United States District Court, W.D. Pennsylvania
D.C., a minor, by and through his mother, A. T., and on behalf of all others similarly situated', A.T., his mother, on her own behalf and F.T., his grandfather, on his own behalf Plaintiffs,
PITTSBURGH PUBLIC SCHOOLS; MARION PARKER; NICHOLAS SIBLE; and MARK MCCLINCHIE, Defendants.
OPINION AND ORDER
Marilyn J. Horan, United States District Judge.
D.C., a minor, by and through his mother, A.T., and on behalf
of all others similarly situated, as well as A.T. and F.T.,
who is D.C.'s grandfather, on their own behalf, bring the
within action for damages, injunctive relief, and declaratory
relief arising from the alleged unlawful restraint of D.C.
while he was a student at Pittsburgh Public Schools. (ECF No.
1). Plaintiffs bring claims against Defendant Pittsburgh
Public Schools (the District), for violations of § 504
of the Rehabilitation Act of 1973, 29 U.S.C. § 794; the
Americans with Disability Act, 42 U.S.C. § 12101 et
seq.; the Pennsylvania Human Relations Act, 43 P.S.
§ 951 et seq.; Title VI of the Civil Rights Act
of 1964, 42 U.S.C. § 2000d et seq.; and 42
U.S.C. § 1983. Plaintiffs also bring claims against the
individual Defendants, Marion Parker, Nicholas Sible, and
Mark McClinchie, for constitutional violations under 42
U.S.C. § 1983 and for intentional infliction of
emotional distress under Pennsylvania common law.
response, the District filed Motions to Dismiss under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF Nos. 8,
10). Defendants Parker and McClinchie likewise filed Motions
to Dismiss under Rule 12(b)(6). (ECF Nos. 21, 24). Defendant
Sible answered the Complaint. (ECF No. 23). The parties
briefed the issues, (ECF Nos. 8, 9, 10, 11, 21, 22, 24-28,
and 37), and the Court heard oral argument on the Motions,
(ECF No. 41).
following reasons, the District's Motion to Dismiss under
Rule 12(b)(1) will be granted, and the District's Motion
to Dismiss under Rule 12(b)(6) will be granted in part,
denied in part, and moot in part. The Motions to Dismiss
filed by Defendants Parker and McClinchie also will be
granted. Additionally, the Court will dismiss certain claims,
sua sponte, for lack of subject matter jurisdiction.
D.C. is an elementary school student enrolled in Pittsburgh
Public Schools (the District). (ECF No. 1, at ¶ 13). He
resides with his mother, Plaintiff A.T. (Mother).
Id. at ¶ 14. D.C.'s maternal grandfather,
Plaintiff F.T. (Grandfather) travels frequently from his home
in Washington, D.C, to participate in D.C.'s care and
education. Id. at ¶¶ 15, 84. During the
2015-2016 school year, D.C. was enrolled in kindergarten at
Liberty Elementary School. Id. at ¶ 40. D.C.
had difficulty staying seated and following directions, and
by December 2015, his behaviors had escalated. Id.
at ¶ 42. On February 23, 2016, Mother met with a school
counselor regarding D.C.'s behavior. Id. at
¶ 43. At that time, Mother agreed to secure outpatient
therapy services for D.C, but the District did not offer any
recommendation regarding interventions and supports that the
District could implement. Id.
behavior continued, and on March 15, 2016, he "eloped
from the classroom, failed to follow directions, screamed and
cried in the classroom, and lashed out at school staff."
Id. at ¶ 44. The following day, on March 16,
2016, Mother met with a guidance counselor and D.C.'s
teacher. Id. at ¶ 45. The District agreed to
provide D.C. with sensory breaks, but otherwise did not
evaluate D.C. to determine his eligibility for special
education services. Id. at ¶¶ 44-45.
Throughout D.C.'s kindergarten year, the District called
Mother multiple times to discuss D.C.'s behavior,
including "failing to follow directions, throwing
objects, leaving the classroom, screaming, and kicking."
