Holden et al v. Jensen et al
OPINION; Order and Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
ALAN and NICOLE HOLDEN,
Case No. 1:10-cv-697
HON. JANET T. NEFF
SHELLY JENSEN et al.,
This is a civil rights action Plaintiffs, on their own behalf and as Next Friends of their minor
son, Ethan, initiated against Shelley Jensen, Ethan’s preschool teacher; Penelope Miller-Smith, the
Director of Special Education Services; Superintendent Terry Babbitt; and the Mona Shores School
District. Plaintiffs allege nine federal and state law claims. Now pending before the Court is
Defendants’ “Motion to Dismiss Plaintiffs’ Complaint and for Summary Judgment Pursuant to FED.
R. CIV. P. 12(b)(1) and (6) and 56 Because Plaintiffs Did Not Exhaust Administrative Remedies
Under IDEA and MMSEA” (Dkt 47). Plaintiffs filed a response in opposition (Dkt 49), and
Defendants filed a reply (Dkt 43). Having fully considered the parties’ motion briefs and statements
of uncontested facts, the Court determines that oral argument is unnecessary. See W.D. Mich.
LCivR 7.2(d). For the reasons that follow, the Court decides that Defendants’ motion is properly
A. The IDEA
The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., is a
Spending Clause statute that seeks to ensure that “all children with disabilities have available to
them a free appropriate public education” (FAPE), § 1400(d)(1)(A). The Act “leaves to the States
the primary responsibility for developing and executing educational programs for handicapped
children, but imposes significant requirements to be followed in the discharge of that responsibility.”
Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 52 (2005) (quoting Board of Ed. of Hendrick
Hudson Central Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 183 (1982)).
Participating states, such as Michigan, must certify to the Secretary of Education that they
have policies and procedures that will effectively meet the Act’s conditions, 20 U.S.C. § 1412(a).
Schaffer, supra. See MICH. COMP. LAWS § 380.1701 et seq. (Michigan’s Mandatory Special
Education Act [MMSEA]). State educational agencies, in turn, must ensure that local schools and
teachers are meeting the state’s educational standards, 20 U.S.C. §§ 1412(a)(11), 1412(a)(15)(A).
Schaffer, supra. Local educational agencies (school boards or other administrative bodies) can
receive IDEA funds only if they certify to a state educational agency that they are acting in
accordance with the state’s policies and procedures, § 1413(a)(1). Id. at 52-53.
As the Supreme Court observed, “[t]he core of the statute ... is the cooperative process that
it establishes between parents and schools,” and the “central vehicle for this collaboration is the
[Individualized Education Program (IEP)] process.” Schaffer, 546 U.S. at 53. “State educational
authorities must identify and evaluate disabled children, 20 U.S.C. §§ 1414(a)-(c), develop an IEP
for each one, § 1414(d)(2), and review every IEP at least once a year, § 1414(d)(4).” Id. The Act
requires that an IEP include, among other items,
a statement of the child’s present levels of educational performance, . . .;
a statement of measurable annual goals, including academic and functional
goals, . . . ;
a description of how the child’s progress toward meeting the annual goals
described in subclause (II) will be measured and when periodic reports on the
progress the child is making toward meeting the annual goals (such as
through the use of quarterly or other periodic reports, concurrent with the
issuance of report cards) will be provided;
a statement of the special education and related services and supplementary
aids and services, based on peer-reviewed research to the extent practicable,
to be provided to the child, or on behalf of the child, and a statement of the
program modifications or supports for school personnel that will be provided
for the child . . . ;
an explanation of the extent, if any, to which the child will not participate
with nondisabled children in the regular class and in the activities described
in subclause (IV) . . . .
20 U.S.C. § 1414(d)(1)(A).
Parents and guardians play a significant role in the IEP process. Schaffer, 546 U.S. at 53.
They must be informed about and consent to evaluations of their child under the Act, § 1414(c)(3).
