C.L. v. MARS AREA SCHOOL DISTRICT et al
Filing
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MEMORANDUM OPINION AND ORDER granting 25 Defendants' Motion to Dismiss for Lack of Jurisdiction. Plaintiffs' Amended Complaint is hereby DISMISSED without prejudice. Signed by Judge Terrence F. McVerry on 6/30/2015. (rjw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
C.L., by and through his parent and natural
guardian, K.B.,
Plaintiffs,
v.
MARS AREA SCHOOL DISTRICT, ADAM
M. KOSTEWICZ, DR. WILLIAM J.
PETTIGREW, J. DAYLE FERGUSON,
REBECCA BROWN, GORDON
MARBURGER, STEVEN B. BOGGS, RITA
DORSCH, JANE DUNN, JOHN KENNEDY,
CHRISTINE VELENTA and BONNIE L.
WEAVER,
Defendants.
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) 2:14-cv-1666
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MEMORANDUM OPINION
C.L., by and through his parent and natural guardian, K.B. (“Plaintiffs”), brings this
action under the Individuals with Disabilities Education Act (“IDEA”), 42 U.S.C. § 1401 et seq.;
Section 504 of the Rehabilitation Act of 1973 (“RA”), 29 U.S.C. § 794; the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; 42 U.S.C. § 1983; and Pennsylvania law.
Plaintiffs “seek[] the value of compensatory education, monetary damages, attorney’s fees, and
other appropriate judicial relief due to the School District’s: (1) abject failure to properly initiate,
prepare, and implement an Individualized Education Program (‘IEP’); (2) refusal to properly
evaluate C.L. and provide necessary aides, support and services; (3) protect the bodily integrity
of C.L, and (4) wrongful expulsion in violation of the IDEA which was overturned by a Due
Process Hearing Officer.” Am. Compl. ¶ 1, ECF No. 21. In addition to the Mars Area School
District, the Amended Complaint names various School District administrators, employees, and
School Board members as Defendants: Adam M. Kostewicz, the principal of the Mars Primary
School; Dr. Richard Glosser, the School District’s psychologist; Eileen Deklewa, a guidance
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counselor in the School District; Dr. William J. Pettigrew, the School District’s superintendent;
and J. Dayle Ferguson, Rebecca Brown, Gordon Marburger, Steven B. Boggs, Rita Dorsch, Jane
Dunn, John Kennedy, Christine Velenta, and Bonnie L. Weaver, each of whom is a member of
the School Board (collectively, the “individual Defendants”).
Pending before the Court is Defendants’ MOTION TO DISMISS AMENDED
COMPLAINT IN CIVIL ACTION PURSUANT TO RULE 12(b)(1) AND 12(b)(6), along with
a brief in support. ECF Nos. 25, 26. Plaintiffs have filed a brief in opposition to Defendants’
motion. ECF No. 28. Accordingly, the motion is ripe for disposition.
I.
Background
A.
Facts
When this action was initiated, C.L. was a seven-year-old first grader in the School
District. Am. Compl. ¶¶ 20, 59. He suffers from Oppositional Defiance Disorder (“ODD”),
Attention Deficit Hyperactivity Disorder (“ADHD”), and craniosynostosis. Id. ¶¶ 15-16.
C.L. attended kindergarten at Heart Prints Center for Early Education, where he received
wraparound services through a community behavioral health organization. Id. ¶¶ 67-68. Such
services included a combination of Therapeutic Staff Support (“TSS”), Mobile Therapy (“MT”),
and a Behavioral Specialist Consultant (“BSC”). Id. ¶ 69. These services enabled C.L. to do
“very well” in kindergarten. Id. ¶ 70.
C.L. enrolled in the School District after completing kindergarten, and his wraparound
services ceased. Id. ¶ 71. At the time of C.L.’s enrollment, K.B. informed Kostewitz, the
principal, and Deklewa, the guidance counselor, about C.L.’s disabilities and how they would
affect his interactions and performance in school. Id. ¶ 72. In response, the School officials
advised K.B. that C.L. had to “be observed” before an individualized education program (“IEP”)
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was developed for him. Id. ¶ 73. On September 17, 2014, Kostewitz contacted K.B. to report that
the School District had been “having issues with C.L.,” and a meeting between the School
District and K.B. was scheduled to discuss C.L.’s disability and treatment. Id. ¶¶ 77-78. C.L.’s
BSC and Ellen J. Humitsky of Heart Prints Center were present at the meeting, along with the
School District representatives and K.B. Id. ¶ 78. At the meeting, the School District
recommended that C.L. be placed immediately in an alternative schooling program. Id. ¶ 79.
K.B. refused, and instead the School District agreed to begin evaluating C.L. for an IEP. Id. ¶ 63;
Hr’g Officer’s Decision ¶ 9, ECF No. 21-2. Plaintiffs allege, however, that the School District
delayed C.L.’s evaluation to prevent the development and implementation of the IEP. Am.
Compl. ¶ 64.
On September 18, 2014, C.L. was suspended for throwing a shoe and was held out of
class without a tutor until September 21, 2014. Id.
¶¶ 81-83. Plaintiffs claim that C.L.’s
suspension was unlawful because the conduct giving rise to the suspension was a manifestation
of C.L.’s disabilities. Id. ¶ 82. They also claim that K.B. was not provided with written notice of
the suspension. Id. ¶ 83. On September 30, 2014, C.L. was suspended, again allegedly without
written notice or cause. Id. ¶ 84. The principal also allegedly grabbed C.L. by the arm and
dragged him down the hall in front of his classmates, causing him fear and humiliation. Id. ¶ 85.
According to Plaintiffs, this “was done for the purpose of ostracizing C.L. from his classmates,
thereby preventing his integration into the classroom environment.” Id. ¶ 87. Furthermore,
Plaintiffs allege, “[t]he physical attack and refusal to help C.L. with his disability was part of a
pattern and practice by the School District to prevent C.L. from integrating with the other nondisabled first grade children and terrify and humiliate C.L. to the point he does not want to return
to school.” Id. ¶ 88. The principal allegedly pulled C.L.’s arm on other occasions, and as a result,
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C.L. now experiences anxiety, nightmares, difficulty sleeping, and is withdrawn from the
classroom environment. Id. ¶ 90.
On October 6, 2014, the School District assigned an aide to work with C.L., but the aide
was allegedly “untrained in the area of behavioral treatment and completely unable to perform
any appropriate behavioral intervention and modification.” Id. ¶ 91. According to the Amended
Complaint, the School District intentionally assigned the inexperienced aide to try to make C.L.
to act out, which would in turn allow the School District to move C.L. to an off-site educational
environment. Id. ¶ 92.
On October 10, 2014, the School District moved C.L.’s desk away from the desks of his
classmates “to exclude [him] from any reasonable class interaction and humiliate him as a result
of his disability.” Id. ¶ 93. That same day, the principal grabbed C.L. forcibly by the shoulders
and pressed down on his torso, causing him pain and discomfort and frightening him to the
extent that he “does not want to re-enter the primary school.” Id. ¶ 97. The principal then paraded
C.L. in front of his classmates with a police escort as the students lined up for the buses at the
end of the day. Id. ¶ 101.
