Horen v. Board of Educ. of Toledo City Sch. Dist., Case No. 3:08CV2119.

• Decision Date: 23 January 2009
• Docket Number: Case No. 3:08CV2119.
• Citation: 594 F.Supp.2d 833
• Parties: Glenn S. HOREN and Joanne E. Horen, individually and as next friend of DH, Plaintiffs-Appellants v. BOARD OF EDUCATION OF the TOLEDO CITY SCHOOL DISTRICT, et al., Defendants-Appellees.
• Court: U.S. District Court — Northern District of Ohio

594 F.Supp.2d 833

Glenn S. HOREN and Joanne E. Horen, individually and as next friend of DH, Plaintiffs-Appellants v. BOARD OF EDUCATION OF the TOLEDO CITY SCHOOL DISTRICT, et al., Defendants-Appellees.

Case No. 3:08CV2119.

United States District Court, N.D. Ohio, Western Division.

January 23, 2009.

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Glenn S. Horen, Toledo, OH, pro se.

Joanne E. Horen, Toledo, OH, pro se.

James P. Silk, Jr., Lisa E. Pizza, Randy L. Meyer, Spengler Nathanson, Toledo, OH, for Defendants-Appellees.

ORDER

JAMES G. CARR, Chief Judge.

This is a suit between the parents of a child entitled to a free appropriate education under the Individuals with Disabilities Education Act [IDEA], 20 U.S.C. § 1400 et seq. and the Toledo Public Schools [TPS]. The plaintiffs, Glen and Joanne Horen [Parents] appeal the outcome of an administrative complaint filed by TPS, and allege that TPS violated the IDEA. They also assert claims under 42 U.S.C. § 1983, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the Americans with Disabilities Act [ADA], 42 U.S.C. §§ 12131-12165. Their complaint joins two defendants who were not party to the administrative process: namely, the law firm that has represented TPS, Spengler Nathanson, P.L.L. [Spengler], and one of its attorneys, Randy L. Meyer.

Pending is Spengler and Meyer's Rule 12(c) motion for judgment on the pleadings. [Doc. 9]. Jurisdiction exists under 28 U.S.C. §§ 1331, 1343(a)(3) and 1343(a)(4). For reasons that follow, defendants' motion shall be granted.

Background

Parents' child, DH, is a ten-year old with multiple disabilities. Parents have filed numerous administrative complaints against TPS and Thom Billau, individually, and in his official capacity as Director of Special Education / Student Services, alleging violations of the IDEA. Parents began filing such complaints in May, 2006, and since that time, DH has not returned to school.

In early 2007, Parents and TPS met several times to draft DH's Individual Educational Plan [IEP]. Parents sought to record these meetings and objected to the presence of TPS' attorney. Due to these disputes, the parties never negotiated or developed DH's IEP.

In July, 2007, TPS filed a due process complaint, later designated by the Ohio Department of Education [ODE] as Case No. SE-1992-2007. This complaint sought an order: 1) directing Parents to participate in IEP meetings without making audio or video recordings unless they have obtained prior consent from TPS; 2) authorizing and confirming TPS' ability to have its attorney present during IEP meetings; and 3) directing Parents to send DH to school or, alternatively, to inform them if she is being home-schooled or otherwise educated.

An Impartial Hearing Officer [IHO] granted TPS' requests, and the State Level Review Officer affirmed the decision. Parents, on behalf of themselves and DH, appealed to this court, and added new claims to their complaint. They also have added Spengler and Meyer.

Discussion

Standard of Review

Defendants move for judgment on the pleadings under Fed.R.Civ.P.12(c), which provides that "[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." I review Rule 12(c) motions under the same standard as Rule 12(b)(6) motions. Ross, Brovins & Oehmke, P.C. v. Lexis Nexis Group, 463 F.3d 478, 487 (6th Cir.2006). If the plaintiff's complaint does not plead "enough facts to state a claim to relief that is plausible on its face," then I must grant defendants' motion. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007).

When deciding 12(c) and 12(b)(6) motions, I limit my inquiry to the content of plaintiffs' complaint, with the exception of matters of public record, orders, items appearing in the record and attached exhibits. See Yanacos v. Lake County, Ohio, 953 F.Supp. 187, 191 (N.D.Ohio 1996). I must accept all well-pled material allegations stated in the complaint as true and view the complaint in the light most favorable to the plaintiff. Papasan v. Allain, 478 U.S. 265, 283, 299, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). I am, however, "not bound to accept as true a legal conclusion couched as a factual allegation." Id. at 286, 106 S.Ct. 2932.

