knew of the harassment, and (5) the District was deliberately indifferent to the harassment. Werth v. Bd. of Dirs. of Pub. Schs., 472 F. Supp. 2d 1113, 1126, 1127 (E.D. Wis. 2007) [*5] . Defendants do not dispute that Bowe has adequately pleaded facts showing that he has a disability (autism) and that the District knew about the bullying he suffered and was deliberately indifferent to it. But defendants contend that Bowe has not alleged facts sufficient to show that he was harassed based on his disability or that the harassment was sufficiently severe or pervasive.

To satisfy the second element, allegations of harassment are not enough; Bowe must allege that "he was harassed because of his disability." Id. at 1128. As defendants recognize, a plaintiff can satisfy this element by pleading a "link" between the harassment and his peers' knowledge of his disability or resentment of his accommodations. See Carlson v. Carroll Univ., No. 09-cv-551, 2011 WL 5921445, at *17 (E.D. Wis. Nov. 28, 2011). Bowe alleges that Stevens and O'Reilly told some of his classmates and their parents about his autism sometime before February 2011 and that his classmates called him "stupid" in December 2010, accused him of having "mental deficiencies" in February 2011, and called him "stupid" again in February 2014. Dkt. 1, ¶ 12. Even if the classmates were unaware of Bowe's official diagnosis, the content of this verbal abuse sufficiently pleads a link [*6] between the harassment and Bowe's disability. One may

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reasonably infer from these allegations that Bowe was harassed on at least three occasions based on his disability, so he has satisfied the second element for purposes of Rule 12(b)(6).

To satisfy the third element, Bowe must allege that the harassment was sufficiently severe or pervasive. The court need not determine whether the three alleged incidents of verbal abuse discussed above are sufficiently severe at the pleading stage because these incidents did not occur in isolation. Bowe alleges numerous incidents of more generalized harassment, including physical assaults, death threats, and verbal abuse, that occurred during the same time period as the autism-related harassment and that plausibly could have been connected to the autism-related harassment. When some incidents of harassment are alleged to be based on the plaintiff's protected status, the court may consider allegations of other, more generalized harassment when determining whether the alleged harassment is severe enough to state a peer-harassment claim. See Doe v. Galster, 768 F.3d 611, 618 (7th Cir. 2014) (analyzing a summary judgment motion on peer-harassment claims under Title VI and Title IX); Seiwert v. Spencer-Owen Cmty. Sch. Corp., 497 F. Supp. 2d 942, 952 (S.D. Ind. 2007) (analyzing summary judgment [*7] motion on a peer-harassment claim under the Equal Protection Clause). One may reasonably infer from Bowe's allegations that the totality of the harassment he endured was so severe that it changed the conditions of his education and created an abusive education environment. Bowe has plausibly alleged peer harassment claims under the ADA and RA.

B. Title IX claim

Bowe also brings a peer-harassment claim against the District under Title IX of the Education Amendments of 1972. Title IX provides: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a).

To state a peer-harassment claim against the District under Title IX, Bowe must allege that (1) he was harassed on the basis of sex; (2) the District had "actual knowledge" of the harassment; (3) the harassment was "so severe, pervasive, and objectively offensive that it" deprived Bowe of access to educational opportunities; and (4) the District was "deliberately indifferent" to the harassment. Galster, 768 F.3d at 617 (quoting Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 650, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999)).

Defendants do not dispute that Bowe has adequately pleaded facts showing that the District knew about the bullying he suffered and was [*8] deliberately indifferent to it, but they contend that Bowe has not plausibly alleged that he was harassed on the basis of sex. As both parties recognize, allegations that a plaintiff was "harassed because of a failure to adhere to specific sexual stereotypes" are sufficient to satisfy this element.1 Seiwert, 497 F. Supp. 2d at 953. In Seiwert, the plaintiffs adduced evidence that the victim's middle school classmates called him "gay" and "faggot." Id. The Southern District of Indiana concluded that the plaintiffs "demonstrated the type of harassment prohibited by Title IX." Id. Bowe alleges that his classmates referred to him as "weak" and called him "fag" and "pussy."2 Dkt. 1, ¶ 12. It is reasonable to infer that the harassment Bowe suffered, just like the verbal abuse in Seiwert, was because of his "failure to adhere to traditional male

1 The Seventh Circuit, sitting en banc, recently held that "a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes." Hively v. Ivy Tech Cmty. Coll. of Ind., 15-1720, 853 F.3d 339, 2017 U.S. App. LEXIS 5839, 2017 WL 1230393, at *9 (7th Cir. Apr. 4, 2017) (en banc). The court need not decide whether Title IX also bars discrimination on the basis of sexual orientation, because Bowe states a claim under the "sexual stereotype" theory.

2 Defendants argue that the "fag" and "pussy" incidents are not actionable because they occurred before the three-year statute of limitations period for Bowe's Title IX claim, citing Doe v. Howe Military School, 227 F.3d 981, 987 (7th Cir. 2000). But Howe indicates that the state statute of limitation for personal injury actions applies to Title IX claims, and Wisconsin has a six-year statute of limitations for personal injury actions. See Wis. Stat. § 893.53. So they are properly included in the court's analysis.

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stereotypes." 497 F. Supp. 2d at 953 n.8.

Defendants cite Doe v. Galster, No. 09-cv-1089, 2013 U.S. Dist. LEXIS 199294, 2013 WL 12094815, at *12 (E.D. Wis. June 21, 2013), aff'd, 768 F.3d 611 (7th Cir. 2013), for the proposition that students' use of words like "bitch," "pussy," and "slut" does not amount to sex-based harassment. But on appeal, the Seventh Circuit specifically noted that it was "not as convinced" as the district court that these gendered words [*9] did not amount to harassment based on gender, and affirmed the district court's grant of summary judgment on other grounds. Galster, 768 F.3d at 617. As defendants point out, whether the use of "gendered words like bitch and whore" by young children constitutes sexual harassment under Title IX is a "subtle" issue. Id. But the cases defendants cite show that the use of such words by middle-and high-school students may constitute sexual harassment. See, e.g., N.K. v. St. Mary's Springs Academy of Fond Du Lac Wis., Inc., 965 F. Supp. 2d 1025, 1034 (E.D. Wis. 2013) (concluding that middle schoolers' use of "fag" and "faggot" may constitute discrimination under Title IX). And here, the consistent pattern of gender stereotype slurs alleged by Bowe makes it easy to infer that his classmates harassed him because of his failure to adhere to traditional gender stereotypes. For purposes of Rule 12(b)(6), Bowe has plausibly alleged a peer-harassment claim under Title IX.

C. Equal protection claims

Bowe brings claims against O'Reilly and Oldenberg under 42 U.S.C. § 1983, alleging violations of the Equal Protection Clause of the Fourteenth Amendment. An ordinary equal protection claim alleges that the plaintiff has been denied equal treatment because of his membership in an "identifiable group." Engquist v. Or. Dep't of Agric., 553 U.S. 591, 601, 128 S. Ct. 2146, 170 L. Ed. 2d 975 (2008). But Bowe does not allege that he is a member of such a group. Instead, he attempts to bring a class-of-one [*10] equal protection claim. The required elements of such claims are not entirely clear, as explained in Del Marcelle v. Brown County Corp., 680

F.3d 887, 891 (7th Cir. 2012) (affirming dismissal of a class-of-one claim by an evenly divided court). To state a class-of-one claim, Bowe must allege, at a minimum, (1) that defendants intentionally treated him differently from others similarly situated and (2) that there was no rational basis for the difference in treatment. It is an open question whether Bowe must also allege that the differential treatment was not merely arbitrary, but motivated by an improper purpose or "reasons of a personal character." Id. at 893, 893, 899 (Posner, J., plurality opinion); see id. at 917 (Wood, J., dissenting).

Here, defendants challenge only the first element of a class-of-one claim, contending that Bowe does not allege that he was treated differently from others similarly situated. But "[p]laintiffs alleging class-of-one equal protection claims do not need to identify specific examples of similarly situated persons in their complaints," at least when the complaint does not otherwise reveal a rational basis for the difference in treatment. Miller v. City of Monona, 784 F.3d 1113, 1120 (7th Cir. 2015) (quoting Capra v. Cook Cty. Bd. of Review, 733 F.3d 705, 717 (7th Cir. 2013)) (alteration in original). Bowe alleges that O'Reilly and Oldenberg knew about the ongoing harassment but took no action to stop it. Taking these [*11] allegations as true, there is no rational basis for their treatment of Bowe. So Bowe's equal protection claims will survive defendants' motion to dismiss.

D. Failure to exhaust

Defendants also contend that all of Bowe's claims must be dismissed because he fails to allege that he exhausted his administrative remedies under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. The IDEA requires school districts to provide a free appropriate public education (FAPE) to each child with disabilities by developing an individualized education plan (IEP). It also establishes administrative procedures for resolving disputes between pupils and school representatives. See § 1415. A plaintiff must exhaust those administrative procedures before bringing suit

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under the IDEA in state or federal court. § 1415(i)(2)(A). The IDEA is not the exclusive avenue through which a child with a disability may challenge the adequacy of his education; plaintiffs may assert claims against school representatives under other statutes and the Constitution, too. See Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 750, 197 L. Ed. 2d 46 (2017). But when a plaintiff "seek[s] relief that is also available under" the IDEA—that is, relief for the denial of a FAPE—he must exhaust the IDEA's administrative procedures before [*12] bringing suit, regardless of the law he sues under. Id. at 752; see § 1415(i). When a plaintiff seeks relief that is not available under the IDEA—that is, when "the remedy sought is not for the denial of a FAPE"—he need not exhaust the IDEA's procedures, even if "the suit arises directly from a school's treatment of a child with a disability—and so could be said to relate in some way to [his] education." Fry, 137 S. Ct. at 754.

Defendants contend that Bowe seeks relief also available under the IDEA, so the court must dismiss his case because he fails to allege exhaustion of IDEA's administrative remedies. Although exhaustion of administrative remedies is an affirmative defense, not a barrier to jurisdiction or an element of a claim, Mosely v. Bd. of Educ., 434 F.3d 527, 533, 535 (7th Cir. 2006), the court will address defendants' contention in their Rule 12(b)(6) motion because Bowe's allegations make clear that he does not seek relief also available under the IDEA, so he need not have exhausted his administrative remedies before filing suit. "[I]n determining whether a suit indeed 'seeks' relief for [the denial of a FAPE], a court should look to the substance, or gravamen, of the plaintiff's complaint." Fry, 137 S. Ct. at 752. If the claim could have been brought in a situation in which there is no obligation to provide [*13] a FAPE, then the claim does not seek relief for the denial of a FAPE. See id. at 756.

Here, Bowe's claims could have been brought in a situation in which there is no obligation to provide a FAPE. Bowe could bring his Title IX claim against the District even if he were not disabled, and

therefore not entitled to the IEP that the IDEA provides. Likewise, Bowe could bring his equal protection claims against Oldenberg and O'Reilly even if he were not a student, let alone a disabled student. And although having a disability is an element of Bowe's ADA and RA claims, he could bring these claims against the District even if he were an adult employee, not a student. See Mannie v. Potter, 394 F.3d 977, 982 (7th Cir. 2005); Silk v. City of Chicago, 194 F.3d 788, 804 (7th Cir. 1999).3 The peer harassment that Bowe alleges is a general-purpose barrier to all of the benefits of school, not just the custom-designed IEP that the IDEA provides. So the relief Bowe seeks is not for the denial of a FAPE, but rather the denial of a harassment-free environment to which all students and employees are entitled. The mere fact that Bowe's claims concern a school environment does not mean that he seeks relief for the denial of a FAPE. See Fry, 137 S. Ct. at 758. Because none of Bowe's claims seek relief for the denial of a FAPE, he need not have exhausted [*14] the IDEA's administrative procedures before filing suit.

E. Waived claims

Finally, defendants read Bowe's complaint as attempting to bring direct disability discrimination claims under the ADA and RA and racial discrimination claims under Title VI. Bowe made no argument in support of those claims in response to defendants' motion, so even if his complaint stated claims for relief under these legal theories, he has waived them. Therefore, the court will grant defendants' motion to dismiss as to Bowe's direct disability discrimination claims and Title VI claims.

3 The Seventh Circuit, like most circuits, assumes that an employee whose employer is negligent to the disability-based harassment he suffers in the workplace may assert a "hostile work environment" claim against his employer under the ADA and RA. See Silk, 194 F.3d at 804. Some circuits have gone further, explicitly recognizing a hostile work environment claim under the ADA. See Flowers v. S. Reg'l Physician Servs., Inc., 247 F.3d 229, 233 (5th Cir. 2001); Fox v. Gen. Motors Corp., 247 F.3d 169, 172 (4th Cir. 2001).

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One final note. In his response brief, Bowe asks the court to allow him leave to amend his complaint to correct any pleading deficiencies or to dismiss his claims without prejudice. Amendment appears unnecessary in this case, as the only dismissed claims are those that it appears Bowe did not intend to plead. But even if Bowe still wished to amend, I would deny his request because he has not actually moved for leave to amend, nor has he explained how any amendment could cure the flaws in his complaint. When a plaintiff makes "no suggestions at all about how he would cure the complaint's deficiencies," a court may deny him [*15] leave to amend his complaint. Charleston v. Bd. of Trs. of Univ. of Ill. at Chi., 741 F.3d 769, 777 (7th Cir. 2013). So the court will not allow Bowe to amend his complaint. Nor will the court dismiss Bowe's claims without prejudice, as "[a] dismissal for failure to state a claim is a dismissal on the merits . . . and a dismissal on the merits is normally with prejudice." Kamelgard v. Macura, 585 F.3d 334, 339 (7th Cir. 2009).

ORDER

IT IS ORDERED that defendants Eau Claire Area School District, David Oldenberg, and Tim O'Reilly's motion to dismiss, Dkt. 7, is GRANTED in part and DENIED in part, consistent with the opinion above. Plaintiff Connor Bowe's direct disability claims under the ADA and RA and racial discrimination claims under Title VI are dismissed with prejudice.

Entered April 24, 2017.

BY THE COURT:

/s/ JAMES D. PETERSON

District Judge

End of Document

2017 U.S. Dist. LEXIS 61496, *14

145

J.M. v. Francis Howell Sch. Dist.

United States Court of Appeals for the Eighth Circuit

January 10, 2017, Submitted; March 7, 2017, Filed

No. 16-1756

Reporter850 F.3d 944 *; 2017 U.S. App. LEXIS 3991 **; 2017 WL 894460

J.M., Next Friend Kristine McCauley, Plaintiff - Appellant v. Francis Howell School District, Defendant - Appellee

Prior History: [**1] Appeal from United States District Court for the Eastern District of Missouri - St. Louis.

McCauley v. Francis Howell Sch. Dist., 2016 U.S. Dist. LEXIS 24947 (E.D. Mo., Mar. 1, 2016)

Case Summary

OverviewHOLDINGS: [1]-Dismissing appellant mother's complaint alleging her child's unlawful isolation and restraints, for failure to exhaust the IDEA's administrative remedies, under 20 U.S.C.S. § 1415(f), (g), and (l), was proper because it was based on the denial of a FAPE, in 20 U.S.C.S. § 1401(9), (26), and (29), her first and first amended complaints had IDEA claims, her claims showed the child's injuries were education-related, it was not exempt from exhaustion for seeking damages unavailable under the IDEA, as exhaustion was the general rule nonetheless, and the IDEA's exhaustion requirement applied to all such claims, however framed; [2]-Futility and inadequate remedy administrative exhaustion exceptions did not apply because exhaustion let appellee school district use its expertise to develop a record, and damages unavailability did not excuse exhaustion.

OutcomeJudgment affirmed.

Counsel: For J.M., Next Friend Kristine McCauley,

Plaintiff - Appellant: Larry Alan Bagsby, THE BAGSBY LAW FIRM, Saint Charles, MO.

For Francis Howell School District, Defendant - Appellee: Kathryn Boehm Forster, Angela Gabel, Cindy Reeds Ormsby, CROTZER & ORMSBY, Saint Louis, MO.

Judges: Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.

Opinion by: BENTON

Opinion

[*946] BENTON, Circuit Judge.

On behalf of her minor son, J.M., Kristine McCauley sued Francis Howell School District, claiming unlawful use of isolation and physical restraints. Her second amended complaint asserted violations of: (1) the Equal Protection Clause of the Fourteenth Amendment; (2) 42 U.S.C. §§ 1983 and 1988; (2) the Americans with Disabilities Act (ADA), 42 U.S.C. § 12182; (3) Section 504 of the Rehabilitation Act of 1973; and (4) the Missouri Human Rights Act (MHRA), RSMo § 213.010 et seq. The district court dismissed the federal claims for1 "lack of subject matter jurisdiction for failure to exhaust administrative remedies" and declined to exercise supplemental jurisdiction over the MHRA claim,

1 The Honorable Nannette A. Baker, United States Magistrate Judge for the Eastern District of Missouri, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c).

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dismissing it without prejudice.2 Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

In 2011, J.M. began kindergarten in the Francis Howell School District. J.M. qualified [*947] for services under the Individuals with Disabilities Education Act (IDEA) based on his diagnoses of attention deficit hyperactivity disorder, autism spectrum disorder, anxiety disorder, separation anxiety disorder, panic disorder, Asperger's/autism spectrum disorder, and generalized anxiety. See 20 U.S.C. § 1400 et seq. Under the IDEA, J.M. had an Individualized Education Program (IEP).

McCauley alleges that between January 2012 and September 2014, J.M. repeatedly was placed in physical restraints and isolation without her knowledge. Learning of this, she immediately contacted the District, requesting restraints only when necessary and no isolation. On September 5, McCauley removed J.M. from the District.

McCauley sued in federal court under the IDEA, 42 U.S.C. §§ 1983 and 1988, and Missouri common law (torts of negligence per se, false imprisonment, and battery). She amended the complaint to add claims under the ADA and MHRA. The District answered, claiming failure to exhaust administrative remedies for the federal claims, and sovereign immunity for the common law tort claims. [**3] McCauley voluntarily amended her complaint, removing the

2 The parties and the district court treat the IDEA's exhaustion requirement as jurisdictional rather than a claims-processing rule. Compare Payne v. Peninsula School Dist., 653 F.3d 863, 870 (9th Cir. 2011) (en banc) ("In sum, we hold that the exhaustion requirement in § 1415(l) is not jurisdictional."), with Polera v. Bd. of Educ. of the Newburgh Enlarged City School [**2] Dist., 288 F.3d 478, 483 (2nd Cir. 2002) ("A plaintiff's failure to exhaust administrative remedies under the IDEA deprives a court of subject matter jurisdiction."). Here, neither party requested a ruling on this issue. "Because the District has not waived the exhaustion argument and . . . [McCauley was] required to exhaust . . . administrative remedies, [this court] need not reach this issue." See J.B. ex rel. Bailey v. Avilla R-XIII School Dist., 721 F.3d 588, 593 n.2 (8th Cir. 2013), citing Muskrat v. Deer Creek Pub. School, 715 F.3d 775, 784-85 (10th Cir. 2013) (declining to consider whether the IDEA's exhaustion requirement was jurisdictional because the parties did not raise the issue and the defendants argued exhaustion in the district court).

IDEA and common law tort claims. Her second amended complaint thus included claims under the Equal Protection Clause, 42 U.S.C. §§ 1983 and 1988, the ADA, Section 504 of the Rehabilitation Act of 1973, and the MHRA.

The District moved to dismiss, alleging lack of subject matter jurisdiction for failure to exhaust administrative remedies under the IDEA. McCauley argued her claims were not under the IDEA, and thus not subject to exhaustion. In the alternative, she asserted exceptions to the exhaustion requirement. The district court granted the motion to dismiss.

I.

This court reviews de novo whether exhaustion of administrative remedies was required. J.B. ex rel. Bailey v. Avilla R-XIII School Dist., 721 F.3d 588, 592 (8th Cir. 2013), citing Brown v. J.B. Hunt Transp. Servs., Inc., 586 F.3d 1079, 1083 n.4 (8th Cir. 2009).

"In the IDEA, Congress established procedural safeguards to ensure individuals with disabilities will have the opportunity to obtain a free appropriate public education (FAPE)." Id., citing 20 U.S.C. § 1415(a). One safeguard is an opportunity to present complaints about the provision of a FAPE in "an impartial due process hearing." Id., quoting Honig v. Doe, 484 U.S. 305, 311-12, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988). See 20 U.S.C. § 1415(f). "A party aggrieved by the outcome of an IDEA due process hearing may challenge the outcome before the state educational review agency." J.B., 721 F.3d at 592, citing 20 U.S.C. § 1415(g)(1). "The [**4] outcome of the administrative review hearing may then be disputed in district court." Id., citing 20 U.S.C. § 1415(i)(2)(A).

The IDEA's exhaustion requirement also applies to claims under the Constitution, the ADA, the Rehabilitation Act, and other federal laws protecting children with disabilities to the extent those claims seek relief "that is also available under [the IDEA]." 20 U.S.C. § 1415(l); Fry v. Napoleon Cmty. School, 137 S. Ct. 743, 197 L. Ed. 2d 46, 2017 WL

850 F.3d 944, *946; 2017 U.S. App. LEXIS 3991, **1

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685533, at *8 (U.S. 2017) ("Section 1415(l) requires that a plaintiff exhaust the IDEA's procedures before filing an action under the ADA, the Rehabilitation Act, or similar laws when (but only when) her suit 'seek[s] relief that is also available' under the IDEA."); J.B., 721 F.3d at 592 ("[B]efore parties may bring a claim in district court under a different [*948] statute for which they seek relief which is also available under the IDEA, the parties must first exhaust the administrative remedies under the IDEA."). After argument in this case, the Supreme Court held that "'relief that is also available' under the IDEA" means "relief for the denial of a FAPE, because that is the only 'relief' the IDEA makes 'available.'" Fry, 197 L. Ed. 2d 46, 2017 WL 685533, at *8. Thus, "exhaustion is not necessary when the gravamen of the plaintiff's suit is something other than the denial of the IDEA's core guarantee—what the Act calls a 'free [**5] appropriate public education.'" 197 L. Ed. 2d 46, Id., at *3, quoting § 1412(a)(1)(A).

"[D]etermining whether a suit indeed 'seeks' relief for [denial of a FAPE], a court should look to the substance, or gravamen, of the plaintiff's complaint." 197 L. Ed. 2d 46, Id., at *8. The inquiry "does not ride on whether a complaint includes (or, alternatively, omits) the precise words(?) 'FAPE' or 'IEP.'" 197 L. Ed. 2d 46, Id., at *11. Rather, "[i]n addressing whether a complaint fits that description, a court should attend to the diverse means and ends of the statutes covering persons with disabilities—the IDEA on the one hand, the ADA and Rehabilitation Act (most notably) on the other." Id.

The IDEA, of course, protects only "children" (well, really, adolescents too) and concerns only their schooling. § 1412(a)(1)(A). And as earlier noted, the statute's goal is to provide each child with meaningful access to education by offering individualized instruction and related services appropriate to her "unique needs." § 1401(29); see Rowley, 458 U.S., at 192, 198, 102 S. Ct. 3034; supra, at . By contrast, Title II of the ADA and § 504 of the Rehabilitation Act cover people with disabilities of all ages, and do so both inside and

outside schools. And those statutes aim to root out disability-based discrimination, enabling each covered person (sometimes by means of reasonable accommodations) to participate equally [**6] to all others in public facilities and federally funded programs.

Id. "A further sign that the gravamen of a suit is the denial of a FAPE can emerge from the history of the proceedings. In particular, a court may consider that a plaintiff has previously invoked the IDEA's formal procedures to handle the dispute." 197 L. Ed. 2d 46, Id., at *13.

II.

McCauley did not file an IDEA due process complaint, request a due process hearing, or engage in the exhaustion procedures under the IDEA. See 20 U.S.C. § 1415(f), (g), (l). She argues exhaustion is not required because she does not seek relief available under the IDEA. The question here is whether the complaint is based on the District's denial of a FAPE. Fry, 197 L. Ed. 2d 46, 2017 WL 685533, at *8 ("[T]he thing a plaintiff must seek in order to trigger § 1415(l)'s exhaustion rule—is relief for the denial of a FAPE.").

Considering "substance, not surface," the district court did not err in finding the complaint seeks relief for denial of a FAPE under the IDEA. 197 L. Ed. 2d 46, Id., at *11. The second amended complaint states, "At all times mentioned above, [J.M.] was entitled to the educational services and protections available under the Individuals with Disabilities Education Act of 1975" and "at all times [J.M. was] entitled to reasonable accommodations" for his disabilities. [**7] It alleges that "[b]etween February 2014 and September 5, 2014, J.M. was placed in physical restraints for half of the time he actually spent at Defendant's [*949] schools." It further states that J.M. was "denied . . . because of his disability, participation in and the benefits of a public education." These allegations show that the complaint was based on the "denial of a FAPE" under the IDEA. See 197 L. Ed. 2d 46, id., at *13 (determining the Fry's complaint "alleges only

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disability-based discrimination" and "contains no allegation . . accus[ing] the school even in general terms of refusing to provide the educational instruction and services that E.F. needs").

"As defined in the Act, a FAPE comprises 'special education and related services'—both 'instruction' tailored to meet a child's 'unique needs' and sufficient 'supportive services' to permit the child to benefit from that instruction." 197 L. Ed. 2d 46, Id., at *4, citing 20 U.S.C. §§ 1401(9), (26), (29). The ADA and Section 504, on the other hand, forbid public entities and federally funded programs or activities from discriminating based on disability. 197 L. Ed. 2d 46, Id., at *5. The complaint here is not based on disability discrimination. Except for Count IV (the MHRA claim), the complaint does not use the word "discrimination." Rather, the complaint is based on how the use [**8] of isolation and physical restraints failed to provide proper "sufficient 'supportive services' to permit [J.M.] to benefit from . . . instruction," 197 L. Ed. 2d 46, id., at *4, and ultimately "denied [J.M.] . . . the benefits of public education." Finally, although McCauley did not "invoke[] the IDEA's formal procedures to handle the dispute," "the history of the proceedings," including her initial complaint and first amended complaint contained claims under the IDEA, which is "[a] further sign that the gravamen of [the] suit is the denial of a FAPE." See 197 L. Ed. 2d 46, id., at *13.

As noted, the Fry decision issued after argument in this case. But, the cases McCauley relies on—Moore v. Kansas City Public Schools, 828 F.3d 687 (8th Cir. 2016) and Muskrat v. Deer Creek Public Schools, 715 F.3d 775 (10th Cir. 2013)—do not change this analysis. In both, the complaints alleged common law torts seeking redress for non-educational injuries. Moore, 828 F.3d at 692 ("The gravamen of the petition is a state law action for damages seeking redress for the brutal injuries D.S. suffered as the result of repeated sexual assault and rape while under Southwest's supervision."); Muskrat, 715 F.3d at 785 ("No authority holds that Congress meant to funnel isolated incidents of common law torts into the

IDEA exhaustion regime. . . . Here, the Muskrats have alleged three scattered instances of potential battery. All three instances [**9] appear to have resulted from simple frustration with [the student] rather than any legitimate disciplinary goal."). McCauley does not allege any common law torts as the foundation for non-educational injuries. In fact, she voluntarily removed the common law tort claims from her second amended complaint. Moreover, the allegations show J.M.'s injuries were education-related: "Defendant's employees and agents had used isolation and restraint as a disciplinary tool, for their own convenience and in violation of their own policies." (emphasis added).

Unlike the Moore complaint—which referred to the plaintiff's IEP "solely to show notice to the [school district] of the conditions that put D.S. at risk from other students"—the complaint here shows the IEP is a "central dispute of this litigation." Moore, 828 F.3d at 692. The complaint alleges: "Defendant repeatedly and consistently violated Plaintiff's rights by utilizing isolation and restraint on J.M. which were not permitted within his IEPs." (emphasis added). The claims here are based on the [*950] failure to implement J.M.'s IEP, specifically regarding discipline. See Muskrat, 715 F.3d at 785 ("[A] timeout-related claim must be exhausted through the IDEA's statutory procedures."). [**10]

McCauley also believes the complaint is not subject to exhaustion because it seeks relief not available under the IDEA, namely compensatory and punitive damages. While the IDEA allows attorney's fees and costs (which McCauley seeks), 20 U.S.C. § 1415(i)(3)(B), compensatory and punitive damages are not available. Bradley v. Ark. Dep't of Educ., 301 F.3d 952, 957 (8th Cir. 2002). In Fry, the Supreme Court declined to address whether exhaustion is required "when the plaintiff complains of the denial of a FAPE, but the specific remedy she requests—here, money damages for emotional distress—is not one" the IDEA provides. Fry, 197 L. Ed. 2d 46 at *8 n.4. However, this court has noted that "the IDEA's exhaustion requirement remains the general rule, regardless of whether the administrative

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process offers the particular type of relief that is being sought." J.B., 721 F.3d at 595, quoting M.P. ex rel. K. v. Indep. School Dist. No. 721, 326 F.3d 975, 980 (8th Cir. 2003). See Muskrat, 715 F.3d at 785 (holding "a plaintiff cannot avoid exhaustion simply because he or she asks for damages"); Frazier v. Fairhaven School Comm., 276 F.3d 52, 64 (1st Cir. 2002) ("[W]e hold that plaintiffs who bring an IDEA-based claim under 42 U.S.C. § 1983, in which they seek only money damages, must exhaust the administrative process available under the IDEA as a condition precedent to entering a state or federal court."); Covington v. Knox Cnty. School Sys., 205 F.3d 912, 917 (6th Cir. 2000) ("[W]e agree with those courts that have decided that a mere claim for money damages is not sufficient to render [**11] exhaustion of administrative remedies unnecessary."); N.B. by D.G. v. Alachua Cnty. School Bd., 84 F.3d 1376, 1379 (11th Cir. 1996) (holding that plaintiffs cannot avoid the exhaustion requirement by limiting relief to money damages because otherwise, "future litigants could avoid the exhaustion requirement simply by asking for relief that administrative authorities could not grant"). McCauley's voluntary decision to remove J.M. from school, and thus seek only compensatory and punitive damages rather than compensatory education services, does not exempt her from the exhaustion requirement.

Because McCauley's complaint seeks relief available under the IDEA, denial of a FAPE, the claims are subject to exhaustion, barring an applicable exception.

II.

There are three exceptions to the exhaustion requirement: (1) futility, (2) "inability of the administrative remedies to provide adequate relief," and (3) "the establishment of an agency policy or practice of general applicability that is contrary to law." J.B., 721 F.3d at 594, quoting Blackmon ex rel. Blackmon v. Springfield R—XII School Dist., 198 F.3d 648, 656 (8th Cir. 1999). "A court deciding whether to waive exhaustion should be 'guided by the policies underlying the exhaustion requirement.'" Id., quoting Bowen v. City of New York, 476 U.S. 467,

484, 106 S. Ct. 2022, 90 L. Ed. 2d 462 (1986).

Exhaustion is generally required as [**12] a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.

[*951] Id., quoting Bowen, 476 U.S. at 484.

McCauley contends the futility and inadequate remedy exceptions apply.

A.

McCauley believes exhaustion would have been futile because she, like the Muskrat plaintiffs, attempted to address the problem by directly contacting the school. In Muskrat, however, the plaintiffs made greater attempts to work "through administrative channels to obtain the relief they sought." Muskrat, 715 F.3d at 786. They made written and oral demands to school administrators, conferred during an IEP meeting about the relief sought, and modified the IEP to accommodate their concerns. Id. McCauley, on the other hand, alleges only that she "contacted school district officials to have the isolation immediately stopped, and consented only to restraint on a basis of necessity." Although the complaint alleges "[s]he did not consent to isolation in the IEP team meetings," it does not allege she sought to address [**13] her concerns with isolation and physical restraint through the IEP process or modified J.M.'s IEP to reflect those concerns.

