K.S. v. HACKENSACK BOARD OF EDUCATION

Filing 34

OPINION. Signed by Judge John Michael Vazquez on 06/14/2018. (sms)

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

K.S. o/b/o K.S.M.,
Plaintiff
Civil Action No. 162 155 (JMV) (MF)
V.

OPINION

HACKENSACK BOARD OF EDUCATION,
Defendant.

John Michael Vazguez, U.S.D.J.
This case arises out of a challenge to two Administrative Law Judge (“AU”) decisions

regarding the adequacy of the due process provided to student K.S.M. by the Hackensack Board
of Education (the “District” or “Defendant”). K.S. is K.S.M.’s mother.2 Currentlypendingbefore
the Court is Defendant’s motion to dismiss Plaintiffs Second Amended Complaint pursuant to
Fed. R. Civ. P. 12(b)(6). D.E. 31. The Court previously dismissed Plaintiffs Complaint and First
Amended Complaint. The Court reviewed the submissions in support and in opposition,3 and

Plaintiff refers to the Defendant board of education as the “District.” For consistency, the
Court will do the same.
2

K.S. brings this matter on behalf of K.S.M. For ease of reference, the Court generally refers to
K.S. as “Plaintiff.”
Defendant’s brief in support of its motion to dismiss the SAC will be referred to hereinafler as
“Def. Br.” (D.E. 31); Plaintiffs brief in opposition will be referred to hereinafter as “Opp. Br.”
(D.E. 32); Defendant’s reply brief will be referred to hereinafter as “Def. Reply.” (D.E. 33).

considered the motion without oral argument pursuant to fed. R. Civ. P. 78(b) and L. Civ. R.
78.1(b). for the reasons stated below, Defendant’s motion to dismiss is GRANTED.
I.

FACTUAL BACKGROUND4

Plaintiffs Second Amended Complaint (“SAC”) (D.E. 28) reviews K.S.M.’s educational
experience and alleges that Defendant was deficient as to K.S.M.’s educational needs. The SAC
contains similar factual allegations as were included in her Complaint (D.E. 1) and Amended
Complaint (D.E. 14). The SAC also provides somewhat confusing factual allegations

—

including

using, but not defining, technical terms and failing to provide a clear timeline of events. The Court
attempts to describe Plaintiffs allegations in a cohesive manner below.
During both the 2008-09 and 2009-10 school years, K.S.M. failed the seventh grade. SAC
at ¶ 34-35. K.S.M. was evaluated and diagnosed with ADHD in June 2010 and November 2010.
Id. at ¶ 3 8-39. In the 20 10-2011 school year, K.S.M. was placed on a home instruction plan. Id.

at

¶ 41. He remained in home instruction until due process proceedings were complete.

Id. In

April 2011, in lieu of a due process hearing, a settlement agreement was reached between K.S. and
the District (the “Settlement Agreement”). Id. at ¶ 43. During the 201 1-2012 school year, K.S.M.
was placed out-of-district in the Community High School in Teaneck, New Jersey pursuant to the
Settlement Agreement. Id. at ¶ 44.
Plaintiff claims that in March 2012, as a form of retaliation, Defendant failed to hold an
IEP meeting as stipulated in the Settlement Agreement. Id. at

¶ 47. When the meeting was

eventually held in May 2012, it was changed to an eligibility hearing without prior notice. Id. at

¶ 48. Plaintiff claims that the case manager proposed an unsubstantiated change in K.S.’
The factual background is taken from the Plaintiffs’ Second Amended Complaint, D.E. 28.
When reviewing a motion to dismiss, the Court accepts as true all well-pleaded facts in the
complaint. fowler v. UPMC Shadyside, 578 f.3d 203, 210 (3d Cir. 2009).
2

classification. Id. at ¶ 49. Plaintiff filed a due process action in 2012, arguing that Defendant had
failed to comply with the Settlement Agreement. Id. at ¶ 51. Plaintiff also argued that K. S .M. was
being removed from Community High School against the recommendations of the IEP team
member “to display retaliation for K.S.’s filing of relief applications.” Id. at ¶ 52.
In July 2012, a due process hearing was held before Administrative Law Judge (“AU”)
Candido. Id. at ¶ 53. The record of the due process action was closed in October 2012. Id. at

