B.K. et al v. Lake Oswego School District et al
Filing
42
OPINION AND ORDER. Based on the foregoing, I ADOPT Judge Jelderks' Findings and Recommendation (#37) as MODIFIED above. Accordingly, LOSD's motion to dismiss Counts II - IV for failure to exhaust (#11-1) is GRANTED as to Count IV, and GRANTED in part and DENIED in part as to Counts II and III. LOSD's motion to dismiss as time-barred (#11-1) is DENIED to the extent that those allegations relate to plaintiffs' retaliation claims under the ADA and Section 504, but oth erwise GRANTED. LOSD's motion to strike (#11-2) is DENIED, and motion to stay (#11-3) is GRANTED. Defendant Attorneys' motion to dismiss (#9) is GRANTED. Plaintiffs' amended motion to consolidate (#18) is DENIED. IT IS SO ORDERED. Signed on 03/12/2012 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
B.K., by and through his
parents, ROBERT KELLER and
CYNTHIA MOHIUDDIN, and ROBERT
KELLER and CYNTHIA MOHIUDDIN
individually,
Plaintiffs,
v.
LAKE OSWEGO SCHOOL DISTRICT,
an Oregon School District, and
RICHARD COHN-LEE, AND ANDREA
HUNGERFORD, individually,
Defendants.
KEVIN C. BRAGUE
The Brague Law Firm
12972 S.W. Tearose Way
Tigard, OR 97223
(503) 352-4664
///
///
///
1
- OPINION AND ORDER
3:11-cv-278-JE
OPINION AND ORDER
MANDY G. LEIGH
JAY T. JAMBECK
Leigh Law Group
870 Market Street, Ste 1161
San Francisco, CA 94102
(415) 399-9155
Attorneys for Plaintiffs
RICHARD G. COHN-LEE
The Hungerford Law Firm
P.O. Box 3010
Oregon City, OR 97045
Attorney for Defendant Lake Oswego
School District
PETER R. MERSEREAU
Mersereau and Shannon, LLP
1 S.W. Columbia St., Ste. 1600
Portland, OR 97258
Attorney for Defendants Richard
Cohn-Lee and Andrea Hungerford
MARSH, Judge
Magistrate
Judge
John
Jelderks
Recommendation on October 24, 2011.
filed
his
Findings
and
The matter is now before me
pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed. R. Civ. P. 72(b).
When a party objects to any portion of the Magistrate's
Findings and Recommendation, the district court must make a de novo
determination of that portion of the Magistrate's report.
U.S.C.
§
636(b)(1)(B);
McDonnell
Douglas
Corp.
v.
See 28
Commodore
Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); accord
Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009); United States
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc).
///
2
- OPINION AND ORDER
Plaintiffs have timely filed objections.
given the file of this case a de novo review.
Therefore, I have
I ADOPT the Findings
and Recommendation (#37), as modified below.1
BACKGROUND
Plaintiffs Robert Keller and Cynthia Mohiuddin bring this
action individually, and on behalf of their son, B.K., alleging
that the Lake Oswego School District (LOSD) failed to comply with
procedural and substantive requirements of the Individuals with
Disabilities Education Improvement Act (IDEA), 20 U.S.C. § 1400 et
seq.; Title II of the Americans with Disabilities Act (ADA), 42
U.S.C. § 12131 et seq.; and Section 504 of the Rehabilitation Act,
29 U.S.C. § 794.
attorneys
The overarching issue is whether LOSD and/or its
violated
the
above
statutes
during
the
course
of
administrative proceedings that led to LOSD’s decision that B.K.’s
behavior was not a manifestation of a disability within the meaning
of the IDEA (resulting in B.K.’s expulsion from public school).
Plaintiffs allege that, rather than comply with the law, defendants
took retaliatory and discriminatory actions against plaintiffs.
///
1
When a party does not object to portions of the
Magistrate’s Findings and Recommendation, this court is relieved
of its obligation to review the record de novo as to those
portions of the Findings and Recommendation. Reyna-Tapia, 328
F.3d at 1121; see also United States v. Bernhardt, 840 F.2d 1441,
1444 (9th Cir. 1988). Having reviewed the legal principles de
novo as to those portions of the Findings and Recommendation to
which plaintiffs do not object, the Court does not find any
error.
3
- OPINION AND ORDER
DISCUSSION
I.