Id. at ¶ 46.
August 2016, D.C. began first grade, and his behaviors
continued to escalate. Id. at ¶¶ 47-48. On
September 16, 2016, he was suspended for two days following
an altercation with another student. Id. at ¶
48. On September 21, 2016, the District gave Mother
information about a program "designed to assist school
personnel in identifying issues which pose a barrier to a
student's success," rather than initiating an
evaluation or giving Mother information about having D.C.
evaluated for special education services. Id. at
¶ 49. On October 5, 2016, Mother had D.C. evaluated by
Western Psychiatric Institute and Clinic, where he was
diagnosed with attention deficit hyperactive disorder (ADHD)
and oppositional defiance disorder (ODD). Id. at
concerning behavior continued, and on October 6, 2016, he
hung out of a school bus window while spitting, failed to
follow the bus driver's directions, refused to stay in
his seat, and engaged in disrespectful behavior. Id.
at ¶ 51. A week later, on October 13, 2016, D.C.
disrupted a teacher during instruction, screamed and yelled,
and threw a chair and a desk. Id. at ¶ 52.
During the incident, D.C.'s teacher, Nicholas Sible,
attempted to restrain D.C. by placing his knee into
D.C.'s back while D.C. laid on the floor. Id.
Following this incident, the District again did not initiate
a special education evaluation for D.C. Id. at
¶ 54. Rather, at a meeting with Mother on October 14,
2016, the day after the incident with Mr. Sible, the District
recommended that Mother medicate D.C. to assist him in
managing his behaviors. Id. at ¶¶ 53-54.
The following week, on October 21, 2016, D.C. stole his
classmates' pencils, threw shoes, threw a garbage can,
and pushed other students. Id. at ¶ 55. In
response, the District called school police officers, who
transported D.C. home in a patrol car. Id. at ¶
October 25, 2016, D.C. began attending a social skills group
at school. Id. at ¶ 58. During the group
meeting, D.C. ripped down posters, hid under a table, and ran
back to his classroom. Id. Two days later, on
October 27, 2016, D.C. threw objects, shoved other students,
and screamed during movie time. Id. at ¶ 59.
The District scheduled a meeting to address this incident,
but did not initiate any process to determine D.C.'s
eligibility for special education services. Id. On
October 28, 2016, D.C. threw a desk, had a physical
altercation with a teacher, pushed a cabinet in a room, used
inappropriate language toward other students, and climbed
onto a stone ledge in an attempt to walk over a high
stairwell. Id. at ¶ 60. The District again
requested school police to respond. Id. The District
suspended D.C. for three days and recommended that D.C. be
involuntarily committed to a mental health facility.
Id. at ¶¶ 60-61.
October 31, 2016, Mother again met with District officials
and verbally requested a special education evaluation.
Id. at ¶ 62. Additionally, Mother and the
District agreed that Grandfather would observe D.C. during
class for two days. Id. During Grandfather's
observation, he noted that D.C. and another student of color
were made to face their desks toward the wall. Id.
at ¶ 63. A school staff member also told Grandfather
that they were required to call the police when they could
not manage a child's behavior. Id. at ¶ 64.
November 1, 2016, the District created a crisis intervention
plan for D.C. Id. at ¶ 65. Rather than use
school staff who are certified in the appropriate use of
physical intervention, the crisis plan relied upon use of
school police officers. Id. Unfortunately,
D.C.'s behaviors continued. Id. at ¶ 66. On
November 4 and 6, 2016, D.C. received lunch detentions for
incidents that occurred on the bus and in the music room.
Id. On November 16, 2016, D.C. ran in the hallway,
locked students in a classroom, knocked off and stomped on a
staff member's glasses. Id. at ¶ 67.
Thereafter, Mother obtained an educational advocate.
Id. at¶68. That advocate contacted the local
child welfare agency because of her concerns for the
significant behavioral incidents and use of physical
restraints at school. Id. at ¶ 69. A staff
member from the agency informed D.C.'s advocate about
another reported incident, unknown to Mother, in which
D.C.'s teacher, Mr. Sible, choked D.C. Id. In a
December 14, 2016 meeting, the District admitted that Mr.