¶

56. Plaintiff states that the hearing concluded that K.S.M.’s “learning was de minimus as a result
of attending [Community High School].” Id. at ¶ 55. K.S.M. returned to Hackensack High School
in September 2012 by order of AU Candido. Id. at ¶ 57.
Plaintiff alleges that “[b]ecause of [Plaintiffs] court filings for relief, past and present.
the [d]istrict responded with retaliation.” Id. at

¶

58. Plaintiff specifically claims that “the

[DJistrict refused to provide appropriate supports and services to [K.S.M.] based on his needs” and
that this “resulted in his failure for two additional consecutive years, for the purposes of retaliation
to impede his educational benefit.” Id. at
professionals

.

.

.

¶

59-60.

Plaintiff adds that Defendant “ignored

who reported what was specifically needed to support K.S.[M.]’s levels of

academic and emotional functioning as an individual.” Id. at ¶ 61.
In March 2013, the District “advised K.S. that they could not educate K.S.M. and they
wanted to send him out of district because Hackensack was not appropriate for him.” Id. at ¶ 65.
The District contacted Community High School to see if K.S.M. could re-enroll. Id. at

¶

66.

Plaintiff claims that this is a clear indication of retaliation because Defendant “previously testified
that K.S.M. had not made progress at [Community High School][.]” Id. at ¶ 67. Community High
School rejected the request for K.S.M to be placed in the school. Id. at

¶

68. During an IEP

meeting in May 2013, Defendant proposed that K.S.M. be placed out-of-district for the upcoming

2013-2014 school year. Id. at

¶ 69-72. K.S. was not told of the meeting until the District called

her during the meeting. Id.
Plaintiff requested a replacement case manager who would be available during summer
2013 in order to coordinate Extended School Year Program (“ESY”) services for K.S.M. Id. at ¶I
73-74. However, K.S.M. was not assigned a case manager during the ESY program, Id. at

¶ 77,

and according to Plaintiff, “the District refused to provide ESY services to K.S.M. as per a
Settlement Agreement and [Plaintiff] was forced to file a complaint with the NJ State Department
of Education,” Id. at ¶ 78-79.
In September 2013, K.S.M. was enrolled in 10th grade in the District because Defendant
had not found an appropriate placement for K.S.M. Id. at ¶J 82-83. On September 11, 2013, there
was a fire in K.S.’s home. Id. atJ 84. Defendant was notified that K.S. and K.S.M. were displaced

¶ 84-85. The District, however, provided no

in Secaucus at K.S.’s sister’s home.

Id. at

transportation services for K.S.M. Id. at

¶ 86. In December 2013, K.S.M. was losing credits for

gym due to lateness and absenteeism, and Plaintiff alleges that Defendant failed to offer

“McKinney Vento relief.” Id. at ¶ 87-88.
In January 2014, K.S. requested that K.S.M. be placed in home instruction until a
placement was found; K.$. also requested an IEP meeting. Id. at ¶ 89, 91. Defendant denied her
requests. Id. at ¶ 90, 92. K.S. then filed an application for emergent relief and due process. Id.
at

¶ 93. AU McGee heard the application and ordered a “hybrid program (part home instruction

and part in school instruction) for K.S.M.” in March 2014. Id. at

¶J 94-96. Plaintiff claims that

“deliberate indifference was displayed when the district refused to comply with AU McGee’s
Order to implement a hybrid program for K.S.M.” Id. at

¶ 97. Afler Plaintiff complained about

the District’s non-compliance, AU McGee held a hearing during which the District stated that it

4

had found an appropriate placement for K.S.M. at Lakeview Learning Center (“Lakeview”). Id.
at ¶J98-102.

Plaintiff claimed Lakeview was not appropriate and retained an independent

psychologist to perform an evaluation of Lakeview.

