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F.C. v. Tennessee Department of Education

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

March 6, 2017

F.C., A.C., and S.C., Plaintiffs,
v.
TENNESSEE DEPARTMENT OF EDUCATION and FRANKLIN SPECIAL SCHOOL DISTRICT, Defendants.

          Crenshaw Judge.

          REPORT AND RECOMMENDATION

          JEFFERY S. FRENSLEY United States Magistrate Judge.

         I. Introduction and Background

         This matter is before the Court upon two Motions to Dismiss filed pursuant to Fed.R.Civ.P. 12(b)(6); the first, filed by Defendant Franklin Special School District (“FSSD”) (Docket No. 14), and the second, filed by Defendant Tennessee Department of Education (“TDOE”) (Docket No. 27). Each Motion is accompanied by a supporting Memorandum of Law. Docket No. 15, 28. Plaintiffs' have filed a Response to each Motion (Docket Nos. 24, 30), and Defendants have filed a Reply to each Response (Docket Nos. 31, 41).

         Plaintiffs A.C. and S.C., in their own capacity and as parents of minor F.C., filed this action pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.; Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794; and the Americans with Disabilities Act, 42 U.S.C. § 12132, seeking to appeal an administrative due process Final Order of dismissal issued by Administrative Law Judge (“ALJ”) J. Randall LaFevor on February 17, 2016. See Docket No. 6, First Amended Complaint, and Exhibit A thereto.[1] Plaintiffs filed the due process Complaint against FSSD on November 17, 2015, seeking compensatory educational services for F.C. based on FSSD's failure to provide a free appropriate public education (“FAPE”) to F.C. Id. F.C. was adopted internationally and suffers from Arthrogryposis (“AMC”), a rare joint disorder that severely limits his mobility, range of motion, strength, and dexterity. Id. Plaintiffs contend that, despite being on notice of F.C.'s background and limited exposure to formal education FSSD failed to provide F.C. with an appropriate Individual Education Program (“IEP”) that was based on his unique needs as a foreign adopted child with an orthopedic impairment. Id. Plaintiffs assert that FSSD's failure to provide a FAPE to F.C. was also “the result of a systemic failure by school personnel to understand and follow the IDEA as well as a systemic failure to comply with Title VI of the Civil Rights Act of 1964 as it applies to internationally adopted children.” Id. With regard to the TDOE, Plaintiffs argue that it failed to follow IDEA by: (1) failing to provide a due process procedure which is in compliance with the IDEA; (2) failing to ensure that FSSD complied with Title VI of the Civil Rights Act of 1964 when accommodating internationally adopted students with disabilities who also have limited-English proficiency; (3) failing to establish eligibility criteria for Language Impairment that complies with the IDEA; and (4) failing to ensure that school districts in Tennessee do not use the Response to Intervention (“RTI”) process to delay eligibility. Id.

         A. FSSD's Motion to Dismiss

         FSSD filed its Motion to Dismiss and supporting materials arguing that this action must be dismissed because Plaintiffs have failed to exhaust their administrative remedies under the IDEA prior to filing their Complaint. Docket Nos. 14, 15. Specifically, FSSD contends that “[t]his case involves an improper appeal of the dismissal, without prejudice, of an administrative due process complaint brought pursuant to the [IDEA].” Id. FSSD asserts that:

(1) Plaintiffs filed their original due process complaint with the TDOE on or about November 17, 2015;
(2) on December 7, 2015, the ALJ issued an order declaring Plaintiffs due process complaint defective and ordering Plaintiffs to file an amended due process complaint that would cure its deficiencies by January 7, 2016;
(3) on January 4, 2016, Plaintiffs filed their amended due process complaint, but that complaint did not comply with the mandates of the ALJ's order;
(4) on February 17, 2016, the ALJ issued a Final Order declaring that the amended due process complaint “still fails to comply with ‘all pleading requirements of state and federal law, ' as required by the December 7, 2015 order, and therefore must be [d]ismissed”;
(5) the ALJ's Final Order was a dismissal without prejudice that stated “this dismissal is specifically based on the procedural defects in the Complaint, . . . the merits of the Petitioners' claims have not been addressed. Nothing in this Order shall prevent Petitioners from filing a new Due Process Complaint in the future, provided it complies with the procedural requirements of the IDEA and other relevant law”; and
(6) instead of re-filing an acceptable due process complaint, “Plaintiffs seek to circumvent the administrative procedures required under the IDEA by asking this Court to ‘assume jurisdiction of, ”' and decide, this case. Id. (internal citations omitted). FSSD argues that Plaintiff's claims are subject to exhaustion and there is no valid basis for excusing Plaintiffs' failure to exhaust their administrative remedies, such that this action should be dismissed in its entirety. Id.