Sible was not certified to utilize restraints. Id.
at ¶ 70. In addition, the school principal, Mark
McClinchie, admitted that he never completed the required
documentation for the incidents involving D.C. and Mr. Sible.
District began providing D.C. with a paraprofessional, but
D.C.'s behaviors continued to escalate. Id. at
¶ 71. On December 20, 2016, D.C. was physically
aggressive with the paraprofessional. Id. In
response, the paraprofessional, who was not certified in the
use of restraints, "pushed D.C. with a book and placed
him in a physical restraint against the lockers."
January 5, 2017, D.C. destroyed school property, threw
objects, pushed staff members, and failed to follow
directives. Id. at ¶ 72. During the incident,
Principal McClinchie prevented D.C. from leaving a small
room. Id. at ¶ 73. D.C. ultimately fled the
room, and the school police were called. Id. The
District contacted Mother and advised her that the school
police would take D.C. home if Mother did not pick him up
immediately. Id. at ¶ 74. Officer Marion Parker
reported to the school, and she restrained and handcuffed
D.C. Id. at ¶ 75. When Mother arrived at the
school, Officer Parker threatened to involuntarily commit
D.C. if Mother did not take him home. Id. at ¶
76. Based upon the District's responses to D.C.'s
behavior, Mother removed D.C. from school between January 9,
2017 and January 17, 2017. Id. at ¶ 81.
Additionally, Plaintiffs allege that D.C. developed
post-traumatic stress disorder (PTSD) as a result of school
officials' treatment of him. Id. at ¶¶
January 26, 2017, the District completed an evaluation
report, wherein D.C.'s teachers described his behavior
and recommended smaller classrooms and additional mental
health services. Id. at ¶ 85. As a part of the
evaluation, "D.C.'s teachers provided scores in the
at-risk or clinically significant ranges for almost every
scale and composite assessed." Id. at ¶
86. On February 14, 2017, a team met to develop D.C.'s
initial Individualized Education Program (IEP). Id.
at ¶ 88. On March 15, 2017, the IEP team met again and
determined that D.C. required a full-time emotional support
setting. Id. Accordingly, he was placed at an
approved private school. Id.
30, 2017, Mother filed an Education Discrimination Complaint
with the Pennsylvania Human Rights Commission (PHRC),
alleging the District inappropriately disciplined D.C. based
upon his race and disability status. Id. at ¶
35. On August 8, 2018, the PHRC had yet to make a
determination and sent a letter to Mother, advising her of
her right to bring an action in the appropriate venue.
Id. at ¶ 37. Additionally, on February 12,
2018, Mother filed an administrative due process complaint
with the Office of Dispute Resolution. Id. at ¶
38. A due process hearing was scheduled for April 2018, but
prior to the hearing, the parties reached an amicable
resolution. Id. at ¶ 39. The parties executed a
settlement agreement on October 5, 2018. Id.
D.C, Mother, and Grandfather filed the present Complaint on
January 4, 2019, against Defendants, the District, Officer
Parker, Mr. Sible, and Principal McClinchie. Plaintiffs bring
a long list of claims. First, in Count I, D.C, on his own
behalf and on behalf of all other similarly situated, brings
a claim under § 504 of the Rehabilitation Act against
the District. Id. at ¶¶ 89-105. In Count
II, D.C. also brings, on his own behalf and on behalf of all
other similarly situated, a claim under the Americans with
Disabilities Act (ADA) against the District. Id.
Mother and Grandfather similarly bring a § 504 claim in
Count III and an ADA claim in Count IV against the District
for associational discrimination. Id. at
¶¶ 106-15. In Count V, D.C. brings a
Monell claim under § 1983 against the District.