Id. Parents are included as members of “IEP teams,” § 1414(d)(1)(B). Id. They have the right to
examine any records relating to their child, and to obtain an “independent educational evaluation
of the child,” § 1415(b)(1). Id. They must be given written prior notice of any changes in an IEP,
§ 1415(b)(3), and be notified in writing of the procedural safeguards available to them under the Act,
§ 1415(d)(1). Id. If parents believe that an IEP is not appropriate, then they may seek an
administrative “impartial due process hearing,” § 1415(f). Id. School districts may also seek such
hearings. Id. After the due process hearing, any aggrieved party may bring a civil action in state
or federal court, § 1415(i)(2). Id. In sum, the IDEA contemplates that the “special knowledge and
experience of the agencies will be utilized in devising the plan, that it will be fine-tuned through the
cooperation of the child’s teachers and parents, and that the advice of a qualified and impartial
hearing officer will be available concerning the adequacy of the plan.” Doe v. Smith, 879 F.2d 1340,
1343 (6th Cir. 1989).
Moreover, the IDEA does not preclude a disabled child from pursuing other available
remedies under federal law in state or federal court, provided that the child first exhaust all
administrative remedies available under state law where the relief sought is available under the
IDEA. See 20 U.S.C. § 1415(l) (“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. § 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C. § 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 shall be exhausted to the same extent as
would be required had the action been brought under this subchapter.”).
B. Relevant Facts
The child at the heart of this litigation is Ethan Holden. Ethan suffers from Autism Spectrum
Disorder (Compl. [Dkt 1] ¶ 8), a disability that qualifies him for special education and related
services under the IDEA. In the fall of 2008, Ethan began attending preschool in a special education
classroom at Ross Park Elementary School, a public school within the Mona Shores School District
(Mona Shores) (SMF1 ¶ 1). Plaintiffs and Mona Shores agreed to an IEP for Ethan, which Plaintiff
Alan Holden signed on October 27, 2008 (id.).
Later, in December 2008, Plaintiff Nicole Holden attended a Christmas party in Ethan’s
classroom (Comp. ¶¶ 32-33). According to Holden, Ethan sat in a booster seat attached to a small
chair during the party (id. ¶ 34). The booster seat had a small plastic “seat belt.” Holden did not
believe use of the booster seat was appropriate. Plaintiffs contend, but Defendants deny, that use
of the booster seat was traumatic to Ethan and caused him anxiety (SMF ¶ 17). Plaintiffs withheld
Ethan from the classroom and asked for a meeting (Compl. ¶ 41). Defendants assert that the October
27, 2008 IEP in effect at the time “did not prohibit use of a booster seat or a booster seat with a strap
nor did [the IEP] say Plaintiffs requested such restriction” (SMF ¶ 17).
An IEP meeting was scheduled for January 16, 2009 (SMF ¶ 18). However, Plaintiffs
cancelled the meeting, apparently at the last minute (id.). Defendants assert that because Plaintiffs
did not appear for the scheduled meeting, the Mona Shores team members who convened for the
meeting developed ideas for a new IEP, but no new IEP was formally promulgated (id.).
Mona Shores rescheduled the IEP meeting to January 23, 2009, and members of the IEP
team from Mona Shores convened at that time (SMF ¶ 18). However, Plaintiffs again cancelled the
meeting. Plaintiffs contend that those team members who were present promulgated an IEP on
January 23, 2009, without their input, and that the IEP “included an evaluation of [Ethan’s]
academic achievement and functional performance which was substantially different from the one
Defendants prepared just three months earlier” and “proposed severely restricting [Ethan’s]
Statement of Material Facts (Dkt 24), Plaintiffs’ Response and Statement of Material Facts
(Dkt 29-1), and Defendants’ Reply to Plaintiffs’ Statement of Material Facts (Dkt 44).
placement so that he would no longer be educated in the least restrictive environment” (id.).
Defendants deny that an IEP was promulgated. Defendants point to a January 23, 2009 letter from
Special Education Director Miller-Smith to Plaintiffs, stating, “Because the district values your
participation, the IEP team elected to suspend the meeting in hopes that we will be able to schedule
a convenient time for you in the near future to conclude the IEP” (Dkt 23 at 9, Ex. C).
Plaintiffs retained the services of attorney Veena Rao of the Michigan Protection and
Advocacy Service, Inc. (SMF ¶ 4). On or about February 6, 2009, attorney Rao commenced the
administrative process set forth in the IDEA by requesting an IDEA due process hearing, 20 U.S.C.
