Kabacinski v. State of Delaware Department of Education

Filing 5

MEMORANDUM. Signed by Judge Gregory M. Sleet on 12/10/13. (mdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

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Plaintiff,
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v.
) Civ. Action No. 13-1582-GMS
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STATE OF DELAWARE DEPARTMENT )

OF EDUCATION,
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Defendant.
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ANDREA KABACINSKI,

MEMORANDUM
The plaintiff, Andrea Kabacinski ("Kabacinski"), filed this lawsuit on behalf of her minor
child pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12133. (D.L 2.) She appears

pro se and was granted permission to proceed inJormapauperis pursuant to 28 U.S.C. § 1915.
(DJ.4.) The court now proceeds to review and screen the complaint pursuant to 28 U.S.C. §
1915(e)(2).

I. BACKGROUND
Kabacinski alleges that her daughter was enrolled in the Delaware public school system,
beginning in the fall of 2007. Kabacinski had difficulty enrolling her daughter and, according to
Kabacinski, once she was enrolled she was not provided with an appropriate public education.
More specifically, Kabacinski alleges that her daughter was not given appropriate testing for IEP
services for specific learning disorders and she was misdiagnosed (cognitively delayed/mentally
retarded). Not satisfied with the test results, Kabacinski had her daughter tested through a
children's hospital, but the school district refused to accept the test results (no global
developmentally delays) on the ground that the tests were performed "out of district." The
school district advised Kabacinski that the IEP for cognitively delayed/mentally retarded would

stand for three years. In addition, Kabacinski alleges that her daughter was not provided with a
private tour of the school, small classes, a typing class, or a laptop to complete her assignments.
Kabacinski and her daughter moved to another city in Delaware that Kabacinski had
been informed had "great schools for dyslexic students," but it turned out "not to be true." Her
daughter repeated the eighth grade. Kabacinski again sought testing for her daughter and, again,
the school district refused to accept the test results and recommendations because they were "out
of district." Once again, Kabacinski was advised that the IEP for cognitively delayed/mentally
retarded would stand for three years.
Following an incident with the Delaware Child Protective Services, Kabacinski's former
spouse decided that their daughter should attend a school for special needs students. A meeting
was held at the regular school and it was decided that the daughter would be placed in the special
needs school. Following an incident around Spring Break, Kabacinski had the daughter tested a
third time and, a third time, the school district refused to accept the test results and
recommendations on the grounds that they were "out of district" and that its IEP would stand for
three years. Kabacinski ultimately decided to horne-school her daughter until she could find an
acceptable school. I
Kabacinski alleges that her daughter's civil rights were violated as a student in the public
school system in the State of Delaware. The complaint does not contain a prayer for relief.

II. STANDARD OF REVIEW
This court must dismiss, at the earliest practicable time, certain in forma pauperis actions
that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is

lKabacinski also alleges that her daughter was bullied at each school she attended.
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immune from such relief. See 28 U.S.C. § 1915(e)(2). The court must accept all factual
allegations in a complaint as true and take them in the light most favorable to a pro se plaintiff.
Phillips v. County ofAllegheny, 515 F.3d 224,229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S.

89,93 (2007). Because Kabacinski proceeds pro se, her pleading is liberally construed and her
complaint, "however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. at 94 (citations omitted).
An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.c. § 1915(e)(2)(B)(i), a court may dismiss a

complaint as frivolous ifit is "based on an indisputably meritless legal theory" or a "clearly
baseless" or "fantastic or delusional" factual scenario. Neitzke, 490 at 327-28; Wilson v.
Rackmill, 878 F.2d 772, 774 (3d Cir. 1989).

The legal standard for dismissing a complaint for failure to state a claim pursuant to

§ 1915(e)(2)(B)(ii) is identical to the legal standard used when ruling on 12(b)(6) motions.
Tourscher v. ivfcCuliough, 184 F.3d 236,240 (3d Cir. 1999) (applying Fed. R. Civ. P. 12(b)(6)

standard to dismissal for failure to state a claim under § 1915(e)(2)(B)). However, before
dismissing a complaint or claims for failure to state a claim upon which relief may be granted
pursuant to the screening provisions of28 U.S.C. § 1915, the court must grant Kabacinski leave
to amend her complaint unless amendment would be inequitable or futile. See Grayson v.
Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

A well-pleaded complaint must contain more than mere labels and conclusions. See
Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). The

assumption of truth is inapplicable to legal conclusions or to "[t]hreadbare recitals of the

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elements of a cause of action supported by mere conclusory statements." Id. at 678. When
determining whether dismissal is appropriate, the court conducts a two-part analysis. Fowler v.
UPMC Shadyside, 578 F.3d 203,210 (3d Cir. 2009). First, the factual and legal elements of a
claim are separated. Id. The court must accept all of the complaint's well-pleaded facts as true,
but may disregard any legal conclusions. Id. at 210-11. Second, the court must determine
whether the facts alleged in the complaint are sufficient to show that Kabacinski has a "plausible
claim for relief.,,2 Id. at 211. In other words, the complaint must do more than allege
Kabacinski's entitlement to relief; rather it must "show" such an entitlement with its facts. Id.
"[W]here the well-pleaded facts do not permit the court to infer more than a mere possibility of
misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to
relief." Iqbal, 556 U.S. at 678 (quoting Fed. R. Civ. P. 8(a)(2».

III. DISCUSSION
The complaint does not indicate under which statute Kabacinski proceeds. However, the
civil cover sheet refers to the Americans with Disabilities Act ("ADA"). Therefore, liberally the
complaint, as the court must, it appears that the claims are raised under Title II of the Americans
with Disabilities Act, 42 U.S.C. § 12132.
The complaint indicates that Kabacinski' s daughter began attending school in the
Delaware school districts in the fall of2007. It appears that Kabacinski's daughter stopped

A claim is facially plausible when its factual content allows the court to draw a
reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 570). The plausibility standard "asks for more than a sheer
possibility that a defendant has acted unlawfully." Id. "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.
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attending Delaware public schools after two or three years and that Kabacinski began homeschooling her around approximately 2010. The complaint was filed on September 19,2013.
The statute of limitations applicable to claims under Title II of the ADA is the forum
state's statute of limitations for personal injury actions. See Disabled in Action ofPa. v.

Southeastern Pa. Transp. Auth., 539 F.3d 199,208 (3d Cir. 2008). In Delaware, the statute of
limitations for a personal injury action is two years. See 10 Del. C. § 8119. Hence, it appears that
the claims are time-barred. In addition, the complaint is deficiently pled given that Kabacinski
does not indicate the relief she seeks. Therefore, the court will dismiss the complaint for failure to
state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
,
Nonetheless, because it is not clear when Kabacinski's daughter stopped attending Delaware
public schools, Kabacinski will be given leave to amend.

IV. CONCLUSION
For the above reasons, the court will dismiss the complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be grated. The plaintiff will
be given leave to amend.
An appropriate order will be entered.

GE

Oc,,~ 1-=.0_ _,2013
Wilmington, Delaware

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