Horton v. Boone County School District et al
Filing
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MEMORANDUM OPINION AND ORDER; 1)Defs' 5 Motion for Judgment on the Pleadingsis GRANTED w/regard to Counts I and II of Pla's Complaint and those counts are DISMISSED WITHOUT PREJUDICE for failure to exhaust adminstrative remedies; 2)Pla's negligent supervision claims seen in Count II of his Complaint are REMANDED TO STATE COURT; 3)Judgment will enter concurrently. Signed by Judge William O. Bertelsman on 9/11/2013. (LST)cc: COR
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
CIVIL ACTION NO. 2:13-cv-77(WOB-CJS)
DAKOTA HORTON
VS.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
BOONE COUNTY SCHOOL
DISTRICT, ET AL.
DEFENDANTS
This matter came before the Court on Defendants’ motion for
judgment on the pleadings (Doc. 5) on Thursday, September 5,
2013.
After oral argument, the Court took the motion under
further advisement.
See Doc. 10.
Having made a thorough review of the record, and given
careful consideration to the memoranda and oral arguments of the
parties, the Court now issues the following Memorandum Opinion
and Order.
FACTUAL AND PROCEDURAL HISTORY
In March 2006, while Plaintiff Dakota Horton was enrolled
at Gray Middle School in the Boone County School District, it
was determined that Plaintiff was eligible for accommodations
under § 504 of the Rehabilitation Act of 1973 due to his
Attention Deficit Disorder (ADD).
See Doc. 1-1 at ¶ 16.
The
accommodations provided under Plaintiff’s § 504 Plan included
seating at the front of the classroom, peer tutoring, and
extended time to turn in assignments.
Id. at ¶ 18.
Plaintiff’s § 504 Plan also provided that the § 504 Plan
would be reviewed and revised, if necessary, on an annual basis.
Id. at ¶ 20.
Plaintiff’s § 504 Plan was reviewed and revised in
both his seventh and eighth-grade years at Gray Middle School.
Id. at ¶¶ 22, 24.
In the fall of 2008, Plaintiff enrolled at Ryle High
School.
Id. at ¶ 25.
Upon his enrollment, Plaintiff’s entire
student file, which included his § 504 Plan, was forwarded to
Ryle High School.
Id. at ¶ 26.
The Boone County School District’s § 504 procedures provide
that each § 504 Plan must be reviewed by a § 504 team as needed,
but at least every three (3) years.
Id. at ¶ 29.
Additionally,
the procedures provide that it is the responsibility of the
appropriate § 504 team member to initiate the review and
schedule a plan review meeting.
Id.
Plaintiff asserts that during his entire tenure at Ryle
High School his § 504 Plan was never reviewed or reevaluated.
Id. at ¶ 35.
As a result, Plaintiff contends, his math grades
while at Ryle High School were consistently substandard.
¶ 36.
Id. at
Although Plaintiff and his parents met with his teachers
to review his schedule at the beginning of each school year, his
§ 504 Plan was never reviewed or discussed.
Id. at ¶¶ 38-39.
At the beginning of his senior year, Plaintiff approached
Guidance Counselor Erik Arkenberg and requested to be
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transferred to a different math class.
Id. at ¶ 42.
Plaintiff
contends that Arkenberg advised him to seek out tutoring
assistance.
Id. at ¶ 43.
Plaintiff also asserts that despite turning eighteen (18)
in December 2011, his parents never received a “Parents’ Rights
Statement” as is required under § 504 when a student reaches the
age of majority.
Id. at ¶¶ 44-45.
A few months prior to his graduation, Plaintiff and his
mother were notified that Plaintiff might not be able to
participate in his graduation ceremony due to his substandard
grades.
Id. at ¶ 46.
On April 26, 2012, Plaintiff and his mother met with
“various administrators of Ryle High School, including
[Plaintiff’s] Algebra II teacher, Mr. Holtman, to discuss the
possibility that [Plaintiff] may not graduate due to his failing
Algebra II.”
Id. at ¶ 47.
At this meeting, Plaintiff’s mother
reminded the administrators of Plaintiff’s need for § 504
accommodations.
Id. at ¶ 48.
Mr. Holtman responded that he was
aware of Plaintiff’s § 504 Plan and he had provided Plaintiff
the opportunity to sit at the front of the class and turn
assignments in late.
Id.
Ultimately, due to his grades, Plaintiff was not permitted
to walk in his graduation ceremony or attend his senior class
trip.
Id. at ¶ 50.
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On May 18, 2012, Plaintiff’s parents met with Assistant
Principal Nate Niemi to discuss Plaintiff’s § 504 Plan.
