The opinion of the court was delivered by: Honorable Timothy R. Rice United States Magistrate Judge
Defendant/Counter-Plaintiff S.D. has raised various statutory and constitutional challenges to Plaintiff/Counter-Defendant Centennial School District's ("Centennial") alleged failure to provide him with a public education because of his disability. Pursuant to Federal Rule of Civil Procedure 12(b)(6), Centennial seeks to dismiss S.D.'s amended counterclaims. For the following reasons, Centennial's motion is GRANTED in part and DENIED in part.
Twenty-year-old S.D. suffers from asthma and a lifelong gastrointestinal condition that causes nausea and cyclic vomiting. S.D. received homebound instruction between January 27, 2007 and January 27, 2009, and has not attended school since December 22, 2008. On January 23, 2009, S.D.'s parents filed a due process complaint against Centennial claiming S.D. had been denied a Free Appropriate Public Education ("FAPE") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1401 et seq., and § 504 of the Rehabilitation Act ("§ 504"), 29 U.S.C. § 794. Due Process hearings were conducted over eight sessions between April 23, 2009 and March 5, 2010. On May 19, 2010, the Hearing Officer found for S.D.'s parents.
See Complaint, Centennial Sch. Dist. v. S.D., No. 10-CV-4129 (E.D. Pa. Aug. 16, 2010) [hereinafter Complaint]; Am. Answer & Countercl., Centennial Sch. Dist. v. S.D., No. 10-CV-4129 (E.D. Pa. Apr. 18, 2011) [hereinafter Answer & Countercl.].
On August 16, 2010, Centennial sought reversal of the May 19, 2010 order, alleging the Hearing Officer was motivated by bias and incorrectly denied Centennial's motion for recusal. See Complaint. S.D. filed an Answer and Counterclaim on November 24, 2010, which it amended on April 18, 2011. See Answer & Countercl. On May 6, 2011, Centennial filed a Motion to Dismiss Counts II through VII of S.D.'s Counterclaims under Rule 12(b)(6). Centennial's Mot. to Dismiss Defendant's Amend. Countercls., Centennial Sch. Dist. v. S.D., No. 10-CV-4129 (E.D. Pa. Apr. 18, 2011) [hereinafter Centennial's Mot. to Dismiss]. S.D. opposed the motion, S.D.'s Opp'n to Centennial's Mot. to Dismiss, Centennial Sch. Dist. v. S.D., No. 10-CV-4129 (E.D. Pa. May 12, 2011) [hereinafter S.D.'s Opp'n], and Centennial replied. Reply Mem. in Support of Mot. to Dismiss, Centennial Sch. Dist. v. S.D., No. 10-CV-4129 (E.D. Pa. May 18, 2011) [hereinafter Centennial's Reply].
To survive a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556).
I must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010) (quoted case omitted). I need not, however, credit a plaintiff's "threadbare recitals of the elements of a cause of action supported by mere conclusory statements." Iqbal, 129 S. Ct. at 1949 (discussing the difference between factual and legal conclusions).
A. Count II: Modify the Compensatory Education Award Centennial seeks to dismiss Count II, which it interprets to mean S.D. wants to utilize the Hearing Officer's compensatory education award while this appeal is pending. Centennial's Mot. to Dismiss at 3-4. S.D. contends, however, that Count II seeks only to modify his compensatory education award to make him eligible to use it beyond his twenty-first birthday or high school graduation. Answer & Countercl. at 37-38. I agree with S.D.*fn1
A person has a statutory right to a FAPE until age twenty-one.
See 20 U.S.C. § 1415(a)(1)(A); see also Sch. Dist. of Phila. v. Debra A., No. 08-2924, 2009 WL 778321, at *6 (E.D. Pa. Mar. 24, 2009) ("IDEA seeks to ensure that all children with disabilities have access to FAPE including, when needed, special education related services geared to the unique needs of the child."). Despite this statutory limitation, courts have equitable power under the IDEA to grant compensatory education beyond the age of twenty-one. Florence v. Carter, 510 U.S. 7, 12 (1993) (equitable relief is appropriate if it furthers the purposes of IDEA); Ferren C. v. Sch. Dist. of Phila., 612 F.3d 712, 718 (3d Cir. 2010) ("[A]n individual over [twenty-one] is still eligible for compensatory education for a School District's failure to provide a FAPE prior to the student turning twenty-one.").
S.D. has adequately stated a claim to modify his compensatory education award, as permitted by the Third Circuit. Accordingly, I will not dismiss Count II.
Compensatory Damages based upon § 504 and § 1983 S.D. requests compensatory damages based upon § 504 and 42 U.S.C. § 1983 ("§ 1983"), for Centennial's failure to provide S.D. with an appropriate educational program and placement. In Count III, S.D. requests compensatory damages for the "value of opportunities he was denied," and in Count IV he seeks out-of-pocket expenses and lost wages incurred, and emotional distress suffered by S.D.'s parents. Answer & Countercl. at 38-41. Centennial seeks dismissal, contending Counts III and IV "are really nothing more than alleged violations of FAPE under the IDEA disguised as ADA and/or 504 claims." Centennial's Mot. to Dismiss at 5. It contends "a FAPE violation under the IDEA does not also, in and of itself, constitute a separate discrimination claim under Section 504 . . . ." Id.
Although Counts III and IV properly seek compensatory damages under § 504, they fail to state ...