EF v. Napoleon Community Schools et al

Filing 23

ORDER granting 17 Motion to Dismiss. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EF, a minor, by her next friends,
STACY FRY and BRENT FRY,
Case No. 12-15507
Hon. Lawrence P. Zatkoff

Plaintiffs,
v.
NAPOLEON COMMUNITY SCHOOLS,
JACKSON COUNTY INTERMEDIATE SCHOOL
DISTRICT, and PAMELA BARNES, in her individual
capacity,
Defendants.
_______________________________________/
OPINION AND ORDER

AT A SESSION of said Court, held in the United States Courthouse,
in the City of Port Huron, State of Michigan, on January 10, 2014
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
This matter is before the Court on Defendants’ Motion to Dismiss [dkt 17]. The parties have
fully briefed the Motion. The Court finds that the facts and legal arguments are adequately presented in
the parties’ papers such that the decision process would not be significantly aided by oral argument.
Therefore, pursuant to E.D. Mich. L.R. 7.1(f)(2), it is hereby ORDERED that the Motion be resolved on
the briefs submitted, without oral argument.
GRANTED.

For the following reasons, Defendants’ Motion is

II. BACKGROUND
A. FACTUAL BACKGROUND
EF, an eight-year-old girl, was born with spastic quadriplegic cerebral palsy, the most severe form
of that disorder. Spastic quadriplegic cerebral palsy affects EF’s legs, arms, and body, and significantly
limits her motor skills and mobility. She is not cognitive impaired, however, but requires physical
assistance in her daily activities.
On or about May 2008, EF’s pediatrician wrote a prescription for a service dog to assist her in
everyday activities. Before EF enrolled in Ezra Eby Elementary School’s kindergarten program for the
2009–10 school year, Plaintiffs (EF’s parents) informed Defendants1 Napoleon Community Schools and
Jackson County Intermediate School District (“Defendants”) that they intended to obtain a service dog for
EF. Defendants allegedly “led [Plaintiffs] to believe that the service dog could attend school with [EF].”
With the success of a local community fundraiser, EF and Plaintiffs were able to pay for the training of a
service dog named “Wonder.”2 In the fall of 2009, EF and her family trained with Wonder at service
animal training facility in Ohio.
According to Plaintiffs, Wonder “is a specially trained and certified service dog and assists [EF]
in a number of ways, including, but not limited to, retrieving dropped items, helping her balance when she
uses her walker, opening and closing doors, turning on and off lights, helping her take off her coat,
helping her transfer to and from the toilet.” Dkt. # 1, ¶ 27. Wonder also “enables [EF] to develop
independence and confidence and helps her bridge social barriers.” Id. at ¶ 28.
In October 2009, Defendants informed Plaintiffs that Wonder could not accompany EF to school.
On January 7, 2010, Defendants convened a meeting wherein the Individual Educational Program

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Plaintiffs only brought one claim (Count III) against Defendant Pamela Barnes. The Court, however, dismissed that claim on
January 18, 2013. Accordingly, Defendant Pamela Barnes is no longer a party to this suit.
2
Wonder is a Goldendoodle, a cross between a Golden Retriever and a Poodle. Most Goldendoodles have a low or nonshedding coat, which generally makes the breed tolerable for people with allergies.

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(“IEP”) team considered whether Wonder was necessary to provide EF with a free appropriate public
education (“FAPE”).3 The IEP team concluded that EF was successful in the school environment
without Wonder, and that all of her “physical and academic” needs were being met by the IEP program
and services in place. Id. at ¶¶ 32–33. Subsequent to that decision, Plaintiffs and Defendants negotiated
an agreement whereby EF was allowed to bring Wonder to school for a 30-day trial period that
commenced on April 12, 2010, and was ultimately extended through the end of the school year.
Although Wonder was permitted in school, Plaintiffs allege that Defendants required Wonder “to remain
in the back of the room during classes,” “forbade [him] from assisting [EF] with many tasks he had been
specifically trained to do,” “refused to allow [him] to accompany and assist [EF] during recess, lunch,
computer lab and library,” and “prohibited [EF] from participating in other activities with Wonder such as
walking the track during ‘Relay for Life,’ a school play and ‘field day.’” Id. at ¶¶ 35–37. Following the
trial period, Defendants not only refused to modify the school’s policies, but also refused to recognize
Wonder as a service dog.
Plaintiffs filed a complaint with the United States Department of Education Office of Civil Rights
(“OCR”) on July 30, 2010. On May 3, 2012, the OCR issued a disposition letter finding that EF’s school
district and intermediate school district (i.e., Defendants) violated her rights under Title II of the
Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and the federal regulations
implementing those laws. Attempting to find an amicable resolution to the OCR complaint, Defendants
entered into a resolution agreement wherein EF could return to the elementary school with Wonder and
could utilize the dog to assist her throughout the school.
Plaintiff Brent Fry conversed with Defendant Pamela Barnes during the summer of 2012 to
discuss EF’s return with Wonder. According to Plaintiffs, that conversation evoked “serious concerns

