Forrester et al v. Carter County School District 19

Filing 37

OPINION AND ORDER by Magistrate Judge Kimberly E. West granting 14 Partial Motion to Dismiss for Lack of Jurisdiction. See Order for further details. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
DARCI FORRESTER and
KEITH FORRESTER, individually;
C.F., a minor child, by and
through his parents and next
friends, Darci Forrester and
Keith Forrester,
Plaintiffs,
v.
INDEPENDENT SCHOOL DISTRICT
NO. 19 OF CARTER COUNTY,
STATE OF OKLAHOMA, a/k/a
Ardmore City Schools,
a political subdivision,
Defendant.

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Case No. CIV-16-131-KEW

OPINION AND ORDER
This matter comes before the Court on Defendant’s Partial
Motion to Dismiss (Docket Entry #14).

Plaintiffs Darci and Keith

Forrester (“Parents”), the parents of the minor child, C.F.,
initiated this action on April 11, 2016 bringing claims both
individually and on behalf of their child.

C.F. is autistic and

has severe receptive expressive language disorder and attends
Defendant.

Parents allege C.F. was secluded by employees of

Defendant by locking him in a closet without notifying them.

C.F.

utilizes a tablet device known as a Talker while he is in school
which assists in his communication.
record

events

attended

by

C.F.

Parents set this device to

during

school

investigate the treatment of their child.

so

they

could

Parents allegedly

learned from the recordings that C.F. was isolated in a “sensory
room” at Defendant and he was subjected to derogatory comments from

Defendant’s personnel.
Parents retained an attorney and, thereafter, allege Darci
Forrester was prohibited from entering the school building without
an escort.

Parents also allege Defendant employed an incompetent

teacher to attend their child who had a criminal conviction and
whose teaching license was suspended by the State of Oklahoma.
Parents

contend

Defendant’s

superintendent

and

assistant

superintendent made a false police report to the Ardmore Police
Department regarding the recordings made by C.F.’s Talker device.
Parents assert the complainants falsely stated they did not learn
of the recording until a date later than previously acknowledged.
Parents also filed an administrative due process complaint
with the Oklahoma State Department of Education pursuant to the
Individuals with Disabilities Act (“IDEA”), seeking redress for the
educational harm to C.F. by Defendant.

At last notice to this

Court, this due process procedure is ongoing.
Parents brought this action asserting several claims - (1)
individually and on behalf of C.F. under Section 504 of the
Rehabilitation Act of 1972, 29 U.S.C. § 794 (“Section 504); (2)
individually and on behalf of C.F. under Title II of the Americans
with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (“ADA”);
(3) individually under the ADA for retaliation; (4) declaratory
judgment requesting a determination that Parents did not violate
Title III of the Omnibus Crime Control and Safe Streets Act; and
(5) declaratory judgment requesting a determination that Parents
did not violate the Oklahoma Security of Communications Act.
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Through the pending Motion, Defendant seeks (1) dismissal of
Parents’ individual claims and on behalf of C.F. under the ADA and
Section 504 for the failure to exhaust administrative remedies
thereby depriving this Court of subject matter jurisdiction; (2)
dismissal of Parents’ individual claims because they lack standing
to bring such claims under the ADA and Section 504; and (3) even if
they do have standing, dismissal of Parents’ claim to recover
emotional distress damages based on the treatment of C.F.
As an initial matter, this Court has conducted multiple
telephonic

status

conferences

with

counsel

in

this

case

to

ascertain the status of the due process proceedings under the IDEA
moving forward independently from this action. It is apparent that
should that proceedings be concluded, the challenge to subject
matter jurisdiction based upon a failure of Parents to exhaust
their administrative remedies will effectively be moot.

At last

notice, the IDEA proceedings continue. As a result, the portion of
the Motion addressing the exhaustion issue will be held in abeyance
pending

notification

of

the

conclusion

of

the

due

process

proceedings.
As

Defendant

indicates,

the

United

States

Supreme

Court

established in the case of Winkelman ex rel. Winkelman v. Parma
City School Dist., 550 U.S. 516 (2007) that the IDEA grants parents
of children protected by the statute “independent, enforceable
rights” and that those rights “which are not limited to certain
procedural

and

reimbursement-related

matters,

encompass

the

entitlement to a free appropriate public education for the parents’
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child.”

Id. at 533.

The court concluded that “[p]arents enjoy

rights under the IDEA; and they are, as a result, entitled to
prosecute IDEA claims on their own behalf.”

