Ely v. Mobile Cnty. Sch. Bd.

• Decision Date: 11 May 2016
• Docket Number: CIVIL ACTION 15-566-KD-M
• Parties: DEVIN ELY, Plaintiff, v. MOBILE COUNTY SCHOOL BOARD, Defendant.
• Court: U.S. District Court — Southern District of Alabama

DEVIN ELY, Plaintiff, v. MOBILE COUNTY SCHOOL BOARD, Defendant.

CIVIL ACTION 15-566-KD-M

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

May 11, 2016

REPORT AND RECOMMENDATION

This action is before the Court on Defendant¹ Mobile County School Board's Motion to Dismiss Plaintiff's Complaint (doc. 9) under Federal Rule of Civil Procedure 12(b)(6). Plaintiff Devin Ely, proceeding pro se, has filed a response in opposition to the motion (doc. 12), as well as a second amended complaint (doc. 13), to which the defendant replied with an additional brief in support of its motion to dismiss. (Doc. 14).

This motion is now under submission and has been referred to the undersigned Magistrate Judge for entry of a report and recommendation as to the appropriate disposition, in accordance with 28 U.S.C. § 636(b)(1)(B)-(C), Federal Rule of Civil Procedure 72(b)(1), and S.D. Ala. GenLR 72(a)(2)(S). Upon consideration, and for the reasons stated herein, the undersigned recommends that themotion to dismiss be granted and the second amended complaint be dismissed with prejudice unless Plaintiff files a viable third amended complaint on or before may 25, 2016.

I. Background.²

Plaintiff brings this action against the Mobile County School Board ("the school board" or "the Board") claiming that he suffered discrimination based on "race, size, and disabilities" causing him to have "limited choices for higher education" and "prevented [him] from earning possible scholarships." (Doc. 1 at 2; Doc. 4 at 2). Ely's pleadings, however, are ambiguous in identifying the law under which he brings his claims and vague in defining his allegations.³ To the best of the court's discernment, this action centers on Ely's contentions that the school board violated various federal laws related to the education ofchildren with special needs, disabilities, or those who are homeless. (Docs. 1, 4, 13).

The defendant responded to Plaintiff's bare bones allegations with a motion to dismiss for failure to state a claim upon which relief may be granted, noting that

Plaintiff has stated no factual basis whatsoever for any possible claim for racial discrimination under any discrimination statute. Furthermore, he has set out absolutely no factual basis for any claim of disability discrimination. The Plaintiff does not set out any factual basis whatsoever for any claim of discrimination based upon his size. Finally, the Plaintiff has also not set out any factual basis for his claim that he was not successful for higher education and scholarship opportunities.

(Doc. 10 at 1). Plaintiff Ely opposed the Board's motion with two statements: (1) that his "complaints are true and deserve a trial by jury" and (2) his "complaint(s) will and has identified federal violations that should be trialed[sic] in federal court." (Doc. 12 at 1).

Additionally, Ely filed a second amended complaint alleging he was "discriminated against for years and suffered grade tampering, suspensions, etc. [and the] Mobile County School Board also failed to give [him] Special Education Services for years during [his] tenure of schooling." (Doc. 13 at 3). Ely further claims the Board's federal law violations caused him to be ineligible to participate in school sports his junior and senior yearof high school, and caused him to "suffer[] academically, emotionally, and mentally, [as his] living status was exposed by liaisons, and [he] was embarrassed by his peers." (Doc. 13 at 3). Ely seeks punitive and compensatory damages and continued education assistance for the emotional stress and mental anguish endured. (Id. at 2).

Again, the school board responded with a brief in support of its motion to dismiss, arguing that Plaintiff has yet to cure the deficiencies of his pleadings and has failed to state a claim upon which relief may be granted. (Doc. 14). The Board identifies claims in the action that are unexhausted based on federal law or moot due to Plaintiff's graduation.⁴ (Id. at 2). The defendant further maintains that several of Ely's stated claims do not support a federal cause of action and should be dismissed.⁵And, lastly, the Board argues it is immune from suit, pursuant to Art. 1 Sec. 14 of Ala. Const., from any state law claims. (Id. at 3-4).

