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T.B. v. Northwest Independent School District

United States District Court, N.D. Texas, Fort Worth Division

August 2, 2019

T.B. B/N/F JENNY BELL, Plaintiff,
v.
NORTHWEST INDEPENDENT SCHOOL DISTRICT, ET AL., Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE UNITED STATES DISTRICT JUDGE.

         Came on for consideration the motion of defendant Northwest Independent School District ("District") to dismiss. The court, having considered the motion, the response of plaintiff, R.B., through his next friend, Jenny Bell, [1] the reply, the record, and applicable authorities, finds that the motion should be granted.

         I. Plaintiff's Claims

         On December 11, 2018, plaintiff filed his original complaint in this action. Doc.[2] 1. On April 1, 2019, District filed its motion to dismiss. Doc. 11. In response, plaintiff filed an unopposed motion for leave to amend, Doc. 17, which the court granted. Doc. 18. On May 13, 2019, plaintiff filed his amended complaint, which is the operative pleading.[3] Doc. 19.

         In his amended complaint, plaintiff alleges:

         Plaintiff is a child with a disability. Doc. 19, ¶1. He has autism spectrum disorder and attention deficit hyperactivity disorder. Id. ¶11. District has policies and procedures related to student welfare. Id. ¶ 12. District requires that allegations of bullying, harassment or assault of a student with a disability by a teacher be directed to the District's Section 504 coordinator. Id. ¶ 13. On or about February 8, 2017, plaintiff's mother attended a meeting at which plaintiff's teacher, Laura Adams ("Adams") notified her that she had concerns about treatment of plaintiff by a paraprofessional, Kenneth Burt ("Burt"). Id. ¶ 16. Plaintiff's mother requested that Burt no longer have any contact with her son. Id. ¶ 17. She later learned that Burt was with plaintiff on one occasion when Burt twisted plaintiff's arm, put him against a wall, and pushed him to the floor. Id.¶¶ 18, 19. Plaintiff told his mother that beginning in January 2 017, when plaintiff was put in Burt's classroom, Burt would insult him, telling him he was not normal or would not make it to be a grown-up. Id. ¶ 20. On February 16, 2017, plaintiff's mother met with the principal and Adams, who confirmed plaintiff's recollection of bullying and harassment and an assault. Id. ¶ 22. As a result of Burt's actions, plaintiff's behavior declined dramatically and he began experiencing anxiety, panic attacks, depression, and anger. Id. ¶ 27.

         Further: On or about April 4, 2017, plaintiff called his mother from school and asked her to pick him up. Adams got on the phone to say that she was losing patience with plaintiff. Doc. 19, ¶ 29. After the call, plaintiff stood on top of a table to get away from Adams and she knocked him to the ground, dragged him through two classrooms, and climbed on top of him. She kicked him in the chest. He had bruising on his chest, wrists and hips. Id. ¶ 30.

         Plaintiff asserts claims under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 ("ADA"), and for violation of the Fourth and Fourteenth Amendments.

         II. Grounds of the Motion

         District says that plaintiff's claims must be dismissed for lack of subject matter jurisdiction as he has failed to exhaust his administrative remedies. In addition, District says that plaintiff has failed to state any cognizable claims. Doc. 20.

         III. Applicable Legal Standards

         A. Subject Matter Jurisdiction

         Dismissal of a case is proper under Rule 12(b) (1) of the Federal Rules of Civil Procedure when the court lacks the statutory or constitutional power to adjudicate the case. Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) . When considering a motion to dismiss for lack of subject matter jurisdiction, the court construes the allegations of the complaint favorably to the pleader. Spector v. L Q Motor Inns, Inc., 517 F.2d 278, 281 (5th Cir. 1975) . However, the court is not limited to a consideration of the allegations of the complaint in deciding whether subject matter jurisdiction exists. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). The court may consider conflicting evidence and decide for itself the factual issues that determine jurisdiction. Id. Because of the limited nature of federal court jurisdiction, there is a presumption against its existence. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978); McNutt v. General Motors Acceptance Corp. of Ind., Inc., 298 U.S. 178, 189 (1936). A party who seeks to invoke federal court jurisdiction has the burden to demonstrate that subject matter jurisdiction exists. McNutt, 298 U.S. at 189; Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

         B. Plead ...


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