A.G. et al v. THE LOWER MERION SCHOOL DISTRICT
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 12/20/11. 12/21/11 ENTERED AND COPIES E-MAILED.(kw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
A.G., et al.
LOWER MERION SCHOOL DISTRICT
December 20, 2011
Plaintiffs A.G. and her parents Charles and Cindy
Gregory bring this complaint against Lower Merion School District
(the "School District") for violation of § 504 of the
Rehabilitation Act ("§ 504"), 29 U.S.C. § 794 and the Americans
with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.
the court is the motion of the School District to dismiss the
complaint in part under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for failure to state a claim upon which relief
can be granted.
The School District has also moved to dismiss
Charles and Cindy Gregory as plaintiffs for lack of standing
under Rule 17.
When deciding a Rule 12(b)(6) motion to dismiss, the
court must accept as true all factual allegations in the
complaint and draw all inferences in the light most favorable to
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233
(3d Cir. 2008); Umland v. Planco Fin. Servs., Inc., 542 F.3d 59,
64 (3d Cir. 2008).
We must then determine whether the pleading
at issue "contain[s] sufficient factual matter, accepted as true,
to 'state a claim for relief that is plausible on its face.'"
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
must do more than raise a "'mere possibility of misconduct.'"
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(quoting Iqbal, 129 S. Ct. at 1950).
Under this standard,
"[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice."
129 S. Ct. at 1949.
This court may consider the allegations in
the complaint along with matters of public record and any
exhibits attached to the complaint.
E.g., Pension Benefit Guar.
Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.
The following facts are taken in the light most
favorable to plaintiffs as the nonmoving parties.
A.G. is an
eighteen-year old African American former student of the School
The School District identified her as a student with a
speech and language disorder and a specific learning disability
when she was in elementary school.
In 2008, the School District reevaluated A.G. and
determined that she no longer had a specific learning disability.
However, the School District determined that A.G. was "other
As a result, she continued to receive special
In the summer of 2010, A.G.'s father and
grandmother met with the School District and inquired as to the
nature of A.G.'s disability.
The School District did not
specifically identify A.G's disability and merely stated that she
had "organizational and attention issues."
On December 15, 2010, plaintiffs initiated a request
for an administrative due process hearing under the Individuals
with Disabilities Education Act ("IDEA").
See 20 U.S.C. § 1400
Plaintiffs asserted that the School District incorrectly
identified A.G. as a student with a disability and improperly
placed her into special education programs.
While that complaint was pending, plaintiffs sent a
letter on January 21, 2011 to the School District requesting an
independent educational evaluation ("IEE") of A.G. at the School
The School District refused plaintiffs'
request and filed an administrative due process complaint for a
hearing seeking a determination that its evaluation was
appropriate as required under the IDEA.
See 34 C.F.R.
The parties then agreed to continue the hearing
on the plaintiffs' earlier complaint until the School District's
complaint regarding the IEE was resolved.
During the hearing on its complaint, the School
District asserted that it suspected that A.G. had attention
deficit hyperactivity disorder ("ADHD") but avoided using that
label due to a belief that A.G.'s parents would react negatively
to that diagnosis.
The hearing officer concluded that plaintiffs
were not entitled to an IEE at public expense.
Shortly thereafter, the parties resumed the hearing on
the plaintiffs' complaint regarding the misidentification of A.G.
The hearing officer found that he lacked jurisdiction over
plaintiffs' claims under the IDEA because A.G. claimed she was
not a student with a disability as required under that statute.
See 20 U.S.C. §§ 1400(d)(1)(A), 1415.
He also found that he
lacked jurisdiction over plaintiffs' claims for modification of
A.G.'s educational records under § 504.
As a result, he
dismissed plaintiffs' due process complaint.
A.G. was graduated from Lower Merion High School in
Shortly thereafter, A.G.'s parents had her privately
evaluated by Tawanna Jones, a certified school psychologist.
Jones concluded that A.G. did not meet the criteria for ADHD or
other health impairment.