Defendants Cohn-Lee and Hungerford’s Motion to Dismiss
A.
Background.
Defendant Attorneys Cohn-Lee and Hungerford represented LOSD
during the course of the administrative proceedings.
In Claims II
and IV, plaintiffs allege that Cohn-Lee and Hungerford retaliated,
coerced, intimidated and interfered with plaintiffs’ rights to
participate in Individualized Education Program (IEP) meetings and
the decision-making process.
Defendant Attorneys moved under Fed.
R. Civ. P. 12(b)(6) to dismiss the claims against them on the basis
that (1) there is no individual liability for retaliation under
either the ADA, Section 504 of the Rehabilitation Act, or the IDEA;
and (2) an attorney-client litigation privilege and/or a common law
immunity shield them from liability.
Judge
individual
Jelderks
discussed,
liability
Rehabilitation
Act,
for
and
but
retaliation
the
IDEA.
did
not
exists
Instead,
decide,
under
Judge
whether
the
ADA,
Jelderks
concluded that public policy warrants “an extension of the federal
common law concept of immunity to this specific situation.”
at 28.
F & R
Plaintiffs object to this recommendation, arguing that
individual liability under the ADA exists for retaliation in the
provision of public services; and there is no authority to support
a “federal common law litigation privilege.”
///
4
- OPINION AND ORDER
I decline to adopt Judge Jelderks’ extension of a common law
immunity or state privilege based upon public policy. See Kimes v.
Stone, 84 F.3d 1121, 1128 (9th Cir. 1996) (holding that state
litigation privilege does not bar civil rights claims based on
federal law, and that there is no common law immunity to shield
non-governmental attorneys); Pardi v. Kaiser Foundation Hosp., 389
F.3d 840, 851 (9th Cir. 2004) (applying Kimes to ADA context); see
also Steffes v. Stepan Co., 144 F.3d 1070, 1074-75 (7th Cir. 1998)
(same).
Act,
However, because I conclude that the ADA, Rehabilitation
and
the
IDEA
do
not
create
individual
liability
for
retaliatory conduct in the public services context, I adopt Judge
Jelderks’ recommendation that defendants Cohn-Lee and Hungerford’s
motion to dismiss be granted.
B.
Statutory Analysis.
Section 12203(a) of the ADA provides that “[n]o person shall
discriminate against any individual because such individual has
opposed any act or practice made unlawful by this chapter.”
The
remedial portion of the statute (§ 12203(c)), provides that the
remedies and procedures available under Subchapter I (employment
discrimination), Subchapter II (public services), and Subchapter
III (public accommodations) of the ADA shall be available to
aggrieved persons for violations of § 12203(a).
Relying primarily on the reasoning in Shotz v. City of
Plantation, Fla., 344 F.3d 1161 (11th Cir. 2003), plaintiffs argue
5
- OPINION AND ORDER
that an individual may be sued, in his or her personal capacity,
for a violation of § 12203(a).
Many courts have grappled with the
difficult question of whether an individual may be held personally
liable under § 12203(a) for retaliatory conduct in the public
services context. The issue involves a multi-layered analysis that
begins by looking at the remedial provision of § 12203(c), which,
in turn, incorporates the remedial provisions of Subchapters I, II,
or III (depending upon whether the retaliation arose in the
employment, public services, or public accommodation context).
In
the public services context, Title II incorporates the remedies
provided in the Rehabilitation Act (29 U.S.C. § 794a) which, in
turns, incorporates remedial provisions of the Civil Rights Act of
1964
(42
U.S.C.
§
2000e),
none
of
which
provides
remedies
recoverable from a private individual in his personal capacity.
See Shotz, 344 F.3d at 1169-70 & n.10.
In deciding whether this web of statutes creates individual
liability for retaliation in the public services context, I agree
with the lengthy statutory analysis done by the district court in
N.T. v. Espanola Public Schools, 2005 WL 5840479 *10-*14 (D.N.M.
May 20, 2005).
In that case, the district court concluded that,
despite the use of the term “person” in § 12203(a), a cause of
action under the ADA for retaliation in the public services context
does not lie against a private individual in his or her personal
capacity:
6
- OPINION AND ORDER
In the context of public services, [§ 12203(c)]
simply incorporates the remedies and procedures that
would be available under Title II of the ADA in this
context. As noted above, the remedies and procedures
available under Title II of the ADA are a lawsuit against
either a “public entity,” or a “head of department,
agency, or unit sued in his official capacity,” rather
than a lawsuit against an individual in his or her
personal capacity.