II. Legal Standard.

To survive dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must first satisfy the pleading requirements of Rule 8(a)(2), which rule provides that "[a] pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief. . . ." Fed. R. Civ. P. 8(a)(2). While Rule 8 establishes a regime of "notice pleading," Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 513-14, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002), it does not eliminate all pleading requirements.

First, the complaint must address all the elements that must be shown in order to support recovery under one or more causes of action. "At a minimum, notice pleading requires that a complaint contain inferential allegations from which we can identify each of the material elements necessary to sustain a recovery under some viable legal theory." Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 960 (11th Cir. 2009) (emphasis and internal quotes omitted).

Pleading elements is necessary, but it is not enough to satisfy Rule 8(a)(2). The rule "requires more thanlabels and conclusions, and a formulaic recitation of the elements of a cause of action will not do" to satisfy that rule. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2009). There must in addition be a pleading of facts. Though they need not be detailed, "[f]actual allegations must be enough to raise a right to relief above the speculative level ...." Id. That is, the complaint must allege "enough facts to state a claim for relief that is plausible on its face." Id. at 570.

"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. And while a complaint drafted by a pro se plaintiff is "[held] to less stringent standards than formal pleadings drafted by lawyers[,]" Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652, (1972) (per curiam), it "must [still] set forth enough factual matter (taken as true) to suggest [the required elements of a cause of action]." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

Thus, when considering whether a complaint states a claim for relief, the Court "should assume, on a case-by-case basis, that well pleaded factual allegations are true and then determine whether they plausibly give rise to an entitlement to relief." Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010). Finally, "[w]here a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice." Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991)(per curiam), overruled in part by Wagner v. Daewoo Heavy Indus. Am Corp., 314 F.3d 541, 542 (11th Cir. 2002). See also Watkins v. Hudson, 560 Fed. App'x 908, 911 n. 2 (11th Cir. 2014) (explaining that Wagner overruled Hudson with respect to plaintiffs who are represented by counsel).

III. Analysis.

1. Claims Under the Individuals with Disabilities Education Act are Unexhausted.

Plaintiff Ely claims that he was discriminated against based on "disabilities" and that the Board "failed to give [him] special education services for years during [his] tenure of schooling." (Doc. 13 at 2-3). The defendant submits that this claim would fall under the Individuals with Disabilities Education Act and, therefore, must first be brought before a Hearing Officer in a state administrative proceeding according to the federal statute.

The undersigned agrees with the defendant that any discrimination and special education claims fall within the parameters of the Individuals with Disabilities Education Act (IDEA), despite the fact that Ely failed to identify the IDEA as a statute under which he brings his suit. "Even when a plaintiff does not bring claims under the IDEA, the courts must look at the relief requested to determine whether the relief is available under the IDEA. . . ." Barnett v. Baldwin Cnty. Bd. of Educ., 60 F. Supp. 3d 1216, 1228 (S.D. Ala. 2014) (citing Babicz by & Through Babicz v. School Bd., 135 F.3d 1420, 1422 n. 10 (11th Cir. 1998) ("[A]ny student who wants 'relief that is available under' the IDEA must use the IDEA's administrative system, even if he invokes a different statute," such as Section 504 of the Rehabilitation Act or the Americans with Disabilities Act.).

The IDEA was enacted in part "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living[.]" 20 U.S.C. § 1400(d)(1)(A)-(B). To fall within the statute, a child must have "intellectual disabilities, hearing impairments(including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance . . ., orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities[.]" 20 U.S.C.S. § 1401(3)(A)(i). The parent of a child, a State educational agency or other State agency "may initiate a request for an initial evaluation to determine if the child is a child with a disability." 20 U.S.C.S. § 1414(a)(1)(B). After a student is identified as disabled, an individualized education plan (IEP) is created. An IEP is "a comprehensive written statement that outlines the child's annual goals and the education and related services needed to...