H.C., et al. v. Craven County Board of Education, et al.

Filing 27

ORDER granting 16 Motion to Dismiss for Failure to State a Claim and for Lack of Jurisdiction; granting 18 Motion to Dismiss; and granting 25 Motion for Leave to File. Signed by US District Judge Terrence W. Boyle on 8/14/2017. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 4:16-CV-282-BO

A.H., by and through his parent, H.C., and
H.C., on behalf of herself,
Plaintiffs,

v.

)
)
)
)

)

CRAVEN COUNTY BOARD OF
EDUCATION, CARROLL G. IPOCK, II, Chair,
KELLY L. FORBIS, in her individual and
professional capacity, FANNIE E. RIVERS,
in her individual and professional capacity,
Defendants.

ORDER

)
)
)
)
)
)
)

I

This matter is before the Court on defendants' motions to dismiss pursuant to Rule
12(b)(l) and 12(b)(6) of the Federal Rules of Civil Procedure, [DE 16, 18], and plaintiffs'
\

motion for leave to file. [DE 25]. The matters have been fully briefed and are ripe for ruling. For
the reasons discussed below, the motions to dismiss are granted and the complaint is dismissed.
BACKGROUND
On December 2, 2016, plaintiffs filed a complaint asserting substantive and procedural
violations of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C.

§ 1400 et seq.,

discrimination in violation of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C.
§ 12131 et seq., violations of A.H. 's Fourth and Fourteenth Amendment rights under the United

States Constitution, pursuant to 42 U.S.C. § 1983, violation of Section 504 of the Rehabilitation
Act of 1973 ("Section 504"), 20 U.S.C. § 794, as well as state law tort claims of battery and
intentional and negligent infliction of emotional distress. [DE 1].

On March 16, 2017, defendants Craven County Board of Education ("Board") and Carrol
Ipock filed a motion to dismiss, arguing that the Court lacks subject matter jurisdiction over the
complaint and that the complaint fails to state a claim upon which relief can be granted. [DE 16].
On March 20, defendant Kelly Forbis also filed a motion to dismiss which raised essentially the
same arguments. [DE 18]. Plaintiffs responded, [DE 22, 23], and defendants Board and Ipock
filed a reply, [DE 26]. Plaintiffs also filed a motion for leave to file an Order for Appointment of
Guardian Ad Litem from the Craven County Superior Court with their response. [DE 25].
DISCUSSION
As an initial matter, and for good cause shown, the Court will grant plaintiffs' motion for
leave to file to Order for Appointment of Guardian Ad Litem pursuant to Federal Rule of Civil
Procedure 17(a)(3) and Local Rule of Civil Procedure 17.1.
The Court next turns to defendants' motions to dismiss and will first address the motions
made under Rule 12(b)(l). Federal Rule of Civil Procedure 12(b)(l) authorizes dismissal of a
claim for lack of subject matter jurisdiction. When subject matter jurisdiction is challenged, the
plaintiff has the burden of proving jurisdiction to survive the motion. Evans v. B.F. Perkins Co.,
166 F.3d 642, 647-50 (4th Cir. 1999). "In determining whether jurisdiction exists, the district
court is to regard the pleadings' allegations as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the proceeding to one for summary
judgment." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768
(4th Cir. 1991 ). The movant' s motion to dismiss should be granted if the material jurisdictional
facts are not in dispute and the movant is entitled to prevail as a matter of law. Id.
Defendants first argue that the Court lacks the subject matter jurisdiction to adjudicate
plaintiffs' claims under the IDEA. The IDEA was enacted in part

2

to ensure that all children with disabilities have available to them a free
appropriate public education that emphasizes special education and related
services designed to meet their unique needs and prepare them for further
education, employment, and independent living.
20 U.S.C. § 1400(d)(l)(A). To further this end, IDEA offers federal funds to states in exchange
for a commitment to furnish a "free appropriate public education" ("PAPE") to all children with
certain physical or intellectual disabilities. 20 U.S.C. § 1401(3)(A)(i). A PAPE comprises
"special education and related services" and includes both "instruction" tailored to meet a child's
"unique needs" and sufficient "supportive services" to permit the child to benefit from that
instruction. 20 U.S.C. §§ 1401(9), (26), (29); see Board of Ed of Hendrick Hudson Central

School Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 203 (1982). An eligible child acquires a
"substantive right" to such an education once a state accepts the IDEA's financial assistance.