         Plaintiffs respond that they have exhausted their administrative remedies and that they have a right to appeal the ALJ's Final Order. Docket No. 24. Plaintiffs respond in the alternative that they do not need to exhaust their administrative remedies because exhaustion would be futile and inadequate. Id., citing Honig v. Doe, 484 U.S. 305, 326-27 (1988); Covington v. Knox County School System, 205 F.3d 912, 917 (6th Cir. 2000). Plaintiffs contend that insufficiency was not the sole reason for the ALJ's dismissal of their due process complaint, instead arguing that the ALJ dismissed their complaint because it included claims outside the two year statute of limitations, because it included non-IDEA claims, and because it did not meet the required pleading standards. Id. Plaintiffs also contend that both their initial and amended due process complaints provided “more than enough information to provide FSSD with notice of the Plaintiffs' claims, ” and they argue that “[a]n ALJ with training and expertise in the provisions and procedures of IDEA would be able to discern that the numerous assertions in the complaint referring to specific procedural violations resulted in a denial of a free appropriate public education.” Id.

         Plaintiffs also respond that “it would be futile for them to continue their Sisyphean efforts to submit a complaint that will be deemed sufficient enough to warrant a hearing as they have already made several good faith efforts to obtain an opportunity to be heard on the merits of their complaint. FSSD and the ALJ have not acted in good faith and have consistently disregarded the due process requirements outlined in 20 U.S.C. 1415.” Id. Specifically, Plaintiff argues:

(1) FSSD never answered either the initial or amended complaint. Instead they chose to count the number of sentences in the complaint's paragraphs and provide constructive criticism of Plaintiffs' counsel's writing style;
(2) the ALJ never ordered FSSD to file an answer to the initial complaint or the amended complaint;
(3) the ALJ did not issue an order setting out the revised due process timeline after the amended due process complaint was filed;
(4) FSSD did not schedule a resolution session after the amended due process complaint was filed; and
(5) the due process timeline provides that the complaint process will be complete within 75 days of the initial due process complaint. The ALJ issued the Final Order dismissing the complaint without a hearing after 92 days had passed. Id. (emphasis original).

         Plaintiffs maintain that a due process hearing is not necessary because educational expertise is not relevant in this case and because the failure of FSSD to properly evaluate and provide services for F.C.'s unique educational needs is already documented in his educational records, in the audio recordings of his IEP meetings, and in email correspondence between FSSD personnel, A.C., and TDOE staff members. Id.

         FSSD, in its Reply, argues that, “Despite their admission that ‘Plaintiffs never received a hearing on the merits of their [due process] complaint, ' Plaintiffs erroneously assert that they have exhausted their administrative remedies and therefore, this action is properly before this court.” Docket No. 31 (internal citations omitted). FSSD maintains that courts have uniformly held that § 1415(i)(2)(A) does not permit an appeal from pre-hearing decisions issued by an ALJ. Id. (citations omitted). FSSD further maintains that the ALJ's labeling of his decision as a “Final Order” does not change the fact that it is not actually a reviewable “Final Order” since he did not render a decision on the merits and the “Final Order” did not include any of the requisite elements. Id. FSSD argues that in order for an order to constitute a “final order” in a special education case, it must include: (1) detailed findings of fact and conclusions of law; (2) a determination by the ALJ in the findings of fact regarding meaningful participation by the parent in the development of the IEP for the student; and (3) a determination of prevailing party status on an issue by issue basis. Id., citing Tenn. Code Ann. § 49-10-606. FSSD notes that the ALJ specifically and explicitly stated that his dismissal was based on the “procedural defects in the Complaint, ” adding that “the merits of the Petitioners' claims have not been addressed.” Id., citing ALJ's Final Order, Docket No. 1-1.

         FSSD also replies that Plaintiffs' have not established that they fall into the “futility exception” to the IDEA's exhaustion requirement. Id. Specifically, FSSD argues that Plaintiffs' failure to amend their due process complaint to comply with the clear directives in the ALJ's order does not evidence good faith and does not excuse their statutory obligation to exhaust their administrative remedies. Id. FSSD asserts that Plaintiffs' claims revolve around their alleged deprivation of appropriate educational services to F.C., their “gross mismanagement of F.C.'s educational program, ” and their alleged denial of F.C.'s access to and participation in equal services, programs, and activities, such that they are “precisely the types of fact-intensive inquiries that the administrative process was designed to address.” Id., citing Docket No. 6, Amended Complaint. FSSD maintains, therefore, that exhaustion is not futile, but rather, is mandatory. Id.

