Allen v. SUMNER County Bd. of Educ.

Citation726 F.Supp.2d 868
Decision Date06 July 2010
Docket NumberCivil Action No. 3:09-cv-1003.
PartiesAllen and Jennifer SAGAN Individually and o/b/o Jane Doe, a minor, Plaintiffs, v. SUMNER COUNTY BOARD OF EDUCATION and Donna Weidenbenner Individually and in her official capacity as Special Needs Teacher of Station Camp Elementary School, Defendants.
CourtU.S. District Court — Middle District of Tennessee

OPINION TEXT STARTS HERE

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Andy L. Allman, Clinton L. Kelly, Fred Dulin Kelly, Kelly, Kelly & Allman, Hendersonville, TN, for Plaintiffs.

Amber K. St. John, Law Office of Amber St. John, Smyrna, TN, Mac E. Robinson, Jr., Robinson & Robinson, Nashville, TN, for Defendants.

MEMORANDUM OPINION

THOMAS A. WISEMAN, JR., Senior District Judge.

Before the Court are three separate motions filed by Defendants Sumner County Board of Education (Board) or Donna Weidenbenner: (1) Motion to Strike (Doc. No. 20), filed by the Board, seeking to strike the allegations set forth in Paragraph 7 of the Complaint; (2) Motion to Dismiss (Doc. No. 22), filed by the Board pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, seeking dismissal on the grounds of lack of subject-matter jurisdiction and, alternatively, for failure to state a claim upon which relief may be granted; and (3) Motion to Dismiss filed on behalf of Weidenbenner, reiterating the Board's arguments for dismissal based upon Rule 12(b)(1) or 12(b)(6), but also asserting that the claims under Title II of the Americans with Disabilities Act (“ADA”) and § 504 of the Rehabilitation Act, made against Weidenbenner in both her official and representative capacities, are subject to dismissal. Plaintiffs have filed one omnibus response in opposition to all three motions, and Sumner County has filed a single reply brief. The motions have been fully briefed and are ripe for resolution.

For the reasons set forth herein, the motions to dismiss will be granted in part and denied in part; the motion to strike will be denied.

I. MOTIONS TO DISMISS A. Standard of Review

The Board asserts that dismissal is required under Rule 12(b)(1) for lack of subject-matter jurisdiction, based upon Plaintiffs' alleged failure to exhaust administrative remedies as required by the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415( l ). 1 The Board also asserts that Plaintiffs have the burden of proving jurisdiction.

There is a dispute among the Circuit Courts of Appeals as to whether exhaustion of administrative remedies under the IDEA, is a jurisdictional requirement or whether exhaustion is merely a condition precedent for filing an IDEA lawsuit. The Seventh and Eleventh Circuits have held that the failure to exhaust administrative remedies does not deprive a court of subject-matter jurisdiction. See, e.g., Charlie F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 991 (7th Cir.1996); N.B. by D.G. v. Aluchua County Sch. Bd., 84 F.3d 1376, 1379 (11th Cir.1996). These courts reason that the lack of exhaustion is usually waivable while lack of jurisdiction is not. Charlie F., 98 F.3d at 991. In these jurisdictions, the failure to exhaust administrative remedies is an unmet condition precedent for filing a lawsuit, and may result in dismissal for failure to state a claim under Rule 12(b)(6) or on a motion for summary judgment.

Other courts have concluded that exhaustion of administrative remedies is a jurisdictional prerequisite. See, e.g., Polera v. Bd. of Educ., 288 F.3d 478, 483 (2d Cir.2002); MM v. Sch. Dist. of Greenville County, 303 F.3d 523, 536 (4th Cir.2002); Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1063 (10th Cir.2002); Witte v. Clark County Sch. Dist., 197 F.3d 1271, 1274 (9th Cir.1999). In these jurisdictions, the failure to exhaust administrative remedies results in dismissal for lack of subject-matter jurisdiction. Urban v. Jefferson County Sch. Dist. R-1, 89 F.3d 720, 725 (10th Cir.1996).