Id. at 535.

While acknowledging that the Tenth Circuit Court of Appeals
has not directly addressed the issue, Defendant urges this Court to
limit this expansion of rights to the parents to the IDEA alone and
not Section 504 and the ADA.

For their part, Parents contend that

without the right to bring their claims for Defendant filing a
false police report in retaliation for exercising rights under
Section 504 and the ADA, they have no remedy under the IDEA since
this form of retaliation has no basis in education.
contend

they

have

no

source

of

recovery

of

Parents also

damages

for

the

seclusion, mocking, harassment, and isolation in the “sensory room”
of their minor child.
With no obviously on point circuit level authority to guide
this discussion, this Court turns to our sister district courts.
The case of Link ex rel. Link v. Metropolitan Gov’t of Nashville
and Davidson Co., 2012 WL 4506028 (M.D. Tenn Sept. 28, 2012)
provides persuasive reasoning to the issue.

In Link, the court

rejected the plaintiff’s contention that the reasoning in Winkelman
should extend to claims brought under Section 504 and the ADA. The
fundamental reasoning in Winkelman was a recognized interest of the
parents in education of their child in the context of the IDEA’s
unique statutory scheme. This statutory scheme was at the heart of
the extension of parental rights to bring claims under the IDEA.
No similar statutory scheme is present under either Section 504 or
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the ADA to permit someone in Parents’ role to bring an independent
claim and, therefore, this Court declines to extend the Winkelman
reasoning to the claims asserted by Parents in this action.1
Parents’

argument

that

they

are

an

“aggrieved

person”

authorized to bring an individual claim under Section 504 and the
ADA is unavailing as their claim is inexorably intertwined with the
claims of their child.

Without the alleged violations of their

child’s rights, their claim would not exist.

These rights have

been represented to be “coterminous” with one another and Section
504 and the ADA do not contemplate such a relationship in their
statutory schemes in contrast to the IDEA.

See Hooker v. Dallas

Ind. School Dist., 2010 WL 4025776, at *6 (N.D. Tex. Sept. 13,
2010).

The use of the “aggrieved person” language should not be

used to open a panoply of rights not otherwise addressed in the
statutory scheme of Section 504 and the ADA.
Parents argue that denying them standing to bring these claims
leaves them without redress for the allegedly false police report.
Numerous claims could be contemplated to provide a vehicle for
damages

including

negligence

and

1

intentional

infliction

of

As the Link court cites, numerous courts have declined to extend
the holding in Winkelman as well. M.W. ex rel. Williams v. Avilla R –
XIII Sch. Dist., 2011 WL 3354933, at *2 (W.D.Mo. Aug.3, 2011) (declining
to extend Winkelman to the Rehabilitation Act and ADA because its
analysis was too closely rooted to the text and structure of the IDEA);
Hooker v. Dallas Indep. Sch. Dist., 2010 WL 4025776, at *6 (N.D.Tex.
Sept.13, 2010) (“This court declines to so extend the Winkelman decision
because it is too closely tied to the text and structure of the IDEA to
apply equally to the ADA and the Rehabilitation Act”); D.A. v.
Pleasantville Sch. Dist., 2009 WL 972605, at *8 (D.N.J. Apr.6, 2009)
(refusing to extend Winkelman to the ADA and Rehabilitation Act and
noting that the Supreme Court's “holding arose from an examination of the
overall structure and content of the IDEA”).

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emotional distress, depending upon the precise nature of the facts
uncovered.
Defendant

also

seeks

dismissal

of

the

request

for

a

declaratory judgment under the Oklahoma Security in Communications
Act, asserting the claim is not permitted under Oklahoma law and is
now moot because a state court has ruled that an exemption to the
law applied in this case.

Parents did not respond to the argument

and, therefore, it is deemed confessed.
IT IS THEREFORE ORDERED that Defendant’s Partial Motion to
Dismiss (Docket Entry #14) is hereby GRANTED.

Parents’ individual

claims brought under Section 504 and the ADA

and the declaratory

judgment claim implicating the Oklahoma Security of Communications
Act are hereby DISMISSED.
IT

IS

FURTHER

ORDERED

that

the

portion

of

this

Motion

contending that C.F. must exhaust his administrative remedies under
Section 504 and the ADA is held in ABEYANCE pending further order
of the Court.
IT IS SO ORDERED this 31st day of March, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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