McCauley also claims the administrative process would not have addressed all her claims. This, however, does not excuse exhaustion. See J.B., 721 F.3d at 594-95. Although the administrative process may not address all claims, this court has held exhaustion is not futile because it would allow "the agency to develop the record for judicial review and apply its expertise" to the plaintiff's "claims to the extent those claims are related to implementation" of the IEP. Id.

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B.

McCauley contends the administrative process cannot provide adequate relief, compensatory and punitive damages. As discussed, this argument is without merit. See J.B., 721 F.3d at 595 ("[T]he IDEA's exhaustion requirement remains the general rule, regardless of whether the administrative process offers the particular type of relief that is being sought.").

The district court properly dismissed the complaint for failure to exhaust administrative remedies.

* * * *

The judgment is affirmed.

End of Document

850 F.3d 944, *951; 2017 U.S. App. LEXIS 3991, **13

151

K.G. v. Sergeant Bluff-Luton Cmty. Sch. Dist.

United States District Court for the Northern District of Iowa, Western Division

March 23, 2017, Decided; March 23, 2017, Filed

No. C 15-4242-MWB


K.G., a minor, by and through his parents and next friends, SUZANNE GOSCH and KEVIN GOSCH, Plaintiffs, vs. SERGEANT BLUFF-LUTON COMMUNITY SCHOOL DISTRICT, MIRANDA RIEDIGER, KELLY ADAMS, and DOES 1-30, Defendants.

Subsequent History: Motion denied by K.G. v. Sergeant Bluff-Luton Cmty. Sch. Dist., 2017 U.S. Dist. LEXIS 195626 (N.D. Iowa, Nov. 29, 2017)

Counsel: [**1] For Suzanne Gosch, Parent and Next Friend of K.G., a minor, Kevin Gosch, Parent and Next Friend of K.G., a minor, Plaintiffs: David A O'Brien, LEAD ATTORNEY, Dave O'Brien Law, Cedar Rapids, IA; Peter Wayne Alfert, LEAD ATTORNEY, PRO HAC VICE, LAW OFFICES OF PETER ALFERT, Walnut Creek, CA; Todd A Boley, LEAD ATTORNEY, PRO HAC VICE, Law Offices of Todd Boley, Alameda, CA.

For Sergeant Bluff-Luton Community School District, Miranda Riediger, Kelly Adams, Defendants: Douglas L Phillips, Klass Law Firm, L.L.P., Sioux City, IA.

Judges: MARK W. BENNETT, UNITED STATES DISTRICT JUDGE.

Opinion by: MARK W. BENNETT

Opinion

[*908] OPINION AND ORDER REGARDING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

TABLE OF CONTENTS

Go to table1

[*909]

Go to table2

This litigation arises from an incident in which a special education teacher allegedly "dragged" a seven-year-old autistic child across a classroom floor causing him serious carpet burns. The parties dispute not only the reasonableness of the teacher's conduct in the circumstances, but whether the parents' claims on the child's behalf are merely repackaged versions of unexhausted claims under the Individuals with Disabilities Education Act (IDEA) or viable claims of violations of the Fourth and Fourteenth Amendments to the United States Constitution, Title II of the Americans with Disabilities Act (ADA), § 504 of the Rehabilitation Act, and state common-law. Thus, one of the key issues is the proper application of the United States Supreme Court's recent clarification, in Fry v. Napoleon Community Schools, 137 S. Ct. 743, 197 L. Ed. 2d 46, 2017 WL 685533 (S. Ct. 2017), of the test to determine when ostensibly non-IDEA claims require exhaustion of administrative remedies under the IDEA.

I. INTRODUCTION

A. Factual Background

This statement of the factual background does [**3]

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not necessarily set out all the parties' factual allegations in support of and resistance to the defendants' Motion For Summary Judgment. Rather, it focuses on the key facts to put the parties' disputes in context. To that end, I have also supplemented this factual statement with some facts drawn from the Complaint and Answer, where I deemed it appropriate to do so. Unless otherwise indicated, the following facts are undisputed.

1. The parties

Plaintiffs Kevin and Suzie Gosch were married in 1999 and have three children: Lexie (age 17), Ella (a fourth-grader), and KG (born November 5, 2006). KG was placed with Kevin and Suzie Gosch as foster parents to adopt. KG had health issues from birth and, as he progressed into a toddler, he showed signs of autism. Ella and KG were in the same classroom in Mapleton, Iowa, for pre-school and kindergarten. At some point, the Gosches moved to Sergeant Bluff, Iowa, to take advantage of available services. Ella and KG were in the same classroom, again, for the first semester of first grade in Sergeant Bluff.

[*910] The defendants are the Sergeant Bluff-Luton Community School District (the District), Miranda Riediger, who was a special education teacher at the [**4] District's Primary School during the 2013-2014 school year, and Kelly Adams, who was the Principal at the District's Primary School during the 2013-2014 school year. The parties agree that Riediger has special training and certification to teach special education classes, but the Gosches deny that she had all necessary training. Specifically, the Gosches point out that Riediger did not have "Mandt training" relating to handling of problem behaviors until after the incident giving rise to their claims.

2. KG's education and behavioral plans at school

The Gosches contend that KG had few problems in school in Mapleton, although they admit that there were times when he would just lay down on the floor and cry. The Gosches also allege that, prior to

moving to Sergeant Bluff, no one at home or at school had ever held KG down or forced him to move when he was displaying behavioral problems. The defendants admit only that this is the Gosches' testimony. The Gosches contend that, at the Sergeant Bluff Primary School, KG liked his first semester teacher and classroom, but hated being pulled out for the last ten minutes of the day to go to the special education room with defendant Riediger, because [**5] he said that she was "mean" to him. The defendants deny this allegation. The Gosches contend that there were three instances, prior to the incident giving rise to their claims, during which a paraprofessional, a school resource officer, and Principal Adams, respectively, had allegedly grabbed, dragged, or held down KG, but the defendants dispute the facts concerning these incidents.

KG had an Individualized Education Plan (IEP) in place concerning special education services. He also had a Functional Behavior Assessment (FBA), which identified behaviors of concern, including crying, hitting, kicking, and screaming. KG also had a Behavior Intervention Plan (BIP) after he began to act out in the Sergeant Bluff school, but the defendants deny the Gosches' contention that the BIP was put in place as a result of KG acting out because he did not like going to Riediger's room. The first BIP was put in place in the middle of the first semester of KG's first year at Sergeant Bluff, on October 21, 2013, and was written by Riediger. The BIP stated, in part, that the "special education teacher/general education teacher/paraeducator" will be responsible to implement the BIP's "Safety Plan." The "Safety [**6] Plan" stated, in part, that, when KG's behaviors escalated, ". . . students will be removed and furniture will be repositioned to keep [KG] and others safe."

3. The incident

The incident giving rise to the Gosches' claims occurred on January 30, 2014, when KG was in the second semester of first grade. Three adults were present in the classroom at the time: Riediger and


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paraprofessionals Sandra Vondrak and Luann Johnson. When it was time for KG to switch from drawing to writing sentences, KG did not want to, so he got down on the floor. Riediger first tried a technique called the "Incredible Five Point Scale," where she told KG that he was at a "3" and asked him what he could do to get back to a "1." KG did not respond, so Riediger got down to his level and tried to talk to him. Again, KG did not respond, so Riediger tried to use his "first/then" cards, explaining that if he did his writing first, then he could move to a preferred activity. That also did not work. The Gosches contend that KG's behavior, consisting of flailing around and whining, was consistent the whole time he was on the floor. The defendants agree that KG was flailing and whining, [*911] but contend that KG's behavior then [**7] "escalated." The parties agree that, at some point, KG was also kicking.

Riediger stepped away from KG in the hope that he would begin to "de-escalate" on his own, but he did not. Vondrak, and at some point Riediger, stood between KG and other students to keep KG from potentially making physical contact with any of them. The parties dispute at what point the other children should have been removed from the classroom, but do not dispute that they never were removed during this incident. KG's shirt rode up more than once during the incident, and Riediger pulled it back down, although the parties dispute whether she did so to cover his body or to keep him safe. At some point, Riediger also tried to return to the "Incredible Five Point Scale" to try to de-escalate KG's behavior, but, again, without success. The parties dispute precisely how much KG moved from his original location on the floor, but apparently agree that any movement was gradual. They also dispute how close KG was getting to the teacher's heavy desk, but do no dispute that Riediger did not believe that she could move the desk out of the way. The incident continued in this manner for ten minutes.

Riediger says that she became [**8] concerned that KG was moving closer to the heavy desk, so she stepped behind him and tried to slide her arms under

his armpits, hoping to walk him into an open area of the classroom (or to an area sometimes described as a "chill out zone"). KG responded by throwing his head back, flailing his arms and continuing to kick. Riediger then went around KG and grabbed his legs, planning to move him to an open area. The defendants contend that Riediger took no more than two steps backward, moving KG approximately four feet, but the Gosches contend that, based on Riediger's height, Riediger "dragged" KG for a distance that could have been more than four feet. The parties agree that KG yelled something like, "ow, my back," and Riediger stopped moving him. KG had not complained about his back or any pain prior to that time.

KG was taken to the school nurse. Eventually, school officials were able to contact Kevin Gosch, and he picked up KG from school.1

4. The aftermath

The Gosches took photographs of KG's back at home, either the evening after the incident or the next morning. Medical professionals at Mercy Medical Center examined KG the day after the incident. One medical professional opined,

[T]hese injuries [**9] are consistent with inflicted forceful dragging [and] are consistent with partial thickness skin burns from excessive force in dragging the child on a carpeted surface. It would be my opinion that these injuries are significant and indicative of inflicted injuries beyond what is considered normal care and discipline of a 7-year-old child.

The defendants do not dispute that this is what the

1 Based on the Complaint and Answer, the parties dispute what attempts were made to contact KG's parents, and what occurred when Kevin Gosch got to the school, including what statements were made by Riediger and Adams. The parties did not address these matters in their respective statements of material facts, however. I have included in the body only the additional facts, drawn from the Complaint and Answer, that the parties agree that Kevin Gosch was contacted and picked KG up from school after KG had been taken to the school nurse, to complete the context of the incident.


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medical opinion states, but dispute that any injury was "inflicted" on KG.

Principal Adams agreed with the statement that KG was a "pretty high functional autistic kid" when he started with the District. Although the defendants admit [*912] that their own expert has stated that KG's misbehaviors increased in intensity, duration, and frequency after the incident, the defendants dispute that the incident was the cause of these changes. The defendants also deny that the incident was the cause of KG's behavioral changes described by his family members, including being depressed, withdrawn, fearful, angry, violent, and flinching when they mention school. The Gosches have offered expert opinions that KG now suffers from Post-Traumatic Stress Disorder (PTSD) and other psychological and behavioral issues as a result [**10] of the incident.

The Gosches have enrolled KG in a different school district.

B. Procedural Background

1. Administrative proceedings

The defendants described the administrative proceedings in their statement of material facts, but the Gosches contend that it is improper to include the findings from the administrative proceedings as part of the factual background on claims being litigated in court. As will become clear, in the legal analysis to follow, the fact of the administrative proceedings and the nature of the claims asserted therein are of some relevance to the defendants' argument that the Gosches failed to exhaust administrative remedies as to their claims.

On or about February 17, 2014, Gosches filed an administrative complaint with the Iowa Department of Education, (IDOE), in which they alleged that the District had violated the requirements of Part B of the federal IDEA with respect to the January 30, 2014, incident involving KG. In their administrative

complaint, the Gosches alleged the following:

1. [O]n January 30, 2014, K.G.'s special education teacher drug K.G. by his feet across the carpeted classroom floor to stop him from possible [sic] causing injury to another student[;] [**11] 2. K.G.'s special education teacher did not follow K.G.'s Behavior Intervention Plan ("BIP") in regard to removing other students from the classroom as outlined in the Safety Plan section of his BIP[;] and3. [S]chool officials failed to contact either parent or an emergency contact following the incident.

Defendants' Appendix at 43 (Decision, State Complaint 14-04, p. 2). The Gosches also alleged that KG "was thereby denied a free appropriate public education ('FAPE')[,]" and they claimed that their son's procedural safeguards were violated. The IDOE denied their administrative complaint on July 7, 2014. Neither party sought judicial review.

2. Judicial proceedings

a. The pleadings

On December 1, 2015, the Gosches filed their Complaint in these proceedings, asserting six claims arising from the incident on January 30, 2014. Those claims are the following: (1) a claim for excessive use of force in violation of the Fourth and Fourteenth Amendments to the United States Constitution, pursuant to 42 U.S.C. § 1983, against Riediger and Adams; (2) a claim for discrimination in violation of Title II of the ADA, 42 U.S.C. § 12131, against the District; (3) a claim for violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, against the District; (4) an Iowa common-law claim of "general negligence" against [**12] Riediger, Adams, and the District; (5) an Iowa common-law claim for the intentional tort of battery against Riediger; and (6) an Iowa common-law claim for intentional infliction of severe emotional distress against Riediger, Adams, and the District. The defendants jointly filed an Answer on December 23, 2015, denying the Gosches'


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claims and asserting affirmative defenses, including failure to exhaust [*913] administrative remedies, immunity of the individual defendants to suit, and immunity of the District to the plaintiffs' common-law claims.

This matter is currently set for trial to begin on May 30, 2017.

b. Subsequent proceedings

The defendants filed a Motion For Summary Judgment on December 23, 2016, and a Corrected Motion For Summary Judgment on January 20, 2017. The defendants identified the grounds for their motion, at least generally, as the Gosches' failure to exhaust remedies available under the IDEA; the lack of factual support for a claim of excessive force; the qualified immunity of the individual defendants; the Gosches' failure to demonstrate the denial of any benefit based on disability as required on the disability claims; and the insufficiency of the Gosches' common-law tort [**13] claims for various reasons. The Gosches filed their Resistance on February 10, 2017, and the defendants filed a Reply on February 17, 2017.

II. LEGAL ANALYSIS

The defendants' Motion For Summary Judgment addresses all of the Gosches' claims. I will address the claims, in turn. First, however, I will summarize the standards for summary judgment, then consider the defendants' over-arching contention that the Gosches failed to exhaust their administrative claims pursuant to the IDEA, so that they cannot now pursue any of those claims in court.

A. Standards For Summary Judgment

Summary judgment is only appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material

fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c) (emphasis added); see Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) ("Summary judgment is appropriate if viewing the record in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law."); see generally Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Thus, "[t]he movant 'bears the initial responsibility of informing the district court [**14] of the basis for its motion,' and must identify 'those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact.'" Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Celotex, 477 U.S. at 323). In response, "[t]he nonmovant 'must do more than simply show that there is some metaphysical doubt as to the material facts,' and must come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)).

When the parties have met their burdens, the district judge's task is as follows:

"On a motion for summary judgment, 'facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.'" Ricci v. DeStefano, 557 U.S. 557, 129 S. Ct. 2658, 2677, 174 L. Ed. 2d 490 (2009) quoting Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (internal quotations omitted). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, [*914] 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) .... "'Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no


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genuine issue for trial.'" Ricci, 129 S. Ct. at 2677, quoting Matsushita, 475 U.S. at 587, 106 S. Ct. 1348.

Torgerson, 643 F.3d at 1042-43.

"Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Ryan v. Capital Contractors, Inc., 679 F.3d 772, 776 (8th Cir. 2012). However, summary [**15] judgment is particularly appropriate when only questions of law are involved, rather than factual issues that may or may not be subject to genuine dispute. See, e.g., Cremona v. R.S. Bacon Veneer Co., 433 F.3d 617, 620 (8th Cir. 2006).

With these standards in mind, I turn to the issues raised in the defendants' Motion For Summary Judgment.

B. Failure To Exhaust Claims

The defendants' first contention is that the Gosches cannot pursue their claims, because they did not exhaust administrative remedies under the IDEA. The Gosches disagree.

1. Arguments of the parties

The defendants argue that the Gosches' ostensibly non-IDEA claims seek the functional equivalent of remedies that were available to them under the IDEA. The defendants contend that, this being so, the Gosches were required to exhaust administrative remedies on those claims pursuant to 20 U.S.C. § 1415(l). Because the Gosches did not do so, the defendants contend, they cannot now pursue judicial remedies. The Gosches argue that their non-IDEA claims do not require exhaustion under existing law, but even if they do, they have fulfilled the requirement by submitting a state complaint to the district.

2. Analysis

The parties' briefs on the issue of administrative exhaustion requirements under the IDEA were filed before [**16] the Supreme Court's decision in Fry v. Napoleon Community Schools,137 S. Ct. 743, 197 L. Ed. 2d 46, 2017 WL 685533 (S. Ct. 2017). Therefore, I will not look at authorities superseded—even if not specifically overruled—by Fry, but will focus on the impact of Fry on exhaustion of the Gosches' claims.

In Fry, the Supreme Court clarified the appropriate test for determining when the IDEA's exhaustion requirement applies to claims brought under other laws. The Eighth Circuit Court of Appeals has so far applied Fry only once, without specifically addressing whether it overrules any IDEA exhaustion test previously applied in this Circuit, in J.M. v. Francis Howell Sch. Dist., F.3d , 137 S. Ct. 743, 197 L. Ed. 2d 46, 2017 WL 894460 (8th Cir. 2017). In J.M., the Eighth Circuit Court of Appeals also reached a question that the Supreme Court did not in Fry. Thus, I will examine the test established in Fry, the application of that test by the Eighth Circuit Court of Appeals in J.M., as well as that court's holding on an additional question, and then turn to application of the Fry test in this case.

a. The test established in Fry

In Fry, the Court unanimously agreed on the formulation of the test for when IDEA exhaustion is required. Justice Kagan wrote an opinion joined by five other justices, while Justice Alito filed an opinion concurring in part and concurring in the judgment, in which Justice [**17] Thomas joined.

As Justice Kagan explained,

[*915] The Individuals with Disabilities Education Act (IDEA or Act), 84 Stat. 175, as amended, 20 U. S. C. §1400 et seq., ensures that children with disabilities receive needed special education services. One of its provisions, §1415(l), addresses the Act's relationship with other laws protecting those children. Section


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1415(l) makes clear that nothing in the IDEA 'restrict[s] or limit[s] the rights [or] remedies' that other federal laws, including antidiscrimination statutes, confer on children with disabilities. At the same time, the section states that if a suit brought under such a law 'seek[s] relief that is also available under' the IDEA, the plaintiff must first exhaust the IDEA's administrative procedures.

Fry, 137 S. Ct. 743, 197 L. Ed. 2d 46, 2017 WL 685533 at *3. In Fry, the Court "consider[ed] the scope of that exhaustion requirement," and held "that exhaustion is not necessary when the gravamen of the plaintiff's suit is something other than the denial of the IDEA's core guarantee—what the Act calls a 'free appropriate public education [(FAPE)].' §1412(a)(1)(A)." Id.

In reaching this conclusion, Justice Kagan began with the language of the "exhaustion" provision of the IDEA, which states, as follows:

Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available [**18] under the Constitution, the [ADA], title V of the Rehabilitation Act [including §504], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under [the IDEA], the [IDEA's administrative procedures] shall be exhausted to the same extent as would be required had the action been brought under [the IDEA].

20 U.S.C. § 1415(l) (emphasis added). Justice Kagan explained,

The first half of § 1415(l) (up until 'except that') 'reaffirm[s] the viability' of federal statutes like the ADA or Rehabilitation Act 'as separate vehicles,' no less integral than the IDEA, 'for ensuring the rights of handicapped children.' H. R. Rep. No. 99-296, p. 4 (1985); see id., at 6. According to that opening phrase, the IDEA does not prevent a plaintiff from asserting claims

under such laws even if, as in Smith [v. Robinson, 468 U. S. 992, 104 S. Ct. 3457, 82 L. Ed. 2d 746 (1984),] itself, those claims allege the denial of an appropriate public education (much as an IDEA claim would). But the second half of §1415(l) (from 'except that' onward) imposes a limit on that 'anything goes' regime, in the form of an exhaustion provision. According to that closing phrase, a plaintiff bringing suit under the ADA, the [**19] Rehabilitation Act, or similar laws must in certain circumstances—that is, when 'seeking relief that is also available under' the IDEA—first exhaust the IDEA's administrative procedures.

Fry, 137 S. Ct. 743, 197 L. Ed. 2d 46, 2017 WL 685533 at *6. As in Fry, "[t]he reach of that requirement is the issue in this case." Id.

In Fry, a child with a severe form of cerebral palsy that significantly limited her motor skills was denied permission to bring her trained service dog, Wonder, with her into her kindergarten classroom, on the ground that her needs were being met through services, including human assistants, to which the school had already agreed. As a result, the child's parents removed her from the school and began homeschooling her. 137 S. Ct. 743, 197 L. Ed. 2d 46 at *6-*7. The Frys filed an administrative complaint with the U.S. Department of Education's Office for Civil Rights (OCR) charging that the school's exclusion [*916] of the service animal violated the child's rights under Title II of the ADA and § 504 of the Rehabilitation Act. 137 S. Ct. 743, 197 L. Ed. 2d 46, [WL] at *7. The OCR agreed, "even if [the school's] use of a human aide satisfied the FAPE standard." Id. In response, the school agreed to let Wonder join the child at school, but the Frys found a different public school, in a different district, for their child to attend, out of fear that the [**20] school administration would "resent" the child and make her return difficult. Id.

Litigation followed:The Frys then filed this suit in federal court against the local and regional school districts in which Ezra Eby [school] is located, along with


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the school's principal (collectively, the school districts). The complaint alleged that the school districts violated Title II of the ADA and §504 of the Rehabilitation Act by 'denying [E. F.] equal access' to Ezra Eby and its programs, 'refus[ing] to reasonably accommodate' E. F.'s use of a service animal, and otherwise 'discriminat[ing] against [E. F.] as a person with disabilities.' According to the complaint, E. F. suffered harm as a result of that discrimination, including 'emotional distress and pain, embarrassment, [and] mental anguish.' In their prayer for relief, the Frys sought a declaration that the school districts had violated Title II and § 504, along with money damages to compensate for E. F.'s injuries.

Fry, 137 S. Ct. 743, 197 L. Ed. 2d 46, 2017 WL 685533 at *7 (citations omitted). After dismissal by the district court for failure to exhaust claims pursuant to the IDEA and affirmance by the Sixth Circuit Court of Appeals, the Supreme Court granted certiorari "to address confusion in the courts of appeals as to the scope of § 1415(l)'s exhaustion [**21] requirement." 137 S. Ct. 743, 197 L. Ed. 2d 46 at *8.

At the outset of her analysis, Justice Kagan summarized the Court's conclusion, as follows:

Section 1415(l) requires that a plaintiff exhaust the IDEA's procedures before filing an action under the ADA, the Rehabilitation Act, or similar laws when (but only when) her suit 'seek[s] relief that is also available' under the IDEA. We first hold that to meet that statutory standard, a suit must seek relief for the denial of a FAPE, because that is the only 'relief' the IDEA makes 'available.' We next conclude that in determining whether a suit indeed 'seeks' relief for such a denial, a court should look to the substance, or gravamen, of the plaintiff's complaint.

Fry, 137 S. Ct. 743, 197 L. Ed. 2d 46, 2017 WL 685533 at *8 (emphasis added; footnote omitted).

As to the first holding, Justice Kagain explained that the Court "agree[d] with the parties' shared view: The only relief that an IDEA officer can give—hence the thing a plaintiff must seek in order to trigger § 1415(l)'s exhaustion rule—is relief for the denial of a FAPE." Id. More specifically, she explained,

For that reason, §1415(l)'s exhaustion rule hinges on whether a lawsuit seeks relief for the denial of a free appropriate public education. If a lawsuit charges such a denial, the plaintiff cannot escape §1415(l) merely by [**22] bringing her suit under a statute other than the IDEA--as when, for example, the plaintiffs in Smith claimed that a school's failure to provide a FAPE also violated the Rehabilitation Act. Rather, that plaintiff must first submit her case to an IDEA hearing officer, experienced in addressing exactly the issues she raises. But if, in a suit brought under a different statute, the remedy sought is not for the denial of a FAPE, then exhaustion of the IDEA's procedures is not required. [*917] After all, the plaintiff could not get any relief from those procedures: A hearing officer, as just explained, would have to send her away empty-handed. And that is true even when the suit arises directly from a school's treatment of a child with a disability—and so could be said to relate in some way to her education. A school's conduct toward such a child—say, some refusal to make an accommodation—might injure her in ways unrelated to a FAPE, which are addressed in statutes other than the IDEA. A complaint seeking redress for those other harms, independent of any FAPE denial, is not subject to §1415(l)'s exhaustion rule because, once again, the only 'relief' the IDEA makes 'available' is relief for the denial of [**23] a FAPE.

Fry, 137 S. Ct. 743, 197 L. Ed. 2d 46, 2017 WL 685533 at *10 (emphasis added).

Justice Kagan noted that an "important question remains: How is a court to tell when a plaintiff 'seeks' relief for the denial of a FAPE and when she does not?" Id. Again, the Court agreed with the parties that "[w]hat matters is the crux—or, in legal-speak, the gravamen—of the plaintiff's complaint, setting aside


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any attempts at artful pleading." Id. "That inquiry makes central the plaintiff's own claims, as § 1415(l) explicitly requires," because it focuses on the statutory language "'seeks' relief available under the IDEA," not a stricter exhaustion requirement based on "'could have sought' relief available under the IDEA." Id. Thus, "[a] court deciding whether §1415(l) applies must . . . examine whether a plaintiff's complaint—the principal instrument by which she describes her case—seeks relief for the denial of an appropriate education." Id. "But that examination should consider substance not surface," because a complaint seeking relief under a statute other than the IDEA would not use the IDEA's distinctive language, such as FAPE or IEP, "[a]nd still more critically, a 'magic words' approach would make § 1415(l)'s exhaustion rule too easy to bypass." This is so, because "Section 1415(l) is [**24] not merely a pleading hurdle. It requires exhaustion when the gravamen of a complaint seeks redress for a school's failure to provide a FAPE, even if not phrased or framed in precisely that way." 137 S. Ct. 743, 197 L. Ed. 2d 46, [WL] at *11. Consequently, "a court should attend to the diverse means and ends of the statutes covering persons with disabilities," including the IDEA, the ADA, and the Rehabilitation Act, where "the IDEA guarantees individually tailored educational services, while Title II and § 504 promise nondiscriminatory access to public institutions." Id.2

2 The Court set out a more detailed discussion of the differences between these three statutes, as follows:

The IDEA, of course, protects only 'children' (well, really, adolescents too) and concerns only their schooling. §1412(a)(1)(A). And as earlier noted, the statute's goal is to provide each child with meaningful access to education by offering individualized instruction and related services appropriate to her 'unique needs.' §1401(29); see [Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v.] Rowley, 458 U. S. [176,] 192, 198, 102 S. Ct. 3034, 73 L. Ed. 2d 690 [(1982)]; supra, at 11. By contrast, Title II of the ADA and §504 of the Rehabilitation Act cover people with disabilities of all ages, and do so both inside and outside schools. And those statutes aim to root out disability-based discrimination, enabling each covered person (sometimes by means of reasonable accommodations) to [**25] participate equally to all others in public facilities and federally funded programs.

Justice Kagan then turned to indications of the "gravamen" of the complaint. First, she observed,

One clue to whether the gravamen of a complaint against a school concerns [*918] the denial of a FAPE, or instead addresses disability-based discrimination, can come from asking a pair of hypothetical questions. First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? And second, could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance? When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject; after all, in those other situations there is no FAPE obligation and yet the same basic suit could go forward. But when the answer is no, then the complaint probably does concern a FAPE, even if it does not explicitly say so; for the FAPE requirement is all that explains why only a child in the school setting (not an adult in that setting or a child in some other) [**26] has a viable claim.


Next, Justice Kagan wrote, "A further sign that the gravamen of a suit is the denial of a FAPE can emerge from the history of the proceedings." 137 S. Ct. 743, 197 L. Ed. 2d 46 at *13. She explained,

In particular, a court may consider that a plaintiff has previously invoked the IDEA's formal procedures to handle the dispute—thus starting to exhaust the Act's remedies before switching midstream. Recall that a parent dissatisfied with her child's education initiates those administrative procedures by filing a complaint, which triggers a preliminary meeting (or possibly mediation) and then a due process hearing. See supra, at 2-3. A plaintiff's initial choice to pursue that process may suggest that she is indeed seeking relief for the

Fry, 137 S. Ct. 743, 197 L. Ed. 2d 46, 2017 WL 685533 at *11.


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denial of a FAPE—with the shift to judicial proceedings prior to full exhaustion reflecting only strategic calculations about how to maximize the prospects of such a remedy. Whether that is so depends on the facts; a court may conclude, for example, that the move to a courtroom came from a late-acquired awareness that the school had fulfilled its FAPE obligation and that the grievance involves something else entirely. But prior pursuit of the IDEA's administrative remedies [**27] will often provide strong evidence that the substance of a plaintiff's claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term.


The Court concluded that the decisions below had not undertaken the analysis set forth in its opinion and that the Court lacked some important information. Consequently, the Court remanded that issue to the court below. Id.

In a concurring opinion, joined by Justice Thomas, Justice Alito concurred in all but the two "clues" that Justice Kagan offered to assist the lower courts, because, in his view, those clues "may have the opposite effect" and be "likely to confuse and lead courts astray." His concern with the two hypothetical questions posed by Justice Kagan was that they "make sense only if there is no overlap between the relief available under the following two sets of claims," that is, IDEA claims on the one hand, and claims under other federal laws, on the other. 137 S. Ct. 743, 197 L. Ed. 2d 46, [WL] at *15 (Alito, J., concurring). He described the second clue, suggesting that the lower courts take into account whether parents began then abandoned IDEA procedures, as a "false" one, for the following reasons:

This clue also seems to me to be ill-advised. [**28] It is easy to imagine circumstances [*919] under which parents might start down the IDEA road and then change course and file an action under the ADA or the Rehabilitation Act that seeks relief that the

IDEA cannot provide. The parents might be advised by their attorney that the relief they were seeking under the IDEA is not available under that law but is available under another. Or the parents might change their minds about the relief that they want, give up on the relief that the IDEA can provide, and turn to another statute.

Fry, 137 S. Ct. 743, 197 L. Ed. 2d 46, 2017 WL 685533 at *15 (Alito, J., concurring).

While the concurring justices were concerned that the "clues" offered by Justice Kagan may be confusing or misleading, my concern is that courts (and parties) will improperly view them as bright line tests, rather than "clues." As a consequence, they may not undertake a careful examination of the "substance not surface" of a plaintiff's claims to reach the "gravamen" of those claims, see 137 S. Ct. 743, 197 L. Ed. 2d 46, [WL] at *11 (opinion by Kagan, J.), and may not make a careful review of the facts to determine whether commencement then abandonment of IDEA proceedings was a strategic move or was motivated by recognition that their grievance involves something other than denial of [**29] a FAPE, 137 S. Ct. 743, 197 L. Ed. 2d 46 at *13.

b. The Circuit's application of Fry

As mentioned, above, the Eighth Circuit Court of Appeals has addressed Fry only once, so far, in J.M. v. Francis Howell Sch. Dist., No. 16-1756, 850 F.3d 944, 2017 U.S. App. LEXIS 3991, 2017 WL 894460 (8th Cir. March 7, 2017). In J.M., a parent alleged that, between January 2012 and September 2014, her disabled child was repeatedly placed in physical restraints and isolation without her knowledge. 2017 U.S. App. LEXIS 3991, [WL] at *1. She brought suit in federal court, originally asserting claims under 42 U.S.C. §§ 1983 and 1988, and state common-law, as well as the IDEA; then amended her complaint to add claims under the ADA and the Missouri Human Rights Act (MHRA); then amended, again, to remove the IDEA and common-law tort claims; and, ultimately, asserted "claims under the Equal


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Protection Clause, 42 U.S.C. §§ 1983 and 1988, the ADA, Section 504 of the Rehabilitation Act of 1973, and the MHRA." Id. Applying the standard in Fry, the Eighth Circuit Court of Appeals concluded that the district court had not erred in finding that the plaintiff's complaint sought relief for denial of a FAPE under the IDEA. 2017 U.S. App. LEXIS 3991, [WL] at *3.