Id. at ¶¶ 116-21. In Count VI, D.C.
alleges a violation of his Fourth and Fourteenth Amendment
rights, pursuant to § 1983, against the District and the
individual Defendants for excessive force. Id. at
¶¶ 122-31. In Count VII, D.C. brings a claim under
the Pennsylvania Human Relations Act (PHRA) against the
District for race and disability discrimination. Id.
at ¶¶ 132-42. In Count VIII, D.C. also asserts a
race discrimination claim against the District under Title VI
of the Civil Rights Act. Id. at ¶¶ 143-50.
Next, in Count IX, D.C. brings a common law intentional
infliction of emotional distress claim against the individual
Defendants. Id. at ¶¶ 151-54. In Count X,
D.C. alleges a § 1983 claim against Officer Parker for a
"substantive due process violation of the Fourth and
Fourteenth Amendments ... for use of force."
Id. at ¶¶ 155-60. In Counts XI and XII,
D.C. also alleges § 1983 claims against the District for
violating the Equal Protection Clause of the Fourteenth
Amendment and for state-created danger, respectively.
Id. at ¶¶ 161-82. Lastly, in Count XIII,
Mother and Grandfather bring a § 1983 claim, alleging a
violation of their Fourteenth Amendment liberty interests.
Id. at ¶¶ 183-88.
District moves to dismiss the putative class claims in Counts
I and II for lack of subject matter jurisdiction. (ECF Nos.
8, 9). The District also moves to dismiss all remaining
Counts against it for failure to state a claim. (ECF Nos. 10,
11). Likewise, Officer Parker and Principal McClinchie move
to dismiss the Counts against them for failure to state a
claim. (ECF No. 21, 22, 24, 25).
Subject matter jurisdiction under Rule 12(b)(1)
12(b)(1) of the Federal Rules of Civil Procedure provides
that a court may dismiss a complaint for lack of subject
matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Subject matter
jurisdiction is the court's "[j]urisdiction over the
nature of the case and the type of relief sought; the extent
to which a court can rule on the conduct of persons or the
status of things." Subject Matter Jurisdiction,
Black's Law Dictionary (10th ed. 2014). In other
words, "a court's subject-matter jurisdiction is its
power to hear cases." Lightfoot v. Cendant Mortg.
Corp., 137 S.Ct. 553, 560 (2017). The plaintiff has the
burden of establishing that the court has subject matter
jurisdiction, Reg'l Med. Transp., Inc. v. Highmark,
Inc., 541 F.Supp.2d 718, 725 (E.D. Pa. 2008), and the
defendant can challenge whether the plaintiff has done so,
through either a facial challenge or a factual challenge to
the complaint, In re Horizon Healthcare Servs. Data
Breach Litig, 846 F.3d 625, 632 (3d Cir. 2017).
facial challenge, the court looks to the face of the
complaint and accepts as true the facts alleged by the
plaintiff. Hartig Drug Co. v. Senju Pharm. Co., 836
F.3d 261, 268 (3d Cir. 2016). If the court cannot conclude,
based on face of the complaint, that jurisdictional
requirements are met, then the court must dismiss the
complaint. In re Horizon Healthcare Servs. Data Breach
Litig, 846 F.3d at 633 (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). In a factual
challenge, however, the plaintiffs factual allegations are
not presumed to be true, and the court "is free to weigh
the evidence and satisfy itself as to the existence of its
power to hear the case." Hartig Drug Co., 836
F.3d at 268.
even if the defendant does not mount a challenge under Rule
12(b)(1), the court has "an independent obligation to
determine whether subject-matter jurisdiction exists."
Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).
The court cannot exercise jurisdiction where Congress has not
given it, even if all parties assume subject matter
jurisdiction exists. Hartig Drug Co., 836 F.3d at
present matter, the District challenges the Court's
subject matter jurisdiction over the putative class action
claims in Counts I and II. (ECF Nos. 8, 9). Additionally, for
reasons stated below, the Court also considers, sua sponte,
the dismissal of other claims for lack of subject matter
Putative class claims
in Counts I and II, D.C. alleges that the District violated
§ 504 and the ADA, respectively. (ECF No. 1, at
¶¶ 89-105). He brings these claims on his own
behalf and on behalf of a class of "students with
disabilities, as well as those students who should be
identified as described in [the IDEA], who have been or will
be unlawfully handcuffed or restrained by District personnel
or school police officers in the Pittsburgh Public
Schools." Id. at ¶¶ 1, 26. The
District argues that the Court should dismiss the putative
class claims because the class members have failed to exhaust
their administrative remedies in accordance with the IDEA.
