J.M. ex rel. McCauley v. Francis Howell Sch. Dist.

• Decision Date: 07 March 2017
• Docket Number: No. 16-1756,16-1756
• Citation: 850 F.3d 944
• Parties: J.M., Next Friend Kristine McCauley, Plaintiff-Appellant v. FRANCIS HOWELL SCHOOL DISTRICT, Defendant-Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

850 F.3d 944

J.M., Next Friend Kristine McCauley, Plaintiff-Appellant

v.FRANCIS HOWELL SCHOOL DISTRICT, Defendant-Appellee

No. 16-1756

United States Court of Appeals, Eighth Circuit.

Submitted: January 10, 2017

Filed: March 7, 2017

Counsel who presented argument on behalf of the appellant was Larry Alan Bagsby, of Saint Charles, MO.

Counsel who presented argument on behalf of the appellee was Kathryn Boehm Forster, of Saint Louis, MO. The following attorney(s) appeared on the appellee brief; Cindy Reeds Ormsby, of Saint Louis, MO, and Angela Gabel, of Saint Louis, MO.

Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.

BENTON, Circuit Judge.

On behalf of her minor son, J.M., Kristine McCauley sued Francis Howell School District, claiming unlawful use of isolation and physical restraints. Her second amended complaint asserted violations of: (1) the Equal Protection Clause of the Fourteenth Amendment; (2) 42 U.S.C. §§ 1983 and 1988 ; (3) the Americans with Disabilities Act (ADA), 42 U.S.C. § 12182 ; (4) Section 504 of the Rehabilitation Act of 1973; and (5) the Missouri Human Rights Act (MHRA), RSMo § 213.010 et seq. The district court¹ dismissed the federal claims for "lack of subject matter jurisdiction for failure to exhaust administrative remedies" and declined to exercise supplemental jurisdiction over the MHRA claim, dismissing it without prejudice.² Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

In 2011, J.M. began kindergarten in the Francis Howell School District. J.M. qualified for services under the Individuals with Disabilities Education Act (IDEA) based on his diagnoses of attention deficit hyperactivity disorder

, autism spectrum disorder, anxiety disorder, separation anxiety disorder, panic disorder, Asperger's/autism spectrum disorder, and generalized anxiety. See 20 U.S.C. § 1400 et seq. Under the IDEA, J.M. had an Individualized Education Program (IEP).

McCauley alleges that between January 2012 and September 2014, J.M. repeatedly was placed in physical restraints and isolation without her knowledge. Learning of this, she immediately contacted the District, requesting restraints only when necessary and no isolation. On September 5, McCauley removed J.M. from the District.

McCauley sued in federal court under the IDEA, 42 U.S.C. §§ 1983 and 1988, and Missouri common law (torts of negligence per se, false imprisonment, and battery). She amended the complaint to add claims under the ADA and MHRA. The District answered, claiming failure to exhaust administrative remedies for the federal claims, and sovereign immunity for the common law tort claims. McCauley voluntarily amended her complaint, removing the IDEA and common law tort claims. Her second amended complaint thus included claims under the Equal Protection Clause, 42 U.S.C. §§ 1983 and 1988, the ADA, Section 504 of the Rehabilitation Act of 1973, and the MHRA.

The District moved to dismiss, alleging lack of subject matter jurisdiction for failure to exhaust administrative remedies under the IDEA. McCauley argued her claims were not under the IDEA, and thus not subject to exhaustion. In the alternative, she asserted exceptions to the exhaustion requirement. The district court granted the motion to dismiss.

I.

This court reviews de novo whether exhaustion of administrative remedies was required. J.B. ex rel. Bailey v. Avilla R-XIII School Dist. , 721 F.3d 588, 592 (8th Cir. 2013), citing Brown v. J.B. Hunt Transp. Servs., Inc. , 586 F.3d 1079, 1083 n.4 (8th Cir. 2009).

"In the IDEA, Congress established procedural safeguards to ensure individuals with disabilities will have the opportunity to obtain a free appropriate public education (FAPE)." Id. , citing 20 U.S.C. § 1415(a). One safeguard is an opportunity to present complaints about the provision of a FAPE in "an impartial due process hearing." Id. , quoting Honig v. Doe , 484 U.S. 305, 311-12, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). See 20 U.S.C. § 1415(f). "A party aggrieved by the outcome of an IDEA due process hearing may challenge the outcome before the state educational review agency." J.B. , 721 F.3d at 592, citing 20 U.S.C. § 1415(g)(1). "The outcome of the administrative review hearing may then be disputed in district court." Id. , citing 20 U.S.C. § 1415(i)(2)(A).