Id. at ¶fJ103.-l05.

psychologist found that the placement was inappropriate, Id. at

The independent

¶ 106-107, but Defendant

continued to propose Lakeview for K.S.M.’s placement, Id. at ¶ 108.
In June 2014, Plaintiff found a placement for K.S.M. at Sage Day School in Rochelle Park,
New Jersey, Id. at ¶ 110, and K.$.M. attended the ESY program at Sage Day School, Id. at ¶ 111.
Plaintiff claims that the District refused to provide lunch for K.S.M. “for the purposes of
retaliation.” Id. at

¶ 112. In November 2014, according to Plaintiff, the District “displayed

deliberate indifference by intentionally sending notification to Sage Day School to terminate
educational services for K.S.M.” because Defendant claimed he was not a resident of Hackensack.
Id. at ¶1 14-115. Plaintiff claims that the District knew that K.S.M. was a resident of Hackensack.
Id. at ¶ 114. K.S.M. graduated from Sage Day School in June 2016 at 20 years old. Id. at ¶ 1 16.
II. PROCEDURAL HISTORY

On April 18, 2016, Plaintiff filed a Complaint against Defendant. D.E. 1. On March 1,
2017, the Court granted Defendant’s motion to dismiss the Complaint. D.E. 11, 12. Plaintiff filed
a motion for reconsideration on March 29, 2017, D.E. 13, and filed a First Amended Complaint
(“FAC”) on March 31, 2017, D.E. 14. Defendant filed a motion to dismiss the F AC on April 21,
2017. D.E. 18. On June 21, 2017, the Court denied Plaintiffs motion for reconsideration and
granted Defendant’s motion to dismiss the FAC. D.E. 24, 25.

The Court omits from its factual recitation Plaintiffs point-by-point disagreements with
Administrative Law Judge Leland McGee’s decision because the disagreements are not
necessary to analyze the present motion.
5

On August 4, 2017, Plaintiff filed a Second Amended Complaint (“SAC”). D.E. 2$. On
August 31, 2017, Defendant filed the present motion to dismiss Plaintiffs SAC. D.E. 31. Plaintiff
submitted opposition to the motion, D.E. 32, to which Defendant replied, D.E. 33.
III. LEGAL STANDARD
A. Rule 12(b)(1)

A defendant may move to dismiss a claim for lack of subject matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1). Fed.R.Civ.P. 12(b)(1). “A district court has to first
determine, however, whether a Rule 12(b)(1) motion presents a ‘facial’ attack or a ‘factual’ attack
on the claim at issue, because that distinction determines how the pleading must be reviewed.”
Constitution Party ofPa. e. Aichele, 757 f.3d 347, 357 (3d Cir. 2014). A facial attack “concerns

an alleged pleading deficiency whereas a factual attack concerns the actual failure of a plaintiffs
claims to comport factually with the jurisdictional prerequisites.” CNA v. United States, 535 F.3d
132, 139 (3d Cir. 200$) (internal quotation marks omitted).
For a factual attack, “the allegations of the complaint have no presumptive truthfulness and
the court must weigh the evidence presented by the parties.” 3d. of Trs. of Trucking Emps ofP.L
Jersey W4fare Fund, Inc. v. Caliber Auto Transfer, Inc., No. 09-6447, 2010 WL 2521091, at *$

(D.N.J. June 11,2010) (citing McCann v. Newman Irrevocable Tritst, 45$ F.3d 2$1, 290-91 (3d
Cir. 2006)). “An attack on subject matter jurisdiction that is based on a lack of administrative
exhaustion is a factual challenge and not a facial one.” ILL ex rel. IH. v. Egg Harbor Twp. 3d.
of Educ., No. 08-48$, 2009 WL 1322514, at *2 (D.N.J. May 11, 2009). Thus, when reviewing
such a factual attack, the court may consider evidence outside the pleadings. Id. at *3 Regardless
of whether the attack is facial or factual, “the Plaintiff has the burden to prove that the Court has

6

jurisdiction.” 3d. of Trs. of Trucking Emps ofN Jersey Weifare fitnd Inc., 2010 WL 2521091,
at

*$

(citing Fetruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006)).
B. Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss for “failure to state a
claim upon which relief can be granted[.]” for a complaint to survive dismissal under the rule, it
must contain sufficient factual matter to state a claim that is plausible on its face. Ash croft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting BellAti. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim

is facially plausible “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. Further, a
plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery will uncover
proof of her claims.” Connelly v. Lane Const. Corp., $09 F.3d 780, 789 (3d Cir. 2016).

