K.S. v. HACKENSACK BOARD OF EDUCATION

Filing 44

OPINION. Signed by Judge John Michael Vazquez on 4/1/2019. (ys, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

K.S. o/b/o K.S.M.,
Plaintiff
Civil Action No. 16-2 155 (JMV) (MF)
V.

OPINION

HACKENSACK BOARD OF EDUCATION,
Defendant.

John Michael Vazguez, U.S.D.J.

This case concerns the educational opportunities that Defendant Hackensack Board of
Education provided K.S.M. K.$. is K.S.M.’s mother.’ Currently pending before the Court is
Defendant’s motion to dismiss Plaintiffs Third Amended Complaint (“TAC”) pursuant to Fed. R.
Civ. P. 12(b)(6) and l2(b)(1). D.E. 41. The Court previously dismissed Plaintiffs Complaint,
First Amended Complaint, and Second Amended Complaint. D.E. 11, 12, 24, 25, 34, 35. The
Court reviewed the submissions in support and in opposition,2 and 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.

K.S. brings this matter on behalfofK.S.M. For ease of reference, the Court generally refers to
K.S. as “Plaintiff.”
2

Defendant’s brief in support of its motion to dismiss Plaintffs TAC will be referred to hereinafter
as “Def Br.,” D.E. 41-1; Plaintiffs brief in opposition will be referred to as “P1. Opp’n,” D.E. 42;
Defendant’s reply brief will be referred to as “Def. Reply,” D.E. 43.

I.

BACKGROUND3

The Court included an extensive factual background in its Prior Opinion granting
Defendant’s motion to dismiss Plaintiffs Second Amended Complaint, D.E. 34 (“Prior Op.”) at
2-6, which the Court incorporates by way of reference here.

In its Prior Opinion, the Court

dismissed Plaintiffs Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.

§ 1419,

claim with prejudice, and dismissed Plaintiffs Section 504 of the Rehabilitation Act of 1973, 29
U.S.C.

§ 794, claims for discrimination and retaliation without prejudice allowing Plaintiff “one
—

more opportunity to plausibly plead” these Section 504 claims. Id. at 9, 13, 14 (emphasis in
original). In her Third Amended Complaint (“TAC”), Plaintiff attaches exhibits to substantiate
certain allegations, but does not materially change, or add to, the factual assertions forming her
Section 504 claims. Defendant moved to dismiss Plaintiffs Third Amended Complaint for failure
to establish subject matter jurisdiction under Fed. R. Civ. P. 12(b)(l) and failure to state a claim
under Fed. R. Civ. P. 12(b)(6). D.E. 41. Plaintiff opposed this motion, D.E. 42, and Defendant
replied, D.E. 43.
II. 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)(l). Fed.R.Civ.P. 12(b)(1). “A district court has to first
determine, however, whether a Rule 1 2(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. v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014). A facial attack “concerns

When reviewing a motion to dismiss, the Court accepts as true all well-pleaded facts in the
complaint. fouler v. UPMCShadvside, 578 F.3d 203, 210 (3d Cir. 2009).

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. 2008) (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.” Rd. of Trs. of Trttcking Emps of N.
Jersey Welfare fttnd, Inc. v. Caliber Auto Transfer, Inc., No. 09-6447, 2010 WL 2521091, at *8
(D.N.J. June 11, 2010) (citing McCann v. Newman Irrevocable Trttst, 458 F.3d 281, 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.” 1H. ex ret. 1H. v. Egg Harbor Twp. Rd.
of Educ., No. 08-488, 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
jurisdiction.” 3d. of Trs. of Trucking Emps ofN. Jersey Welfare Fttnd, Inc., 2010 WL 2521091,

at

*$

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

Federal Rule of Civil Procedure I 2(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. Iqbat,
556 U.S. 662, 678 (2009) (quoting RettAtt. Corp. v. Twomblv, 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., 809 f.3d 780, 789 (3d Cir. 2016).

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In evaluating the sufficiency of a complaint, district courts must separate the factual and
legal elements. Fowlerv. UfliCShadyside, 578 F.3d 203, 210-211 (3d Cir. 2009). Restaternents
of the elements of a claim are legal conclusions, and therefore, not entitled to a presumption of
truth. Thtrtch v. Mi/berg 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.” frntler, 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.” Tttrner v. JR. Morgan Chase & Co., No. 14-7 148,
2015 WL 12826480, at *2 (D.N.J. Jan. 23, 2015).
III. ANALYSIS

In her Third Amended Complaint, Plaintiff again brings claims under Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C.
TAC

¶

§

794 (“Section 504”) for “discrimination and retaliation.”

1-2. Specifically, Plaintiff alleges that Defendant: (a) “intentionally and purposefully

prevent{ed] KSM from benefitting from general education services especially academic services”;
(b) “intentionally failed to adapt and modify general education classes to meet the individual needs
of KSM”; and (c) “intentionally and purposefully refused to provide KSM with an equal
opportunity to participate in and benefit from [Defendant]’s educational services.” Id. at 22-23,

¶

2(a)-(c); SAC at ¶ 122(a)-(c).4 The Court notes that these are the same conclusory allegations that
the Court deemed insufficient in its Prior Opinion. Prior Op. at 12.
A. Exhaustion

As an initial matter, retaliation and discrimination asserted under Section 504 of the
Rehabilitation Act “related to the enforcement of rights under the IDEA must be exhausted before

These allegations were also 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)).