(ECF No. 9, at 2-4).
Individuals with Disabilities Education Act (IDEA) requires
participating states, including Pennsylvania, to provide a
"free appropriate public education" (FAPE) to
children who have special needs. 20 U.S.C. § 1412(a)(1).
Participating states "must comply with detailed
procedures for identifying, evaluating, and making placements
for students with disabilities, as well as procedures for
developing [Individualized Education Programs]."
Batchelor v. Rose Tree Media Sch Dist, 759
F.3d 266, 271-72 (3d Cir. 2014). They must also
"implement specified procedural safeguards to ensure
children with disabilities and their parents are provided with
due process." Id. at 272. The procedural
safeguards, often referred to as the IDEA'S
administrative process, allow parents or the school to file a
due process complaint with Pennsylvania's Office of
Dispute Resolution regarding "any matter relating to the
identification, evaluation, or educational placement of the
child, or the provision of a free appropriate public
education to such child." Id. at 272; 20 U.S.C.
§ 1415(b)(6). Additionally, if a plaintiff wants to
pursue claims under the Constitution, the ADA, title V of the
Rehabilitation Act, or other federal laws protecting the
rights of children with disabilities, and those claims are
based on a set of circumstances for which the IDEA provides
relief, then those claims must be included in the due process
complaint along with the IDEA claim. 20 U.S.C. §
1415(/); Fry v. Napoleon Cmty. Sch, 137 S.Ct. 743,
750 (2017). The IDEA due process complaint affords the
parties the right to participate in an impartial due process
hearing, conducted before a hearing officer with the Office
of Dispute Resolution, to consider all such claims. 20 U.S.C.
§ 1415(f)(1)(A); 22 Pa. Code § 14.162.
who is aggrieved by the hearing officer's findings and
decision may appeal to the federal district court. 20 U.S.C.
§ 1415(i)(1)- (2); 22 Pa. Code § 14.162(o). If
neither party appeals, then the hearing officer's
decision is final and binding, and a party may later file
suit in federal district court to enforce a hearing
officer's decision or to seek damages that are not
available through the administrative process. 20 U.S.C.
§ 1415(i)(1)(A); D.E. v. Cent. Dauphin Sch
Dist, 765 F.3d 260, 276 (3d Cir. 2014). Alternatively,
the parties may reach a settlement agreement during the
resolution session described in the IDEA. 20 U.S.C. §
1415(f)(1)(B). Such a settlement resolves the due process
complaint and is "enforceable in any State court of
competent jurisdiction or in a district court of the United
States." 20 U.S.C. § 1415(f)(1)(B)(iii)(II). Once a
final decision or settlement is reached, and administrative
remedies are therefore exhausted, the district court has
subject matter jurisdiction over plaintiffs claims. 20 U.S.C.
§ Hl5(i); Wellman v. Butler Area Sch. Dist.,
877 F.3d 125, 130 (3d Cir. 2017) (noting that IDEA
administrative exhaustion is a jurisdictional requirement).