Plaintiffs further allege that the School District placed C.L. in a “safe room” on
unspecified occasions, where he was locked away for in excess of three hours at a time without a
tutor or other adult supervision. Id. ¶ 95. The School District also allegedly promoted and
facilitated the harassment of C.L. by other students, with the intent to cause C.L. to act out,
which would give the School District an ostensible basis for removing C.L. from the regular
school setting. Id. ¶ 115. Also, on unspecified occasions, C.L. was forced to eat lunch by himself
away from other students. Id. ¶ 93.
Sometime in late September or early October 2014, K.B. filed a due process complaint
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related to C.L.’s suspensions.1 On October 20, 2014, after learning of the due process complaint,
the School District allegedly suspended C.L. again, and the Adams Township Police Department
was apparently called in relation to the incident leading to his suspension. Id. ¶¶ 101-04. On
October 22, 2014, the School District attempted to avoid participation in an inter-agency service
planning team (“ISPT”) meeting, allegedly to prevent C.L. from receiving wraparound services.
Id. ¶ 105. According to Plaintiffs, this was “part of the School District’s systemic plan and
scheme to place C.L. in a restrictive off-site placement.” Id. ¶ 106.
On October 27, 2014, the School District alleged that C.L. pushed a student, kicked a
teacher, and overturned tables in a classroom, and the next day, the School District decided to
initiate expulsion proceedings against C.L. Id. ¶¶ 117-18. K.B., however, claimed that C.L.’s
conduct was a manifestation of his disability. Id. ¶ 117. In addition, according to the Amended
Complaint, the allegation that C.L. kicked a teacher was a fabrication. Id. ¶ 119. Because C.L.’s
IDEA evaluation was underway, the School District held a manifestation determination review
before proceeding with the expulsion.2 At the review, the School District’s IEP team allegedly
1.
The Amended Complaint does not specify when this due process complaint was filed,
what issues it raised, or whether it was ever resolved. The hearing officer’s decision, however,
indicates that “[d]uring [the period between September 18 and October 21, 2014,] Parents filed a
due process complaint to preclude the District from continuing to suspend Student from school
due to behaviors that Parents contended were due to Student’s ODD and ADHD diagnoses.”
Hr’g Officer’s Decision ¶ 17. The Court notes that it may consider the hearing officer’s decision
when deciding the pending motion. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,
1385 n.2 (3d Cir. 1994).
2.
Under the IDEA, “within 10 school days of any decision to change the placement of a
child with a disability because of a violation of a code of student conduct,” a school must
“review all relevant information in the student’s file, including the child’s IEP, any teacher
observations, and any relevant information provided by the parents to determine . . . if the
conduct in question was caused by, or had a direct and substantial relationship to, the child’s
disability; or . . . if the conduct in question was the direct result of the local educational agency’s
failure to implement the IEP.” 20 U.S.C. § 1415(k)(1)(E)(i)(I)-(II). If so, the IEP team must
“conduct a functional behavioral assessment, and implement a behavioral intervention plan,”
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“rubber stamped” a previous determination by the School District that C.L.’s conduct on October
27, 2014, was not a manifestation of his ADHD and ODD. Id. ¶ 121. According to Plaintiffs, The
IEP team did not consult an independent psychologist before makings its manifestation
determination. Id. ¶ 121. Furthermore, the School District disregarded the testimony of a
psychologist retained by K.B., who opined that the conduct at issue was a manifestation of C.L.’s
disabilities. Id. ¶ 123.
Immediately following the manifestation determination review, the School District began
an expulsion hearing, which, in Plaintiffs’ words, was tantamount to a “kangaroo court.” Id. ¶¶
121, 124, 125. In support of that description, Plaintiffs point to a number of procedural errors
that allegedly occurred at the hearing: the School District’s attorney acted as both the hearing
officer and counsel for the School District; notice was not provided in accordance with the
requirements of 22 Pa. Code § 12.8(b)(1); the School District violated the “stay put” provision in
the IDEA by not allowing C.L. to return to school pending the outcome of the proceedings; an
evaluation report was not completed prior to the manifestation determination; K.B. was never
provided with a copy of the School District’s expulsion policy; the School District’s policies and
procedures were never provided to K.B.; the complaint against C.L. was not sufficiently detailed;
an informal hearing was not conducted, as required by School District policy; C.L.’s suspensions
were not initiated with the requisite written notice; the hearing officer permitted references to
unless one had already be conducted, in which case the IEP team must review and modify the
existing plan. Id. § 1415(k)(1)(F)(i)-(ii). Meanwhile, the child must be returned to the placement
from which he was removed, unless the parents and the school agree to a change of placement.
Id. § 1415(k)(1)(F)(iii). If the parent of a disabled child disagrees with the manifestation
determination, the parent may request an expedited hearing. Id. §§1415(k)(3)(A), 1415(k)(4)(B).
If the hearing officer finds for the parent, she “may (I) return a child with a disability to the
placement from which the child was removed; or (II) order a change in placement of a child with
a disability to an appropriate interim alternative educational setting for not more than 45 school
days . . . .” Id. § 1415(k)(3)(B)(ii).
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C.L.’s prior suspensions, even though no manifestation determination review was conducted for
these suspensions; a formal decision was never rendered; and notice of C.L.’s right to appeal the
results of the hearing was not provided. Id. ¶ 126. At the conclusion of the hearing, the School
Board members recommended that C.L. should be expelled.3 Id. ¶ 128. According to the
Amended Complaint, however, KB was not notified that the School Board had approved the
expulsion, as is required by Pennsylvania law. Id. ¶ 132. Furthermore, Plaintiffs allege that no
other first grader in the School District has ever been suspended or expelled for pushing a child
or flipping a chair – the conduct that triggered C.L.’s expulsion. Id. ¶ 130.
The School District’s IDEA evaluation report had not been completed prior to the
manifestation determination review and expulsion hearing. The report was, however, completed
sometime prior to November 11, 2014. Id. ¶ 137. In the report, Glosser, Adams, and Deklewa
indicated that C.L.’s disruptive behaviors – being argumentative, defying requests, possessing
poor control of emotional responses, breaking rules, having destructive tendencies, and being
manipulative – were a manifestation of his disabilities. Id. ¶ 138. Despite what they had
3.
The hearing officer explained in her decision that a committee of the Board heard the
evidence and then recommended C.L.’s expulsion to the full Board, with the following additional
recommendations:
1) Direct the Special Education Department to identify an appropriate placement
outside the District that will meet Student’s needs; 2) direct the District’s ER be
completed as soon as possible, and if Student is determined to be IDEA eligible,
the IEP team should develop and implement an appropriate IEP and behavior
support plan based upon an FBA; 3) if Student makes progress on the IEP,
Student’s IEP team may recommend Student’s return to the District at the
beginning of, or any time after, the second semester of the current school year; 4)
if return to the District is recommended, the IEP team should develop an
appropriate transition plan.
Hr’g Officer’s Decision ¶ 34. According to the hearing officer, “the expulsion recommendation
is consistent with the change of placement to an alternative setting that the District has
consistently offered and recommended for Student since the beginning of the current school
year.” Id. ¶ 35.
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concluded in the report, however, Glosser, Kostewicz, and Deklewa testified during the
expulsion proceedings that C.L.’s actions on October 27, 2014, were not a manifestation of his
disabilities. Id. ¶ 140.
B.
