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Sophie G. v. Wilson County Schools

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

September 19, 2017

SOPHIE G., a minor child, by and through her parent and friend, KELLY G., Plaintiffs,
v.
WILSON COUNTY SCHOOLS, Defendant.

          MEMORANDUM

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.

         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 ...


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