having deemed administrative exhaustion to be a
jurisdictional requirement in the IDEA context, the Third
Circuit has held that plaintiffs need not exhaust the
administrative process when: (1) exhaustion would be futile
or inadequate; (2) the issue presented is purely a legal
question; (3) the administrative agency cannot grant relief;
or (4) exhaustion would work severe or irreparable harm upon
a litigant. MM. v. Pater son Bd. of Educ, 736
Fed.Appx. 317, 320 (3d Cir. 2018). Flowing from the futility
and no-administrative-relief exceptions, plaintiffs may be
excused from administrative exhaustion in the IDEA context
when they "'allege systemic legal deficiencies and,
correspondingly, request system-wide relief that cannot be
provided (or even addressed) through the administrative
process.'" J.T. v. Durnont Pub. Schs., 533
Fed. App'x. 44, 54 (3d Cir. 2013) (quoting Beth V. by
Yvonne V. v. Carroll, 87 F.3d 80, 89 (3d Cir. 1996)). A
claim addresses systemic legal deficiencies "'if it
implicates the integrity or reliability of the IDEA dispute
resolution procedures themselves, or requires restructuring
the education system itself in order to comply with the
dictates of the [IDEA].'" J.T. v. Dumont Pub.
Schs., 533 Fed. App'x. 44, 54 (3d Cir. 2013)
(quoting Doe v. Ariz. Dep't of Educ, 111 F.3d
678, 682 (9th Cir. 1997)); see also Parent/Professional
Advocacy League v. City of Springfield, 934 F.3d 13, 27
(1st Cir. 2019) (quoting Hoeft v. Tucson Unified Sch.
Dist, 967 F.2d 1298, 1305 (9th Cir. 1992)) (explaining
that the "systemic" exception can be met when an
alleged violation threatens "'the IDEA'S basic
goals ... on a system-wide basis'" or a claim
'"challenge[s] policies or practices,' or
administrative failures, 'at the highest administrative
level'"). However, a claim does not implicate
systemic deficiencies '"if it involves only a
substantive claim having to do with limited components of a
program, and if the administrative process is capable of
correcting the problem.'" J. T., 533 Fed.
App'x. at 54 (quoting Doe v. Ariz. Dep't of
Educ. , 111 F.3d at 682). For example, in P. V. v.
School District of Philadelphia, the plaintiffs, on
behalf of a putative class, requested "wholesale
changes" to the school district's transfer
procedures in which students with autism were transferred
"without parental involvement and at a higher rate than
the District transfers non-autistic students." P.V.
v. Sch. Dist. of Phila., 2011 U.S. Dist. LEXIS 125370,
at *22-23 (E.D. Pa. Oct. 31, 2011). The court found that the
plaintiffs alleged a systemic deficiency that excused them
from the administrative exhaustion requirement. Id.
at * 21-22. The court based its finding in part on the fact
that the hearing officer, who presided over two of the
plaintiffs' administrative hearings, "admitted that
he had no power to grant the kind of system-wide relief
requested" by the plaintiffs. Id. at *23. The
court explained, "If an educational system is broken and
requires a system-wide fix that an administrative hearing
officer cannot provide, then requiring plaintiff after
plaintiff to exhaust his or her administrative remedy before
filing suit would undoubtedly be futile." Id.
D.C. argues that the putative class claims should not be
dismissed because there is a systemic deficiency like that in
P. V., which excuses the putative class from the
administrative exhaustion requirement. (ECF No. 27, at 2).
Specifically, D.C. alleges that he and class members
"were denied appropriate behavioral support
services," and that "[t]his lack of appropriate
support ultimately resulted in the District's reliance on
school police and inappropriate discipline in response to
behaviors that were a clear manifestation of D.C s and the
Class Members' disabilities." (ECF No. 1, at ¶
100). In other words, D.C. alleges that because he and others
like him were not given behavioral support services specific
to their needs, they were inappropriately subjected to,
rather than excepted from, the school's disciplinary
policy. The putative class claims here are thus
distinguishable from the class claim in P. V. for
two reasons. First, the plaintiffs in P. V. alleged
that it was the school's policy itself that violated the
IDEA, whereas here D.C. alleges that a violation of the IDEA
(a failure to identify students) triggers the misapplication
of the school's policy. Second, the relief sought in
P. V. was a wholesale change to the policy, whereas
what D.C. ultimately seeks here on behalf of the putative
class is that the District properly and timely identify
students with disabilities so that they can be excepted from
the District's general disciplinary policy. And, just as
deviations from mainstream education for students with
disabilities-for example, the development of IEPs- must be
determined on an individualized basis, such exceptions from
the disciplinary policy also must be determined on an
individualized basis. Because this relief must be sought on a
case-by-case basis through the administrative process, and
because D.C. does not allege that a systemic deficiency
caused the District's alleged failure to properly
identify and support D.C. and similarly situated students,
D.C. has not adequately pleaded a basis for the putative
class to be excused from the IDEA'S administrative
exhaustion requirement. Consequently, this Court does not
have subject matter jurisdiction over the class claims in
Counts I and II, and these claims must be dismissed.