1. Rule 12(c) Motion Prematurely Filed

Neither party can file a Rule 12(c) motion for judgment on the pleadings until the pleadings are "closed." Fed.R.Civ. Pro.12(c). This generally occurs upon the filing of a complaint and answer. Signature Combs, Inc. v. United States, 253 F.Supp.2d 1028, 1030-1031 (W.D.Tenn. 2003).

If a case has multiple defendants, all defendants must file an answer before a Rule 12(c) motion can be filed. See, e.g., Habeeba's Dance of the Arts, Ltd. v. Knoblauch, 2006 WL 968642, at *2 (S.D.Ohio 2006).

Parents claim that Meyer and Spengler's motion is premature because they filed it on October 1, 2008, three weeks before defendants TPS and Billau filed their answer.¹

I have the discretion to deny the defendants' motion without prejudice, and allow them to re-file the motion on a date subsequent to October 22, 2008—however, I do not think this serves a useful purpose. See Habeeba's Dance, supra, 2006 WL 968642, at *2.

Instead, I will construe the defendants' premature, pre-answer Rule 12(c) motion as a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). See Collins v. Muskegon County Sheriff's Dept., 2007 WL 426586, *5 (W.D.Mich.); Jung v. Association of American Medical Colleges, 339 F.Supp.2d 26, 35-36 (D.D.C. 2004) ("No prejudice to any party results from treating a Rule 12(c) motion as a Rule 12(b)(6) motion because the standard of review for motions for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure is essentially the same as that for motions to dismiss under Rule 12(b)(6)."); Signature Combs, supra, 253 F.Supp.2d at 1030-1031 (W.D.Tenn. 2003) (construing a Rule 12(c) motion filed approximately two months before the final answer as a Rule 12(b)(6) motion).

2. Section 1983

To state a cause of action under § 1983, a plaintiff must allege the deprivation of a right secured by the United States Constitution or federal statute by a person acting "under color of state law." Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-57, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Spadafore v. Gardner, 330 F.3d 849, 852 (6th Cir.2003).

Parents contend that Meyer and Spengler violated § 1983 by depriving DH of her rights under the IDEA, as well as her substantive due process, procedural due process and equal protection rights under the Fourteenth Amendment. Parents sue Meyer and Spengler in their individual and official capacities and seek compensatory and punitive damages.

For the following reasons, all Parents' § 1983 claims lack merit.

A. Under Color of Law

An individual acts "under color of law" when exercising "power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Polk County v. Dodson, 454 U.S. 312, 329, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (internal citations omitted).

Parents' § 1983 claim fails because they do not sufficiently allege that defendants acted under color of law. Defendants are only connected to the State through their provision of legal services to TPS. In their complaint, Parents rely on this relationship to assert that the defendants are state actors. This contention fails, however, because attorneys do not become state actors by representing state or local governments. See id. at 321, 102 S.Ct. 445 (holding that an attorney employed by the state, such as a public defender, still does not have a sufficient relationship to act "under color of state law within the meaning of § 1983").

In their opposition to defendants' 12(c) motion, Parents reformulate their argument as to why defendants are state actors. Now Parents contend that because the State "directs or controls" the defendants' actions, "the state can be held responsible for the private party's decision." See Payton v. Rush-Presbyterian-St. Luke's Medical Center, 184 F.3d 623, 628 (7th Cir.1999). By failing to allege this in their complaint, Parents' new assertion fails. Indeed, Parents' complaint asserts facts to the contrary—namely, that by acting as TPS' attorneys, defendants became state actors.

This new argument also fails on its merits. See Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (holding that state action is only present if the state "exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State"). There is no indication that the State coerced or otherwise controlled defendants. In fact, Parents belied this new argument by asserting in their complaint that Meyer cancelled an IEP meeting against the wishes of TPS' Billau.

Parents' second reformulation, that defendants engaged in a "public function," also fails. By pleading that Meyer worked as legal counsel for TPS at all relevant times, Parents' complaint contradicts this new claim.

Moreover, to qualify as "state action," a private party must carry out a function that has historically been the "exclusive" prerogative of the state. Rendell-Baker v. Kohn, 457 U.S. 830, 841, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). Acting as an IEP team member or overseeing meetings does not rise to this level, as such tasks are not exclusively reserved to the State. Non-state actors often participate in IEP meetings, including the child's parents and other knowledgeable individuals.

Parents further contend that even if defendants are not state actors, they are still liable under § 1983 because they conspired with state actors. See Lugar v. Edmondson Oil, 457 U.S. 922, 931, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (...