Full opinion text
MEMORANDUM DECISION AND ORDER .GRANTING IN PART WITH LEAVE TO AMEND, GRANTING PART WITHOUT LEAVE TO AMEND, AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS (Docs. 8 & 15) AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO STRIKE (Doc. 12) OLIVER W. WANGER, District Judge. Plaintiff C.B., a minor, has filed a Complaint against Defendants Sonora School District; Karen Sinclair; City of Sonora; Chief of Police Mace McIntosh; Officer Hal Prock; and Does 1-10. As facts common to all causes of action, the Complaint alleges: 9) In the 2007-2008 school year, minor C.B. was enrolled as a 6th grade student at Sonora Elementary School in the Sonora School District. 10) C.B. suffers from disabilities, namely a mood disorder and attention deficit hyperactivity disorder, which qualify him for the protections of Title VI of the Civil Rights Act, the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and California’s Unruh Civil Rights Act. At all times relevant to the Complaint, Sonora School District knew of C.B.’s disabilities and had in fact placed C.B. on an individualized Education Plan and section 504 plan. 11) C.B.’s IEP and section 504 plans at Sonora Elementary School included specific behavioral interventions to be followed in the event C.B. ‘shut down’ or became unresponsive to school staff due to his mood disorder. Interventions included allowing C.B. to go to designated ‘safe zones,’ redirecting C.B. to a leadership or other task, and, if all else failed, contacting C.B.’s parents or other relatives or friends designated by C.B.’s parents. Sonora School District and Sinclair knew at all times relevant to the complaint that C.B.’s behavior of ‘shutting down’ was and is a symptom of his disabilities. 12) On or about September 29, 2008, C.B. allegedly experienced episodes in which he ‘shut down’ and became unresponsive to school staff. The staff at Sonora Elementary School failed to follow C.B.’s IEP and section 504 plan for behavioral intervention and failed to contact C.B.’s parents or designated relatives or friends to assist C.B. 13) Due to C.B.’s disabilities and despite the plans put in place to accommodate those disabilities, Karen Sinclair, a specialist employed by Sonora Elementary School, threatened C.B. that if he did not do as she instructed, she would call the police. Sinclair did in fact instruct a school receptionist to call the City of Sonora Police Department for intervention with an out of control juvenile. 14) On or about September 29, 2008, Chief of Police Mace McIntosh, Officer Hall Prock, and Officer Bowly responded to Sonora Elementary School to respond to the report of the ‘out of control’ juvenile who was allegedly causing a disturbance at the school. 15) Upon locating C.B. on the school grounds, the police encountered C.B., an eleven year old student, who was not acting in any disruptive or disruly manner but rather sitting quietly on a bench with his head down. 16) Despite the fact that C.B. posed no threat to anyone and despite the fact there was no probable cause to take C.B. into custody, Chief of Police Mace McIntosh directed Officer Hal Prock to handcuff C.B. The police took C.B. into custody, placing him handcuffed in a police car, and drove C.B. to Jamestown, California, leaving C.B. in the custody of his uncle Mark Banks. 17) Sinclair and the Sonora Elementary School staff at all times had Mark Banks’ contact information as well as the contact information of C.B. and other friends and relatives of C.B., yet at no time did Sinclair or any staff at Sonora Elementary School contact these individuals to assist with C.B. as dictated by common sense as well as C.B.’s IEP and section 504 plans. Instead, Sinclair and Sonora School District treated C.B. harshly and disproportionately, like a criminal, despite the fact he had done nothing wrong and had simply displayed symptoms of a disability which was known to Defendants. 18) At no time did the referenced City of Sonora employees have the permission of C.B. nor his parents to transport C.B. or to cause C.B. to be transported by anyone other than C.B.’s parents and emergency contacts. 