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D.C. v. Pittsburgh Public Schools

United States District Court, W.D. Pennsylvania

December 3, 2019

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,
v.
PITTSBURGH PUBLIC SCHOOLS; MARION PARKER; NICHOLAS SIBLE; and MARK MCCLINCHIE, Defendants.

          OPINION AND ORDER

          Marilyn J. Horan, United States District Judge.

         Plaintiffs, 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.

         In 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).

         For the 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.

         I. Background

         Plaintiff 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.

         D.C.'s 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.

         In 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 ¶¶41, 50.

         D.C.'s 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 ¶ 56.

         On 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.

         On 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.

         On 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. Id.

         The 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." Id.

         On 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 ¶¶ 154, 159.

         On 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.

         On June 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.

         Plaintiffs 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.

         The 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).

         II. Subject matter jurisdiction under Rule 12(b)(1)

         Rule 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).

         In a 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.

         Importantly, 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 267.

         In the 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 jurisdiction.

         A. Putative class claims

         First, 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).

         The 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[1] 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.

         A party 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).

         Despite 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.[2] 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. at *22.

         Here, 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.

         B. Individual Plaintiffs' FAPE-based claims

         In the 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 matter jurisdiction.

         As 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.

         The 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.

         Lastly, 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 jurisdiction.

         Here, 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[3] 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, [4] beginning with D.C.'s claims, and then turning to each Mother's and Grandfather's claims.

         i. Counts I and II-B.C. 's § 504 and ADA claims

         In 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.

         ii. Counts V and VI-D.C. 's § 1983 failure to train/failure to supervise claims against the District

         In Count V, D.C. asserts a claim under § 1983, alleging that the District violated unnamed constitutional rights.[5] (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 jurisdiction.

         Similarly, 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.

         iii. Count XI-D.C.'s § 1983 equal protection claim

         In 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 ...


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