Smith v. Robinson, 468 U.S. 992, 1010 (1984).
Under the IDEA, an individualized education program ("IEP"), serves as the "primary
vehicle" for providing each child with the promised PAPE. Honig v. Doe, 484 U.S. 305, 311
(1988); 20 U.S.C. § 1414(d). An IEP is crafted by the child's school officials, teachers, and
parents and spells out a personalized plan to meet all of the child's "educational needs." 20
U.S.C. §§ 1414(d)(l)(A)(i)(II)(bb), (d)(l)(B). The IDEA establishes that any disputes involving
the PAPE or IEP are to be resolved through state administrative procedures. 20 U.S.C. § 1415.
A person wishing to file suit under the IDEA in North Carolina must first file a petition
with the Office of Administrative Hearings ("OAH"). See E.L. ex rel. G.L. v. Chapel Hill-

Carrboro Bd. of Educ., 975 P. Supp. 2d 528, 532 (M.D.N.C. 2013) (citing N.C. Gen. Stat.

§ 115C-109.6). A person may then appeal the decision at the OAH level to the State Board of
Education which, "through its Exceptional Children Division, appoints an SRO [State Review
Officer] to review the ALJ's [Administrative Law Judge's] findings appealed and issue an

3

independent decision." Id Following a decision by the SRO, a person has ninety days within
which to file suit in federal court. 20 U.S.C. § 1415(i)(2)(B).
"The district court's jurisdiction under the IDEA is limited to review of the final 'findings
and decision' of the administrative proceedings." 20 U.S.C. § 1415(i)(2)(a). Therefore, prior to
filing an action in United States District Court for claims under the IDEA, a parent must exhaust
her administrative remedies. E.L. ex rel. Larsson v. Chapel Hill-Carrboro Bd. a/Educ., 773 F.3d
509, 514 (4th Cir. 2014). "The IDEA's exhaustion requirement serves the important purpose of
allowing states to use their special expertise to resolve educational disputes," id., and a plaintiffs
failure to exhaust administrative remedies deprives the federal courts of subject matter
jurisdiction over an IDEA claim. See, e.g., MM ex rel. D.M v. School Dist. of Greenville

County, 303 F.3d 523, 536 (4th Cir. 2002).
The complaint alleges that plaintiff "filed a Petition for Contested Case based upon a
dispute regarding the denial of a free anq appropriate public education ("F APE") to A.H. by the
Board." [DE 1 at if 97]. However, the complaint fails to allege that plaintiffs obtained any final
findings or final decision from the state administrative proceedings that this Court could review.
In fact, plaintiffs terminated that state administrative proceeding by voluntarily dismissing the
)-

Petition before it was fully adjudicated. [DE 16-1] Plaintiffs therefore have failed to allege that
they pursued their administrative remedies to completion, and indeed have admitted to failing to
do so.
'

Plaintiffs, while admitting that they have failed to meet IDEA's exhaustion requirement,
argue that they were not required to in these circumstances. "The courts have recognized only
three narrow exceptions to [the IDEA's] exhaustion requirement, each arising largely out of the
legislative history of the IDEA: (1) when the administrative process would have been futile;

4

(2) when a school board failed to give parents proper notification of their administrative rights;
or (3) when administrative exhaustion would have worked severe harm upon a disabled child."

MM, 303 F.3d at 536. The burden of establishing an exception to the exhaustion reqµirement
lies with the plaintiff. Learning Disabilities Ass 'n of Maryland, Inc. v. Board of Educ. of
Baltimore County, 837 F. Supp. 717, 723 (D. Md. 1993). "[T]he Court is not required to find that

Plaintiffs are entitled to an exemption simply because they so state in their complaint. Instead,
Plaintiffs must allege facts that, if proven, would support one of the narrow exceptions to
IDEA's exhaustion requirement; 'they cannot rely on conclusory statements."' Id (internal
citations omitted).
Here, plaintiffs first claim no need to exhaust because they "are challenging policies and
practices of general applicability that are contrary to numerous federal laws." [DE 1 at 2].
Plaintiffs plead no facts to support this conclusory assertion. They have not identified any
challenged policy of general applicability within their complaint, and all of the allegations in the
complaint relate specifically to the individual treatment of A.H. by defendants. Furthermore,
"structuring a complaint as a challenge to policies, rather than as a challenge to an individualized
education program ... , does not suffice to establish entitlement to a waiver of the IDEA's
exhaustion requirement. Plaintiffs must demonstrate in addition that the underlying purposes of
exhaustion would not be furthered by enforcing the requirement." Learning Disabilities Ass 'n,
837 F. Supp. at 724. Here, plaintiffs have not demonstrated or put forth any argument as to why
the underlying purposes of exhaustion, such as allowing states to use their special expertise to
resolve educational disputes or allowing state agencies to correct errors on their own, would not
be furthered if plaintiffs were required to exhaust their administrative remedies.

