Russell et al v. Lodi Unified School District et al.

Filing 18

MEMORANDUM and ORDER signed by District Judge Morrison C. England, Jr. on 8/24/2016 ORDERING that Plaintiff's 1 complaint is DISMISSED with leave to amend. Plaintiffs may file a First Amended Complaint no later than twenty-one (21) days from the date this Order is electronically filed. If Plaintiffs decline to file a First Amended Complaint within that time period, the case will be dismissed with prejudice. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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C.R., by and through his mother LISA
RUSSELL, and LISA RUSSELL,
Plaintiffs,

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v.

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No. 2:16-cv-00062-MCE-EFB

MEMORANDUM AND ORDER

LODI UNIFIED SCHOOL DISTRICT,
et al.,

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Defendants.

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Plaintiffs Lisa Russell and her son C.R. (“Plaintiffs”) brought this action alleging

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that Defendants Cathy Nichols-Washer, Pat White, Stephanie Seabourn, Theresa

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Serface, and the Lodi Unified School District (collectively, “Defendants”) mistreated C.R.

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in violation of the Rehabilitation Act, the Americans with Disabilities Act, and 42 U.S.C.

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§ 1983. Presently before the Court is Defendants’ Motion to Dismiss pursuant to Federal

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Rule of Civil Procedure 12(b)(6).1 ECF No. 14. For the reasons that follow, Defendants’

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Motion is GRANTED and Plaintiffs’ Complaint is DISMISSED with leave to amend.2

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All further reference to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless
otherwise indicated.
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Because oral argument would not have been of material assistance, the Court ordered this
matter submitted on the briefs. E.D. Cal. Local R. 230(g).

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BACKGROUND3

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Plaintiff C.R. has been diagnosed as autistic since he was three years old.

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Despite his disability, he began attending Elkhorn Elementary School (“Elkhorn”), an all-

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Gifted and Talented Education (“GATE”) school in the Lodi Unified School District

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(“LUSD”), in fourth grade. He was the only disabled student in his fourth grade class.

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Before he began fourth grade at Elkhorn, C.R.’s mother and representatives from his

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previous school developed an updated Individualized Education Plan (“IEP”) and

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Behavioral Intervention Plan (“BIP”) to be implemented at Elkhorn.
Plaintiffs allege that almost immediately after he began attending Elkhorn, C.R.’s

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teacher, Defendant Seabourn, and a paraeducator hired to work with him in the class

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room, Defendant Serface, took numerous steps to ostracize and isolate him from his

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peers. The alleged actions taken by Defendants Seabourn and Surface purportedly

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violated C.R.’s IEP and BIP, caused him severe emotional distress, and ultimately led to

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him developing Post Traumatic Stress Disorder (“PTSD”). Plaintiffs allege that despite

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his mother’s repeated complaints to administrators such as Defendants White and

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Nichols-Washer, Serface and Seabourn’s ostracism and isolation of C.R. continued.
Eventually, C.R.’s mother removed him from Elkhorn and filed this lawsuit.

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Plaintiffs seek damages of at least $100,000 on six different claims for relief. Three of

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those claims are brought under Section 504 of the Rehabilitation Act (“Section 504”),

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one under Title II of the Americans with Disabilities Act (“ADA”), and two under 42 U.S.C.

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§ 1983 (“Section 1983”). The Complaint contains no allegation that Plaintiffs attempted

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to resolve the dispute through administrative proceedings with Defendant LUSD. By

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way of their Motion, Defendants seek dismissal of all of Plaintiffs’ claims for failure to

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exhaust their administrative remedies.

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The following recitation of facts is taken entirely from Plaintiffs’ Complaint. ECF No. 1.

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STANDARD

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On a motion to dismiss for failure to state a claim under Federal Rule of Civil

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Procedure 12(b)(6), all allegations of material fact must be accepted as true and

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construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins.

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Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) “requires only ‘a short and plain

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statement of the claim showing that the pleader is entitled to relief’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,

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47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require

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detailed factual allegations. However, “a plaintiff's obligation to provide the grounds of

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his entitlement to relief requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do.” Id. (internal citations and

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quotations omitted). A court is not required to accept as true a “legal conclusion

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couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

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Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right to relief

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above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright &

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Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the

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pleading must contain something more than “a statement of facts that merely creates a

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suspicion [of] a legally cognizable right of action”)).

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Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket

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assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3 (internal citations and

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quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard

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to see how a claimant could satisfy the requirements of providing not only ‘fair notice’ of

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the nature of the claim, but also ‘grounds' on which the claim rests.” Id. (citing Wright &

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Miller, supra, at 94, 95). A pleading must contain “only enough facts to state a claim to

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relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . have not nudged their

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claims across the line from conceivable to plausible, their complaint must be dismissed.”
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Id. However, “[a] well-pleaded complaint may proceed even if it strikes a savvy judge

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that actual proof of those facts is improbable, and ‘that a recovery is very remote and

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unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

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A court granting a motion to dismiss a complaint must then decide whether to

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grant leave to amend. Leave to amend should be “freely given” where there is no

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“undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice

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to the opposing party by virtue of allowance of the amendment, [or] futility of the

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amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v.

