The opinion of the court was delivered by: Judge Sylvia H. Rambo
Before the court are two motions to dismiss Plaintiff's amended complaint, one filed by Defendant Lincoln Intermediate Unit No. 12 ("LIU") (Doc. 47) 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. 46). Defendants seek to dismiss Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. For the reasons that follow, the motion will be granted in part and denied in part.
This action is brought by Plaintiff Patrick B. ("Patrick" or "Plaintiff"), a minor child, by and through his parent, Keshia B., seeking compensatory damages and reasonable attorneys' fees and costs under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.; Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794; the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq.; and Pennsylvania state law. (Doc. 43, Amended Compl. ¶¶ 1, 54-62.)*fn2
Plaintiff is a ten-year-old student who is eligible for special education services as a child with an Emotional Disturbance within the meaning of that term under the IDEA and its regulations. (Id. ¶¶ 2, 7) (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 the Universal Community Behavioral Health York Partial Program, the Meadows Psychiatric Center ("Meadows"). (Id. ¶ 3.)
While Patrick was at Meadows, the School District of the City of York (the "District") became Patrick's local educational agency ("LEA") pursuant to 34 C.F.R. § 300.28. (Id. ¶¶ 4, 42.) The District contracted with LIU for the provision of special education services for Patrick. (Id. ¶ 4.) On February 25, 2008, the District issued a Notice of Recommended Educational Placement ("NOREP") for Patrick to attend The Paradise School for Boys ("Paradise"). (Id. ¶ 42.) On February 28, 2008, Patrick's Individualized Education Program ("IEP") was revised.
(Id. ¶¶ 4, 43.) Pursuant to the IEP, LIU and the District determined that Paradise could meet Patrick's needs. (Id. ¶ 4.) On February 29, 2008, Keshia B. approved the NOREP, (Id. ¶ 45), and on March 4, 2008, Patrick started school in the Emotional Support program at Paradise (Id. ¶¶ 5, 45). Patrick attended Paradise from March 4, 2008, through May 22, 2009. (Id. ¶ 45.)
From March 2009 through May 15, 2009, Paradise noted twelve incidents of Patrick's escalating behavior. (Id. ¶ 47.) For example, on March 16, 2009, Patrick was suspended for one day for assaulting another student. (Id. ¶ 46.) On May 14, 2009, Patrick threw his math book on the floor. (Id.) When he was subsequently sent to the office, he continued to exhibit outbursts by kicking and banging his head against the wall. (Id.) Patrick was restrained and was suspended for two days. (Id.) The next day, May 15, 2009, Plaintiff shouted an obscenity at his teacher and then "went after" another student. (Id.) Patrick was restrained and he continued to kick the walls and bang his head while under restraint. (Id.) Patrick was again sent to the office and suspended for two days. (Id.) Following that incident, Patrick complained of pain in his left wrist and was sent to the nurse's office for treatment which included icing the sore areas. (Id.) Plaintiff alleges that Patrick's wrist was, in fact, broken. (Id. ¶¶ 46, 48.) Plaintiff's fractured wrist resulted in multiple hospital visits and caused Patrick to suffer from sadness and depression. (Id. ¶ 48.) 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.)
Plaintiff's complaint alleges that Paradise and LIU knowingly failed to address Patrick's behavioral concerns, even in light of the increasing danger Patrick posed to himself and others. (Id. ¶ 47.) Plaintiff alleges that rather than taking adequate steps to control Patrick's behaviors, Defendants instead used increasingly punitive and restrictive measures to address Patrick's behavior, resulting in escalating behavior and a serious injury. (Id. ¶ 45, 47.) Plaintiff also alleges that Plaintiff's revised IEP was substantively inadequate as a result of the failure to provide a Functional Behavior Assessment ("FBA"), the failure to incorporate appropriate Evaluation Reports ("ER"), and for failure to provide adequate academic goals. (Id. ¶ 45.) In short, Plaintiff is seeking relief because Defendants have "failed [to]  conduct appropriate evaluations to identify all of Patrick's educational needs,  to undertake an appropriate [FBA] and  to develop appropriate IEPs, as required by the IDEA and Section 504." (Id. ¶ 5).*fn3
Plaintiff, by and through his parent, brought this action on May 13, 2011. (Doc. 1.) Defendant LIU and Paradise Defendants filed motions to dismiss (Docs. 18 & 20) on September 6 and 9, 2011, respectively. Defendant LIU argued that Plaintiff failed to exhaust his administrative remedies and failed to state a claim. Paradise Defendants joined in LIU's motion, and further argued for dismissal on the ground that Paradise Defendants are not "public entities" within the meaning of the ADA. At the time, Plaintiff conceded that the Paradise Defendants are not "public entities" under the ADA and therefore did not oppose the dismissal of the ADA claim against those defendants. The court ultimately granted the motion for failure to exhaust administrative remedies, and further noted for the record Plaintiff's concession that Paradise Defendants are not public entities under the ADA. (Doc. 30.) The court closed the case.
On December 7, 2011, Plaintiffs filed a Motion to Alter or Amend Judgment as well as a Motion for leave to File an Amended Complaint and Motion to Supplement the Record. (Docs. 31 & 33.) In his proposed amended complaint attached to his Motion to File an Amended Complaint, Plaintiff essentially withdrew his request for declarative relief, which was the only relief that would have required exhaustion. Finding exhaustion now not required, the court granted Plaintiff's motions and accepted the filing of the amended complaint. (Doc. 42.)
On April 13, 2012, LIU filed a motion to dismiss the amended complaint and brief in support. (Docs. 47 & 48.) Paradise Defendants also filed their own motion to dismiss, joining LIU's motion and raising additional arguments, (Doc. 46), followed by a brief in support on April 25, 2012 (Doc. 50). Plaintiff filed briefs in opposition to both motions to dismiss (Docs. 52 and 53) on April 27 and May 9, 2012 respectively. On May 24, 2012, LIU filed a reply brief. (Doc. 56.) Thus, the motion is now ripe for disposition.
When presented with a motion to dismiss for failure to state a claim, the court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions," Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), and ultimately must determine "whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The complaint must do more than allege the plaintiff's entitlement to relief; it must "show such an entitlement with its facts." Fowler, 578 F.3d at 211 (citations omitted). As the Supreme Court instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a) (alterations in original).) In other words, a claim has "facial plausibility 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. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id.
"To decide a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citations omitted); see also Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] document[s]." Pension Benefit, 998 F.2d at 1196. Additionally, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002) (citation omitted); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002) ("Although a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly reliedupon in the complaint may be ...