5

Plaintiffs also argue that exhaustion would be futile in this case because they "cannot
obtain adequate relief through the administrative process," [DE 1 at 2], and because the ALJ "did
not have the statutory authority to provide the relief sought." [DE 22 at 12]. In support of this
argument, plaintiffs cite the ALJ's denial of their Motion for Temporary Restraining Order and
Preliminary Injunction, [DE 22-4], and argue that this demonstrates that the ALJ "did not have
the authority to aid Petitioner/Plaintiff A.H." [DE 22 at 12]. However, plaintiffs' motion before
the ALJ sought only "to protect A.H. from individuals in a situation involving alleged assault
and harm to him." Id. The ALJ's order stated that he was without jurisdiction "to issue the type

of restraining order that Petitioner seeks." Id. (emphasis added). At no time did the ALJ
conclude'that he lacked jurisdiction to consider and order relief on plaintiffs' educational claims
under the IDEA. Furthermore, Counts One through Four asserts claims under the IDEA and seek
remedies available under the IDEA, and nearly identical claims were included in the plaintiffs
state administrative process Petition which was later voluntarily dismissed. [DE 16-1]. That
process, if completed and successful, would have given plaintiffs the relief they now seek in
Counts One through Four, and plaintiffs cannot argue that the administrative process would be
unable to grant them the relief they seek in these claims.
L

Plaintiffs also argue that they are not required to exhaust in these circumstances because
the Board failed to inform H.C. that the investigation performed by attorney Richard Schwartz
would not be independent, and that this failure caused her "to delay the assertion of her son's
right to due process pursuant to the administrative procedures" under the IDEA. [DE 22 at 13].
Although the exhaustion requirement may be excused "when a school board failed to give
parents proper notification of their administrative rights," MM, 303 F.3d at 536, that exception
is inapplicable here. Failing to disclose that an investigation would not be independent is not a

6

failure to notify a plaintiff of her administrative rights, and plaintiffs were not precluded from
pursuing their administrative remedies because they in fact filed a Petition and began the
administrative process. Even if the filing of that Petition was delayed, there have been no facts
alleged to show how such a delay was prejudicial to plaintiffs.
Finally, plaintiffs argue that they are not subject to the exhaustion requirement under the
exception that it "would have worked severe harm upon a disabled child." MAf., 303 F.3d at
536. Plaintiffs generally allege that "the disabled child could have suffered further injury" at the
hands of his teachers. In support, plaintiffs point to alleged "incidents of physical abuse" that
occurred in the school, including the use of physical restraints on A.H. during a crisis without
utilizing proper de-escalation techniques which led to bruising, pushing A.H. into a corner in the
classroom instead of a proper "sensory area" in a different room for reducing anxiety and deescalation, and an incident in which defendant Rivers allegedly failed to restrain A.H. properly
such that he hit his head during class to point his ear started to bleed. [DE 22 at 12-13]. These
purported ongoing injuries and incidents of physical abuse are the methods A.H.' s teachers used
to restrain him, and state administrative law judges have broad authority under the IDEA to
direct appropriate changes to a child's educational program, including the methods used to
accommodate disruptive manifestations of his disabilities. See 20 U.S.C. § 1415(b). While the
ALJ may not have been able to issue a restraining order of the type sought by plaintiffs, the ALJ
would have been able to remedy these alleged injuries by ordering a new IEP or directing that
I

school employees utilize different methods for restraining A.H. Additionally, because these
claims "relate to the discipline or safety of a student, the ability of staff to respond to
manifestations of a student's disability, or maintaining order in the educational setting," then this
Court is precluded from reviewing them until the state agency has issued its final findings and