While the Sixth Circuit does not appear to have expressly decided this issue, a recent Supreme Court decision has made it clear that exhaustion generally, when statutorily required, is not a jurisdictional bar. Rather, exhaustion is an affirmative defense that must be raised and proved by the defendant. Jones v. Bock, 549 U.S. 199, 212-13, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (analyzing the exhaustion provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915A, and finding that, although many lower courts, including the Sixth Circuit, had treated this provision as jurisdictional, exhaustion is better regarded as an affirmative defense). 2 In light of the analysis applied in Jones v. Bock, at least one other district court within the Sixth Circuit has concluded that failure to exhaust administrative remedies in the context of a claim brought under the IDEA is an affirmative defense, not a jurisdictional bar. B.H. v. Portage Pub. Sch. Bd. of Educ., No. 1:08-cv-293, 2009 WL 277051, at *3 (W.D.Mich. Feb. 2, 2009) (converting defendant's Rule 12(b)(1) motion into Rule 56 motion). Other district courts within the Sixth Circuit have similarly considered the failure-to-exhaust issue without couching it as jurisdictional. See, e.g., Doe v. Dublin City Sch. Dist., No. 2:09-cv738, 2010 WL 1434318 (S.D.Ohio April 8, 2010) (dismissing complaint under Fed.R.Civ.P. 12(b)(6) based upon plaintiffs' failure to exhaust remedies).

As the disposition of Doe v. Dublin City School District suggests, the distinction is largely academic unless the objection has been waived, as the failure to exhaust may provide a grounds for dismissal, just not on the basis of lack of subject-matter jurisdiction. Further, although construing the exhaustion requirement as an affirmative defense would ordinarily shift the burden of proof to the Board, the Sixth Circuit has clearly held that the “burden ... rests with the [plaintiff] to demonstrate the futility or inadequacy of administrative review.” Gean v. Hattaway, 330 F.3d 758, 774 (quoting Honig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)). In the present case, the Board does not, for purposes of its motion, dispute the facts set forth in Plaintiffs' complaint, and the only issue presented is a legal one: whether exhaustion was required in this case. Because there are no material factual disputes that pertain to resolution of this issue, the Court will construe the Board's motion as a motion to dismiss under Rule 12(b)(6), which provides for dismissal of actions that fail to state a claim upon which relief can be granted. Under this standard, this Court must construe the Complaint in favor of Plaintiffs, accept the factual allegations contained in the Complaint as true, and determine whether Plaintiffs' factual allegations present plausible claims. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The claims must be “plausible” and not merely “conceivable.” Id. at 570, 127 S.Ct. 1955.

B. Factual and Procedural Background

Plaintiffs make the following factual allegations in the Complaint:

Plaintiffs are Allen and Jennifer Sagan, residents of Sumner County, Tennessee, and they bring this action individually and on behalf of their minor child, referred to herein as Jane Doe.

Jane Doe has Down syndrome, and during the 2008-2009 school year was a special-needs student at Station Camp Elementary School, a public school that is under the exclusive control of the Sumner County Board of Education. The Board is the ultimate decision-making body of the Sumner County school system with regard to the employment of teachers and all other policy determinations in the operation of the public schools within Sumner County.

Defendant Donna Weidenbenner is a citizen of Sumner County, Tennessee, and was at all times material to the complaint the “Special Needs Teacher at Station Camp Elementary School.” The Board established the Special Needs Class for the specific purpose of providing an adequate public education for special needs students such as Jane Doe. Plaintiffs were assured that Weidenbenner had all the necessary qualifications and credentials required for special needs teachers.

During the 2008-2009 academic year, Jane Doe was subjected to physical abuse and outrageous conduct perpetrated by Weidenbenner, including:

(1) being forcefully pushed into another teacher's classroom in one instance and, unbeknownst to that teacher, left there alone and unattended, where she lay on the floor for at least twenty minutes, terribly distraught and crying uncontrollably;

(2) being subjected to “constant abusive comments” by Weidenbenner;

(3) having Weidenbenner put a fingernail or something else sharp under one of Jane Doe's fingernails for discipline;

(4) being required to smell her own feces if she had a toileting accident;

(5) being pulled forcefully into a standing position, resulting in bruises on her arms; and

(6) being referred to as “a little shit” in her own presence as well as that of her mother and others.

( See Compl., Doc. No. 1, at ¶¶ 8-12.)

In paragraph 7 of the Complaint, Plaintiffs assert that [d]uring the 2008-2009 academic year Jane Doe and other special needs children were subjected to physical abuse and outrageous conduct perpetrated by [Weidenbenner],” including such things as “force feeding the children to the point of vomiting”; “forcefully shoving children into furniture causing bruises and abrasions”; “kicking and throwing children to the point they cry and become non-responsive and despondent”; and “strapping children to a commode for extended periods of time,” among other alleged abusive acts. (Compl. ¶ 7(a)-(s).)

Plaintiffs allege that these were not “isolated incidents” insofar as Weidenbenner had engaged in similar conduct in prior academic years with other special needs children, but the Board “failed to take such action as to prevent special needs students from the foreseeable and specific danger of harm at...

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