Thus, if 42 U.S.C. § 12203(c)
determines the scope of liability for ADA retaliation
claims, then the Court would simply follow the general
rule applied in the context of litigation over public
services under Title II of the ADA, which does not extend
liability to individuals sued in their personal
capacities.
The Shotz court chose a more complicated route and
arrived at the conclusion that the ADA’s retaliation
provision was intended to go further than the Spending
Clause legislation referenced in Title II and could
provide an independent basis for imposing liability on
persons in their individual capacity. This choice runs
contrary to the reasoning of the majority of other courts
that have addressed the issue because it unties the ADA’s
retaliation provision from the specific remedies and
procedures provided elsewhere in the statute.
2005
WL
5840479
*11-*12
(citations
omitted);
see
also
Bertolotti v. Prunty, 2010 WL 3743866 *4 (S.D.W.Va. Sept. 21,
2010); Stassart v. Lakeside Joint School Dist., 2009 WL 3188244 *13
(N.D.Cal. Sept. 29, 2009); Brenneise v. San Diego Unified School
Dist., 2009 WL 1308757 *8 (S.D.Cal. May 8, 2009); Warren v. Goord,
2006 WL 1582385 *18-*20 (W.D.N.Y. May 26, 2006); McNulty v. Bd. of
Educ. Of Calvert Cty., 2004 WL 1554401 *5 (D.Md. July 8, 2004); Key
v. Grayson, 163 F.Supp.2d 697, 703-04 (E.D.Mich. 2001); Baird ex
rel. Baird v. Rose, 192 F.3d 462, 471-72 (4th Cir. 1999); cf
Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1268 (9th Cir.
2009)(declining to take “convoluted analytical path” to conclude
7
- OPINION AND ORDER
that punitive and compensatory damages are available for ADA
retaliation claim in employment context); but see Atlanta Indep.
Sch. Syst. v. S.F., 740 F.Supp.2d 1335, 1349-50 (N.D.Ga. 2010);
Datto v. Harrison, 664 F.Supp.2d 472, 491 (E.D.Pa. 2009); Alston v.
District of Columbia, 561 F.Supp.2d 29, 41 (D.D.C. 2008).
The same reasoning applies to a retaliation claim under the
Rehabilitation Act.
5840479 *9 & *14.
N.T. v. Espanola Public Schools, 2005 WL
Similarly, I conclude that there is no cause of
action for retaliation against a private individual in his or her
individual capacity under the IDEA.
Id. at *9; Koehler v. Juniata
County School Dist., 2008 WL 1787632 *7 (M.D.Pa. Apr. 17, 2008);
see also C.O. v. Portland Public Schools, 3:05-cv-558, Op. & Order
(#76) at 9 (Nov. 7, 2006) (finding “no indication that [the IDEA]
provides for a cause of action based on retaliation by one private
individual against another”).
For these reasons, I adopt Judge
Jelderks’ recommendation that defendants Cohn-Lee and Hungerford’s
motion to dismiss be granted.
II.
LOSD’S Motion to Dismiss.
LOSD filed a motion to dismiss on the basis that the complaint
contains “allegations and claims” that are subject to dismissal for
failure to exhaust administrative remedies.
Additionally, LOSD
moved to stay this proceeding pending resolution of B.K. v. Lake
Oswego School Dist., 3:10-cv-469-JE.
///
8
- OPINION AND ORDER
Relying on Payne v. Peninsula School Dist., 653 F.3d 863 (9th
Cir. 2011), cert. denied, 2012 WL 538336 (Feb. 21, 2012), Judge
Jelderks recommended the dismissal of Counts II and III (except as
to the retaliation claims predicated upon the issuance of the April
2009 “Prior Written Notice” (PWN)), and Count IV, on the basis that
plaintiffs were required to administratively exhaust these claims
and failed to do so.2
Plaintiffs object to Judge Jelderks’
conclusion that Count II required exhaustion, and that plaintiffs
failed to exhaust their administrative remedies as to Counts II and
III.
In
Payne,
the
Ninth
Circuit
addressed
en
banc
the
circumstances under which the IDEA’s exhaustion requirement bars
non-IDEA federal or state law claims.
The court held that “the
IDEA’s exhaustion provision applies only in cases where the relief
sought by a plaintiff in the pleadings is available under the
IDEA.”
