The opinion of the court was delivered by: Judge Caputo
Presently before the Court is Defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 13). For the reasons set forth below, Defendant's motion will be granted in part and denied in part. Defendant's motion will be denied to the extent their arguments rely on lack of standing, as the parent Plaintiffs have sufficiently alleged their standing to bring a cause of action. Defendant's motion will be granted as to the claims brought pursuant to Section 1983 of Title 42 of the United States Code, as the underlying violations were alleged to be violations of the IDEA and Section 504 of the Rehabilitation Act. Defendant's motion will be granted as to claims for compensatory damages, as such damages are not permitted pursuant to the IDEA. Defendant's motion to dismiss will be denied on the grounds that the Plaintiffs are permitted to bring an action in court, and are not limited to the appeal of the hearing officer's decision. Defendant's motion will be granted as to claims for punitive damages, as such damages are not available against a municipality for violations of the IDEA, Section 504, or the ADA. Defendant's motion will also be granted as to the claim for attorneys fees, as attorneys fees are barred by Woodside v. Sch. Dist. of Philadelphia Bd. of Educ., 248 F.3d 129 (3d Cir. 2001).
As this case is brought pursuant to Title 42 of the United States Code, section 1983, Title 20 of the United States Code Section 1415, and Section 504 of the Rehabilitation Act of 1973, jurisdiction exists under section 1331 of Title 28 of the United States Code ("federal question").
The facts alleged in the Complaint are as follows.
Plaintiff C.J.G. is a minor student enrolled in the Scranton School District. (Compl. ¶ 1, Doc. 1.) Plaintiffs J.J.G. and A.C.G. are the parents and natural guardians of C.J.G. (Id. ¶ 2.) Defendant is the Scranton School District, where the Plaintiff C.J.G. was enrolled. (Id. ¶ 3.)
Plaintiff C.J.G. is currently seven (7) years old and is diagnosed with Down Syndrome. (Id. ¶11.) He has numerous conditions, both physical and mental, including a compromised immune system; cardiac problems; possible atlanto axial instability; reflux and related issues; serious dental problems; and a significant feeding/eating disorder, includingdysphagia (an inability to swallow).(Id. ¶¶ 13-16.) Plaintiff C.J.G. is spoon-fed soft meals, and is unable to feed himself. (Id. ¶¶ 17, 19.) He is also unable to drink liquids from a cup, and can only be provided liquids from a bottle with a nipple, for which he also requires assistance. (Id. ¶ 21.)
On March 30, 2006, certified correspondence was sent by the parent Plaintiffs to the Defendant, advising the Defendant that the minor-Plaintiff was requesting a multi- disciplinary evaluation for the 2006-2007 school year. (Id. ¶ 22.) Defendant forwarded a Permission to Evaluate form, which the parent Plaintiffs signed and returned with an attachment prepared by the parent Plaintiffs, identifying issues to be addressed, including the feeding of meals. (Id. ¶ 23.) A meeting was scheduled and held between the parent Plaintiffs and several District representatives on April 25, 2006 at the Robert Morris School in Scranton. (Id. ¶ 24.) At the meeting, the parent Plaintiffs asked why the evaluation forms for signature did not include an eating/feeding evaluation as previously requested. (Id. ¶ 25.) The parent Plaintiffs were advised that the Defendant District would not conduct an eating/feeding evaluation because it was a medical issue. (Id.) The parent Plaintiffs also requested an assistive technology evaluation, which was denied by the District. (Id. ¶ 26.)
On May 2, 2006, the parent Plaintiffs filed a due process complaint notice ("Due Process Complaint #1") with the Office of Dispute Resolution, averring that the District denied the eating/feeding evaluation for the minor-Plaintiff, and that the parent Plaintiffs had requested such an evaluation. (Id. ¶ 27.) The Defendant District filed an Answer to this complaint stating that they did not agree with the eating/feeding evaluation, and that they offered to review the recommendation with the District's speech therapist, occupational therapist, the chief school nurse, and the school nurse. (Id. ¶ 28.) A hearing was scheduled for June 26, 2006 before Hearing Officer Linda M. Valentini. (Id. ¶ 29.) However, on May 19, 2006, a resolution meeting was held between the parent Plaintiffs and representatives of the District, where the District verbally agreed to perform an eating/feeding evaluation on the student. (Id. ¶¶ 33-34.) Plaintiffs allege that this verbal agreement was made to induce the Plaintiffs to withdraw their complaint before the Office of Dispute Resolution. (Id. ¶ 35.) After much prodding, the District executed a written agreement agreeing to perform an eating/feeding evaluation prior to June 16, 2006. (Id. ¶ 41.)
At the May 19, 2006 resolution meeting, the parent Plaintiffs also raised the issue of assistive technology, but were told that the District do not do assistive technology evaluations as part of the IEP evaluation process. (Id. ¶¶ 42, 43.) Rather, the District stated that an assessment is done within the first six (6) or so weeks of school. (Id. ¶ 44.) On May 26, 2006, the parent Plaintiffs filed another due process complaint ("Due Process Complaint #2") requesting an assistive technology evaluation. (Id. ¶ 45.) A resolution meeting regarding this complaint occurred on June 8, 2006. (Id. ¶ 46.) Prior to the hearing on Due Process Complaint #2, the District agreed to perform an assistive technology evaluation. (Id. ¶ 47.) The agreement to conduct an assistive technology evaluation was included in the agreement regarding the eating/feeding evaluation. (Id. ¶ 48.)
