United States District Court, N.D. Texas, Dallas Division
ELIZABETH REED, Individually and as Representative of the Estate of J. R., Deceased, Plaintiff,
KERENS INDEPENDENT SCHOOL DISTRICT, Defendant.
MEMORANDUM OPINION AND ORDER
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE
order filed September 29, 2016, this matter has been
transferred for the conduct of all further proceedings and
the entry of judgment. (doc. 23.) Before the Court for
determination is Defendant's Motion to Dismiss
Plaintiff's First Amended Complaint, filed October
31, 2016 (doc. 29). Based on the relevant filings and
applicable law, the defendant's Rule 12(b)(1) motion to
dismiss is DENIED, and its Rule 12(b)(6) motion to dismiss is
GRANTED in part and DENIED in part.
5, 2016, Elizabeth Reed (Plaintiff), individually and on
behalf of the estate of her minor son (J.R.), filed suit
against the Kerens Independent School District (Defendant)
after J.R. took his own life. (doc. 1.) Her amended
complaint alleges claims under Title VI of the Civil Rights
Act of 1964, Title IX of the Education Amendments Act of
1972, the Rehabilitation Act of 1973, the Americans with
Disabilities Act (ADA), and 42 U.S.C. § 1983 as a result
of its alleged failure to take action to prevent other
students from bullying J.R. (doc. 26 at 22-25.) She seeks
damages, attorneys' fees, and equitable relief.
(Id. at 26-28.)
was a middle school “student of Hispanic and Anglo
descent, ” who was 5' 4" tall and weighed 260
pounds. (Id. at 14.) Plaintiff alleges
that because of his weight, he had “very obvious and
large female like breasts.” (Id.) He suffered
from depression and received psychoactive medication and
counseling. (Id. at 14, 17.) His school was aware of
his depression and that he took medication for
(Id. at 14.)
in the 2009-2010 school year, other students began to bully
and harass J.R. on an almost daily basis, calling him
derogatory names that made fun of his weight, his physical
attributes, and race. (Id.) He repeatedly reported
to Plaintiff that he was bullied at school by other students,
who called him names, teased him, and pushed him to the
floor. (Id.) J.R.'s parents informed
the school about the bullying and were assured that it would
be resolved. (Id. at 14-15.) J.R. also went to his
school's principal “more than once” to
complain of bullying and harassment. (Id. at 15.)
The school board was informed by other parents about bullying
within the district. (Id. at 15-16.) As a result of
the continued bullying, J.R.'s grades suffered, he
required special tutoring for the STAR test, and he continued
to binge eat, which caused him to become more depressed.
(Id. at 17.)
had repeated disciplinary issues at school in 2012 and 2013.
(Id. at 17.) He was disciplined for not letting go
of a student's backpack, fighting, setting a trash can on
fire, and rubbing another student's crotch.
(Id.) J.R. also sniffed glue at school, and empty
bottles of glue were found in his locker. (Id.) As a
result, he received punishment ranging from detention to
in-school and out-of-school suspensions. (Id.) The
school did not investigate the cause of the altercations
involving J.R. or the reason for his actions, and it did not
inform his parents about the glue. (Id.)
alleges that some of her son's disciplinary problems were
the result of Defendant not “inquiring as to why [he]
was involved in the first instance.” (Id. at
15.) For example, on April 25, 2013, J.R. was hit with a
hockey stick by another student in P.E. class. (Id.)
He told the other boy to stop or that he would report him.
(Id.) The other student responded, “I
don't give a damn, I'll just kick your ass.”
(Id.) An alteration ensued, but only J.R. was
written up. (Id.) The school did not inquire as to
why J.R. was involved. (Id.)
5, 2014, as J.R. was leaving school, he was surrounded by a
small group of male students. (Id. at 17-18.) The
students “began to bully and harass him based upon his
obesity.” (Id. at 18.) He was knocked to the
ground and was unable to get up. (Id.) While on the
ground, J.R. asked the group, “What are you going to do
if I kill myself?” (Id.) A female student who
heard the statement left to inform the principal about what
he said. (Id.)
following day, May 6, 2014, J.R. wrote in the boys'
restroom at school: “In 3 days there will be a shooting
- you have been warned.” (Id.) The school
investigated and determined that he wrote the statement.
