Loper v. Howard Cnty. Pub. Sch. Sys.
| Decision Date | 27 August 2021 |
| Docket Number | Civil Action ELH-20-3789 |
| Parties | LATASHA LOPER, Plaintiff, v. HOWARD COUNTY PUBLIC SCHOOL SYSTEM, et. al., Defendants. |
| Court | U.S. District Court — District of Maryland |
The self-represented plaintiff, Latasha Loper, is the parent of a Howard County public school student, C.D.[1] She filed suit against the Howard County Public School System (“HCPSS”)[2]and Kathy Stump, a “Special Education Compliance Official” with HCPSS, containing a broad array of claims. ECF 3 (the “Complaint”). The Complaint is supported by several exhibits.
Ms Loper alleges numerous violations of law, including discrimination, in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; violation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. (“Rehabilitation Act”); conspiracy, in violation of 18 U.S.C. § 241; “corrupt activity, ” in violation of 18 U.S.C. § 249; violation of her Parent Participation Rights under 34 C.F.R. 300.328; violation of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq.; violation of the Americans with Disabilities Act as amended, 42 U.S.C. §§ 12101 et seq. (“ADA”); violation of the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C §1232g; violation of 20 U.S.C. § 7111; violation of 20 U.S.C. § 1228c; violation of 42 U.S.C. § 1981; and violation of an unspecified provision of Title 18 of the United States Code that criminalizes “[t]ampering with [r]ecords.” ECF 3 at 2-4. In addition, plaintiff alleges various claims under state law. Id. at 3.
Although plaintiff alleges various claims under federal and state law she does not identify discrete claims or counts in the Complaint. See Id. But, she seeks damages, “Compensatory Education” for C.D., and the revocation of Ms. Stump's “license.” Id. at 5.
Suit was filed in the Circuit Court for Howard County. Thereafter, defendants removed the case to this Court (ECF 1), asserting jurisdiction under 28 U.S.C. § 1331. Id. They then moved to dismiss the Complaint, pursuant to Fed.R.Civ.P. 12(b)(1)[3] and Fed.R.Civ.P. 12(b)(6) (ECF 8), supported by a memorandum of law. ECF 8-1 (). Plaintiff opposes the Motion to Dismiss. ECF 12. Defendants replied. ECF 15. Both the Motion to Dismiss and plaintiff's opposition are supported by exhibits.
In addition, plaintiff has filed a “Motion of Opposition to Defendants['] Notice of Filing Notice of Removal”, which I shall construe as a motion to remand. ECF 13 (the “Remand Motion”). Defendants oppose the Remand Motion. ECF 16. Plaintiff replied. ECF 19. Both the Remand Motion and defendants' opposition are supported by exhibits.
No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I shall deny the Remand Motion and grant the Motion to Dismiss, without prejudice.
Plaintiff alleges that in October 2019, the “Department of Social Services received [a] Court order for [her] son [C.D.] . . . .”[5] ECF 3 at 2. Defendants have submitted the “Shelter Care Findings And Order” issued by the Circuit Court for Howard County on October 8, 2019, which appears to be the order referenced in the Complaint. ECF 8-2 (the “October 2019 Order” or “Order”). The Order indicates that C.D. was “removed from the physical care and custody of Latasha Loper and placed in shelter care on October 8, 2019.” Id. at 2. And, the Circuit Court found that returning C.D. to Ms. Loper's care at that time would be “contrary to the child's welfare . . . .” Id. at 2. Accordingly, the Circuit Court granted temporary custody of C.D. to the Howard County Department of Social Services (“DSS”). Id.
According to the Complaint, the October 2019 Order “did not take away [plaintiff's] [e]ducational decision making rights as a parent of [C.D.].” ECF 3 at 2. However, plaintiff submitted as an exhibit with the Complaint a letter to plaintiff from Anne Roy, of the HCPSS Office of Equity Assurance, dated November 13, 2020 (ECF 3-1, the “November 2020 Letter”). It reflects that after HCPSS learned of the October 2019 Order, it appointed “an educational surrogate” for C.D. ECF 3-1 at 1. As addressed, infra, it seems that HCPSS subsequently rescinded the appointment of the educational surrogate, although the date of the rescission is not clear.
In addition, plaintiff alleges that Ms. Stump “deliberately misconstrued the Court Order.” ECF 3 at 2. But, it is not clear what role, if any, Ms. Stump played in the decision of HCPSS to appoint an educational surrogate for C.D.
