J.S. v. Isle of Wight County School Bd.

Decision Date30 March 2005
Docket NumberNo. 03-2446.,03-2446.
Citation402 F.3d 468
PartiesJ.S., a minor, by his mother Sharon Duck, Plaintiff-Appellant, and Sharon Duck, Plaintiff, v. ISLE OF WIGHT COUNTY SCHOOL BOARD; Michael W. McPherson, Superintendent of the Isle of Wight County Schools; Ted Durniak, Director, Special Education, Isle of Wight County Schools, Defendants-Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

John Warren Hart, BEATON & HART, P.C., Virginia Beach, Virginia, for Appellant. Kevin Joseph Cosgrove, HUNTON & WILLIAMS, Norfolk, Virginia, for Appellees.

Before MICHAEL and DUNCAN, Circuit Judges, and Roger W. TITUS, United States District Judge for the District of Maryland, sitting by designation.

Reversed in part, affirmed in part, and remanded by published opinion. Judge DUNCAN wrote the opinion, in which Judge MICHAEL joined. Judge TITUS wrote a concurring opinion.


DUNCAN, Circuit Judge:

J.S. and his mother, Sharon Duck, sued the Isle of Wight County (Virginia) School Board, superintendent, and special education director, alleging violations of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and 42 U.S.C. § 1983. The plaintiffs sought equitable and monetary relief on the grounds that the defendants failed to provide J.S. with special education services while he was a student at Carrsville Elementary School. The defendants conceded liability for violating the IDEA and entered into an agreement with the plaintiffs resolving all claims under this statute. The district court granted summary judgment for the defendants on J.S.'s claims under the Rehabilitation Act and § 1983.1 We affirm the order granting summary judgment on J.S.'s § 1983 claim. However, we reverse the award of summary judgment as to his claim under the Rehabilitation Act and remand this case for proceedings consistent with this opinion.


J.S. was born on May 4, 1989. In September 1994, he started kindergarten at Joseph P. King Elementary School ("J.P.King") in Franklin City, Virginia. In November 1994, Mrs. Duck grew concerned about J.S.'s progress in kindergarten and requested that the school evaluate J.S. for a possible learning disability. After several evaluations, the school determined that J.S. was a disabled child eligible to receive special assistance in the classroom.

In July 1996, after J.S. completed his first grade year at J.P. King, the school prepared an Individualized Education Program ("IEP") to commence when J.S. began the second grade in September 1996.2 Mrs. Duck participated in the preparation of J.S.'s IEP and agreed to accept the special education services offered by the school. J.S. nevertheless struggled through the second grade. As a result, J.S.'s teachers and Mrs. Duck formulated a new IEP and agreed that J.S. would repeat the second grade for the 1997-1998 school year. After successfully completing the second grade, J.S. began the third grade at J.P. King in September 1998. The parties disagree as to whether the Franklin City Schools implemented an IEP for the 1998-1999 school year. Although Mrs. Duck contends that J.S. had an IEP for the third grade, no record of an IEP was produced in the district court.

After his third grade year, J.S. and Mrs. Duck moved to Isle of Wight County. On August 17, 1999, Mrs. Duck completed a registration form to enroll J.S. in the Isle of Wight County Schools. The form asked "Has this child been identified for Special Education, Gifted and Talented Programs, or Alternative Education Programs?" J.A. at 102. Mrs. Duck checked the box indicating "yes" on the registration form. In addition, someone wrote the phrase "1997 Special Ed." below the "yes" box on the registration form, apparently to indicate that J.S. had last been enrolled in an IEP for the 1997-1998 school year. Mrs. Duck, however, denies that this was her handwriting.

In September 1999, when J.S. started the fourth grade at Carrsville Elementary School, there was no IEP in place, and he was not enrolled in any special education classes. In October 1999, Mrs. Duck observed that J.S. was having trouble in school, and she requested a meeting with school officials. On November 12, 1999, the principal, special education coordinator, and several teachers met to discuss J.S.'s performance in school. Mrs. Duck could not attend the meeting, but she sent J.S.'s grandmother to attend in her place. At the meeting, the school representatives indicated that J.S. was doing somewhere between "OK" and "fair" in the regular classroom without special assistance. Accordingly, they decided that J.S. would not be placed in special education classes. Mrs. Duck did not agree with this decision, but the defendants failed to notify Mrs. Duck of her right to an appeal. As a result, Mrs. Duck did not challenge the November decision.