In evaluating the sufficiency of a complaint, district courts must separate the factual and
legal elements. Fowler v. UFMC Shadyside, 57$ f.3d 203, 210-211 (3d Cir. 2009). Restatements
of the elements of a claim are legal conclusions, and therefore, not entitled to a presumption of

truth. Burtch v. Mitherg Factors, Inc., 662 f.3d 212, 224 (3d Cir. 2011). A court, however, “must
accept all of the complaint’s well-pleaded facts as true.” Fowler, 578 F.3d at 210. Even if
plausibly pled, however, a complaint will not withstand a motion to dismiss if the facts alleged do

not state “a legally cognizable cause of action.” Turner v. IF. Morgan Chase & Co., No. 14-7 14$,
2015 WL 12826480, at *2 (D.N.J. Jan. 23, 2015).
IV. ANALYSIS
A. Count One

Count One of Plaintiffs SAC brings claims under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C.

§ 1419. Defendant argues that, just as the Court has found in

7

regards to Plaintiffs Complaint and Amended Complaint, Plaintiff fails to adequately plead that
equitable tolling applies to Plaintiffs re-pleaded IDEA claims. Accordingly, Defendant argues
that Count One should be dismissed pursuant to Rule 12(b)(l).
As the Court has previously explained, the United States Supreme Court and the Court of
Appeals for the Third Circuit have not yet ruled on whether equitable tolling applies to the 90-day
statute of limitations provision under the IDEA. See D.E. 11 at 7; D.E. 23 at 9. Therefore, in its
previous opinions, the Court assumed for the purposes of the motion that equitable tolling did
apply to the IDEA’s statute of limitations.6 A party must plausibly plead allegations to support
equitable tolling and “a district court may dismiss an untimely cause of action if it is plain on the
face of the complaint that the limitations period cannot be tolled.” Menichino v. Citibank, iMA.,
No. 12-0058, 2013 WL 3802451, at *6 (W.D. Pa. July 19, 2013) (stating that “[i]t is not asking
too much to require the Plaintiffs to play their factual cards face-up, now, in seeking to invoke the
extraordinary safety valve of tolling to rescue claims that even they concede are otherwise
untimely”) (citing cases). In fact, “a plaintiffs tolling claim is subject to the Twombty/Iqbal
standard of review” and therefore “the face of the complaint must set forth sufficient factual matter
to allow the court to draw the reasonable inference that discovery will show that the plaintiffs
untimely claim is entitled to tolling.” Id. (internal quotations and citations omitted). Here the
Court again finds that Plaintiff has not put forth plausible allegations to support her claim that
equitable tolling should apply to her IDEA claims in Count One.
In her Opposition, Plaintiff responds with the same arguments that the Court has already
rejected twice. First, Plaintiff argues that she “reminds the court that while represented by White
& Case in 2013 and 2014 she actively and diligently participated in the settlement efforts in Civil

6

As the Court has already noted twice, this presumption is solely for the purpose of this Opinion.
8

Action 13-00609” and that Plaintiff “was informed by White & Case that he was waiting for the
decision of AU McGee before decision [sic] how an [sic] whether to reopen 13-00609.” P1.

