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FRITH v. GALETON AREA SCH. DIST.

September 20, 1995

AARON FRITH, Plaintiff
v.
GALETON AREA SCHOOL DISTRICT, et al., Defendants


James F. McClure, Jr., United States District Judge


The opinion of the court was delivered by: MCCLURE

September 20, 1995

 BACKGROUND:

 Plaintiff Aaron Frith alleges in this civil rights action *fn1" that his constitutional rights were violated by defendants' failure to place him in an appropriate educational program to address problems stemming, directly or indirectly, from his medical condition. Plaintiff was diagnosed in the eighth grade as suffering from Tourette's syndrome, a disorder of the nervous system characterized by tics: rapid, involuntary, sudden movements, sounds and other behaviors beyond the control of the individual. This behavior sometimes takes the form of socially-unacceptable comments, such as racial epithets and four-letter words. Such comments are also involuntary. *fn2"

 Plaintiff continued to exhibit this behavior throughout his elementary education at Galeton. While enrolled at Galeton, plaintiff was, from time to time, referred for testing to determine the cause of the disruptive behavior he exhibited in the classroom. Plaintiff was referred by school officials to Cole Memorial Hospital where he was seen by Dr. Jack Goga and Widad Bazzoui, M.D. Plaintiff alleges that the doctors who saw him at Cole Memorial negligently failed to diagnosis his condition as Tourette's syndrome and prescribe an appropriate course of treatment.

 Plaintiff alleges that as a result of the actions of the Galeton school officials and the Cole Memorial medical personnel named in this action, he was unable to complete his high school education, was forced to miss one and one-half years of school, was not properly educated and had the maturity level of a twelve or thirteen year old, despite testing indicating that he has a high I.Q.

 Plaintiff left the Galeton school system at the end of the seventh grade and began attending the Coudersport Junior Senior High School in Coudersport, Pennsylvania. As a result of his previous bad experiences, plaintiff became very fearful of school. In January, 1987, Dr. Bazzoui recommended that plaintiff be institutionalized. Plaintiff's mother, Beverly Frith, decided to have his condition evaluated by another psychologist, Penny Miller, Ph.D. Dr. Miller made a provisional diagnosis of Tourette's syndrome on plaintiff's second visit, which diagnosis was subsequently confirmed, on March 19, 1987, by Dr. C. Berlin at the Hershey Medical Center. Plaintiff was then placed on medication which greatly benefitted him and markedly decreased his symptoms. Plaintiff remained, however, very fearful of school because of his prior experiences.

 Plaintiff was enrolled as a student at the Coudersport Junior Senior High School from September 1987, to January, 1991. Plaintiff alleges that defendants failed to take steps reasonably necessary to identify him as an exceptional child consistent with federal and state law. He further alleges that he was assigned to homebound instruction, a form of special education, without the benefit of the procedural safeguards to which he was entitled under the law. In 1991, plaintiff was unlawfully dismissed from school and thereby denied the opportunity to complete his education.

 Plaintiff, who was born May 5, 1973, brought this action, at age 19, for the alleged violation of his civil rights and his rights under federal statutory law by school officials and treating psychologists and psychiatrists.

 Plaintiff brings this action against: the Seneca Highlands Intermediate Unit (the Seneca Highlands IU); the Galeton Area School District (Galeton); and the Coudersport Area School District (Coudersport) and employees and administrators of those entities with whom he and his parents interacted over the years. He also brings claims against the Department of Community Mental Health (DCMH); the Charles Cole Memorial Hospital (the hospital); Dr. Widad Bazzoui; and Dr. John Goga.

 Initially, plaintiff alleged violations of his Fifth, Eighth and Fourteenth Amendment rights; the Civil Rights Act of 1981, 42 U.S.C. § 1983; the Education for the Handicapped Act (EHA) of 1975 (now the Individuals With Disability Education Act (IDEA or the Act), 20 U.S.C. §§ 1401-1485; Section 504 of the Vocational Rehabilitation Act of 1973, 29 U.S.C. § 794 (Section 504); the Pennsylvania Constitution; Pennsylvania regulatory and statutory law, and Pennsylvania common law.