19) Sonora School District and the City of Sonora Police Department, in committing the above acts, caused extreme emotional distress to Plaintiff including a regression in progress previously made in treating Plaintiffs mood disorder and ADHD. Plaintiff was forced to dis-enroll from Sonora Elementary School due to the trauma caused by Defendants’ excessive and harsh treatment. Defendants’ actions violated Plaintiffs civil rights. The Complaint alleges that Plaintiff filed California Tort Claims with the Sonora School District and the City of Sonora and that both claims were rejected. The Complaint alleges the following causes of action: 1. First Cause of Action against Sonora School District for violation of Section 51(b), 51.5(a), and 54 of the Unruh Civil Rights Act “by discriminating against Plaintiff on account of his disability and by causing Plaintiff to be forcibly removed from Sonora Elementary School on account of his disability; 2. Second Cause of Action for false imprisonment against Defendants McIntosh, Prock, and City of Sonora; 3. Third Cause of Action for battery against Defendants McIntosh, Prock, and City of Sonora; 4. Fourth Cause of Action for intentional infliction of emotional distress against all Defendants; 5. Fifth Cause of Action for violation of Section 504 of the Rehabilitation Act against Defendant Sonora School District by discriminating against C.B. “on the basis of his disability ... by threatening C.B. with police involvement and by in fact causing such police intervention solely due to C.B.’s disabilities; 6. Sixth Cause of Action for violation of Title II of the Americans with Disabilities Act against Defendant Sonora School District by discriminating against C.B. “on the basis of his disability ... by threatening C.B. with police involvement and by in fact causing such police intervention solely due to C.B.’s disabilities; 7. Seventh Cause of Action against Defendant Sinclair in her individual capacity for violation of 42 U.S.C. § 1983; 8. Eighth Cause of Action for excessive force in violation of Section 1983 against Defendants McIntosh and Prock in their individual capacities; 9. Ninth Cause of Action for Monell liability against Defendant City of Sonora. The Complaint prays for compensatory, incidental, general and special, and punitive damages, for civil penalties, and attorneys’ fees. Defendants Sonora School District and Karen Sinclair (collectively District Defendants) move to dismiss the Complaint pursuant to Rules 12(b)(1) and 12(b)(6) on the grounds that (1) the Court lacks subject matter jurisdiction over Plaintiffs federal claims because Plaintiff has failed to exhaust administrative remedies; (2) Plaintiffs state law claims are barred by Plaintiffs failure to exhaust administrative remedies pursuant to the California Code of Regulations; (3) federal law precludes Plaintiffs tort claim against the District Defendants; (4) Plaintiffs tort claim is barred by California Government Code § 820.2; (5) the Complaint fails to plead facts stating any claim for relief; (6) the Complaint fails to plead facts establishing a prima facie case under the Unruh Civil Rights Act; (7) Plaintiff must elect one remedy under either California Civil Code §§ 52 or 54.3; (8) the Complaint fails to plead facts establishing intentional discrimination; (9) the Complaint fails to plead facts establishing a prima facie claim of intentional infliction of emotional distress; (10) the Complaint fails to plead facts establishing prima facie claims of violation of § 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act, or 42 U.S.C. § 1983; and (11) Defendant Sinclair is entitled to qualified immunity from liability. Alternatively, the District Defendants move for a more definite statement. The District Defendants also move pursuant to Rule 12(f) to strike the punitive damages allegations and prayer for punitive damages. Defendants City of Sonora, Chief of Police Mace McIntosh, and Officer Hal Prock (collectively the City Defendants) move to dismiss the Complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted and on the ground of qualified immunity from liability. Alternatively, the City Defendants move for a more definite statement. A. GOVERNING STANDARDS. 1. Motion to Dismiss for Lack of Subject Matter Jurisdiction. In the context of IDEA cases, the Ninth Circuit recognizes the requirement of exhaustion of administrative remedies as jurisdictional in nature. See Robb v. Bethel Sch. Dist. # 403, 308 F.3d 1047 (9th Cir.2002), Dreher v. Amphitheater Unif. Sch. Dist., 22 F.3d 228, 231 (9th Cir.1994). Federal subject matter jurisdiction must exist at the time an action is commenced. See Morongo Band of Mission Indians v. California State Board of Equalization, 858 F.2d 1376, 1380 (9th Cir.1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 787, 102 L.Ed.2d 779 (1989). Dismissal is appropriate when the district court lacks subject matter jurisdiction over a claim. Rule 12(b)(1), Federal Rules of Civil Procedure. Since subject matter jurisdiction is a threshold issue which goes to the power of the court to hear a case, a Rule 12(b)(1) challenge should be decided before other grounds for dismissal, because they will become moot if dismissal for lack of jurisdiction is granted. See Alvares v. Erickson, 514 F.2d 156, 160 (9th Cir.1975), cert. denied, 423 U.S. 874, 96 S.Ct. 143, 46 L.Ed.2d 106 (1975). A federal court is presumed to lack subject matter jurisdiction until the contrary affirmatively appears. Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir.1989). Although the defendant is the moving party on a motion to dismiss, the plaintiff has the burden of establishing subject matter jurisdiction because plaintiff is the party invoking the court’s jurisdiction. Id. Under a Rule 12(b)(1) motion attacking a complaint on its face, the court must consider the allegations of the complaint as true. Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3rd Cir.1977). An action should not be dismissed for lack of subject matter jurisdiction without giving the plaintiff an opportunity to amend unless it is clear that the jurisdictional deficiency cannot be cured by amendment. May Dept. Store v. Graphic Process Co., 637 F.2d 1211, 1216 (9th Cir.1980). 2. Motion to Dismiss for Failure to State a Claim. A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory or where the complaint presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir.1984). In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.2002). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir.2003). “A district court should grant a motion to dismiss if plaintiffs have not pled ‘enough facts to state a claim to relief that is plausible on its face.’ ” Williams v. Gerber Products Co., 523 F.3d 934, 938 (9th Cir.2008), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “ ‘Factual allegations must be enough to raise a right to relief above the speculative level.’ ” Id. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic, id. at 555, 127 S.Ct. 1955. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556, 127 S.Ct. 1955. 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. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id. at 557, 127 S.Ct. 1955. In Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court explained: Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitations of the elements of a cause of action, supported by mere conclusory statements, do not suffice ... Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss ... Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense ... But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’ .... In keeping with these principles, a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Immunities and other affirmative defenses may be upheld on a motion to dismiss only when they are established on the face of the complaint. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir.1999); Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.1980) When ruling on a motion to dismiss, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court takes judicial notice. Parrino v. FHP, Inc., 146 F.3d 699, 705-706 (9th Cir.1998). 3. Motion for More Definite Statement. “Under the liberal pleading standards, ‘pleadings in federal courts are only required to fairly notify the opposing party of the nature of the claim.’ ” City of South Pasadena v. Slater, 56 F.Supp.2d 1095, 1105 (C.D.Cal.1999). Federal Rule of Civil Procedure 12(e) provides: If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just. A Rule 12(e) motion for a more definite statement must be considered in light of Rule 8’s liberal pleading standards in federal court. See, e.g., Bureerong v. Uvawas, 922 F.Supp. 1450, 1461 (C.D.Cal.1996). A Rule 12(e) motion is proper only if the complaint is so indefinite that the defendant cannot ascertain the nature of the claim being asserted, i.e., so vague that the defendant cannot begin to frame a response. See Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F.Supp. 940, 949 (E.D.Cal.1981). The Court must deny the motion if the complaint is specific enough to notify defendant of the substance of the claim being asserted. See Bureerong, 922 F.Supp. at 1461; see also San Bernardino Pub. Employees Ass’n v. Stout, 946 F.Supp. 790, 804 (C.D.Cal.1996) (“A motion for a more definite statement is used to attack unintelligibility, not mere lack of detail, and a complaint is sufficient if it is specific enough to apprise the defendant of the substance of the claim asserted against him or her.”). The Court may also deny the motion if the detail sought by a motion for more definite statement is obtainable through discovery. See Davison v. Santa Barbara High Sch. Dist., 48 F.Supp.2d 1225, 1227 (C.D.Cal.1998). “Thus, the class of pleadings that are appropriate subjects for a motion under Rule 12(e) is quite small-the pleading must be sufficiently intelligible for the court to be able to make out one or more potentially viable legal theories on which the claimant might proceed, but it must not be so vague or ambiguous that the opposing party cannot respond, even with a simple denial, in good faith or without prejudice to himself.” 