Sophie G. v. Wilson Cnty. Sch.

• Decision Date: 19 September 2017
• Docket Number: No. 3:17–cv–00757,3:17–cv–00757
• Citation: 265 F.Supp.3d 765
• Parties: SOPHIE G., a minor child, by and through her parent and friend, Kelly G., Plaintiffs, v. WILSON COUNTY SCHOOLS, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

265 F.Supp.3d 765

SOPHIE G., a minor child, by and through her parent and friend, Kelly G., Plaintiffs,

v.WILSON COUNTY SCHOOLS, Defendant.

No. 3:17–cv–00757

United States District Court, M.D. Tennessee, Nashville Division.

September 19, 2017

Michael F. Braun, The ADA Group LLC, Brentwood, TN, for Plaintiffs.

Kenneth S. Williams, Madewell, Jared, Halfacre, Williams & Wilson, Cookeville, TN, Michael Ray Jennings, Lebanon, TN, for Defendant.

Chief Judge, Crenshaw

MEMORANDUM

Pending before the Court in this case brought under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, and Title II of the Americans With Disabilities Act, 42 U.S.C. § 12131 et seq. , is Kelly G.'s and Sophie G.'s Motion for Preliminary Injunction. (Doc. No. 8). Also pending is Wilson County Schools' Motion to Dismiss (Doc. No. 22). The Court held a hearing on both Motions on September 7, 2017. For the reasons that follow, the Motion to Dismiss will be granted and the Motion for Preliminary Injunction will be denied.

I. Factual Allegations

Sophie G. is a seven-year-old girl with autism who attends Tuckers Crossroad Elementary School in Wilson County. Her mother, Kelly G., is employed full time and needs day care for Sophie G., both during the school year and on school breaks.

Wilson County Public School operates an after-school program known as "Kids Club" at a dozen elementary schools, including Tuckers Crossroad. Kelly G. repeatedly sought to enroll her daughter into the program, but her requests were denied because Sophie G. is not fully toilet trained.

The refusal to admit Sophie G. into the Kid's Club program was also the subject of a November 3, 2016 Due Process Complaint against Wilson County Public Schools before the Tennessee State Department of Education, Special Education Division. More specifically, the Complaint alleged:

In the IEP [Individualized Education Program], Wilson County determined that "Sophie will have every opportunity to participate in extracurricular and nonacademic activities that she qualifies for." Despite saying so, Sophie is denied access to Tucker Crossroad Elementary School after school program because of her disability.

(Doc. No. 21–2, Due Process Complaint ¶ 23). The Due Process Complaint also alleged that Wilson County did not provide Sophie G. with a free and appropriate education ["FAPE"] because it failed to design and implement an appropriate IEP. (Id. ¶ 29).

On April 12, 2017, the parties entered into a Consent Order that settled the Due Process Complaint. However, no agreement was reached about after-school care, and that issue was voluntarily dismissed by Plaintiffs. Less than two weeks later, the two-count Complaint was filed in this Court.

II. Motion to Dismiss

Wilson County moves to dismiss the Complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and for lack of subject matter jurisdiction under Rule 12(b)(1). Its argument under both rules is the same–Plaintiff have not exhausted their administrative remedies under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.

A. Standards of Review

The Sixth Circuit has summarized the applicable standard of review for a Rule 12(b)(6) motion:

To survive a Rule 12(b)(6) motion, " ‘a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ). "If the plaintiffs do not nudge their claims across the line from conceivable to plausible, their complaint must be dismissed." Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013) (citation and brackets omitted). Dismissal is likewise appropriate where the complaint, however factually detailed, fails to state a claim as a matter of law. Mitchell v. McNeil, 487 F.3d 374, 379 (6th Cir. 2007).

In re City of Detroit, Mich., 841 F.3d 684, 699 (6th Cir. 2016). It has also summarized the standard of review for Rule 12(b)(1) motions:

A Rule 12(b)(1) motion for lack of subject matter jurisdiction can challenge the sufficiency of the pleading itself (facial attack) or the factual existence of subject matter jurisdiction (factual attack). United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). A facial attack goes to the question of whether the plaintiff has alleged a basis for subject matter jurisdiction, and the court takes the allegations of the complaint as true for purposes of Rule 12(b)(1) analysis. Id. A factual attack challenges the factual existence of subject matter jurisdiction. In the case of a factual attack, a court has broad discretion with respect to what evidence to consider in deciding whether subject matter jurisdiction exists, including evidence outside of the pleadings, and has the power to weigh the evidence and determine the effect of that evidence on the court's authority to hear the case. Id. Plaintiff bears the burden of establishing that subject matter jurisdiction exists. DLX, Inc. v. Commonwealth of Kentucky, 381 F.3d 511, 516 (6th Cir.2004).

Cartwright v. Garner, 751 F.3d 752, 759–60 (6th Cir. 2014).

While the Court agrees that dismissal is warranted because Plaintiffs did not exhaust their administrative remedies, it finds the proper vehicle for dismissal to be Rule 12(b)(6), not Rule 12(b)(1). This is because, even though "the distinction makes no difference ... where the parties do not dispute the district court's exhaustion-related factual findings," many courts have found (as discussed below) that " Rule 12(b)(1) is not an appropriate avenue for dismissing an IDEA complaint for failure to exhaust," Gibson v. Forest Hills Local Sch. Dist. Bd. of Educ., 655 Fed.Appx. 423, 430 (6th Cir. 2016) (collecting cases), because the exhaustion requirement is waiveable.

B. Application of Law

The IDEA ensures that children with disabilities receive necessary special education services and provides administrative remedies to achieve that goal. Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 245, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009) ; Covington v. Knox Cty. Sch. Sys., 205 F.3d 912, 915 (6th Cir. 2000). Section 1415(l) of the IDEA addresses that Act's relationship with other statutory remedies and contains an exhaustion requirement:

Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, Title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

29 U.S.C. § 1415(l) (emphasis added).

As this Court pointed out in its Order (Doc. No. 32) requesting supplemental briefs, the Supreme Court in Fry v. Napoleon Community Schools, –––U.S. ––––, 137 S.Ct. 743, 752, 197 L.Ed.2d 46 (2017) (citation omitted) addressed "the confusion in the courts of appeals as to the scope of § 1415(l)'s exhaustion requirement," and held that " 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." 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,’ " or FAPE. Id. at 748.

The Supreme Court went on to explain that "in determining whether a suit indeed seeks relief for such a denial, a court should look to the substance, or gravamen, of the plaintiff's complaint," and offered the following guidance:

One clue to whether the gravamen of a complaint against a school concerns the denial of a FAPE, or instead addresses disability-based discrimination, can come from asking a pair of hypothetical questions. First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? And second, could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance?

Id. at 757. The Court also observed:

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—thus starting to exhaust the Act's remedies before switching midstream.... A plaintiff's initial choice to pursue that process may suggest that she is indeed seeking relief for the denial of a FAPE—with the shift to judicial proceedings prior to full exhaustion reflecting only strategic calculations about how to maximize the prospects of such a remedy.

Id.

Applying the Fry inquiries to the facts of this case, the complaint is subject to IDEA's exhaustion requirement. Not only does it appear that Fry's hypotheticals must be answered in the negative, the history of the case suggests that Plaintiffs' claims present an IDEA/FAPE question best suited to a hearing officer familiar with a school setting.

"Congress enacted the ADA ‘with the noble purpose of providing a clear and comprehensive mandate for the elimination of discrimination against individuals with disabilities," Melange v. City of Ctr. Line, 482 Fed.Appx. 81, 84 (6th Cir. 2012) (citation omitted), by...