(Id. at 2.) J.R. informed the administrators that he
was hearing voices that kept saying, “You're going
die, you're going to die, ” and that he had
re-occurring dreams in which a friend was shot and killed.
(Id. at 18.) He also informed the administrators
that he was taking medication for depression. (Id.)
Plaintiff was called to the school. (Id.) When she
arrived, Plaintiff and J.R. were informed by a school
administrator that there would be a hearing, but that it was
likely that J.R. would be sent to the disciplinary
alternative education program for a month. (Id. at
19.) The chief of police told them that there would be
criminal proceedings. (Id.) Plaintiff took J.R.
home, and later that day, he committed suicide. (Id.
at 2, 19.)
August 23, 2014, Plaintiff filed a complaint with the U.S.
Department of Education, Office for Civil Rights (OCR).
(Id. at 20.) She alleged that Defendant
discriminated against J.R. because of his disability and
race. (Id.) On September 25, 2015, Defendant
voluntarily entered into a resolution agreement.
(Id. at 21.) On May 5, 2016, Plaintiff filed this
action. (doc. 1.)
October 31, 2016, Defendant moved to dismiss Plaintiff's
claims. (doc. 29.) She responded on December 7, 2016,
Defendant replied on January 6, 2017. (docs. 38, 43.)
moves to dismiss Plaintiff's ADA and § 504 claims
under the under Federal Rule of Civil Procedure 12(b)(1) for
lack of subject-matter jurisdiction. (doc. 29 at 10.)
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute, which is
not to be expanded by judicial decree.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(citations omitted). They “must presume that a suit
lies outside this limited jurisdiction, and the burden of
establishing federal jurisdiction rests on the party seeking
the federal forum.” Howery v. Allstate Ins.
Co., 243 F.3d 912, 916 (5th Cir. 2001).
12(b)(1) motion “may be raised by a party, or by a
court on its own initiative, at any stage in the litigation,
even after trial and the entry of judgment.”
Arbaugh v. Y & H Corp., 546 U.S. 500, 506
(2006). A court must dismiss the action if it determines that
it lacks jurisdiction over the subject matter. Fed.R.Civ.P.
12(h)(3); Stockman v. Fed. Election Comm'n, 138
F.3d 144, 151 (5th Cir. 1998). “When a Rule 12(b)(1)
motion is filed in conjunction with other Rule 12 motions,
the court should consider the Rule 12(b)(1) jurisdictional
attack before addressing any attack on the merits.”
Ramming v. United States, 281 F.3d 158, 161 (5th
Cir. 2001) (per curiam). A dismissal under Rule 12(b)(1)
“is not a determination of the merits, ” and it
“does not prevent the plaintiff from pursuing a claim
in a court that does have proper jurisdiction.”
Id. Accordingly, considering Rule 12(b)(1) motions
first “prevents a court without jurisdiction from
prematurely dismissing a case with prejudice.”
district court may dismiss for lack of subject-matter
jurisdiction based on (1) the complaint alone; (2) the
complaint supplemented by undisputed facts in the record; or
(3) the complaint supplemented by undisputed facts plus the
court's resolution of disputed facts. Williamson v.
Tucker, 645 F.2d 404, 413 (5th Cir. 1981) (en banc). A
motion to dismiss based on the complaint alone presents a
“facial attack” that requires the court to merely
decide whether the allegations in the complaint, which are
presumed to be true, sufficiently state a basis for
subject-matter jurisdiction. See Paterson v.
Weinberger, 644 F.2d 521, 523 (5th Cir. 1998). If
sufficient, those allegations alone provide jurisdiction.
Id. Facial attacks are usually made early in the
proceedings. Id. “A facial attack requires the
court merely to decide if the plaintiff has correctly alleged
a basis for subject matter jurisdiction” by examining
the allegations in the complaint, which are presumed to be
true. Rodriguez v. Tex. Comm'n on the Arts, 992
F.Supp. 876, 878 (N.D. Tex. 1998) (citations omitted).
defendant supports the motion with evidence, however, then
the attack is “factual” and “no presumptive
truthfulness attaches to plaintiff's allegations, and the
existence of disputed material facts will not preclude the
trial court from evaluating for itself the merits of
jurisdictional claims.” Williamson, 645 F.2d
at 413. A factual attack may occur at any stage of the
proceedings. Menchaca v. Chrysler Credit Corp., 613
F.2d 507, 511 (5th Cir. 1980). Regardless of the nature of
attack, the party asserting federal jurisdiction continually
carries the burden of proof to show it exists.
