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Patrick B., A Minor, By and Through His Parent, Keshia B., of York, Pa v. the Paradise Protectory and Agricultural School

November 10, 2011

PATRICK B., A MINOR, BY AND THROUGH HIS PARENT, KESHIA B., OF YORK, PA,
PLAINTIFF,
v.
THE PARADISE PROTECTORY AND AGRICULTURAL SCHOOL, INC., ET AL.,
DEFENDANTS



The opinion of the court was delivered by: Judge Sylvia H. Rambo

MEMORANDUM

Before the court are two motions to dismiss, one filed by Defendant Lincoln Intermediate Unit ("LIU") (Doc. 18) and one filed jointly by The Paradise Protectory and Agricultural School, Inc.; Paradise School for Boys; Catholic Charities of the Diocese of Harrisburg, Pennsylvania, Inc.; and the Roman Catholic Diocese of Harrisburg ("Paradise Defendants") (Doc. 20). Plaintiff brought claims pursuant to Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794; and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq. Defendants seek to dismiss those claims for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) for failure to exhaust administrative remedies and also pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. For the reasons that follow, the court will grant Defendants' motions pertaining to Plaintiff's failure to exhaust administrative remedies.

I. Background

A. Facts*fn1

This action is brought by Plaintiff Patrick B. ("Patrick" or "Plaintiff"), a minor child, by and through his parent, Keshia B., seeking monetary damages, declaratory relief, and reasonable attorneys' fees and costs under Section 504 and the ADA (Count I) and Pennsylvania law (Count II). (Doc. 1, Compl. ¶¶ 1, 54-62.)

Plaintiff is a student who is eligible for special education services as a child with an Emotional Disturbance within the meaning of that term under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., and its regulations. (Id. at 2) (citing 34 C.F.R. § 300.7(c)(4).) On January 23, 2008, due to escalating aggression toward peers and staff at Lincoln Charter School, Patrick, a first grade student at the time, was admitted as an inpatient to Universal Community Health York Partial Program, the Meadows Psychiatric Center ("Meadows"). (Id. at 3.) Upon discharge from Meadows, the School District of the City of York ("District") and Defendant LIU determined that the District did not have an appropriate educational program and placement for Patrick because Patrick needed "medication management and therapy." (Id. at 4.)

Pursuant to his Individualized Education Program ("IEP"), LIU and the District determined that Defendant Paradise School for Boys ("Paradise") could meet Patrick's needs. (Id. at 5.) LIU was designated as Patrick's local educational agency ("LEA") pursuant to 34 C.F.R. § 300.28. (Id.) On February 25, 2008, the District issued a Notice of Recommended Educational Placement ("NOREP") for Patrick to attend Paradise. (Id. at 5.) On February 29, 2008, Keshia B. approved the NOREP, (id. at 46), and on March 4, 2008, Patrick started school in the Emotional Support program at Paradise (id. at 47). Patrick attended Paradise from March 4, 2008, through May 22, 2009. (Id. at 48.) During that time, Plaintiff alleges that Defendants failed to (1) conduct appropriate evaluations to identify all of Patrick's educational needs, (2) undertake an appropriate Functional Behavior Assessment ("FBA"), and (3) provide appropriate IEPs. (Id. at 48.)

Plaintiff asserts that, as a result of Defendants' alleged failure to appropriately provide for Patrick's educational, emotional, social, and behavioral needs, Patrick's behaviors escalated, ultimately resulting in a serious injury to Patrick and his discharge from Paradise. (Id. at 49.) From April 2009, through May 15, 2009, Paradise noted twelve incidents of Patrick's escalating behavior. (Id. at 50.) On May 15, 2009, a behavioral incident occurred wherein a staff member attempted to restrain Patrick by grabbing his wrist. (Id.) As a result, Patrick sustained a fractured wrist, resulting in multiple hospital visits and causing Patrick to suffer from sadness and depression. (Id. at 51.) A neuropsychological report conducted in September 2010 concluded that repeated restraints in the educational setting had reduced Patrick's initiative and engagement in the classroom. (Id.)

On May 21, 2009, Paradise and LIU completed a Re-Evaluation Report ("RR"). (Id. at 52.) The complaint alleges that the RR was inadequate because, despite noting that Patrick "is not working on grade level," it failed to conduct any cognitive testing. (Id.) Plaintiff further alleges that Paradise failed to administer any behavioral rating scales, such as the Behavior Assessment System for Children ("BASC") and also failed to provide that a functional behavioral assessment ("FBA") be conducted. (Id.) Plaintiff also alleges that Plaintiff's IEP dated February 28, 2008 was substantively inadequate as a result of the failure to provide a FBA, the failure to incorporate appropriate Evaluation Reports ("ER"), and for failure to provide any math, reading, or writing goals. (Id. at 45.) In short, Plaintiff is seeking relief because "Defendants have failed to properly identify and program for Patrick's needs, and have failed to fulfill the substantive and procedural requirements of the IDEA, including the requirements to: 1) conduct appropriate evaluations; 2) create appropriate Evaluation Reports and Re-evaluation Reports; 3) create and implement proper [IEPs]; and 4) provide Patrick with an appropriate educational placement, thereby denying Patrick a 'free appropriate public education' ("FAPE") as required by the IDEA and Section 504." (Id. at 6).

B. Procedural History

Plaintiff, by and through his parent, brought this action on May 13, 2011. (Doc. 1.) On September 6, 2011, Defendant LIU filed a motion to dismiss (Doc. 18) and supporting brief (Doc. 19). On September 9, 2011, Paradise Defendants filed a motion to dismiss, joining in LIU's motion,*fn2 (Doc. 20) followed by a brief in support on September 13, 2011 (Doc. 22). Plaintiff filed a brief in opposition on September 20, 2011. (Doc. 23.) On October 3, 2011, Defendant LIU filed a reply brief. (Doc. 27.) Paradise Defendants have not filed a reply brief, and the time to do so has now expired. Accordingly, the motions are ripe for disposition.*fn3

II. Standard

"'A motion to dismiss under Rule 12(b)(1) challenges the jurisdiction of the court to address the merits of the plaintiff's complaint.'" Vieth v. Pennsylvania, 188 F. Supp. 2d 532, 537 (M.D. Pa. 2002) (quoting Ballenger v. Applied Digital Solutions, Inc., 189 F. Supp. 2d 196, 199 (D. Del. 2002)). The motion should be granted where the asserted claim is "insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." Coxson v. Pennsylvania, 935 F. Supp. 624, 626 (W.D. Pa. 1996) (citing Growth Horizons v. Delaware County, 983 F.2d 1277, 1280-81 (3d Cir. 1993)). A plaintiff's failure to exhaust his administrative remedies is a jurisdictional issue, such that the appropriate device to raise this issue is a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction. Matula, 67 F.3d at 492-93; Shadie v. Forte, 2011 U.S. Dist. LEXIS 14739, at * 7 (M.D. Pa. Feb. 15, 2011). Unlike dismissal under Federal Rule of Civil Procedure Rule 12(b)(6), dismissal ...


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