         For the reasons discussed below, the undersigned finds that Plaintiffs have failed to exhaust their administrative remedies as required; the undersigned therefore recommends that FSSD's Motion to Dismiss (Docket No. 14) be GRANTED.

         B. TDOE's Motion to Dismiss

         TDOE filed its Motion to Dismiss and supporting materials arguing that this action must be dismissed because Plaintiffs have failed to exhaust their administrative remedies under the IDEA prior to filing their Complaint. Docket Nos. 27, 28. TDOE argues that the ALJ properly dismissed Plaintiffs' amended due process complaint because it failed to comply with his order, it contained factual allegations that allegedly occurred beyond the two-year statute of limitations period, and it contained claims arising under legal theories besides the IDEA that were outside the ALJ's subject matter jurisdiction. Id.

         TDOE further argues that the ALJ properly dismissed Plaintiffs' amended due process complaint because it did not sufficiently describe the nature of the problem as mandated by the IDEA. Id. Specifically, TDOE argues that Plaintiffs' amended due process complaint did not discuss how the alleged substantive and procedural violations of the IDEA interfered with, or harmed, F.C.'s education, and also failed to relate the alleged facts and procedural violations in paragraphs 6-60 to the broad assertions of the failures of the school system and/or personnel in paragraphs 61-79. Id. TDOE contends that 20 U.S.C. § 1415(b)(7)(A)(ii)(III) provides that, for each matter raised, the complaint must include “a description of the problem of the child relating to such proposed initiation or change, including facts relating to such problem.” Id. TDOE argues that an adequate description of the problem serves to put the other party on notice and create a factual basis for the dispute before the initiation of adversarial proceedings. Id., citing Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 55 (2006). TDOE maintains that Plaintiffs' amended due process complaint essentially contains a 15 page narrative of F.C.'s educational history followed by assertions of improper conduct but lacks the requisite causal connection, and therefore that it was proper for the ALJ to dismiss it. Id.

         TDOE additionally argues that because Plaintiffs elected not to re-file their due process complaint and an ALJ has not conducted a hearing and issued a decision on the merits of their claims, Plaintiffs have failed to exhaust their administrative remedies, as required under the IDEA. Id. TDOE argues that exhaustion is required when a plaintiff alleges injuries that could be redressed to any degree by the IDEA's procedures and remedies, and it maintains that exhaustion is required for any claim that directly relates to a student's access to a FAPE, regardless of the statute invoked. Id., citing S.E. v. Grant Cnty. Bd. Of Ed., 544 F.3d 633, 642 (6th Cir. 2008); Long v. Dawson Springs Indep. Sch. Dist., 197 F.App'x 427, 434 (6th Cir. 2006). TDOE contends that Count I of Plaintiffs' Amended Complaint alleges that Defendants required Plaintiffs to meet a heightened pleading standard inconsistent with the IDEA and thus denied Plaintiffs a due process hearing under 20 U.S.C. § 1415(f), while Count III of Plaintiffs' Amended Complaint alleges that TDOE denied F.C. a FAPE by using eligibility criteria that conflicted with the IDEA and by failing to prevent delays to eligibility. Id., citing Docket No. 6, ¶¶ 6, 95, 96, 101, 103. TDOE maintains that it is undisputed that Plaintiffs have not completed the IDEA's administrative process because their amended due process complaint was dismissed without a hearing. Id. TDOE further maintains that the IDEA's administrative remedies are not foreclosed to Plaintiffs, since the ALJ, in his Final Order, explicitly stated, “Nothing in this Order shall prevent Petitioners from filing a new Due Process Complaint in the future, provided it complies with the procedural requirements of the IDEA and other relevant law.” Id., quoting Docket No. 22, Feb. 17 Order, p. 3.

         TDOE argues that because no due process hearing has occurred, Counts I and III - the counts alleging TDOE violations of the IDEA - should be dismissed for failure to exhaust administrative remedies. Id. TDOE further argues that “Count V is likewise subject to dismissal for failure to exhaust because the alleged violations of the ADA and Rehab Act flow from a purported violation of § 1415 of the IDEA, ” and because the alleged injuries - denial of due process under the IDEA and denial of “substantive educational relief” - are the sort of “injuries that ...


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