§ 1415(b)(7) (id.). According to Plaintiffs, their due process complaint concerned “the school
district’s failure to require a functional behavior assessment and a positive behavior intervention
plan to address the ‘behavioral needs’ that are identified in the [Present Level of Academic
Achievement and Functional Performance] PLAAFP statement” (id. ¶ 3). The State of Michigan
Office of Administrative Hearings and Rules (SOAHR) scheduled a pre-conference hearing for
March 10, 2009 (id. ¶ 5). Plaintiffs received notice of the pre-hearing conference and additional
information from SOAHR concerning the nature of the hearing and their rights under the IDEA (id.).
On February 24, 2009, the parties reconvened the IEP team to review Ethan’s IEP (SMF ¶
21). Plaintiffs requested that Defendants no longer use the booster seat with Ethan, and Defendants
agreed to this request (id.). Plaintiffs state that Defendants also agreed that Ethan would not be
moved to a more restrictive environment and that both agreements of the parties were placed in an
IEP (id.). However, Defendants deny that a new IEP was formally adopted at the February 24, 2009
At the March 10, 2009 pre-conference hearing, with attorney Rao appearing on their behalf,
Plaintiffs voluntarily withdrew and agreed to dismiss their due process hearing request (SMF ¶¶ 67). SOAHR Administrative Law Judge Michael L. Heredeen consequently dismissed their due
process complaint and removed their complaint from the SOAHR hearing docket (id. ¶ 7). No due
process hearing was ever held.
Plaintiffs subsequently met with the other Mona Shores IEP team members to try to develop
a new IEP for Ethan (SMF ¶ 8). However, on or about April 27, 2009, Plaintiff Nicole Holden,
while assisted by a different representative of the Michigan Protection and Advocacy Service, Inc.,
Laurie A. Flemington, indicated that Plaintiffs wished to “table” the development of a new IEP for
Ethan (id. ¶ 9). Ethan remained a student in the Mona Shores School District for the remainder of
the 2008-09 school year (id. ¶ 10). On June 8, 2009, the IEP team agreed to and adopted a new IEP
for Ethan, which Plaintiff Alan Holden signed on June 9, 2009 (SMF ¶ 11).
However, before the 2009-10 school year began, Plaintiffs withdrew Ethan from Mona
Shores and enrolled him in a neighboring school district, Fruitport Community Schools (SMF ¶ 12).
Plaintiffs indicate that the transfer was precipitated by their move from their apartment to a house
in the Fruitport school district (id. ¶¶ 12, 23). Ethan is receiving an education through an IEP
developed with the Fruitport Community Schools (id. ¶ 13). Plaintiffs admit they have not pursued
their administrative remedies with Mona Shores and have not asked Mona Shores to further develop
an IEP for Ethan (id. ¶ 15).
On July 21, 2010, Plaintiffs initiated this nine-count suit against teacher Jensen, Director of
Special Education Services Miller-Smith, Superintendent Babbitt, and the Mona Shores School
District. Plaintiffs allege the following nine claims:
Violation of the Fourth Amendment, under 42 U.S.C. § 1983;
Violation of the Fourteenth Amendment, under 42 U.S.C. § 1983;
Violation of the Americans with Disabilities Act, 42 U.S.C. § 12132;
Violation of the Rehabilitation Act, 29 U.S.C. § 794;
Violation of the Persons with Disabilities Civil Rights Act, MICH. COMP.
LAWS § 37.1103;
False Imprisonment; and
Intentional Infliction of Emotional Distress.
On August 18, 2010, Defendants requested a Pre-Motion Conference, proposing to file a
dispositive motion based on their proposition that all nine counts of Plaintiffs’ Complaint come
within the IDEA’s purview and that Plaintiffs have not yet exhausted their administrative remedies
(Dkt 7). Following a Pre-Motion Conference on October 10, 2010, this Court issued a briefing
schedule, permitting the parties to brief the exhaustion question Defendants presented. The parties
filed their respective motion papers in December 2010 (Dkts 22-49).