 Counts I, IV, V, VI and VIII of plaintiff's original complaint *fn3" were dismissed for failure to exhaust administrative remedies and or for failure to state a cause of action. Plaintiff was granted leave to filed an amended complaint alleging facts demonstrating why the exhaustion requirement should be excused, if that is his contention.

 Plaintiff's amended complaint asserts the following claims: 1) a civil rights claim against Galeton (Count I); 2) a negligence claim against Dr. Bazzoui, Dr. Gogh, the hospital and the Galeton defendants (Count II); 3) a malpractice claim against Dr. Bazzoui and Dr. Gogh, the hospital and the Department of Community of Mental Health (Count III); 4) a civil rights claim against Coudersport defendants and the Seneca Highlands IU (Count IV); 5) an EHA claim against Coudersport and Seneca Highlands IU (Count V); 6) a section 504 claim *fn4" against Coudersport and Seneca Highlands IU (Count VI); 7) state statutory law claims against Coudersport defendants and Seneca Highlands IU (Count VII); and 8) a claim for punitive damages against all defendants (Count VIII).

 Defendants moved to dismiss the amended complaint. In an order dated January 12, 1995, this court granted defendants' Rule 12(b)(1) 12(b)(6) motions in part. Under the court's ruling, the claims which survived were:

 Count I -- civil rights IDEA claims asserted under section 1983 and grounded in the IDEA, and the Due Process Clause and Equal Protection Clauses of the Fourteenth Amendment *fn5" to the United States Constitution--with demands for relief under the IDEA limited to claims for reimbursement or compensation for educational services necessary to make up for the deficiency in those provided by the defendants--IDEA claims survive as against the school district and Seneca Highlands IU only, since for reasons explained in the prior memorandum of April 11, 1994, only those claims grounded in alleged noncompliance with the IDEA are viable. Only the school district, and possibly Seneca Highlands IU, have a legal duty to provide plaintiff with the rights accorded him under the IDEA.

 Count II -- negligence claim --survives against Drs. Bazzoui and Gogh, the Department of Community Mental Health, and Charles Cole Memorial Hospital only;

 Count III --malpractice claim--survives against Drs. Bazzoui and Gogh, the Department of Community Mental Health, and Charles Cole Memorial Hospital only;

 Count IV -- civil rights IDEA claims asserted under section 1983 -- and grounded in the IDEA, and the Due Process Clause and Equal Protection Clauses of the Fourteenth Amendment *fn6" to the United States Constitution--with demands for relief under the IDEA limited to claims for reimbursement or compensation for educational services necessary to make up for the deficiency in those provided by the defendants;

 IDEA claims survive as against the school district and Seneca Highlands IU only, since for reasons explained in the prior memorandum of April 11, 1994, only those claims grounded in alleged noncompliance with the IDEA are viable. Only the school district, and possibly Seneca Highlands IU, have a legal duty to provide plaintiff with the rights accorded him under the IDEA.

 Count V --EHA claim --survives as against Coudersport and Seneca Highlands IU only

 Count VI --Section 504 claim, Vocational Rehabilitation Act of 1973, 29 U.S.C. § 794-- survives as against Coudersport and Seneca Highlands IU only; *fn7"

 Count VII--Claims arising out of state statutory and regulatory law-- None survives for reasons stated in the prior memorandum dated April 11, 1994.

 Count VIII -Claim for punitive damages --survives as against all defendants

 All claims identified above as surviving were stricken with prejudice, and all defendants who had not yet filed an answer to plaintiff's amended complaint were granted twenty days from the date of the court's memorandum to file the same.

 The court's order and memorandum of January 12, 1995 generated the filing of the following: 1) a letter from counsel for the Coudersport defendants requesting that the January 12, 1995 order be vacated to allow the parties to supplement the record with information obtained in the course of discovery; and 2) a motion filed by plaintiff seeking additional time for the filing of a motion for reconsideration of the court's January 12, 1995 order.

 On January 31, 1995, the court entered an order: 1) vacating in part the order dated January 12, 1995; 2) granting all parties additional time to supplement the record; 3) granting plaintiff's motion for an extension as moot; and 4) granting plaintiff's motion to compel the deposition of John Garman.