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure (2d ed.) § 1376. Whether to grant a Rule 12(e) motion for a more definite statement lies within the wide discretion of the district court. See id. § 1377. However, “[mjotions for more definite statement are viewed with disfavor, and are rarely granted.” William W. Schwarzer, A. Wallace Tashima, and James M. Wagstaffe, Federal Civil Procedure Before Trial § 9:351 (2000). 4. Motion to Strike. Rule 12(f) provides in pertinent part that the Court “may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Motions to strike are disfavored and infrequently granted. Neveu v. City of Fresno, 392 F.Supp.2d 1159, 1170 (E.D.Cal.2005). A motion to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation. Id. The function of a Rule 12(f) motion to strike is to avoid the expenditure of time and money that might arise from litigating spurious issues by dispensing with those issues prior to trial. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993), rev’d on other grounds, 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). B. District Defendants’ Motion to Dismiss. 1. Lack of Subject Matter Jurisdiction. The District Defendants move to dismiss the Fifth Claim for violation of § 504 of the Rehabilitation Act of 1973, the Sixth Claim for violation of Title II of the Americans with Disabilities Act, and the Seventh Claim for violation of Section 1983 for lack of subject matter jurisdiction. The District Defendants argue that the Complaint alleges that they failed to properly implement Plaintiffs IEP when they contacted the police, regardless of the labels Plaintiff attaches to his claims. The District Defendants contend that Plaintiff cannot sue under any federal law until he completely exhausts administrative remedies under the Individuals with Disabilities Education Act (“IDEA”). District Defendants argue that the Complaint demonstrates on its face that this lawsuit is premised on the claim that the District was not justified in its decision to implement the emergency intervention of contacting the police instead of following the procedures outlined in Plaintiffs IEP. The IDEA is a comprehensive educational scheme that confers on students with disabilities a substantive right to public education. See Van Duyn v. Baker Sch. Dist. 5J, 481 F.3d 770, 776 (9th Cir.2007); Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1300 (9th Cir.1992). The IDEA provides financial assistance to enable states to meet their educational needs, but conditions funding on the effectuation of a policy that assures all children with disabilities the right to a free appropriate public education (“FAPE”). 20 U.S.C. § 1412(a)(1). To that end, the IDEA requires that school districts develop an IEP for each child with a disability. See Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007). When a party is dissatisfied with “the adequacy of the education provided, the construction of the IEP, or some related matter,” Winkelman, id. at 525, 127 S.Ct. 1994, the IDEA provides a procedural recourse. Participating states are required to establish procedures giving an opportunity for any party to present a complaint concerning an IEP. 20 U.S.C. § 1415(b)(6)(A). California has adopted legislation to comply with these procedures. See California Education Code § 56500-56507; 5 California Code of Regulations §§ 3040-3054. 20 U.S.C. § 1415(i) provides: 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) of this section shall be exhausted to the same extent was would be required had the action been brought under this subchapter. The District Defendants argue that a lawsuit alleging discrimination is precluded where administrative remedies have not been exhausted under the IDEA, citing Kutasi v. Las Virgenes Unified Sch. Dist., 494 F.3d 1162 (9th Cir.2007) and Robb v. Bethel Sch. Dist. # 403, 308 F.3d 1047 (9th Cir.2002). In Kutasi Shane, an autistic child, attended Round Meadow Elementary School in California, from 1999 until he graduated in 2004. In 1999, Shane’s parents and the School District agreed to an IEP. In accordance with the 1999 IEP, Shane attended a general education first-grade class with an aide for most of the morning and received home schooling in the afternoon. The Kutasis and the School District, however, were unable to reach agreement on a modified IEP for Shane for the succeeding school years. As a result of a “stay put” order issued by the California Special Education Hearing Officer that extended the terms of the 1999 IEP, Shane continued to receive full inclusion in a classroom with a modified curriculum, as well as speech and occupational