Individual Plaintiffs' FAPE-based claims
course of analyzing subject matter jurisdiction over the
class claims in Counts I and II and reviewing the facts as
pleaded in the present Complaint, the issue arose as to
whether the Court has subject matter jurisdiction over
certain other federal claims in the Complaint. Because the
Court has "an independent obligation to determine
whether subject-matter jurisdiction exists,"
Arbaugh, 546 U.S. at 514, the Court now considers a
sua sponte motion to dismiss claims in Counts I through VI,
Count VIII, and Counts XI through XIII, for lack of subject
noted above, the IDEA'S core guarantee is a child's
right to a FAPE. 20 U.S.C. § 1412(a)(1). A FAPE includes
not only "'instruction' tailored to meet a
child's 'unique needs, '" but also
"sufficient 'supportive services' to permit the
child to benefit from that instruction." Fry,
137 S.Ct. at 748-49 (quoting 20 U.S.C. § 1401(26),
(29)). The IDEA further obligates schools to identify,
locate, and evaluate all children with disabilities, in order
to ensure these children receive a FAPE-an obligation known
as the "Child Find" obligation. 20 U.S.C. §
1412(a)(3). If a school fails in its obligations, the parent
of a child with disabilities can utilize the IDEA's
detailed administrative process to seek redress for the
school's failures. 20 U.S.C. § 1415. And, as
discussed above, the parent must exhaust the administrative
process prior to bringing suit in federal court. Id.
IDEA also provides that if a plaintiff wants to pursue any
other FAPE-based claims brought under the Constitution, the
ADA, title V of the Rehabilitation Act, or other federal laws
protecting the rights of children with disabilities, those
claims must also be included in, and exhausted through, the
IDEA administrative process. 20 U.S.C. §
1415(l); Fry, 137 S.Ct. at 750. The Supreme
Court has held that a claim is FAPE-based where the gravamen
or the crux of the claim is "the denial of the
IDEA'S core guarantee," that is, the denial of a
FAPE. Fry, 137 S.Ct. at 748. To aid in determining
whether the gravamen of a claim is the denial of a FAPE,
rather than garden-variety disability-based discrimination,
the Court stated, "One clue . . . can come from asking a
pair of hypothetical questions." Id. at 756.
The first question is, "could the plaintiff have brought
essentially the same claim if the alleged conduct had
occurred at a public facility that was not a
school-say, a public theater or library?" Id.
The second question is, "could an adult at the
school-say, an employee or visitor-have pressed essentially
the same grievance?" Id. If the answer to both
is "yes," it is likely that the gravamen of the
complaint is something other than the denial of a FAPE.
