Childs v. Dale County Board of Education
MEMORANDUM OPINION AND ORDER: it is ORDERED that Defendant's 36 motion to strike is DENIED. The objections to Plaintiffs' Summary Judgment Brief and Evidentiary Submissions are OVERRULED IN PART and SUSTAINED IN PART, as set out herein. Signed by Chief Judge William Keith Watkins on 9/28/2015. (kh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
J.S.R., a minor, by his Mother,
Susan Tarter Childs, as his Next
Friend, and SUSAN TARTER
DALE COUNTY BOARD
CASE NO. 1:13-CV-582-WKW
MEMORANDUM OPINION AND ORDER
This memorandum opinion and order is entered contemporaneously with the
court’s memorandum opinion on the parties’ cross-motions for summary judgment.
Before the court is Defendant Dale County Board of Education’s Motion to
Strike Plaintiffs’ Exhibits 30, 31, 38, and 39, and the new claims raised in
Plaintiffs’ motion for summary judgment pertaining to the same exhibits. (Doc.
# 36.) Plaintiffs J.S.R. and Susan Tarter Childs claim to have responded to the
motion to strike, (Doc. # 43), but the response does not confront directly any issue
raised in Defendant’s motion. Plaintiffs’ summary judgment reply brief (Doc.
# 44, at 6) is responsive to Defendants’ positions.
Upon consideration of the
parties’ arguments and relevant law, the court finds that the motion to strike is due
to be denied. However, the court concludes that the objections raised in the motion
to strike are due to be overruled in part and sustained in part.
I. STANDARD OF REVIEW
Defendant’s motion to strike does not identify any rule authorizing the relief
Defendant seeks. The Federal Rules of Civil Procedure allow for motions to strike
pleadings, see Fed. R. Civ. P. 12(f), but not evidentiary submissions. See Smith v.
Se. Stages, Inc., 479 F. Supp. 593, 594 (N.D. Ga. 1977). The court therefore treats
the motion to strike as an objection to Plaintiffs’ exhibits and claims as set out in
Defendant’s motion. See id.; Norman v. S. Guar. Ins. Co., 191 F. Supp. 2d 1321,
1328 (M.D. Ala. 2002) (taking the same approach). The court will consider the
merits of Defendant’s objections to Plaintiffs’ evidence.
This action follows a state administrative due process hearing conducted
pursuant to the Individuals with Disabilities Education Act (“IDEA”). Defendant
protests that Plaintiffs’ Exhibits 30, 31, 38, and 391 were not presented in the state
administrative due process hearing, and that the exhibits pertain to events or
circumstances arising since that hearing. Defendant cites the law pertaining to
civil actions in federal court for judicial review of a state administrative due
process hearing under the IDEA. See, e.g., 20 U.S.C. § 1415(i)(2)(C)(ii) (“In any
Plaintiffs’ Exhibits 30, 31, 38, and 39 are included within Document Nos. 33, 34 and
action brought under this paragraph, the court . . . shall hear additional evidence at
the request of a party.” (emphasis added)); W. Platte R-II Sch. Dist. v. Wilson, 439
F.3d 782, 785 (8th Cir. 2006) (“The IDEA permits a reviewing court to admit
additional evidence to supplement the record if a party has a solid justification for
doing so.”). The Eleventh Circuit has noted that the IDEA “contemplates that the
source of the evidence generally will be the administrative hearing record, with
some supplementation at trial.” Walker Cnty. Sch. Dist. v. Bennett ex rel. Bennett,
203 F.3d 1293, 1298 (11th Cir. 2000). District courts have been cautioned “not to
allow such [supplemental] evidence to change the character of the hearing from
one of review to a trial de novo.” Id.
Relying on these authorities, Defendant objects that neither party filed a
motion to admit additional evidence beyond the administrative record. (Doc. # 36,
Neither party, however, challenges the outcome of the administrative
hearing. Rather, Count I of the Amended Complaint pertains to Plaintiffs’ suit for
attorneys’ fees as the prevailing party at the administrative hearing, and Counts II,
III, and IV are claims over which the state’s impartial hearing officer declined to
exercise jurisdiction.2 Because the court is presented with claims raised but not
decided during the administrative proceedings, there appears to be no reason to
The impartial hearing officer determined that he lacked jurisdiction to entertain
Plaintiffs’ ADA, § 504, and federal constitutional claims under § 1983. (Administrative
Decision, at 9–10.)
confine the evidence to the administrative record, and Plaintiffs need not request
permission to supplement the record with evidence obtained after the conclusion of
the administrative hearing. Defendant’s first objection is due to be overruled.3
Defendant next argues that Plaintiffs failed to exhaust their administrative
remedies with respect to the evidence presented in Plaintiffs’ Exhibits 30, 31, 38,
and 39. Defendant argues that, “[r]egardless of the manner in which Plaintiffs
characterize their allegations” – i.e., as claims under federal statutes other than the
IDEA – “[Plaintiffs] are still required to exhaust their administrative remedies
pursuant to IDEA.” (Doc. # 36, at 5.) This is true. “[W]hether claims asserting
the rights of disabled children are brought pursuant to the IDEA, the ADA, Section
504, or the Constitution, they must first be exhausted in state administrative
proceedings.” M.T.V. v. DeKalb Cnty. Sch. Dist., 446 F.3d 1153, 1158 (11th Cir.