The Plaintiffs further allege that the Defendant District did not provide qualified Student Team members to perform the eating/feeding and assistive technology evaluations. (Id. ¶ 55.) On May 25, 2006, only two (2) team members, the occupational therapist and the speech correctionist, observed Plaintiff A.C.G. spoon-feed the minor-Plaintiff his already-prepared mechanical soft lunch for approximately twenty (20) minutes. (Id. ¶ 58.) The team members did nothing but observe, and did no independent testing, did not attempt to feed the minor-Plaintiff, and did not examine his mouth or tongue. (Id. ¶ 60.) At no time did the District's psychologist or physical therapist have any contact with the Plaintiffs regarding the eating/feeding evaluation. (Id. ¶¶ 63, 64.)
The Defendant District also failed to provide an evaluation on assistive technology for the minor-Plaintiff. (Id. ¶ 67.) The evaluation consisted of an observation of the minor-Plaintiff working at home on his parents' computer for less than one (1) hour on July 21, 2006 by the District's speech correctionist, psychologist, and occupational therpaist. (Id. ¶ 69.)
On August 11, 2006, the District sent correspondence to the parent Plaintiffs, stating that the evaluations were completed, and that an individualized education program ("IEP") would be conducted. (Id. ¶ 71.) The parent Plaintiffs attended an IEP meeting on August 23, 2006, where the parents advised the Defendant that the evaluations were not properly performed. (Id. ¶ 82.) Subsequent to the IEP meeting, on August 26, 2006, the parent Plaintiffs received an IEP prepared by the Defendant dated June 8, 2006. (Id. ¶ 73.)
On or about September 6, 2006, the Defendant District filed a due process complaint ("Due Process Complaint #3") alleging that three (3) evaluations were appropriately conducted - eating/feeding, assistive technology, and speech/language. (Id. ¶ 74.) This complaint was assigned to Hearing Officer William Culleton, Jr. (Id. ¶ 75.) Hearing Officer Culleton sustained all of the District's objections to the introduction of the written agreement regarding the eating/feeding and assistive technology evaluations. (Id. ¶¶ 76, 77.) Following Hearing Officer Culleton's evidentiary ruling precluding the written agreement from evidence, the parent Plaintiffs filed a due process complaint ("Due Process Complaint #4") with the Office of Dispute Resolution on January 2, 2007. (Id. ¶ 78.) An amended complaint was filed on January 4, 2007. (Id.) Due Process Complaint #4 alleged that the District failed to implement the written agreement because it did not conduct an eating/feeding or assistive technology evaluation on the minor-Plaintiff. (Id.) This complaint was assigned to Hearing Officer Marcie Romberger, and was not consolidated with Due Process Complaint #3. (Id. ¶¶ 78, 80.)
On March 15, 2007, Hearing Officer Romberger dismissed Due Process Complaint #4, finding that there was no disagreement as to whether the evaluations were performed. (Id. ¶ 84.) On March 22, 2007, a decision was rendered by Hearing Officer Culleton in favor of the District on Due Process Complaint #3. (Id. ¶¶ 6, 7, 9.) On April 27, 2007 and May 6, 2007, the Special Education Appeals Panel rendered decisions affirming the decisions. (Id. ¶¶ 6, 7.)
On July 20, 2007, the Plaintiffs filed their Complaint. (Doc. 1.) The Defendant filed the present motion to dismiss on September 24, 2007. (Doc. 6.) The motion is fully briefed and ripe for disposition.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all of the facts alleged in the complaint, Plaintiff has not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. ----, 127 S.Ct. 1955, 1960, 167 L.Ed.2d 929 (2007) (abrogating "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). As a result of the Twombly holding, Plaintiff must now nudge its claims "across the line from conceivable to plausible" to avoid dismissal thereof. Id. The Supreme Court noted just two weeks later in Erickson v. Pardus, --- U.S. ----, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam), that Twombly is not inconsistent with the language of Federal Rule of Civil Procedure 8(a)(2), which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Specific facts are not necessary; the statement need only " 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.' " Id. (citing Twombly, 127 S.Ct. at 1959 (quoting Conley, 355 U.S. at 47)).
There has been some recent guidance from the Courts of Appeals about the apparently conflicting signals of Twombly and Erickson. The Second Circuit Court of Appeals reasoned that "the [Supreme] Court is not requiring [in Twombly] a universal standard of heightened fact pleading, but is instead requiring a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (emphasis in original). Similarly, the Seventh Circuit Court of Appeals stated that "[t]aking Erickson and Twombly together, we understand the Court to be saying only that at some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8." Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007).
Until further guidance, this Court will follow the guidance of the Second and Seventh Circuit Courts of Appeals, and apply a flexible "plausibility" standard, on a case-by-case basis, in those contexts in which it is deemed appropriate that the pleader ...