Ramming, 281 F.3d at 161. Here, Defendant's
motion presents a facial attack that does not require the
resolution of factual matters outside the
pleadings. See Williamson, 645 F.2d at
Exhaustion of Administrative Remedies
argues that Plaintiff's ADA and § 504 claims should
be dismissed for lack of jurisdiction because she failed to
exhaust her administrative remedies prior to filing suit.
(doc. 29 at 10.) It contends that Plaintiff's claims
relating to J.R.'s identification as a student with a
disability, educational placement, accommodation, and plan
are subject to the exhaustion requirements of the Individuals
with Disabilities Education Act (IDEA), but that Plaintiff
has not pleaded that she exhausted her administrative
remedies prior to filing suit. (Id. at 13.)
purpose of the IDEA is “to ensure that all children
with disabilities have available to them a free appropriate
public education [(FAPE)] that emphasizes special education
and related services designed to meet their unique
needs.” 20 U.S.C. § 1400(d)(1)(A). The IDEA
requires the education of children with disabilities to be
tailored through an individualized education plan
(IEP). 20 U.S.C. § 1401(a)(20);
Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. by
Barry F., 118 F.3d 245, 247-48 (5th Cir. 1997).
“Only certain students with disabilities, however, are
eligible for IDEA's benefits. Specifically, to qualify
for special education services a student must both: (1) have
a qualifying disability and (2) ‘by reason thereof,
need [ ] special education and related services.'”
Alvin Indep. Sch. Dist. v. A.D. ex rel. Patricia F.,
503 F.3d. 378, 382 (5th Cir. 2007) (quoting 20 U.S.C. §
1401(3)(A)) (alteration in original).
plaintiff must first exhaust the state administrative
proceedings set forth in the statute before bringing suit
based on the IDEA. 20 U.S.C. § 1415(1); Gardner v.
Sch. Bd. of Caddo Parish, 958 F.2d 108, 111 (5th Cir.
1992). When, as in this case, a plaintiff does not actually
bring a claim based on the IDEA, the act's exhaustion
requirement also applies to claims under the Constitution,
ADA, Rehabilitation Act, and other federal laws protecting
children with disabilities to the extent those claims seek
relief “that is also available under [the IDEA].”
20 U.S.C. § 1415(1); see, e.g., Doe v. Dallas Indep.
Sch. Dist., 194 F.Supp.3d 551, 559 (N.D. Tex. 2016)
(noting “[t]he fact that [the plaintiff] has not
explicitly alleged a claim under that statute is not
conclusive because its exhaustion requirement extends to all
claims seeking relief that is also available under the IDEA.
Thus, a plaintiff cannot avoid the exhaustion requirements of
the IDEA by repackaging the claims under some other
statute.”) (internal citation and quotation marks
recently explained by the Supreme Court:
Section 1415(1) requires that a plaintiff exhaust the
IDEA's procedures before filing an action under the ADA,
the Rehabilitation Act, or similar laws when (but only when)
her suit “seek[s] relief that is also available”
under the IDEA. We first hold that to meet that statutory
standard, a suit must seek relief for the denial of a FAPE,
because that is the only “relief” the IDEA makes
“available.” We next conclude that in determining
whether a suit indeed “seeks” relief for such a
denial, a court should look to the substance, or gravamen, of
the plaintiff's complaint.
Fry v. Napoleon Cmty. Schs., 137 S.Ct. 743, 746
decision that has since been vacated, the Fifth Circuit noted
an apparent split of authority regarding the nature of
exhaustion, but has declined to decide whether the IDEA's
exhaustion requirement is jurisdictional. See Stewart v.
Waco Indep. Sch. Dist., 711 F.3d 513, 527-530 & n.22
(5th Cir. 2013) (citing M.L. v. Frisco Indep. Sch.
Dist., 451 F. App'x 424, 427 (5th Cir. 2011) &
Gardner, 958 F.2d at 112), vacated &
withdrawn on reh'g, 599 F. App'x 534 (5th Cir.