The Administrative Process
K.B. appealed the School Board’s manifestation determination, and an expedited due
process hearing was held before Pennsylvania Special Education Hearing Officer Anne Carroll,
Esq., on November 10, 2014.4 Id. ¶¶ 143-44. The two issues before the hearing officer were:
1.
Did the School District accurately and appropriately determine that
behaviors in which Student engaged on October 27, 2014 were not a
manifestation of Student’s disability?
2.
Was the District, therefore, justified in imposing the same discipline it
would have imposed on a non-IDEA eligible student for a serious
violation of the District’s code of student conduct, i.e., Student’s expulsion
from the District for the 2014/2015 school year?
Hr’g Officer’s Decision 3. The hearing officer issued her decision on November 24, 2012, and
concluded that the School District’s manifestation determination was “clearly erroneous” since
there was a “direct and substantial relationship” between C.L.’s disabilities and his conduct on
October 27, 2014. Id. at 19. In addition, the hearing officer found that the School District had
“blatantly violated IDEA placement and discipline procedures.” Id. at 18. As she explained:
. . . the District’s approach to the manifestation determination review and its
unreasonable determination that the same behaviors that support the conclusion
that Student has an IDEA disability, and by reason thereof, needs specially
designed instruction, were not a manifestation of disability on one particular day,
leads directly to the inference that the District was determined to effect a change
of Student’s educational placement. Notably, District counsel elicited testimony
from the school counselor that from nearly the beginning of the current school
year, the District had proposed the same alternative placement for student that
4.
The School District’s evaluation to determine C.L.’s IDEA eligibility had not been
completed by the date of the due process hearing, but the School District nevertheless agreed to
consider C.L. a child ‘thought to be eligible for special-education services.’” Hr’g Officer’s
Decision ¶ 1. Therefore, C.L.’s IDEA eligibility was not at issue.
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was included in the expulsion recommended to the School Board. (FF 34, 35, 36)
Obviously, Parents were unwilling to agree to the change of placement that the
District wanted. Instead of following IDEA procedures to change student’s
placement, which might have been accomplished by proceeding with the
evaluation, followed by the development of an IEP and a recommended
placement – including an out of District placement [–] and submitting a due
process complaint when/if Parents rejected the recommendation, the District
clearly attempted to circumvent the IDEA statutory scheme via expulsion
proceedings. By proceeding with a change of educational placement via expulsion
proceedings, the District did not need to obtain Parents’ consent, and would have
remained entirely in control of when and whether Student returned to a District
placement during the current school year, without having to consider and abide by
the pendent placement (“stay put”) requirements.
Id.
The hearing officer ordered the School District to rescind C.L.’s expulsion and reinstate
him to the educational setting from which he was removed. Id. at 19. The hearing officer further
ordered the School District to “convene Student’s IEP team to consider the results of the
District’s [evaluation report] and develop an appropriate IEP, including a comprehensive
behavior support plan, and recommend an appropriate educational placement for Student.” Id. In
addition, the hearing officer ordered that the School District’s “regular education setting shall
remain Student’s pendent educational placement until . . . Student’s IEP team recommends, and
Parents sign a NOREP agreeing, to a change of educational placement.” Id. at 20. The School
District filed an appeal of the hearing officer’s decision. That matter is pending before this Court
at 2:14-cv-01728-TFM.
K.B. has since unilaterally placed C.L. in a private school. Am. Compl. ¶ 152. He
allegedly continues to display psychological effects from the treatment he received while
enrolled in the Mars School District. Id. ¶ 153.
C.
Procedural History
K.B. initiated this action on behalf of C.L. on December 10, 2014, by filing a 16-count
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Complaint against the School District, Kostewicz, Pettigrew, and the School Board members.
ECF No. 1. On February 10, 2015, Defendants filed a motion to dismiss. ECF No. 16. In lieu of
responding, K.B. filed an Amended Complaint. ECF No. 21. The Amended Complaint largely
repeats the allegations in the original Complaint, but adds Deklewa and Adams as Defendants
and asserts several counts that were not initially pled.
In Counts I through IX, Plaintiffs assert various federal law claims: Count I, violation of
the IDEA; Counts II and III, discrimination claims under Section 504 of the RA and the ADA;
Counts IV and V, retaliation claims under Section 504 of the RA and the ADA; Counts VI and
VII, hostile learning environment claims under Section 504 of the RA and the ADA; and Counts
XIII and IX, claims under Section 1983. These claims are asserted against all of the Defendants.
In the ad damnum clauses following each Count, Plaintiffs request compensatory damages,
punitive damages, payment of future private school education, and attorney’s fees and costs.
In Counts X through XX, Plaintiffs assert a myriad of state law claims: wrongful
expulsion against all Defendants; assault and battery against all Defendants; intentional infliction
of emotional distress against all Defendants; false imprisonment against all Defendants; breach
of fiduciary duty against Glosser; breach of fiduciary duty against Kostwicz; fraudulent
misrepresentation, concealment and nondisclosure against all Defendants; violation of the
Professional Psychologists Practice Act against Glosser; negligent hiring, supervision and
retention of Kostewicz against all Defendants (including, curiously, Kostewitz himself);
vicarious liability; and civil conspiracy. In Counts XXI and XXII, Plaintiffs set forth requests for
punitive damages and attorney’s fees.
On May 1, 2015, Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(1) and Fed. R.
Civ. P. 12(b)(6). They seek dismissal of the entire Amended Complaint for failure to exhaust
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administrative remedies. Alternatively, the individual Defendants contend that the claims against
them should be dismissed because they are duplicative of the claims against the School District
and also because they are entitled to qualified immunity.
II.
Discussion
A.
Federal Law Claims
Although Defendants advance three separate arguments in support of their motion to
dismiss Plaintiffs’ federal law claims, their chief contention is that this Court lacks subject matter
jurisdiction over Plaintiffs’ claims under the IDEA, § 504 of the RA, the ADA, and § 1983
because they failed to exhaust the IDEA’s administrative process.5 “Where a claim falls within
5.
The Court cannot help but note that large portions of Defendants’ argument on this issue
have been lifted verbatim – without any attribution whatsoever – from the Middle District’s
opinion in Swope v. Central York School District, 796 F. Supp. 2d 592 (M.D. Pa. 2011). See
Defs.’ Br. 8-9 (“A motion to dismiss under Rule 12(b)(1) . . . M.M. v. Tredyffrin/Easttown Sch.
Dist., 2006 WL 2561242, at 7-8, 2006 U.S. Dist. LEXIS 62818, at 23 (E.D. Pa. Sept. 1, 2006)
(same).”); 13-15 (“The IDEA empowers district courts . . . for lack of subject matter
jurisdiction.”). Astonishingly, Defendants’ counsel did not even attempt to conceal this conduct
by removing the Swope court’s self-referential language. Id. at 14 (“The court could stop there . .
. For the sake of thoroughness, the court notes . . . Thus, the court finds . . . .”). Another
paragraph is copied and pasted directly from the Eastern District’s opinion in Batchelor v. Rose
Tree Media School District, No. CIV.A. 11-6733, 2013 WL 1776076, at *8 (E.D. Pa. Mar. 28,
2013), aff’d, 759 F.3d 266 (3d Cir. 2014) – again, without any attribution. Defs.’ Br. at 15
(“What these decisions have in common . . . .).
This is plagiarism, and it is unacceptable. “Although reliance upon precedent forms the
bedrock of legal argument, ‘citation to authority is absolutely required when language is
borrowed.’” Venesevich v. Leonard, 1:07-cv-2118, 2008 WL 5340162, at *2 n.2 (M.D. Pa. Dec.
19, 2008) (quoting United States v. Bowen, 194 F. App’x 393, 402 n.3 (6th Cir. 2006)) (emphasis
added). Indeed, some courts have found that “plagiarism violates the prohibition that state ethics
codes place on misrepresentation and deceit.” Id. Our Court of Appeals has not gone that far, but
it has remarked that it is “certainly misleading . . . to quote at length a judicial opinion (or, for
that matter, any source) without clear attribution.” United States v. Lavanture, 74 F. App’x 221,
223 n.2 (3d Cir. 2003). This Court will join the Court of Appeals in expressing its “strong
disfavor” for this type of conduct. Id. Not only is it potentially unethical, but an attorney does not
do his client or the Court any favors by cribbing material from a judicial opinion without adding
any additional analysis. Defendants’ brief exemplifies why: it is a hard-to-follow mishmash of
disjointed paragraphs that do not clearly and specifically address or analyze the unique
circumstances of this case. Worse yet, when an attorney resorts to plagiarism, his credibility is
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the IDEA’s ambit (including claims under other federal statutes), a party fails to utilize the IDEA
administrative process, and no exception applies, a court must dismiss the claims for lack of
subject matter jurisdiction.” M.C. ex rel. R.C. v. Perkiomen Valley Sch. Dist., No. CIV.A. 145707, 2015 WL 2231915, at *4 (E.D. Pa. May 11, 2015). Accordingly, the Court will address
these issues seriatim to determine whether the Amended Complaint is subject to dismissal.
1.
The IDEA’s Statutory Scheme
The IDEA was enacted to “ensure that all children with disabilities have available to
them a free appropriate public education [(“FAPE”)] that emphasizes special education and
related services designed to meet their unique needs. . . .” 20 U.S.C. § 1400(d)(1)(A). The statute
stresses that parents and schools must work together to achieve that goal. M.R. v. Ridley Sch.
Dist., 744 F.3d 112, 117 (3d Cir. 2014) (internal citations omitted). To that end, Congress
conditioned the receipt of federal funding on the states’ compliance with a number of
requirements designed to safeguard “the rights of students with disabilities and their parents.”
Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 271 (3d Cir. 2014). Chief among these
requirements, schools must identify and evaluate children to determine whether they are IDEA
eligible and, if so, develop an appropriate IEP for them. 20 U.S.C. §§ 1412(a)(3),1414(d). “[A]t a
minimum, ‘[t]he IEP must be reasonably calculated to enable the child to receive meaningful
educational benefits in light of the student’s intellectual potential.’” Batchelor, 759 F.3d at 271
n.7 (quoting Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir. 2004)).
If, at any time in this process, a child’s parent believes that a school has not fulfilled its
obligations under the IDEA, the parent can file a complaint and request an impartial due process
diminished in the eyes of the Court. Ultimately, this Court’s decision has not been affected by
the unprofessional submission of Defendants’ counsel. However, the Court fully expects that
counsel will not engage in this type of conduct in the future – particularly in the parallel case
pending at 2:14-cv-01728-TFM.
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hearing, conducted in accordance with state law. 20 U.S.C. §§ 1415(b)(6)(A), 1415(f)(1)(A).
Following the hearing, “[a]ny party aggrieved by the findings and decision” of the hearing
officer can “bring a civil action with respect to the complaint” in federal court. Id. §
1415(i)(2)(A). The district court, upon review of the administrative record and hearing any
additional evidence submitted by the parties, is empowered to order “such relief as [it]
determines is appropriate,” id. § 1415(i)(2)(C)(i)-(iii), including “‘attorneys’ fees, reimbursement
for private educational placement, and compensatory education.’” Batchelor, 759 F.3d at 272
(quoting Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 185 (3d Cir. 2009)).
A party may not, however, bring suit in federal court to vindicate rights secured by the
IDEA unless the IDEA’s administrative process has been exhausted. Jeremy H. by Hunter v. Mt.
Lebanon Sch. Dist., 95 F.3d 272, 281 (3d Cir. 1996). As already noted, this requirement is
jurisdictional in nature, such that a party’s failure to exhaust will result in dismissal of their
complaint without prejudice under Fed. R. Civ. P. 12(b)(1). Batchelor, 759 F.3d at 280. The
IDEA also provides that:
Nothing in this chapter shall be construed to restrict or limit the rights,
procedures, and remedies available under the Constitution, the Americans with
Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal
laws protecting the rights of children with disabilities, except that before the filing
of a civil action under such laws seeking relief that is also available under this
subchapter, the procedures under subsections (f) and (g) shall be exhausted to the
same extent as would be required had the action been brought under this
subchapter.
20 U.S.C. § 1415(l) (emphasis added). As this provision makes clear, not only is exhaustion
required for IDEA claims, but it is “also required in non-IDEA actions where the plaintiff seeks
relief that can be obtained under the IDEA.” Batchelor, 759 F.3d at 272. Consequently, deciding
whether exhaustion is necessary “turns on whether the parties could have asserted the claims
under the IDEA. Intertwined with this inquiry is whether the claims could have been remedied
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by the IDEA’s administrative process.” Id. at 273 (emphasis added). As a result, each of the
claims asserted by Plaintiffs “require exhaustion . . . if they seek relief that is available under the
IDEA,” no matter whether they arise under the IDEA or some other statute. Id.
2.
Was exhaustion required?
In Count I, Plaintiffs allege a direct violation of the IDEA, averring that “[t]he School
District and School Board willfully, intentionally, and with deliberate indifference delayed any
offer of placement for C.L. into an IEP Program.” Am. Compl. ¶ 159. Furthermore, Plaintiffs
allege, “[t]he School District and School Board willfully, intentionally, and with deliberate
indifference refuses [sic] to implement an appropriate program implementing the least restrictive
environment requirement of the IDEA.”6 Id. ¶ 160. Finally, they allege, “[t]he School District, by
and through its agents, physically assaulted and harmed C.L., as well as imprisoned him in a
closed room for in excess of three (3) to four (4) hours at a time without any tutor or other adult.
This was done for the sole purpose of retaliating against C.L. and his family for attempting to
obtain an IEP.” Id. ¶ 161. And “[a]s a result of the mental, social, emotional, and physical
injuries sustained by C.L.,” Plaintiffs aver, “he has been prevented from attending school on a
regular basis which is the least restrictive environment, and said injuries continue to interfere
with his education and social activities.” Id. ¶ 162. This claim “squarely falls within . . . the
IDEA’s exhaustion requirement,” inasmuch as it arises “under the stricture of the IDEA itself.”
Batchelor, 759 F.3d at 273.
6.
Under the IDEA, children with disabilities are to be educated with non-disabled children
to the maximum extent possible. 20 U.S.C. 1412(a)(5)(A). “Special classes, separate schooling,
or other removal of children with disabilities from the regular educational environment [should
occur] only when the nature or severity of the disability of a child is such that education in
regular classes with the use of supplementary aids and services cannot be achieved
satisfactorily.” Id. This provision is known as the IDEA’s “least restrictive environment”
requirement.
14
The same is true with respect to Plaintiffs’ RA and ADA discrimination claims in Counts
II and III, which are essentially a repackaging of Plaintiffs’ IDEA claim in Count I. See Jeremy
H., 95 F.3d at 281 (explaining that Section 1415(l) “bars plaintiffs from circumventing [the]
IDEA’s exhaustion requirement by taking claims that could have been brought under IDEA and
repackaging them as claims under some other statute”). In all three Counts, Plaintiffs allege that
the School District failed to provide a FAPE to C.L. by failing to timely initiate an IEP and
taking discriminatory actions against him.7 Consequently, these claims are subject to the IDEA’s
exhaustion requirement. See A.D. v. Haddon Heights Bd. of Educ., No. CIV.A. 14-1880 JBS,
2015 WL 892643, at *12 (D.N.J. Mar. 2, 2015) (citations omitted) (dismissing ADA claim for
failure to exhaust where claim was “inextricably linked to the key benefit secured by the IDEA –
a free and appropriate public education”).
Plaintiffs’ retaliation and hostile learning environment claims8 in Counts IV through VII
likewise require exhaustion. In Batchelor, the Third Circuit Court of Appeals held that
“retaliation claims related to the enforcement of rights under the IDEA must be exhausted before
7.
Specifically, in Count II, the RA claim, Plaintiffs allege that “the School District and
School Board has discriminated against C.L. who, by reason of his disability, was denied
inappropriate [sic] education” when the School District and School Board “[r]efus[ed] to initiate
and implement an appropriate program for C.L. in regular school placement;” “[r]efus[ed] to
initiate and implement an appropriate program and timely initiate an IEP;” “[e]ngag[ed] in
hostile actions to prevent implementation of an IEP, and thereby force[d] C.L. into an off-site
restrictive placement;” “[c]reat[ed] a hostile environment at school by intimidating the child and
forcing him to act out;” and “[f]abricat[ed] false claims against C.L. and h[eld] an illegal
expulsion proceeding.” Id. ¶ 170(a)-(e). These allegations are repeated nearly word for word in
Count III, the ADA claim. Id. ¶ 176(a)-(e).
8.
The Court notes that it is not clear “whether hostile learning environment is cognizable”
under either the RA or the ADA “in the context of a special education case involving an
elementary school student.” Derrick F. v. Red Lion Area Sch. Dist., 586 F. Supp. 2d 282, 309
(M.D. Pa. 2008). There is no binding authority in this Circuit recognizing such a claim.
However, because Plaintiffs’ hostile learning environment claims are virtually indistinguishable
from their retaliation claims, and both raise issues that could be remedied by the IDEA, the Court
need not address whether the theory is viable. Even if it is, Plaintiffs’ claims must be dismissed.
15
a court may assert subject matter jurisdiction.” 759 F.3d at 275. The Court of Appeals anchored
its holding in the plain language of the IDEA, which “affords parents of a disabled child the
opportunity to present a complaint ‘with respect to any matter relating to the identification,
evaluation, or educational placement of the child, or the provision of a free appropriate public
education to such child . . . .” Id. at 274 (quoting 20 U.S.C. § 1415(b)(6)(A)) (emphasis in
original). Applying its newly enunciated rule to the facts before it, the Court of Appeals found
that the plaintiffs’ retaliation claims “palpably ‘relate’ to the District’s provision of a FAPE . . .
.” Id. In particular, the Court of Appeals noted, the plaintiffs alleged that the school district
retaliated against the student by intimidating his mother at meetings, failing to reimburse for the
cost of tutors, replacing a tutor with whom the student had worked well with another tutor with
whom he did not get along, refusing to implement the terms of the student’s IEP, placing the
student in a class with a teacher whom he considered a bully, and refusing to permit the student
to participate in extracurricular activities. Id. They further alleged that the district’s conduct
“deprived [the student] of a FAPE and caused great harm to his level of educational achievement
and personal well being.” Id. After reviewing these allegations, it was plain to the Court of
Appeals that the claims “‘relate[d] unmistakably’ to the provision of a FAPE to” the student, and
thus exhaustion was required. Id. (quoting Rose v. Yeaw, 214 F.3d 206, 210 (1st Cir. 2000)).
Plaintiffs’ RA and ADA retaliation and hostile learning environment claims are not
meaningfully distinguishable from the retaliation claims in Batchelor. Plaintiffs allege that the
School District and the School Board retaliated against C.L. because of his request for an IEP
and request for a due process hearing and created a hostile learning environment by “locking
C.L. in a closed ‘safe room,’ alone for a period in excess of three (3) hours;” “[h]aving C.L.
escorted by law enforcement officers on the school property in front of his peers;” “[r]equiring
16
uniformed law enforcement officers to ‘parade’ C.L. in front of other children in his class;”
preventing K.B. “from attending school functions including necessary meetings;” “[h]aving law
enforcement officers, in uniform, restrain and drag C.L. through the school hallways in front of
other children;” “[d]irecting the Principal to systematically and continuously physically assault
and drag C.L. through the hallways in front of other children;” “[d]irecting the Principal to
systematically and continuously physically assault and drag C.L. through the hallways in front of
other children;” “[r]efusing to properly and timely implement an IEP;” “[s]uspending C.L.
without proper cause to prevent him from obtaining an education;” and “fabricating false charges
and engaging in [an] illegal Manifestation Determination hearing and illegal suspension.” Am.
Compl. ¶¶ 184(a)-(h), 193(a)-(i), 200(a)-(i), 208(a)-(i). As the Third Circuit held in Batchelor,
“there is a logical path to be drawn from [Plaintiffs’] claims of retaliation to the District’s failure
to provide” C.L. with a FAPE. Batchelor, 759 F.3d at 274-75. Accordingly, these claims must
proceed through the administrative process before this Court may assert jurisdiction.
Finally, exhaustion is also required with respect to Plaintiffs’ Section 1983 claims in
Counts VIII and IX.9 In Count VIII, Plaintiffs claim that “Defendant’s conduct in failing to
provide C.L. with a free appropriate public education constitutes unlawful discrimination against
the Plaintiff and other similarly situated disabled children in violation of the equal protection
clause . . . .” Id. ¶ 217. Since this claim – like the IDEA, RA, and ADA claims – is based on
Defendants’ failure to provide a FAPE, it comes within the reach of the IDEA’s exhaustion rule.
Roquet v. Kelly, No. 4:11-CV-01763, 2013 WL 5570269, at *8 (M.D. Pa. Oct. 9, 2013)
9.
Plaintiffs have attempted to assert claims for violations of the Pennsylvania Constitution
through § 1983 in Counts VIII and IX. It is clear, though, that “[a]llegations of state law or state
constitutional violations will not support a § 1983 claim.” Kuhns v. City of Allentown, 636 F.
Supp. 2d 418, 435 (E.D. Pa. 2009) (citations omitted). Thus, even if these claims were not
required to be exhausted, this aspect of them would have to be dismissed for failure to state a
claim.
17
(requiring exhaustion of equal protection claim “based on the school district defendant’s alleged
failure to provide [student] with a [FAPE]”). In Count IX, Plaintiffs allege a § 1983 claim for
violations of substantive and procedural due process.10 Specifically, Plaintiffs claim that “[t]he
School district and School Board . . . took actions to systematically suspend C.L. and not provide
any appropriate behavioral treatment or care.” Id. ¶ 227. C.L. was allegedly harmed by “the
School District’s continuous suspension of C.L., as well as physical and psychological . . .
threats.” Id. ¶ 228. In addition, according to the Amended Complaint, Defendants’ “acts and
omissions created conditions in the school that cause severe negative educational and social
effects to C.L., as well as physical harm, mental anguish, embarrassment, and harassment.” Id. ¶
229. It is further alleged that, inter alia, “[t]he School District and School Board acted with
deliberate indifference to C.L. including, but not limited to, concealment of his removal from
classes and isolation in rooms away from other children for significant periods of time,” id. ¶
230; “[i]t is an official policy, custom, and practice of the School District and School Board to
violate a disabled child’s federal rights, guaranteed by the IDEA,” id. ¶ 231; “[t]he School
District and School Board out of deliberate indifference to C.L. failed to implement any sort of
10.
Plaintiffs have not specifically alleged what substantive due process right was violated by
the Defendants’ alleged conduct. It is possible that Plaintiffs intended to allege that C.L.’s
substantive due process right to bodily integrity was infringed, as that phrase appears in a few
paragraphs of the Amended Complaint. However, it is also possible that the claim is premised on
violations of the IDEA, itself. See, e.g., Am. Compl. ¶ 227 (alleging that the School District did
“not provide any appropriate behavioral treatment or care”); id. ¶ 228 (alleging that C.L. was
harmed by the continuous suspensions); id. ¶ 231 (alleging that the School District has a policy
of violating students’ IDEA rights); id. ¶ 232 (alleging that the School District “failed to
implement any sort of reasonable behavioral plan that was authorized by trained professional
psychologists and psychiatrists”). If that is the case, the claim is not viable no matter whether it
has been exhausted, as the Court of Appeals has held that § 1983 may not be used to redress a
child’s IDEA-created rights. See A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 802-03 (3d Cir.
2007). Similarly, the basis of Plaintiffs’ procedural due process claim is not clear from the
Amended Complaint. To the extent that this claim is based only on violations of the IDEA, it is
likewise not viable.
18
reasonable behavioral plan that was authorized by trained professional psychologists and
psychiatrists,” id. ¶ 232; and “[t]he School Board Members in bad faith directed the other
Defendants to engage in actions to wrongfully expel C.L. and failed to even give a modicum of
consideration of the true facts and evidence,” id. ¶ 237. Just like Plaintiffs’ other claims, Count
IX raises issues that could be remedied by the IDEA’s administrative process, so the exhaustion
requirement applies.
3.
Were the claims exhausted?
Since each of Plaintiffs’ claims comes within the ambit of the IDEA, the Court must now
determine whether these claims were actually exhausted. Plaintiffs claim that they were. In their
view, a full record was developed at the expedited due process hearing, and “the central element
of the [their] claims are the violations of the IDEA which the Due Process Hearing Officer
already held were violated as a matter of law in her twenty (20) page decision.” Pls.’ Br. at 2,
ECF No. 28. Id. Thus, they argue, “no further administrative hearing is necessary to resolve the
issues before the Court.” Id.
The Court cannot agree. Although Plaintiffs did appeal the School District’s
manifestation determination, “[i]t is well-established law that administrative exhaustion
requirements apply to each claim a plaintiff seeks to bring before a district court.” S.S. by &
through Street v. D.C., No. CV 14-344 (CKK), 2014 WL 5034619, --- F. Supp. 3d ----, at *3
(D.D.C. Oct. 9, 2014) (emphasis in original) (citing 20 U.S.C. § 1415(i)(2)(A); Chambers, 587
F.3d at 187 n.14; Blackmon ex rel. Blackmon v. Springfield R–XII Sch. Dist., 198 F.3d 648, 655
(8th Cir. 1999)). This means that all “allegations . . . need to be raised before the IDEA hearing
officer to the extent that they ‘relate unmistakably to the evaluation and education placement of
[the student] and ‘could be redressed to any degree by the IDEA’s administrative procedures and
19
remedies.’” Id. at *3 (emphasis in original) (quoting M.T.V. v. DeKalb Cty. Sch. Dist., 446 F.3d
1153, 1159 (11th Cir. 2006); Padilla v. Sch. Dist. No. 1 in the City and Cnty. of Denver, Co., 233
F.3d 1268, 1274 (10th Cir. 2000)); see also Jeremy H., 95 F.3d at 284 (finding that issue that was
not raised before hearing officer had “to be exhausted before it is examined in the district
court”); Blackmon, 198 F.3d at 655 (explaining that a party must exhaust administrative
remedies as to all of “the issues upon which she seeks judicial review”).
In this case, there were only two issues before the hearing officer: (1) did the School
District accurately determine that C.L.’s behavior was not a manifestation of his disabilities, and
(2) was it appropriate for the School District to impose the same discipline on C.L. as it would
have imposed on a non-IDEA-eligible student for a violation of the School District’s code of
conduct? Hr’g Officer’s Decision 3. Thus, while Plaintiffs might be correct that they have
“already exhausted administrative remedies with respect to [C.L.’s] placement,” Pls.’ Br. 11,
they have not done so with respect to the litany of other allegations raised in the Amended
Complaint. Indeed, contrary to Plaintiffs’ argument, the “central element” of their 75-page
Amended Complaint is not the violation of the IDEA found by the hearing officer. Rather, the
gravamen of the allegations in the Amended Complaint relate to the alleged denial of FAPE or
acts of alleged retaliation that occurred prior to Plaintiff’s expulsion. None of these allegations
were raised at the administrative level. However, “the plain language of the IDEA required
[Plaintiffs] to file a separate administrative complaint” raising these allegations “and exhaust all
administrative remedies regarding that complaint before filing a judicial action.” M.T.V., 446
F.3d at 1159. This would have given “educational professionals” the opportunity to take “the
first crack at formulating a plan to overcome the consequences of educational shortfalls” and
fashion appropriate relief. Batchelor, 759 F.3d at 276 (internal quotation marks omitted).
20
Accordingly, unless an exception applies, Plaintiffs’ claims must be dismissed.
4.
Does an exception apply?
Plaintiffs argue that their claims are excused from the IDEA’s exhaustion requirement
because (a) further exhaustion would be futile; (b) they challenge the implementation, and not
the content, of C.L.’s IEP; and (c) they seek monetary damages for prospective education at a
private school and compensatory and punitive damages – none of which is available under the
IDEA.11 None of these exceptions are applicable here, however.
a.
Futility Exception
Courts have applied the “futility exception where the plaintiff had previously exhausted
administrative remedies, and where the factual record was sufficiently developed.” Batchelor,
759 F.3d at 280. Several district courts in this circuit “have also expanded this rule to situations
where the plaintiff sought remedies unavailable under the IDEA, and where the court was not
presented with educational issues to be resolved.” Id. (collecting cases) (emphasis added).
In an attempt to bring their claims within this exception, Plaintiffs argue there are no
other educational issues to be resolved because the hearing officer reviewed the entire record,
11.
Our Court of Appeals recently identified four separate situations where exhaustion is not
required: “(1) exhaustion would be futile or inadequate; (2) the issue presented is purely a legal
question; (3) the administrative agency cannot grant relief; and (4) exhaustion would cause
severe or irreparable harm.” D.E. v. Cent. Dauphin Sch. Dist., 765 F.3d 260, 275 (3d Cir. 2014).
