Kuhner v. Highland Community Unit School District No. 5 et al

Filing 43

MEMORANDUM AND ORDER, granting 35 MOTION to Dismiss for Failure to State a Claim filed by Highland Community Unit School District No. 5, Jody L. Hall, Chris Becker, Michael S. Sutton, Michelle L. Rusteberg. The Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Judge J. Phil Gilbert on 6/14/2016. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KIM KUHNER, Individually and as
Guardian of the Estate of J.K. a Minor,
Plaintiff,
vs.
HIGHLAND COMMUNITY UNIT
SCHOOL DISTRICT NO. 5, et al.,
Defendants.

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Case No. 15-cv-00107-JPG-DGW

MEMORANDUM AND ORDER
This matter comes before the Court on Defendants’ Motion (Doc. 35) to Dismiss
Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff
filed a timely Response (Doc. 38). Defendants then filed a Motion (Doc. 40) for Leave to Cite
Additional Authority which the Court granted (Doc. 41) and further allowed the Plaintiff time to
file a supplemental response. The Plaintiff then filed a response (Doc. 42) to the Additional
Authority.
1. Background.
Plaintiff Kim Kuhner is the natural mother and guardian of the estate of J.K., a minor. She
filed her initial complaint (Doc. 2) on January 30, 2015, alleging that J.K. was a student at
Highland High School in Highland, Illinois enrolled in its special education program, specifically
the Individualized Education Program (“IEP”). Beginning in early-November 2013, the initial
complaint alleged that J.K. was subject to “bullying, intimidation, and harassment perpetrated by
several different students of Highland High School.” (Doc. 2, pg 4). The incidents included
calling J.K embarrassing names such as “fat”, “ugly”, “whore” and “skank” and making pig

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noises or sounds. Plaintiff alleged that the bullying and harassment of J.K. was based on her
learning disability and placement in IEP.
In December 2013, the initial complaint states that the bullying and harassment became
physically violent when J.K. was shoved into a door by a male student; shoved into lockers by
other students while walking in the hallways; and tripped while walking up the stairwells. J.K.
notified her IEP teacher and case worker and no action was taken. J.K. then notified her parents
and her mother began communicating her concerns to J.K.’s case worker – again with no
corrective action taken.
The initial complaint then alleged that the bullying and harassment continued until J.K.
stopped attending classes during the third week of December 2013 and began homebound
instruction.1 On January 22, 2014, J.K. attempted suicide and was hospitalized. In March 2014,
J.K. and her mother met with the associate principal to discuss the bullying and violence. J.K.
and her mother provided the associate principal the names of the students that frequently bullied
and harassed J.K., but again, no action was taken.
J.K. retuned to Highland High School in April 2014, although she was now suffering
from non-epileptic seizures. She remained at the school for one week and then returned to
homebound instruction. J.K. again attempted school on August 13, of 2014, but only attended
that day. She has not attended classes at Highland High School since August 13, 2014.
The initial complaint contained various 42 U.S.C. § 1983 failure to protect claims;
Violation of the Rehabilitation Act of 1973; Violation of the Americans with Disabilities Act;
and willful and wanton misconduct. The initial complaint was dismissed (Doc. 31) by this Court
for plaintiff’s failure to exhaust administrative remedies under the Individuals with Disabilities
1

According to the Complaint, homebound instruction is a program where educational services are provided by
school district personnel within the student’s home.
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Education Act (“IDES”). Plaintiff was granted 30 days in which to file an amended complaint.
Plaintiff filed her amended complaint (Doc. 32) which sets forth the same basic factual
allegations and states the following claims:
Count I: 42 U.S.C. § 1983 for violation of the Due Process Clause of the
Fourteen Amendment against defendant Highland Community Unit
School.
Count II: Violation of Section 504 of the Rehabilitation Act of 1973
against defendant Highland Community Unit School.
Count III: Violation of Title II of the Americans with Disabilities Act of
1990 against defendant Highland Community Unit School.
Count IV: 42 U.S.C. § 1983 for violations of the Fifth and Fourteenth
Amendments against defendant Michael Sutton.
Count V: Willful and Wanton Misconduct against defendant Michael
Sutton.
Count VI: 42 U.S.C. § 1983 for violations of the Fifth and Fourteenth
Amendments against defendant Michelle Rusteberg.
Count VII: Willful and Wanton Misconduct against defendant Michelle
Rusteberg.
Count VIII: 42 U.S.C. § 1983 for violations of the Fifth and Fourteenth
Amendments against defendant Jody Hall.
Count IX: Willful and Wanton Misconduct against defendant Jody Hall.
Count X: 42 U.S.C. § 1983 for violations of the Fifth and Fourteenth
Amendments against defendant Chris Becker.
Count XI:

Willful and Wanton Misconduct against defendant Chris

Becker.
Defendants now motion for dismissal of the Plaintiff’s amended complaint in its entirety
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to exhaust administrative
remedies under the Individuals with Disabilities Education Act (“IDEA”)(20 U.S.C. § 1415(f))

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and/or that Counts V, IV, V, IX, and XI should be dismissed because of tort immunity granted to
the Defendants pursuant to 745 ILCS 10/2-201.
2. Standards.
When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts as true all
allegations in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). To avoid dismissal under Rule 12(b)(6) for failure to
state a claim, a complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

This requirement is satisfied if the

complaint (1) describes the claim in sufficient detail to give the defendant fair notice of what the
claim is and the grounds upon which it rests and (2) plausibly suggests that the plaintiff has a
right to relief above a speculative level. Bell Atl., 550 U.S. at 555; see Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 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.” Iqbal, 556
U.S. at 678 (citing Bell Atl., 550 U.S. at 556).
3. Analysis.
As stated in this Court’s previous order, the IDEA covers 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)(1). The IDEA requires that
children with disabilities be provided a free appropriate education which emphasizes special
education and related services designed to meet their unique needs. “The term ‘related service’
means transportation and such developmental, corrective, and other supportive services
(including ... counseling services ... ) as may be required to assist a child with a disability to

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benefit from special education, and includes early identification and assessment of disabling
conditions in children.” 20 U.S.C. § 1401(26)(A).
The IDEA further provides that:
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.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 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.A. § 1415(l) (West)(emphasis added).
The IDEA is a broad statute; however, it does not so occupy its field that federal
preemption results. Charlie F. v. Bd. of Educ. Of Skokie School Dist. 68, 98 F.3d 989, 991 (7th
Cir.1996). It co-exists with the ADA and the Rehabilitation Act, and other federal and state law
causes of action. Id. However, where the plaintiff seeks “relief that is available under” the IDEA,
she must follow the IDEA's administrative procedures and must exhaust such procedures prior to
bringing suit, no matter what law she invokes as the basis for her claim. Id.
This Court’s previous order stated that, “[i]f the Complaint solely sought compensation
for J.K.’s physical injuries and the medical bills she incurred, then exhaustion of IDEA
administrative procedures may have been futile. However, the Plaintiff is claiming that it was a
series of harassing events that lead to J.K.’s injuries and it is only speculative if those events
could have been altered if administrative procedures were pursued. It is difficult to foresee

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whether the Plaintiff could state a cause of action with regard to the attempted suicide if she is
barred from pursuing the harassment for her failure to exhaust, but that is not an issue for the
Court at this time.” The Court then granted the Plaintiff leave to amend her Complaint to
address those claims were a remedy under the IDEA was unavailable. (Doc. 31, pg 6).
The amended complaint alleges the same basic facts as the initial complaint, but adds
allegations of “bodily harm” and “numerous medical bills.” It removes all the allegations with
regard to deprivation of access to the public program of education, but does not remove the
allegations with regard to emotional injuries. Regardless of the revisions, this matter still closely
resembles the facts of Charlie F. v. Board of Education of Skokie School District. Supra, 98 F.
3d 989 (7th Cir. 1996).
Charlie F. was a disabled student who’s teacher allowed (and encouraged) the other
students to humiliate him until his parents removed him from the school. His parents filed suit
and the Court held that that IDEA requires school districts to provide, “not only education, but
also ‘related services’” including psychological services. Id, at 992-3. The Court stated that,
Perhaps Charlie’s adverse reaction to the events of fourth grade
cannot be overcome by services available under the IDES and the
regulations, so that in the end money is the only balm. But parents
cannot know that without asking, any more than we can. Both the
genesis and the manifestations of the problem are education; the
IDEA offers comprehensive educational solutions; we conclude,
therefore, that at least in principle relief is available under the
IDEA. Id, at 993.
As the Court previously stated, the plaintiffs cannot know whether J.K. would have
continued to be bullied, harmed, or reached the point of harming herself if they had pursued the
available administrative reliefs under the IDEA. A one-time physical injury may not fall within
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IDEA where there is no likelihood of further harm, but an on-going issue that is interfering with
the emotional and physical health of student is exactly the intent of the administrative remedies
of IDEA. This was an on-going event which caused J.K. to leave school on several occasions
and then to completely drop out of school. Exhaustion of administrative remedies is required to
ensure the educational institution has an opportunity to assist and correct the situation. If those
remedies are by-passed, then a plaintiff cannot allege that the educational institution failed –
regardless of how the claims are titled.
“The IDEA provides prospective relief, but does not provide compensatory money
damages. However, merely requesting monetary damages does not remove a cause of action
from the ambit of IDEA. Where the plaintiff requests monetary damages so that she can
compensate for failures of the school district . . . that could (or must) be provided in-kind by the
school district, the request is really one for relief available under the IDEA. Thus, a claim
requesting such relief arises under the IDEA.” Reuther v. Shiloh School Dist. No. 85, 2008 IL
191195 (S.D. Ill.)(internal citations omitted).
For approximately nine months, Plaintiff had the opportunity to take her concerns beyond
the purview of specific individuals through additional administrative avenues and failed to do so.
It is uncontested by the parties that the Plaintiff did not exhaust her administrative remedies
available under the IDEA.
The plaintiffs once again cite to McCormick v. Waukegan Sch. Dist. No 60, 374 F.3d 564,
568 (7th Cir. 2004), stating that, “[t]he administrative procedures and remedies provided for in
the IDEA are meant to address only prospective educational assistance, and not past injuries.”
The Court agrees with that statement, but an individual may not allow events to continue without
availing themselves of the administrative remedies and then claim “past injuries.”