The court explained,

The second amended complaint states, "At all times mentioned above, [J.M.] was entitled to the educational services and protections available under the Individuals with Disabilities Education Act of 1975" and "at all times [J.M. was] entitled to reasonable accommodations" [**30] for his disabilities. It alleges that "[b]etween February 2014 and September 5, 2014, J.M. was placed in physical restraints for half of the time he actually spent at Defendant's schools." It further states that J.M. was "denied ... because of his disability, participation in and the benefits of a public education." These allegations show that the complaint was based on the "denial of a FAPE" under the IDEA. See [Fry, 137 S. Ct. 743, 197 L. Ed. 2d 46, 2017 WL 685533] at *13 (determining the Fry's complaint "alleges only disability-based discrimination" and "contains no allegation ... accus[ing] the school even in general terms of refusing to provide the educational instruction and services that E.F. needs").

"As defined in the Act, a FAPE comprises 'special education and related services'—both 'instruction' tailored to meet a child's 'unique needs' and sufficient 'supportive services' to permit the [*920] child to benefit from that instruction." 137 S. Ct. 743, 197 L. Ed. 2d 46, [WL] at *4, citing 20 U.S.C. §§ 1401(9), (26), (29). The ADA and Section 504, on the other hand, forbid public entities and federally funded programs or activities from discriminating based on disability. 137 S. Ct. 743, 197 L. Ed. 2d 46, [WL] at *5. The complaint here is not based on disability discrimination. Except for Count IV (the MHRA claim), the complaint does not use

the word "discrimination." Rather, the complaint is based [**31] on how the use of isolation and physical restraints failed to provide proper "sufficient 'supportive services' to permit [J.M.] to benefit from ... instruction," 137 S. Ct. 743, 197 L. Ed. 2d 46, [WL] at *4, and ultimately "denied [J.M.] ... the benefits of public education." Finally, although [the plaintiff] did not "invoke[ ] the IDEA's formal procedures to handle the dispute," "the history of the proceedings," including her initial complaint and first amended complaint contained claims under the IDEA, which is "[a] further sign that the gravamen of [the] suit is the denial of a FAPE." See 137 S. Ct. 743, 197 L. Ed. 2d 46, [WL] at *13.

J.M., 2017 U.S. App. LEXIS 3991, 2017 WL 894460 at *3. The court also noted that the plaintiff had voluntarily removed common-law tort claims, as the foundation for non-educational injuries, and that the child's IEP was not used solely to show notice to the school of the conditions that put the child at risk, but as a central dispute of the litigation, in part because the plaintiff alleged that the defendants repeatedly violated the child's rights by utilizing isolation and restraint on the child, which were not permitted within his IEP. 2017 U.S. App. LEXIS 3991, [WL] at *4. In other words, "[t]he claims [in J.M.] [we]re based on the failure to implement J.M.'s IEP, specifically regarding discipline." Id.

An issue that the Supreme Court [**32] did not address in Fry, because it concluded that it was not necessary to resolve it at that time, was the following: "Is exhaustion required when the plaintiff complains of the denial of a FAPE, but the specific remedy she requests—here, money damages for emotional distress—is not one that an IDEA hearing officer may award?" Fry, 137 S. Ct. 743, 197 L. Ed. 2d 46, 2017 WL 685533 at *8 n.4. As to that issue, the Eighth Circuit Court of Appeals observed, in J.M., that "this court has noted that 'the IDEA's exhaustion requirement remains the general rule, regardless of whether the administrative process offers the particular type of relief that is being sought.'" J.M., 2017 U.S. App. LEXIS 3991, 2017 WL


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894460 at *4 (quoting J.B. ex rel. Bailey v. Avilla R-XIII School Dist., 721 F.3d 588, 592 (8th Cir. 2013), and citing decisions of other circuit courts of appeals so holding). Thus, the parent's "voluntary decision to remove J.M. from school, and seek only compensatory and punitive damages rather than compensatory education services, d[id] not exempt her from the exhaustion requirement." Id.

c. Application of Fry here

Although the Fry test is not a "magic words" test, 137 S. Ct. 743, 197 L. Ed. 2d 46, 2017 WL 685533 at *11, in determining the "gravamen" of the Gosches' Complaint, it is helpful to see what references to the IDEA are found in the Complaint. See J.M., 2017 U.S. App. LEXIS 3991, 2017 WL 894460 at *3 (surveying the allegations in the complaint to determine the gravamen of the claims). [**33] The Gosches' Complaint does allege that KG was "a special education student," Complaint at ¶ 7; indeed, it alleges that, "[a]s a result of his disability, K.G. was made eligible for special education services and supports pursuant to the Individual with Disabilities Education Act ('IDEA'), 20 U.S.C. §§ 1401 et seq.," id. at ¶ 14. It also alleges Riediger was "a special education teacher," whose responsibilities included "providing the structure and consistency [*921] that would enable a child with emotional, cognitive and developmental disabilities such as K.G. to access an appropriate education and progress academically as well as emotionally and behaviorally," id. at ¶ 9, and that Adams was "responsible for the hiring, training and supervision of school staff and ensuring that all students attending Primary School were afforded equal access to a public education," id. at 10. Thus, the Complaint identifies the parties in terms of needing or supplying "special education services" and having a duty to ensure "equal access to a public education." Nevertheless, unlike the references to the IDEA in J.M., these are not allegations about the "'denial of a FAPE'" under the IDEA or allegations that are a "central dispute of this litigation," [**34] but allegations "show[ing] notice to the [defendants] of the conditions that put [KG] at risk." J.M., 2017

U.S. App. LEXIS 3991, 2017 WL 894460 at *4.

Furthermore, of the 29 paragraphs of general factual allegations in the Complaint, only one paragraph relates to alleged violation of KG's IEP or BIP under the IDEA. Even that paragraph is just one of three in the general factual allegations alleging the way in which conduct by Riediger was "wrongful," as follows:

33. Defendant RIEDIGER lacked any legitimate or lawful basis or cause to engage in the type of physical force she used against K.G. on the morning of January 30, 2014.34. At all relevant times herein, K.G. never engaged in behavior that rose to the level of an emergency or a serious or probable or imminent threat of harm to himself or to others that would justify Defendant RIEDIGER's actions in grabbing and dragging him across the classroom floor. In fact, Defendant RIEDIGER later admitted to police that K.G. did not make contact with her or with any students in the classroom prior to her use of physical force against him.

35. Moreover, Defendant RIEDIGER's actions were in violation of K.G.'s IEP, which did not provide for or anticipate the use of physical force such as that used against [**35] him on the morning of January 30, 2014. K.G.'s IEP contains a Behavior Implementation Plan ("BIP") which outlines the appropriate steps a special education teacher or paraprofessional should take when confronted with behaviors of concern. In particular, the BIP provides that in regards to "[a]ctions needed to ensure safety and the de-escalation of student behaviors in emergency situations", if K.G. is in a classroom, then "the other students will be removed."

Complaint at ¶¶ 33-35. Thus, the "gravamen" of the wrongfulness of Riediger's conduct in the Complaint's general factual allegations is not that it violated the IDEA, but that it involved unlawful and unreasonable use of physical force against KG. The allegation that the use of force was contrary to the IEP and BIP is made as an indication of the


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unreasonableness of the use of force, not as the gravamen of the wrongfulness of the conduct.

Moreover, violation of the IEP and BIP are not the central allegations of wrongfulness of the conduct in any of the six claims for relief in the Complaint. Rather, in the First Claim For Relief, the § 1983 claim, the allegations of wrongful conduct by Riediger are that she "violated K.G.'s rights under the Fourth Amendment and [**36] Fourteenth Amendment by using unjustified and unreasonable force against him." Id. at ¶ 46; see also id. at ¶ 48 (alleging that Riediger's conduct in "seizing and dragging K.G. unlawfully subjected him to excessive, unreasonable, and unnecessary physical force"). Although paragraph 47 alleges that Riediger's conduct "was objectively unreasonable under the circumstances and in light the educational objectives K.G. was trying to achieve," [*922] (emphasis added) that allegation, again, is to show the "unreasonableness" of Riediger's conduct, not the "gravamen" of her wrongful conduct, which is the use of "unjustified and unreasonable force" against KG. Id. at ¶¶ 46, 48. Likewise, in the § 1983 claim, the allegation of the wrongfulness of Adams's conduct is not that it violated KG's IEP or BIP, but that it involved "deliberate indifference to the risk of harm to KG" from inadequate training and supervision of faculty and staff "in the use of force and restraint when seizing special education students with disabilities." Id. at ¶ 49.

The same is true of the other federal claims in the Second and Third Claims For Relief, alleging violations of the ADA and the Rehabilitation Act, respectively. The "gravamen" of the ADA claim [**37] is discrimination and creation of a hostile educational environment toward KG because of his disabilities. See id. at ¶ 56 ("SBLCSD has failed in its responsibilities under Title II to provide its services, programs and activities in a full and equal manner to disabled persons as described hereinabove, including failing to ensure that educational services are provided on an equal basis to children with disabilities and free of hostility toward their disability." (Emphasis added)); id. at ¶ 57 ("SBLCSD has further failed in its responsibilities

under Title II to provide its services, programs and activities in a full and equal manner to disabled persons as described hereinabove by subjecting Plaintiff K.G. to a hostile educational environment." (Emphasis added)). The "gravamen" of the Gosches' Rehabilitation Act claim is also denial of equal access to services and creation of a hostile educational environment toward KG because of his disability. See id. at ¶ 62 ("By its actions or inactions in denying equal access to educational services and by subjecting Plaintiff K.G. to a hostile educational environment, defendant has violated Plaintiff's rights under § 504 of the Rehabilitation Act of [**38] 1973, 29 U.S.C. § 794, and the regulations promulgated thereunder.").

Turning to the common-law claims, the "gravamen" of the negligence claim in the Gosches' Fourth Claim For Relief is violation of a duty of care by "subjecting him to unwarranted and unnecessary physical force in disciplining him and/or seeking his compliance," see id. at ¶ 63, which is well beyond the scope of a FAPE. Even the specifications of negligence, while in the school context, are allegations of negligent supervision, investigation, failure to keep KG safe, failure to act reasonably, and inflicting harm, all allegations unrelated to or beyond the scope of a FAPE. See id. at ¶ 64. Finally, the common-law claims of battery and intentional infliction of emotional distress are based on allegations of threats of violence and physical injury and the outrageousness of such conduct, irrespective of any requirement of a FAPE, KG's IEP, or KG's BIP. See id. at ¶¶ 67-68 (battery claim based on allegations "Defendant RIEDIGER intentionally and unlawfully threatened, had the then present ability to do violence toward Plaintiff K.G., and caused physical injury to Plaintiff K.G." and "Defendant RIEDIGER placed Plaintiff K.G. in reasonable [**39] and serious apprehension of harmful and offensive contact, and did, in fact, intentionally cause physical pain and injury to Plaintiff K.G."); id. at ¶¶ 71-72 (intentional infliction of emotional distress based on allegations "The Defendants conduct was reckless and/or outrageous and in wanton disregard of the rights and safety of Plaintiff K.G." and "The Defendants acted intentionally and/or with reckless disregard of the


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probability of causing emotional distress.").

The conclusion that the "gravamen" of the Gosches' claims is not relief for denial of a FAPE is bolstered by reference to the first of the "clues" identified by Justice [*923] Kagan in Fry. 137 S. Ct. 743, 197 L. Ed. 2d 46, 2017 WL 685533 at *12. Plainly, the plaintiff could have brought essentially the same claims for excessive and unreasonable use of force and discrimination, if the alleged conduct had occurred at a different public facility. Id. Just as plainly, an adult at the school, such as an employee or visitor, could have pressed essentially the same grievances. Id. In these circumstances, it is highly unlikely that the Gosches' complaint is truly about denial of a FAPE. Id.

Indeed, the only suggestion, here, that this case has anything at all to do with the IDEA is that, in the [**40] history of the proceedings, the Gosches initially chose to pursue the administrative process under the IDEA, and did allege violation of KG's IEP and BIP, but then abandoned those proceedings. 137 S. Ct. 743, 197 L. Ed. 2d 46, [WL] at *13. There is nothing strange about parents of a child who has an IEP in place to protect his or her right to a FAPE turning, first, to administrative proceedings to secure a FAPE or otherwise to address wrongdoing of a special education provider, as both a familiar and readily-available forum that might provide them with the most immediate relief. As the majority and concurring justices in Fry all suggested, there is nothing unusual about parents of a child with an IEP initially asserting an administrative claim under the IDEA, only later to discover, when they have had the opportunity to consult with counsel, that either the IDEA does not provide the appropriate relief or that their claim is not about a violation of the IDEA at all. Thus, with the Fry majority's caution to consider the facts to determine whether abandonment of the administrative proceedings was strategic or because of a realization that the grievance had to do with something other than a FAPE, see id., and the concurring justices' [**41] caution that other federal laws provide relief that the IDEA could not, Fry, 137 S. Ct. 743, 197 L. Ed. 2d 46, 2017 WL 685533 at *15

(Alito, J., concurring), I do not find that the Gosches' decision to pursue claims under other laws and procedures was merely strategic. Rather, in light of their allegations, they are now pursuing claims that address the "gravamen" of the wrongful conduct at issue and the appropriate relief. This is not simply a case in which the Gosches seek remedies that are not available under the IDEA, in which case exhaustion would still be required, see J.M., 2017 U.S. App. LEXIS 3991, 2017 WL 894460 at *4, but one in which the wrongs and the remedies are both beyond the scope of the denial of a FAPE under the IDEA.

The defendants are not entitled to summary judgment on the ground that the Gosches failed to exhaust administrative remedies under the IDEA.

C. The § 1983 Claims

The defendants argue that, even if exhaustion was not required, they are entitled to summary judgment on the Gosches' § 1983 claim. The Gosches disagree.

1. Arguments of the parties

The defendants contend that it appears that the Eighth Circuit Court of Appeals follows the approach of other circuits by measuring claims of excessive force by public school officials against the Fourteenth Amendment substantive due process "shocks the conscience" [**42] standard, not against the Fourth Amendment "reasonableness" standard. They assert that there was nothing "shocking" or "irrational" about Riediger's response to KG's conduct, because Riediger reasonably believed that KG was in a position to hurt himself or one of his fellow students, she made a "split second decision" to move him out of harm's way, she took reasonable action to do so, and she stopped immediately when KG complained of pain. They argue that there is no evidence that Riediger was angry or took any action maliciously, sadistically, or [*924] for the purpose of causing harm, nor evidence of bad faith or ill will toward KG. Thus, they contend that the Fourteenth Amendment excessive force claim fails as a matter of


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law.

In response, the Gosches argue that they have asserted both Fourth Amendment and Fourteenth Amendment claims, but the defendants have sought summary judgment only on the Fourteenth Amendment claim. More specifically, the Gosches argue that a Fourth Amendment claim is viable when an unreasonable seizure has occurred, such as occurred in this case, when Riediger grabbed KG's legs and dragged him toward the "chill out zone." They point to Eighth Circuit precedent analyzing claims against school officials involving the use of restraints and seclusion under the Fourth Amendment "reasonableness" [**43] standard, and claims involving abuse, such as yelling, demeaning, and belittling, or application of force without a seizure, under the "shocks the conscience" standard of the Fourteenth Amendment. Furthermore, the Gosches argue that the "seizure" of KG was clearly unreasonable, where, for example, the defendant's expert has opined that nothing in "Mandt training" would have allowed a teacher to drag a student across a carpeted floor, and their own expert agrees that there is no situation in which such dragging would be appropriate.

The Gosches argue that there are also triable issues as to their Fourteenth Amendment claim, because there was no need for Riediger to apply force in the situation in question, nor, indeed, was there any need to make a "split second decision"; dragging KG was patently unacceptable; KG suffered well-documented physical and psychological injuries as a result of Riediger's use of force and is less resilient to overcome the incident because of his pre-existing autism and other disorders affecting communication; and there is evidence that Riediger acted with malice, in light of a pattern of using force to ensure KG's compliance. In sum, they argue that, when viewed in the light most favorable to them [**44] as the non-moving parties, there is sufficient evidence from which a jury could conclude that the defendants' actions violated KG's substantive due process rights.

2. Analysis

As the Gosches argue, the Eighth Circuit Court of Appeals has recognized both Fourth and Fourteenth Amendment claims arising out of the conduct of school officials in certain circumstances. Specifically,

A litigant may state a Fourth Amendment violation by alleging facts which indicate a seizure occurred and that it was unreasonable. See McCoy v. City of Monticello, 342 F.3d 842, 846 (8th Cir.2003). Moreover, the Fourth Amendment's protections extend to actions by public school officials. See, e.g., Couture v. Bd. of Educ., 535 F.3d 1243, 1250-52 (10th Cir.2008); Shade v. City of Farmington, 309 F.3d 1054, 1059-62 (8th Cir.2002).

C.N. v. Wilmar Pub. Schs., Indep. Sch. Dist. No. 347, 591 F.3d 624, 633 (8th Cir. 2010). In addition, a student can assert a Fourteenth Amendment substantive due process claim based on allegations that a school official's actions "'violated one or more fundamental constitutional rights' and were 'shocking to the contemporary conscience.'" Id. at 634 (quoting Flowers v. City of Minneapolis, 478 F.3d 869, 873 (8th Cir. 2007)). Thus, the defendants' contention that a Fourth Amendment claim is not available in this context is wrong, as a matter of law. As explained, above, the Gosches contend that they have alleged constitutional claims pursuant to both the Fourth and Fourteenth Amendments. I [*925] will analyze whether the Gosches' constitutional claims otherwise overcome the defendants' motion for summary judgment.

a. The Fourth Amendment "seizure" claim

As to a Fourth Amendment "seizure" claim, [**45] the Eighth Circuit Court of Appeals has explained,

Reasonableness is judged in light of the totality of the circumstances, however, McCoy, 342 F.3d at 848, and "[c]ontext is [therefore] critical to reasonableness analysis." Couture, 535 F.3d at 1251. And in a school setting, "[t]he Fourth


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Amendment's reasonableness inquiry ... must account for 'the schools' custodial and tutelary responsibility' over the students entrusted to their care." Shade, 309 F.3d at 1059 (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995)).

C.N., 591 F.3d at 633. The Eighth Circuit Court of Appeals has also explained that a "seizure" within the meaning of the Fourth Amendment involves the willful or intentional application of physical force involving a "restraint" on a person's "freedom of movement." See, e.g., Atkinson v. City of Mt. View, Mo., 709 F.3d 1201, 1208 (8th Cir. 2013); see also C.N., 591 F.3d at 633 (assuming that a child was seized within the meaning of the Fourth Amendment when a teacher placed him in restraints and seclusion).

As the Gosches point out, the defendants' only argument for summary judgment on this claim was that no such claim was recognized in this Circuit, but I concluded, above, that the defendants' argument was wrong as a matter of law. Compare Cremona, 433 F.3d at, 620 (summary judgment is particularly appropriate when only questions of law are involved, rather than factual issues that may or may not be subject to genuine dispute). Thus, the defendants have failed [**46] to carry their responsibility to obtain summary judgment on the basis that there is no genuine factual dispute, because they have not "identif[ied] 'those portions of [the record] . . . which [they] believe[ ] demonstrate the absence of a genuine issue of material fact.'" Torgerson, 643 F.3d at 1042 (quoting Celotex, 477 U.S. at 323).

In contrast, the Gosches have met their burden to generate genuine issues of material fact that Riediger's use of force on KG was a "seizure," within the meaning of the Fourth Amendment. Id. (in response to a motion for summary judgment, "[t]he nonmovant 'must do more than simply show that there is some metaphysical doubt as to the material facts,' and must come forward with 'specific facts showing that there is a genuine issue for trial.'" (quoting Matsushita Elec. Indus. Co. 475 U.S. at 586-87)). They have pointed to evidence that Riediger grabbed KG by his ankles and "dragged" him along

the floor, and that such grabbing and moving was precisely for the purpose of restraining his freedom of movement, whether it was to prevent him from kicking other children or to move him to the "chill out zone." C.N., 591 F.3d at 633 (first element of a Fourth Amendment claim). Thus, there are genuine issues of material fact on the "seizure" element of their Fourth Amendment claim.

The Gosches have also generated genuine issues of material fact on [**47] the "unreasonableness" of that seizure, id. (second element), even recognizing that, "in a school setting, '[t]he Fourth Amendment's reasonableness inquiry . . . must account for "the schools' custodial and tutelary responsibility" over the students entrusted to their care,'" id. (quoting Shade, 309 F.3d at 1059). If I could construe the defendants' Motion to have put at issue the "unreasonableness" or "reasonableness" of Riediger's conduct, within the meaning of the Fourth Amendment, there is still a [*926] jury question on the reasonableness of Riediger's actions. This is so, where the Gosches have pointed to evidence to support this element, including the agreement of the experts that it would be improper to "drag" a child as a form of discipline or control and the opinion of a medical provider that KG's injuries are consistent with "forceful dragging" sufficient to cause "partial thickness skin burns" indicative of infliction of injuries "beyond what is considered normal care and discipline of a 7-year-old child." This evidence is enough to suggest that Riediger's conduct was a "substantial departure" from accepted professional judgment, practice, or standards. Id. at 633. Indeed, the defendants cannot argue, like the defendants in C.N., that Riediger's actions [**48] were authorized by KG's IEP, compare id., because there is no authorization for the use of force to grab KG's ankles to move him to the "chill out zone," or, indeed, any other specific authorization for the use of force as a means to obtain his compliance, to be found in his IEP.

Finally, the Gosches have generated genuine issues of material fact on this claim against Adams, by pointing to evidence that she was deliberately indifferent to the risk of harm to KG from inadequate training and


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supervision of faculty and staff in the use of force and restraint when seizing special education students with disabilities. They have pointed to evidence that Adams had, herself, dragged KG on one occasion and that she failed to ensure that Riediger had had "Mandt training" until after the incident in question here.

The defendants' Motion For Summary Judgment is denied as to the merits of the Gosches' Fourth Amendment claim.

b. The Fourteenth Amendment "substantive due process" claim

The Gosches' Fourteenth Amendment "substantive due process" claim requires them to prove "actions by a government official which 'violated one or more fundamental constitutional rights' and were shocking to the contemporary conscience.'" C.N., 591 F.3d at 634 (stating these as pleading requirements [**49] for such a claim (quoting Flowers v. City of Minneapolis, 478 F.3d 869, 873 (8th Cir. 2007)). As the Eighth Circuit Court of Appeals has explained, this is "a high standard," because

[S]ubstantive due process is concerned with violations of personal rights ... so severe ... so disproportionate to the need presented, and ... so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to brutal and inhumane abuse of official power literally shocking to the conscience.

C.N., 591 F.3d at 634 (quoting Golden v. Anders, 324 F.3d 650, 652-53 (8th Cir. 2003)).

Because the "shocks the conscience" standard under the Fourteenth Amendment is much higher than an "unreasonableness" standard under the Fourth Amendment, whether there are genuine issues of material fact on the Fourteenth Amendment claim is a much closer question. Also, as to the Fourteenth Amendment claim, the defendants have met their initial responsibility to identify evidence that they believe shows that Riediger's response to KG's conduct was not "shocking" or "irrational," because

Riediger reasonably believed that KG was in a position to hurt himself or one of his fellow students, made a "split second decision" to move him out of harm's way, took reasonable action to do so, and stopped immediately when KG complained of pain. In response, however, the Gosches have pointed to evidence, including the experts' opinions [**50] and the medical professional's opinion that dragging a child in a way that [*927] caused carpet burns was inappropriate and disproportionate to any circumstances presented by KG's conduct, and evidence that the incident continued with little escalation for ten minutes, undermining any argument that Riediger's conduct was based on a "split second decision" to move KG out of harm's way or to prevent him from harming others.

Notwithstanding the Gosches' arguments, I cannot find that there is a genuine issue of material fact that Riediger acted with "malice." Id. (the plaintiff must show that the conduct was "inspired by malice or sadism rather than a merely careless or unwise excess of zeal"). Riediger's conduct was "intentional," as required for a Fourth Amendment claim, see Atkinson, 709 F.3d at 1208, but there is no reasonable inference that it was "malicious." The Eighth Circuit Court of Appeals has declined to find any inference of malice, where there was no evidence that the actor disliked or had any animus toward the alleged victim. See Golden, 324 F.3d at 654. Evidence that KG thought Riediger was "mean" is a far cry from evidence that Riediger had any dislike or animus toward KG. Although there may be evidence that Riediger was not the first person [**51] at the school to use force against KG to ensure his compliance, there is no evidence of a "pattern" of such conduct by Riediger that might suggest a negative animus toward KG. I also do not find that a reasonable juror could infer "malice" from the nature and extent of KG's injuries, as suggesting that they were maliciously inflicted, even if the injuries do suggest that Riediger was "merely careless" or acted with an "unwise excess of zeal." C.N., 591 F.3d at 634 (quoting Golden, 324 F.3d at 652-53). Any inference of "malice" is further negated by the undisputed fact that Riediger went through an entire series of techniques to try to de-


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escalate the situation before ever resorting to an attempt to move KG physically, as well as by the undisputed fact that Riediger stopped moving KG at the first indication that her conduct was causing him pain and promptly sought medical attention for KG's injuries.

Therefore, the defendants are entitled to summary judgment on the merits of the Gosches' Fourteenth Amendment claim.

c. Qualified immunity

The defendants argue, in the alternative, that if they are not entitled to summary judgment on the merits of the Gosches' Fourteenth Amendment claim, the individual defendants are entitled to summary judgment on the basis of their qualified [**52] immunity to that claim. The defendants argue that, even if there was a Fourteenth Amendment violation, it is clear that a reasonable person would not have known that Riediger's and Adams's conduct violated KG's constitutional rights.3 They argue that no reasonable person would have believed that Riediger's conduct violated KG's constitutional rights, where Riediger went through the process of using various techniques to try to de-escalate the situation, ultimately acted to protect KG's safety, moved him only a short distance, and quit when he complained of pain. In response, the Gosches argue that it is well-established that students have a right to be free from restraint and mistreatment, so that no reasonable special education teacher would have believed that it is lawful to seize and [*928] then drag a disabled seven-year-old child across the floor by his ankles in a manner that caused serious carpet burns.

As the Eighth Circuit Court of Appeals explained, in

3 Again, the defendants have made this argument only as to the Gosches' Fourteenth Amendment claim, so that they are not entitled to summary judgment in their favor as to qualified immunity on the Gosches' Fourth Amendment claim. Even if the defendants had properly presented the question of qualified immunity as to the Gosches' Fourth Amendment claim, qualified immunity likely would have been denied.

C.N., "Qualified immunity protects individual state actors from liability under § 1983 unless they violate 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" 591 F.3d at 632 (quoting Brockinton v. City of Sherwood, 503 F.3d 667, 671 (8th Cir. 2007)). In C.N., the court reached only the [**53] "violation" prong of the qualified immunity analysis, not the question of whether a "reasonable person" would have known that the conduct violated the alleged victim's constitutional rights. Id. The same is true, here: Because I have found no Fourteenth Amendment violation, the defendants are also entitled to qualified immunity on the Fourteenth Amendment claim.

Assuming, contrary to my conclusion, above, that the Gosches' had generated genuine issues of material fact that there was a Fourteenth Amendment violation, I conclude that the defendants are entitled to qualified immunity on the "reasonable person would have known" prong of the analysis. Id. (second requirement of qualified immunity). In Mathers v. Wright, 636 F.3d 396 (8th Cir. 2011), the Eighth Circuit Court of Appeals explained that the district court had properly denied a school official qualified immunity on an "equal protection" claim, because the school official's conduct "exceed[ed] the scope of professionally acceptable choices and stem[med] from an improper motivation," which the court concluded was "consistent with decisions from other courts [that] have denied qualified immunity to a school official accused of [unconstitutional conduct] against a student in the absence of a rational basis to do so." 636 F.3d at 402. While I found, above, that there were [**54] genuine issues of material fact as to whether Riediger's conduct "exceed[ed] the scope of professionally acceptable choices," I reiterate that there are no genuine issues of material fact that Riediger's actions "stem[med] from an improper motivation." Id.

Therefore, the defendants are also entitled to summary judgment on the Gosches' Fourteenth Amendment claim on the basis of qualified immunity, but not on their Fourth Amendment claim.


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D. The Disability Discrimination Claims

The defendants argue that they are entitled to summary judgment on the Gosches' claims pursuant to Title II of the ADA and § 504 of the Rehabilitation Act. The Gosches argue to the contrary.

The defendants argue that the benefit that KG was allegedly denied because of his disability is a FAPE. They argue that KG continues to receive a FAPE, because of his enrollment in a different district providing a FAPE, albeit at the expense of the defendant District. In response, the Gosches contend that this argument fails to recognize that the appropriate educational duty under the IDEA is not identical with the District's duty not to discriminate on the basis of disability under Section 504 or the ADA. They argue that KG's disability discrimination claims are that he sustained damages from being subjected to a hostile [**55] educational environment because of his disability, which is wholly unrelated to the IEP process, which involves individual identification, evaluation, educational placement, and free appropriate education decisions. They also contend that KG continues to suffer the consequences of the discriminatory conduct, notwithstanding that he has been enrolled in a school in another district.

The Eighth Circuit Court of Appeals has "'held that the enforcement, remedies, and [*929] rights are the same under both Title II of the ADA and § 504 of the Rehabilitation Act.'" B.M. ex rel. Miller v. South Callaway R-II Sch. Dist., 732 F.3d 882, 887 (8th Cir. 2013) (quoting Birmingham v. Omaha Sch. Dist., 220 F.3d 850, 856 (8th Cir. 2000)). The court has also "consistently held that '[w]here alleged ADA and § 504 violations are based on educational services for disabled children, the plaintiff must prove that school officials acted in bad faith or with gross misjudgment.'" Id. (quoting Birmingham, 220 F.3d at 856, and also citing M.Y. ex rel. J.Y. v. Special Sch. Dist. No. 1, 544 F.3d 885, 888 (8th Cir. 2008)).

For the reasons, cited above, that I conclude that the

"gravamen" of the Gosches' ADA and Rehabilitation Act claims is not a denial of a FAPE, I now reject the defendants' argument that, simply because KG is obtaining educational services from another school district, the defendants are entitled summary judgment on KG's disability discrimination claims. Indeed, the alleged ADA and § 504 claims are not based solely or substantially [**56] on educational services for disabled children, but on subjecting a disabled student to a hostile environment because of his disability. Thus, "bad faith" is not a requirement of such a claim. Id.

The defendants are not entitled to summary judgment on the Gosches' disability discrimination claims.

E. The Common-Law Claims

As explained, above, the Gosches assert Iowa common-law claims of "general negligence" against Riediger, Adams, and the District, battery against Riediger, and intentional infliction of severe emotional distress against Riediger, Adams, and the District. I will consider the defendants' grounds for summary judgment on each of these claims, in turn, at least briefly.

1. The negligence claim

In their "general negligence" claim, the Gosches allege that the defendants breached the duty of care owed to KG, in one or more of the following ways: (a) negligent supervision of classroom teachers; (b) negligent investigation of allegations of wrongdoing; (c) failing to keep KG safe and free from harm; (d) failing to act as reasonable teachers and school administrators; and (d) inflicting harm upon KG.

The defendants argue that the Gosches cannot cite to any evidence that the District [**57] in general, or Kelly Adams in particular, failed to supervise Miranda Riediger, nor can the Gosches credibly claim that the incident involving KG was a proximate result of those defendants' failure to supervise. Furthermore,


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they argue that it was simply not foreseeable that grabbing a seven-year-old child by the ankles and taking two steps back would result in injury. Rather, they reiterate that Riediger acted reasonably. The Gosches counter that Riediger's conduct in seizing and dragging a student was foreseeable, particularly since Adams had previously engaged in the exact same conduct by dragging KG across a floor, and that it was reasonably foreseeable that a child would suffer carpet burns from being dragged across a carpeted floor. They also contend that a reasonable juror could conclude that it was unreasonable for Riediger to engage in conduct that neither his parents nor his prior school had tolerated and that Riediger acted out of frustration or anger, not fear that KG might injure himself or others.

