A.P. v. Johnson et al

Filing 22

ORDER denying 8 Motion to Dismiss (See Order Text). Signed by Senior Judge Donald E OBrien on 3/23/2015. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

A.P. as parent and natural
guardian of L.H., a minor,
Plaintiffs,

No. 14-CV-4022-DEO

vs.

ORDER ON MOTION TO DISMISS

BRIAN JOHNSON and SIOUX
RAPIDS COMMUNITY SCHOOL
DISTRICT,
Defendants.
____________________
I.

INTRODUCTION
The above captioned case concerns a lawsuit brought by

the Plaintiff, a parent, against a school, on behalf of a
minor child.

In the Complaint, Docket No. 1, the Plaintiff

alleges a variety of causes of action against the Defendants
related to alleged abuse suffered by L.H. For clarity’s sake,
the Court will refer to A.P. and L.H. jointly as the Plaintiff
and will refer to each individually by their initials when
necessary.
Currently before the Court is a Motion to Dismiss, Docket
No. 8, filed by the Defendants.
hearing on October 23, 2014.

The parties appeared for a

After listening to the parties’

arguments, the Court took the matter under consideration and
now enters the following.
II.

BACKGROUND
Because the present motion is a pre-answer Motion to

Dismiss, few facts are before the Court.

However, a short

overview of the allegations is necessary for context.
During the 2012-2013 school year, L.H. was a seventh
grade student at the Sioux Rapids Community School.
suffers

from

autism

as

well

as

other

L.H.

mental/emotional

disorders, and can act out angrily, or even violently at
times.
parties

To facilitate L.H.’s unique educational needs, the
developed

[hereinafter IEP].1

an

Individualized

Education

Program

As part of the IEP, L.H. was assigned an

aide who was with L.H. throughout the school day.

The IEP

also provided that there should be a quiet place L.H. could go
if he became overstimulated.

Finally, the IEP included a

1

“An ‘IEP is a comprehensive written statement developed
jointly by the child’s parents and the school district, which
outlines the child’s special educational needs and the
specially designed instruction and services to be provided by
the school system to meet those needs.’
M.P. ex rel. K. v.
Indep. Sch. Dist. No. 721, 326 F.3d 975, 977 n. 1 (8th Cir.
2003) (citing 20 U.S.C. § 1414(d)).”
Fort Osage R-1 Sch.
Dist. v. Sims ex rel. B.S., 641 F.3d 996, 998 (8th Cir. 2011).
2

Behavior Intervention Plan [hereinafter BIP], which set out
how faculty should intervene if L.H. began to act out.

The

BIP included the clause, “if [L.H.] is unable to be escorted
safely, faculty trained in appropriate restraint techniques
may be contacted for assistance.”
An incident occurred on April 5, 2013.
problems and attempted to go his quiet room.
pushed another student.

L.H. was having
On the way, he

While in the quiet room, he was

approached by Defendant (teacher) Brian Johnson and Principal
Jeff Scharn.

The situation deteriorated, L.H. attempted to

run away, and in that attempt pushed another student. At that
point,

Defendant

Johnson

physically

restrained

L.H.

and

allegedly caused L.H. injury.
Another incident occurred the following school year on
October 10, 2013.
Johnson.

L.H. was in a class taught by Defendant

L.H. became upset and threw a chair.

Defendant

Johnson again tackled L.H.
Plaintiff

contends

that

Defendant

Johnson

failed

to

follow the IEP and BIP both times he physically intervened
with L.H. Plaintiff alleges that in both situations, L.H. was

3

acting out as a result of his disability and the Defendants’
response to L.H.- physically restraining him- was abusive.
III.

MOTION TO DISMISS STANDARD
The notice pleading standard of Federal Rule of Civil

Procedure 8(a)(2) requires a plaintiff to give “a short and
plain statement showing that the pleader is entitled to
relief.”