‘

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a court may assert subject matter jurisdiction.” Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d
266, 275 (3d Cir. 2014). Both parties agree on this point. Def. Br. at 7; P1. Opp’n at 7. The Court
previously found that Plaintiff failed “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.” Prior Op. at 11. Defendant has again set forth this persuasive argument.
Def. Br. at 6-10.

Plaintiff now argues that “plaintiff KSM’s claim in the Third Amended

Complaint is exempt from the exhaustion requirement because of the ‘implementation’ exception.”
P1. Opp’n at 9. Plaintiff does not, however, dispute that the claims are identical.
The Third Circuit has not yet recognized the “implementation exception” to the IDEA
exhaustion requirement. See Batchetor, 759 F.3d at 278-80. In Batchelor, appellants argued that
“their claims are exempt from the IDEA’s exhaustion requirement because an implementation
exception applies.” Id. at 278. The Third Circuit recognized that “{t]here is no binding appellate
precedent requiring this Court to recognize the implementation exception,” and persuasive
authority is “inapposite.” Id. at 278-79. The parties have not identified, and the Court has not
found, any more recent authority to the contrary. Yet, the Court need not make a determination
on the “implementation exception,” as Plaintiff again fails to plausibly plead her claims.
B. 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
discrimination at, the school.” New Jersey Prot. & Advocacy, Inc. v. New Jersey Dep’t ofEdttc.,

563 F. Supp. 2d 474,491 (D.N.J. 2008) (quotingAndrewli v. Del. County Office ofMental Health

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& AIentat 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. Hazleton Area Sch.
Importantly, ‘[a] plaintiff cannot make out a

Dist., 580 F ed.Appx. 67, 70 (3d Cir. 2014)).

[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 again finds that Plaintiff fails to plausibly plead that Defendant refused to
provide services to K.S.M. solely because K.S.M. was disabled. Plaintiff does not add any material
facts in her Third Amended Complaint to plausibly support this claim. Plaintiff argues that “[t]here
are a number of incidents that illustrate discrimination against Plaintiff,” and lists the following:
(1) Defendant “pre-determined KSM’s placement, in 2012, (notwithstanding Dr. Planer’s findings
and recommendations) by returning him to Hackensack School District without holding an IEP
meeting”; (2) Defendant “ignored” Plaintiffs “signs of school induced stress” from September
2012 through June 2014, evidenced through K.S.’s 120 nurse visits; (3) Defendant did not remove,
correct, or modify alleged “inaccuracies” in K.S.’s disciplinary record when requested by Plaintiff;

(4) Defendant denied Plaintiffs request for a Functional Behavioral Assessment, Behavioral
Intervention Plan, and Neuro-Psychological Evaluation; and (5) Defendant ultimately “decided [it]
could not educate KSM” and “required KSM to pursue an out-of-district placement to have his
psycho social and educational needs met.” P1. Opp’n at 13-15.

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Although Plaintiff may feel wronged by these alleged injustices, Plaintiff still has not
plausibly indicated that these actions were taken for the sole reason that KSM is disabled. Plaintiff
again essentially presumes the fact of discrimination rather than providing facts sufficient to
support such a conclusion. Further, Plaintiff is requesting compensatory damages. TAC at 23.
Yet, Plaintiff fails to provide facts evidencing intent or deliberate indifference as to the
discrimination; conclusory allegations that Defendant’s conduct was “intentional,” id. at 22, ¶ 2(a)(c), is insufficient. For these reasons, Plaintiffs Section 504 claim based on discrimination is
dismissed with prejudice.
C. Retaliation Claim
Plaintiff also brings a Section 504 retaliation claim. TAC at 22-23,

¶

1-2. To establish a

prima fade Section 504 retaliation claim, “plaintiffs must show (I) 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$)
(quotation omitted); see Derrick F. v. Red Lion Area Sch. Dist., 586 F. Supp. 2d 282, 300 (M.D.
Pa. 200$); P.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 ret. 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, particularly in

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his individual capacity, could be chilled from taking action that he deemed appropriate and, in fact,
was appropriate.” Id.
The Court again finds Plaintiffs pleadings to be lacking. Plaintiff did not add any material
facts in her Third Amended Complaint to support the retaliation claim. Plaintiffs sole argument
in support of temporal proximity is that “Defendant forced KSM to return to Hackensack High
School

.

.

.

only three months after July 2012,” when Administrative Law Judge Candido held a

due process hearing requested by Plaintiff. P1. Opp’n at 16. Plaintiff then generally argues that
she engaged in “protected activity” by making certain requests, which Defendant did not comply
with, and then Defendant made the “decision that it could no longer educate KSM.

.

.

in retaliation

for KS’s filing for due process.” P1. Opp’n at 16. These claims do not plausibly establish the
“temporal proximity” or “pattern of antagonism coupled with timing” necessary to plead the
retaliation claim.

Accordingly, Plaintiffs Section 504 retaliation claim is dismissed with

prejudice.
IV. CONCLUSION

In sum, the Court grants Defendant’s motion to dismiss Plaintiffs Third Amended
Complaint, D.E. 41. For the reasons stated, the Court dismisses all of Plaintiffs claims with
prejudice, which means that Plaintiff will not be able to bring another suit against Defendant based
on the facts set forth in her Third Amended Complaint. An appropriate Order accompanies this
Opinion.
Dated: April 1,2019

C
John Michael Vazqi4z, LLS.D.J.

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