The defendants argue that negligent investigation or supervision of the investigation after the incident cannot be the proximate cause of any of KG's injuries, which allegedly [**58] arose from the incident. The Gosches make no attempt to resist summary judgment on the allegation of negligent [*930] investigation. Thus, the defendants are entitled to summary judgment on this specific allegation of negligence.

The defendants are not entitled to summary judgment on any of the other allegations of negligence, however. The Gosches have met their burden in response to the defendants' Motion For Summary Judgment to point to evidence generating a jury question on whether Riediger's conduct was unreasonable, for the reasons set out, above. Torgerson, 643 F.3d at 1042. They have also generated a jury question on whether either allegedly dragging a child across a carpeted floor or injury from such conduct were foreseeable, by pointing to evidence that Adams had allegedly engaged in similar conduct and a reasonable person's commonsense recognition of the fact that dragging a child across a carpeted floor can result in carpet burns.

2. The battery claim

The defendants argue that they are entitled to

summary judgment on the Gosches' "battery" claim, because Riediger is immune to criminal liability, pursuant to IOWA CODE § 280.21(2), for reasonable action to protect an employee, student, or other students.4 They argue that Riediger [**59] reasonably believed that KG was likely to harm himself or others if she did not intervene and the nature of her intervention was reasonable. While the Gosches agree that statutory immunity does exist, they argue that it is not applicable, here, because Riediger's conduct was not reasonable. Again, for the reasons stated, above, a reasonable juror could conclude that Riediger's conduct was not "reasonable under the circumstances [to] [p]rotect[ ] the employee, the student, or other students." IOWA CODE § 280.21(2)(b).

The defendants are not entitled to summary judgment on the Gosches' "battery" claim.

3. The "intentional infliction of emotional distress" claim

As to the Gosches' last claim, for intentional infliction of emotional distress, the defendants argue, again, that the conduct that [**60] the Gosches claim was outrageous is the incident in the classroom, but moving a child two steps away from other students and a heavy metal desk, as a last resort, in an effort to protect the student and his classmates from physical harm, is not outrageous; it is required. The Gosches counter that the outrageousness of the conduct at issue in this case arises from Riediger's authority over KG and her abuse of that authority.

4 IOWA CODE § 280.21(2) provides, in pertinent part, as follows:

2. A school employee who, in the reasonable course of the employee's employment responsibilities, comes into physical contact with a student shall be granted immunity from any civil or criminal liability which might otherwise be incurred or imposed as a result of such physical contact, if the physical contact is reasonable under the circumstances and involves the following:

* * *

b. Protecting the employee, the student, or other students.

Emphasis added.


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I agree with the defendants that the Iowa Supreme court has held that it "is for the court to determine in the first instance whether the relevant conduct may reasonably be regarded as outrageous." Roalson v. Chaney, 334 N.W.2d 754, 756 (Iowa 1983). For essentially the same reasons that I find that the Gosches have failed to generate a jury question on whether Riediger's conduct "shocks the conscience" and was "malicious," I now conclude, in the first instance, that Riediger's conduct cannot reasonably be regarded as outrageous. Id.

[*931] Thus, the defendants are entitled to summary judgment on the Gosches' "intentional infliction of emotional distress" claim.

III. CONCLUSION

While I conclude that some of the Gosches' claims should proceed to trial, I do not want to leave anyone with the impression that this is not a very [**61] close case, even on those claims. I have focused on what reasonable jurors could conclude, taking the evidence in the light most favorable to the Gosches, as I am required to do at summary judgment. See Torgerson, 643 F.3d at 1042. I hasten to add, however, that reasonable jurors could find, at trial, based on the evidence and arguments almost identical to the ones that the defendants make here, at summary judgment, that Riediger's conduct was entirely reasonable under the circumstances presented—I certainly recognize that those circumstances were very difficult. Teachers face increasing challenges, it seems, in meeting their obligations to foster learning, while keeping all their students safe. I do not envy them that daunting task. Nor do I envy the jurors the daunting task of deciding what the facts show in this case.

Upon the foregoing, the defendants' January 20, 2017, Corrected Motion For Summary Judgment (docket no. 29) is granted in part and denied in part, as follows:

1. The defendants' Motion is denied as to failure to exhaust claims pursuant to the IDEA, because,

applying the Fry test, the Gosches were not required to exhaust their non-IDEA claims;

2. The defendants' Motion is denied as to the Gosches' [**62] § 1983 claim of a violation of the Fourth Amendment;

3. The defendants' Motion is granted as to the Gosches' § 1983 claim of a violation of the Fourteenth Amendment;

4. The defendants' Motion is denied as to the Gosches' disability discrimination claims pursuant to Title II of the ADA and § 504 of the Rehabilitation Act;

5. The defendants' Motion is granted as to that part of the Gosches' "general negligence" based on a negligent investigation, but otherwise denied as to that claim;

6. The defendants' Motion is denied as to the Gosches' battery claim; and

7. The defendants' Motion is granted as to the Gosches' claim of intentional infliction of emotional distress.

IT IS SO ORDERED.

DATED this 23rd day of March, 2017.

/s/ Mark W. Bennett

MARK W. BENNETT

U.S. DISTRICT COURT JUDGE

NORTHERN DISTRICT OF IOWA


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Table1 (Return to related document text)I. INTRODUCTIONA. Factual Background1. The parties2. KG's education and behavioral plans at school3. The incident4. The aftermathB. Procedural Background1. Administrative proceedings2. Judicial proceedings

Table1 (Return to related document text)

Table2 (Return to related document text)a. The pleadingsb. Subsequent proceedingsII. LEGAL ANALYSISA. Standards For Summary JudgmentB. Failure To Exhaust Claims1. Arguments of the parties2. Analysisa. The test established in Fryb. The Circuit's application of Fryc. Application of Fry hereC. The § 1983 Claims1. Arguments of the parties2. Analysisa. The Fourth [**2] Amendment "seizure" claimb. The Fourteenth Amendment "substantive dueprocess" claimc. Qualified immunityD. The Disability Discrimination ClaimsE. The Common-Law Claims1. The negligence claim2. The battery claim3. The "intentional infliction of emotional distress" claimIII. CONCLUSION

Table2 (Return to related document text)

End of Document


173

L.D. v. L.A. Unified Sch. Dist.

United States District Court for the Central District of California


Case No. CV 16-8588-MWF (MRWx)


L.D. v. Los Angeles Unified School District

Prior History: L.D. v. L.A. Unified Sch. Dist., 2017 U.S. Dist. LEXIS 26374 (C.D. Cal., Feb. 24, 2017)

Counsel: [*1] For L. D., by and through his Guardian Ad Litem Rosa Ramirez, Plaintiff: Bryan Christopher Winn, Newman Aaronson and Vanaman, Sherman Oaks, CA; Eric Menyuk, Newman Aaronson Vanaman, Sherman Oaks, CA.

For Los Angeles Unified School District, Defendant: Jeffrey Pritchard Wade, Jr, Michelle M Pacis, Artiano Shinoff, San Diego, CA.

Judges: HONORABLE MICHAEL W. FITZGERALD, UNITED STATES DISTRICT JUDGE.

Opinion by: MICHAEL W. FITZGERALD

Opinion

CIVIL MINUTES—GENERAL

PROCEEDINGS (IN CHAMBERS): ORDER RE DEFENDANT'S MOTION TODISMISS FOR LACK OF JURISDICTION [12]

Before the Court is Defendant's Motion to Dismiss for Lack of Jurisdiction, filed on March 24, 2017. ("the Motion," Docket No. 12). Plaintiff filed an Opposition and Defendant filed a Reply. (Docket Nos. 13-14). The Court held a hearing on April 24, 2017.

Having read and considered the briefs, the Court

GRANTS the Motion and the action is DISMISSED without prejudice to Plaintiff refiling the case once all claims have been properly exhausted.

I.BACKGROUND

Plaintiff is a sixth-grade student at Shirley Avenue Elementary School. (Complaint, Docket No. 1, ¶ 1). [*2] Plaintiff has Down syndrome and is considered a disabled student pursuant to the Rehabilitation Act and the Americans with Disabilities Act ("ADA"). (Id. ¶ 2). Defendant held an Individualized Education Program ("IEP") meeting for Plaintiff on May 5, 2014, to address certain behavioral issues. (Id. ¶ 8). Plaintiff's parents felt that Defendant was not providing appropriate support for Plaintiff, so they filed for due process against Defendant, an administrative proceeding in the Office of Administrative Hearings ("OAH"). (Id. ¶ 12). The parties reached a settlement agreement that requires Defendant to provide certain services to Plaintiff to assist with his behavioral issues at school. (Id.).

Plaintiff's Complaint alleges Defendant has failed to comply with that settlement agreement, and raises a claim for discrimination under the ADA and a claim for a violation of the Rehabilitation Act. The Complaint cites an incident in which Plaintiff broke his leg in a fall at school as evidence of discrimination. (Id. ¶ 19).

II.LEGAL STANDARD

Defendant's Motion is nominally brought under Rule

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12(b)(6) for failure to state a claim. The Motion is directed, however, at the lack of subject matter jurisdiction, which would indicate a Rule 12(b)(1) action. If a defendant seeks to challenge not the plaintiff's substantive allegations but the Court's [*3] subject matter jurisdiction, the motion to dismiss must be brought under Rule 12(b)(1). A jurisdictional attack under Rule 12(b)(1) may be "facial or factual." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial attack, the complaint's allegations must be accepted as true. Id. But "in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id. In that case, facts tending to prove or disprove jurisdiction "are not afforded presumptive truthfulness." Young v. United States, 769 F.3d 1047, 1052 (9th Cir. 2014).

When jurisdictional facts are "'so intertwined' with the substantive dispute that resolution of the former depends, at least in part, on resolution of the latter," it may be inappropriate to resolve factual issues at the motion to dismiss stage. Id. (quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)). In that case, "a court should employ the standard applicable to a motion for summary judgment because resolution of those jurisdictional facts is akin to a decision on the merits." Id. The moving party should prevail only if those facts relevant to jurisdiction are not in dispute. Id.

III.ANALYSIS

Defendant argues that Plaintiff's Complaint actually seeks to litigate the adequacy of the free appropriate public education ("FAPE") provided by Defendant to Plaintiff. [*4] If that's the case, then Plaintiff must first exhaust his claims through the administrative procedures established by the Individuals with Disabilities Education Act ("IDEA"). See 20 U.S.C. § 1415(l) ("[B]efore the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under

this subchapter."). The IEP is the "centerpiece of the statute's education delivery system," and "serves as the 'vehicle' or 'means' of providing a FAPE." Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 753, 197 L. Ed. 2d 46 (2017) (quoting Honig v. Doe, 484 U.S. 305, 311, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988)). A suit that "seek[s] relief for the denial of a FAPE" must meet this exhaustion requirement. Id. "[I]n determining whether a suit indeed 'seeks' relief for such a denial, a court should look to the substance, or gravamen, of the plaintiff's complaint." Id. Thus, the inquiry does not hinge on whether a complaint uses the words "FAPE" or "IEP" specifically. Id.

The Supreme Court has recently provided some helpful "clues" as to whether a complaint concerns denial of a FAPE, or "instead addresses disability-based discrimination." Id. at 756. These clues come in the form of two questions a court should ask when analyzing a child's complaint: [*5] (1) "could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school," and (2) "could an adult at the school—say, an employee or visitor— have pressed essentially the same grievance?" Id. (emphasis in original). If the claims could only be brought at a school, and only by a child, then the complaint "probably does concern a FAPE, even if it does not explicitly say so." Id.

Addressing those two questions here, the Court concludes Plaintiff really seeks relief under IDEA, and must first exhaust his claims. First, Plaintiff's claims center on his IEP and his behavioral issues at the school, claims which could not be brought against any other "public facility." The Complaint alleges the "level of behavior support" from Defendant has been inadequate, and that Defendant failed to address Plaintiff's parents' concerns regarding Plaintiff's behavioral issues in his IEP meeting. (Complaint ¶¶ 7-8). The Complaint also specifically alleges Defendant's lack of support did not allow Plaintiff to "access his academic curriculum and make progress." (Id. ¶ 11). These claims are focused on Plaintiff's experience at school and [*6] would make no sense outside that context.

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Second, an adult could not have brought Plaintiff's claims. As discussed, the claims focus solely on Plaintiff's IEP and the inadequacy of the educational support provided by Defendant.

The Supreme Court also noted that the "history of the proceedings" might shed light on whether a plaintiff's claims concern denial of a FAPE, particularly in cases where "a plaintiff has previously invoked the IDEA's formal procedures to handle the dispute." Fry, 137 S. Ct. at 757. Here that is precisely what occurred when Plaintiff's parents initially pursued administrative remedies to handle their dispute with Defendant.

Plaintiff's Complaint here makes one claim that is arguably directed at discrimination: "Plaintiff has been denied and excluded from access to the Defendant's Program, which would provide Plaintiff a less confining program that satisfies Plaintiff's needs." (Id. ¶ 18). The Complaint never specifies what "program" Plaintiff is referring to, nor are there any factual allegations to support the claim.

The Court concludes that Plaintiff's Complaint actually concerns an alleged denial of a FAPE as required by the IDEA, and thus that Plaintiff was required to exhaust his [*7] claims administratively prior to bringing them in federal court.

Defendant further argues that Plaintiff has failed to exhaust his claims here. In his short Opposition Plaintiff responds merely that exhaustion is not required in this case. He does not seem to take issue with Defendant's assertion that exhaustion has not, in fact, occurred. Courts addressing similar fact patterns have found a lack of exhaustion when a student and the school district have previously entered into a settlement agreement, and the student subsequently alleges a violation of that agreement. See, e.g., J.P. v. Cherokee Cty. Bd. of Educ., 218 F. App'x 911, 913 (11th Cir. 2007) (affirming dismissal of suit where "[i]t was undisputed that the only request for a due-process hearing relating to J.P.'s FAPE occurred in proceedings that took place in 2001 and resulted in a settlement agreement as to the claims asserted in the 2001 complaint. The instant claims, by contrast,

concern whether Defendants' actions in November 2003 violated the IDEA and constituted a breach of the provisions of the settlement agreement"); Pedraza v. Alameda Unified Sch. Dist., 2007 U.S. Dist. LEXIS 26541, 2007 WL 949603, at *5 (N.D. Cal. Mar. 27, 2007) (holding IDEA's exhaustion requirement was not met when parties entered into a mediated settlement agreement). Here, Plaintiff's claims concern an alleged breach of a settlement [*8] agreement reached in 2014. He never filed an administrative complaint with Defendant regarding any breach of the settlement agreement. Those claims have not been exhausted as required by the IDEA.

At the hearing, Plaintiff's counsel mentioned a different settlement agreement signed by the parties in September 2015. This settlement is not discussed in Plaintiff's pleadings or his briefing on this Motion. The Court has no way of knowing what the settlement encompassed. Counsel seemed to assert that the settlement foreclosed suit under the IDEA, and that this fact should somehow support allowing this lawsuit to go forward under the current claims for relief. Even considering this settlement, which was never brought to the Court's attention prior to the hearing, the fact remains that Plaintiff's suit is really one for relief under the IDEA, as discussed above. Dismissal to allow for exhaustion is the proper course of action.

IV.CONCLUSION

Accordingly, the Court concludes that Plaintiff's claims must be exhausted administratively before they may be brought in federal court. In addition, the Court concludes that Plaintiff has not exhausted those claims. The action is DISMISSED without prejudice [*9] to Plaintiff's refiling his claims once exhaustion has occurred.

IT IS SO ORDERED.

This Order shall constitute notice of entry of judgment pursuant to Federal Rule of Civil Procedure 58. Pursuant to Local Rule 58-6, the Court ORDERS the Clerk to treat this order, and its entry

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on the docket, as an entry of judgment.

End of Document

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177

P.H. v. Tehachapi Unified Sch. Dist.

United States District Court for the Eastern District of California


No. 1:17-cv-00257-DAD-JLT


P.H., by her guardian ad litem JUANITA LUNA, Plaintiff, v. TEHACHAPI UNIFIED SCHOOL DISTRICT, KATHLEEN QUIJADA, and DOES 1-100, inclusive, Defendants.

Subsequent History: Motion granted by, Settled by P.H. v. Tehachapi Unified Sch. Dist., 2018 U.S. Dist. LEXIS 11671 (E.D. Cal., Jan. 23, 2018)

Counsel: [*1] For P.H., by her Guardian Ad Litem Juanita Luna, Plaintiff: David M Grey, Grey & Grey, Santa Monica, CA.

For Tehachapi Unified School District, Defendant: Anthony N. DeMaria, LEAD ATTORNEY, McCormick Barstow LLP, Fresno, CA.

Judges: Dale A. Drozd, UNITED STATES DISTRICT JUDGE.

Opinion by: Dale A. Drozd

Opinion

ORDER DENYING MOTION TO DISMISS AND APPOINTING GUARDIAN AD LITEM

(Doc. Nos. 2, 6)

On February 22, 2017, plaintiff P.H., a minor, commenced this action by filing a complaint against Kathleen Quijada and the Tehachapi Unified School District ("Tehachapi") bringing claims for 1) a violation of the American Disabilities Act ("ADA"), 28 C.F.R. Part 35; 2) a violation of the Unruh Civil Rights Act, Cal. Civ. Code § 51, et seq.; 3) a violation of the Rehabilitation Act, 28 U.S.C. § 794 (§ 504); 4)

breach of due of care arising under a special relationship; 5) negligence; 6) assault; 7) battery; and 8) intentional infliction of emotional district. (Doc. No. 1.) On the same day, plaintiff P.H.'s mother filed a motion for order appointing her guardian ad litem for P.H. (Doc. No. 2.) On March 16, 2017, defendant Tehachapi filed a motion to dismiss plaintiff's first and third claim for relief under Federal Rule of Civil Procedure ("Rule") 12(b)(6). (Doc. No. 6.) On April 3, 2017 plaintiff P.H. filed an opposition to the motion to dismiss [*2] and on April 10, 2017, defendant Tehachapi filed a reply. (Doc. Nos. 9 and 10.) The motion for order appointing guardian ad litem is unopposed. The matters came before the court for hearing on April 18, 2017. Attorney Anthony DeMaria appeared telephonically on behalf of defendant Tehachapi and attorney David Grey appeared telephonically on behalf of plaintiff. (Doc. No. 12.) The matters were taken under submission. For the reasons that follow the court will appoint Juanita Luna as P.H.'s guardian ad litem and will deny defendant Tehachapi's motion to dismiss.

Background

Plaintiff P.H. is a seven-year old girl who suffers from multiple severe disabilities, is non-verbal, and has limited intellectual capacity. (Doc. No. 2 at 3.) P.H. was a student at Tehachapi where she alleges she was tied to a chair with a blanket and left for entire school days. (Doc. No. 1 at 2.) Plaintiff further alleges she was bruised, battered, screamed at, and left all day in soiled papers. (Id.) In sum, plaintiff claims that she was physically and psychologically abused because of her disability from March 2016 through May 2016. (Id.) Her biological mother and

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legal custodian is Juanita Luna. (Doc. No. 2 at 3.) [*3] As noted, Ms. Luna has moved for an order appointing herself as guardian ad litem for P.H. (Doc. No. 2.)

As also noted, defendant Tehachapi moves to dismiss plaintiff's first and third claims brought under the ADA and the Rehabilitation Act, respectively, arguing that plaintiff has failed to allege that she exhausted her administrative remedies with respect to those claims. (Doc. No. 6 at 1-2.) Tehachapi contends that the Individuals with Disabilities Education Act ("IDEA") requires exhaustion of plaintiff's first and third claims for relief before plaintiff can seek federal court intervention. (Id. at 5.) Plaintiff opposes dismissal of those claims, arguing that exhaustion is not required because her first and third claims are personal injury damages claims and are independent of the relief available under the IDEA for denial of free appropriate public education ("FAPE"). (Doc. No. 98 at 1) (citing Fry v. Napolean Community Schools, 580 U.S. , 137 S. Ct. 743, 749, 197 L. Ed. 2d 46 (2017) ("We hold that exhaustion is not necessary when the gravamen of the plaintiff's suit is something other than the denial of the IDEA's core guarantee — what the Act calls a 'free appropriate public education.'")).

Below, the court will first address the motion for appointment of a guardian ad litem [*4] before turning to defendant's motion to dismiss.

Guardian Ad Litem

"District courts have a special duty, derived from Federal Rule of Civil Procedure 17(c), to safeguard the interests of litigants who are minors." Robidoux v. Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011). Rule 17 provides that "[t]he court must appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person who is unrepresented in an action." Fed. R. Civ. P. 17(c)(2). Local Rule 202(a) of this court states, in pertinent part:

Upon commencement of an action or upon

initial appearance in defense of an action by or on behalf of a minor . . . the attorney representing the minor or incompetent person shall present . . . a motion for the appointment of a guardian ad litem by the Court, or . . . a showing satisfactory to the Court that no such appointment is necessary to ensure adequate representation of the minor or incompetent person. See Fed. R. Civ. P. 17(c).

The decision to appoint a guardian ad litem "must normally be left to the sound discretion of the trial court." United States v. 30.64 Acres of Land, 795 F.2d 796, 804 (9th Cir. 1986).

Juanita Luna moves the court to appoint her as guardian ad litem to her daughter P.H. (Doc. No. 2.) In a declaration signed under penalty of perjury, Ms. Luna states that P.H. is her natural born child and that she has legal custody over her. (Id. at 3.) Ms. Luna further [*5] declares that she has no interest adverse to the rights of P.H. and that she is fully competent and responsible to prosecute the action on her daughter's behalf. (Id.) Finding good cause, the court grants the motion (Doc. No. 2) and appoints Juanita Luna as the guardian ad litem of P.H., a minor and the named plaintiff in this action.

Motion to Dismiss

A. Rule 12(b)(6) Legal Standard

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court

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to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court [*6] is permitted to consider material which is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested and the plaintiffs' complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

B. Section 1415(l ) Legal Standard

Under 20 U.S.C. § 1415(l ), "a plaintiff bringing suit under the ADA, the Rehabilitation Act, or similar laws must in certain circumstances—that is, when 'seeking relief that is also available under' the IDEA—first exhaust the IDEA's administrative procedures." Fry, 137 S. Ct. at 750. As the Supreme Court has explained:

§ 1415(l )'s exhaustion rule hinges on whether a lawsuit seeks relief for the denial of a free appropriate public education. If a lawsuit charges such a denial, the plaintiff cannot escape § 1415(l ) merely by bringing her suit under a statute other than the IDEA. . . . But if, in a suit brought under a different statute, the remedy sought is not for the denial of a FAPE, then exhaustion of the IDEA's procedures is not required.* * *

But that examination should consider substance, not surface. The use (or non-use) of particular labels and terms is not what matters. . . . [§ 1415(l )] requires exhaustion when the gravamen of a

complaint [*7] seeks redress for a school's failure to provide a FAPE, even if not phrased or framed in precisely that way.* * *

In addressing whether a complaint fits that description, a court should attend to the diverse means and ends of the statutes covering persons with disabilities—the IDEA on the one hand, the ADA and Rehabilitation Act (most notably) on the other. The IDEA, of course, protects only 'children' (well, really, adolescents too) and concerns only their schooling. § 1412(a)(1)(A). And as earlier noted, the statute's goal is to provide each child with meaningful access to education by offering individualized instruction and related services appropriate to her 'unique needs.' § 1401(29); see Rowley, 458 U.S. at 192; supra, at 753 — 754. By contrast, Title II of the ADA and § 504 of the Rehabilitation Act cover people with disabilities of all ages, and do so both inside and outside schools. And those statutes aim to root out disability-based discrimination, enabling each covered person (sometimes by means of reasonable accommodations) to participate equally to all others in public facilities and federally funded programs. See supra, at 749 - 750. In short, the IDEA guarantees individually tailored educational services, while Title II and § 504 promise non-discriminatory access to public institutions. [*8] * * *

"One clue to whether the gravamen of a complaint against a school concerns the denial of a FAPE, or instead addresses disability-based discrimination, can come from asking a pair of hypothetical questions. First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? And second, could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance? When the answer to those questions is yes, a complaint

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does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject. . . But when the answer is no, then the complaint probably does concern a FAPE."

Fry, 137 S. Ct. at 754-56.

C. Analysis

Here, plaintiff's complaint specifically states that she "seeks monetary damages for personal injuries suffered by P.H. and does not assert any claims under the Individuals with Disabilities Education Act (IDEA) nor does she request any relief that is also available under the IDEA." (Doc. No. 1 at 5.) Defendant Tehachapi argues that plaintiff's first and third claims are in actuality based upon FAPE. (Doc. No. 10 at 3-5.) For instance, defendant contends, [*9] the first claim states "Defendants were aware that P.H. had federally protected rights to be integrated with general education children at school and to be provided with reasonable modifications and to be free from the physical and emotional abuse described herein." (Doc. No. 1 at 8.) Similarly, according to defendant, plaintiff's third claim asserts that defendant denied plaintiff "the benefits of receiving full and equal access to the public education programs and activities and discriminating against her because of her disability." (Id. at 11.)

The claims presented by plaintiff here are, however, premised on equal access and not the adequacy of the special education services. In Fry, for instance, school officials refused to allow a trained service dog to assist the plaintiff, who had a severe form of cerebral palsy, at school. 137 S. Ct. at 750-51. In response, the parents removed the plaintiff from the school and homeschooled her. Id. at 751. The complaint "alleged that the school districts violated Title II of the ADA and § 504 of the Rehabilitation Act by 'denying [plaintiff] equal access' to [her school] and its programs, 'refus[ing] to reasonably accommodate' [plaintiff]'s use of a service animal, and otherwise 'discriminat[ing] against [plaintiff] as a person with [*10] disabilities.'" Id. at 752. Under these

circumstances the Supreme Court in Fry concluded that the "complaint alleges only disability-based discrimination, without making any reference to the adequacy of the special education services [plaintiff's] school provided. . . . The [plaintiff's family] instead maintained . . . that the school districts infringed [plaintiff's] right to equal access—even if their actions complied in full with the IDEA's requirement." 137 S. Ct. at 758.

The same type of equal access claim alleged in Fry is being alleged by plaintiff here. Indeed, the complaint alleges that defendants isolated P.H. from other school children during the school day, resulting in the denial of school programs and services, and physically and psychologically abused her because of her disability. (See, e.g., Doc. No. 1 at 2.) The complaint does not allege that defendants provided inadequate special education services or failed to provide sufficient supportive services for plaintiff's disability. (Id.) Compare K.G. by & through Gosch v. Sergeant Bluff-Luton Cmty. Sch. Dist., No. C 15-4242-MWB, 244 F. Supp. 3d 904, 2017 U.S. Dist. LEXIS 42171, 2017 WL 1098829, at *11-13 (N.D. Iowa Mar. 23, 2017) (concluding that denial of a FAPE was not the gravamen of the complaint even where plaintiffs initially pursued the administrative [*11] process under the IDEA because the complaint's allegations identifying the parties in terms of needing or supplying "special education services" and having a duty to ensure "equal access to a public education" were not about the denial of a FAPE but instead showed notice to defendants of the conditions that put the plaintiff at risk when defendants allegedly used unlawful and unreasonable force against him); with J.M. v. Francis Howell School District, 850 F.3d 944, 949 (8th Cir. 2017) (concluding denial of a FAPE was the gravamen of the complaint where the complaint originally contained claims under the IDEA and it was alleged in the operative complaint that the use of isolation and physical restraints failed to provide proper "sufficient 'supportive services' to permit [J.M.] to benefit from . . . instruction," and ultimately "denied [J.M.] . . . the benefits of public education."); L.D. v. Los Angeles Unified Sch. Dist., No. CV 16-8588-MWF (MRWx), 2017 U.S. Dist. LEXIS 63473, 2017

2017 U.S. Dist. LEXIS 89090, *8

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WL 1520417, at *2 (C.D. Cal. Apr. 26, 2017) (concluding plaintiff's complaint was really seeking relief under the IDEA because it alleged that the "level of behavior support" had been inadequate and that defendant failed to address the parents' concerns regarding plaintiff's behavioral issues in his IEP meeting).

Moreover, there is nothing in history of this action [*12] that suggests any implicit focus on the adequacy of plaintiff's education. See Fry, 137 S. Ct. at 758 ("a plaintiff's initial pursuit of the IDEA's administrative remedies can serve as evidence that the gravamen of her later suit is the denial of a FAPE, even though that does not appear on the face of her complaint."). Accordingly, the court concludes that the gravamen of plaintiff's complaint is not an alleged failure to provide a FAPE and the exhaustion of the IDEA's administrative procedures is therefore not required. See Fry, 137 S. Ct at 755.

For all of the reasons set forth above:

1) The motion for order appointing guardian ad litem (Doc. No. 2) is granted;

2) Juanita Luna is appointed guardian ad litem for plaintiff P.H.; and3) Defendant Tehachapi Unified School District's motion to dismiss (Doc. No. 6) is denied.

IT IS SO ORDERED.

Dated: June 8, 2017

/s/ Dale A. Drozd

UNITED STATES DISTRICT JUDGE

End of Document

2017 U.S. Dist. LEXIS 89090, *11

182

Paul G. v. Monterey Peninsula Unified Sch. Dist.

United States District Court for the Northern District of California, San Jose Division


Case No. 16-cv-05582-BLF


PAUL G., Plaintiff, v. MONTEREY PENINSULA UNIFIED SCHOOL DISTRICT, et al., Defendants.

Counsel: [**1] For Paul G., a conserved adult; by and through his conservator Steve G., Plaintiff: Christian Marie Knox, Frank Richard Ruderman, Ruderman & Knox, LLP, Sacramento, CA; Daniel Robert Shaw, Ruderman and Knox LLP, Sacramento, CA.

For Monterey Peninsula Unified School District, Defendant: Mark E. Davis, Steven B Dippell, LEAD ATTORNEYS, Adam Jacobsen Davis, Davis & Young, APLC, San Jose, CA.

For California Department of Education, Defendant: Leonard Bruce Garfinkel, LEAD ATTORNEY, Attorney at Law, Sacramento, CA.

Judges: BETH LABSON FREEMAN, United States District Judge.

Opinion by: BETH LABSON FREEMAN

Opinion

[*1068] ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND IN PART AND WITHOUT LEAVE TO AMEND IN PART

Severely impacted by his autism, Plaintiff Paul G. ("Paul") requires placement in a residential treatment facility that specializes in educating autistic students aged 18 to 22, which was not available in his home state of California. First Am. Compl. ("FAC") ¶¶ 15, 28, ECF 25. As a result, Plaintiff Paul G. brings this

suit against the Monterey Peninsula Unified School District and California Department of Education, alleging various claims for relief. Paul asks this Court to compel the California Department of Education [**2] ("CDE") to ensure that residential treatment facilities for qualifying special education students age 18 to 22 are available in California, and where a local school district cannot provide such residential placement, that CDE step in to do so. FAC ¶¶ 98, 99. Paul also seeks monetary relief. Id. ¶¶ 95-97. Before the Court is CDE's motion to dismiss Paul's FAC. Mot., ECF 28. After reviewing the papers filed in conjunction with the motion and holding oral argument on April 13, 2017, the Court GRANTS CDE's motion to dismiss for reasons stated below.