A. Nature of Motion and Standard of Review
Defendants’ motion is a combined motion under Federal Rules of Civil Procedure 12(b)(1),
12(b)(6) and 56. Defendants argue that in failing to allege that Plaintiffs exhausted their IDEA
remedies, Plaintiffs’ Complaint does not give this Court “subject-matter jurisdiction” over Plaintiffs’
claims, FED. R. CIV. P. 12(b)(1), and does not “state a claim upon which relief can be granted,” FED.
R. CIV. P. 12(b)(6) (Dkt 23 at 12). Alternatively, Defendants argue that if these omissions are
insufficient bases for dismissal, then this Court should grant Defendants summary judgment under
FED. R. CIV. P. 56(c) and dismiss Plaintiffs’ Complaint because there is no genuine issue as to any
material fact regarding Plaintiffs’ failure to exhaust IDEA-related administrative procedures and
remedies (id. at 13).
Plaintiffs assert that the exhaustion issue Defendants present for this Court’s review should
be resolved under Rule 56, and that this Court should conclude that there is a disputed issue of
material fact as to whether exhaustion would be futile (Dkt 49 at 17). Plaintiffs opine that they had
no duty to specifically plead exhaustion and that resolving Defendants’ arguments under Rule
12(b)(1) would therefore be inappropriate (id.).
The circuits are split on whether exhaustion of administrative remedies under the IDEA is
a jurisdictional requirement or whether exhaustion is merely a condition precedent for filing an
IDEA lawsuit. See Sagan v. Sumner County Bd. of Educ., 726 F. Supp. 2d 868, 872 (M.D. Tenn.
2010) (cataloging cases). Some circuits have held that the failure to exhaust administrative remedies
does not deprive a court of subject-matter jurisdiction, reasoning that the lack of exhaustion is
usually waivable whereas a lack of subject-matter jurisdiction is not. Id. Other circuits have
concluded that exhaustion of administrative remedies is a jurisdictional prerequisite, with the failure
to exhaust administrative remedies therefore resulting in dismissal for lack of subject-matter
jurisdiction. Id. The Sixth Circuit Court of Appeals has not yet decided the issue.
In B.H. v. Portage, No. 1:08-cv-293, 2009 WL 277051, at *4 (W.D. Mich. Feb. 2, 2009),
Magistrate Judge Joseph G. Scoville considered the question of the proper motion standard in light
of the analysis applied in Jones v. Bock, 549 U.S. 199 (2007) (analyzing the exhaustion provision
of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915A, and finding that, although many
lower courts, including the Sixth Circuit, had treated this provision as jurisdictional, exhaustion is
better regarded as an affirmative defense). Judge Scoville concluded that failure to exhaust
administrative remedies in the IDEA context is similarly an affirmative defense, not a jurisdictional
bar. Consequently, Judge Scoville determined that a motion brought pursuant to Rule 12(b)(1) was
not an appropriate vehicle by which to raise the issue, although the court perceived “no substantial
difference” between the defendants’ Rule 12(b)(1) motion (a facial attack based on the allegations
in the complaint alone) and a motion for summary judgment (a factual attack relying on matters
outside the pleadings). Id. See also Payne v. Peninsula Sch. Dist., ___ F.3d ___, 2011 WL
3211503, at *2 (9th Cir. July 29, 2011) (overruling its earlier treatment of IDEA § 1415(l) “in light
of a spate of Supreme Court cases clarifying the difference between provisions limiting our subject
matter jurisdiction ... and claims processing provisions”).
The Court is persuaded by the reasoning of Judge Scoville and the circuits concluding that
the failure to exhaust administrative remedies does not deprive a court of subject-matter jurisdiction.
As the Ninth Circuit observed, and as the discussion of Defendants’ motion makes evident, infra,
“the exhaustion requirement in § 1415(l) is not a check-the-box kind of exercise” but an “inexact
science,” presenting questions that are better addressed through a fact-specific assessment of the
affirmative defense than through an inquiry about whether the court has the power to decide the case
at all. See Payne, 2011 WL 3211503, at *5. In light of the record matters referenced by the parties
as well as Plaintiffs’ agreement to proceed under Rule 56, the Court determines it may properly
analyze Defendants’ motion under the standard for deciding Rule 56 motions.