Plaintiffs then filed their complaint in this court
alleging that A.G. was discriminated against because she was
"regarded as" disabled by the School District in violation of
§ 504 and the ADA.
They seek a judgment that the School District
"wrongly identified Plaintiff A.G. as a student with a
disability" and monetary damages "based upon the psychological
impact of her misidentification and a calculation of her
potential economic loss as a result of her improper placement in
Plaintiffs also request attorneys' fees and
costs associated with their administrative due process complaint
and their complaint in this court.
We first address the School District's motion to
dismiss plaintiffs' claim for "all attorneys' fees and costs for
the prosecution of the due process complaint and related work."
Those administrative complaints, as noted above, were brought
under the IDEA.
A court may award reasonable attorneys' fees to
a parent of a child with a disability who prevails at the
administrative due process hearing under that statute.
§ 1415(i)(3)(B)(i); see also J.O. v. Orange Twp. Bd. of Educ.,
287 F.3d 267, 273 (3d Cir. 2002).
A party prevails when "actual
relief on the merits of his claim materially alters the legal
relationship between the parties by modifying the defendant's
behavior in a way that directly benefits the plaintiff."
v. Hobby, 506 U.S. 103, 111-12 (1992).
At the first administrative due process hearing, the
hearing officer concluded that plaintiffs were not entitled to an
IEE at public expense.
Plaintiffs concede that they did not
prevail at that hearing and thus are not authorized to receive
attorneys' fees for work related to that due process complaint
under the IDEA.
At the second administrative due process hearing, the
hearing officer dismissed all of plaintiffs' claims.
concluded that he lacked jurisdiction because, as discussed
above, A.G. did not assert that she was a student with a
disability as required under the IDEA.
See 20 U.S.C.
§§ 1400(d)(1)(A), 1415.
Accordingly, plaintiffs did not prevail
on any claim at this administrative due process hearing.
Plaintiffs' reliance on Durrell v. Lower Merion School
District to obtain counsel fees and costs is misplaced.
6070, 2011 WL 2582147 (E.D. Pa. June 30, 2011).
In Durrell, this
court dismissed a student's claim that she was wrongfully
identified as disabled under the IDEA because that statute
protects only "children with disabilities."
U.S.C. §§ 1400(d)(1)(A), 1415(a)).
Id. at *3 (citing 20
Therefore the IDEA was
However, we determined that the student could
proceed with claims that she was discriminated against based on a
perceived disability under § 504 and the ADA without first
exhausting administrative remedies as required under the IDEA.
The parties in Durrell did not raise the issue of attorneys'
fees for work performed at the administrative level under the
IDEA and thus our Memorandum and Order did not address this
The Durrell decision, which involved different
plaintiffs, simply cannot be characterized as "actual relief on
the merits of [A.G.'s] claim" as required for prevailing party
status under Supreme Court precedent.
See Farrar, 506 U.S. at
Moreover, our decision in Durrell in no way "modifi[ed] the
[School District's] behavior" toward A.G. and her parents.
Durrell does not hold or imply that individuals such as A.G. and
her parents are prevailing parties when they clearly did not
succeed on a single claim at either of the administrative due
Accordingly, we will dismiss the claim of
plaintiffs for attorneys' fees for work performed in connection
with the administrative due process complaints on the ground that
they have failed to state a claim upon which relief can be
granted under Rule 12(b)(6).
We next turn to the School District's motion to dismiss
A.G.'s parents for lack of standing under Rule 17 of the Federal
Rules of Civil Procedure.
That rule provides that "[a]n action
must be prosecuted in the name of the real party in interest."
Fed. R. Civ. P. 17(a).
It also specifies that "[c]apacity to sue
or be sued is determined ... by the law of the individual's
Id. at 17(b)(1).
Under Pennsylvania law, an individual over the age of
eighteen is an adult who can sue and be subject to suit.
Cons. Stat. Ann. § 102; Pa. R. Civ. P. 76, 2027; see also Kedra
v. City of Phila., 454 F. Supp. 652, 661 (E.D. Pa. 1978).
was over the age of eighteen when the complaint was filed in this
Pursuant to Rule 17, she is correctly named as a
plaintiff "on her own behalf" and can proceed without her parents
A.G.'s parents have joined as her "Parents
and Educational Decision makers."