I. BACKGROUND

According to the FAC, the facts are as follows. Plaintiff Paul G. is a nineteen-year-old special education student on the autism spectrum who has been a California resident since birth. FAC ¶¶ 12, 13. Severely impacted by his autism and thus conserved by his parents, Paul has difficulty communicating and interacting with others and can engage in destructive behaviors at times. Id. ¶¶ 14-17. Paul attended the 2014-2015 school year in the eleventh grade at Marina High School located within the Monterey Peninsula Unified School District ("District"). Id. ¶¶ 5, 18. However, the District did not offer Paul an intensive applied behavior [**3] analysis program ("ABA"), which has been endorsed by the American Academy of Pediatrics and the National Research Counsel as the most effective form of treatment for autism. Id. ¶¶ 16, 20. Paul's behaviors worsened

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throughout the school year and the District eventually placed him on home hospital instruction in February 2015. Id. ¶¶ 20-26. On July 14, 2015, Paul was brought to a public library to receive home hospital instruction but the home hospital teacher was not adequately trained to work with Paul. Id. ¶¶ 20-26. In one instance, when the teacher told Paul to "be quiet," the situation escalated and triggered Paul to elope from the library and to run to his father's car. Id. ¶¶ 33-34. In the process of running from the library, Paul knocked an elderly lady to the ground causing injury. Id. ¶ 35. Because of this incident, Paul was charged with three felonies and was not allowed to leave the State of California pending resolution of his criminal charges. Id. ¶ 36.

On July 20, 2015, during an Individualized Education Plan ("IEP") meeting, the District offered Paul placement in a residential treatment facility, which was, as Paul alleges, what he should have received in lieu of home [**4] hospital in the first place. Id. ¶¶ 28, 37. However, because Paul was eighteen years old, there was no placement in the entire State of California that would accept him. Id. ¶ 37. In September 2015, the District invited the CDE to Paul's IEP meeting but the CDE did not participate in the meeting. Id. ¶ 38.

On August 25, 2015, a due process hearing was requested on behalf of Paul with [*1069] the Office of Administrative Hearings. Id. ¶ 31. The due process complaint, which was filed and served on the District, the CDE, and the Department of Social Services ("DSS"), alleged that the CDE and the District had denied Paul a free and appropriate public education ("FAPE") by failing to ensure that an appropriate in-state residential treatment facility was available to students eighteen to twenty-two years of age, such as Paul. Id. On September 23, 2015, the OAH dismissed the complaint against CDE and DSS because the relief requested was "beyond the jurisdiction of the OAH in a due process case." Id. ¶ 52. In January 2016, the District and Paul's parents settled past claims under the Individuals with Disabilities Education Act ("IDEA"), excluding from settlement any tort, negligence, or civil rights [**5]

claim. Id. ¶ 53.

In accordance with the settlement, on February 23, 2016, Paul was placed in a residential treatment facility in Kansas. Id. ¶ 54. According to Paul, however, he requires a residential placement close to his family and the community in which he will live upon exiting special education. Id. ¶¶ 55, 60.

Paul filed this suit on September 30, 2016, against the District and CDE. ECF 1. The first amended complaint alleges two causes of action against the District and three causes of action against the CDE: (1) violation of § 504 of the Rehabilitation Act of 1973 against the District; (2) violation of the Americans with Disabilities Act against the District; (3) violation of § 504 of the Rehabilitation Act of 1973 against the CDE; (4) violation of the Americans with Disabilities Act against the CDE; and (5) violation of the IDEA and California Education Code § 56342 against the CDE. FAC ¶¶ 64-94. The District answered the first amended complaint but the CDE moves to dismiss it. Answr., ECF 27; Mot.

II. LEGAL STANDARD

A. Fed. R. Civ. Proc. 12(b)(1) and Standing

Article III of the U.S. Constitution's "case and controversy" requirement obligates federal courts to determine, as an initial matter, whether plaintiffs have standing to bring suit. Lance v. Coffman, 549 U.S. 437, 439, 127 S. Ct. 1194, 167 L. Ed. 2d 29 (2007). At the pleading stage, to satisfy the standing [**6] requirement plaintiffs must allege: (1) that they have suffered an "injury in fact that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) that the injury is fairly traceable to the defendant's challenged conduct; and (3) that the injury will likely be redressed by a favorable decision. See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000); Lujan v. Defs. of Wildlife, 504 U.S. 555, 561-62, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). The party seeking to


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invoke federal court jurisdiction has the burden of establishing standing. See Lujan, 504 U.S. at 561. The Ninth Circuit has emphasized that "[t]he jurisdictional question of standing precedes, and does not require, analysis of the merits." Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011) (citation and internal quotation marks omitted).

B. Fed. R. Civ. Proc. 12(b)(6)

"A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted 'tests the legal sufficiency of a claim.'" Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 729, 732 [*1070] (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts as true all well-pled factual allegations and construes them in the light most favorable to the plaintiff. Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the Court need not "accept as true allegations that contradict matters properly subject to judicial notice" or "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation [**7] marks and citations omitted). While a complaint need not contain detailed factual allegations, it "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). A claim is facially plausible when it "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

C. The Individuals with Disabilities Education Act ("IDEA")

The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., was enacted to ensure that children with disabilities have access to a

FAPE that meets their unique needs. Honig v. Doe, 484 U.S. 305, 309, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988). Each state that receives federal special education funding must ensure that local educational agencies ("LEA") are in compliance with the IDEA. Id. at 310-11; Los Angeles Cty. Office of Educ. v. C.M., No. 10-4702, 2011 U.S. Dist. LEXIS 158877, 2011 WL 1584314, at *3 (C.D. Cal. Apr. 22, 2011). A LEA is generally responsible for providing a FAPE to students with disabilities residing within its jurisdictional boundaries. See Cal. Educ. Code §§ 48200, 56028 (the residency statutes); see also Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524-26 (9th Cir. 1994).

California Education Code § 56026.3 defines a LEA as a "school district, a county office of education, a nonprofit charter school participating as a member of a special education local plan area, or a special education local plan area." Cal. Educ. Code § 56026.3. In California, a county office of education is responsible for direct [**8] provision of a free appropriate public education ("FAPE") except for services in State Special Schools for deaf and blind students. Id. §§ 59002, 59102.

To meet the requirements of the IDEA, LEAs must implement an "individualized educational program" ("IEP") for each special needs student and provide services directly to students. Id. § 56347; 20 U.S.C. § 1414(d); see also Honig, 484 U.S. at 311-12. Each state agency—in California, the CDE—is responsible for determining specific policies and procedures for compliance and for administering funds to the local agencies. Id. Pursuant to the IDEA, each state agency is ultimately responsible for providing services directly to students when the local education agencies are "unable to establish and maintain programs of free appropriate public education that meet the requirements" of the IDEA. 20 U.S.C. § 1413(g)(1)(B); see also Honig, 484 U.S. at 329 (holding that the state may be required to provide services directly to special education students when the local agency fails to do so).

The IDEA also requires participating states and local educational agencies to "establish and maintain


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procedures . . . to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a [FAPE] . . . ." 20 U.S.C. § 1415(a). [**9] For [*1071] example, whenever there is a proposal or refusal to initiate a change relating to the identification, evaluation or educational placement of a child, or the provision of a FAPE, parents "have an opportunity for an impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency as determined by State law or by the State educational agency." 20 U.S.C. § 1415(f).

III. DISCUSSION

The CDE raises numerous grounds for dismissing the complaint, including lack of standing, failure to exhaust administrative remedies, and lack of a private right of action. Before turning to the merits of these arguments, the Court addresses the CDE's request for judicial notice.

A. Judicial Notice

The CDE has requested judicial notice of four documents, attached to the request as Exhibits 1 through 4: (1) August 25, 2015 Amended Special Education Due Process Complaint Notice received by the CDE from Plaintiff; (2) OAH's Order Granting the CDE's Motion to Dismiss dated September 21, 2015; (3) January 27, 2016 letter from Plaintiff's counsel to OAH; and (4) OAH's Order of Case Dismissal, dated February 25, 2016. RJN, ECF 28-1.

Judicial notice is appropriate with respect to [**10] Exhibits 1 through 4 for the purpose of the motion to dismiss because they are records of an administrative agency. Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986) (court may take judicial notice of records and reports of state administrative bodies), overruled on other grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 111, 111 S. Ct. 2166, 115 L. Ed. 2d 96 (1991).

Paul has neither opposed the request for judicial notice nor disputed the authenticity of the documents. The request for judicial notice is GRANTED with respect to all the exhibits attached to the CDE's request.

B. Paul Has Adequately Alleged Standing

As a preliminary matter, the Court addresses whether the FAC has sufficiently alleged standing. CDE argues that the complaint has not adequately alleged injury to constitute standing because there was no denial of a FAPE. Mot. 8. Paul disagrees and in support of his injury, underscores the allegations relating to CDE's failure to provide in-state residential treatment centers for him. Opp'n 4-5, ECF 34. The Court finds that the absence of in-state residential treatment facilities as alleged by Paul likely constitutes the requisite injury necessary to proceed against CDE. Rivera v. Fremont Union High Sch. Dist., No. 12-05714-EJD, 2013 U.S. Dist. LEXIS 126043, 2013 WL 4674831, at *2 (N.D. Cal. Aug. 30, 2013) (finding that the allegation of a denial of FAPE sufficient to support an injury [**11] to confer standing). CDE argues that OAH has not made a finding of injury or that the out-of-state placement is inappropriate. However, this argument is more relevant to the merits of the claims or the exhaustion requirement. An OAH finding is not necessary to plausibly allege injury for the purpose of standing. Accordingly, the Court finds that Paul has sufficiently alleged a cognizable injury to confer standing.

A. Count V: Violation of the IDEA and California Education Code § 56342

Paul claims that CDE has failed to ensure there are any residential treatment facilities in the State of California for adult [*1072] special education students, in violation of the IDEA. FAC ¶ 92. Paul further claims that this failure of the CDE also violates California Education Code § 56342 because Paul was not placed in a center "as close as possible to [his] home." Id. ¶ 91 (citing 34 C.F.R. § 300.116(b)(3)).


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CDE moves to dismiss the IDEA claims on several grounds: the claims are barred by the statute of limitations, Paul lacks a cognizable injury to confer standing, Paul fails to join the District and the DSS as required parties, Paul has failed to exhaust administrative remedies, Paul does not have a private right of action, and federal law does not mandate that CDE provides instate residential [**12] placements. Mot. 8-21. Paul disputes that the claims should be dismissed on any of these grounds. Paul argues that there is no statute of limitations bar because the appeal deadline does not apply in a case where a full hearing had not occurred. Opp'n 2-4. Paul further contends that he has pled injury to confer standing, that the District and the DSS are not required parties, that an exhaustion of administrative remedies would be futile, that he has a private right of action, and that federal law mandates that CDE develop polices and procedure to ensure students have access to placements in the least restrictive setting. Id. at 7-17.

The Court first turns to whether the statute of limitations bars the asserted IDEA claims. Congress established formal procedures for resolving IDEA disputes, and also set forth the following time to appeal:

Any party aggrieved by the findings and decision made under subsection (f) or (k) who does not have the right to an appeal under subsection (g), and any party aggrieved by the findings and decision made under this subsection, shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent [**13] jurisdiction or in a district court of the United States, without regard to the amount in controversy.

20 U.S.C. § 1415(i)(2)(A); see also Cal. Educ. Code § 56505(k).

The party bringing the action shall have 90 days from the date of the decision of the hearing officer to bring such an action, or, if the State has an explicit time limitation for bringing such action under this subchapter, in such time as the State law allows.

20 U.S.C. § 1415(i)(2)(B); see also Cal. Educ. Code § 56505(k).

As such, the IDEA imposes a 90-day statute of limitations for appealing an administrative decision, and California adopts this same 90-day time frame for such appeals. 20 U.S.C. § 1415(i)(2)(B); Cal. Educ. Code § 56505(k). Here, Paul's IDEA claims are barred by this statute of limitations. First, Paul does not contest that he failed to file this action within 90 days of OAH's dismissal of CDE as a party or even within 90 days of OAH's subsequent dismissal as to all parties. Paul filed the instant action on September 30, 2016 but OAH dismissed CDE from the due process hearing on September 21, 2015, finding that OAH has no jurisdiction to order the type of statewide policy changes sought by Paul. Order Granting CDE's Mot. to Dismiss 3, Ex. 2 to RJN. OAH also later dismissed all remaining parties on February 25, 2016 pursuant to a settlement agreement. Exs. [**14] 3, 4 to RJN. Calculating from September 21, 2015, the day OAH granted CDE's motion to dismiss, Paul then had ninety days to appeal it. But he chose not to do so. If the 90-day window were to be calculated from the dismissal of the whole case on February 2, 2016, the instant action would still be untimely.

[*1073] Paul argues that 90-day statute of limitation period should not apply because the OAH did not rule on the issues raised in the due process complaint based on a due process hearing. Opp'n 2-3. However, the weight of authority does not support this argument. First, the statutes do not distinguish an OAH order granting a motion to dismiss from "findings and decision" that are subject to the 90-day statute of limitations set forth in 20 U.S.C. § 1415(i)(2)(B) and Cal. Educ. Code § 56505(k). The OAH order granting CDE's motion to dismiss is still a "decision" that "aggrieved" Paul and there is nothing in the statute suggesting that the order should not be subject to the limitations period for appeal, just like a decision subsequent to a full hearing. See 20 U.S.C. § 1415(i)(2)(B).

Second, at least one district court in the Ninth Circuit has held that the 90-day limitations period applied to


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an order of dismissal prior to a full hearing. B.B. v. Tacoma Sch. Dist., No. 08-5512, 2009 U.S. Dist. LEXIS 4418, 2009 WL 159204, at *3 (W.D. Wash. Jan. 22, 2009). In B.B., the plaintiffs' [**15] due process hearing complaint was dismissed by the hearing officer on February 1, 2008 but the plaintiffs did not file their complaint with the court until August 21, 2008, over six months after the due process hearing complaint was dismissed. Id. The court concluded that the plaintiffs lost the right to bring a civil action in the district court. Id. B.B. is thus almost identical to the situation in this case and further bolsters this Court's conclusion that the statute imposing the 90-day limitations period applies here.

Lastly, Paul's reliance on Meridian Joint Sch. Dist. No. 2 v. D.A. is misplaced. No. 11-00320, 2013 U.S. Dist. LEXIS 90683, 2013 WL 3270424, at *4 (D. Idaho June 25, 2013). Meridian Joint Sch. Dist. concerned whether a plaintiff's claim for attorneys' fees was barred by the statute of limitations. 2013 U.S. Dist. LEXIS 90683, [WL] at *4. After analyzing 20 U.S.C. § 1415, the court concluded that "the 90-day limitations period applies only to appeals from due process hearings and not separate actions for attorneys' fees." 2013 U.S. Dist. LEXIS 90683, [WL] at *13. Accordingly, the holding in Meridian Joint Sch. Dist. is specific to claims for attorneys' fees and does not pertain to an OAH decision short of a full hearing.

Accordingly, the Court finds that the IDEA claims against CDE are barred by statute of limitations. Given that the IDEA claims against [**16] CDE are barred, the Court need not address CDE's other arguments in connection with the IDEA claims, such as whether IDEA provides a private right of action, whether IDEA mandates provision of in-state residential placement, whether CDE violated law under the IDEA, and whether District and DSS are required parties.

B. Counts III and IV: Violation of § 504 of the Rehabilitation Act of 1973; and Violation of the

Americans with Disabilities Act

Paul further claims that the CDE's failure to ensure there are any residential treatment facilities in the State of California for adult special education students violates § 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act ("ADA"). FAC ¶¶ 81, 88.

In its motion to dismiss the Rehabilitation Act and ADA claims, CDE reiterates the same grounds raised in support of its motion to dismiss the IDEA claims, including lack of standing, failure to exhaust administrative remedies, and failure to join the required parties. Mot. 8-21. CDE reasons that the ADA and the Rehabilitation Act claims fail for the same reasons as the IDEA claims because they are premised on the IDEA claims. In opposition, Paul makes the same arguments here as those in support of the IDEA claims. Opp'n [**17] 2-18. Paul further argues that the Rehabilitation Act [*1074] and ADA claims are sufficiently supported by the allegation that he was denied in-state placement solely on the basis of his disability. Id. at 19.

i. Exhaustion of Administrative Process

The Court finds the exhaustion requirement to be dispositive and thus will first evaluate whether this requirement applies. Before Paul can seek judicial review of his claims, Paul must exhaust the administrative process, including filing a complaint with the local or state agency, and attending to a "due process hearing" before an impartial hearing officer if these claims are in reality claims for denial of FAPE. 20 U.S.C. § 1415; Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 749, 197 L. Ed. 2d 46 (2017). 20 U.S.C. § 1415(l) provides

Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C.A. § 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 791 et seq.], or other Federal laws protecting the rights


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of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under [the IDEA], the [IDEA administrative procedures] shall be exhausted to the same extent as would be required had the action been [**18] brought under this subchapter.

20 U.S.C. § 1415(l).

To determine whether the claims sought by Paul under the Rehabilitation Act and ADA must be exhausted just like an IDEA claim, the Supreme Court in Fry v. Napoleon Cmty. Sch. directed the courts to "look to the substance, or gravamen, of the plaintiff's complaint." 137 S. Ct. at 752. In Fry, petitioner E.F. was a child with a severe form of cerebral palsy, who relied on Wonder, a goldendoodle service dog, to assist her with various life activities. Id. at 751. E.F.'s school opted for a human aid to provide E.F. with one-on-one support but forbade Wonder from accompanying E.F. to school. Id. The Frys filed suit against E.F.'s school district alleging violations of Rehabilitation Act and ADA, which the lower court dismissed. Id. at 752. The lower court held that the Frys failed to first exhaust their claims via the IDEA's administrative procedures prior to asserting them in a civil suit. Id. at 752. On appeal, the Supreme Court held that whether the exhaustion requirement applies "hinges on whether a lawsuit seeks relief from the denial of a free appropriate public education." Id. at 754. The Supreme Court further explained that a school's refusal to make an accommodation might injure a child unrelated to a FAPE, [**19] and a complaint seeking redress for other harms independent of any FAPE denial, is not subject to the exhaustion requirement. Id. at 754-55. Fry suggests the following hypothetical questions to determine "whether the gravamen of a complaint" concerns the denial of a FAPE: (1) could the claim be brought if the alleged conduct occurred at a public facility that was not a school?; (2) "could an adult . . . have pressed essentially the same grievance?" Id. at 756 (emphasis in original). Furthermore, Fry noted that the history of the proceedings, such as a plaintiff's prior pursuit of a remedy through the IDEA's administrative

process, "will often provide strong evidence that the substance" of the claim concerns the denial of a FAPE. Id. at 757.

Asking Fry's hypothetical questions in Paul's case, as well as an examination of the history of the proceedings, clearly leads to the conclusion that Paul's Rehabilitation Act and ADA claims concern a denial of FAPE, and that the exhaustion [*1075] requirement would apply. The answer to the first question posed by Fry is "no," because Paul's claims fail when transposed to a public facility that is not a school. The alleged failure to provide residential treatment centers applies solely [**20] in a school setting. As to the second question, there would also be no basis for an adult to demand an in-state residential treatment facility from the CDE. In fact, Paul admits that he is only "entitled to receive a free and appropriate public education until [he turns] twenty-two." FAC ¶ 43 (citing Cal. Ed. Code § 56026). Paul also has previously invoked an IDEA administrative proceeding to achieve this result so the history of the proceeding further supports the conclusion that his claims here involve a denial of FAPE. See also Washington v. Calif. Dep't of Educ., No. 10-0186, 2010 U.S. Dist. LEXIS 111044, 2010 WL 4157139, at *5 (E.D. Cal. Oct. 19, 2010) (dismissing a plaintiff's IDEA and Rehabilitation Act claims for lack of exhaustion and noting that "a necessary exploration of the issues was never accomplished" in the prior administrative action as OAH did not adjudicate the merits of plaintiff's claim due to a settlement agreement); Pedraza v. Alameda Unified Sch. Dist., No. 05-04977, 2007 U.S. Dist. LEXIS 26541, 2007 WL 949603, at *5 (N.D. Cal. Mar. 27, 2007) (holding that IDEA's exhaustion requirement "is not satisfied when parties enter into a mediated settlement agreement") (emphasis in original). As such, Paul's Rehabilitation Act and ADA claims are subject to the exhaustion requirement.

The Court next examines whether Paul's Rehabilitation Act and ADA claims qualify for an exception to exhaustion requirement. Opp'n 9-10. "Exhaustion [**21] of the administrative process allows for the exercise of discretion and educational


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expertise by state and local agencies, affords full exploration of technical educational issues, furthers development of a complete factual record, and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children." Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 (9th Cir. 1992). However, there are certain situations where the procedures set forth in 20 U.S.C. § 1415 need not be exhausted where resort to the administrative process would be either futile or inadequate. Id. The Ninth Circuit has recognized the following exceptions to the exhaustion requirement: "(1) it would be futile to use the due process procedures"; "(2) an agency has adopted a policy or pursued a practice of general applicability that is contrary to the law; and (3) it is improbable that adequate relief can be obtained by pursuing administrative remedies (e.g., the hearing officer lacks the authority to grant the relief sought)." Id. at 1303-04 (citation omitted).

As to Paul's Rehabilitation Act and ADA claims, there is insufficient showing that it would be futile to pursue the due process procedures. Futility applies in the narrow circumstance, [**22] such as when the alleged "statutory violations [are] so serious and pervasive that basic statutory goals are threatened," as those discussed by the Ninth Circuit in Hoeft. E.g., id. at 1304 (noting that it would be futile if the claims involved "[s]erious due process violations [having] the practical effect of denying the plaintiffs a forum for their grievances"). In contrast to the due process violations discussed in Hoeft, it appears from the allegations in the complaint that Paul's failure to pursue his Rehabilitation Act and ADA claims was entirely voluntary. See generally FAC; Ex. 1 to RJN. Specifically, Paul did not assert his Rehabilitation Act and ADA claims in his due process complaint filed with the OAH. Ex. 1 to RJN. Paul also eventually settled his [*1076] IDEA claims with the District. The allegations in the complaint as well as the procedural history demonstrate no due process violations that denied Paul a forum for his Rehabilitation Act and ADA claims. Thus, those claims would not qualify for this exception.

Likewise, the case here also does not satisfy the condition where "an agency has adopted a policy or pursued a practice of general applicability that is contrary to the law." Paul's challenge [**23] to CDE's failure to provide in-state residential treatment facilities is a "technical question of educational policy and methodology," that is best addressed with a "preliminary administrative review before being addressed by the federal courts." Hoeft, 967 F.2d at 1306. Such alleged failure involves decisions of eligibility and whether an in-state treatment program is necessary to Paul's educational needs. The Court is thus best served with the benefit of agency expertise and an administrative record, before determining whether the CDE's failure is contrary to law. Id. at 1308; see also Washington, 2010 U.S. Dist. LEXIS 111044, 2010 WL 4157139, at *6 (noting "whether plaintiff is entitled to a residential program in California and, if so, which parties are responsible for affording her this relief, are "classic examples of the kind of technical questions of educational policy that should initially be resolved with the benefit of agency expertise and a fully developed administrative record").

Turning to the third and last exception, whether "it is improbable that adequate relief can be obtained by pursuing administrative remedies," the Court also finds that this exception does not apply. Paul argues that OAH has already determined that it lacks authority to provide the type of systemic [**24] relief Paul requests. Opp'n 10; Ex. 2 to RJN. Paul also contends that the Supreme Court in Fry has left this question unanswered — "whether exhaustion is required when the plaintiff complains of the denial of a FAPE, but the specific remedy she requests [] is not one that an IDEA hearing officer may award." 137 S. Ct. at 752 n.4. Paul then concludes that his claims qualify for this exception. Paul also avers that because the LEA cannot provide the type of systemic relief he requests, the CDE is obligated to directly provide the requested relief to Paul. 20 U.S.C. § 1413(g)(1)(B).

20 U.S.C. § 1413(g)(1) (B) provides:A State educational agency shall use the payments that would otherwise have been


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available to a local educational agency or to a State agency to provide special education and related services directly to children with disabilities residing in the area served by that local educational agency, or for whom that State agency is responsible, if the State educational agency determines that the local educational agency or State agency, as the case may be —. . .

(B) is unable to establish and maintain programs of free appropriate public education that meet the requirements of subsection (a) . . . .

20 U.S.C. § 1413(g)(1)(B).

The Court disagrees with Paul's contention that "it is improbable that [**25] adequate relief can be obtained by pursuing administrative remedies." Although OAH determined that it lacked authority to provide the type of systemic relief Paul requests, 20 U.S.C. § 1413(g)(1)(B) provides an avenue for CDE to step into LEA's role under such circumstances. However, prior to triggering the obligation to step into the District's shoes and "to provide special education and related services directly to children with disabilities," CDE must first determine that the District "is unable to establish and maintain programs of FAPE [*1077] that meet the "least restrictive environment" standard or other requirements. 20 U.S.C. § 1413(g)(1)(B). Without such a determination by OAH, CDE's obligation is not triggered.

Rivera v. Fremont Union High Sch. Dist. is instructive here. No. 12-05714-EJD, 2013 U.S. Dist. LEXIS 126043, 2013 WL 4674831, at *1 (N.D. Cal. Aug. 30, 2013). Similar to Paul's claims, the plaintiff in Rivera filed a complaint with OAH against the school district and the CDE for failing to "develop residential placements for special education students aged 18 through 22 in California." 2013 U.S. Dist. LEXIS 126043, [WL] at *1. The OAH dismissed the complaint without a full hearing against the school district for lack of standing on behalf of the student and against the CDE for lack of jurisdiction. Id. The plaintiff then filed suit in federal [**26] court, appealing from the OAH decision. Id. Since the filing of the complaint in federal court, the student was

placed in an out-of-state residential facility and stipulated to dismiss the school district with prejudice. Id. The court in Rivera dismissed the complaint for failing to exhaust the administrative remedies. 2013 U.S. Dist. LEXIS 126043, [WL] at *3. The court reasoned that without a finding by OAH that the student "was denied a FAPE, the court cannot order CDE to effectuate the systemic changes requested by Plaintiff." 2013 U.S. Dist. LEXIS 126043, [WL] at *2; see also 20 U.S.C. § 1415(i)(2)(C) (premising the court's ability to order appropriate relief based primarily on its review of the underlying administrative record). The court also recognized the "the compelling challenge plaintiffs in IDEA cases face in choosing between settling in order to place students as soon as possible and pursuing their claims with the hopes of ultimately securing the right to a more appropriate and/or desirable placement for each student." 2013 U.S. Dist. LEXIS 126043, [WL] at *3. Nonetheless, the court concluded that the plaintiff "has already made the difficult decision to settle and must bear the consequences that flow from it." Id.

Just like Rivera, there has been no determination in Paul's case that the District "is unable to establish [**27] and maintain programs of [FAPE]" that meet the "least restrictive environment" standard or other requirements. See 20 U.S.C. § 1413(g)(1)(B). Even though Paul alleges that an instate residential treatment facility is required to provide FAPE in the "least restrictive environment," such claims have not been evaluated by OAH and are not substantiated with a hearing record. The Court agrees with the reasoning set forth in Rivera, that "an administrative due process hearing—not an action in the district court—is the appropriate forum for making [the] initial determinations" as to whether a FAPE was denied. 2013 U.S. Dist. LEXIS 126043, 2013 WL 4674831, at *2; see also Hoeft, 967 F.2d at 1306 (noting that exhaustion applies when the case concerns "technical question of educational policy and methodology," that is best addressed with a "preliminary administrative review before being addressed by the federal courts"). If OAH makes a determination pursuant to a full hearing that Paul


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needs an in-state residential treatment facility, then CDE's obligations could be triggered under 20 U.S.C. § 1413(g)(1)(B), assuming the District is unable to provide that FAPE. If OAH denies Paul's request, Paul could appeal the OAH decision to this Court. Accordingly, regardless of the outcome of the OAH decision, exhaustion is necessary [**28] to trigger CDE's obligation or to provide this Court a substantive hearing record for an appeal. Thus Paul's argument that "it is improbable that adequate relief can be obtained by pursuing administrative remedies," is unfounded.

The Court further recognizes that Paul made the difficult decision to settle with the District rather than proceed with a full [*1078] OAH hearing, a decision that was also made by the plaintiff in Rivera. Nevertheless, this does not obviate the exhaustion requirement and similar to the reasoning set forth in Rivera, Paul "must bear the consequences that flow from [the decision to settle]." Rivera, 2013 U.S. Dist. LEXIS 126043, 2013 WL 4674831, at *3; see also Washington v. Cal. Dep't of Educ., No. 10-0186, 2010 U.S. Dist. LEXIS 111044, 2010 WL 4157139, at *6 (E.D. Cal. Oct. 19, 2010) (finding that the claims subject to exhaustion and that despite a settlement agreement, an exception to the exhaustion requirement did not apply). Given that Paul's Rehabilitation Act and ADA claims are subject to the exhaustion requirement, those claims are dismissed for failing to exhaust the administrative remedies.

ii. Remaining Grounds Raised by CDE

The remaining arguments raised by CDE are moot now that the Court has found that the IDEA claims are barred and that the derivative Rehabilitation Act and ADA claims must be exhausted prior to judicial review.

Whether the [**29] Rehabilitation Act and ADA claims should be dismissed for Paul's failure to join the District and DSS is moot. For example, CDE argues that DSS is the state agency that licenses in-state residential facilities and must be joined to afford the requested relief. Given that the Rehabilitation Act

and ADA claims concern a denial of FAPE and must be dismissed for failing to exhaust administrative remedies, the Court need not reach the issue of whether DSS and the District are required parties to these claims.

Lastly, CDE argues that Paul fails to allege the elements of a discrimination claim in support of the Rehabilitation Act and ADA causes of action. Mot. 22-24. Even assuming that the FAC adequately pleads a discrimination claim, the allegations in support of the Rehabilitation Act and ADA claims concern a denial of FAPE. Such claims concerning a denial of FAPE must be exhausted. Without exhaustion, these claims must still be dismissed regardless of whether the elements of a discrimination claim are met.

C. Leave to Amend

In deciding whether to grant leave to amend, the Court must consider the factors set forth by the Supreme Court in Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962), and discussed at length by the Ninth Circuit in Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2009). [**30] A district court ordinarily must grant leave to amend unless one or more of the Foman factors is present: (1) undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure deficiencies by amendment, (4) undue prejudice to the opposing party, and (5) futility of amendment. Eminence Capital, 316 F.3d at 1052.

Here, having granted CDE's motion to dismiss the IDEA claims based on the statute of limitations, the Court finds that a leave to amend would be an exercise in futility. There is no set of facts that could overcome the statute of limitations so to allow Paul's IDEA claims to proceed. As discussed above, Paul's IDEA claims were filed in this suit past the 90-day limitations period. Paul's complaint and opposition to this motion proffer no additional facts or legal bases that could remedy this deficiency. Accordingly, there is no leave to amend the IDEA claims.


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As to the Rehabilitation Act and ADA claims, the Court provides leave to amend these claims to allege adequate facts to demonstrate that they would not be subject to the exhaustion requirement in accordance with the principles articulated in Fry v. Napoleon Cmty. Sch., [*1079] 137 S. Ct. 743, 197 L. Ed. 2d 46 (2017). The Court acknowledges that the FAC was drafted before the Supreme Court issued its decision in Fry. As [**31] noted above, given that the allegations in support of these claims concern a denial of FAPE, the claims are subject to the exhaustion requirement. If Paul could allege Rehabilitation Act and ADA claims that do not concern a denial of FAPE, those claims might not be subject to the exhaustion requirement.

IV. ORDER

For the foregoing reasons, IT IS HEREBY ORDERED that:

1) The CDE's motion to dismiss is GRANTED with respect to Count V based on the IDEA claims without leave to amend. This dismissal is without prejudice to Paul's right to reassert these claims in the event that there is a future IEP determination that results in a new OAH proceeding that concludes with a decision against Paul's claims.2) The CDE's motion to dismiss is GRANTED as to Counts III and IV (§ 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act claims) with leave to amend; any amended complaint shall be filed on or before July 21, 2017;3) Failure to meet the deadline to file an amended complaint or failure to cure the deficiencies identified in this Order will result in a dismissal of Counts III and IV against CDE with prejudice.