¶ 51.
Id. at
At this meeting, Niemi told Plaintiff’s parents that
Plaintiff had been offered the accommodations outlined in his §
504 Plan, but Plaintiff had not taken advantage of those
accommodations.
Id. at ¶ 52.
On May 23, 2012, Plaintiff filed a formal student
discrimination grievance alleging that his rights were violated
as a result of Ryle High School’s failure to review or revise
his § 504 Plan.
Id. at ¶ 54.
On June 22, 2012, the Executive Director of Boone County
Schools issued a decision finding that the requirements of § 504
were violated because Plaintiff’s § 504 Plan was not reviewed or
revised during his tenure at Ryle High School despite the fact
that teachers were aware of the § 504 Plan.
Id. at ¶ 56.
The
decision also ordered (1) a comprehensive audit of the § 504
files at Ryle High School; (2) discrepancies in all § 504 files
to be corrected within thirty days; (3) the teachers and
administrators to participate in § 504 training; and (4) the
administrative staff to consistently monitor Boone County’s §
504 procedures.
Id. at ¶ 58.
Ultimately, Plaintiff graduated during the summer of 2012.
Id. at ¶ 59.
Plaintiff applied to a number of colleges, but was
advised by many that he would need to take remedial classes
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before he could enroll in classes that would count toward his
degree.
Id.
Nonetheless, Plaintiff was accepted into Gateway
Community & Technical College, where he is currently enrolled.
Id. at ¶ 60.
Plaintiff filed suit in Boone Circuit Court on April 22,
2013, and Defendants’ removed the case to this Court on May 6,
2013.
Id. at Doc. 1, 1-1.
Plaintiff requests monetary damages to compensate him for
the emotional damages he suffered as a result of Defendants’
failure to review and reevaluate his § 504 Plan, causing him to
“struggle[] academically and miss[] out on once-in-a-lifetime
opportunities of walking in the graduation ceremony along with
his fellow seniors and attending the senior class trip.”
See
Doc. 7 at pp. 2-3.
ANALYSIS
I. Exhaustion of Administrative Remedies
In Counts I and II of Plaintiff’s Complaint, Plaintiff
asserts claims under § 504 of the Rehabilitation Act of 1973 and
Title 707 of the Kentucky Administrative Regulations.
See
Complaint at ¶¶ 61-71.
Title 707 of the Kentucky Administrative Regulations was
enacted to implement the requirements of the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq.
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See Fayette Cnty. Bd. of Educ. V. M.R.D. ex rel. K.D., 158
S.W.3d 195, 199 (Ky. 2005).
“Plaintiffs bringing claims under the IDEA are generally
required to exhaust their administrative remedies before
bringing a civil action.”
Donoho ex rel. Kemp v. Smith Cnty.
Bd. of Educ., 21 F. App'x 293, 296 (6th Cir. 2001).
“Exhaustion
enables the agency to develop a factual record, to apply its
expertise to the problem, to exercise its discretion, and to
correct its own mistakes, and is credited with promoting
accuracy, efficiency, agency autonomy, and judicial economy.”
Id. (citation omitted).
Here, Plaintiff concedes that his claim under § 504 of the
Rehabilitation Act is subject to the same exhaustion requirement
provided under the IDEA.
See Doc. 7 at p. 3; see also S.E. v.
Grant Cnty. Bd. of Educ., 544 F.3d 633, 641-42 (6th Cir. 2008).
While Plaintiff admits that he did not exhaust his
administrative remedies, he asserts that exhaustion would have
been futile because he has already graduated from Ryle High
School, his damages are wholly in the past, and his requested
relief only includes monetary damages.
Id. at p. 5.
Plaintiff argues, exhaustion was not required.
Thus,
Id. at p. 3.
“Exhaustion is not required where application of the
administrative procedures would be futile or inadequate to
protect the plaintiff's rights or if the plaintiff did not
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receive full notice of their rights under the IDEA.”
S.E. v.
Grant Cnty. Bd. of Educ., 522 F. Supp. 2d 826, 832 (E.D. Ky.
2007), aff'd, 544 F.3d 633 (6th Cir. 2008) (citation omitted).
Plaintiff bears the burden of proving futility.
Id. (citation
omitted).
Plaintiff’s assertion of futility relies primarily on the
Sixth Circuit decision of Covington v. Knox Cnty. Sch. Sys., 205
F.3d 912 (6th Cir. 2000).
In Covington, the plaintiff brought claims under 42 U.S.C.