The question therefore is
whether A.G.'s parents have standing independent of their
Plaintiffs rely on Winkelman v. Parma City School
550 U.S. 516 (2007).
There, the Supreme Court held
that parents have "independent, enforceable rights" under the
Id. at 529.
The Court based its decision on the text of
the IDEA, which is replete with references to "the rights of
children with disabilities and parents of such children."
523 (citing 20 U.S.C. § 1400(d)(1)(B)) (emphasis added).
since read Winkelman to apply to claims under the ADA and § 504,
but only where there were also claims under the IDEA and the
claims under the ADA and § 504 were closely intertwined with
Annika T. v. Unionville Chadds-Ford Sch. Dist., No. 08-
4944, 2009 WL 778350, at *4 (E.D. Pa. Mar. 24, 2009); see also
Tereance D. v. Sch. Dist. of Phila., 548 F. Supp. 2d 162, 170
(E.D. Pa. 2008).
Here, plaintiffs have not filed a claim under the IDEA.
They do not seek relief that is also available under that statute
because, as discussed above, A.G. is not a "child with a
disability" as required under the IDEA.
2582147 at *3.
See Durrell, 2011 WL
Instead, plaintiffs bring claims under the ADA
and § 504 only, unrelated to the IDEA.
Those statutes do not
contain any reference to the rights of parents, much less any
"independent, enforceable rights" of parents.
U.S. at 529.
As a result, Winkelman is inapplicable.
In their prayer for relief, plaintiffs request that
this court enter judgment in favor of A.G. for the "psychological
impact of her misidentification" and "her potential economic loss
as a result of her improper placement."
attorneys' fees and costs.
They also seek
The complaint is devoid of specific
allegations that any independent rights of the parents of A.G.
were violated or that they themselves suffered an injury.
Because A.G. has standing to bring this action on her own behalf,
her requested relief will not be jeopardized by the dismissal of
Accordingly, we find that A.G.'s parents do not
have standing under Rule 17.
We will dismiss them as parties.
Finally, the School District contends that A.G. as the
remaining plaintiff has not stated a claim for monetary damages
under § 504 and the ADA.
Although our Court of Appeals has not
directly addressed the issue, the "overwhelming majority of
circuit courts and the district courts within the Third Circuit
... require a plaintiff to prove intentional discrimination in
order to be entitled to the remedy of compensatory damages under
the ADA and § 504."
Chambers v. Sch. Dist. of Phila., No. 05-
2535, 2011 WL 5041363, at *12 (E.D. Pa. Oct. 24, 2011).
School District cites Chambers and several other unpublished
memoranda in support of its motion to dismiss A.G.'s claim for
See Adam C. v. Scranton Sch. Dist., No.
07-532, 2011 WL 996171, at *4-5 & n.7 (M.D. Pa. Mar. 17, 2011);
Kaitlin C. v. Cheltenham Twp. Sch. Dist., No. 07-2930, 2010 WL
786530, at *6 (E.D. Pa. Mar. 5, 2010); Douris v. Bucks Cnty.
Office of the Dist. Attorney, No. 03-5661, 2004 WL 1529169, at *5
n.7 (E.D. Pa. July 6, 2004).
With the exception of Kaitlin C., however, all of these
cases were decided on motions for summary judgment.
has alleged that the School District discriminated against her
"because through its evaluations it wrongly regarded her as
disabled, identified her as a special education student, required
her to attend special education classes and deprived her of
access to certain regular education programming because of its
erroneous belief that she had a disability."
intentional discrimination is required, it is premature at this
stage of the litigation to decide whether A.G. will be able to
produce evidence of intent.
She should have an opportunity to
discover facts relevant to her claim for compensatory damages.
Accordingly, the motion of the School District to
dismiss the claim of A.G. for compensatory damages under Rule
12(b)(6) will be denied.
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