Dated: June 21, 2017

/s/ Beth Labson Freeman

BETH LABSON FREEMAN

United [**32] States District Judge

End of Document


193

Hurd v. Clark Cty. Sch. Dist.

United States District Court for the District of Nevada

September 29, 2017, Decided; September 29, 2017, Filed

Case No.: 2:16-cv-02011-GMN-NJK


BROOK M. HURD, et al., Plaintiffs, vs. CLARK COUNTY SCHOOL DISTRICT, et al., Defendants.

Prior History: Hurd v. Clark Cnty. Sch. Dist., 2017 U.S. Dist. LEXIS 13091 (D. Nev., Jan. 30, 2017)

Counsel: [*1] For Brook M. Hurd, Geraldine C. Hurd, Luis O. Villalobos, Olivia N. Espinoza, Plaintiffs: Ian A Hansen, Peter Alfert, LEAD ATTORNEYS, PRO HAC VICE, Law Offices of Peter Alfert, PC, Walnut Creek, CA; Todd A. Boley, LEAD ATTORNEY, Law Offices of Todd Boley, Alameda, CA; Marianne C. Lanuti, Law Offices of Marianne Lanuti, Henderson, NV.

For Zekrollah Sanaei, Elham Eghdamian, Plaintiffs: Ian A Hansen, LEAD ATTORNEY, Peter Alfert, PRO HAC VICE, Law Offices of Peter Alfert, PC, Walnut Creek, CA; Todd A. Boley, Law Office of Todd Boley, Alameda, CA.

For M. H., a minor, by and through her guardian ad litem other Brook M. Hurd, S. S., a minor, by and through his guardian ad litem other Zekrollah Sanaei, Plaintiffs: Ian A Hansen, LEAD ATTORNEY, Peter Alfert, PRO HAC VICE, Law Offices of Peter Alfert, PC, Walnut Creek, CA; Todd A. Boley, Law Office of Todd Boley, Alameda, CA; Marianne C. Lanuti, Law Offices of Marianne Lanuti, Henderson, NV.

For Clark County School District, Shawn Paquette, Kristy Keller, Defendants: Mark E Ferrario, LEAD ATTORNEY, Kara B. Hendricks, Greenberg Traurig, Las Vegas, NV; Whitney Welch, LEAD ATTORNEY, c/o Greenberg Traurig, Las Vegas, NV.

For James P. Doran, Defendant: [*2] Trevor J.

Hatfield, LEAD ATTORNEY, Hatfield & Associates, Ltd., Las Vegas, NV.

Judges: Gloria M. Navarro, Chief United States District Judge.

Opinion by: Gloria M. Navarro

Opinion

ORDER

Pending before the Court is the Motion to Dismiss, (ECF No. 20), filed by Defendants Clark County School District, Kristy Keller, and Shawn Paquette (collectively "Defendants"). The Motion is joined by Defendant James P. Doran, (ECF No. 30). Plaintiffs L.M.V., M.H., S.S. ("the Students") and Brook M. Hurd, Geraldine C. Hurd, Luis O. Villalobos, Olivia N. Espinoza, Zerkrollah Sanaei, and Elham Eghdamian ("the Parents") (collectively "Plaintiffs") filed a response, (ECF No. 24), and Defendants filed a reply, (ECF No. 25). For the reasons discussed herein, Defendants' Motion to Dismiss is GRANTED in part and DENIED in part.1

I. BACKGROUND

This action arises out of the alleged physical and

1 Also pending before the Court is Plaintiffs' Motion for Leave to File Supplemental Authority, which concerns a recent Supreme Court ruling. (ECF No. 37). Defendants responded in opposition to the extent Plaintiffs additionally submitted non-binding authority. (ECF No. 39). For good cause appearing, and recognizing the additional authority as non-binding, the Court grants Plaintiffs' Motion.

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verbal abuse of three special education students—M.H., L.M.V., and S.S—at Forbuss Elementary ("Forbuss"). (Am. Compl. ¶¶ 18-22, ECF No. 14). Defendant Doran ("Doran") was a Clark County School District ("CCSD") teacher at the time of the alleged abuse. (Id. ¶ 11). Defendant Shawn Paquette ("Paquette") was the principal at Forbuss, and Defendant Kristy [*3] Keller ("Keller") was the Assistant Chief Student Achievement Officer. (Id. ¶ 12, 13).

On or about August 24, 2014, the Students were assigned to Doran's special education classroom at the school. (Id. ¶ 19). While enrolled, Plaintiffs allege that Doran subjected the Students to a "litany of physical and verbal abuses." (Id. ¶¶ 23-26). With respect to L.M.V, these abuses allegedly included "being pushed and grabbed, having his hands forcefully slapped and hit, and being thrown into classroom furniture." (Id. ¶ 23). With respect to M.H., these abuses allegedly included being "grabbed and shoved into a wall" and lifted off the floor by her hair. (Id. ¶ 24). With respect to S.S., these abuses allegedly included "being grabbed hard enough to leave marks, being grabbed by the arm so hard as to cause the muscles and/or tendons and/or bones of his arm to be seriously injured, having [his] feet stepped on by DORAN [] and being kicked by DORAN as he lay on the floor." (Id. ¶ 25). In addition to the direct abuse, Plaintiffs allege that the Students observed Doran abuse other class members. (Id. ¶ 26).

Plaintiffs further allege that Paquette and Keller were aware of what was going on in Doran's [*4] classroom but "failed to take prompt action to protect the children in their care or to report the abuse to law enforcement or to parents." (Id. ¶ 32). While the families of L.M.V. and M.H. did eventually receive reports from CCSD that Doran had used prohibited "aversive interventions" on their children, Plaintiffs assert that Defendants tried to "minimize the nature of the abuse" by falsely telling the families that the incidents were a "one-time only" occurrence. (Id. ¶ 34). Furthermore, Plaintiffs assert that Defendants did not even inform the Parents that

Doran was under a criminal investigation at the time. (Id.).

In July 2015, a formal criminal complaint was filed against Doran, charging him with three counts of battery for willfully and unlawfully using force or violence against L.M.V. (Id. ¶ 35). According to Plaintiffs, however, Defendants still did not inform the Parents of the criminal charges. (Id.). Furthermore, during the six week intervening period between the criminal complaint and Doran's eventual arrest, Plaintiffs assert that Doran was permitted to continue teaching the students. (Id. ¶ 35). Plaintiffs claim that although they learned some of the details of the abuse [*5] after reading about it in a Review Journal article on August 26, 2015, Defendants have still failed to formerly notify the Parents of the extent of the abusive acts. (Id. ¶ 37).

On October 27, 2016, Plaintiffs filed their Amended Complaint (the "Complaint") before the Court. (ECF No. 14). In their Complaint, Plaintiffs allege a number of federal and state law causes of action, including: (1) violation of constitutional rights under 42 U.S.C. § 1983; (2) discrimination in violation of the Americans with Disabilities Act; (3) violation of the Rehabilitation Act of 1973; (4) battery; (5) criminal violations motivated by characteristics of the victim; (6) intentional infliction of emotional distress; (7) negligence; (8) negligent supervision; and (9) enhanced damages for injury or loss suffered by a vulnerable person. On December 1, 2016, Defendants filed the instant Motion to Dismiss. (ECF No. 20).

II. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. See North Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally [*6] cognizable claim and the grounds on

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which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). In considering whether the complaint is sufficient to state a claim, the Court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

The Court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Twombly, 550 U.S. at 555) (emphasis added). In order to survive a motion to dismiss, a complaint must allege "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion . . . . However, material which is properly submitted as part of the complaint may be considered on a motion to dismiss." [*7] Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). Similarly, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss" without converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Under Federal Rule of Evidence 201, a court may take judicial notice of "matters of public record." Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary

judgment. See Fed. R. Civ. P. 12(d); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).

If the court grants a motion to dismiss, it must then decide whether to grant leave to amend. Pursuant to Rule 15(a), the court should "freely" give leave to amend "when justice so requires," and in the absence of a reason such as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc." Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962). Generally, leave to amend is only denied when it is clear that the deficiencies of the complaint cannot be cured by amendment. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).

III. DISCUSSION

In the instant Motion, Defendants [*8] argue that Plaintiffs' federal law causes of action should be dismissed because Plaintiffs failed to exhaust administrative remedies. (Mot. to Dismiss 7:6-11:19, ECF No. 20). In addition, Defendants argue that Plaintiffs' federal and state law causes of action should be dismissed for failure to state a claim. (Id. 11:20-19:12). Defendants further argue that, even if Plaintiffs sufficiently stated a claim, Paquette and Keller are entitled to qualified and discretionary immunity on the section 1983 claim and certain state law claims. (Id. 20:4-22:15). The Court addresses the sufficiency of each argument in turn.

A. Administrative Exhaustion

Defendants argue that Plaintiffs are required to exhaust administrative remedies pursuant to the Individuals with Disabilities Education Act ("IDEA"). (Id. 7:7-12). In support of this argument, Defendants assert that "Plaintiffs appear to seek recovery based at least in part on allegations related to the education and educational service provided to

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the Student Plaintiffs." (Id.).

The Individuals with Disabilities Act ("IDEA"), codified at 20 U.S.C. § 1400 et seq., is a comprehensive federal scheme that "confer[s] on disabled students a substantive right to public education and provide[s] financial assistance [*9] to enable states to meet their financial needs." Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1300 (9th Cir.1992). "Federal funding is conditioned upon state compliance with the IDEA's extensive substantive and procedural requirements." Id. "To qualify for federal funds, the state must have in effect 'a policy that assures all children with disabilities the right of a free appropriate public education.'" Id. (quoting 20 U.S.C. § 1412(1)). The "free appropriate public education" is often referred to as a "FAPE." Under IDEA, the exhaustion requirement provides:

Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C. 12101 et seq.], Title V of the Rehabilitation Act of 1973 [29 U.S.C. 790 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

20 U.S.C. § 1415(l) (alterations in original).

In Payne v. Peninsula Sch. Dist., the Ninth Circuit adopted a "relief-centered" approach that district courts should employ when [*10] determining whether a plaintiff must meet IDEA's exhaustion requirements. 653 F.3d 863, 874 (9th Cir.2011). Under this approach, "IDEA's exhaustion provision applies only in cases where the relief sought by a plaintiff in the pleadings is available under the IDEA." Id. at 871. The Ninth Circuit further clarified that "when determining whether the IDEA requires a plaintiff to exhaust, courts should start by looking at a complaint's prayer for relief and determine whether

the relief sought is also available under the IDEA. If it is not, then it is likely that § 1415(l) does not require exhaustion in that case." Id. at 875.

More recently, the Supreme Court addressed this same interplay between IDEA exhaustion and other federal statutes. See Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 197 L. Ed. 2d 46 (2017). In Fry, the Supreme Court stated that "[t]he only relief that an IDEA officer can give—hence the thing a plaintiff must seek in order to trigger § 1415(l )'s exhaustion rule—is relief for the denial of a FAPE." Id. at 753. The Supreme Court therefore found that the "exhaustion rule hinges on whether a lawsuit seeks relief for the denial of a free appropriate education. If a lawsuit charges such a denial, the plaintiff cannot escape § 1415(l) merely by bringing [] suit under a statute other than the IDEA." Id. at 754. Thus, the critical factor for [*11] courts to consider is whether "the gravamen of a complaint seeks redress for a school's failure to provide a FAPE." Id. at 755. If the gravamen of the complaint concerns something other than the denial of a FAPE, then no exhaustion is required. Id.

In analyzing the gravamen of the complaint, the Supreme Court offered three "clues" for courts to look for: (1) whether the plaintiff could have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school; (2) whether an adult at the school could have pressed essentially the same grievance; and (3) whether parents, before filing suit under the ADA or the Rehabilitation Act, began to pursue but then abandoned the IDEA's formal procedures. Id. at 756-57.

Here, the Court finds that the gravamen of the Complaint does not seek redress for the school's failure to provide a FAPE. Notably, the complaint makes no direct reference to the adequacy of the special education services provided at the Students' school. Rather, Plaintiffs' claims focus almost exclusively on the injuries caused by the alleged discrimination and abuse. In this sense, Plaintiffs' allegations would be actionable whether the conduct occurred at [*12] a non-school public facility or

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against adults. While Plaintiffs do concede some of the Parents initially sought relief through IDEA's formal procedures, this factor alone is insufficient to alter the gravamen of the complaint. See Fry, 137 S. Ct. at 757 (acknowledging that a plaintiff may abandon IDEA procedures after realizing that their grievance involves something other than a FAPE complaint). Based on the Complaint, it appears likely that the Parents pursued relief through IDEA procedures before being fully aware of the extent of Doran's alleged abuse.

Defendants do not contest that the relief sought in the Complaint does not facially concern the deprivation of a FAPE. Rather, Defendants argue that two specific statements in the Complaint indicate that Plaintiffs' claims are actually based on denial of a FAPE. (See Mot. to Dismiss 9:9-19). The first statement that Defendants take issue with is that "[b]y subjecting the minor plaintiffs to ongoing physical and verbal abuse, L.M.V., M.H., and S.S. were unable to enjoy the benefits of education." (Am. Compl. ¶ 114). With respect to this statement, however, Plaintiffs are not challenging the quality or accessibility of the FAPE itself but rather the Students' [*13] ability to benefit from the FAPE in light of the abuse. Therefore, the focus of this allegation is still on the impact of the alleged abuse and not the failure to provide a FAPE. The second statement that Defendants take issue with is that Doran's conduct was "objectively unreasonable under the circumstances and in light of the educational objectives L.M.V., M.H., and S.S. were trying to achieve." (Id. ¶ 104). Again, the focus of Plaintiffs' statement is not on the deprivation of a FAPE. Rather, the statement only references educational objectives insofar as it highlights the alleged unreasonableness of Doran's actions. Based on the above, the Court finds that the gravamen of the Complaint does not seek redress for the failure to provide a FAPE, and therefore administrative exhaustion is not required in this case.

B. Failure to State a Claim—Federal Law Claims

1. Americans with Disabilities Act and Rehabilitation Act

Defendants next argue that the Complaint fails to state a claim under the Americans with Disabilities Act ("ADA") and Rehabilitation Act. (See Mot. to Dismiss 13:16-14:15). Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such [*14] disability, be excluded from participation in or be denied access to or benefit of any services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. To state a claim under Title II, a plaintiff must allege that he is a "qualified individual with a disability" and that the defendant denied him benefits or services "by reason of" his disability. Duvall v. Cty. Of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001); 42 U.S.C. § 12132. Furthermore, to state a claim for money damages, a plaintiff must allege that the defendant was "deliberately indifferent" to the discrimination. Id. at 1138. In the context of education, deliberate indifference means that the school district knew that harm to a federally protected right was "substantially likely" but failed to act. Id. The elements of a Rehabilitation Act claim do not differ in any relevant respect and therefore can be addressed together. Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999).

Defendants argue that Plaintiffs fail to identify "CCSD's alleged wrongful acts, [and instead] the Complaint summarily concludes that CCSD was deliberately indifferent to claims of abuse." (Mot. to Dismiss 14:7-10). According to Defendants, "there are no facts to support Plaintiffs' conclusion that CCSD's acts were motivated based on disability discrimination [*15] simply because the Plaintiffs were special education students." (Id. 14:10-14). The Court disagrees. Defendants' contention ignores the well-established rule that a public entity may be held liable in respondeat superior for the acts of its employees. Duvall, 260 F.3d at 1141.

To that end, Plaintiffs allege that Paquette and Keller were deliberately indifferent by allowing Doran's abuse against disabled students to continue for months and misleading the Parents as to the extent

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of the abuse. (Id. ¶¶ 118, 119); see Roe v. Nevada, 332 F. Supp. 2d 1331, 1341 (D. Nev. 2004) (finding ADA claims established by allegations that defendants had notice of the alleged student abuse and yet failed to act). This assertion is premised on the theory that non-disabled children were not subjected to the same acts of abuse and inequality. (Id. ¶ 114, 115).

In Reply, Defendants argue that, even if vicarious liability applied, Plaintiffs have failed to plead that the CCSD employees were acting in the course and scope of their employment. (Defs.' Reply 8:17-27, ECF No. 25). The Court again disagrees. As alleged, Paquette and Keller were plausibly acting in the scope of their employment by meeting and communicating with the Parents regarding the abuse allegations. (See Am. Compl. ¶ 34). [*16] Furthermore, with respect to Doran, it is plausible that acting as a special education teacher would occasionally necessitate a level of non-aversive physical contact or verbal force as part of his duty to "exercise control" over the classroom. To the extent Doran exceeded that force, the Court cannot determine at this time that Doran's actions fell outside the scope of his employment. See Ray v. Value Behavioral Health, Inc. 967 F. Supp. 417, 422 (D. Nev. 1997) (determining that scope of employment issue could not be resolved at motion to dismiss phase because no fact discovery regarding the scope of employment had been developed). Accordingly, the Court denies Defendants' Motion to Dismiss as to the ADA and Rehabilitation Act claims.

2. Violation of Constitutional Rights Under 42 U.S.C. § 1983

Defendants argue that the section 1983 claim fails because the Plaintiffs have not alleged that a CCSD policy "led to the violations of Plaintiffs' rights by Doran." (Mot. to Dismiss 12:2-6). In Response, Plaintiffs concede that "the basis of the claim against CCSD for violation of Plaintiffs' constitutional rights should be clarified." (Response 15:9-12). Accordingly, the Court grants dismissal of this claim without

prejudice.2

C. Failure to State a Claim—State Law Claims

1. Battery

Defendants [*17] argue that CCSD cannot be liable for battery because Plaintiffs have failed to sufficiently allege vicarious liability. (Mot. to Dismiss 14:19-15:2). In Nevada, an employer may be held vicariously liable for the tortious conduct of its employees when the employees' conduct was in furtherance of their employment or within the scope of their employment. Wood v. Safeway, Inc., 121 Nev. 724, 121 P.3d 1026, 1036 (Nev. 2005). As explained above, the Court finds that Plaintiffs have alleged sufficient facts to plausibly establish that Doran was acting within the scope of his employment. A more detailed argument on the actual merits of this issue is premature at this stage. See Ray, 967 F. Supp. at 422. The Court therefore denies Defendants' Motion to Dismiss as to this claim.

2. Intentional Infliction of Emotional Distress

Defendants argue that the Parents do not have standing to bring a claim for intentional infliction of emotional distress ("IIED") against Doran and vicariously against the CCSD. (Mot. to Dismiss 16:9-14). In Nevada, a third-party bystander may recover on an IIED claim if the bystander has a sufficiently "close relationship" with the victim and witnessed the incident. Star v. Rabello, 97 Nev. 124, 625 P.2d 90, 92 (1981); see also Cardinale v. La Petite Acad., Inc., 207 F. Supp. 2d 1158, 1161 (D. Nev. 2002) (holding that parents could not recover under IIED for alleged abuse of their children [*18] at preschool absent allegations that they witnessed the abuse). Here, the

2 As the Court is dismissing this claim without prejudice, the Court finds it premature to rule on Defendants' qualified immunity argument. With respect to Defendants' argument concerning Paquette and Keller "acting in their official capacity," the Complaint does not indicate that those parties are sued in their official capacity. Therefore, Defendants' argument is moot.

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Complaint contains no allegations that the Parents personally witnessed any of the alleged abuse. Accordingly, the Court grants dismissal of the Parents' IIED claim against Doran and against CCSD to the extent it is premised on Doran's conduct.

Defendants additionally argue that Plaintiffs fail to state an IIED claim as to Paquette and Keller. (Mot. to Dismiss 16:15-17). To establish a claim of IIED a plaintiff must demonstrate that: (1) a defendant engaged in "extreme and outrageous conduct with either the intention of, or reckless disregard for, causing emotional distress; (2) [the plaintiff] suffered severe or extreme emotional distress; and (3) actual or proximate causation." Posadas v. City of Reno, 109 Nev. 448, 851 P.2d 438, 444 (Nev. 1993). "[E]xtreme and outrageous conduct is that which is outside all possible bounds of decency and is regarded as utterly intolerable in a civilized community"; however, this description does not encompass acts which are merely "inconsiderate" or "unkind." Maduike v. Agency Rent-A-Car, 114 Nev. 1, 953 P.2d 24, 26 (Nev. 1998).

Here, the core of Defendants' arguments is that "Plaintiffs' claim relies solely on allegations that the CCSD Defendants' response to unidentified and unknown acts of abuse [*19] by Doran was insufficient." (Mot. to Dismiss 17:6-10). This argument, however, is directly contradicted by the allegations in the Complaint. Specifically, the Complaint alleges that Paquette and Keller knew of the abuse, withheld information as to the extent of the abuse from the parents, and withheld information even in light of the criminal investigation. (See Am. Comp. ¶¶ 31, 34, 148-149). Taking these allegations as true, the Court finds that knowingly withholding information and allowing a potentially abusive teacher to continue interacting with the Students plausibly gives rise to an IIED claim. The Court therefore denies Defendants' Motion to Dismiss on this aspect of Plaintiffs' IIED claim.

3. Negligence and Negligent Supervision

Defendants argue that Plaintiffs' "failure to warn" negligence claim fails to state a claim. (Mot. to Dismiss 17:12-18). Additionally, Defendants argue

that Plaintiffs' negligent supervision claim fails because the Complaint does not establish a causal link between Defendants' supervision and Doran's abuse.3 (Id. 19:5-7).

Liability for a failure to warn claim exists where there is a special relationship between the parties and the danger is foreseeable. [*20] See Mangeris v. Gordon, 94 Nev. 400, 580 P.2d 481, 483 (Nev. 1978). Moreover, liability for negligent supervision exists where: (1) the employer knew the employee acted in a negligent manner; (2) the employer failed to train or supervise the employee adequately; and (3) the employer's negligence proximately caused the plaintiffs injuries. Helle v. Core Home Health Servs. of Nevada, 124 Nev. 1474, 238 P.3d 818 (Nev. 2008).

Here, Defendants do not contest that a special relationship exists between the parties. Rather, Defendants argue that they "had no knowledge of abuse, only a concern regarding improper restraint of which the Parent Plaintiffs were notified." (Mot. to Dismiss 18:4-6). This argument fails for the same reasons already discussed previously in this Order. Plaintiffs have sufficiently alleged that Defendants had knowledge of the abuse, and therefore the danger to the Students was foreseeable. (See Am. Compl. ¶¶ 31-32, 34-37). The alleged failure to reasonably act on that knowledge gives rise to both the negligence and negligent supervision claim. The Court therefore denies Defendants' Motion to Dismiss as to these claims.

D. Discretionary Act Immunity

Defendants argue that Paquette and Keller are entitled to discretionary act immunity with respect to the IIED, negligence, and negligent supervision claims. (See Mot. [*21] to Dismiss 21:5-7). In Nevada, no negligence action may be brought against an employee of the state "[b]ased upon the exercise or performance or the failure to exercise or perform a

3 While the Complaint includes allegations related to Doran's hiring, the stated cause of action is only for "negligent supervision." Accordingly, the Court limits its analysis to the negligent supervision claim.

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discretionary function or duty . . . whether or not the discretion involved is abused." Nev. Rev. Stat. § 41.032(2). Nevada looks to federal law regarding the Federal Tort Claims Act (the "FTCA") when analyzing claims of discretionary act immunity, and has adopted the Berkovitz—Gaubert test for determining whether a decision falls within the scope of that immunity. Martinez v. Maruszczak, 123 Nev. 433, 168 P.3d 720, 727-29 (Nev. 2007); see also Butler ex rel. Biller v. Bayer, 123 Nev. 450, 168 P.3d 1055, 1066 n.50 (Nev. 2007) ("The discretionary-act immunity provision contained in NRS 41.032(2) is 'virtually identical' to the discretionary-act immunity provision found in the [FTCA], 28 U.S.C. § 2680(a) (2000)."). Under that test, in order to qualify for discretionary-act immunity, "a decision must (1) involve an element of individual judgment or choice and (2) be based on considerations of social, economic, or political policy." Id. at 729.

As a preliminary matter, the Court notes that discretionary act immunity does not extend to intentional torts. See Franchise Tax Bd. of Cal. v. Hyatt, 335 P.3d 125, 139 (Nev. 2014) ("[D]iscretionary-function immunity under NRS 41.032 does not include intentional torts and bad-faith conduct"). Defendants' argument therefore fails as to the IIED claim. With respect to the negligence [*22] claims, the question then turns on whether Paquette and Keller's actions were "discretionary" in light of the fact that the very same allegations give rise to the IIED claim. Within this context, the Court finds that Paquette and Keller's alleged actions were not discretionary. Notably, the Complaint alleges that Paquette and Keller "attempted to cover up [the Students'] abuse" by minimizing the abuse to the Parents. (Am. Compl. ¶¶ 34, 37, 148).4 Taking the

4 The Complaint further alleges that Paquette and Keller had a legal duty to report the alleged abuse to law enforcement or a child welfare agency. (Id. ¶ 156-158). Defendants fail to address this allegation in their briefing. To the extent the allegation is true, however, Paquette and Keller would not be entitled to discretionary act immunity. See Nurse v. United States, 226 F.3d 996, 1002 (9th Cir. 2000) (stating in applying the FTCA's discretionary function exception that "in general, governmental conduct cannot be discretionary if it violates a legal mandate").

allegations as true, the Court finds that such actions are not "based on considerations of social, economic, or political policy." The Court therefore rejects Defendants' discretionary act immunity argument at this time.

E. Leave to Amend

Rule 15(a)(2) of the Federal Rules of Civil Procedure permits courts to "freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). The Ninth Circuit "ha[s] held that in dismissing for failure to state a claim under Rule 12(b)(6), 'a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.'" Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)).

The Court finds that Plaintiffs may be able to plead additional facts to support their section 1983 claim. Accordingly, the Court will grant [*23] Plaintiffs leave to file an amended complaint. Plaintiffs shall file their amended complaint within twenty-one days of the date of this Order if they can allege sufficient facts that plausibly establish the section 1983 claim.

IV. CONCLUSION

IT IS HEREBY ORDERED that the Motions to Dismiss, (ECF Nos. 20, 30), are GRANTED in part and DENIED in part consistent with the foregoing.

IT IS FURTHER ORDERED that Plaintiffs' Motion for Leave to File Supplemental Authority, (ECF No. 37), is GRANTED.

IT IS FURTHER ORDERED that Plaintiffs shall have twenty-one days from the filing of this Order to file an amended complaint. Failure to file an amended complaint by this date shall result in the Court dismissing the section 1983 claim with prejudice.

DATED this 29 day of September, 2017.

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/s/ Gloria M. Navarro

Gloria M. Navarro, Chief Judge


End of Document

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202

Williams v. Eugene Sch. Dist. 4J

United States District Court for the District of Oregon


Case No. 6:16-cv-00890-TC ORDER


SARAH GRACE WILLIAMS, THOMAS ERIC BRUNNER-WILLIAMS, and MARY BETH WILLIAMS, Plaintiffs, v. EUGENE SCHOOL DISTRICT 4J, and LANE EDUCATION SERVICES DISTRICT, Defendants.

Prior History: Williams v. Eugene Sch. Dist. 4J, 2016 U.S. Dist. LEXIS 185145 (D. Or., Nov. 17, 2016)

Counsel: [*1] For Sarah Grace Williams, Thomas Eric Williams-Brunner, Mary Beth Williams, Plaintiffs: Melissa D. Wischerath, Law Office of M.D. Wischerath, Eugene, OR.

For Eugene School District 4J, Lane Education Service District, Defendants: Rebekah R. Jacobson, Garrett Hemann Robertson, Salem, OR.

Judges: ANN L. AIKEN, United States District Judge.

Opinion by: ANN L. AIKEN

Opinion

ORDER

AIKEN, Judge:

Magistrate Judge Thomas M. Coffin issued Findings and Recommendation in the above-captioned case, recommending that defendants' motion to dismiss (doc. 14) should be granted. The matter is now before me. See 28 U.S.C. § 636(b)(1)(B) and Fed. R. Civ. P. 72(b).

When either party objects to any portion of a magistrate judge's Findings and Recommendation,

the district court must make a de novo determination of that portion of the magistrate judge's report. 28 U.S.C. § 636(b)(1); McDonnell Douglas Cmp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Plaintiffs filed objections to the Findings and Recommendation. Upon de novo review, I find no error.

Plaintiffs' 504 Claims against the Eugene School District are precluded, Dodd v. Hood River County, 59 F.3d 852, 861 (9th Cir. 1995), as is the Claim for Fraudulent Misrepresentation and Concealment, id.; Bloomfield v. Weakland, 339 Ore. 504, 123 P.3d 275, 280 (Ore. 2005).

Further, the Supreme Court's recent decision in Fry v. Napoleon Community Schools, 137 S. Ct. 743, 197 L. Ed. 2d 46, 2017 WL 685533, at *10-12 (2017) leaves intact the Ninth Circuit's "relief-centered" approach to exhaustion of remedies in an Individuals with Disabilities Education Act [*2] claim (or claims that should have been plead as such) as applied by Judge Coffin in this case. See Payne v. Peninsula School District, 653 F.3d 863, 875-76 (9th Cir. 2011) (overturned on other grounds by Albino v. Baca, 747 F.3d 1162, 1169-71 (9th Cir. 2014).

Accordingly, IT IS HEREBY ORDERED that Magistrate Judge Coffin's Findings and Recommendation (doc. 23) is ADOPTED in its entirety. The Defendants' motion to dismiss (doc. 14) is GRANTED. Plaintiffs' Section 504 Claim and Claim for Fraudulent Misrepresentation and Concealment against the Eugene School District are dismissed with prejudice. However, plaintiffs are granted leave to amend and refile clarified Section 504 claims and claims for discrimination in violation of ORS 659.850 against Lane Education Service

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District within 60 days (doc. 23).

IT IS SO ORDERED.

DATED this 10th day of March 2017.

/s/ Ann L. Aiken

ANN L. AIKEN


End of Document

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Gallegos v. Adams Cty. Sch. Dist. 14

United States District Court for the District of Colorado

September 25, 2017, Decided; September 25, 2017, Filed

Civil Action No. 17-cv-00306-CMA-NYW


MARK GALLEGOS, an individual, LISA GALLEGOS, an individual, and TYLER GALLEGOS, an individual, Plaintiffs, v. ADAMS COUNTY SCHOOL DISTRICT 14 and ADAMS CITY HIGH SCHOOL, Defendants.

Counsel: [*1] For Mark Gallegos, an individual, Lisa Gallegos, an individual, Tyler Gallegos, an individual, Plaintiffs: Craig Delbert Johnson, Craig D. Johnson & Associates, P.C., Broomfield, CO.

For Adams County School District 14, Adams City High School, Defendants: Mary Barham Gray, Michael Brent Case, Holly Eileen Ortiz, Semple, Farrington & Everall, P.C., Denver, CO.

Judges: Nina Y. Wang, United States Magistrate Judge.

Opinion by: Nina Y. Wang

Opinion

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Nina Y. Wang

This matter comes before the court on Defendants Adams County School District 14 (the "District") and Adams City High School's ("ACHS") (collectively, "Defendants") Motion to Dismiss Second Amended Complaint ("Motion to Dismiss"). [#30, filed March 22, 2017]. Also before the court is Plaintiffs' Motion to Amend Complaint ("Motion to Amend"). [#42, filed May 8, 2017]. The Motions were referred to the undersigned Magistrate Judge pursuant to the Order

Referring Case dated March 10, 2017 [#21] and the memoranda dated March 23, 2017 [#31] and May 8, 2017 [#43]. After carefully reviewing the Motions and related briefing, the entire case file, and the applicable case law, I respectfully recommend that the [*2] Motion to Dismiss be GRANTED and the Motion to Amend be DENIED.