In order for the Court to dismiss a claim under

Federal Rule of Civil Procedure 12(b)(1), the opposing party
must successfully challenge the claim “on its face or the
factual truthfulness of its averments.”
F.3d 590, 593 (8th Cir. 1993).

Titus v. Sullivan, 4

Facial challenges are limited

to analyzing the face of the complaint.

Biscanin v. Merrill

Lynch & Co., Inc., 407 F.3d 905, 907 (8th Cir. 2005).
In order to meet that standard and 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, 663 (2009)

(internal quotations and citation omitted).

This requirement

of facial plausibility means that the factual content of the
plaintiff’s allegations must “allow[ ] the court to draw the
reasonable inference that the defendant is liable for the
4

misconduct alleged.”

Cole v. Homier Distrib. Co., Inc., 599

F.3d 856, 861 (8th Cir. 2010).

Furthermore, courts must

assess the plausibility of a given claim with reference to the
plaintiff’s allegations as a whole, not in terms of the
plausibility of each individual allegation.

Zoltek Corp. v.

Structural Polymer Group, 592 F.3d 893, 896 n. 4 (8th Cir.
2010)

(internal

citation

omitted).

This

inquiry

is

“a

context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Iqbal, 556
U.S. at 664.
“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss

does

plaintiff’s
‘entitlement

not

need

obligation
to

detailed
to

relief’

factual

provide
requires

the
more

allegations,

‘grounds’
than

a

of

his

labels

and

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 (2007) (internal alterations and citations
omitted).

Nevertheless, although the “plausibility standard

requires a plaintiff to show at the pleading stage that
success on the merits is more than a sheer possibility,” it is
not a “probability requirement.”
5

Braden v. Wal–Mart Stores,

Inc., 588 F.3d 585, 594 (8th Cir. 2009).

As such, “a

well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of the facts alleged is improbable,
and that a recovery is very remote and unlikely,”

Id.

In assessing “plausibility,” as required by the Supreme
Court in Iqbal, the Eighth Circuit Court of Appeals has
explained that courts should consider only the materials that
are

necessarily

embraced

by

the

pleadings

and

exhibits

attached to the complaint. See Mattes v. ABC Plastics, Inc .,
323 F.3d 695, 697 n. 4 (8th Cir. 2003), stating that “in
considering a motion to dismiss, the district court may
sometimes consider materials outside the pleadings, such as
materials that are necessarily embraced by the pleadings and
exhibits attached to the complaint.

Porous Media Corp. v.

Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).

The Court

may also consider “materials that are part of the public
record or do not contradict the complaint.” Miller v. Redwood
Toxicology Lab., Inc., 688 F.3d 928, 931 (8th Cir. 2012).

“A

more complete list of the matters outside of the pleadings
that a court may consider, without converting a Rule 12(b)(6)
motion to dismiss into a Rule 56 motion for summary judgment,
6

pursuant to Rule 12(d), includes matters incorporated by
reference or integral to the claim, items subject to judicial
notice, matters of public record, orders, items appearing in
the record of the case, and exhibits attached to the complaint
whose authenticity is unquestioned.”

Van Stelton v. Van

Stelton, 11-CV-4045-MWB, 2013 WL 3776813 (N.D. Iowa 2013)
(internal citations omitted).
IV.

ISSUES
In their Motion to Dismiss, the Defendants raise one main

issue.

The Defendants argue that the Plaintiff has failed to

exhaust the applicable administrative remedies.
V.

ANALYSIS
The Defendants’ argument is this Court lacks subject

matter
exhaust

jurisdiction
valid

because

the

administrative

Plaintiff

remedies.