§ 1983 on behalf of her disabled son, asserting that defendant
school officials had used improper disciplinary measures against
the child, including constantly locking him in a time-out room
for lengthy periods of time without supervision.
Id. at 913.
The plaintiff sought monetary damages for physical and emotional
injuries suffered as a result of the discipline.
Id. at 914.
After finding that the use of the time-out room was a
disciplinary measure subject to the IDEA, the District Court
dismissed the plaintiff’s claim for failure to exhaust her
administrative remedies.
Id.
Reversing the District Court, the Sixth Circuit in
Covington held, “that in the unique circumstances of this case —
in which the injured child has already graduated from the
special education school, his injuries are wholly in the past,
and therefore money damages are the only remedy that can make
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him whole — proceeding through the state's administrative
process would be futile and is not required before the plaintiff
can file suit in federal court.”
Id. at 917.
While Plaintiff’s situation shares some attributes with the
plaintiff in Covington, the “unique circumstances” in Covington
are not present here.
As argued by Defendants, the discrepancy
which removes this case from the ambit of the Covington holding
is the fact that Plaintiff’s claim for relief is premised on his
assertion that Defendants provided inadequate educational
services, whereas the Covington plaintiff’s claim resulted from
allegations of physical injury.
The Sixth Circuit in Gean v. Hattaway stated that the
finding of futility in Covington was based “on the fact that the
IDEA did not provide a remedy for the type of harm allegedly
suffered by plaintiff, which was more in the nature of a tort
than a violation of a federal entitlement scheme.”
330 F.3d
758, 774 (6th Cir. 2003) (citing Covington, 205 F.3d at 917).
“It is when a plaintiff has a legitimate claim for ‘general
damages’ not available under the IDEA that we have been willing
to allow [a plaintiff] to bypass the administrative process
detailed in that statute.”
Id.
Here, Plaintiff’s claims are not “in the nature of a tort,”
but, rather, directly stem from Defendants’ alleged failure to
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provide Plaintiff with a Free Appropriate Public Education
(FAPE).
See Complaint at ¶¶ 65, 70.
In S.E. v. Grant Cnty. Bd. of Educ., the plaintiff’s
situation was similar to the plaintiff’s here in that she had
suffered emotional damages that could not be remediated at the
time of suit. 544 F.3d 633, 636 (6th Cir. 2008).
However, the
Court held that the plaintiff was still required to exhaust her
claim brought under § 504 of the Rehabilitation Act because
“when a plaintiff has alleged injuries that could be redressed
to any degree by the IDEA’s administrative procedures and
remedies, exhaustion of those remedies is required.”
Id. at 642
(quoting Robb v. Bethel Sch. Dist. #403, 305 F.3d 1047, 1048
(9th Cir. 2002)).
Additionally, while Plaintiff asserts that his graduation
renders his injuries “wholly in the past” and “futile,” other
Courts have found graduation alone insufficient to establish
futility.
See Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 63
(1st Cir. 2002) (finding that plaintiff could not establish
futility because of her graduation where the plaintiff could
have invoked the IDEA remedial scheme throughout her high school
years); see also Polera v. Bd. of Educ. of Newburgh Enlarged
City Sch. Dist., 288 F.3d 478, 490 (2d Cir. 2002) (holding that
plaintiff’s graduation did not render exhaustion of his
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administrative remedies under the IDEA futile);
Ruecker v.
Sommer, 567 F. Supp. 2d 1276, 1298 (D. Or. 2008) (same).
While Plaintiff cannot go back and participate in his
graduation ceremony or attend his senior class trip with his
friends, Plaintiff has not shown that the administrative process
would leave him without a remedy.
In fact, Defendants admit
that Plaintiff is not barred from obtaining compensatory
education through the administrative process merely as a result
of his graduation or his age. See Doc. 8 at p. 6.
Moreover, even though the IDEA does not provide for a
recovery of monetary damages, Plaintiff’s request for monetary
damages does not render exhaustion futile.
The Sixth Circuit in
Covington – the case upon which Plaintiff primarily relies –
stated that a plaintiff cannot avoid the IDEA’s exhaustion
requirement “simply by appending a claim for [monetary] damages.
. .[because] the administrative process might ultimately afford
sufficient relief to the injured party, even if it is not the
specific relief that the plaintiff requested.”
(citation omitted).
205 F.3d at 917
While Plaintiff cannot recover monetary
damages through the IDEA’s administrative process, the
administrative process might provide Plaintiff with other
sufficient remedies for Defendants’ alleged denial of a FAPE.
Furthermore, the rationale for requiring exhaustion of an
IDEA claim also militates against a finding of futility in this
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case.