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Under the Individuals with Disabilities Act, the means by which a state provides special education services is through the
development of IEP’s that are individually tailored to the unique needs of each student.

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that the administration would resent” EF. Plaintiffs located a different public school in Washtenaw
County for EF to attend with Wonder.4
B. PROCEDURAL BACKGROUND
Plaintiffs filed their three-count complaint on December 17, 2012, alleging the following causes
of action: violation of Section 504 of the Rehabilitation Act against Defendants Napoleon Community
Schools and Jackson County Intermediate School District (Count I); violation of Title II of the Americans
with Disabilities Act against Defendants Napoleon Community Schools and Jackson County
Intermediate School District (Count II); and violation of the Michigan Persons with Disabilities Civil
Rights Act against all Defendants (Count III). On January 18, 2013, the Court dismissed Plaintiffs’ statelaw claim (Count III).
Pending before the Court is Defendants’ motion seeking dismissal of Plaintiffs’ remaining federal
claims.
III. LEGAL STANDARD
Pursuant to Fed. R. Civ. P. 12(c), “[a]fter the pleadings are closed—but early enough not to delay
trial—a party may move for judgment on the pleadings.” The Court's review under Fed. R. Civ. P. 12(c)
is the same as the review under Fed. R. Civ. P. 12(b)(6). Jelovsek v. Bredesen, 545 F.3d 431, 434 (6th
Cir. 2008). Under Fed. R. Civ. P. 12(b)(6), the Court must accept as true all factual allegations in the
pleadings, and any ambiguities must be resolved in that plaintiff’s favor. See Jackson v. Richards Med.
Co., 961 F.2d 575, 577–78 (6th Cir. 1992). While this standard is decidedly liberal, it requires more than
a bare assertion of legal conclusions. See Advocacy Org. for Patients & Providers v. Auto Club Ins.
Ass’n, 176 F.3d 315, 319 (6th Cir. 1999). Thus, the plaintiff must make “a showing, rather than a blanket
assertion of entitlement to relief” and “[f]actual allegations must be enough to raise a right to relief above

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While awaiting a ruling from the OCR, Plaintiffs homeschooled EF.

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the speculative level” so that the claim is “plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555, 570 (2007). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
IV. ANALYSIS
The crux of the parties’ dispute is narrow and relatively straightforward. Defendants argue
Plaintiffs failed to exhaust their administrative remedies with the Michigan Department of Education
before filing this federal suit and, as a result, their federal claims should be dismissed. Plaintiffs, on the
other hand, dispute that they were required to adhere to the exhaustion requirement. The Court finds
Defendants’ position meritorious as further explained below.
A. INDIVIDUALS WITH DISABILITIES ACT
The Individuals with Disabilities Act (“IDEA”) conditions a state’s receipt of federal funding
upon the state’s development and implementation of policies and procedures ensuring that “[a] free
appropriate public education is available to all children with disabilities.” 20 U.S.C. § 1412(a)(1)(A).
The central means by which a state provides this education is through the development of an IEP that is
tailored to the unique needs of a particular child. Id. at § 1412(a)(4); Bd. of Educ. v. Rowley, 458 U.S.
176, 181 (1982).
The IDEA requires a parent, dissatisfied with an education decision regarding her child, to
exhaust state administrative remedies before proceeding to federal court. Id. at § 1415(l);5 Crocker v.

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20 U.S.C. § 1415(l) provides as follows:
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,
title V of the Rehabilitation Act of 1973, 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.

Subsection (f) provides for an “impartial due process hearing” and subsection (g) provides for an appeal to the state
educational agency “[i]f the hearing required by subsection (f) of this section is conducted by a local education
agency.” 20 U.S.C. §§ 1415(f) & 1415(g)(1).