PROCEDURAL AND FACTUAL BACKGROUND

Plaintiffs Mark Gallegos and Lisa Gallegos and their son Tyler Gallegos,1 along with daughter Taia Gallegos, initiated this civil action by filing a Complaint in the District Court for Adams County, Colorado on September 26, 2016. [#3]. Plaintiffs named as Defendants the District and ACHS, along with six individuals, and asserted eight statutory, constitutional, and common law claims for relief arising from allegations that the District and certain of its employees had discriminated against Tyler Gallegos and denied him an adequate public education during the school years of 2011 through spring of 2015, when Tyler was a student at ACHS.2 See id. On or about January 10, 2017, Plaintiffs filed an Amended Complaint in state court. See [#4]. Plaintiffs served Defendants with the Summons and Amended Complaint the following day. See [#1-6].

1 The court uses Tyler's first name at times for ease of reference and to distinguish him from his parents who share the same last name. However, the court's use of his first name is not, and should not be construed as, a suggestion that Plaintiff Tyler Gallegos is afforded less respect than any other individual proceeding before this court.

2 ACHS and the District are indistinct for the purposes of liability and damages. See Dorsey v. Pueblo School District 60, 140 F. Supp. 3d 1102, 1102, 1122 (D. Colo. 2015) (citing Colo. Rev. Stat. § 22-32-101).

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On February 1, 2017, Defendants removed the action to this District, asserting jurisdiction pursuant to 28 U.S.C. § 1331. See [#1].

On March 16, 2017, with the consent of Defendants and leave of court, Plaintiffs filed a Second Amended Complaint that omitted the individuals [*3] as defendants and Taia Gallegos as a plaintiff. [#27]. See also [#22, #26]. The Second Amended Complaint asserts as claims one and two that Defendants discriminated against Tyler because he is Hispanic, in violation of Title II of the Civil Rights Act of 1964, ("Title II"), 42 U.S.C. § 2000a and 42 U.S.C. § 1983, and asserts as claim three that Defendants failed to "develop, implement, and maintain a Section 504 assistance plan" to accommodate Tyler's diagnosed disabilities of anxiety disorder and depression, in violation of the Americans with Disabilities Act, 42 U.S.C. §12101, et. seq. ("ADA") and the Rehabilitation Act of 1973, ("Rehabilitation Act"), 29 U.S.C. §701, et. seq. See generally [#27]. Plaintiffs seek monetary damages of an unspecified amount. See id.

The supporting allegations are as follows. Prior to entering ACHS, Tyler was evaluated for, and it was determined he had, disabilities that necessitated the implementation of an individual education plan under Section 504 of Title II ("504 Plan"), and that the 504 Plan would be updated annually. [#27 at ¶ 7]. Such a plan was then developed and implemented for Tyler. The 504 Plan was not maintained, however, once Tyler entered ACHS. Additionally, Tyler was subjected to racial and sexual discrimination in that he was "falsely...accused [*4] by District employees of criminal acts, ... [and of] being a homosexual," and was singled out for discipline because he is Hispanic. [Id. at ¶ 9]. During the fall of 2014, members of The Denver Post ("Post"), with Defendants' permission, visited ACHS and interviewed and filmed students, including Tyler, to develop a written and filmed series titled, "Everything Matters." [Id. at ¶ 10]. The Post did not obtain permission from parents of the students prior to the interviews or prior to publishing the series. [Id.] In early 2015, Plaintiffs filed claims with the Colorado Civil Rights Division complaining of racial and sexual discrimination by the District and

its employees. [Id. at ¶ 11]. Plaintiffs then filed a claim for retaliation against the District. As a result of the complaints, the District "was required to carry out certain remedial actions...but has failed to fully take care of all responsibilities to which it agreed." [Id.] Tyler was subsequently falsely accused of criminal misconduct, accused of breaking certain rules of the ACHS football team, removed from the team, suspended from classes, suspended from ACHS altogether, and placed in isolation separate from the rest of ACHS's [*5] school population. Eventually, Defendants required Tyler to complete his high school diploma by alternative means in the spring of 2015. [Id. at ¶ 12]. Plaintiffs suffered financial losses and loss of familial relationships as a direct result of these actions, and Tyler suffered "injuries, damages, and emotional losses." [Id. at ¶¶ 13, 14].

On March 22, 2017, Defendants filed the pending Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [#30]. They argue that the court should dismiss the Title II claim because that statute does not apply to school districts and does not authorize damages, and the § 1983 claim fails because Plaintiffs do not allege similarly situated non-Hispanic students were treated differently. Defendants argue the ADA and Rehabilitation Act claim fails because Plaintiffs do not allege the District discriminated against Tyler due to his disability, and, rather, Plaintiffs allege the District failed to properly maintain the 504 Plan, and thus the cause of action should be brought pursuant to the Individuals with Disabilities in Education Act. [#30].

This court originally set a Scheduling Conference to be held March 24, 2017, and continued the Scheduling Conference to April 4, 2017 at [*6] the Parties' request. See [#16]. On March 31, 2017, the Parties filed a Joint Motion to Stay discovery and associated deadlines pending resolution of the Motion to Dismiss. See [#33]. This court granted the motion in part and vacated the Scheduling Conference. [#36].

On April 12, 2017, Plaintiffs filed a Response to the Motion to Dismiss generally opposing Defendants'

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contentions, but asserting in the alternative that the court should allow Plaintiffs to amend the pleading rather than dismiss the action. See [#37 at 7-8]. Plaintiffs attached a proposed Third Amended Complaint to their Response. See [#37-1]. On May 8, 2017, Plaintiffs filed the pending Motion to Amend, asserting that they were filing it "in the alternative to tie into the arguments [they] have made in their Response to the pending Motion to Dismiss." [#42]. On May 9, 2017, Defendants filed a Reply in support of the Motion to Dismiss. [#44]. On May 16, 2017, Defendants filed a Response to the Motion to Amend, and, on May 23, 2017, Plaintiffs filed a Reply. [#47]. The Motions are now ripe for determination.

STANDARD OF REVIEW

I. Fed. R. Civ. P. 12(b)(1)

Federal courts, as courts of limited jurisdiction, must have a statutory basis for their jurisdiction. [*7] See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)). Pursuant to Federal Rule of Civil Procedure 12(b)(1), the court may dismiss a complaint for lack of subject matter jurisdiction. The determination of a court's jurisdiction over subject matter is a question of law. Madsen v. United States ex. U.S. Army, Corps of Engineers, 841 F.2d 1011, 1012 (10th Cir. 1987). "A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).

II. Fed. R. Civ. P. 12(b)(6)

Under Rule 12(b)(6), a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must "accept as true all well-pleaded factual allegations ... and view these allegations in the light most favorable to the

plaintiff." Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However, a plaintiff may not rely on mere labels or conclusions, "and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

Rather, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). Plausibility refers "to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs 'have not nudged [*8] their claims across the line from conceivable to plausible.'" Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citation omitted). "The burden is on the plaintiff to frame 'a complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Id. The ultimate duty of the court is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

III. Fed. R. Civ. P. 15(a)

This court has not yet held a Scheduling Conference or entered a Scheduling Order to govern the pre-trial progress of this case. Therefore, this court considers the Motion to Amend within the confines of Federal Rule of Civil Procedure 15(a) only. See Fernandez v. Bridgestone/Firestone, Inc., 105 F. Supp. 2d 1194, 1195 (D. Colo. 2000) (applying only Rule 15 when the deadline set for amendment in the Scheduling Order has not yet passed). Rule 15(a) provides that leave to amend "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). The court may refuse leave to amend upon a showing of undue delay, undue prejudice to the opposing party, bad faith or

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dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment. Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). A general presumption exists in favor of allowing a party to amend its pleadings, see Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962), and the non-moving party bears the burden [*9] of showing that the proposed amendment is improper. Jefferson County Sch. Dist. No. R-1, 175 F.3d at 859. Whether to allow amendment is within the trial court's discretion. Burks v. Oklahoma Publ'g Co., 81 F.3d 975, 978-79 (10th Cir. 1996).

ANALYSIS

Defendants argue that the First and Second Claims for Relief are insufficiently pled and should be dismissed pursuant to a Rule 12(b)(6) standard. Defendants argue that the court lacks subject matter jurisdiction to consider the Third Claim for Relief, and also that is similarly insufficiently pled. Defendants further oppose the Motion to Amend on the bases of futility and undue delay. A proposed amendment is futile if the complaint, as amended, would be subject to dismissal. Jefferson County Sch. Dist. No. R-1 v. Moody's Investor's Services, Inc., 175 F.3d 848, 859 (10th Cir. 1999). Accord Conkleton v. Zavaras, No. 08-cv-02612-WYD-MEH, 2010 U.S. Dist. LEXIS 142260, 2010 WL 6089079, at *3 (D. Colo. Oct. 6, 2010) ("If a party opposes a motion to amend on the grounds of futility, the court applies the same standard to its determination of the motion that governs a motion to dismiss under Fed. R. Civ. P. 12(b)(6)."). Given the related and similar nature of the arguments raised in each Motion and the law applicable to the disposition of each, I address the Motions pari passu.

I. Claim I: Title II Discrimination

A. Applicable Law

Plaintiffs allege that Tyler was unlawfully discriminated against because he is of Hispanic

heritage. [#27 at ¶ 18]. As relief, [*10] Plaintiffs seek only damages, and not injunctive relief. [Id. at 7]. Section 2000a of Title 42 prohibits discrimination or segregation on the ground of race, color, religion, or national origin with respect to "the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation." 42 U.S.C. § 2000a(a). The statute defines "place of public accommodation" as "[e]stablishments affecting interstate commerce or supported in their activities by State action," including but not limited to lodgings, facilities principally engaged in selling food for consumption on the premises, gasoline stations, and places of exhibition or entertainment. Id. at § 2000a(b). The "overriding purpose of Title II [is] 'to remove the daily affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public.'" Daniel v. Paul, 395 U.S. 298, 307-308, 89 S. Ct. 1697, 23 L. Ed. 2d 318 (1969) (citation omitted). A Title II suit is "private in form only," and a plaintiff pursuing a Title II claim cannot recover damages. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-02, 88 S. Ct. 964, 19 L. Ed. 2d 1263 (1968) ("When the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the [*11] law...If [plaintiff] obtains an injunction, he does so not for himself alone but also as a 'private attorney general,' vindicating a policy that Congress considered of the highest priority.").

B. Application

Defendants do not contest that Tyler is a member of a protected class under Title II, but argue rather that Plaintiffs' claim cannot survive as pled because a public school is not a place of public accommodation and, even if the court finds that a public school satisfies the definition, damages are not available. [#30 at 4]. Plaintiffs respond that the District, as a Colorado school district, "is subject both to Colorado state law and federal law," and that the court should

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apply the definition of "public accommodation" as provided in the Colorado Anti-Discrimination Act ("CADA"), Colo. Rev. Stat. §24-34-601(1). [#37 at 3]. Plaintiffs further argue that they are not limited to injunctive relief because they are suing the District not for "facility non-compliance with the Act," but for "the unlawful discriminatory actions of its employees, contractors, or both." [Id. at 5]. Defendants assert in reply that the claim is brought under Title II, and the definition provided in that statute, rather than CADA, should apply. [*12] Finally, they assert that Plaintiffs misconstrue the availability of damages in a Title II action. [#44 at 2-4].

This court addresses the matter of damages first because it is dispositive. It is undisputed that Plaintiffs seek only damages in this action. [#27 at 7; #37 at 4-5]. Plaintiffs rely on Fisher v. Shamburg, 624 F.2d 156 (10th Cir. 1980) for the contention that they can recover damages from the District because their allegations center on discrimination exacted by the District's employees and/or contractors, not the District itself. This court is not persuaded by that argument. The court's reading of Fisher indicates that there is an exception to injunctive relief as the exclusive remedy for a Title II violation where the perpetrators of harm are unaffiliated with the place of public accommodation. Id. at 161 ("the Court held that the legislative history of Title II makes it clear that the exclusivity of the Act's injunctive remedy applies only to actions against the owners and proprietors of public accommodations and not outsiders such as the defendants.") (citing United States v. Johnson, 390 U.S. 563, 88 S. Ct. 1231, 20 L. Ed. 2d 132 (1968)). The Fisher court explained that "[t]he rationale for limiting the remedy to injunctive relief was to provide the proprietor with a judicial determination of whether his facility [*13] was covered by Title II before exposing him to civil or criminal liability." Id. Therefore, injunctive relief provides real-world effect when applied to "proprietors, owners, and their personnel," but constitutes only a "hollow remedy" when used to deter outsiders from engaging in discriminatory practices aimed at preventing protected classes from

using facilities covered under Title II.

Plaintiffs allege that District employees discriminated against Tyler Gallegos. [#27 at ¶¶ 3, 9, 12]. Even assuming that ACHS is a place of public accommodation, their allegations implicate the school's personnel, and are analogous, for instance, to allegations that a restaurant is in violation of Title II because the waitress refused service to a patron of Hispanic origin. Injunctive relief against the District is not a "hollow remedy" because the District has the authority to implement a court order as to its employees.3 Accordingly, this court agrees with Defendants that Plaintiffs may not recover damages under this claim as pled, and they do not ask for injunctive relief. See Macer v. Bertucci's Corp., No. 13-CV-2994 (JFB)(ARL), 2013 U.S. Dist. LEXIS 170367, 2013 WL 6235607, at *6-7 (E.D.N.Y. Dec. 3, 2013) (granting motion to dismiss Title II claim, in the alternative, because plaintiff [*14] sought only damages) (citing Henry v. Lucky Strike Entertainment, LLC, No. 10-CV-03682 (RRM)(MDG), 2013 U.S. Dist. LEXIS 124939, 2013 WL 4710488, at *13 (E.D.N.Y. Sept. 1, 2013) (granting summary judgment on claims under Section 2000a for monetary relief, because statute's only remedy is injunctive relief); Ajuluchuku v. Bank of Am. Corp., Nos. 3:06-cv-60, 3:06-cv-122, 3:06-cv-228, 3:06-cv-229, 3:06-cv-230, 2007 U.S. Dist. LEXIS 22741, 2007 WL 952015, at *2 (W.D.N.C. March 27, 2007)).

Additionally, although not argued by Defendants, standing to pursue a claim for injunctive relief requires a plaintiff to "demonstrate a good chance of being likewise injured in the future." Facio v. Jones, 929 F.2d 541, 544 (10th Cir. 1991). Accord Barney v. Pulsipher, 143 F.3d 1299, 1306 n.3 (10th Cir. 1998). Tyler obtained his high school diploma in spring 2015 and no longer attends ACHS or any other

3 By contrast, Fisher would lend support to a scenario where individuals unaffiliated with the District engaged in discriminatory conduct outside of the ACHS gymnasium, the effect of which prevented Tyler from entering the gym. Injunctive relief against the District in that instance would achieve no real effect because the District has no authority over third parties who happened to engage in discriminatory conduct on or just beyond the District's property.

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school within the District. [#27 at ¶ 12]. Given this fact, and absent allegations of future injury, Plaintiffs appear to lack standing to pursue injunctive relief. Accordingly, I respectfully recommend that the court grant the Motion to Dismiss as to Claim I: Title II Discrimination.4

II. Claim II: Section 1983 Discrimination

A. Applicable Law

As with the First Claim for Relief, Plaintiffs assert that Tyler Gallegos was discriminated against because he is of Hispanic heritage. Section 1983 of Title 42 of

4 Because this court finds that the issue of damages is dispositive, it need not reach Defendants' argument that a public school is not a place of public accommodation. However, for the sake of completeness, this court addresses it briefly and notes that neither it nor the Parties could find controlling case law within this District or Circuit that adjudicated whether a public school is a place of public accommodation for Title II purposes. Nevertheless, this court observes that Plaintiffs provide no authority for grafting the CADA definition of place of public accommodation onto Title II, and that Plaintiffs fail to address the non-binding case law, cited to by Defendants, in which courts in other jurisdictions find unequivocally that public schools are not places of public accommodation under Title II. See Harless v. Darr, 937 F. Supp. 1351, 1354 (S.D. Ind. 1996) (rejecting argument that a public school was a place of public accommodation, stating "[p]ublic schools do not purport to be open to the general public in the ways, that for example, hotels, restaurants and movie theaters (all establishments explicitly covered by Title II) do."); Gilmore v. Amityville Union Free School Dist., 305 F. Supp. 2d 271, 278 (E.D.N.Y. 2004) (citing Harless with approval and dismissing Title II claim on basis that public schools are not places of public accommodation). See also Martin v. University of New Haven, Inc., 359 F. Supp. 2d 185, 188-89 (D. Conn. 2005) (rejecting on summary judgment the argument that private university's cafeteria constitutes a place of public accommodation, finding that plaintiff "does not provide any evidence to dispute UNH's contention that the cafeteria serves only faculty, staff, and students and does not 'purport to be open to the general public in the ways, that for example, hotels, restaurants and movie theaters (all establishments explicitly covered by Title II) do.'") (quoting Harless, 937 F. Supp. at 1354). In any event, in light of the finding that Plaintiffs cannot recover the relief they request as to this claim, this court declines to weigh in as to whether public schools constitute a public place of accommodation. See Marsh v. Delaware State University, No. Civ.A. 05-00087JJF, 2006 U.S. Dist. LEXIS 1658, 2006 WL 141680, at *6 n.4 (D. Del. Jan. 19, 2006) (assuming without deciding that Title II applied to university defendant, citing Gilmore and Harless, but granting motion to dismiss Title II claim because plaintiff failed to allege the discrimination was a result of his race).

the United States Code allows an injured [*15] person to seek damages for the violation of his or her federal rights against a person acting under color of state law. See 42 U.S.C. § 1983; see also Filarsky v. Delia, 566 U.S. 377, 383, 132 S. Ct. 1657, 182 L. Ed. 2d 662 (2012). To assert a claim under § 1983, Plaintiff must show (1) that he had a right secured by the Constitution and laws of the United States that was violated (2) by a person who acted under color of state law. Hall v. Witteman, 584 F.3d 859, 864 (10th Cir. 2009).

The Equal Protection Clause requires that no state deny any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV. An equal protection violation occurs when the government treats someone differently than another who is similarly situated. Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985)). "The Equal Protection Clause does not forbid classifications. It simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike." Taylor v. Roswell Indep. School Dist., 713 F.3d 25, 53 (10th Cir. 2013) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992) (emphasis in original)). Courts considering an equal protection challenge generally query first whether the challenged state action intentionally discriminates between groups of persons. SECSYS, LLC v. Vigil, 666 F.3d 678, 685 (10th Cir. 2012) (citations omitted). Second, "after an act of intentional discrimination against a particular group is identified either by presumption or evidence and inference, courts ask whether the state's intentional decision to discriminate can be justified by reference to some [*16] upright government purpose." Id. at 686 ("[t]he law...may take cognizance of meaningful distinctions between individuals without violating the constitutional command of treating similarly situated persons similarly") (emphasis in original). However, some evidence of intentional discrimination against a particular class of persons must be present "[b]efore a court may get to the business of assessing the rationality of a challenged state action." Id. at 688

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("The unlawful administration by state officers of a state statute ... is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.") (quoting Snowden v. Hughes, 321 U.S. 1, 8, 64 S. Ct. 397, 88 L. Ed. 497 (1944)).5

The Second Amended Complaint names no individual defendants, and thus the question before the court is whether Plaintiffs have pled sufficient facts that, taken as true, state a claim for liability on the part of the District. A school district's liability for violation of the Equal Protection clause is analyzed under a municipal liability framework. See Murrell v. School Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1249-50 (10th Cir. 1999) (applying municipal liability analysis to claim that school district was liable for sexual harassment under the Equal Protection Clause). For a school district to incur § 1983 liability, the plaintiff must show that an employee's unconstitutional [*17] act occurred pursuant to an official policy or custom of the school district, or that the employee(s) responsible for the unconstitutional act was a final policymaker for the school district. Id.

B. Application

Defendants do not contest that Tyler is a member of a protected class under § 1983, but argue that this claim fails as a matter of law because Plaintiffs fail to allege facts demonstrating "that Tyler was treated

5 Although not addressed by the Parties, this court notes that Plaintiffs appear to proceed under a "class of one" theory of equal protection violation. Plaintiffs do not allege that Tyler suffered discrimination along with other students of Hispanic origin, rather, that Tyler alone was discriminated against in part because of his ethnicity. In any event, the distinction does not change the court's analysis. See SECSYS, LLC, 666 F.3d at 688-89 ("Analyzing the case through equal protection's so-called 'class of one' doctrinal prism changes nothing. Class of one doctrine focuses on discrimination not between classes or groups of persons, as 'traditional' equal protection doctrine does, but on discrimination against a specific individual. Even so, the familiar principles and procedures associated with equal protection class discrimination doctrine apply.") (quoting Engquist v. Oregon Dep't of Agric., 553 U.S. 591, 601-02, 128 S. Ct. 2146, 170 L. Ed. 2d 975 (2008)). A plaintiff advancing a class of one claim must navigate the same two steps as a plaintiff alleging a class-based claim. Id.

differently than similarly situated students not in his protected class," and Plaintiffs "fail to adequately plead municipal liability." [#30 at 6, 7]. Plaintiffs disagree that their second claim is inadequately pled, but ask the court for permission to amend the claim as proposed in the Motion to Amend should the court agree with Defendants' argument. See [#37 at 8].

"A claim that a state actor discriminated on the basis of a suspect (e.g., race), quasisuspect (e.g., gender), or a non-suspect classification calls for strict, intermediate, or rational basis scrutiny, respectively." Brown v. Montoya, 662 F.3d 1152, 1172-73 (10th Cir. 2011) (citing Price—Cornelison v. Brooks, 524 F.3d 1103, 1109-10 (10th Cir. 2008)). But regardless of the nature of the classification, "to assert a viable equal protection claim, plaintiffs must first make a threshold showing that they were treated differently from [*18] others who were similarly situated to them." Id. (quoting Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998)). The "similarly situated" requirement is an "exacting burden," which requires the comparative individuals to be "prima facie identical in all relevant respects or directly comparable in all material respects." A.B. ex rel. B.S. v. Adams-Arapahoe 28J School Dist., 831 F. Supp. 2d 1226, 1253 (D. Colo. 2011) (analyzing class of one claim and quoting Jicarilla Apache Nation v. Rio Arriba County, 440 F.3d 1202, 1210 (10th Cir. 2006) and U.S. v. Moore, 543 F.3d 891 (7th Cir. 2008) ("although this is not a precise formula, it is nonetheless clear that similarly situated individuals must be very similar indeed.")). The only allegations asserted in support of the disparate treatment claim are as follows:

During the course of his attendance at ACHS, and particularly, during the periods of the 2013 to 2014, and 2014 to 2015 school years, Tyler was subjected to racial and sexual discrimination by falsely being accused by District employees of criminal acts, falsely being a homosexual, and subjected to discipline singling him out because he is Hispanic.

[#27 at ¶ 9].

Tyler was falsely accused of criminal misconduct,

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later accused of breaking team rules of the ACHS football team, and was incrementally disciplined by being removed from the ACHS football team, being suspended from classes, suspended from ACHS altogether, [*19] placed in isolation separate from the rest of ACHS's school population, and eventually was required not to attend school at all, and to complete his high school diploma by alternative means in the Spring of 2015.

[Id. at ¶ 12].Tyler was reprimanded, singled out, disciplined, suspended from school, and isolated from his classmates, and removed from the ACHS football team in an unlawful and discriminatory fashion because he is Hispanic.

[Id. at ¶ 23].

In reviewing the Second Amended Complaint, this court finds that Plaintiffs' pleading is insufficient. The law in this Circuit is clear that a § 1983 claim premised on equal protection requires the plaintiff to first identify others who were similarly situated and treated more favorably than he or she was. See Brown, 662 F.3d at 1172-73 ("Mr. Brown's Complaint fails to allege facts showing that Officer Montoya violated his right to equal protection because it does not allege that an otherwise similarly situated person was treated differently from him."). See also Taylor, 713 F.3d at 53-54. Additionally, "in the context of a § 1983 claim, '[c]onclusory allegations are not sufficient to state a constitutional violation.'" Brown, 662 F.3d at 1173 (quoting Robertson v. Las Animas Cnty. Sheriff's Dept., 500 F.3d 1185, 1193 (10th Cir. 2007)). Plaintiffs have alleged the adverse treatment Tyler received, and stated summarily [*20] that he received that treatment, "because he is Hispanic." But Plaintiffs do not identify or describe any circumstances leading up to the discipline and facts that support that similarly-situated non-Hispanic students and teammates received better treatment. Nor do Plaintiffs allege other facts that allow this court to conclude, if true, that Tyler was "singled out" because he was Hispanic, e.g., that he was the only Hispanic student in his classes or on the football team or that he was

subjected to statements that Plaintiffs construed as having discriminatory animus.

Even assuming that Plaintiffs' bare allegations that the District subjected Tyler to disparate treatment based on being Hispanic were sufficient, none of the allegations asserted in the Second Amended Complaint demonstrates that the alleged disparate treatment was the result of an official policy or custom adopted by the District, or was exacted by an employee of the District who had authority to create policy. To subject a governmental entity, in this case a school district, to liability, "a municipal policy must be a 'policy statement, ordinance, regulation, or decision officially adopted and promulgated by [a municipality's] [*21] officers.'" Murrell, 186 F.3d at 1249 (quoting Lankford v. City of Hobart, 73 F.3d 283, 286 (10th Cir. 1996)). See also Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). A municipality may also be held liable if the discriminatory practice is "so permanent and well settled as to constitute a 'custom or usage' with the force of law." Murrell, 186 F.3d at 1249 (quoting Lankford, 73 F.3d at 286). Nowhere in the Second Amended Complaint do Plaintiffs assert that the individual ACHS employees identified therein violated Tyler's constitutional rights in furtherance of an official District policy, practice or custom, or that any of the individual employees were policymakers. The operative pleading simply contains insufficient allegations to support municipal liability.

C. Proposed Amendments

Plaintiffs request that the court allow it to amend its operative pleading, to the extent it finds that the Second Amended Complaint is deficient. The proposed Third Amended Complaint associates the specific ACHS employees with their alleged conduct, but Plaintiffs still fail to cure the deficiencies identified above. For instance, Plaintiffs specify that a former principal, former football coach, and several former assistant deans disciplined and generally treated Tyler differently from his peers. See generally [#42-1]. However, it is not enough to identify the

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state actors who allegedly engaged in constitutional [*22] violations; Plaintiffs must identify how Tyler was treated differently from his similarly-situated peers, and a necessary component of that illustration is identifying or describing those peers and the treatment they received.6

In addition, the claims reflected in the proposed Third Amended Complaint are not directed at individual Defendants but at the District. Despite having the benefit of Defendants' arguments in the instant Motion to Dismiss, Plaintiffs' proposed allegations associating the ACHS employees with their respective actions still do not contain facts supporting an inference that the employees are policymakers or were acting in accordance with a District policy or practice. The Tenth Circuit has identified three elements that help determine whether an individual is a final policymaker: "(1) whether the official is meaningfully constrained by policies not of that official's own making; (2) whether the official's decisions are final—i.e., [*23] are they subject to any meaningful review; and (3) whether the policy decision purportedly made by the official is within the realm of the official's grant of authority." Randle v. City of Aurora, 69 F.3d 441, 448 (10th Cir. 1995) (citation and internal quotation marks omitted). Plaintiffs do not include factual allegations reflecting these elements, nor do they address these elements in their briefing. Indeed, the proposed amendments include allegations that the District's "Board of

6 Plaintiffs also propose modifying Paragraph 12 of the Second Amended Complaint as follows (proposed allegations in italics): "Tyler was falsely accused of criminal misconduct by Eva Perez and others, later accused of breaking team rules of the ACHS football team by head coach Dan Jazyczk, and was incrementally disciplined by being removed from the ACHS football and wrestling teams by Dan Jazyczk and Daron Dunson, being suspended from classes, suspended from ACHS altogether, placed in isolation separate from the rest of ACHS's school population, and eventually was required not to attend school at all, and to complete his high school diploma by alternative means in the Spring of 2015 by Daron Dunson and Anthony Smith. Tyler was the only student similarly situated who was treated this way by administrators, coaches and teachers. This final sentence is still too general to cure the pleading deficiencies. Among other things, Plaintiffs fail to provide sufficient factual allegations by which to compare the treatment Tyler received for the court to conclude that the motivation behind Defendants' treatment of him was discriminatory animus.

Education has passed policies in compliance with applicable state and federal laws concerning equal opportunity, non-discrimination, student conduct, and student discipline," and that certain District employees discriminated against Tyler "in violation of federal and state law and District policies." [#42-1 at ¶¶ 7, 10]. The proposed amended pleading offers no description of the authority associated with the individual employees' titles, and does not assert, for instance, that the principal or assistant dean had authority to override a formal policy promulgated by the District.7 Nor does the proposed Third Amended Complaint allege that there was any policy or practice—written or unwritten—that the District treat Hispanic students less favorably than other students. [*24]

Accordingly, this court finds that the proposed Third Amended Complaint does not contain sufficient allegations regarding disparate treatment or municipal liability to cure the existing deficiencies, and thus respectfully recommends that the Motion to Dismiss be granted as to this claim.8

III. Claim III: Violations of the ADA and Rehabilitation Act

A. Applicable Law

7 I note that under Colorado law, a principal assumes "the administrative responsibility and instructional leadership, under the supervision of the superintendent and in accordance with the rules and regulations of the board of education, for the planning, management, operation, and evaluation of the educational program of the schools to which he is assigned," and "perform[s] such other duties as may be assigned by the superintendent pursuant to the rules and regulations of the board of education." Colo. Rev. Stat. § 22-32-126(2),(4).

8 Finally, this court notes that Plaintiffs have been represented at all times, and the proposed Third Amended Complaint represents Plaintiffs' fourth attempt to set forth viable claims. The circumstances giving rise to this action occurred in the period between 2013 and 2015, and the facts necessary for Plaintiffs to plead a cognizable claim should be in their possession, either through their personal knowledge or developed during the process before the Colorado Civil Rights Division. As a result, this court respectfully recommends that any general request to amend with a pleading other than the proposed Third Amended Complaint also be denied.

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Plaintiffs assert as their Third Claim for Relief that Defendants violated the ADA and Rehabilitation Act by failing to appropriately maintain the 504 Plan designed to address Tyler Gallegos's special educational needs. Section 504 of the Rehabilitation Act protects qualified, disabled individuals from being, solely by reason of their disability, excluded from the participation in, denied the benefits of, or subjected to discrimination under any program or activity receiving Federal financial assistance. 29 U.S.C.A. § 794(a). The Rehabilitation Act defines "program or activity" to include "all of the operations of ... a department, agency, special purpose district, or other instrumentality of a State or of a local government ... any part of which is extended Federal financial assistance." Id. at § 794(b). The ADA is modeled after but broader than the Rehabilitation [*25] Act, and "extends similar protections and prohibitions against discrimination to all state and local government services, programs, and activities, regardless of whether they receive federal financial assistance." Montez v. Romer, 32 F. Supp. 2d 1235, 1239 (D. Colo. 1999). The ADA similarly provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity," and defines public entity to include "any State or local government; [and] any department, agency, special purpose district, or other instrumentality of a State or States or local government." 42 U.S.C. §§ 12132, 12131. Courts generally construe the Rehabilitation Act and the ADA similarly. Adams-Arapahoe 28J School Dist., 831 F. Supp. 2d at 1254 (construing plaintiffs' Rehabilitation Act and ADA claims together) (citing Montez, 32 F. Supp. 2d at 1239; Miller v. Bd. of Educ., 565 F.3d 1232, 1245-46 (10th Cir. 2009)).

B. Application

In the Second Amended Complaint, Plaintiffs allege that "[p]rior to entering ACHS, Tyler had been evaluated and it was determined that he had disability that required the District to formulate, implement

and update on not less than a yearly basis, an individual education plan under § 504 of Title II ... [and] [p]rior to entering ACHS, [*26] a 504 Plan was developed and implemented for Tyler." [#27 at ¶ 7]. Plaintiffs further aver that "[a]fter Tyler entered ACHS, however, the 504 Plan was not maintained." [Id. at ¶ 8]. Defendants argue that although Plaintiffs craft their third claim as one for disparate treatment in violation of the ADA and Section 504 of the Rehabilitation Act, the claim is actually one for denial of a "free appropriate public education" ("FAPE") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., for which exhaustion is required. Plaintiffs assert in Response that Defendants mischaracterize the third claim, and that the District's failure "to adequately develop, maintain and communicate a 504 Plan while Tyler was a student," is "yet another example of unlawful disparate treatment of Tyler in relation to his class peers." [#37 at 9]. They further contend that, to the extent exhaustion of administrative remedies is required, they have done so.