Summary judgment is appropriate when there are no issues of material fact in dispute and
the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The Court must
view the factual evidence and draw all reasonable inferences in favor of the nonmoving party. See
S.E. v. Grant County Bd. of Educ., 544 F.3d 633, 637 (6th Cir. 2008) (citing Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“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 County Bd.
of Educ., 21 F. App’x 293, 296 (6th Cir. 2001) (citing Covington v. Knox County Sch. Sys., 205 F.3d
912, 915 (6th Cir. 2000), and Crocker v. Tennessee Secondary Sch. Athletic Ass’n, 873 F.2d 933,
935 (6th Cir. 1989) (examining § 1415(e)(2), the predecessor to § 1415(i)(2)). 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.’” Donoho, supra (quoting Christopher W. v. Portsmouth
Sch. Comm., 877 F.2d 1089, 1094 (1st Cir. 1989)).
The Sixth Circuit has highlighted the importance of the factfinding aspect of the exhaustion
requirement, in particular, observing that “[f]ederal courts—generalists with no expertise in the
educational needs of handicapped students—are given the benefit of expert factfinding by a state
agency devoted to this very purpose. Such a mechanism is necessary to give effect to a fundamental
policy underlying the [IDEA]: ‘that the needs of handicapped children are best accommodated by
having the parents and the local education agency work together to formulate an individualized plan
for each handicapped child’s education.’ Smith v. Robinson, 468 U.S. 992, 1012, 104 S. Ct. 3457,
3468, 82 L. Ed. 2d 746 (1984). Were federal courts to set themselves up as the initial arbiters of
handicapped children’s educational needs before the administrative process is used, they would
endanger not only the procedural but also the substantive purposes of the Act.” Crocker, 873 F.2d
at 935. “To allow parents to come directly to federal courts will render the entire scheme [of the
IDEA] nugatory.” Id.
Thus, as noted supra, the IDEA provides that a disabled child may pursue other available
remedies under federal law only after exhausting the IDEA procedures. 20 U.S.C. § 1415(l).
Additionally, some courts have held that whenever a claim falls within the purview of the IDEA,
exhaustion is required. See Covington, 205 F.3d at 915 (collecting cases). See, e.g., Franklin v.
Frid, 7 F. Supp. 2d 920, 925-26 (W.D. Mich. 1998) (concluding that despite allegations of a school
official’s intentionally humiliating, poking, hitting, slapping, and verbally abusing a student, the
“gravamen of the claim” fell within the purview of the IDEA, requiring exhaustion).
Defendants argue that Plaintiffs’ federal law claims (Counts I-V) must be dismissed because
the remedies for their allegations are available under the IDEA (Dkt 23 at 28). Defendants argue
that Plaintiffs’ state-law claims (Counts VI-IX) must also be dismissed because these claims relate
to implementation of Ethan’s IEP (id. at 28-29). Plaintiffs do not contest the applicability of the
IDEA exhaustion requirement to their claims, nor do Plaintiffs contest that their claims are
unexhausted (Dkt 49 at 6). Rather, Plaintiffs argue that pursuit of the administrative process would
be futile, thereby excusing their failure to exhaust (id.).
Both the United States Supreme Court and the Sixth Circuit Court of Appeals have held that
exhaustion is not required under the IDEA if it would be “futile or inadequate” to protect the
plaintiff’s rights. Honig v. Doe, 484 U.S. 305, 326-27 (1988); Covington, 205 F.3d at 917. The
burden of demonstrating futility or inadequacy rests on the party seeking to bypass the
administrative procedures. Honig, 484 U.S. at 327; Crocker, 873 F.2d at 937. Pointing to four
characteristics of their case, Plaintiffs argue that exhaustion is futile “because of the unique facts of
this case” (Dkt 29 at 19). However, the Court is not convinced that Plaintiffs have borne their
burden of demonstrating the futility of the administrative process they seek to bypass.
First, Plaintiffs point out that they are not complaining about the denial of a FAPE, but about
“tortious physical acts which the IDEA remedies are not designed to redress” (Dkt 49 at 19).
Plaintiffs reference an observation by the First Circuit Court of Appeals in Nieves-Marquez v. Puerto
Rico, 353 F.3d 108, 125 (1st Cir. 2003), that the “IDEA’s primary purpose is to ensure a FAPE, not
to serve as a tort-like mechanism for compensating personal injury” (id.).
