United States District Court, M.D. Tennessee, Nashville Division
SOPHIE G., a minor child, by and through her parent and friend, KELLY G., Plaintiffs,
WILSON COUNTY SCHOOLS, Defendant.
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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).
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.
Motion to Dismiss
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.
Standards of Review
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
Cartwright v. Garner, 751 F.3d 752, 759-60 (6th Cir.
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 ...