2013) (per curiam). Within this district, the IDEA's
exhaustion requirement has been interpreted as
jurisdictional. See Dabney v. Highland Park Indep. Sch.
Dist., No. 3:15-CV-2122-L, 2016 WL 1273467, at *6 n.2
(N.D. Tex. Mar. 31, 2016) (noting “[t]he IDEA's
exhaustion requirement has been interpreted as
jurisdictional”) (citing Gardner, 958 F.2d at
112 & Polera v. Bd. of Educ. of Newburgh Enlarged
City Sch. Dist., 288 F.3d 478, 483 (2d Cir. 2002));
Hooker v. Dallas Indep. Sch. Dist, No.
3:09-CV-1289-D, 2010 WL 4025877, at *6 (N.D. Tex. Oct. 13,
2010) (noting “the court holds that the exhaustion
requirement of the IDEA is jurisdictional”).
IDEA's exhaustion requirement serves a number of policy
objectives: it allows deference to agency expertise in
resolving educational matters; it gives the agency a first
opportunity to correct errors; it presents courts with a more
fully developed record; and it prevents parties from
deliberately disregarding the statute's comprehensive
procedures and remedies.” Marc V. v. N.E. Indep.
Sch. Dist., 455 F.Supp.2d 577, 592 (W.D. Tex. 2006);
accord Papania-Jones v. Dupree, 275 F. App'x
301, 303-04 (5th Cir. 2008) (per curiam) (“By failing
to exhaust the IDEA's administrative remedies, the Jones
family did not give the State an appropriate opportunity to
resolve their complaints prior to filing suit against the
State.”). The IDEA prevents plaintiffs from
circumventing the administrative exhaustion requirement by
taking claims that could have been brought pursuant to the
IDEA and repackaging them as claims under other statutes.
Marc V., 455 F.Supp.2d at 592. The plaintiff has the
burden of proof to show that exhaustion would be futile or
inadequate. Papania-Jones, 275 F. App'x at 303.
both parties appear to agree that Plaintiff seeks relief that
could have been brought under the IDEA. (See docs.
29 at 12; 38 at 24.) Her amended complaint does not allege
that she has exhausted her administrative remedies, so her
ADA and § 504 claims would ordinarily be subject to
dismissal on this basis. See, e.g., Doe, 194
F.Supp.3d at 559 (dismissing the plaintiff's Title IX
claim because it was subject to the IDEA's exhaustion
requirement and she had not alleged in her complaint that she
had complied with it). Plaintiff alleges, however, that
exhaustion would have been futile. (doc. 38 at 24.)
Supreme Court has held that futility in pursuing
administrative relief is an exception to exhaustion
under IDEA.” M.L., 451 F. App'x at 427
(emphasis added) (citing Honig v. Doe, 484 U.S. 305,
327 (1988)). “To show futility, a plaintiff must
demonstrate that adequate remedies are not reasonably
available or that the wrongs alleged could not or would not
have been corrected by resort to the administrative hearing
process.” Id. at 428 (quoting Coleman v.
Newburgh Enlarged City Sch. Dist., 503 F.3d 198, 205 (2d
Cir. 2007) (quotation marks and citation omitted)).
first argues that exhaustion was not required because she is
alleging a systemic problem. (doc. 38 at 24.)
courts within the Fifth Circuit have recognized “[t]he
futility exception applies when there are systematic
violations (such as a total failure to prepare and implement
individualized education programs), when the hearing officer
would be powerless to correct alleged violations, or when
there is a settled law policy that cannot be addressed
through administrative procedures.” Hooker v.
Dallas Indep. Sch. Dist., No. 3:09-CV-0676-G-BH, 2010 WL
4025776, at *9 (N.D. Tex. Sept. 13, 2010), adopted
by 2010 WL 4024896 (N.D. Tex. Oct. 13, 2010) (citing
Papania-Jones, 275 F. App'x at 304); accord
Comb v. Benji's Special Educ. Acad., No. H-10-3498,
2012 WL 1067395, at *8 (S.D. Tex. Mar. 28, 2012) (same).
Plaintiff argues that there was a systemic problem, her
complaint does not explain how her case could not be remedied
by local or administrative agencies, or how this case is
similar to the systemic issues confronted in the case upon
which she relies, J.G. v. Bd. of Educ. of Rochester City
Sch. Dist., 830 F.2d 444 (2d Cir. 1987). (See
doc. 38 at 24.) Plaintiff has not met her burden to show that
administrative exhaustion would be futile because of a
systematic problem. See Papania-Jones, 275 F.