therapy services. According to the Complaint, a long history of bitter disagreement between the Kutasis and the School District came to a head in the fall of 2004 after Shane graduated from Round Meadow Elementary School. Shane was scheduled to attend A.E. Wright Middle School. But on August 27, 2004, three days before the 2004-2005 school term began, the School District proposed an IEP that required Shane to be placed in a “Special Day Class,” created for students with disabilities regardless of their age, grade or specific disability. The Kutasis rejected the School District’s proposal, and the parties continued to differ over the kind of educational and related services to be provided Shane. Shane briefly attended general education classes at Wright, but was denied access to the school after three days by Principal Rosenweig, who claimed that Shane was not properly enrolled. Since September 2004, Shane was schooled at home by a team of behavioral therapists pursuant to the stay put order. The Kutasis, on their own behalf as well as Shane’s, filed a complaint in the District Court, alleging a claim for violation of Section 1983 and a claim for violation of Section 504 of the Rehabilitation Act of 1973. The Kutasis alleged that the Defendants had “engaged in a pattern and practice of retaliatory and discriminatory actions against Shane and his parents.” The complaint identified 18 alleged “retaliatory and discriminatory actions”: (1) failing to properly investigate and remedy complaints of non-compliance filed with the United States Department of Education, Office for Civil Rights (“OCR”); (2) interfering with the parents’ custodial rights over Shane; (3) in September 2004, refusing to allow Shane to attend A.E. Wright after he had been assigned classes and had already attended school; (4) repeatedly refusing to reimburse the Kutasis for Shane’s therapy by failing to pay invoices presented pursuant to the stay put order; (5) on February 9, 2004, singling out and demanding that the Kutasis turn over videotapes of Shane made by Barbara Kutasi at Round Meadow while not requiring this of any other parents; (6) from September 2000 through May 2004, requiring that the Kutasis sign Shane in and out of school every day when no other student was required to do so; (7) refusing to allow the Kutasis to visit the Resource Classroom during a tour of A.E. Wright camps while allowing other parents to do so; (8) on two separate occasions demanding that the Kutasis leave the Special Day Class at A.E. Wright during an observation; (9) humiliating Barbara Kutasi in front of other students and parents each time she visited Shane at Round Mountain; (10) repeatedly setting Shane’s IEP on the same date and time-but different location-as the Kutasis’ other child’s IEP; (11) deliberately setting an IEP on Shane’s birthday in August 2003 and August 2004; (12) refusing to allow the Kutasis to volunteer for field trips that were taken at Round Meadow; (13) requiring that Barbara Kutasi obtain a TB test and a medical release in order to be a “room parent” volunteer when this “rule” was not enforced against any other parent; (14) conducting unnecessary and unreasonable surveillance of the Kutasis when they visited Round Meadow; (15) attempting to obtain Shane’s private medical records without the Kutasis’ permission and consent; (16) failing to provide the Kutasis periodic reports of Shane’s progress while-other parents received such reports; (17) demanding that another of the Kutasi children personally attend Shane’s IEP meeting; and (18) otherwise punishing and threatening Plaintiffs for having exercised constitutionally and statutorily protected rights. After the Kutasis filed their complaint in the District Court, but before the District Court issued a ruling, the School District filed an administrative hearing request, asking the SEHO to approve the August 2004 proposed IEP. The School District’s request did not refer to any of the discriminatory acts alleged in the Kutasis’ complaint. While the School District’s administrative hearing was still pending before the SEHO, the District Court granted the Defendants’ motion to dismiss, holding that the Kutasis failed to exhaust the IDEA’S administrative remedies before filing suit in federal court. Recognizing that “[t]he threshold question is whether the injuries alleged could have been redressed to any degree by the IDEA’S administrative procedures and remedies,” the District Court found that “[e]ven a cursory review of Plaintiffs’ Complaint makes clear that some of the alleged injuries could almost certainly be redressed by the IDEA’S administrative procedures and remedies.” The District Court concluded that, for example, an administrative hearing “could potentially be dispositive, or, at the least, would be helpful to this Court’s analysis” of the Kutasis’ allegations that the Defendants refused to allow Shane to attend Wright and repeatedly refused to reimburse them for Shane’s therapy. The Kutasis’ filed a timely notice of appeal. After the District Court dismissed the Kutasis’ complaint, the SEHO issued a ruling against the School District on the August 2004 proposed IEP, finding that it did not constitute a FAPE in the least restrictive environment. The SEHO’s opinion did not address any of the issues raised by the Kutasis’ complaint and the Kutasis’ claims still had not been exhausted. 