Payne v. Peninsula Sch. Dist.

Citation598 F.3d 1123
Decision Date18 March 2010
Docket NumberNo. 07-35115.,07-35115.
PartiesWindy PAYNE, individually and as guardian on behalf of; D.P., a minor child, Plaintiffs-Appellants, v. PENINSULA SCHOOL DISTRICT, a municipal corporation; Artondale Elementary School, a municipal corporation; Jodi Coy, in her individual and official capacity; James Coolican, in his individual and official capacity; Jane Does 1-10; John Does 1-10, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Thomas B. Vertetis, Gordon, Thomas Honeywell, Malanca, Peterson & Daheim LLP, Tacoma, WA, for the appellant.

Michael A. Patterson and Donald F Austin, Patterson Buchanan Fobes Leitch & Kalzer P.S., Seattle, WA, for the appellees.

Appeal from the United States District Court for the Western District of Washington, Ronald B. Leighton, District Judge, Presiding. D.C. No. CV-05-05780RBL.

Before: HARRY PREGERSON CYNTHIA HOLCOMB HALL and JOHN T. NOONAN, Circuit Judges.

Opinion by Judge HALL; Dissent by Judge NOONAN.

HALL, Senior Circuit Judge:

Windy Payne ("Payne"), the mother of D.P., an autistic student, appeals from the district court's dismissal without prejudice of the suit she brought on D.P.'s behalf for negligence, outrage, and § 1983 violations.1Her claims were predicated on D.P.'s constitutional rights and statutory rights under the Individuals with Disabilities Education Act ("IDEA"). The district court found that it lacked subject matter jurisdiction over Payne's federal claims because Payne failed to exhaust her administrative remedies before coming into federal court.2

We have jurisdiction pursuant to 28 U.S.C § 1291 and agree.

I.

Because this appeal arises from a grant of summary judgment, we present the facts in the light most favorable to Payne. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.2004).

D.P. suffers from moderate autism which has delayed his academic progress and caused his resistance to work, his difficulties staying on task, and his impulsive, "inappropriate or aggressive" responses to his environment. In September 2003, as is required under the IDEA, see 20 U.S.C. § 1414 (2006), an Individualized Education Plan ("IEP") was developed for D.P. to address these limitations and provide appropriate education. That plan placed him in a transition classroom at Artondale Elementary School, set out instructional goals, and, most relevant to this case, sought to address his behavioral issues through various intervention methods, including the use of time-out in a "safe room."

This case concerns that safe room, a roughly 5' x 6' room located within the special education classroom. It is the teacher's use of that room with D.P., rather than the room itself, that is at issue here. The parlies dispute the details as to what Payne consented to (i.e. a locked, closed door, with no adult inside), the duration of D.P.'s periods of confinement, and whether the window was covered. However, they agree that D.P. was locked in the room on multiple occasions in response to his classroom behavior. On several occasions, he removed his clothes in there, and urinated and defecated on himself. He helped his teacher, Jodi Coy, clean up his excrement. He began to exhibit anxious behaviors and experience emotional and scholastic setbacks

Payne was wary of the safe room's use from the beginning. The Paynes consulted with Coy and other District administrators regarding its use during the IEP's development and after the defecating incident, expressing concerns over having D.P. in there with a closed door and no adult inside. Coy defended her use of the safe room as an appropriate response to D.P.'s attempts to gain attention through his misbehavior. The Paynes continued to have disagreements with Coy and administrators regarding access to the classroom and D.P.'s outside tutoring, which led them to request repeatedly that D.P. be moved from Coy's classroom. When those requests were denied, the Paynes requested mediation. Though that mediation resulted in an agreement that D.P. would be transferred to another school in the district, the record suggests that the Paynes did not attempt to address D.P.'s emotional problems there and that they were laterunhappy with the District's provision of the services to which it had agreed. Despite the mediation agreement's failure to resolve all of Payne's issues with the District's provision of services, Payne never sought an impartial due process hearing. D.P. is currently being home-schooled.

In December 2005, Payne filed a complaint in the district court. Payne claims the teacher's use of the room caused her son's "significant regression in communi-cative and sensory functions, " the diminishment of his "academic prowess and abilities, " and the continuing "signs of emotional trauma." She sought general damages for "extreme mental suffering and emotional distress and special damages, " as well as punitive damages for the violation of D.P.'s civil rights, and declaratory relief stating that the District's safe room policy was tortious and unconstitutional.

