197 F.3d 1271 (9th Cir. 1999), 98-16351, Witte v. Clark County School Dist.

Docket Nº:98-16351
Citation:197 F.3d 1271
Party Name:SHAWN WITTE, a minor, by his next friend and Parent, TERESA WITTE, Plaintiff-Appellant, v. CLARK COUNTY SCHOOL DISTRICT; ROBERT T. HENRY, individually and in his official capacity as former Director of Program Development; BEVERLY J. MINNEAR, individually and in her official capacity as Principal of Variety School; WOODARD MACKE, individually and i
Case Date:December 02, 1999
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1271

197 F.3d 1271 (9th Cir. 1999)

SHAWN WITTE, a minor, by his next friend and Parent, TERESA WITTE, Plaintiff-Appellant,

v.

CLARK COUNTY SCHOOL DISTRICT; ROBERT T. HENRY, individually and in his official capacity as former Director of Program Development; BEVERLY J. MINNEAR, individually and in her official capacity as Principal of Variety School; WOODARD MACKE, individually and in his official capacity as teacher at Variety School, Defendants-Appellees.

No. 98-16351

United States Court of Appeals, Ninth Circuit

December 2, 1999

Argued and Submitted October 6, 1999

Page 1272

COUNSEL: Sara V. Winter, Clark County Legal Services Program, Inc., Las Vegas, Nevada, for the plaintiff-appellant.

Jon M. Okazaki, Office of the General Counsel, Clark County School District, Las Vegas, Nevada, for the defendants appellees.

Appeal from the United States District Court for the District of Nevada David Warner Hagen, District Judge, Presiding. D.C. No.CV-98-00368-DWH(LRL)

Before: Mary M. Schroeder, Robert R. Beezer, and Susan P. Graber, Circuit Judges. Opinion by Judge Graber

OPINION

GRABER, Circuit Judge:

Plaintiff Shawn Witte, through his "next friend " and parent Teresa Witte, brought this action against the Clark County School District (District) and three individuals. Plaintiff alleged violations of 42 U.S.C. S 1983, 29 U.S.C. S 794 (Rehabilitation Act), and 42 U.S.C. SS 12101 to 12213 (Americans with Disabilities Act), along with tort claims under state law. The district court dismissed the action pursuant to Federal Rule of Civil Procedure 12(b)(1) on the ground that Plaintiff had failed to exhaust administrative remedies under 20 U.S.C. S 1415 (Individuals with Disabilities Education Act, or IDEA). We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Because the district court dismissed the action on the ground that Plaintiff's complaint failed to allege a basis for federal subject-matter jurisdiction, we take the facts pleaded in the complaint as true. See Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1558 (9th Cir. 1987).

Plaintiff was, at the time the complaint was filed in May of 1998, 10 years old. He has been diagnosed with Tourette's Syndrome, asthma, attention deficit hyperactivity disorder, and emotional problems.

Defendant District operates Variety School, a public school that provides special education for children with disabilities. Plaintiff attended Variety School from 1995 through January 1998. During that period, defendant Robert T. Henry was the Director of Program Development for the District; defendant Beverly J. Minnear was the Principal of Variety School; and defendant Woodard Macke was Plaintiff's teacher.

Plaintiff receives special education and related services from the District and has an individualized education program (IEP) pursuant to the IDEA. The IEP outlines the goals and objectives that Plaintiff seeks to accomplish in a given school year. Plaintiff alleges that the abuses described in his complaint, which will be summarized

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below, served no legitimate educational purpose, but instead were inflicted solely to punish and humiliate Plaintiff for acts that were caused by his disabilities.

Plaintiff alleges that defendant Macke and his instructional assistant Michael Nelson physically, psychologically, and verbally abused him. For example, beginning in the winter of 1995, Defendants forced Plaintiff to eat oatmeal at school, even though Plaintiff is allergic to oatmeal and his mother had informed the teacher of the allergy. Macke and Nelson forcefed Plaintiff by having one of them hold Plaintiff's hands behind his back while the other forcibly fed Plaintiff oatmeal mixed with his own vomit. When Plaintiff's mother learned of the force feeding, she complained to defendant Minnear, who explained that she knew that the staff force-fed oatmeal to students; it was a form of punishment used in Variety School.

On December 6, 1995, an emergency room physician treated Plaintiff for red marks on his neck, which were diagnosed as being "consistent" with "strangulation." Nelson, under the direction of Macke, had choked Plaintiff in...

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