Opp.

at 8. Plaintiff also requests that the Court reconsider its ruling that AU McGee’s delay in issuing
a final opinion was an extraordinary circumstance for the purposes of equitable tolling analysis.
P1. Opp. at 8-9. The Court has already rejected these arguments twice. Plaintiff provides no
convincing reason for the Court to change its conclusion.7 Because Plaintiff fails to plausibly
allege facts to support equitable tolling, this Court lacks jurisdiction over Count One pursuant to
Rule 12(b)(1). Accordingly, Count One of Plaintiffs SAC is dismissed with prejudice.
B. Count Two

Count Two of Plaintiffs SAC again brings claims under Section 504 of the Rehabilitation
Act of 1973, 29 U.S.C.

§ 794 (“Section 504”) for “discrimination and retaliation” claims. SAC at

p. 30. Specifically, Plaintiff claims
Defendants have violated Plaintiffs rights under Section 504 of the
and the regulations promulgated pursuant
Rehabilitation Act
par $4 and 34 C.F.R. part 104 by:
thereto, 45 C.F.R.
.

.

.

Plaintiff also attached a “Memorandum of Support of Plaintiffs Second Amended Complaint”
to the SAC. D.E. 2$-i. In the memorandum, Plaintiff argues that equitable tolling is appropriate
because
[Plaintiffi left her fortunes to the advice of counsel and she did not
receive the benefit of the bargain. She engaged diligently in all of
the administrative actions required and expected of apro se parent.
Only in federal court was she let down by counsel which failed to
protect her rights by moving to reopen this matter when settlement
discussions failed. As apro se parent, with counsel, she should not
be expected to monitor whether litigation remains open during
settlement discussions.
D.E. 2$-i at 7. The Court does not know what Plaintiff means by a ‘pro Se” parent. She was
represented by counsel at the time, and she apparently believes that counsel’s performance was
deficient. The Court has already rejected this argument as a basis for equitable tolling as it could
find no authority in support. Plaintiff also fails to provide legai support for her argument. The
Court has been presented no new facts or analysis that persuades it to alter its previous rulings.
9

(a) Intentionally and purposefully preventing KSM from benefiting
from general education services especially academic services[;]
(b) Intentionally Failing to adapt and modify general education
classes to meet the individual needs of KSM[; and]
(c) Intentionally and purposefully refusing to provide KSM with an
equal opportunity to participate in and benefit from Defendant’s
services[.]
SAC atJ 122.
1. Exhaustion
As an initial matter, the Court previously found that the parties did not adequately address
“the requirements necessary for a party to exhaust a Rehabilitation Act claim when she has already
exhausted a substantially similar IDEA claim” and did not reach the exhaustion issue. D.E. 24 at
13. Defendant again argues that Plaintiff failed to exhaust her administrative remedies related to

her Section 504 claims because Plaintiffs “due process petition that was before AU McGee did
not reserve her right to seek damages under Section 504.” Def Br. at 11.
In freed v. Consolidated Rail Corp., 201 F.3d 18$ (3d Cir. 2000), the Third Circuit held
that certain section 504 plaintiffs need not exhaust their administrative remedies. Id. at 194; see
Jeremy H by Hunter v. Mount Lebanon Sch. Dist., 95 F.3d 272, 282 n. 17 (3d Cir. 1996) (“Section

504, as we have just observed, incorporates by reference the remedies, procedures and rights of
Title VI of the Civil Rights Act of 1964, and therefore is not ordinarily subject to an exhaustion
requirement.”); see Kortyna v. Lafayette Coil., 47 F. Supp. 3d 225, 239 (E.D. Pa. 2014) (“In freed

v. Consolidated Rail Corp., the Third Circuit held that section 504 plaintiffs may proceed directly
to court without pursuing administrative remedies.” (quotation omitted)); bitt see RA C.L. ex rel.