However, the first, second, and third exceptions are often conflated. See, e.g., W.B. v. Matula, 67
F.3d 484, 496 (3d Cir. 1995) (explaining that it has held “where the relief sought in a civil action
is not available in an IDEA administrative proceeding, recourse to such proceedings would be
futile and the exhaustion requirement is excused”); Batchelor, 759 F.3d at 280 (discussing scope
of the futility exception as applied by district courts in this circuit) (internal citations omitted). In
addition, although the Court of Appeals discussed the implementation exception in Batchelor, it
recognized that “[t]here is no binding appellate precedent” applying it in this circuit. Id. at 278.
Nonetheless, district courts in this circuit have recognized this exception, seemingly treating it as
a subset of the futility exception. See, e.g., Derrick F., 586 F. Supp. 2d at 294 (explaining that
“[e]xhaustion is generally futile where a plaintiff challenges a school district’s failure to
implement an IEP”).
21
found that the School District violated the IDEA, and ordered the formulation of an IEP for C.L.
The hearing officer’s findings “are now the ‘law of the case,’” and so there is nothing left for the
hearing officer to do. Pls.’ Br. 8.
Not so. As already explained, the hearing officer only considered two narrow issues,
which related solely to whether the conduct for which C.L. was expelled was a manifestation of
his disabilities and in turn whether his change of placement was proper. Now, however, Plaintiffs
are attempting to raise claims about the provision of FAPE before Plaintiff’s expulsion. True, the
hearing officer heard evidence related to this period of time. But she did not consider the specific
allegations Plaintiffs now raise and had no opportunity to consider whether such allegations
amounted to a violation of the IDEA and, if so, how they could be remedied under the statute.
The hearing officer should be given this opportunity before the Court wades into this
dispute, for the hearing officer has the ability to provide Plaintiffs with a remedy for the alleged
harms to C.L. For example, if the hearing officer finds a violation or various violations of the
IDEA, she could award compensatory education – which could include compensatory placement
in a private school12 – for the periods during which a FAPE was allegedly denied before C.L.’s
expulsion. See, e.g., Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1286 (11th Cir. 2008)
12.
Plaintiffs submit that they do not request compensatory education, which they describe as
“reimbursement for past education failures,” but instead, request payment “future payment for
private school,” which they claim “is not available under the IDEA.” Pls.’ Br. at 13-14. This
statement, however, is at odds with the very first paragraph of the Amended Complaint, which
states that Plaintiffs do in fact seek compensatory education. See Am. Compl. ¶ 1. Similar
statements appear elsewhere in the Amended Complaint. Id. ¶ 15 (noting that Plaintiffs seek
“monetary damages in the nature of future compensatory education under the IDEA”). In
addition, Plaintiffs do not cite any authority for the distinction they attempt to draw between
compensatory education and payment for future private school tuition. The latter, it would seem,
is merely a subset of the former, which could be awarded under certain circumstances by a
hearing officer. See, e.g., Draper, 518 F.3d at 1285. And, importantly, “the administrative
hearing is a proper forum to resolve financial liability for the child’s private educational
program.” N.S. v. Com., Dep’t of Educ., 875 F. Supp. 273, 275 (E.D. Pa. 1995).
22
(“We do not read the Act as requiring compensatory awards of prospective education to be
inferior to awards of reimbursement . . . . Although it ordinarily has a structural preference for
special education in public schools, the Act does not foreclose a compensatory award of
placement in a private school.”); Ferren C. v. School Dist. of Philadelphia, 595 F. Supp. 2d 566,
577 (E.D. Pa. 2009), aff’d, 612 F.3d 712 (3d Cir. 2010) (“Courts have often awarded
compensatory education in the form of tuition reimbursement or an injunction requiring school
districts to pay for private school tuition or other services.”). The hearing officer could also
consider whether K.B. is entitled to a tuition reimbursement to cover the costs already expended
in sending C.L. to private school, insofar as K.B. may have fronted the costs of C.L.’s private
placement (which is not clear from the record). See Batchelor, 759 F.3d at 277 (explaining that
“if parents have paid for a disabled child’s education because the public schools were failing to
provide a FAPE, the reimbursement of such expenses constitutes appropriate relief under the
IDEA”).
Accordingly, Plaintiffs are not correct that there is nothing to gain from further
administrative proceedings. And in accordance with the policies underlying the IDEA, a state
hearing officer – and not this Court – should decide in the first instance whether any of the relief
afforded by the IDEA should be provided in this case.
b.
Implementation Exception
Plaintiffs next contend that their claims are exempt from the IDEA’s exhaustion
requirement under the implementation exemption. As Plaintiffs argue, some courts have found
that exhaustion is not required when a plaintiff is only challenging a school’s failure to
implement an IEP, as opposed to the content of the IEP. See, e.g., Derrick F., 586 F. Supp. 2d at
295. In this case, however, Plaintiffs do not claim that the School District failed to comply with
23
the terms of an already-existing IEP. Indeed, they could not make such a claim because the
School District never developed an IEP for C.L., so there was nothing for the School District to
implement.13 Rather, as in Batchelor, where the Third Circuit refused to apply the
implementation exception, Plaintiffs “here make substantive claims under the IDEA for failure to
provide a FAPE, in addition to claims for retaliation.” 759 F.3d at 280. Therefore, the
implementation exception clearly does not apply.
c.
Monetary Damages Exception
Finally, Plaintiffs submit that they are excused from the exhaustion requirement because
they do not seek remedies available under the IDEA, but instead seek monetary damages for the
violations of the IDEA already found by the hearing officer. Plaintiffs are correct that part of the
relief they seek – compensatory and punitive damages – is not available under the IDEA.14
Chambers, 587 F.3d at 186. But, as the Court of Appeals recognized in Batchelor, that “is not
dispositive, for several reasons.” 759 F.3d at 276.
For starters, as in Batchelor, Plaintiffs here do not limit their requested relief to
compensatory and punitive damages. See id. Rather, at various points in the Amended
Complaint, Plaintiffs also request attorney’s fees and costs, “other appropriate judicial relief,”
and compensatory education. Therefore, despite Plaintiffs’ protestations to the contrary, the
IDEA can provide at least some of the specific relief they seek.
More importantly, though, even if Plaintiffs had limited their requested relief to remedies
13.
Elsewhere in Plaintiffs’ brief, they acknowledge that the gist of their claims is that the
School District “failed to even initiate an IEP,” thereby denying C.L. of a FAPE. Pls.’ Br. 12.
This directly calls their reliance on the so-called implementation exception into question: how
could the School District fail to implement an IEP that it never initiated in the first place?
14.
In light of Chambers, Plaintiffs’ request for compensatory and punitive damages with
respect to their IDEA claim “fail[s], irrespective of exhaustion, as such damages are unavailable”
under the statute. Batchelor, 759 F.3d at 277 n.13.
24
that are not available under the IDEA, that would still not allow them to skirt the exhaustion
requirement. The remedies sought in a plaintiff’s complaint “do not dictate the applicability of
the IDEA to their claims.” 759 F.3d at 277. Instead, “‘the theory behind the grievance may
activate the IDEA’s process, even if the plaintiff wants a form of relief that the IDEA does not
supply.’” Id. at 276 (quoting Charlie F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 992
(7th Cir. 1996)).