7

decision as to these claims. Z.G. v. Pamlico Cty. Pub. Sch. Bd. of Educ., No. 4:15-CV-183-D,
2017 WL 477771, at *7 (E.D.N.C. Feb. 3, 2017). Finally, and as another court has explained,
mere allegations by plaintiffs of irreversible harm will not be enough to excuse
the completion of administrative proceedings. Plaintiffs must provide a sufficient
preliminary showing that the child will suffer serious and irreversible mental or
physical damage (e.g., irremediable intellectual regression) before the
administrative proce,ss may be circumvented. In order to meet that threshold,
plaintiffs must provide affidavits from competent professionals along with other
hard evidence that the child faces irreversible damage if the relief is not granted.
Komninos by Komninos v. Upper Saddle River Bd. of Educ., 13F.3d 775, 779 (3d Cir. 1994); see
also Rose v. Yeaw, 214 F.3d 206, 212 (1st Cir. 2000). Plaintiffs have not offered any evidence to

show how exhaustion would have worked irreversible and severe harm upon the child, and
certainly have not met this burden to show such harm through the type of hard evidence
envisioned by the Komninos case.
Because none of the exceptions to the exhaustion requirement are applicable here,
plaintiffs' failure to exhaust deprives this Court of jurisdiction to adjudicate plaintiffs' claims
under IDEA, and they therefore must be dismissed for lack of subject matter jurisdiction.
Defendants also argue in their motions to dismiss that plaintiffs' claims under the ADA
and Section 504 must likewi.se be dismissed for lack of subject matter jurisdiction for failure to
exhaust. Section 1415(!) of the IDEA states that if a suit brought under another law "seek[s]
relief that is also available under" the IDEA, the plaintiff must first exhaust the IDEA's
administrative procedures. 20 U.S.C. § 1415(!). As the Supreme Court has recently held in
interpreting Section 1415(!), a plaintiff is required to exhaust the IDEA's administrative
remedies before filing a suit under Section 504 or the ADA 'Yhen the "gravamen" or essence of a
plaintiffs suit concerns the denial of a FAPE. Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 752,
755 (2017) ("A court deciding whether§ 1415(!) applies must therefore examine whether a

8

plaintiffs complaint-the principal instrument by which she describes her case-seeks relief for
the denial of an appropriate education."). The Fry decision therefore mandates that this Court
examine the substance of plaintiffs' claims and directs that plaintiffs not be permitted to evade the IDEA's exhaustion requirement by "artful pleading." Fry, 137 S. Ct. at_ 755.
The Supreme Court offered direction for determining whether the gravamen of a
complaint against a school or board concerns the denial of a FAPE or instead addresses some
other form of disability-based discrimination. There are two questions the courts can ask when
assessing the problematic claim:
First, could the plaintiff have brought essentially the same claim if the alleged
conduct had occurred at a public facility that was not a school-say, a public
theater or library? And second, could an adult at the school-say, an employee or
visitor-have pressed essentially the same grievance? When the answer to those
questions is yes, a complaint that does not expressly allege the denial of a FAPE
is also unlikely to be truly about that subject; after all, in those other situations
there is no FAPE obligation and yet the same basic suit could go forward. But
when the answer is no, then the complaint probably does concern a FAPE, even if
it does not explicitly say so; for the FAPE requirement is all that explains why
only a child in the school setting (not an adult in that setting or a child in some
other) has a viable claim.
Fry, 137 S. Ct. at 756. As discussed in further detail below, the answer to these two hypothetical

questions in this case is no. Each of plaintiffs' claims under federal law are viable only because
they concern a child in a school setting and the alleged deprivation of an appropriate education,
and thus plaintiffs' ADA and Section 504 claims are inextricably tied to their IDEA claims.
- To support their claims under the ADA and Section 504, plaintiffs generally present two
alleged injuries: first, that A.H. was subjected to a "hostile education environment," and second
that he was denied equal access to educational services. As to this second injury which alleges
that defendants denied A.H. equal access to educational services, plaintiffs first contend that they
were not informed of independent living goals in A.H.' s IEP that would deny him "substantially

9

similar treatment at meal time as his peers." [DE 1 at~ 17]. This allegation arises from an
incident in which defendant Forbis insisted that A.H. open his own milk carton at lunch which
led to anxiety and distress for A.H. Id.

at~

differently than his peers when he was

d~nied

16. Plaintiffs also contend that A.H. was treated
opportunities to participate in activities like his

peers, such as Special Olympics, checking out library books, and eating in the cafeteria. Id.

at~~.