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The Court has also reviewed the remainder of the case law cited in the plaintiff’s
response. In Honig v. Doe, 484 U.S. 305 (1988), the Supreme Court stated, “[a]ccording, the Act
establishes various procedural safeguards that guarantee parents both an opportunity for
meaningful input into all decisions affecting their child’s education and the right to seek review
of any decisions they think inappropriate.” Id. at 311-12.

The Supreme Court further noted

that, “[a]t the conclusion of any such hearing, both the parents and the local educational agency
may seek further administrative review and, where that proves unsatisfactory, may file a civil
action in any state or federal court.” The plaintiffs in this matter also had an opportunity to seek
“administrative review of any decisions” they believed inappropriate (such as the failure of
specific school employees to address the harassment) and yet they failed to do so. It is also
noted that the plaintiff in Honig, was a target, “of teasing and ridicule as early as the first grade.”
In Reuther v. Shiloh School District, 2008 UL 191195 (S.D. Ill. 2008), the plaintiff
requested monetary relief to compensate for physical injuries (plaintiff suffered a concussion,
allergic reaction, and hip and foot pain) and medical bills incurred. The Court found no relief
available under the IDEA and therefore, no requirement to exhaust administrative remedies.
The facts in Reuther are not similar facts to the case at bar. The case at bar primarily alleges,
“bullying and harassment.” Although the amended complaint states there was some physical
contact, the only specific alleged injury is the plaintiff’s suicide attempt which the Court can’t
help but to wonder whether such attempt could have been avoided if the plaintiff had availed
herself of the counseling services offered through IDEA.
The remainder of the cases that plaintiff cites are also distinguishable from the case at
bar. Covington v. Knox County Sch. Sys., 205 F.3 912 (6th Cir. 2000)2(administrative remedies
attempted, but after proceedings went on over three years and the child graduated from the class,
2

Non-controlling precident which the Court considers for the reasoning of the decision.
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exhaustion of remedies would be futile as the available administrative remedies were
inadequate.) Butler v. Evans, 225 F.3d 887, 894 (7th Cor. 2000)(Government not required to pay
for parents’ placement of child in hospital outside of the IDEA and procedures and IEP
recommendations.) M.P. v. Independent Sch. Dist. No. 721, 439 F.3d 865, 867 (8th Cir. 2006)3(
Court previously affirmed dismissal of IDEA claims for failure to exhaust administrative
remedies but held that, “M.P. could pursue a Section 504 claim independent of his IDEA claims
without exhausting administrative remedies.”)
Finally, although the Court granted the Defendant’s motion to submit additional authority
(Doc. 40), it did not consider the Carrol v. Lawton Independent School District No. 8, 805 F.3d.
1222 (10th Cir. 2015) opinion in its decision.
The bullying and harassment of J.K. was undoubtedly cruel. The Court extends its hope
that J.K. has sought counseling through other means and is in the process of recovering.
Children in the IEP programs need special assistance and care which is entrusted to the
educational system. However, when a point in that system fails, the parents must then pursue all
avenues to ensure the safety and welfare of their child. Such is the purpose of the administrative
remedies.
While there are some exceptions to the exhaustion requirement, the Court cannot find that
any of the exceptions apply in this matter. Therefore, this matter is being resolved once again on
the exhaustion issue and the Court will not address Defendants’ claims of tort immunity.
Based on the above, Defendants’ Motion (Doc. 35) to Dismiss Plaintiff's Amended
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) is GRANTED. This matter is
DISMISSED with prejudice as plaintiff has been given an opportunity to correct her pleadings
and there does not appear to be any means for plaintiff to file a valid cause of action.
3

Non-controlling precedent which the Court considers for the reasoning of the decision.
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The Clerk of Court is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
DATED: 6/14/2016
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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