Here, as the Court has already exhaustively explained in prior sections of this
Memorandum Opinion, the thrust of Plaintiffs’ grievance is that the School District failed in its
obligations under the IDEA during C.L.’s brief period of enrollment at the start of the 2014-15
school year. They allege, among other things, that the School District purposefully delayed the
formulation of an IEP for C.L., failed to comply with the least restrictive environment
requirement, and retaliated against C.L. / created a hostile learning environment by locking him
in a “safe” room, having him escorted around the School by a police escort, preventing K.B.
from attending “necessary meetings,” providing him with an aide with whom he did not get
along, directing the principal to drag C.L. through the halls in front of fellow students,
suspending him, and engaging in an illegal manifestation determination hearing and suspension.
Among other injuries, Plaintiffs claim that C.L. was denied a FAPE, “and said injuries continue
to interfere with his education and social activities.” Am. Compl. ¶ 163. This is the quintessential
form of educational harm that the IDEA was designed to address. See Batchelor, 759 F.3d at 278
(finding that the “genesis and manifestations” of the student’s problems were educational where
his parents claimed that “as a result of the District’s bad behavior, which included its failure to
provide [the student] with a FAPE, ‘[the student] has suffered great harm to his educational
achievement’”) (internal citation and quotation marks omitted); E.K. v. River Dell Reg’l Sch.
25
Dist. Bd. of Educ., No. 11-CV-00687 CCC, 2015 WL 1421616, at *5 (D.N.J. Mar. 26, 2015)
(“Deficiencies in the provision of a free appropriate public education are the very grievances
upon which the IDEA’S administrative process was built to address.”).
The nature of the injuries claimed by C.L. readily distinguishes this case from M.C., 2015
WL 2231915, the primary case on which Plaintiffs rely. In M.C., the student’s parents alleged
that she was sexually assaulted on a school bus by a fellow student and brought claims under,
inter alia, the RA and ADA against the School District and others seeking compensatory and
punitive damages. Id. at *1-3. Contrasting the student’s claims with the claims in Batchelor, the
court found that they were “not educational in nature but are more akin to a personal injury claim
incapable of remedy by the IDEA administrative process.” Id. at *6. Importantly, the court
reasoned, the student did not suffer “any ‘educational shortfalls’ that could be remedied by
educational professionals in the IDEA process.” Id. On the contrary, she claimed that she
suffered anxiety as a result of the alleged sexual abuse, manifested by “trouble sleeping, bouts of
crying, nightmares, feeling guilt and shame regarding the abuse, wetting the bed at night, and
feeling helpless in light of the terrible incident she endured.” Id. at *7. Further distinguishing her
claim from that in Batchelor, the student “admitted that she did not suffer educationally . . . and
did not require adjustment of her IEP or educational placement.” Id. By contrast, in this case,
Plaintiffs expressly allege that C.L. was denied a FAPE and that the School District’s alleged
conduct has interfered with his education. Am. Compl. ¶ 163 (alleging that C.L.’s “injuries
continue to interfere with his education”). Such “educational shortfalls” can be remedied through
the IDEA’s administrative process. Batchelor, 759 F.3d at 276.
Plaintiffs’ citation to McCachren v. Blacklick Valley School District, 217 F. Supp. 2d 594
(W.D. Pa. 2002), is likewise not persuasive. Yet while the court in McCachren did hold that the
26
plaintiffs were excused from the exhaustion requirement because they only sought compensatory
and punitive damages under § 1983 for violations of their IDEA rights, this holding is suspect in
the wake of Batchelor. No longer can a plaintiff circumvent the IDEA’s exhaustion requirement
by limiting its requested relief to compensatory and punitive damages. See A.D., 2015 WL
892643, at *14 (D.N.J. Mar. 2, 2015) (explaining that after Batchelor, a plaintiff cannot
“‘sidestep the exhaustion requirements of IDEA,’ by seeking monetary damages”) (quoting
Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 488 (2d Cir. 2002)).
The focus of the inquiry is instead on whether the substance of the grievance could be addressed
through the administrative process. In this case, for the reasons hereinabove stated, it could be.
In sum, Plaintiffs’ IDEA, RA, ADA, and Section 1983 claims are each subject to the
IDEA’s exhaustion requirement. Since Plaintiffs did not raise these claims at the administrative
level, and since Plaintiffs have failed to establish the applicability of any of the exceptions to the
exhaustion requirement, these claims will be dismissed for lack of subject matter jurisdiction
under Fed. R. Civ. P. 12(b)(1), albeit without prejudice.15 After the alleged “educational
deficiencies have been addressed” through the IDEA’s administrative process, Plaintiffs “may
seek further remedy in court pursuant to statutory schemes allowing for compensatory and
punitive damages, such as Section 504 and the ADA provide.” Batchelor, 758 F.3d at 278.
B.
State Law Claims
Having determined that Plaintiffs’ federal claims must be dismissed for lack of subject
matter jurisdiction, the Court will decline to exercise supplemental jurisdiction over their state
15.
Since the Court will dismiss the entire Amended Complaint for failure to exhaust
administrative remedies, the Court need not address the individual Defendants’ two additional
arguments in support of dismissal of Plaintiffs’ claims against them: that the official-capacity
claims against them are duplicative of the claims against the School District; and that they are
entitled to qualified immunity.
27
law claims. See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise
supplemental jurisdiction . . . [if] the district court has dismissed all claims over which it has
original jurisdiction.”); Byrd v. Shannon, 715 F.3d 117, 128 (3d Cir. 2014) (affirming dismissal
of state law claims where district court dismissed all of the plaintiff’s federal claims).
IV.
Conclusion
For the foregoing reasons, Defendants’ motion to dismiss will be GRANTED, and
Plaintiffs’ Amended Complaint will be DISMISSED in its entirety without prejudice. An
appropriate order follows.
McVerry, S.J.
28
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
C.L., by and through his parent and natural
guardian, K.B.,
Plaintiffs,
v.
MARS AREA SCHOOL DISTRICT, ADAM
M. KOSTEWICZ, DR. WILLIAM J.
PETTIGREW, J. DAYLE FERGUSON,
REBECCA BROWN, GORDON
MARBURGER, STEVEN B. BOGGS, RITA
DORSCH, JANE DUNN, JOHN KENNEDY,
CHRISTINE VELENTA and BONNIE L.
WEAVER,
Defendants.
)
)
)
) 2:14-cv-1666
)
)
)
)
)
)
)
)
)
)
)
ORDER
AND NOW, this 30th day of June, 2015, in accordance with the foregoing Memorandum
Opinion, it is hereby ORDERED, ADJUDGED, and DECREED that Defendants’ MOTION
TO DISMISS AMENDED COMPLAINT IN CIVIL ACTION PURSUANT TO RULE 12(b)(1)
AND 12(b)(6) (ECF No. 25) is GRANTED, and Plaintiffs’ Amended Complaint is
DISMISSED in its entirety without prejudice. The Clerk shall docket this case CLOSED.
BY THE COURT:
s/ Terrence F. McVerry
Senior United States District Judge
cc:
John P. Corcoran , Jr., Esq.
Email: jpc@jgcg.com
Thomas E. Breth, Esq.
Email: tbreth@dmkcg.com
(via CM/ECF)
29
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