Id. On the other hand, if the answer to both
questions is "no," then it is likely that the
gravamen of the complaint is a denial of a FAPE, and
exhaustion is required. Id. The same distinction and
similar hypothetical questions apply to determining whether
the gravamen of claims under the Constitution or other
federal laws is the denial of a FAPE. See Wellman,
877 F.3d at 134-35.
because exhaustion in the IDEA context is a jurisdictional
requirement, a plaintiff must plead facts sufficient to allow
the court to conclude that the plaintiff exhausted the
administrative process. K.S. v. Hackensack Bd. of
Educ., 2017 U.S. Dist. LEXIS 96365, at *16 (D.N.J. June
21, 2017). Where a plaintiff fails to plead sufficient facts
regarding administrative exhaustion of FAPE-based claims, the
court must dismiss those claims for lack of subject matter
Plaintiffs' Complaint informs the Court only that an IDEA
due process complaint was filed with the Office of Dispute
Resolution, and that the parties subsequently settled. (ECF
No. 1, at ¶¶ 38-39). Plaintiffs do not provide any
information regarding the contents of the due process
complaint, namely, which claims they brought and later
settled through the administrative process. Accordingly, any
claim in the present Complaint that falls within the ambit of
the IDEA'S exhaustion requirement must be dismissed
because Plaintiffs have failed to establish this Court's
subject matter jurisdiction over such a claim. With that in
mind, the Court thus turns to Plaintiffs' claims against
the District that are brought under the Constitution,
the ADA, title V of the Rehabilitation Act, or other federal
laws protecting the rights of children with disabilities,
beginning with D.C.'s claims, and then turning to each
Mother's and Grandfather's claims.
Counts I and II-B.C. 's § 504 and ADA claims
Counts I and II, D.C. brings a § 504 claim and an ADA
claim, and uses the same paragraphs to allege both. (ECF No.
1, at ¶¶ 89-105). D.C. alleges that as a child with
disabilities, he has a right "to have access to
educational programming in the same way as other
children," which is protected by § 504 and the ADA.
Id. at ¶¶ 99, 105. Additionally, he
alleges that due to the District's actions, he was
"not able to access the educational program" and he
was "denied appropriate behavior support services,"
which are "a necessary element" of his educational
program. Id. at ¶¶ 100-01. D.C.'s
claims in Counts I and II are thus plainly tied to the
District's alleged denial of a FAPE to D.C. Because
Counts I and II are FAPE-based claims, and because Plaintiffs
plead no facts establishing that these claims were
administratively exhausted, they must be dismissed for lack
of subject matter jurisdiction.
Counts V and VI-D.C. 's § 1983 failure to
train/failure to supervise claims against the District
Count V, D.C. asserts a claim under § 1983, alleging
that the District violated unnamed constitutional
rights. (ECF No. 1, at ¶¶ 116-21). D.C.
bases this claim on the District's alleged "failure
to train teachers and staff on how to identify students in
need of special education, specifically positive behavioral
support." Id. at ¶ 119. D.C. also points
to the District's alleged "[i]nappropriate reliance
on school police officers in situations where students with
disabilities display[ed] behaviors that are clear
manifestations of their disabilities," and that the
District "[p]ermit[ted] the use of physical restraints,
such as handcuffs, by school police when disciplining
students with disabilities in the school setting."
Id. In other words, D.C. alleges that the District
violated his rights when it failed to properly identify him
as a student with disabilities in accordance with the
IDEA'S Child Find provision, which in turn led to D.C.
not receiving proper behavioral supports. Because D.C.
alleges that the District failed in its Child Find duty to
him, and because sufficient behavioral supports are a part of
FAPE provision, Count V is a FAPE-based claim. Therefore,
Count V must be dismissed for lack of subject matter
Count VI contains allegations against the District like those
in Count V. (ECF No. 1, at ¶¶ 122-31).
Specifically, D.C. alleges that the District violated his
Fourth and Fourteenth Amendment rights when it "failed
and continues to fail to train and supervise Defendants
Parker, Sible, and McClinchie regarding the restrictions
under law on the use of physical restraints, including
handcuffs, on students with disabilities." Id.
at ¶ 129. This claim echoes the allegations in Count V
that the District has a duty to train and supervise its
employees regarding proper behavioral supports for students
with disabilities. Thus, Count VI, as it pertains to the
District, is also a FAPE-based claim and must be dismissed
for lack of subject matter jurisdiction.
Count XI-D.C.'s § 1983 equal protection claim
Count XI, D.C. alleges that the District discriminated
against him on the basis of race, in violation of the
Fourteenth Amendment's Equal Protection Clause. (ECF No.
1, at ¶¶ 161-67). Although this is a constitutional
claim, it is not based on disability or disability
discrimination, and so does not fall within the ...