App'x at 303 (noting the plaintiff has the burden to show
that exhaustion would be futile or inadequate).
amended complaint focuses on J.R.'s death as the cause of
the futility. (See doc. 26 at 4.) She notes
that there is no binding Fifth Circuit precedent on this
issue. (Id. at 24-25.)
Morton v. Bossier Parish Sch. Bd., No. 12-1218, 2013
WL 696725 (W.D. La. Feb. 26, 2013), the mother of a child who
had taken her own life sued the school board. Id.
She accused it of failing to take action to prevent the
harassment of her daughter and accommodate her disabilities,
and she sought damages under the Louisiana Civil Code, 42
U.S.C. § 1983, § 504 of the Rehabilitation Act of
1973, and the ADA as amended or modified by the IDEA.
Id. at *1. The school board moved to dismiss the
IDEA claims under Rule 12(b)(1) for failure to exhaust
administrative remedies. Id. at *3. The district
court found the exhaustion requirement inapplicable under the
It should be noted that neither party has cited any
controlling Fifth Circuit case expounding upon the IDEA's
administrative exhaustion requirement as it pertains to a
deceased child. The precise issue is res nova. While
this issue appears to be a matter of first impression in this
Circuit, the Court's holding today is supported by a
common-sense analysis of the meaning of “futile”
or “inadequate” in addition to a consideration of
the inherent limitations of administrative remedies. Allowing
the Plaintiff to by-pass the exhaustion requirement in this
case is also supported by holdings in other circuits dealing
with cases in which either the child is deceased or the
plaintiff sought purely retrospective monetary damages that
were unavailable through the administrative process. See
Taylor v. Altoona Area Sch. Dist.[ ], 737 F.Supp.2d 474,
482 (W.D.Pa.2010)(permitting the exhaustion requirement to be
waived ... such as where the parents of a deceased child seek
damages for a school board's failure to provide IDEA
services while the child was still alive in accordance with
the narrow exception found in W.B. v. Matula, 67
F.3d 484, 489 (3d Cir.1995) abrogated in part on other
grounds by A.W. v. Jersey City Pub. Sch., 486 F.3d 791
Id. (internal footnotes omitted). In absence of
specific authority from the Fifth Circuit, the reasoning in
Morton appears consistent with the authority
regarding the futility exception generally. See
M.L., 451 F. App'x at 428 (noting “[t]o show
futility, a plaintiff must demonstrate that adequate remedies
are not reasonably available or that the wrongs alleged could
not or would not have been corrected by resort to the
administrative hearing process”). It is also consistent
with the holdings in similar cases from other
Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 63
(1st Cir. 2002), Defendant argues that Plaintiff “could
have requested a due process hearing for the IDEA and Section
504 claims at any point during J.R.'s time at Kerens ISD,
but she failed to do so. She should not be permitted now to
side-step the exhaustion requirement by having waited so long
to bring these claims.” (doc. 29 at 11-12.) In
Frazier, the First Circuit noted that a finding that
graduation rendered exhaustion under the IDEA futile
“might simply encourage plaintiffs to wait to dispute
the adequacy of their educational programs until after
graduation precisely in the hope of recovering money
damages.” Frazier, 276 F.3d at 63 (citation
omitted). This analogy was specifically rejected in the
context of a student's death in Estate of D.B. by
Briggs v. Thousand Islands Cent. Sch. Dist., 169
F.Supp.3d 320 (N.D.N.Y. 2016), abrogated in part on other
grounds by Christiansen v. Omnicom Grp., Inc., 852 F.3d
195, 200 (2d Cir. 2017):
A court finding that suicide renders exhaustion futile cannot
fairly be said to encourage parents of bullied children to
“sit on” a live claim, wait for their children to
commit suicide, and then sue for damages. Simply stated,
suicide is not the same as graduation.
Id. at 330.
conclusion, requiring the Plaintiff to pursue administrative
remedies through the school district after J.R.'s death
would be futile, so she has established an exception to the
exhaustion requirement. ...