Moreover, plaintiff seems to allege that Ms. Stump “used” the October 2019 Order to prevent plaintiff from seeking relief from HCPSS for prior alleged misconduct as to C.D. Id.; see Id. at 3. In particular, plaintiff has attached correspondence from a legal services attorney to the HCPSS Superintendent, dated December 5, 2019 (ECF 3-5), in which the attorney asserted that earlier in 2019, C.D. was wrongfully disciplined and removed from school following a “‘physical attack'” on another student. Id. at 1. Plaintiff alleges that Ms. Stump prevented the attorney's letter “from reaching” the HCPSS Superintendent (ECF 3 at 2-3) and claims that Ms. Stump “refused to correct the matter until June 2020 . . . .” Id. at 3.
In addition, Ms. Loper alleges that she sought a “Due Process” hearing during the 2018-2019 school year for violations of IDEA, and claims denial of a Free Appropriate Public Education (”F.A.P.E.”). ECF 3 at 4. C.D. was due to receive an independent educational evaluation (“IEE”) in August 2020, to be conducted by an independent third party. Id. Ms. Stump transmitted C.D.'s educational records to the third party without Ms. Loper's consent. Id. According to plaintiff, that disclosure violated several federal and state laws, including FERPA.
On September 19, 2020, plaintiff filed a “‘Discrimination Complaint'” with the HCPSS Office of Equity Assurance. ECF 3-1 at 1. According to Ms. Roy's November 2020 Letter, plaintiff's Discrimination Complaint concerned two instances of alleged misconduct: (1) the release of C.D.'s school records to the “independent evaluator for conducting educational assessments, ” and (2) the “misinterpretation” of the October 2019 Order, which “result[ed] in the appointment of an educational surrogate and potentially den[ied] [plaintiff] educational rights.” Id. The Discrimination Complaint alleged discrimination on the basis of race and disability. Id.
HCPSS investigated plaintiff's allegations. See Id. As to the claim regarding the disclosure of C.D.'s school records, Ms. Roy explained, id. at 1-2: Id.
With respect to the appointment of an educational surrogate for C.D., Ms. Roy stated that the “HCPSS general counsel” rendered the decision based on its review and interpretation of a “document” received from DSS, which presumably pertained to the 2019 Court Order granting DSS temporary custody of C.D. Id. at 2. Further, Ms. Roy explained that HCPSS subsequently reversed course and “removed the educational surrogate . . . .” Id.
Ms. Roy's November 2020 Letter also summarized the investigation's findings with respect to alleged discrimination. It stated: “While these incidents were understandably upsetting, the evidence did not support that they occurred on the basis of race and/or disability status . . . .” Id.
Defendants have submitted an exhibit that shows that on October 15, 2020, plaintiff filed a “Due Process Complaint” with the Maryland Department of Education regarding HCPSS's treatment of C.D. ECF 8-5. According to defendants, plaintiff withdrew the Due Process Complaint two weeks later. ECF 8-1 at 3 n.4. Defendants cite a handwritten letter dated November 1, 2020, apparently written by Ms. Loper, to support defendants' assertion. ECF 8-6.
In addition, defendants have submitted an order of the Circuit Court for Howard County, dated October 28, 2020 (ECF 8-3), in which the court identified “concerns about Ms. Loper's mental health and her ability to properly care for C.D.” Id. at 2. Among other things, the court ordered that DSS maintain temporary custody of C.D. and that an educational surrogate be appointed for C.D. Id. at 3. Neither side has provided the Court with information regarding subsequent proceedings in State court involving C.D.
In her Remand Motion, plaintiff argues that removal of the suit to this Court was improper because she did not “receive written [n]otice from defendants in accordance with 28 U.S.C § 1446(d).” ECF 13 at 3. That provision states: “Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.” 28 U.S.C. § 1446(d).
Defendants filed their notice of removal on December 31, 2020. ECF 1. In the certificate of service appended to the notice of removal, defense counsel averred that a copy of the notice was sent to plaintiff the same day, via first class mail. Id. at 3. Plaintiff filed her opposition to the Motion to Dismiss and her Remand Motion on January 25, 2021. ECF 12; ECF 13.
Section § 1447(c) of 28 U.S.C. is pertinent. It provides, in relevant part: “A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the...
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