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Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to

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be considered when deciding whether to grant leave to amend). Not all of these factors

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merit equal weight. Rather, “the consideration of prejudice to the opposing party . . .

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carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183,

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185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that

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“the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group,

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Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006,

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1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir.

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1989) (“Leave need not be granted where the amendment of the complaint . . .

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constitutes an exercise in futility . . . .”)).

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ANALYSIS

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Plaintiffs’ claims for relief and supporting factual allegations are largely directed at

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Defendants’ purported denial of a free, appropriate public education (“FAPE”) to C.R. As

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such, Plaintiffs’ claims are intertwined with the Individuals with Disabilities Education Act

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(“IDEA”). See 20 U.S.C. § 1400 et seq. Courts in this circuit consistently hold that

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claims intertwined with the IDEA must satisfy IDEA’s administrative exhaustion

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requirement. Because Plaintiffs have made no allegation regarding administrative

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exhaustion, the Court dismisses their Complaint in its entirety with leave to amend.
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A claim arises under the IDEA if it seeks “to enforce rights that arise as a result of

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a denial of a FAPE.” C.O. v. Portland Public Schools, 679 F.3d 1162, 1168 (9th Cir.

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2012). A claim seeks to enforce rights that arise from the alleged denial of a FAPE if the

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claim is grounded in the failure of a defendant to properly implement an IEP. See J.W.

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ex rel. J.E.W. v. Fresno Unified School Dist., 626 F.3d 431, 432 (9th Cir. 2010) (“[A]

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school district, in creating and implementing the IEP, can run afoul of the Act’s

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procedural requirements.” (emphasis added)); see also D.D. ex rel. V.D. v. New York

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City Bd. Of Educ., 465 F.3d 503, 512 (2d Cir. 2006) (“The term ‘free appropriate public

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education’ is defined in part as “special education and related services that . . . are

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provided in conformity with the individualized education program required under [the

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IDEA].” (citation omitted)). This is true regardless of whether a plaintiff explicitly asserts

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an IDEA claim or seeks damages under a statute such as Section 504. Payne v.

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Peninsula School Dist., 653 F.3d 863, 875 (9th Cir. 2011).

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The IDEA requires an aggrieved party to exhaust its administrative remedies

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under the IDEA before resorting to a lawsuit. 20 U.S.C. § 1415(l). Accordingly, a

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plaintiff must exhaust its administrative remedies under the IDEA in order to bring any

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claim that seeks to enforce rights that arise as a result of a failure to implement a child’s

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IEP. A defendant may challenge a failure to exhaust administrative remedies under

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Rule 12(b)(6) when the failure to exhaust is clear on the face of the complaint. Albino v.

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Baca, 747 F.3d 1162, 1166 (9th Cir. 2014).

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Here, Defendants’ Rule 12(b)(6) challenged based on Plaintiffs’ failure to exhaust

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administrative remedies is well-taken. First, Plaintiffs’ claims here are predominately

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premised on Defendants’ failure to properly implement C.R.’s IEP and BIP. The

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Complaint mentions Defendants’ failure to implement C.R.’s IEP and BIP on numerous

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occasions. E.g., ECF No. 1 at ¶¶ 16, 18, 31, 34, 38, 40, 44, 49. Indeed, Plaintiffs’ own

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opposition admits that their claims “relate to the Defendants’ failure to follow the

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IEP . . . .” ECF No. 15 at 14:7-8. The only logical inference is that Plaintiffs’ claims

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arise, at least in part if not in whole, under the IDEA. See J.W. ex rel. J.E.W., 626 F.3d
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at 432. Second, by incorporating every preceding allegation in the Complaint into each

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individual claim for relief, Plaintiffs have made it impossible for the Court to parse

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Plaintiffs’ IDEA-based allegations from Defendants’ other alleged misconduct in order to

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evaluate the extent to which Plaintiffs’ claims are subject IDEA’s exhaustion provisions.

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See e.g., id. at ¶ 62.

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Finally, the fact that the Complaint completely fails to address exhaustion,

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combined with Plaintiffs’ insistence that exhaustion is not required, suggests that

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exhaustion did not occur. As Defendants’ persuasively argue, Plaintiffs should not be

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allowed to plead around exhaustion by failing to address it entirely. If this Court allowed

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Plaintiffs to do so, this case could proceed to discovery—at potentially great cost to

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Defendants—only to potentially be dismissed at summary judgment for failure to

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exhaust.

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Plaintiffs can address the Complaint’s deficiencies in at least two ways. First,

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Plaintiffs can properly plead exhaustion if in fact they engaged in the administrative

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process with Defendant LUSD. Alternatively, Plaintiffs can redraft the Complaint to

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allege claims under Section 1983, Section 504, and the ADA that are not dependent on

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the failure to implement C.R.’s IEP and BIP. The Complaint is therefore DISMISSED

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with leave to amend.

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CONCLUSION

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Plaintiffs’ Complaint (ECF No. 1) is DISMISSED with leave to amend. Plaintiffs

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may file a First Amended Complaint no later than twenty-one (21) days from the date this

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Order is electronically filed. If Plaintiffs decline to file a First Amended Complaint within

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that time period, the case will be dismissed with prejudice.

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IT IS SO ORDERED.
Dated: August 24, 2016

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