 Under our order and memorandum of January 31, 1995, those claims dismissed with prejudice pursuant to the January 12, 1995 order on the ground that the remedies sought are unavailable to plaintiff, under existing law, remained dismissed with prejudice. Only those portions of the later order which dismissed, or declined to dismiss, claims on exhaustion grounds were vacated.

 Both sides were given the promised opportunity to file supplemental briefs on the exhaustion issue. Supplemental briefs and other supporting documentation has been filed, and we are now in a position to rule on the outstanding motions.

 Currently before the court are: 1) plaintiff's motion for reconsideration of the order filed January 12, 1995 (record document no. 88); 2) the Coudersport defendants' motion to dismiss plaintiff's amended complaint (record document no. 89); and 3) the Seneca Highlands IU and Galeton defendant's supplemental motion to dismiss the amended complaint (record document no. 91).

 For the reasons which follow, we will enter an order:

 1) denying as moot plaintiff's motion for reconsideration of the order dated January 12, 1995 (record document no. 88); 2) granting the motion to dismiss plaintiff's amended complaint filed by the Coudersport defendants (record document no. 89); and 3) granting the motion to dismiss plaintiff's amended complaint filed by the Seneca Highland IU and the Galeton defendants (record document no. 91). Only the claims asserted against Dr. Bazzoui, Dr. Gogh, the hospital and the Department of Community of Mental Health (Counts II and III) remain.

 DISCUSSION

 Proof that exhaustion requirement has been met

 Courts have uniformly held that plaintiffs are precluded from seeking relief in state or federal court under the IDEA or section 1983 until they have exhausted their administrative remedies. See, e.g., Christopher W. v. Portsmouth School Committee, 877 F.2d 1089, 1093-94 (1st Cir. 1989) and Stauffer by Demarco v. William Penn School District, 829 F. Supp. 742, 748 (E.D.Pa. 1993). "EHA exhaustion must occur before plaintiffs may file an action under any other federal law seeking relief that is also available under the EHA." Waterman v. Marquette-Alger Intermediate School District, 739 F. Supp. 361, 365 (M.D.Mich. 1990), and Hayes v. Unified School District No. 377, 877 F.2d 809, 812 (10th Cir.1989). Failure to exhaust administrative remedies is grounds for dismissal of the complaint on a Rule 12(b)(6) motion. Gardner v. School Board Caddo Parish, 958 F.2d 108, 111-12 (5th Cir. 1992).

 For the reasons discussed previously, the viability of plaintiff's claims asserted under the IDEA, section 504 and section 1983 against all defendants, the only federal claims asserted, all turn on the question of whether he can demonstrate that he qualifies for an exemption from the administrative exhaustion requirement.

 Although the policy of requiring exhaustion of administrative remedies is "a strong one, some exceptions have been recognized." Komninos v. Upper Saddle River Board of Education, 13 F.3d 775, 778 (3d Cir. 1994). Recognized exceptions are: 1) a showing that the parents were unaware of their right of administrative appeal because the school district failed to notify them of their right to pursue an administrative remedy; 2) a showing that the administrative process would be futile or inadequate; 3) if the issue presented is purely a legal question; 4) a showing that the administrative agency cannot grant effective relief; or 5) if requiring exhaustion "would work 'severe or irreparable harm' upon a litigant." Id. See also: Honig v. Doe, 484 U.S. 305, 327, 98 L. Ed. 2d 686, 108 S. Ct. 592 (1988); and Lester H. v. Gilhool, 916 F.2d 865 (3d Cir. 1990); and Gardner v. School Board Caddo Parish, 958 F.2d 108, 111-12 (5th Cir. 1992).

 Frith argues that he is exempt from the exhaustion requirement because his parents never received proper notice of their due process right to challenge decisions made by the district and school administrators.

 Notice requirements

 Notice requirements are imposed pursuant to 20 U.S.C. § 1415(a), which provides:

 
Any State educational agency, any local educational agency, and any intermediate educational unit which receives assistance under this subchapter shall establish and maintain procedures in accordance with subsection (b) through subsection (e) of this section to assure that children with disabilities and their parents or guardians are guaranteed procedural safeguards ...

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