In a case similar to the case at bar, the First Circuit
stated:
It would be a hollow gesture to say that
exhaustion is required — and then to say that
plaintiffs, by holding back until the affected
child graduates, can evade the requirement. . .
[P]ermitting a plaintiff to proceed with an IDEAbased claim for money damages under another
federal
statute
without
first
exhausting
administrative remedies might simply encourage
plaintiffs to wait to dispute the adequacy of
their educational programs until after graduation
precisely in the hope of recovering money damages.
This would mean that plaintiffs would not actually
address educational issues when they occur — a
situation directly at odds with the IDEA's primary
goal of ensuring the education of children with
disabilities.
Frazier, 276 F.3d at 63.
Also, in another similar case, the Second Circuit stated:
[A plaintiff] should not be permitted to ‘sit on’
live claims and spurn the administrative process
that could provide the educational services they
seek, then later sue for damages. Were we to
condone such conduct, we would frustrate the
IDEA's carefully crafted process for the prompt
resolution
of
grievances
through
interaction
between parents of disabled children and the
agencies responsible for educating those children.
The fact that the administrative process could not
provide damages does not render [a plaintiff’s]
claim futile; [the plaintiff] could have obtained
complete relief at the time, through changes to
her IEPs, additional educational services, and, if
necessary, remedial education.
Polera, 288 F.3d at 490; see also McCormick v. Waukegan Sch.
Dist. No. 60, 374 F.3d 564, 569 n. 1 (7th Cir. 2004) (“[T]he
need to exhaust should not depend upon the extent of delay in
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litigation or the choice of a plaintiff to delay litigation
until he or she graduates.”).
Plaintiff asserts that since it was the Defendants’
responsibility to review and reevaluate Plaintiff’s § 504 Plan,
Plaintiff cannot be held accountable for his failure to exhaust
his administrative remedies.
See Doc. 7 at pp. 6-7.
However, there is no assertion that Plaintiff was unaware
of his rights under § 504 of the Rehabilitation Act.
Also,
Plaintiff admits that he, or his parents, met with school
administrators in April and May of 2012 to discuss Plaintiff’s §
504 Plan.
See Doc. 1-1 at ¶¶ 48, 51.
While Plaintiff asserts
that this point in time was “too late for [Plaintiff’s] 504 Plan
to be revised,” such assertion is pure speculation.
Plaintiff
cannot be “permitted to ‘sit on’ live claims and spurn the
administrative process that could provide the educational
services” that he sought.
See Polera, 288 F.3d at 490.
Lastly, it is quite telling that Plaintiff’s counsel at
oral argument could not provide any examples of other
accommodations that would have improved Plaintiff’s § 504 Plan.
The Court is convinced that this was not due to any deficiencies
of Plaintiff’s counsel, but, rather, because the “remediation of
[Plaintiff’s] academic deficiencies . . . is initially best
addressed by educational professionals through the
administrative process.”
See S.E., 544 F.3d at 642-43.
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Therefore, Plaintiff’s situation is distinguishable from
the situation presented by the plaintiff in Covington.
Plaintiff has failed to carry his burden of establishing that
requiring him to exhaust his administrative remedies would have
been futile.
Accordingly, Counts I and II of Plaintiff’s Complaint are
dismissed without prejudice for Plaintiff’s failure to exhaust
his administrative remedies.
II.
Negligent Supervision Claims
Plaintiff also alleges state law negligent supervision
claims against Defendants Randy Poe, Matthew Turner, Nate Nieme,
Erik Arkenberg, and Pam Eklund.
See Doc. 1-1 at ¶¶ 72-75.
Pursuant to 28 U.S.C. § 1367(c)(3), this Court declines to
exercise supplemental jurisdiction over these claims and remands
said claims to state court.
Additionally, the Court declines
jurisdiction under 28 U.S.C. § 1367(c)(1) as these claims
involve complex issues of state tort immunities law for public
officials.
See, e.g., Yanero v. Davis, 65 S.W.3d 510 (Ky.
2001).
THEREFORE, THE COURT BEING ADVISED, IT IS ORDERED THAT:
1. Defendants’ motion for judgment on the pleadings (Doc. 5)
by, and is hereby, GRANTED with regard to Counts I and II
of Plaintiff’s Complaint and those Counts be, and are
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hereby, DISMISSED WITHOUT PREJUDICE for failure to
exhaust administrative remedies;
2. Plaintiff’s negligent supervision claims seen in Count
III of his Complaint are REMANDED TO STATE COURT; and
3. A judgment will enter concurrently herewith.
This 11th day of September, 2013.
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