494 F.3d at 1164-1166. The Ninth Circuit affirmed the District Court’s dismissal of the Kutasis’ complaint. First, the Ninth Circuit rejected the parents’ argument that they were not required to exhaust IDEA administrative remedies for their claims. Id. at 1167-1168. Second, the Ninth Circuit rejected the argument that exhaustion of IDEA administrative remedies would have been futile because their injuries could not have been redressed to any degree by a due process hearing: The Kutasis’ also argue that any attempt at exhaustion would have been futile. ‘The [IDEA’s] exhaustion requirement is not ... a rigid one.’ Porter v. Bd. of Trustees of Manhattan Beach, 307 F.3d 1064, 1069 (9th Cir.2002). Plaintiffs need not seek a due process hearing ‘where resort to the administrative process would either be futile or inadequate.’ Hoeft, 967 F.2d at 1303. But a party that alleges futility or inadequacy of IDEA administrative procedures bears the burden of proof. See Robb, 308 F.3d at 1050 n. 2. The futility exception derives from the language of the IDEA itself, which limits the exhaustion requirement to cases where the plaintiff ‘seek[s] relief that is also available’ under the IDEA. 20 U.S.C. § 1415(Z). If the plaintiff seeks a remedy for an injury that could not be redressed by the IDEA’S administrative procedures, then the claim falls outside § 1415(Z )’s rubric and exhaustion is unnecessary. See Robb, 308 F.3d at 1050. On the other hand, if the injury could be redressed ‘to any degree’ by the IDEA’S administrative procedures — or if the IDEA’S ability to remedy an injury is unclear — -then exhaustion is required. See id. Our futility analysis is guided by three cases that have addressed the scope of the IDEA’S exhaustion requirement. In Witte, 197 F.3d at 1272-73, a student with Tourette’s Syndrome filed an action under 42 U.S.C. § 1983, the Rehabilitation Act and the Americans with Disabilities Act after he was allegedly force-fed oatmeal, strangled and subjected to emotional abuse. The plaintiff sought money damages, which were not ‘available under’ the IDEA. See id. at 1275. We concluded that because the plaintiff sought only monetary damages, and because all educational issues had already been resolved to the parties’ mutual satisfaction through the IEP process, the plaintiff was not ‘seeking relief that is also available’ under the IDEA. Id. (quoting 20 U.S.C. § 1415(Z)). Blanchard v. Morton School District, 420 F.3d 918 (9th Cir.2005), also involved claims for which the IDEA provided no remedy. The plaintiff in Blanchard — the mother of an autistic child — successfully argued that exhaustion of IDEA administrative proceedings was not required because she sought damages for her own emotional distress caused by the defendants’ conduct. Blanchard had represented her son in a series of administrative actions against the defendant school district, resulting in an order compelling the district to implement an IEP and to provide compensatory education to the student to remedy the district’s past failings. See id. at 920. Blanchard’s complaint was limited to money damages for her emotional distress due to the defendants’ alleged ‘deliberate indifference and violation of rights,’ as well as reimbursement for wages lost while pursuing her son’s remedies under the IDEA. Id. at 920. Emphasizing that the plaintiff ‘had resolved the educational issues implicated by her son’s disability and ... obtained the educational relief available under the IDEA on behalf of her son,’ we concluded that exhaustion was not required because ‘Blanchard’s emotional distress injuries and lost income could not be remedied through the educational remedies available under the IDEA.’ Id. at 921, 922 (citing Witte, 197 F.3d at 1275). Thus, ‘because the IDEA provide^] no remedy for Blanchard,’ exhaustion was excused. Id. at 922 (emphasis added). We circumscribed Witte, however, in Robb v. Bethel School District # 403, where we clarified that a plaintiff cannot evade the IDEA’S exhaustion requirement merely by limiting a claim to money damages. There, a student’s parents filed a § 1983 action on behalf of themselves and their daughter after the student was removed from her classroom and tutored by junior high and high school students. 