K.B. v. Mars Area Sch. Dist., No. 14-1666, 2015 WU 3968343, at

*$

(W.D. Pa. June 30, 2015)

(finding that because a plaintiffs Rehabilitation Act claims were “essentially a repackaging of [the
plaintiffs] IDEA claim,” the claims were subject to the IDEA’s exhaustion requirement). Plaintiff

10

argues, in part, that “by providing Defendant notice in [Plaintiffs] application for ‘due process’
under N.J.A.C. 6A:14-2.7(j) that she intended to file a claim under Section 504 of the RH Act she
satisfied the requirement that that [sic] she exhaust administrative remedies.” P1. Opp. at 6.
However, Plaintiff did not attach any documents to her SAC or to her Opposition. Plaintiff later
cites Freed for the proposition that “[t]here is not [sic] requirement that a party exhaust
administrative remedies when seeking to assert Section 504 claims in a federal action.” P1. Opp
at 10. Because the Court dismisses Count Two without prejudice on other grounds, it does not
reach this issue.8 The Court notes that it is concerned that Plaintiff, again, fails to adequately
address Defendant’s persuasive argument that Plaintiffs Rehabilitation Act Claims are identical
to her IDEA claims, and therefore subject to the exhaustion requirement.9
ii. Discrimination Claim
As the Court previously recognized, to bring a discrimination claim under Section 504, a
Plaintiff must plead “that (1) he or she is ‘disabled’ under the act, (2) he or she is ‘otherwise
qualified’ to participate in school activities, (3) the defendant receives federal financial assistance,
and (4) he or she ‘was excluded from participation in, denied the benefits of, or subject to

8

If the issue is raised again in the future, the Court will need further briefing in light of the
somewhat divergent caselaw as to whether Plaintiffs Rehabilitation Act claim is subject to
exhaustion requirements. Additionally, Plaintiff seemingly bases her argument on various
documents, including a “2014 due process application notice of her intent to file allegation [sic]
under Section 504 of the RHA.” P1. Opp. at 10. However, as noted above, Plaintiff fails to
attach any documents to her SAC or Opposition.
In fact, Plaintiff seems to admit at one point in her Opposition that she did not exhaust her
administrative remedies, before arguing in the next sentence that she did not need to exhaust her
remedies. P1. Opp. at 6 (“Plaintiff has failed to establish subject matter jurisdiction as she...
failed to exhaust administrative remedies. Plaintiff contends that Defendant is wrong in its claim
that Plaintiff failed to exhaust administrative remedies.”). The Court notes that Plaintiffs
briefing in this case lacks serious attention to detail, grammar, or legal citations; it also fails to
adequately address many of Defendant’s arguments.
‘

11

discrimination at, the school.” New Jersey Prot. & Advocacy, Inc. v. New Jersey Dep’t ofEduc.,
563 F. Supp. 2d 474, 491 (D.N.J. 2008) (quotingAndrewli

i

Del. Cotrnty Office ofMentalHealth

& Mental Retardation, 490 F.3d 337, 350 (3d Cir. 2007)). “Where, as in this case, a plaintiff seeks
compensatory damages on a Section 504

.

.

claim, the plaintiff must also prove that the

.

discrimination or denial of benefits at issue was intentional, or at least that the defendant exhibited
deliberate indifference to the underlying discrimination.” WK. v. Pittston Area Sch. Dist., No. 160352, 2017 WL 1316208, at *4 (M.D. Pa. Apr. 10, 2017) (citing Shadie v. Hazieton Area Sch.
Dist., 580 Fed.Appx. 67, 70 (3d Cir. 2014)).

Importantly, ‘[a] plaintiff cannot make out a[

Rehabilitation Act] claim simply by proving (1) that he was denied some service and (2) he is
disabled. The state must have failed to provide the service for the sole reason that the child is
disabled.” Andrewli, 490 F.3d at 350 (emphasis added).
The Court finds that Plaintiff fails to plausibly plead that Defendant refused to provide
services to K.S.M. solely because K.S.M. was disabled. As noted in the Court’s prior rulings,
Plaintiff essentially presumes the fact of discrimination rather than providing facts sufficient to
support such a conclusion. Plaintiff brings basically the same factual allegations as she included
in her Amended Complaint. Specifically, Plaintiff alleges that Defendant (1) “[i]ntentionally and
purposefully prevent[ed] KSM from benefitting from general education services especially
academic services,” (2) “[i]ntentionally [f]ailing to adapt and modify general education classes to
meet the individual needs of KSM,” and (3) “[i]ntentionally and purposefully refusing to provide
KSM with an equal opportunity to participate in and benefit from Defendant’s services.” SAC at