During J.S.'s fifth grade year, Mrs. Duck requested that the school evaluate J.S. to determine whether he could receive special education assistance. Her efforts to have J.S. tested, however, proved unsuccessful. In September 2001, J.S. entered the sixth grade at Windsor Middle School. After his schoolwork continued to suffer, J.S. was evaluated and the school determined that he was learning disabled and therefore eligible to receive special education services. Mrs. Duck and the school thereafter formulated an IEP, and J.S. was placed in special education classes beginning in the summer between sixth and seventh grade.

On January 17, 2003, Mrs. Duck filed a complaint in the United States District Court for the Eastern District of Virginia, asserting claims against the defendants for herself as well as J.S. The Complaint alleged that the defendants denied J.S. a proper education by not providing him with special education services for the three years that he was a student at Carrsville Elementary School — namely from the fourth through the sixth grade. Count I of the Complaint asserted a violation of the IDEA on the grounds that (1) an IEP was allegedly in place with the Franklin City Public Schools when J.S. transferred to Carrsville Elementary School for the fourth grade, and (2) the defendants were therefore obligated to confirm that J.S. was no longer a child with a disability before terminating his special education services.3 Count II alleged that the defendants discriminated against J.S.4 on the basis of his disability in violation of the Rehabilitation Act.5 Finally, Count III asserted a violation of the plaintiffs' civil rights under 42 U.S.C. § 1983.

On the grounds that no record of an active IEP existed when J.S. transferred to Carrsville, the defendants answered and denied that they were obligated to determine his eligibility for educational assistance. Nevertheless, the defendants admitted that they violated the procedural requirements of the IDEA by failing to inform Mrs. Duck of her right to appeal the school's determination that J.S. would not be placed in special education classes.6 The parties subsequently resolved Count I of the Complaint, with the defendants agreeing both to comply with all applicable provisions of the IDEA, and to pay the costs and attorney's fees associated with the plaintiffs' claims under the IDEA.

The defendants moved for summary judgment, however, on Count II of the Complaint. Specifically, the defendants observed that the Rehabilitation Act does not contain a statute of limitations, and that the federal "borrowing" doctrine therefore requires the selection of the most analogous statute of limitations under state law. See Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). The parties agreed that the one-year limitations period provided by the Virginia Rights of Persons with Disabilities Act, Va.Code Ann. § 51.5-46(B) (Michie 2004), was most applicable to federal claims under the Rehabilitation Act. The defendants contended that under the borrowing doctrine, J.S.'s claim under the Rehabilitation Act was subject not only to the one-year limitations period provided by the Virginia statute, but also to the requirement in the statute that plaintiffs provide written notice of a claim to the defendant within 180 days of the alleged discriminatory practice. Id.7 J.S. did not provide the defendants with written notice of his claim under the Rehabilitation Act within 180 days of the determination that he would not receive special education services. Thus, the defendants argued that J.S.'s non-compliance with the notice provision in the Virginia statute required the dismissal of his Rehabilitation Act claim.8 The district court agreed and accordingly granted the defendants' motion for summary judgment on Count II of the Complaint. The district court also granted summary judgment for the defendants on Count III, holding that under our decision in Sellers v. School Board of Manassas, 141 F.3d 524 (4th Cir.1998), the plaintiffs' claims under § 1983 were nothing more than a prohibited attempt to recover money damages for a violation of the IDEA.

J.S., through Mrs. Duck, now appeals the dismissal of his claims under the Rehabilitation Act and § 1983.9


We review de novo the order granting summary judgment on Counts II and III of the Complaint. Coons v. Secretary of the Treasury, 383 F.3d 879, 884 (9th Cir.2004). Viewing the evidence in the light most favorable to J.S., and drawing all reasonable inferences in his favor, we must determine whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of material fact to warrant a trial on the merits. Id. On appeal, J.S. contends that the federal "borrowing" doctrine does not authorize the application of the Virginia timely-notice provision to his federal claim under the Rehabilitation Act. Secondly, J.S. challenges the denial of his claim for monetary damages under § 1983. We address each...

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