Appellees Peninsula School District, Artondale Elementary School, Coy, and James Coolican (collectively "Appellees") filed a motion for summary judgment. The district court found that it lacked subject matter jurisdiction over Payne's federal claims because Payne failed to exhaust her administrative remedies before coming into federal court. It then declined to exercise supplemental jurisdiction over her state law claims, finding no independent basis for jurisdiction over them.

II.

We review de novo both a district court's decision to grant summary judgment, Univ. Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.2004) and its determination of whether it has subject matter jurisdiction, see Schnabel v. Lui, 302 F.3d 1023, 1028-29 (9th Cir.2002).

To ensure "appropriate public education that emphasizes special education and related services designed to meet [the] unique needs" of children with disabilities, the IDEA requires school districts to develop IEPs outlining the educational services to be provided for those children. 20 U.S.C. § 1400(d)(1)(A); id. § 1414(d). Those services include "developmental, corrective, and other supportive services" that address a wide range of academic, emotional, and physical issues "as may be required to assist a child with a disability to benefit from special education." Id, § 1401(26).

In order to carry out these objectives and permit parental involvement, the IDEA created procedural safeguards. Sec Robb v. Bethel School District, 308 F.3d 1047, 1049 (9th Cir.2002). If parents are not satisfied with decisions regarding their child's educational program or with the services provided, they are guaranteed an "impartial due process hearing." Id. § 1415(f). They must exhaust this procedure prior to filing a civil action. Id. § 1415(£). This exhaustion requirement recognizes the traditionally strong state and local interest in education, allows for the exercise of discretion and educational expertise by state agencies, affords full exploration of technical educational issues, furthers development of the factual record and promotes judicial efficiency by giving state and local agencies the first opportunity to correct shortcomings. Kiitasi v. Las Virgenes Unified Sch. Dist, 494 F.3d 1162, 1167 (9th Cir.2007). Plaintiffs "seeking relief that is also available under" the IDEA must exhaust procedures "to the same extent as would be required had the action been brought under" the IDEA. 20 U.S.C. § 1415(l).

We have two cases controlling our analysis: Witte v. Clark County School District, 197 F.3d 1271, 1275 (9th Cir.1999) (where exhaustion was not required), and Robb v. Bethel School District, 308 F.3d 1047, 1049 (9th Cir.2002) (where it was). In Witte, a student with Tourette's Syndrome filed a civil action seeking damages for past physical and emotional abuse after he was allegedly force-fed food to which he was allergic, strangled, subjected to physical "take downs, " forced to walk and run despite hindering deformities, and deprived of food. See 197 F.3d 1271. In Robb, a student with cerebral palsy filed an action seeking damages for emotional trauma and lost educational opportunities after she was removed from the classroom for peer tutoring. See 308 F.3d 1047.

The Witte court decided exhaustion was not necessary because the parties (1) had resolved all educational issues through the IEP process, (2) sought only retrospective damages, and (3) had claims centering around physical abuse and injuries. Witte, 197 F.3d at 1275-76. Robb found that exhaustion was required and distinguished itself from Witte because its plaintiffs (1) had not taken full advantage of IDEA administrative procedures, (2) requested money damages to compensate for "psychological and educational injuries the IDEA may remedy, " and (3) did not claim physical injury. Robb, 308 F.3d at 1052. In both cases, the inquiry may be boiled down to one central question: whether the plaintiffs "seek relief for injuries that could be redressed to any degree by the IDEA's administrative procedures." Kutasi v. Las Virgenes Unified Sch. Dist, 494 F.3d 1162, 1163-64 (9th Cir.2007). If the answer to that question is either yes or unclear, exhaustion is required. See id. at 1168 (citing Robb, 308 F.3d at 1050).

Our analysis depends primarily on whether this case is more like Witte or Robb. Factually, we are somewhere in between. This case does not involve actions equivalent to forcing-feeding, strangulation, "take downs, " or food deprivation actions which were part of no IEP and "served no legitimate educational purpose." Witte, 197 F.3d at 1273. However, this case likewise is not so purely educational as Robb, where a child was taken out of class and given peer tutoring on a hallway floor instead. See 308 F.3d at 1048. Instead, we are in a middle ground involving disciplinary measures employed as a part of a larger...

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    ...appealed. In a divided decision, a panel of this court affirmed the district court's grant of summary judgment. Payne v. Peninsula Sch. Dist., 598 F.3d 1123 (9th Cir.2010), reh'g en banc granted, 621 F.3d 1001 (9th Cir.2010). The majority began by noting that the applicability of § 1415( l ......
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