74, 88. Although pled as injuries under the ADA and Section 504, these claims are inextricably
tied to plaintiffs' claims under the IDEA. According to the complaint, the development of
independent living skills goals or objectives was intended to be a part of A.H.'s IEP, thus
plaintiffs' claim that they were injured when not informed of such goals amounts to a challenge
to the IEP and is therefore a claim under the IDEA. Second, the complaint admits as much when
it asserts that the lunchtime incident denied A.H. a FAPE, id. at ~ 16, and when it states that the
denial of equal opportunities to participate in activities denied A.H. "a free appropriate public
education." Id.

at~

74. By the complaint's own terms, these claims are inextricably tied to the

IDEA claims and seek the same relief available under that statute.
As to the allegations relating to plaintiffs' claims of a hostile education environment,
these involve incidents in which A.H.'s teachers used or failed to use restraints and which
allegedly resulted in injuries to A.H. According to the complaint, A.H. became easily agitated,
frustrated and defiant and engaged in sometimes self-injurious behaviors as a manifestation of
his disability. [DE 1 at~~ 21-22, 28, 31, 33-34, 71-73, 75, 77, 81, 94]. A.H. 's IEP's were thus
developed to include a crisis plan and de-escalation techniques which included the use of
restraints. Id. at ~~ 15, 22, 28, 71-72. Plaintiffs assert that the A.H.' s IEPs were developed
against H.C.'s wishes that A.H. not be restrained "except where exigent circumstances existed,"

Id.

at~~

15, 22, that the Board did not offer a "reasonable alternative" to placing A.H. back in

10

defendant Forbis' classroom and failed to develop a new IEP that would meet A.H.'s
"specialized instructional needs and his newly formed anxiety and fear of Ms. Forbis" after an
incident in which he was restrained, id. at iii! 62-63, that defendant Rivers allegedly violated
A.H. 's IEP and Crisis Intervention Plan ("CIP") by wearing padded arm protectors, which scared
A.H. and increased his agitation and anxiety, id. at ii 71, and finally that A.H. 's teachers did not
do enough to restrain A.H. or otherwise prevent him from injuring himself. Id. at iii! 77-80.
These acts arise directly out of the defendants' alleged flawed attempts to address-or
failures to address-A.H. 's severe disabilities in accordance with his IEP. They are thus
inextricably tied to plaintiffs' claims under the IDEA, namely the claims that A.H.' s access to an
appropriate education was denied due to defendants' failure to implement or create an IEP that
addressed A.H.' s disabilities or moments of crisis properly. The proper recourse for these
disagreements with the way an IEP is written or implemented is to first file a petition before the
state and pursue those state administrative remedies. Plaintiffs failed to do so and therefore failed
to exhaust their remedies.
The facts alleged in support of the plaintiffs' claims under the IDEA are virtually
indistinguishable from the facts alleged in support of their claims under the ADA and Section
504, and the facts alleged in this complaint are practically identical to the facts alleged in the
plaintiffs' prior due process Petition filed pursuant to the IDEA. "A further sign that the
gravamen of a suit is the denial of a FAPE can emerge from the history of the proceedings. In
particular, a court may consider that a plaintiff has previously invoked the IDEA's formal
procedures to handle the dispute-thus starting to exhaust the Act's remedies before switching
midstream." Fry, 137 S. Ct. at 757. As before, this guidance from the Supreme Court signifies
that the essence of the instant suit is to seek redress for the denial of a FAPE because plaintiffs

11

previously sought redress through state procedures and sought relief under IDEA, and now have
pled virtually the same facts and claims in the instant suit.
A final sign that plaintiffs' claims under the ADA and Section 504 are subject to the
exhaustion requirement comes from the fact that the remedies plaintiffs now seek under those
claims are remedies which would be available to them under IDEA. The declaratory and
injunctive relief sought by plaintiffs, as well as reimbursement, compensatory education and
services, and prospective placement, are all forms of relief available under the IDEA. While the
additional claims for money damages are usually not available under the IDEA, Sellers by
Sellers v. Sch. Bd. of City of Mannassas, Va., 141 F .3d 524, 528 (4th Cir. 1998), plaintiffs are not
allowed "to circumvent the exhaustion requirement of the IDEA by an inclusion of a request for
compensatory damages." A. W ex rel. Wilson v. Fairfax County Sch. Bd., 548 F.Supp.2d 219,
225 (E.D. Va. 2008); see also Wright v. Carroll County Bd. of Educ., No. 11-CV-3103, 2012
WL 1901380, at *7 (D. Md. May 24, 2012) (collecting cases).
The Court therefore concludes that the gravamen of plaintiffs' claims under the ADA and
Section 504 concern the alleged denial of a FAPE, and therefore finds that these claims are
subject to IDEA's exhaustion requirements and must also be dismissed.
The Court next turns to Count Five which is brought under 42 U.S.C. § 1983 and alleges
a violation of A.H. 's federal constitutional rights by defendants Forbis and Rivers. Specifically,
plaintiffs allege that defendants Forbis and Rivers violated A.H.' s rights under the Fourth
Amendment to the United States Constitution by "utilizing unjustified, unreasonable, and
excessive force against him" when they were A.H.' s teachers, and .also that their "conduct in
subjecting A.H. to severe and brutal physical abuse violated A.H. 's rights under the due process
clause of the Fourteenth Amendment." [DE 1 at~~ 142-44]. Defendant Forbis filed a motion to