2006); see also Babicz v. Sch. Bd. of Broward Cnty., 135 F.3d 1420, 1422 (11th
Cir. 1998). Plaintiffs have exhausted their administrative remedies with respect to
their ADA, § 504, and § 1983 claims arising during or prior to the 2012–13
academic school year because Plaintiffs raised those claims during the course of
their due process hearing.
However, Plaintiffs have not exhausted their
Additionally, Defendant did not request leave to submit the Affidavit of Beverly
Lampkin or Ms. Childs’s deposition, taken on August 11, 2014. Neither piece of evidence is
included in the state administrative record because each piece of evidence became available well
after the completion of the administrative due process hearing. Defendant’s argument, which is
inapposite, is further weakened by Defendant’s inconsistent application of the principle that the
evidentiary record must be restricted to the administrative record.
administrative remedies with respect to more recent claims. Plaintiffs, therefore,
are constrained by the law of the Eleventh Circuit from raising any new ADA,
§ 504, or § 1983 claims related to J.S.R.’s education since the conclusion of the
due process proceedings in June 2013 because there has been no additional due
process complaint filed with the State Department of Education.
asserted under Section 504 and/or the ADA are subject to [20 U.S.C. §] 1415(f)’s
requirement that litigants exhaust the IDEA’s administrative procedures to obtain
relief that is available under the IDEA before bringing suit under Section 504
and/or the ADA.” Babicz, 135 F.3d at 1422. Defendant’s objection to Plaintiffs’
summary judgment submissions and arguments is due to be sustained to the extent
that Plaintiffs have not exhausted their administrative remedies with respect to
issues arising since the completion of the 2012–13 academic school year.
Lastly, Defendant contends that “Plaintiffs’ new Section 504 claims”
concerning circumstances arising during J.S.R.’s ninth- and tenth-grade school
years “were not identified in Plaintiffs’ Complaint or First Amended Complaint.”
(Doc. # 36, at 6.)
Defendant does not cite any law in direct support of that
objection, but it is well established that a court should refuse to consider claims not
pleaded in the operative pleading because a plaintiff may not amend the complaint
through summary judgment briefing. See Gilmour v. Gates, McDonald & Co., 382
F.3d 1312, 1315 (11th Cir. 2004). Defendants are entitled to pleaded notice of a
plaintiff’s claims, and defendants are not required to “infer all possible claims that
could arise out of facts set forth in the complaint.” Id. Furthermore, “th[is] court
is barred from amending” a plaintiff’s complaint for him because “the court may
create the impression that it has become [his] advocate – or his worst enemy –
depending on what the court does with the claim after amending it.” Miccosukee
Tribe of Indians of Fla. v. United States, 716 F.3d 535, 559 (11th Cir. 2013).
Plaintiffs’ Amended Complaint was filed October 30, 2013, toward the
beginning of J.S.R.’s ninth-grade year, the 2013–14 academic school year. The
Amended Complaint discusses facts that preceded the 2013–14 academic school
year. Plaintiffs’ summary judgment submissions, however, address issues arising
subsequent to the filing of the Amended Complaint, including J.S.R.’s exclusion
from the varsity baseball team during his tenth-grade year, Defendant’s failure to
provide unspecified “counseling” to J.S.R., Defendant’s prosecution of J.S.R. in
Dale County Juvenile Court for habitual truancy, and the failure of J.S.R.’s IEP
team to address his needs in light of his absences for what Plaintiff says should
have been excused medical reasons. (Doc. # 26, at 26). Additionally, Plaintiffs
complain in their brief that Defendant “continue[s] to ignore [J.S.R.’s] social,
emotional, and academic needs” since the completion of the administrative due
process hearing. (Doc. # 26, at 11 (citing Plaintiffs’ Exhibit 31, which appears to
be J.S.R.’s IEP for the 2014–15 school year).) Plaintiffs maintain that these facts
support their claims for unlawful discrimination and retaliation under the ADA and
§ 504. (Doc. # 26, at 26.)
Plaintiffs’ Amended Complaint does allege, in conclusory fashion, that
J.S.R. has suffered unlawful discrimination and retaliation. (See Am. Compl.
at Counts II & III.) However, Plaintiffs never amended their pleading to give
Defendant notice that their claims encompassed any of the additional facts arising
during the 2013–14 and 2014–15 academic school years.
For that reason,
Defendant’s objection is due to be sustained, and the claims to be considered at
summary judgment are limited to what was pleaded in the Amended Complaint.
In accordance with the foregoing analysis, it is ORDERED that Defendant’s
motion to strike (Doc. # 36) is DENIED. The objections to Plaintiffs’ Summary
Judgment Brief and Evidentiary Submissions are OVERRULED IN PART and
SUSTAINED IN PART, as set out herein.
DONE this 28th day of September, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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