The First Circuit in Nieves-Marquez was not deciding whether the type of claims the
plaintiffs alleged permitted the plaintiffs to bypass the administrative process. Indeed, the plaintiffs
in Nieves-Marquez had exhausted their administrative remedies. The First Circuit was examining
the IDEA to determine whether money damages were available, in an effort to decide the ultimate
question before it, which was whether the defendants were immune under the Eleventh Amendment
from claims for monetary relief. Plaintiffs therefore improperly rely on Nieves-Marquez as a case
supporting the proposition that pleading tort claims creates an avenue around the administrative
Similarly, in another case upon which Plaintiffs rely, McCormick v. Waukegan Sch. Dist. No.
60, 374 F.3d 564, 567-68 (7th Cir. 2004), the Seventh Circuit permitted certain unexhausted tort
claims against the defendant school district to proceed, not because torts were alleged, but because
the plaintiff demonstrated that exhaustion of administrative remedies would be futile where the
IDEA does not provide medical services to disabled individuals (beyond diagnostic and evaluative
services) and the plaintiff’s claim centered on the permanent physical damage to his kidneys. See
also Padilla v. Sch. Dist. No. 1, 233 F.3d 1268 (10th Cir. 2000) (dismissing the plaintiff’s
IDEA-based § 1983 claims against the school district but permitting the ADA claim to proceed
under the “narrow circumstances” where the plaintiff sought damages “solely to redress the fractured
skull and other physical injuries she suffered”).
What revealed futility (or failed to do so) in these cases then was not whether the plaintiff
had pleaded a tort claim, but whether the plaintiff had alleged injuries that could not be redressed
“to any degree” by the IDEA’s administrative procedures and remedies. S.E., 544 F.3d at 642
(quoting Robb v. Bethel Sch. Dist. # 403, 308 F.3d 1047, 1048 (9th Cir. 2002) (holding that a student
suing for lost educational opportunities and emotional damages based on her removal from the
classroom in favor of allegedly deficient, unsupervised student tutoring must exhaust administrative
remedies); Padilla, 233 F.3d at 1274-75.
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)(E). Where a plaintiff alleges injuries “that could be redressed to some degree
by the IDEA’s administrative procedures and remedies, then the courts should require exhaustion
of administrative remedies.” Robb, 308 F.3d at 1054. Indeed, “even where the IDEA’s ability to
remedy a particular injury is unclear, exhaustion should be required in order to give educational
agencies an initial opportunity to ascertain and alleviate the alleged problem.” Padilla, 233 F.3d
at 1274. The dispositive question in the futility analysis is not then simply whether a plaintiff has
pleaded a tort claim; therefore, Plaintiffs’ first argument does not satisfy their burden.
Request for Money Damages
Second, in support of their futility argument, Plaintiffs point to the fact that they are seeking
only money damages, and they claim that the “only remedy” to compensate Ethan for the past
instances of restraint is money damages (Dkt 49 at 19, 23-25). The Sixth Circuit has held that
damages are “unavailable through the [IDEA] administrative process.” Covington, 205 F.3d at 918.
The Sixth Circuit has also made clear that a money damages claim alone does not excuse
plaintiffs from exhausting their administrative remedies. Covington, 205 F.3d at 916 (citing Charlie
F. v. Board of Educ., 98 F.3d 989, 991-93 (7th Cir. 1996); Doe v. Alfred, 906 F. Supp. 1092, 1098
(S.D. W.Va. 1995) (noting that “a clear majority of courts hold exhaustion necessary despite the
assertion of a contemporaneous § 1983 claim for damages”); Waterman by Waterman v. MarquetteAlger Intermediate Sch. Dist., 739 F. Supp. 361, 364-66 (W.D. Mich. 1990).
The Sixth Circuit reasoned that the rationales for requiring exhaustion, even when the
plaintiff seeks money damages, are (1) that plaintiffs could otherwise circumvent the IDEA’s
elaborate scheme simply by appending a claim for damages; and (2) that the administrative process
might ultimately afford sufficient relief to the injured party, even if it is not the specific relief that
the plaintiff requested. Covington, 205 F.3d at 916-17 (citing Waterman, 739 F.Supp. at 365, and
Charlie F., 98 F.3d at 991-93); see also FED. R. CIV. P. 54(c) (providing that every final judgment,
other than a default judgment, “should grant the relief to which each party is entitled, even if the
party has not demanded that relief in its pleadings”).