1. Legal Theory and Exhaustion

As an initial matter, I find that Plaintiffs have styled this claim properly. As discussed in Kimble v. Douglas County School Dist. RE-1, the overlap and distinctions between Section 504 and the IDEA are critical to framing the issue. 925 F. Supp. 2d 1176, 1181 (D. Colo. 2013). The regulations implementing Section 504 track [*27] the language of the IDEA, requiring that school districts "provide a [FAPE] to each qualified handicapped person who is in the [district]'s jurisdiction." 34 C.F.R. § 104.33(a). However, "unlike FAPE under the IDEA, FAPE under [Section] 504 is defined to require a comparison between the manner in which the needs of disabled and non-disabled children are met, and focuses on the 'design' of a child's educational program." Kimble, 925 F. Supp. 2d at 1181 (quoting Mark H. v. Lemahieu, 513 F.3d 922, 933 (9th Cir. 2008) (citing 34 C.F.R. § 104.33(b)(1)). A FAPE under Section 504 requires "the provision of regular or special education and related aids and services that ... are designed to meet individual educational needs of handicapped persons as

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adequately as the needs of nonhandicapped persons are met." 34 C.F.R. § 104.33(b)(1). Where "the IDEA requires an individualized program," Section 504 "is a broad anti-discrimination statute." Kimble, 925 F. Supp. 2d at 1182 (quoting N.L. ex rel. Mrs. C. v. Knox Cnty. Sch.,315 F.3d 688, 696 n.6 (6th Cir. 2003)). The Supreme Court emphasized that the plain language of the IDEA demonstrates that it does not have a preclusive effect upon non-IDEA claims:

Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the [ADA], title V of the Rehabilitation Act [including § 504], or other Federal laws protecting the rights of children with disabilities, except that before the filing [*28] of a civil action under such laws seeking relief that is also available under [the IDEA], the [IDEA's administrative procedures] shall be exhausted to the same extent as would be required had the action been brought under [the IDEA].

See Fry v. Napoleon Community Schools, 137 S.Ct. 743, 751, 197 L. Ed. 2d 46 & 755-56 (2017) (citing 20 U.S.C. § 1415(l) and discussing interplay between IDEA, Title II, and the Rehabilitation Act). Thus, contrary to Defendants' assertion, a cognizable claim for denial of FAPE by failing to implement Tyler's 504 Plan may arise under Section 504.

Nevertheless, the Supreme Court has made it equally clear that a claim arising under the Rehabilitation Act may also be subject to the IDEA's exhaustion requirements under certain circumstances. The IDEA "ensure[s] that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). The IDEA also establishes formal administrative procedures for resolving disputes between parents and schools concerning the provision of a FAPE, and parents who believe the state is denying their child "a free appropriate public education," are entitled to an [*29] administrative due process

hearing. See Fry, 137 S.Ct. at 749; Ellenberg v. N.M. Military Inst., 478 F.3d 1262, 1269 (10th Cir. 2007) (citing 20 U.S.C. § 1415(f)). While the IDEA should not be construed to preclude claims and remedies under other complimentary statutes like the ADA or Rehabilitation Act, parents who sue under these separate statutes "seeking relief that is also available under [the IDEA]," must first exhaust the IDEA's administrative procedures. Fry, 137 S.Ct. at 750. See also Carroll v. Lawton Indep. Sch. Dist. No. 8, 805 F.3d 1222, 1227 (10th Cir. 2015) ("[i]f a parent has a complaint with respect to any matter relating to the ... provision of a free appropriate public education to such child ... the IDEA entitles the parent to an impartial due process hearing ... [and an appeal that] must be exhausted before a civil action may be filed in district court under the ADA, Rehabilitation Act, or other Federal laws protecting the rights of [disabled] children"). The exhaustion requirement applies only "if the plaintiff seek[s] relief that is also available under [the IDEA]." Id. See also Fry, 137 S.Ct. at 754; Dorsey v. Pueblo Sch. Dist. 60, 140 F. Supp. 3d 1102, 1112-13 (D. Colo. 2015) ("Dorsey I").

In the Tenth Circuit, the inquiry into whether relief is "available" under the IDEA focuses on "relief for events, condition, or consequences of which the person complains, not necessarily relief of the kind the person prefers or specifically seeks." Carroll, 805 F.3d at 1227 (quoting [*30] Padilla ex rel. Padilla v. Sch. Dist. No. 1 in City & Cty. of Denver, Colo., 233 F.3d 1268, 1274 (10th Cir. 2000)). What matters is the "source and nature of the alleged injuries for which [the plaintiff] seeks a remedy, not the specific remedy itself." Padilla, 233 F.3d at 1274 (citation omitted). "In essence, the dispositive question generally is whether the plaintiff has alleged injuries that could be redressed to any degree by the IDEA's administrative procedures and remedies." Id. Failure to exhaust the IDEA's administrative remedies is excused "when administrative remedies would be futile, when they would fail to provide relief, or when an agency has adopted a policy or pursued a practice of generally applicability that is contrary to the law." Urban by Urban v. Jefferson Cnty. Sch. Dist. R-1, 89 F.3d 720, 724 (10th Cir. 1996). Cf. Padilla, 233 F.3d at 1274

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(observing that plaintiff sought damages "solely to redress the fractured skull and other physical injuries she suffered allegedly as a result of the school district's and board of education's purported ADA violations," and made "no complaints regarding her current educational situation," and thus "the IDEA's administrative remedies, oriented as they are to providing prospective educational benefits, could [not] possibly begin to assuage Plaintiff's severe physical, and completely non-educational, injuries."). If it is unclear whether the IDEA has the ability [*31] to remedy a particular injury, exhaustion is required to "give educational agencies an initial opportunity to ascertain and alleviate the alleged problem." Dorsey I, 140 F. Supp. 3d at 1113 (quoting Padilla, 233 F.3d at 1274). Accordingly, "if the plaintiff brings a claim that is 'educational in nature' that challenges the school district's provision of educational services, 'the claim is presumptively redressable through the IDEA's administrative procedures.'" Id. (quoting Ellenberg, 478 F.3d at 1280).

After reviewing the Second Amended Complaint and the Parties' briefing associated with the Motion to Dismiss, this court concludes that Plaintiffs were required to first exhaust the IDEA's administrative procedures because the injury complained of is educational in nature, i.e., the District denied Tyler, through suspension and expulsion, educational opportunities to which he was entitled under law, and, at best, it is unclear whether the IDEA provides a remedy for the injury. See Padilla, 233 F.3d at 1275 (collecting cases from other circuits requiring exhaustion where the plaintiffs' alleged injuries were educational in nature and noting agreement). Additionally, it is clear that this third claim is not simply about disability discrimination. Cf. Fry, 137 S.Ct. at 747 (remanding case for lower courts to consider [*32] whether the gravamen of the complaint was disability discrimination or denial of a FAPE, noting that the complaint made no mention of "the special education services [plaintiff's] school provided"). Rather, Plaintiffs specifically allege that a Section 504 plan was developed for Tyler and the District through its employees subsequently failed to communicate its particulars or maintain it "in

compliance with applicable federal and state law." [#27 at ¶ 8].

Plaintiffs in their Response appear to contend in the alternative that they have exhausted all administrative remedies, an inquiry into exhaustion is premature at this time, and that exhaustion is not required. See [#37 at 11]. As to the second contention, Defendants move under Federal Rule of Civil Procedure 12(b)(1) as to the exhaustion issue and the Tenth Circuit has held that the IDEA's remedies must be exhausted before a plaintiff files a non-IDEA suit if that suit could have been filed under the IDEA. See, e.g., Hayes v. Unified Sch. Dist. No. 377, 877 F.2d 809, 812 (10th Cir. 1989). See also Fry, 137 S.Ct. at 755 ("Section 1415(l) is not merely a pleading hurdle. It requires exhaustion when the gravamen of a complaint seeks redress for a school's failure to provide a FAPE, even if not phrased or framed in precisely that way."). Accordingly, the issue of exhaustion is properly [*33] before the court on Defendants' Motion to Dismiss.

With respect to the first contention, this court finds that Plaintiffs have not sufficiently demonstrated exhaustion of their administrative remedies. Plaintiffs allege the following in their Second Amended Complaint: "During the early months of 2015, Plaintiffs filed claims with the Colorado Civil Rights Division ("OCR") complaining of racial and sexual discrimination by the District and its employees"; and "Plaintiffs have exhausted their administrative remedies." [#27 at ¶ 11]. See also [#37 at 10-11]. The governing statute indicates that exhaustion is achieved when a party completes the following process: files an administrative complaint with local school officials, attends a preliminary meeting, proceeds to due process hearing (or mediation), and then appeals the disposition of the hearing, if it is unsatisfactory. See 20 U.S.C. § 1415; Fry, 137 S.Ct. at 749. See also Porco v. Lewis Palmer Sch. Dist. 38, No 16-cv-001584-RBJ, 2017 U.S. Dist. LEXIS 29589, 2017 WL 135159, at *6 (D. Colo. Mar. 2, 2017) (citing A.F. ex rel Christine B. v. Espanola Pub. Schs., 801 F.3d 1245, 1246 (10th Cir. 2015)). The statute does not suggest that filing a claim with the OCR suffices for or

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excuses exhaustion, and Plaintiffs do not cite authority stating otherwise. Additionally, Plaintiffs' allegation that they have otherwise exhausted their administrative [*34] remedies is conclusory, and the court need not accept it as true, particularly in response to a Rule 12(b)(1) challenge. See Porco, 2017 U.S. Dist. LEXIS 29589, 2017 WL 135159, at *5 n.7 (citing Ashcroft, 556 U.S. at 681).

Finally, as to Plaintiffs' third contention, they generally assert that exhaustion is not necessary and is a question the court need not reach until a later date in the proceedings. I am unpersuaded for the reasons stated above. Additionally, to the extent Plaintiffs have properly exhausted their administrative remedies, such facts would be within their own custody and control and they would require no additional discovery from Defendants to articulate the factual basis for exhaustion; and, to the extent they are somehow excused from exhaustion, their counsel should and could have asserted such an argument.9 Therefore, this court finds that Plaintiffs

9 Indeed, as noted above, Plaintiffs make no assertion that the alleged discrimination against Tyler was part of a District custom or practice that could excuse exhaustion as a prerequisite to suit. This court also notes that Plaintiffs are not excused from the exhaustion requirement simply because (1) they seek only damages, and (2) Tyler Gallegos is no longer a student enrolled at a school in the District. See Dorsey I, 140 F. Supp. 3d at 1113-14 (citing Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1066-67 (10th Cir. 2002)). "[T]he IDEA's exhaustion requirement will not be excused simply because a plaintiff requests damages, which are ordinarily unavailable in administrative hearings held pursuant to the statute, if [the] alleged injuries could be redressed under the IDEA"; and, the Tenth Circuit has rejected "the argument that exhaustion will be excused because relief is no longer 'available' at the time the plaintiff seeks to file a civil suit if relief was available at the time the alleged injuries occurred." Cudjoe, 297 F.3d at 1066- 67 ("Plaintiffs should not be permitted to sit on live claims and spurn the administrative process that could provide the educational services they seek, then later sue for damages.") (citation omitted). The question is whether Plaintiffs have "alleged injuries that could be redressed to any degree by the IDEA's administrative procedures and remedies." Espanola Pub. Schs., 801 F.3d at 1247. And, to the extent Plaintiffs assert in the Second Amended Complaint that "a retaliation claim was made after the District retaliated against Tyler for filing the initial complaint with the OCR," and that "[t]he District was required to carry out certain remedial actions as a result of the OCR action, but has failed to fully take care of all responsibilities to which it agreed," they do not raise a claim for retaliation in the operative or proposed amended pleading or otherwise develop such a claim through factual allegations, and they do not

have failed to demonstrate that they have exhausted their administrative remedies, and the proposed amended complaint does not cure this defect. Accordingly, this court respectfully recommends that the Motion to Dismiss be granted and the Motion to Amend be denied as to Claim III. However, for the sake of thoroughness, I address below the sufficiency of the pleading of this claim as it relates to the proposed amendments [*35] (assuming that failure to exhaust does not bar this claim).

2. Sufficiency of Pleading

A prima facie claim under Section 504 requires Plaintiffs to demonstrate the following: "(1) plaintiff is handicapped under the Act; (2) he is 'otherwise qualified' to participate in the program; (3) the program receives federal financial assistance; and (4) the program discriminates against plaintiff." Hollonbeck v. U.S. Olympic Comm., 513 F.3d 1191, 1194 (10th Cir. 2008) (quoting Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1151 (10th Cir. 1999)).

Current Allegations. Plaintiffs assert the following allegations in the Second Amended Complaint in support of their third claim:

Tyler had been a student within the District for several years before 2011. Prior to entering ACHS, Tyler had been evaluated and it was determined that he had disabilities that required the District to formulate, implement and update on not less than a yearly basis, an individual education plan under § 504 of Title II ("504 Plan"). Prior to entering ACHS, a 504 Plan was developed and implemented for Tyler.

[#27 at ¶¶ 6, 7].

After Tyler entered ACHS, however, the 504 Plan was not maintained; at times was not either communicated to his teachers or not adequately communicated to all of his teachers; and was not kept nor carried out in compliance with applicable federal and [*36] state law.

reference any such claim in their Response to the Motion to Dismiss. Furthermore, Plaintiffs are represented by attorneys and are not entitled to the liberal construction of pleadings and papers afforded pro se litigants.

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[#27 at ¶ 8].Despite repeated demands and requests by Tyler, Mark and Lisa, Tyler was denied an appropriate, updated, and complete 504 Plan addressing his special educational needs for at least part of the school year 2012 through 2013, and all of the school years of 2013 through 2014 and 2014 through 2015.

[#27 at ¶ 28].

Defendants contest the fourth element only, and argue Plaintiffs do not allege that Tyler was treated differently than other students because of his disability. See [#30 at7-8]. However, the governing regulations instruct that "the provision of an appropriate education is the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy" certain statutory requirements. 34 C.F.R. § 104.33(b)(1). Under law, the District "retain[ed] a continuing obligation under Section 504 and the ADA" to protect Tyler from discrimination while he remained "a qualifying student with a disability," and therefore was required to continue to offer any accommodations or services necessary to ensure that Tyler was provided an [*37] opportunity for a FAPE under Section 504. Kimble, 925 F. Supp. 2d at 1185. Indeed, "it is the nature of the 504 Plan that it applies solely to Plaintiff, for the exclusive purpose of protecting [his] rights under Section 504 and providing appropriate access to education." Dorsey v. Pueblo School Dist. 60, 215 F. Supp. 3d 1082, 1090 (D. Colo. 2016) ("Dorsey II"). Therefore, "allegations that Defendants either intentionally failed to implement the Plan's accommodations, or knowingly allowed them to be violated, sufficiently state a claim for a violation of § 504 solely on the basis of Plaintiff's disability." Id. ("Failing to implement the 504 Plan effectively denies Plaintiff the rights the statute is meant to protect") (citing New Mexico Assoc. for Retarded Citizens v. State of New Mexico, 678 F.2d 847, 853 (10th Cir. 1982) (an "education system may be found in violation of Section 504 where the entity's practices

preclude the handicapped from obtaining system benefits realized by the non-handicapped") (emphasis added).

"Intentional discrimination does not require a showing of personal ill will or animosity toward the disabled person; rather, 'intentional discrimination can be inferred from a defendant's deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights." Barber v. Colo. Dep't of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009) (quoting Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999)). Therefore, in this context, the test for deliberate indifference [*38] comprises two prongs: "(1) knowledge that a harm to a federally protected right is substantially likely, and (2) a failure to act upon that...likelihood." Id. at 1229. Accord Adams-Arapahoe 28J School Dist., 831 F. Supp. 2d at 1255. "The failure to act must be more than negligent and involve an element of deliberateness." J.V. v. Albuquerque Public Schools, 813 F.3d 1289, 1298 (10th Cir. 2016) (citation omitted). And, "[w]hen the alleged failure to act is an alleged failure to train, we have required a showing that the defendant was on notice of the need for more or different training." Id. (affirming summary judgment to defendant on ADA discrimination claim because plaintiffs fell short of showing that "the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.") (citations and internal quotation marks omitted).

A review of the Second Amended Complaint reveals that Plaintiffs have not alleged that the District or the individual ACHS employees acted with the requisite deliberate indifference. Compare Dorsey I, 140 F. Supp. 3d at 1116-17 (granting motion to dismiss with leave to amend claim for violation of Section 504 plan, with instruction to develop allegations regarding [*39] intentional discrimination to address in relevant part "what the offending employees knew at the time of the alleged harm") with Dorsey II, 215 F. Supp. 3d at 1087-91 (denying renewed motion to

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dismiss, finding in relevant part that amended complaint alleged school district acted with deliberate indifference). Indeed, Plaintiffs assert no allegations of what the District or individual employees of the District knew about Tyler's 504 Plan or need for one; nor do they reference facts as to whether the failure to communicate to, or the inadequate communication between, Tyler's teachers was deliberately indifferent or simply negligent. Therefore, even if Claim III is not precluded based on the failure to exhaust administrative remedies, this court finds that the claim is insufficient as pled. I examine next the proposed amended allegations offered in the Motion to Amend.

Proposed Allegations. Plaintiffs propose in relevant part the following allegations:

While Tyler attended ACHS, Neissa Lynch and then thereafter, Gayle Eggloff in conjunction with others not known to Plaintiffs, each had the primary responsibility to maintain, update and communicate the 504 Plan of Tyler to his teachers and coaches. This led to Tyler being [*40] treated differently than other students with similar 504 Plans and unlawfully not being accommodated compared to other students not subject to 504 Plans throughout his high school career at ACHS.

[#42-1 at ¶ 8].

After Tyler entered ACHS, however, the 504 Plan was not maintained; at times was not either communicated to his teachers and coaches or not adequately communicated to all of his teachers and coaches by Neissa Lynch, Gayle Eggloff, and others not known but similarly responsible; and was not kept nor carried out in compliance with applicable federal and state law causing Tyler to be treated differently than other students with similar 504 Plans and not being accommodated compared to other students not subject to 504 Plans while he was in high school.

[#42-1 at ¶ 9].10

10 This court uses italics to differentiate between the language as used in the Second Amended Complaint and the language Plaintiffs propose to modify this paragraph.

These proposed amendments do not cure the deficiencies identified above and thus are futile. On this additional basis, I recommend that the court deny the Motion to Amend

As I final matter, although not raised by the District, I note that the allegations in the operative complaint implicate Plaintiffs Lisa and Mark Gallegos in only two instances: "As a direct and proximate result of the mistreatment and discrimination [*41] against Tyler, Mark and Lisa, as parents and legal guardians of Tyler, suffered financial losses and loss of familial relationships with Tyler resulting in economic damages"; and Mark and Lisa Gallegos "suffered damages...[a]s a direct and proximate result of the actions and inactions of Defendants." [#27 at ¶¶ 13, 30]. These allegations are conclusory and find no support elsewhere in the Second Amended Complaint. In addition, Mark and Lisa Gallegos do not purport, or ask, to sue on behalf of their son, Tyler, who is of majority age, and it is not apparent on what basis they could represent Tyler. See Fed. R. Civ. P. 17(c). Cf. Dorsey I, 140 F. Supp. 3d at 1122 (dismissing minor child's mother as a plaintiff in her individual capacity, but allowing her to remain as the parent and representative of the child). Accordingly, this court separately recommends that Plaintiffs Mark and Lisa Gallegos be dismissed from this action because they have failed to state claims individually and have asserted no basis on which to proceed as the representatives of Tyler.

In conclusion, this court again recognizes that leave to amend a pleading should be freely granted when justice so requires, and that a presumption exists in favor of allowing amendment. However, [*42] Plaintiffs' proposed amended complaint marks the fourth iteration of their claims and legal theories; they are represented by counsel; and they crafted the proposed amendments with the benefit of having reviewed Defendants' Motion to Dismiss. The proposed Third Amended Complaint is futile in that it does not sufficiently address the exhaustion requirement and does not cure the pleading deficiencies contained in the operative complaint. Thus, I respectfully recommend that the action be

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dismissed instead of permitting yet another attempt to amend.

CONCLUSION

For the foregoing reasons, this court respectfully RECOMMENDS that:

1. The Motion to Dismiss Second Amended Complaint [#30] be GRANTED;

2. The Motion to Amend Complaint [#42] be DENIED; and

3. This action be DISMISSED without prejudice.11

DATED: September 25, 2017

BY THE COURT:

/s/ Nina Y. Wang

United States Magistrate Judge

11 Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo [*43] review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).

End of Document

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Prunty v. United States Dep't of Educ.

United States District Court for the Middle District of Florida, Fort Myers Division


Case No: 2:16-cv-577-FtM-99CM


ROBERT R. PRUNTY, JR., Plaintiff, v. UNITED STATES DEPARTMENT OF EDUCATION, THE DESOTO COUNTY SCHOOL DISTRICT, THE JACK NICKLAUS MIAMI CHILDREN'S HOSPITAL, INC., KARYN E. GARY, FLORIDA DEPARTMENT OF EDUCATION, THE FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, ELIZABETH DUDEK, PAMELA STEWART, ALEX SOTO, and JOHN KING, Defendants.

Prior History: Prunty v. United States Dep't of Educ., 2017 U.S. Dist. LEXIS 13761 (M.D. Fla., Feb. 1, 2017)

Counsel: [*1] Robert R. Prunty, Jr, Plaintiff, Pro se, Arcadia, FL.

For United States Department of Education, Florida Department of Education, The Florida Agency for Health Care Administration, Defendants: Shane Weaver, LEAD ATTORNEY, Office of the Attorney General, West Palm Beach, FL.

For The Desoto County School District, Dr. Karyn E. Gary, Defendants: Thomas Robert Unice, Jr., LEAD ATTORNEY, Jeffrey D. Jensen, Unice Salzman Jensen, PA, Trinity, FL.

For The Jack Nicklaus Miami Children's Hospital, Inc., Defendant: Glenn P. Falk, LEAD ATTORNEY, Falk, Waas, Hernandez, Cortina, Solomon & Bonner, PA, Coral Gables, FL; Scott Lawrence Mendlestein, Falk Waas Hernandez Cortina Solomon & Bonner, Coral Gables, FL.

Judges: JOHNE E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE.

Opinion by: JOHNE E. STEELE

Opinion

OPINION AND ORDER

This matter comes before the Court on pro se plaintiff Robert J. Prunty, Jr.'s (plaintiff or Prunty) Motion for Reconsideration Pursuant to Federal Rules 56 and 60 due to Newly Discovered Evidence, Fraud Upon the Court, and Need to Prevent Manifest Injustice (Doc. #107) filed on February 13, 2017. Defendant DeSoto County School District filed a response in opposition (Doc. #108) on February 17, 2017. On February 23, 2017, [*2] this Court granted other defendants an extension of time to respond and requested that defendants address what implications, if any, Fry v. Napoleon Community Schools, 137 S. Ct. 743, 197 L. Ed. 2d 46 (2017) has on whether reconsideration of the Court's February 1, 2017 Opinion and Order dismissing plaintiff's First Amended Complaint for failure to exhaust administrative remedies under the Individuals with Disabilities Education Act (IDEA) (Doc. #106), is warranted. (Doc. #112.) The Court also allowed plaintiff the opportunity file a reply. (Id.)

Having reviewed defendant Florida Medicaid's response (Doc. #113), and plaintiff's motions, which the Court construes as replies to defendants' responses (Docs. ##111, 119, 121), the Court denies the request for reconsideration.

I.

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A non-final order may be revised at any time before the entry of a final judgment. Fed. R. Civ. P. 54(b). The decision to grant a motion for reconsideration is within the sound discretion of the trial court and may be granted to correct an abuse of discretion. Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993). "The courts have delineated three major grounds justifying reconsideration of such a decision: (1) an intervening change in controlling law; (2) the availability of new evidence; (3) the need to correct clear error or prevent manifest injustice." Sussman [*3] v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994). Furthermore, the Court has the inherent power to assess sanctions for a party's bad-faith conduct, including setting aside judgments for fraud on the court and imposing attorney fees and costs, independent of statutory or rule provisions. Chambers v. NASCO, Inc., 501 U.S. 32, 44-50, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991). According to plaintiff, reconsideration is warranted because of newly discovered evidence, the need to prevent manifest injustice due to defendants' fraud on the court, and an intervening change in the law.

II.

A. Fraud on the Court

Fraud on the court is defined as "embracing only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication, and relief should be denied in the absence of such conduct." Securities & Exchange Commission v. ESM Group, Inc., 835 F.2d 270, 273 (11th Cir. 1988) (citing Travelers Indemnity Co. v. Gore, 761 F.2d 1549, 1551 (11th Cir. 1985)).

Plaintiff first argues that defendants falsely claimed in their motions to dismiss that plaintiff failed to exhaust his administrative remedies under the IDEA when exhaustion is not required. This is not fraud on

the court, this is advocacy, albeit a position that plaintiff does not agree with. The Court addressed exhaustion [*4] in its Opinion and Order on defendants' motions to dismiss, and found that based on the allegations in plaintiff's First Amended Complaint (Doc. #43) exhaustion of the IDEA's administrative procedures is required. There is no basis for reconsideration.

Second, as further support for fraud on the court, plaintiff raises the statute of limitations for the first time. Plaintiff argues that when he re-filed this action on May 6, 2016 (Doc. #1), he did it "with full knowledge that the IDEA statute of limitations had expired on March 3, 2016." (Doc. #107, ¶¶ 7, 9.) Plaintiff states that defendants intentionally failed to mention the expired statute of limitations to the Court because they knew that his case did not seek relief under the IDEA. (Id. at ¶ 11; Doc. #111, ¶ 13.) Despite knowing that relief was not being sought under the IDEA, defendants moved to dismiss on this basis anyway. (Id.) Defendants responds that this accusation is false and the newly-proclaimed argument was not apparent on the face of the Complaint. (Doc. #1). Defendants state that they could not have committed fraud by not correcting plaintiff's own error for him.

The Court finds no fraud on the court. Rather, this is [*5] simply another attempt by plaintiff to reargue his position that he does not seek relief under the IDEA and is exempt from the exhaustion requirement. The Court has found that plaintiff's Amended Complaint clearly does seek such relief (Doc. #106 at n.1), and that has not changed. In fact, plaintiff continues to invoke the IDEA in his motion for reconsideration, stating that "it is only plaintiff who claimed he himself never received IDEA procedural safeguards."1 (Doc. #107, ¶ 14; Doc. #121, ¶¶ 6, 9.)

1 As noted by the Court in its Opinion and Order on dismissal, parents of covered children are "entitled to prosecute IDEA claims on their own behalf." (Doc. #106, citing Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 535, 127 S. Ct. 1994, 167 L. Ed. 2d 904 (2007)).

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B. Intervening Change in Controlling Law

In support of his argument for an intervening change in controlling law, plaintiff cites the Sixth Circuit's decision in Fry v. Napoleon Community Schools, 788 F.3d 622 (6th Cir. 2015), and particularly its dissenting opinion, which states: "Non-IDEA claims that do not seek relief available under the IDEA are not subject to the exhaustion requirement." Fry, 788 F.3d at 635; Doc. #107 at 16-17. The Sixth Circuit's opinion was issued prior to the Court's Opinion and Order dismissing the First Amended Complaint (Doc. #106), and the Supreme Court had not yet issued its opinion at that time.2

In Fry, the Supreme Court vacated the Sixth Circuit's decision, finding that exhaustion under the IDEA is required when a lawsuit challenges the [*6] denial of a Free Appropriate Public Education (FAPE), and that a plaintiff cannot escape the exhaustion requirement "merely by bringing her suit under a statute other than the IDEA." 137 S. Ct. at 754. "[If] the remedy sought is not for the denial of a FAPE, then exhaustion of the IDEA's procedures is not required. After all, the plaintiff could not get any relief from those procedures." Id. The Supreme Court noted that even if a complaint is not framed or phrased to precisely allege a school's failure to provide FAPE, the gravamen of the complaint is what matters; otherwise, a plaintiff could evade the IDEA's restrictions through artful pleading. Id. at 755. Moreover, the Supreme Court stated: "A further sign that the gravamen of a suit is the denial of a FAPE can emerge from the history of the proceedings. In particular, a court may consider that a plaintiff has previously invoked the IDEA's formal procedures to handle the dispute — thus starting to exhaust the Act's remedies before switching midstream." Id. at 757.

Here, Fry is not an intervening change in the law that warrants reconsideration. Instead, it is an affirmation of the approach taken in the Court's prior Opinion and Order (Doc. #106).

2 The United States Supreme Court reversed and remanded the Sixth Circuit's decision on February 22, 2017.

Plaintiff argues that [*7] the dismissal should be vacated because he is not seeking relief under the IDEA, citing Fry (Doc. #107, ¶¶ 7, 16, 19, 22, 25-60), yet he clearly is. As previously noted by the Court, the gravamen of plaintiff's Amended Complaint involves the denial of a FAPE, and seeks relief under the IDEA as plaintiff alleges that defendants denied him the benefits of federal programs and the right to make and enforce Individualized Education Program contracts (IEPs) for his five children who have been diagnosed with Autism. Plaintiff states that the "action is based upon damages to Plaintiff personally under Title VI, IDEA and 42 U.S.C. § 1983, respectively." (Doc. #43, ¶ 1; Doc. #106, n. 1 and p. 4, citing Babicz v. Sch. Bd. of Broward Cnty., 135 F.3d 1420, 1422 n.10 (11th Cir. 1998) ("[A]ny student who wants relief that is available under the IDEA must use the IDEA's administrative system even if he invokes a different statute.")) Furthermore, the Court noted in its Opinion and Order that plaintiff previously invoked the IDEA's administrative remedies, but abandoned them because plaintiff believed that the Administrative Law Judge was biased and had set his case in "legal limbo" to cause delay of the proceedings. (Doc. #43, ¶ 20.) As the Supreme Court in Fry stated, this is a sign that the [*8] gravamen of a complaint is the denial of a FAPE, requiring exhaustion. Fry, 137 S. Ct. at 757. Therefore, reconsideration on the basis of an intervening change in the law is denied.

C. Newly Discovered Evidence

Plaintiff has cited no newly discovered evidence that was not before the Court when it ruled on the motions to dismiss. Therefore, reconsideration on this basis is denied.

Accordingly, it is hereby

ORDERED AND ADJUDGED:

1. Plaintiff's Motion for Reconsideration due to Newly Discovered Evidence, Fraud Upon the Court, and Need to Prevent Manifest Injustice (Doc. #107)

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is DENIED.

2. Plaintiff's Omnibus Motion in Opposition to the School District of DeSoto County's Constant Vexatious Filings (Doc. #111) is DENIED.

3. Plaintiff's Motion and Notice to Defendant School District of DeSoto County Invoking Contempt of Court due to Intentional Violation of Court Orders Regarding Fry v. Napoleon (Doc. #119) is DENIED.

4. Plaintiff's Direct Opposition to the School District of DeSoto County's Further Cumulative and Vexatious Filings (Doc. #121) is DENIED.

5. AHCA's Motion to Strike Plaintiff's Unauthorized Reply (Doc. #122) is DENIED as moot.

6. The Clerk is directed to enter judgment dismissing this case without prejudice [*9] in accordance with this Court's February 1, 2017 Order (Doc. #106).

DONE and ORDERED at Fort Myers, Florida, this 29th day of March, 2017.

/s/ Johne E. Steele

JOHNE E. STEELE

SENIOR UNITED STATES DISTRICT JUDGE

End of Document

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