The IDEA's exhaustion requirement also applies to claims under the Constitution, the ADA, the Rehabilitation Act, and other federal laws protecting children with disabilities to the extent those claims seek relief "that is also available under [the IDEA]." 20 U.S.C. § 1415(l) ; Fry v. Napoleon Cmty. School , No. 15-497, ––– U.S. ––––, 137 S.Ct. 743, 752, 197 L.Ed.2d 46, 2017 WL 685533, at *8 (U.S. Feb. 22, 2017) (" Section 1415(l) requires that a plaintiff exhaust the IDEA's procedures before filing an action under the ADA, the Rehabilitation Act, or similar laws when (but only when) her suit ‘seek[s] relief that is also available’ under the IDEA."); J.B. , 721 F.3d at 592 ("[B]efore parties may bring a claim in district court under a different statute for which they seek relief which is also available under the IDEA, the parties must first exhaust the administrative remedies under the IDEA."). After argument in this case, the Supreme Court held that " ‘relief that is also available’ under the IDEA" means "relief for the denial of a FAPE, because that is the only ‘relief’ the IDEA makes ‘available.’ " Fry , 137 S.Ct. at 752, 2017 WL 685533, at *8. Thus, "exhaustion is not necessary when the gravamen of the plaintiff's suit is something other than the denial of the IDEA's core guarantee—what the Act calls a ‘free appropriate public education.’ " Id. , at 748, 2017 WL 685533 at *3, quoting § 1412(a)(1)(A).

"[D]etermining whether a suit indeed ‘seeks' relief for [denial of a FAPE], a court should look to the substance, or gravamen, of the plaintiff's complaint." Id. , at 752, 2017 WL 685533 at *8. The inquiry "does not ride on whether a complaint includes (or, alternatively, omits) the precise words(?) ‘FAPE’ or ‘IEP.’ " Id. , at 755, 2017 WL 685533 at *11. Rather, "[i]n addressing whether a complaint fits that description, a court should attend to the diverse means and ends of the statutes covering persons with disabilities—the IDEA on the one hand, the ADA and Rehabilitation Act (most notably) on the other." Id.

The IDEA, of course, protects only "children" (well, really, adolescents too) and concerns only their schooling. § 1412(a)(1)(A). And as earlier noted, the statute's goal is to provide each child with meaningful access to education by offering individualized instruction and related services appropriate to her "unique needs." § 1401(29); see Rowley , 458 U.S. at 192, 198, 102 S.Ct. 3034 ; supra , at 753–54. By contrast, Title II of the ADA and § 504 of the Rehabilitation Act cover people with disabilities of all ages, and do so both inside and outside schools. And those statutes aim to root out disability-based discrimination, enabling each covered person (sometimes by means of reasonable accommodations) to participate equally to all others in public facilities and federally funded programs.

Id. "A further sign that the gravamen of a suit is the denial of a FAPE can emerge from the history of the proceedings. In particular, a court may consider that a plaintiff has previously invoked the IDEA's formal procedures to handle the dispute." Id. , at 757, 2017 WL 685533 at *13.

II.

McCauley did not file an IDEA due process complaint, request a due process hearing, or engage in the exhaustion procedures under the IDEA. See 20 U.S.C. § 1415(f), (g), (l) . She argues exhaustion is not required because she does not seek relief available under the IDEA. The question here is whether the complaint is based on the District's denial of a FAPE. Fry , 137 S.Ct. at 753, 2017 WL 685533, at *8 ("[T]he thing a plaintiff must seek in order to trigger § 1415(l)'s exhaustion rule—is relief for the denial of a FAPE.").

Considering "substance, not surface," the district court did not err in finding the complaint seeks relief for denial of a FAPE under the IDEA. Id. , at 755, 2017 WL 685533 at *11. The second amended complaint states, "At all times mentioned above, [J.M.] was entitled to the educational services and protections available under the Individuals with Disabilities Education Act of 1975" and "at all times [J.M. was] entitled to reasonable accommodations" for his disabilities. It alleges that "[b]etween February 2014 and September 5, 2014, J.M. was placed in physical restraints for half of the time he actually spent at Defendant's schools." It further states that J.M. was "denied ... because of his disability, participation in and the benefits of a public education." These allegations show that the complaint was based on the "denial of a FAPE" under the IDEA. See id. , at 758, 2017 WL 685533 at *13 (determining the Fry's complaint "alleges only disability-based discrimination" and "contains no allegation .. accus[ing] the school even in general terms of refusing to provide the educational instruction and services that E.F. needs").

"As defined in the Act, a FAPE comprises ‘special education and related services'—both ‘instruction’ tailored to meet a child's ‘unique needs' and sufficient ‘supportive services' to permit the child to benefit from that instruction." Id. , at 748–49, 2017 WL 685533 at *4, citing 20 U.S.C. §§ 1401(9), (26), (29) . The ADA and Section 504, on the other hand, forbid public entities and federally funded programs or activities from discriminating based on disability. Id. , at 749–50, 2017 WL 685533 at *5. The complaint here is not based on disability discrimination. Except for Count IV (the MHRA claim), the complaint does not use the word "discrimination." Rather, the complaint is based on how the use of isolation and physical restraints failed to provide proper "sufficient ‘supportive services' to permit [J.M.] to benefit from ... instruction," id. , at 748–49, 2017 WL 685533 at *4, and ultimately "d...