has
As

failed

set

Defendants’ brief:
District Courts within the Eighth Circuit
have held that a failure to exhaust
administrative remedies is a jurisdictional
requirement under the Individuals with
Disabilities Education Act, 20 U.S.C. §1400
("IDEA"). See C.S. v. Missouri State Board
of Education, 656 F. Supp. 2d 1007 (E.D.
Mo. 2009) (citing the district courts which
have supported the general proposition that
7

out

to
in

a
failure
to
exhaust
administrative
remedies is jurisdictional); M.P. ex rel.
K. and D.P. v. Indep. Sch. Dist. No. 721,
439 F.3d 865, 867 (8th Cir. 2006)
(classifying the exhaustion requirement as
a jurisdictional question); A.C. ex rel.
M.C. v. Indep. Sch. Dist. No. 152, 2006 WL
3227768 (D. Minn. 2006) (acknowledging
failure to exhaust administrative remedies
is a jurisdictional question).
Because
Plaintiff
failed
to
exhaust
his
administrative remedies before filing the
complaint, this Court does not have subject
matter jurisdiction over Plaintiffs[’]
claims. Further, when a plaintiff brings
a claim under another federal statute or
the United States Constitution, the IDEA
exhaustion requirement also applies to the
extent that those claims seek relief that
is also available under the IDEA. See 20
U.S.C. §1415(1) (noting that exhaustion
requirement applies to other federal claims
that seek relief that is also available
under the IDEA); M.Y., ex rel., J.Y. v.
Special Sch. Dist. No. 1, 544 F.3d 885, 888
(8th
Cir.
2008)
(discussing
the
applicability of exhaustion requirements
under section 504 or other statutes).
Claims which must be exhausted are those
related "to the IEP process, which involves
individual
identification,
evaluation,
educational
placement,
and
free,
appropriate education (F APE) decisions."
The exhaustion requirement remains the
general rule, regardless of whether the
administrative
process
offers
the
particular type of relief that is being
sought.
J.B. ex rel. Bailey v. Avilla
R-XIII Sch. Dist., 721 F.3d 588, 595 (8th
Cir. 2013) (citing M.P. ex rel. K. v.
Indep. Sch. Dist. No. 721, 326 F.3d 975,
980 (8th Cir. 2003).
Id.
Only if the
8

relief sought is "wholly unrelated" to the
IDEA is exhaustion of administrative
remedies not required. See M.P., 439 F.3d
at
868
(concluding
plaintiffs
Rehabilitation
Act
claim
related
to
disclosure that he was schizophrenic was
“wholly unrelated” to IDEA).
Docket No.8, Att. 1, p. 2-3.

The Defendants argue that each

of the Plaintiff’s claims are grounded in the IDEA and thus,
they are all barred by the failure to exhaust doctrine.
It is clear that, generally, “[u]nder the Individuals
with Disabilities Education Act [hereinafter IDEA], 20 U.S.C.
§§ 1400-1491, a parent dissatisfied with the manner in which
an IEP is implemented may file a due process complaint with
the local state agency.

20 U.S.C. § 1415(i)(2).”

rel. Bailey, 721 F.3d at 591.

This is because:

[i]n
the
IDEA,
Congress
established
procedural safeguards to ensure individuals
with disabilities will have the opportunity
to obtain a free appropriate public
education (FAPE). 20 U.S.C. § 1415(a). The
primary tool for implementing the aims of
the IDEA is the IEP, which “tailor[s] the
statutorily required ‘free appropriate
public education’ to each child’s unique
needs.” Honig v. Doe, 484 U.S. 305, 311
(1988) (quoting 20 U.S.C. § 1414(a)(5)).
The other safeguards ‘include ... an
opportunity
to
present
complaints
concerning any aspect of the local agency’s
provision of a free appropriate public
education; and an opportunity for ‘an
9

J.B. ex

impartial due process hearing’ with respect
to any such complaints.’
Id. at 311–12
(quoting 20 U.S.C. § 1415(b)(1), (2)). A
party aggrieved by the outcome of an IDEA
due process hearing may challenge the
outcome before the state educational review
agency.
20 U.S.C. § 1415(g)(1).
The
outcome of the administrative review
hearing may then be disputed in district
court.
20
U.S.C.
§
1415(i)(2)(A).
However, before parties may bring a claim
in district court under a different statute
for which they seek relief which is also
available under the IDEA, the parties must
first exhaust the administrative remedies
under the IDEA. 20 U.S.C. § 1415(l ).
J.B. ex rel. Bailey, 721 F.3d at 592 (some internal citations
omitted).

The Supreme Court has articulated the contours of

an administrative hearing under the IDEA.
IDEA provides procedural recourse:
It
requires that a State provide ‘[a]n
opportunity for any party to present a
complaint ... 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.’
§ 1415(b)(6).
By presenting a complaint a party is able
to pursue a process of review that, as
relevant, begins with a preliminary meeting
‘where the parents of the child discuss
their complaint’ and the local educational
agency ‘is provided the opportunity to
[reach
a
resolution].’
§
1415(f)(1)(B)(i)(IV). If the agency ‘has
not
resolved
the
complaint
to
the
satisfaction of the parents within 30
days,’ § 1415(f)(1)(B)(ii), the parents may
10

request an ‘impartial due process hearing,’
§ 1415(f)(1)(A), which must be conducted
either by the local educational agency or
by the state educational agency, ibid., and
where a hearing officer will resolve issues
raised in the complaint, § 1415(f)(3).
Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S.
516, 525 (2007).

In Iowa, the IDEA required due process

hearings are conducted by an Administrative Law Judge (ALJ).2
But, the exhaustion requirement is limited. Specifically, the
IDEA 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 [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) of this section

2

See the Iowa Department of Education, Dispute
Resolution
Summary,
(last
visited
March
18,
2015),
https://www.educateiowa.gov/documents/special-education/2014
/10/dispute-resolution-summary-october-2014
11

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).
Based on this, the Defendants argue that Plaintiff’s
Counts I, II, and III are barred by the exhaustion doctrine.3
The Court will first consider the Defendants’ argument
that this issue is jurisdictional.

Defendants argue that the

exhaustion requirement is jurisdictional, which is to say, if
the Plaintiff has not exhausted the state agency remedies, the
Federal Court has no subject matter jurisdiction.

It seems

the 8th Circuit has not squarely decided whether failure to
exhaust under the IDEA is jurisdictional. In support of their
argument that the IDEA failure to exhaust requirement is
jurisdictional, the Defendants cite the C.S. v. Missouri State
Board of Education case, cited above. However, Judge Pratt of
the Southern District of Iowa, has also considered this issue
and stated:

3

The Defendants go on to argue that because Counts I-III
should be dismissed on exhaustion grounds, the Court should
decline jurisdiction and dismiss the Plaintiff’s remaining
state law claims, citing 28 U.S.C. § 1367(c).
12

[t]he Eighth Circuit has not yet clarified
the law in this area, but has recognized
the three exceptions to the exhaustion
requirement described in [Blackmon ex rel.
Blackmon v. Springfield R–XII Sch. Dist.,
198 F.3d 648, 656 (8th Cir. 1999).]
Because the Eighth Circuit classifies
exhaustion
requirements
for
which
exceptions have been recognized as non
jurisdictional, the Court finds IDEA's
exhaustion
requirement
to
be
non
jurisdictional. Accordingly, Plaintiffs'
failure to plead exhaustion is not fatal to
this Court's subject-matter jurisdiction.
D.L. v. Waukee Cmty. Sch. Dist., 578 F. Supp. 2d 1178, 1190
(S.D. Iowa 2008).

The Court is persuaded to follow Judge

Pratt’s precedent and find that the exhaustion issue does not
implicate
waived.

subject

matter

jurisdiction

because

it

can

be

Thus, the Court believes that exhaustion is an

affirmative defense that needs to be articulated by the
Defendants.
However, because the Plaintiff seemingly concedes that
they have not exhausted the administrative process, the Court
will consider the Defendants’ substantive arguments regarding
exhaustion.

Plaintiff argues that the administrative process

is outside the scope of their claim, stating:

13

‘[t]he purpose of requesting [an IDEA] due
process hearing is to challenge an aspect
of a child’s education and to put the
school district on notice of a perceived
problem. Once the school district receives
notice, it has the opportunity to address
the alleged problem.’
Thompson By &
Through Buckhanon v. Bd. of Special Sch.
Dist. No. 1 (Minneapolis), 144 F.3d 574,
579 (8th Cir. 1998)... Plaintiff seeks no
prospective educational relief. She seeks
no relief that could be included in an IEP.
She seeks damages for assault. That relief
is not available under IDEA so there is no
administrative remedy to exhaust.
Docket No. 9, p. 4-5
The

Plaintiff’s

argument,

amounts

to

this:

in

a

‘typical’ IDEA case, a plaintiff is asking a Court to direct
a school to fix some ongoing deficiency to ensure a special
needs child receives their required education, but in this
case, the Plaintiff alleges that the Defendants failed to
comply with the IEP and BIP by assaulting and causing an
injury

to

L.H.,

and

the

school

administratively correct that damage.

has

no

means

to

Accordingly, because

this case is far removed from the typical case contemplated by
the IDEA, the IDEA’s exhaustion requirement does not apply.
Defendants’ argue that Plaintiff’s Count I is clearly
related to the IDEA and therefore, exhaustion is required. In
14

Count I, the Plaintiff argues that the Defendant failed to
provide an environment free from fear, failed to follow the
BIP, failed to follow the IEP, allowed teachers to use illegal
physical restraints, failed to train teachers, and failed to
assign qualified assistants.
I

is

closely

implicate

the

tied

to

a

exhaustion

The Court agrees that if Count

typical

IDEA

doctrine.

claim,

However,

that

would

Plaintiff’s

requested relief is not prospective, it is requesting damages
for past harms.

It is not clear, at least based on the

pleadings currently before the Court, that those types of
relief are available in the administrative process.

Because

on the face of the pleadings it is not clear that the
Plaintiff’s requested relief is available through the IDEA
administrative process, the Defendants’ Motion to Dismiss
Count I must be denied.
Plaintiff’s Counts II and III seem farther removed from
the IDEA.

In Count II, Plaintiff alleges that Defendant

Johnson violated 42 U.S.C. Section 1983 when he (allegedly)
assaulted L.H. under the color of state law on April 5, 2013.
In

Count

III,

Plaintiff

alleges

that

Defendant

Johnson

violated 42 U.S.C. Section 1983 when he (allegedly) assaulted
15

L.H. under the color of state law on October 10, 2013.

The

Defendant does not challenge Plaintiff’s right to bring this
action under 42 U.S.C. Section 1983, they argue instead that
because the relief is related to the IDEA, the exhaustion
requirement applies.

The Court disagrees.

As stated above, for exhaustion to be a requirement, the
non-IDEA relief requested must also be available under the
IDEA.

There simply is no reason to believe, at this stage of

the case, that an IDEA claim could contemplate the type of
harm described in Counts II and III.

The Plaintiff alleges

that Defendant Johnson assaulted L.H.

The only relevance of

the IEP seems to be that the Defendant may rely on it as a
defense, as in, “Yes, I tackled L.H. but restraining him was
allowed by the IEP.”

However, at this point of the case, a

potential defense - and the thus the claim’s relationship to
the IEP - is mere speculation.

There simply are not facts

presently before the Court that would make Counts II and III
a IDEA claim.

Because Counts II and III could not be remedied

under the IDEA, exhaustion is not required.
Accordingly, the Defendants’ Motion to Dismiss Counts II
and III is denied.

However, this ruling is not preclusive of
16

the Defendants’ ability to raise an exhaustion argument again,
at the summary judgment stage, if they can articulate with
authority that the Plaintiff’s requested remedy is available
under the IDEA and there exists a non-futile avenue that the
Plaintiff could have used to exhaust Counts I-III.
VI.

CONCLUSION
For the reason set out above, Defendants’ Motion to

Dismiss, Docket No. 8, is DENIED.
IT IS SO ORDERED this 23rd day of March, 2015.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

17