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Tennessee Secondary Sch. Athletic Ass’n, 873 F.2d 933, 935 (6th Cir. 1989) (“Every court that has
considered the question has read this statutory scheme as a requirement for the exhaustion of
administrative remedies.”). Exhaustion is an affirmative defense that must be raised by the defendant.
See, e.g., B.H. v. Portage Pub. Sch. Bd. of Educ., No. 08-293, 2009 WL 277051, at *3 (W.D. Mich. Feb.
2, 2009).
The IDEA’s exhaustion requirement is not limited to claims brought under the IDEA. Section
1415(l) of the IDEA states:
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, title V of the Rehabilitation Act
of 1973, 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 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) (emphasis added). “[T]he IDEA exhaustion requirement applies to claims brought
under the Rehabilitation Act or other federal statutes to the extent those claims seek relief that is also
available under the IDEA.” M.Y. v. Special Sch. Dist. No. 1, 544 F.3d 885, 888 (8th Cir. 2008). As
summarized by one court, exhaustion is required in three IDEA-related contexts:
First, exhaustion is clearly required when a plaintiff seeks an IDEA
remedy or its functional equivalent. For example, if a disabled student
files suit under the ADA and challenges the school district’s failure to
accommodate his special needs and seeks damages for the costs of a
private school education, the IDEA requires exhaustion regardless of
whether such a remedy is available under the ADA, or whether the
IDEA is mentioned in the prayer for relief.
***
Second, the IDEA requires exhaustion in cases where a plaintiff seeks
prospective injunctive relief to alter an IEP or the educational placement
of a disabled student.
***
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Third, exhaustion is required in cases where a plaintiff is seeking to
enforce rights that arise as a result of a denial of a free appropriate public
education, whether pled as an IDEA claim or any other claim that relies
on the denial of a [free appropriate public education] to provide the basis
for the cause of action (for instance, a claim for damages under § 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794, premised on a denial of
a [free appropriate public education]). Such claims arise under either the
IDEA (if the IDEA violation is alleged directly) or its substantive
standards (if a § 504 claim is premised on a violation of the IDEA), so
the relief follows directly from the IDEA and is therefore “available
under this subchapter.” 20 U.S.C. § 1415(l).
Payne, 653 F.3d at 875.
Thus it is irrelevant that Plaintiffs did not expressly plead an IDEA claim. In order to determine if
Plaintiffs were required to exhaust their federal claims before filing suit, this Court must first examine the
relief requested in Plaintiffs’ complaint. If the relief sought by Plaintiffs could have been provided by the
IDEA, then exhaustion was necessary and Plaintiffs’ complaint must be dismissed.
In the current matter, Plaintiffs allege two federal claims: (1) a violation of Section 504 of the
Rehabilitation Act; and (2) a violation of Title II of the ADA. Plaintiffs’ complaint, though, does not
explicitly link each claim to a separate form of requested relief. Rather, the complaint contains a general
“Request for Relief,” which includes issuance of a declaration that Defendants violated Plaintiffs’ rights
under the above-mentioned statutes, an award of damages in an amount to be determined at trial and
attorney’s fees.
First, Plaintiffs’ request for attorney’s fees is indeed available under the IDEA. See 20 U.S.C. §
1415(i)(3)(B). Moreover, the inclusion of compensatory damages likewise provides no safe harbor from
the IDEA’s exhaustion mandate. The Sixth Circuit—in conformity with the majority of other circuits—
has held that plaintiffs cannot evade the exhaustion requirement simply by limiting their prayer for relief
to a request for damages. Covington v. Knox Cnty. Sch. Sys., 205 F.3d 912, 917 (6th Cir. 2000) (“[W]e
agree with those courts that have decided that a mere claim for money damages is not sufficient to render
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exhaustion of administrative remedies unnecessary . . . .”). Accordingly, this Court must look beyond the
“damages” and “attorney’s fees” request and carefully discern the theory or underpinnings behind
Plaintiffs’ allegations in order to determine if exhaustion under the IDEA is required. See Cave v. E.
Meadow Union Free Sch. Dist., 514 F.3d 240, 246 (2nd Cir. 2008) (“[T]he theory behind the grievance
may activate the IDEA’s process, even if the plaintiff wants a form of relief that the IDEA does not
supply . . . .”) (quotations and citation omitted).
Instructive is the Second Circuit’s decision in Cave, supra, a case involving a hearing-impaired
student’s request to allow a service dog to accompany him to school. The student’s request was denied
by school officials because the student’s class schedule and overall education program would have
required modification. Much like the instant case, the appellants in Cave argued that their claim was not