Plaintiffs emphasize that the Covington panel ultimately held, on the facts before it, that
“exhaustion would be futile because money damages, which are unavailable through the
administrative process, are the only remedy capable of redressing [the minor’s] injuries.”
Covington, 205 F.3d at 917-18. However, the facts in this case are not similar to the “unique
circumstances” in Covington and therefore do not merit the same conclusion.
In Covington, the panel highlighted that the injured child had already graduated from school
and his injuries were “wholly in the past.” Here, Ethan is far from his graduation date, and
Plaintiffs’ Complaint alleges injuries for which relief may be presently available. Plaintiffs’
Complaint delineates the psychological stress and injury purportedly caused by the use of restraints
in classrooms (Compl. ¶¶ 55-86). Plaintiffs allege that Ethan suffered injury as a result of his
exclusion from and denial of the benefits of Defendants’ regular educational services and programs
that were offered to other Ross Park Elementary School students (id. ¶¶ 123, 126, 133, 142). The
remediation of Ethan’s injuries and academic deficiencies, if any, is initially best addressed by
educational professionals through the administrative process. The rationales the Covington panel
identified for requiring exhaustion–avoiding circumvention by parties and not affording more than
“sufficient” relief to an injured party–are fully applicable on these facts.
In short, Plaintiffs’ reliance on their claim for money damages does not demonstrate the
futility of the administrative process. “The 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.” Charlie F., 98
F.3d at 992; cf. Booth v. Churner, 532 U.S. 731 (2001) (holding that, under the PLRA, prisoners are
not excused from pursuing administrative remedies simply because they have requested money
damages unavailable under a prison’s administrative procedures).
Purported Administrative Resolution
Third, Plaintiffs argue that futility is demonstrated because “all educational issues were
resolved through the IEP process,” where the school agreed to discontinue the restraint before Ethan
left the district (Dkt 49 at 19).
Plaintiffs commenced the administrative process but dismissed their case before a due
process hearing could be held. Their argument that exhausting their administrative remedies would
be futile because “all was resolved” contradicts the allegations in their Complaint. Plaintiffs allege
that “[t]he evaluation contained in the January 23, 2009, IEP is inaccurate and unrealistic, and the
proposed IEP was developed in order to retaliate against the Holdens for complaining about the
restraint used on Ethan” (Compl. ¶ 51). Plaintiffs allege that “[t]he new IEP proposed severely
restricting Ethan’s educational environment to an extent that he would not be placed in the least
restrictive environment in which he could be educated” (id. ¶ 52). Last, Plaintiffs allege that Ethan
suffered injury as a result of his exclusion from and denial of the benefits of Defendants’ regular
educational services and programs that were offered to other Ross Park Elementary School students
(id. ¶¶ 123, 126, 133, 142). Again, the remediation of Ethan’s injuries and academic deficiencies,
if any, is initially best addressed by educational professionals through the administrative process.
The exhaustion requirement is “more than a matter of form,” and “[i]nsisting on exhaustion forces
parties to take administrative proceedings seriously.” S.E., 544 F.3d at 643 n.10 (quoting P. Gioioso
& Sons, Inc. v. OSHRC, 115 F.3d 100, 104 (1st Cir. 1997)). Plaintiffs’ argument, while artful, does
not support bypassing the administrative process.
Transfer to New School District
Last, in support of their futility argument, Plaintiffs rely on the fact that they moved Ethan
to a new school district, arguing that Mona Shores therefore can no longer provide Ethan with a
remedy (Dkt 49 at 19, 21-22). Plaintiffs again rely heavily on Covington, where the Sixth Circuit
determined exhaustion would be futile, in part, because the injured child had already graduated from
school. 205 F.3d at 917-18.