308 F.3d at 1048. The plaintiffs requested money damages as compensation for ‘lost educational opportunities’ and ‘emotional distress, humiliation, embarrassment, and psychological injury.’ Id. Even though an administrative proceeding could not provide relief in the form requested by the plaintiffs, we concluded ‘[i]t would be inappropriate for a federal court to short-circuit the local school district’s administrative process based on the possibility that some residue of the harm Ms. Robb allegedly suffered may not be fully remedied by the services Congress specified in the IDEA. We are not ready to say that money is the only balm.’ Id. at 1050. Robb distinguished Witte on three grounds: (1) the Robb plaintiffs had not ‘taken full advantage of the IDEA administrative process to secure the remedies available thereunder’; (2) they did not allege physical injury; and (3) they requested money damages for ‘psychological and educational injuries the IDEA may remedy.’ Id. at 1052. We conclude that the present case is controlled by Robb because, unlike the plaintiffs in Witte and Blanchard, the Kutasis have not resolved all educational issues underlying their claims. See Witte, 197 F.3d at 1275; Blanchard, 420 F.3d at 921-22. That much is obvious from the Kutasis’ request for damages to remedy the Defendants’ refusal ‘to allow Shane to attend A.E. Wright after he had been assigned classes and had already attended school.’ The School District’s refusal to allow Shane to attend school is precisely the kind of educational injury that we expect plaintiffs to adjudicate at the administrative stage before seeking relief from a court of law. See Hacienda La Puente Unified Sch. Dist. of Los Angeles v. Honig, 976 F.2d 487, 489 (9th Cir.1992) (upholding SEHO decision ordering student’s reinstatement at school); see also Demers v. Leominster Sch. Dep’t, 96 F.Supp.2d 55, 58 (D.Mass.2000) (requiring that plaintiff seeking order directing school district to reinstate student in regular class program exhaust IDEA’S administrative remedies). In the same vein, the Kutasis complain about injuries resulting from the Defendants’ decision to schedule Shane’s IEP conference for the same date and time as their other child’s IEP conference and from the Defendants’ failure to provide educational reports on Shane’s progress. The Kutasis have not explained why these allegedly hostile bureaucratic acts could not have been remedied by the SEHO simply mandating periodic reports and appropriate meeting times in the future. See Radcliffe v. Sch. Bd. of Hillsborough County, 38 F.Supp.2d 994, 1000 (M.D.Fla.1999) (requiring exhaustion of plaintiffs’ request for an injunction requiring the school district to hold an IEP meeting at a specific time). Although such a remedy from the SEHO would not provide the specific form of relief the Kutasis seek-money damages-if could alleviate the root cause of their injury. ‘For purposes of exhaustion, “relief that is also available under” the IDEA does not necessarily mean relief that fully satisfies the aggrieved party. Rather, it means “relief suitable to remedy the wrong done the plaintiff, which may not always be relief in the precise form the plaintiff prefers.”’ Blanchard, 420 F.3d at 921 (quoting Robb, 308 F.3d at 1049). The Kutasis’ complaint also alleges that the Defendants have not adequately reimbursed them for Shane’s at home therapy provided pursuant to the stay put order. Once again, the Kutasis fail to bear their burden of proving that resort to the IDEA’S administrative procedures would be futile. The SEHO has authority to order reimbursement for therapy expenditures. See Glendale Unified Sch. Dist. v. Almasi, 122 F.Supp.2d 1093, 1104 (C.D.Cal.2000) (upholding SEHO order mandating reimbursement for occupational therapy); see also Zasslow v. Menlo Park City Sch. Dist., 2001 WL 1488617, *4 (N.D.Cal.2001) (reviewing order mandating reimbursement for speech and language therapy). Indeed, the Kutasis have themselves received such redress from an IDEA due process hearing in the past. Their notice of related cases submitted to the district court included a copy of a state court complaint the Kutasis filed in 2005, seeking $62,000 in damages. The state court complaint alleged that on October 13, 2000, the SEHO issued a stay put order requiring the Las Virgenes Unified School District ‘reimburse [John and Barbara Kutasi] for applied behavioral therapy services’ pursuant to an agreement between the parties. Taking the Kutasis’ allegations as true — and we have no reason to doubt the accuracy — we must conclude that SEHO could again order the School District to reimburse the Kutasis for all outstanding invoices. Because the Kutasis allege injuries that could be redressed to some degree by the IDEA’S administrative procedures and remedies, the district court’s dismissal of their complaint without prejudice is AFFIRMED. 