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Reed v. Kerens Independent School District

United States District Court, N.D. Texas, Dallas Division

June 6, 2017

ELIZABETH REED, Individually and as Representative of the Estate of J. R., Deceased, Plaintiff,



         By 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.

         I. BACKGROUND

         On May 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.)[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.[2] (doc. 26 at 22-25.) She seeks damages, attorneys' fees, and equitable relief. (Id. at 26-28.)

         J.R. was a middle school “student of Hispanic and Anglo descent, ” who was 5' 4" tall and weighed 260 pounds.[3] (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 it.[4] (Id. at 14.)

         Beginning 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.[5] (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.)

         J.R. 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.)

         Plaintiff 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.)

         On May 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.[6] (Id.)

         The 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.)

         On 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.)

         On October 31, 2016, Defendant moved to dismiss Plaintiff's claims. (doc. 29.) She responded on December 7, 2016, [7] and Defendant replied on January 6, 2017. (docs. 38, 43.)

         II. RULE 12(b)(1)

         Defendant 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.)

         “Federal 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).

         A Rule 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.” Id.

         A 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).

         If the 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.[8] See Williamson, 645 F.2d at 412-13.

         A. Exhaustion of Administrative Remedies

         Defendant 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.)

         A 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).[9] 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).

         A 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 omitted).

         As 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 (2017).

         In a 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).[10] 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”).

         “The 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.

         Here, 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.)

         B. Futility Exception

         “The 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)).

         1. Systematic violations

         Plaintiff first argues that exhaustion was not required because she is alleging a systemic problem.[11] (doc. 38 at 24.)

         District 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).

         Although 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).

         2. Death

         Plaintiff's amended complaint focuses on J.R.'s death as the cause of the futility.[12] (See doc. 26 at 4.) She notes that there is no binding Fifth Circuit precedent on this issue. (Id. at 24-25.)

         In 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 circumstances:

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 (3d Cir.2007).

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 circuits.[13]

         Citing 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.

         In 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. ...

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