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STUBBS v. KLINE

December 28, 1978

Terrance STUBBS, a minor, by Josephine Goolsby, his mother and guardian, and Josephine Goolsby, Plaintiffs,
v.
Caryl M. KLINE, Individually and in her capacity as Secretary of Education of the Commonwealth of Pennsylvania, Department of Education of the Commonwealth of Pennsylvania, the State Board of Education of the Commonwealth of Pennsylvania, Frank S. Manchester, Individually and in his capacity as Deputy Secretary and Commissioner for Basic Education, Gary J. Makuch, Individually and in his capacity as Director of the Bureau of Special and Compensatory Education, William Ohrtman, Individually and in his capacity as Chief of the Special Education Programs and Services Division, Sto-Rox School District, Theodore Telep, in his capacity as superintendent of the Sto-Rox School District, Allegheny Intermediate Unit, the Home for Crippled Children, and the Highland School, Defendants



The opinion of the court was delivered by: ZIEGLER

I. History of Case

Plaintiffs, Terrance Stubbs, a handicapped child, and his mother, Josephine Goolsby, filed an original and amended complaint against the Department of Education and the State Board of Education of the Commonwealth of Pennsylvania (hereinafter Commonwealth agencies), four individual officers of those agencies, the Sto-Rox School District, the Superintendent of the School District, the Allegheny Intermediate Unit (AIU), the Home for Crippled Children, and the Highland School. The action was instituted pursuant to: (1) the Education of the Handicapped Act; *fn1" (2) the Rehabilitation Act of 1973; *fn2" (3) 42 U.S.C. § 1983; (4) 28 U.S.C. § 1331; (5) the United States Constitution and (6) the laws of the Commonwealth of Pennsylvania. Plaintiffs allege that defendants denied Terrance Stubbs a free appropriate education from September of 1977 to May of 1978 in violation of the laws and Constitution of the United States and the Commonwealth of Pennsylvania. Nominal, compensatory and punitive damages are demanded. *fn3" Presently before the court are the Rule 12(b) motions to dismiss of the following defendants: (1) the Commonwealth agencies; (2) the individual officers of those agencies; (3) the Allegheny Intermediate Unit; and (4) the Home for Crippled Children.

 II. Statement of Facts

 It is well established that in considering a motion to dismiss a district court must assess the allegations of the complaint in a light most favorable to the plaintiff and may not dismiss unless it appears that no facts are alleged which would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). Applying these principles to the instant case, the original and amended complaint aver that Terrance Stubbs is a handicapped child who resides in the Sto-Rox School District. He attended the Highland School from November of 1976 until August, 1977, at which time he was unlawfully excluded from that institution. On September 28, 1977, the Sto-Rox School District recommended the assignment of minor-plaintiff to the Home for Crippled Children. Plaintiff's mother approved the transfer on October 3, 1977. From September of 1977 through April of 1978, Carl DiJulio, psychologist of the Sto-Rox School District, contacted officials at AIU concerning Terrance Stubbs. AIU was asked to formulate an interim placement for Terrance and also to participate in the development of an Individualized Education Program (IEP), neither of which were done. The Home for Crippled Children was also requested to assist in the formulation of an IEP, which it similarly failed to do.

 On November 2, 1977, plaintiff's mother requested a due process hearing pursuant to 20 U.S.C. § 1415(b)(2) *fn4" concerning denial of a free appropriate education for her child. The hearing was conducted on January 25, 1978, and a decision was rendered in February of 1978 which required: (1) placement of Terrance Stubbs in the Home for Crippled Children as soon as possible; (2) interim placement of minor-plaintiff; and (3) development of an IEP.

 On March 1, 1978, the Division of Special Education of the Department of Education of the Commonwealth of Pennsylvania received an application for placement of Terrance at the Home for Crippled Children. The Department did not approve the placement and funding until March 28, 1978. Moreover, plaintiffs allege that individual officers of the Commonwealth had knowledge that the child was not receiving a free appropriate education as early as September of 1977. On May 1, 1978, Terrance Stubbs was admitted to the Home for Crippled Children as a resident student.

 Plaintiffs allege that the policies and procedures described above transgressed federal and state law. Specifically, they assert that: (1) the exclusion of Terrance Stubbs from the Highland School was without notice as required by state law; *fn5" (2) the Sto-Rox School District, AIU, and the Home for Crippled Children failed to formulate an IEP for Terrance Stubbs; *fn6" (3) the Department of Education scheduled the due process hearing of January 25, 1978, beyond the time prescribed by Pennsylvania law; *fn7" and (4) the officers of the Commonwealth agencies were aware as early as September of 1977, that Terrance Stubbs was being denied a free appropriate education, but failed to respond to plaintiff's predicament as required by law. *fn8"

 III. Discussion

 Various defendants contend that Terrance Stubbs and his mother have failed to state a claim upon which relief can be granted. The Commonwealth agencies and its officers also assert that the Eleventh Amendment is a bar to plaintiffs' claims. In the alternative, the officers of the Commonwealth assert a qualified immunity as a defense.

 We hold: Count I must be dismissed as to all defendants, including those defendants who have not moved to dismiss since this court lacks subject matter jurisdiction, Carlsberg Resources Corp. v. Cambria Sav. & L., 554 F.2d 1254 (3d Cir. 1977); Counts II through VI must be dismissed as to the Commonwealth agency defendants. The motions to dismiss of the remaining defendants as to Counts II through VI will be denied. We must stay, however, the proceedings against those defendants pending consideration of plaintiffs' claims by the Department of Health, Education, and Welfare (HEW).

 A. Subject Matter Jurisdiction Under The Education of Handicapped Act

 Plaintiffs assert that this court has original subject matter jurisdiction to adjudicate their claims pursuant to the Education of the Handicapped Act. 20 U.S.C. § 1401, et seq. We disagree.

 Section 615 of the Act provides that, whenever a complaint is filed concerning the treatment of a handicapped child, the parents or guardian "shall have an opportunity for an impartial due process hearing . . . conducted by the State educational agency or by the local educational agency or intermediate education unit, as determined by State law . . . ." 20 U.S.C. § 1415(b)(2). As the amended complaint states, plaintiff's mother requested and received a due process hearing on January 25, 1978. The hearing was conducted in accordance with Pennsylvania law. ...


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