In S.E., 544 F.3d at 642, the plaintiffs, who had withdrawn their child from the public school
in favor of home-schooling her, also attempted to rely on parts of the Sixth Circuit’s decision in
Covington as supporting their futility argument. However, the Sixth Circuit observed that its
“reasoning in that case also lends support to the argument for exhaustion.” Id. at 642. See also Doe
By & Through Doe v. Smith, 879 F.2d 1340, 1343 (6th Cir. 1989) (observing that the parents’
unilateral act of removing their child from a public school does not mean that administrative
procedures may be bypassed absent a showing that exhaustion of the administrative process would
be futile). The Sixth Circuit determined that the issues raised in the litigation were “best first
addressed by the comprehensive administrative process Congress put in place for resolution of
differences in the educational setting.” S.E., 544 F.3d at 643. Further, in considering whether the
administrative process could still address the child’s alleged injuries, the Sixth Circuit noted that the
process may have in-kind services and resources available to it for assistance of students who have
been aggrieved in some way by the system. Id.
The IDEA requires a school district to provide not only education but also “related services,”
which means “transportation, and such developmental, corrective, and other supportive services
(including speech-language pathology and audiology services, interpreting services, psychological
services, physical and occupational therapy, recreation, including therapeutic recreation, social work
services, school nurse services designed to enable a child with a disability to receive a free
appropriate public education as described in the individualized education program of the child,
counseling services, including rehabilitation counseling, orientation and mobility services, and
medical services, except that such medical services shall be for diagnostic and evaluation purposes
only) as may be required to assist a child with a disability to benefit from special education, and
includes the early identification and assessment of disabling conditions in children.” 29 U.S.C.
Hence, exhaustion of the IDEA processes is justifiable whether the process demonstrates that
adequate remedial services can be provided or whether exhaustion provides information relevant to
claims under other statutes. Charlie F., 98 F.3d at 992. The administrative process facilitates the
compilation of a fully developed record by a factfinder versed in the educational needs of disabled
children–and that record is an invaluable resource for a state or federal court required to adjudicate
a subsequent civil action covering the same terrain. Frazier v. Fairhaven Sch. Comm., 276 F.3d 52,
61 (1st Cir. 2002) (rejecting the plaintiffs’ futility argument, which was based on their daughter’s
graduation from high school). “Fidelity to the IDEA’s exhaustion requirement ensures such an
In sum, the Court decides that Plaintiffs have not borne their burden of demonstrating the
futility of the administrative process. That Plaintiffs have pleaded tort claims, requested money
damages, entered into prior agreements with Defendants, and unilaterally transferred their child to
another school district does not demonstrate that Ethan’s alleged injuries cannot be redressed “to
any degree” by the IDEA’s administrative procedures and remedies. Rather, this Court agrees with
Defendants that exhaustion should be required in order to give the educational agencies the initial
opportunity to ascertain and alleviate the alleged problem or provide information relevant to claims
under other statutes. Allowing Plaintiffs to completely bypass the IDEA’s administrative process
en route to this Court would disrupt the carefully calibrated balance of the Act and instead shift the
burden of fact-finding from the educational specialists to this Court. See Frazier, 276 F.3d at 61.
As Plaintiffs have conceded both that the exhaustion requirement applies to their claims and that the
requirement is unmet, and further failed to demonstrate the futility of the administrative process, the
Court dismisses Plaintiff’s Complaint.
Plaintiffs request that if this Court determines to dismiss their Complaint, that the dismissal
be without prejudice (Dkt 29 at 29-30). Defendants do not address this request in their reply, but
Defendants’ argument, that adjudication must be postponed pending administrative exhaustion,
lends support to the conclusion. Moreover, given this Court’s analysis of Defendants’ motion, this
Court is persuaded that dismissal without prejudice is proper. See, e.g., S.E., 544 F.3d at 643
(holding that the district court correctly dismissed the plaintiff’s Rehabilitation Act claim without
For the foregoing reasons, the Court grants Defendants’ “Motion to Dismiss Plaintiffs’
Complaint and for Summary Judgment Pursuant to FED. R. CIV. P. 12(b)(1) and (6) and 56 Because
Plaintiffs Did Not Exhaust Administrative Remedies Under IDEA and MMSEA” (Dkt 47), and
dismisses Plaintiffs’ Complaint without prejudice. An Order and Judgment consistent with this
Opinion will enter.
Date: September 12, 2011
/s/ Janet T. Neff
JANET T. NEFF
United States District Judge
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