12

dismiss arguing that, like plaintiffs' claims under the ADA and Section 504, this claim must also
be dismissed for a failure to meet IDEA's exhaustion requirement.
Although Fry specifically discussed exhaustion under IDEA for claims brought under the
ADA or Rehabilitation Act, it is clear that the same exhaustion requirement applies to claims
under Section 1983 when such claims seek relief that is also available under the IDEA. The
statute states in relevant part that,
Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures,
and remedies available under the Constitution ... , except that before the filing of
a civil action under such laws seeking relief that is also available under [the
IDEA], the [IDEA's administrative procedures] shall be exhausted to the same
extent as would be required had the action been brought under [the IDEA].
20 U.S.C. § 1415(!) (emphasis added).
Therefore, the Court must again as whether the gravamen of this Section 1983 claim
concerns· the denial of a FAPE. As before, the Court concludes that it does because the
constitutional injuries alleged in the complaint arise directly out of the defendants' allegedly
flawed attempts to address A.H.' s severe disabilities in accordance with his IEP. They are thus
inextricably tied to plaintiffs' claims under the IDEA, namely that A.H.'s access to an
appropriate education was denied due to defendants' failure to implement or create an IEP that
addressed A.H.' s disabilities or moments of crisis properly.
Specifically, in Count One, brought under IDEA, plaintiffs allege that defendants
"improperly used physical restraint against A.H. not as a last resort, but a first response instead
of using other less invasive de-escalating techniques contained in the IEP." [DE 1 at if 123]. This
was one of a number of ways in which plaintiffs contend that the Board "failed to implement or
incorporate material and/or appropriate elements of A.H.'s IEP." Id. Thus, the constitutional
claims against defendants Forbis and Rivers which allege improper use of physical restraint are

13

based upon the same conduct that makes up a specific component of plaintiffs' FAPE claim.
Plaintiffs' constitutional claims therefore are not materially distinguishable from their claims
under IDEA and are inextricably tied to those claims. The proper recourse for these
disagreements with the way an IEP is written or implemented is to first file a petition before the
state and pursue those state administrative remedies, which plaintiffs failed to pursue to
completion.
~J

Moreover, the remedies sought under Count Five are remedies that are also available
under IDEA. Plaintiffs seek a declaratory judgment that the defendant Board failed to properly
implement the IEP and failed to use physical restraint as a last resort. Plaintiffs also seek
compensatory education services, reimbursement for expenses, and injunctive relief enjoining
"Defendant Board and its employees from using restraint against A.H. as a means of first
response to his disabling condition." These forms of relief are all expressly countenanced in and
available to plaintiffs under the IDEA.
Thus, because Count Five seeks remedies available under the IDEA and concern injuries
related to the alleged denial of a PAPE, this claim is also subject to IDEA's exhaustion
requirement and thus must also be dismissed.
Finally, plaintiffs brought several state law claims in Counts Eight through Eleven
alleging battery, intentional infliction of emotional distress, and negligent infliction of emotional
distress. Because plaintiffs' failure to exhaust their federal claims deprives this Court of subject
matter jurisdiction over the claims over which the Court has original jurisdiction, the Court is
also required to dismiss these state law claims over which the Court only exercises supplemental
jurisdiction. See Crosby v. City of Gastonia, 635 F.3d 634, 644 (4th Cir. 2011).

14

For these reasons, the complaint must be dismissed in its entirety and the matter closed.
,Because it lacks jurisdiction over the complaint, the Court need not address defendants'

o~her

arguments in support of their motions to dismiss.
CONCLUSION
In sum, plaintiffs' motion for leave to file [DE 25] is GRANTED and defendants'
motions to dismiss [DE 16, 18] are GRANTED. The Clerk is DIRECTED to close the case.

SO ORDERED, this

l!fday of August, 2017.

~~~u. o~LL..h
; RRENCE W. BOYLE
~1 -l
UNITED STATES DISTRICT JUDGE

15