653 F.3d at 871.
In determining whether exhaustion is
required, the litigant’s artful pleading does not control.
879.
Id. at
Rather, if a claim arises only as a result of a denial of a
free appropriate public education (FAPE), whether under the IDEA or
2
In Payne, the Ninth Circuit held that the exhaustion
requirement of the IDEA is not jurisdictional. 653 F.3d at 86770. Based upon this ruling, LOSD’s motion to dismiss is properly
treated as an unenumerated 12(b) motion. Id. at 881; Brown v.
Valoff, 422 F.3d 926, 939 n.13 (9th Cir. 2005); Wyatt v. Terhune,
315 F.3d 1108, 1119-20 (9th Cir. 2003). Accordingly, the court
may look beyond the pleadings and decide disputed issues of fact.
Id.
9
- OPINION AND ORDER
the Rehabilitation Act, exhaustion is clearly required no matter
how the claim is pled.
Id. at 880.
In the instant case, I agree with Judge Jelderks’ conclusion
that plaintiffs’ counts II and III, while pled under the ADA and
Rehabilitation Act, arise out of the IDEA administrative review
process and ultimately seek compensation for the denial of the
procedural protections guaranteed by the IDEA and/or a FAPE.
other
words,
plaintiffs’
requested
equivalent of an IDEA remedy.
relief
is
the
In
functional
See Payne, 653 F.3d at 875 & 883.
Amendment of plaintiffs’ complaint would not alter this conclusion
because “to the extent that a request for money damages functions
as a substitute for relief under the IDEA, a plaintiff cannot
escape the exhaustion requirement simply by limiting her prayer for
relief to such damages.”
Accordingly,
I
Id. at 877.
adopt
Judge
Jelderks’
exhaustion was required as to Count II.
conclusion
that
Similarly, I adopt his
conclusion that plaintiffs failed to exhaust their administrative
remedies as to Counts II and III, with the exception of the
retaliation claims predicated upon the issuance of the April 2009
PWN.
III. LOSD’s Motion to Stay & Plaintiffs’ Motion to Consolidate.
LOSD moved to stay this case pending the outcome of its
companion case (B.K. et al. v. Lake Oswego, 3:10-cv-469-JE), in
order to simplify and streamline resolution of the issues in this
10 - OPINION AND ORDER
case.
Plaintiffs opposed the motion, urging Judge Jelderks to
consolidate the two actions for purposes of trial.
Judge Jelderks granted LOSD’s motion to stay on the ground
that the resolution of the issues in B.K. et al. v. Lake Oswego,
3:10-cv-469-JE “would at least simplify, if not determine many of
the issues in [this matter], and, most importantly, would provide
B.K., the child, with a comprehensive, appropriate, and expedient
resolution.”
F & R at 24.
Judge Jelderks denied plaintiffs’
motion to consolidate for the same reasons.
I
conclude
that
Judge
Jelderks
soundly
exercised
his
discretion, and affirm his Orders granting LOSD’s Motion to Stay
and denying Plaintiffs’ Motion to Consolidate.
See 28 U.S.C.
§ 636(b)(1)(A).
CONCLUSION
Based on the foregoing, I ADOPT Judge Jelderks’ Findings and
Recommendation (#37) as MODIFIED above.3
Accordingly, LOSD’s
motion to dismiss Counts II - IV for failure to exhaust (#11-1) is
GRANTED as to Count IV, and GRANTED in part and DENIED in part as
to Counts II and III.
LOSD’s motion to dismiss as time-barred
(#11-1) is DENIED to the extent that those allegations relate to
plaintiffs’ retaliation claims under the ADA and Section 504, but
3
Plaintiffs requested oral argument on their objections to
the Findings and Recommendation. I conclude that oral argument
would not benefit the court in resolving this matter. See Local
Rule 7(d)(1).
11 - OPINION AND ORDER
otherwise GRANTED.
LOSD’s motion to strike (#11-2) is DENIED, and
motion to stay (#11-3) is GRANTED.
Defendant Attorneys’ motion to
dismiss (#9) is GRANTED. Plaintiffs’ amended motion to consolidate
(#18) is DENIED.
IT IS SO ORDERED.
DATED this 12th day of March, 2012.
/s/Malcolm F. Marsh
Malcolm F. Marsh
United States District Judge
12 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?