one of violation of the IDEA’s mandate for the provision of a FAPE, but was rather a claim for unlawful
discrimination under the ADA and Rehabilitation Act, among others statutes. There, the school officials’
decision was upheld because the court was not convinced that the student’s claims were materially
distinguishable from claims falling within the ambit of the IDEA:
The high school principal and the school district’s director of special
education testified before the district court that John, Jr.’s class schedule
under his existing IEP would have to be changed to accommodate the
concerns of allergic students and teachers and to diminish the distractions
that Simba’s [i.e., the service dog] presence would engender. (citation
omitted). School authorities would also have to make certain practical
arrangements to maintain the smooth functioning of the school and to
ensure both that Simba was receiving proper care and that John, Jr.
continued to receive necessary and appropriate educational and support
services. (citation omitted). It is hard to imagine, for example, how
John, Jr. could still attend the physical education class while at the same
time attending to the dog’s needs; or how he could bring Simba to a class
where another student with a certified allergic reaction to dogs would be
present. (citation omitted). These issues implicate John, Jr.’s IEP and
would be best dealt with through the administrative process.
We thus agree with the district court here that ‘at least in part, the
plaintiffs are challenging the adequacy of John, Jr.’s IEP because it does
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not include a service dog.’ (citation omitted). The relief appellants seek,
‘namely permission to bring the service dog to school, is in substance a
modification of John, Jr.’s IEP . . . [and] is available under the IDEA.’
(citation omitted).
Cave, 514 F.3d at 247–48.
Here, Plaintiffs’ response brief strongly disclaims any challenge to the efficacy of EF’s IEP. As
Plaintiffs would have it, they are instead arguing that Defendants’ failure to accommodate a disabled
individual (i.e., EF) in a place of public accommodation (i.e., EF’s school) violates the ADA and
Rehabilitation Act. Put another way, Defendants’ obligation to satisfy those statutes “was entirely
separate from the Defendants’ obligation to provide a [FAPE] under the IDEA.” See Dkt. # 18, p. 15–16
(“The education program created by the Defendants with input from [EF’s] family and medical providers
did provide the educational opportunity that is required as a matter of law.”); (“The IDEA addresses only
the Defendants’ obligation to formulate a plan to provide a student with a [FAPE].”).
The Court concludes that the IDEA’s exhaustion requirement was triggered here. Despite the
light in which Plaintiffs cast their position, the Court fails to see how Wonder’s presence would not—at
least partially—implicate issues relating to EF’s IEP. Borrowing from the discussion in Cave, it appears
conceivable that EF’s IEP would undergo some modification, for example, to accommodate the
“concerns of allergic students and teachers and to diminish the distractions [Wonder’s] presence would
engender.” Moreover, having Wonder accompany EF to recess, lunch, the computer lab and the library
would likewise require changes to the IEP. Again, by way of example, the IEP would need to include
plans for handling Wonder on the playground or in the lunchroom. Defendants (i.e., the school and
school district) would also have to make certain practical arrangements—such as developing a plan for
Wonder’s care, including supervision, feeding, and toileting—so that the school continued to maintain
functionality. All of these things undoubtedly implicate EF’s IEP and would be best dealt with through
the administrative process.
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As one panel from within the Sixth Circuit has aptly commented: “States are given the power to
place themselves in compliance with the law, and the incentive to develop a regular system for fairly
resolving conflicts under the [IDEA]. Federal courts—generalists with no experience in the educational
needs of handicapped students—are given the benefit of expert factfinding by a state agency devoted to
this very purpose.” Crocker v. Tenn. Secondary Sch. Athletic Ass’n, 873 F.2d 933, 935 (6th Cir. 1989).
In brief, the Court finds that Plaintiffs were obliged to exhaust the administrative remedies available under
the IDEA before filing the current lawsuit. Accordingly, because Plaintiffs’ do not contest that they failed
to exhaust the IDEA’s administrative remedies, Plaintiff’s complaint will be dismissed without prejudice.
V. CONCLUSION
Accordingly, for the reasons stated above, IT IS HEREBY ORDERED that Defendants’ Motion
to Dismiss [dkt 17] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s complaint [dkt 1] is DISMISSED WITHOUT
PREJUDICE.
IT IS SO ORDERED.
Date: January 10, 2014

s/Lawrence P. Zatkoff
Hon. Lawrence P. Zatkoff
U.S. District Judge

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