¶1

Among other relief, Plaintiff requests compensatory damages. While Plaintiff has

10

These allegations are substantially identical as to those in the Amended Complaint. See D.E.
24 at 16 (describing the claims brought in Plaintiffs Amended Complaint (D.E. 14)).
12

changed some of her pleadings to include the word “intentionally” multiple times and states in a
conclusory maimer that Defendant displayed “deliberate indifference,” this does not ameliorate all
of the deficiencies previously identified by the Court. In fact, at one point, Plaintiff oddly seems
to admit that she did not plausibly plead her allegations. See P1.

Opp. at 11 (“Scrutiny of Plaintiffs

complaint reveals that it fails to state a claim upon which relief may be granted.”).” For this
reason, Plaintiffs Section 504 claim based on discrimination is dismissed without prejudice.
Plaintiff is provided one more opportunity to plausibly plead her claims.
iii. Retaliation Claim

Plaintiff also appears to bring a Section 504 retaliation claim for the first time in her SAC.
To establish a prima fade Section 504 retaliation claim, “plaintiffs must show (1) that they engaged
in a protected activity, (2) that defendants’ retaliatory action was sufficient to deter a person of
ordinary firmness from exercising his or her rights, and (3) that there was a causal connection
between the protected activity and the retaliatory action.” Hesling v. Seidenberger, 286 F. App’x
773, 774 (3d Cir. 200$) (quotation omitted); see Derrick F. v. Red Lion Area Sc/i. Dist., 586 F.
Supp. 2d 282, 300 (M.D. Pa. 200$); F.N v. Greco, 282 F. Supp. 2d 221, 242 (D.N.J. 2003). “To
establish the requisite causal connection a plaintiff usually must prove either (1) an unusually
suggestive temporal proximity between the protected activity and the allegedly retaliatory action,
or (2) a pattern of antagonism coupled with timing to establish a causal link.” Lauren W. cx rel.
Jean W v. DeFtaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citations omitted). The Third Circuit
has cautioned that “[a] court must be diligent in enforcing these causation requirements because
otherwise a public actor cognizant of the possibility that litigation might be filed against him,

The Court assumes that Plaintiff is possibly quoting the Court’s previous Opinion. However,
like much of Plaintiffs pleadings and briefing, the Court is left to guess what Plaintiff means
when she seemingly admits that she failed to plausibly plead her claims.
13

particularly in his individual capacity, could be chilled from taking action that he deemed
appropriate and, in fact, was appropriate.” Id.
The Court finds that Plaintiffs pleading falls short. At most, Plaintiff claims that “K.S.M.
was being removed from the Community High School [in 2012] against the recommendations
from IEP team member [sic] to display retaliation for K.S.’s filing of relief applications, SAC at ¶
52, and that because of Plaintiffs “court filings for relief, past and present, the [Defendant]

responded with retaliation,” id. at ¶ 5$; see also id. at ¶ 47, 5$, 60, 67, 112. Plaintiff also claims
in a conclusory fashion that Defendant was deliberately indifferent to K.S.M.’s needs. See Id. at

¶ 97,

10$, 115. Plaintiffs allegations as a whole are conclusory. Plaintiff fails to include any

plausible allegations to support her claims ofretaliation or the requisite causal nexus. Accordingly,
Plaintiffs SAC does not adequately plead a valid claim under Section 504 and her retaliation claim
is dismissed without prejudice. Plaintiff is provided one more opportunity to plausibly plead her
claim.
V. CONCLUSION

Defendant’s motion to dismiss Counts One and Two is GRANTED.

Count One is

dismissed with prejudice and Count Two is dismissed withotit prejudice. Plaintiff has thirty (30)
days to file another amended complaint, if she so chooses, consistent with this Opinion. If Plaintiff
fails to file a third amended complaint, the dismissal of the remaining count will be with prejudice.
An appropriate Order accompanies this opinion.

Dated: June 14, 2018

John Michael Vazque)U.).J.

14