494 F.3d at 1168-1170. The District Defendants also refer the Court to Fliess v. Washoe County School District, 90 Fed.Appx. 240 (9th Cir.2004). In so doing, the District Defendants note: Although this decision is unpublished, Ninth Circuit Rule 36-3 does not bar a district court from considering the unpublished decisions of other federal district courts; however, such decisions are not binding and are considered persuasive authority. The District Defendants cite In re Van Wagoner Funds, Inc. Securities Litigation, 382 F.Supp.2d 1173, 1182 n. 5 (N.D.Cal.2004): Although this decision is unpublished and out of circuit, Ninth Circuit Rule 36-3 does not bar a district court from considering the unpublished decisions of other federal district courts; however such decisions are not binding and are at most persuasive authority. Herring v. Teradyne, Inc., 256 F.Supp.2d 1118, 1128 n. 2 (S.D.Cal.2002); see also, Alvarenga-Villalobos v. Reno, 133 F.Supp.2d 1164, 1167 (N.D.Cal.2000) (holding a district court may cite an out of circuit unpublished decision and not run afoul of the Ninth Circuit Rule 36-3). Plaintiff argues that the District Defendants have violated Ninth Circuit Rule 36-3 by citing Fliess and that this violation warrants dismissal of the District Defendants’ motion due to prejudice to Plaintiff. Ninth Circuit Rule 36-3 provides: (a) Not Precedent. Unpublished decisions and orders of the Court are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion. (b) Citation of Unpublished Dispositions and Orders issued on or after January 1, 2007. Unpublished dispositions and orders of this Court issued on or after January 1, 2007 may be cited to the courts of this circuit in accordance with Fed.R.App.P. 32.1 (c) Citation of Unpublished Dispositions and Orders Issued before January 1, 2007. Unpublished dispositions and orders of this Court issued before January 1, 2007 may not be cited to the courts of this circuit, except in the following circumstances. (i) They may be cited to this Court or to or by any other court in this circuit when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion. (ii) They may be cited to this Court or by any other court in this circuit for factual purposes, such as to show double jeopardy, sanctionable conduct, notice, entitlement to attorneys’ fees, or the existence of a related case. (iii) They may be cited to this Court in a request to publish a disposition or order made pursuant to 9th Cir. R. 36-4, or in a petition for panel rehearing or rehearing en banc, in order to demonstrate the existence of a conflict among opinions, dispositions, or orders. Plaintiff cites Sorchini v. City of Covina, 250 F.3d 706, 708-709 (9th Cir.2001): The rule does not permit the citation of an unpublished disposition for the purpose of providing ‘notice’ to the court of the existence or absence of legal precedent. If precedent were a ‘fact’ for purposes of the exception, then the exception would swallow up the rule. It would permit an argument such as this: T am not citing this unpublished disposition as precedent, but only to inform the court of the fact that a prior panel held precisely what I would like the court to hold in my case.’ Obviously, this is not what the exception was meant to permit. Whether or not Sorchini was entitled to the instruction he had requested depends on the state of our case law, namely whether it was clearly established that police were required to give a warning before releasing a dog ... To determine whether the law was clear, we must examine the relevant precedents. Because Kish [v. City of Santa Monica], 2000 WL 377771 (9th Cir. Apr. 13, 2000) is not precedent, neither Kish’s holding, nor Kish’s observations about the state of the law, have any bearing on this inquiry. The only way Kish could help counsel’s argument is prohibited by Ninth Circuit rule 36-3 — by persuading us to rule in the City’s favor because an earlier panel had ruled the same way. Unpublished dispositions are neither persuasive nor controlling authority, and the limited exceptions to the noncitation rule contained in section (b) are not intended to change that. Here, the Ninth Circuit’s unpublished opinion in Fliess was issued in 2004. No showing is made by the District Defendants that any of the exceptions set forth in Rule 36-3(e) apply. The District Defendants assert that they “explicitly cited Fliess as a decision by the District Court of Nevada where a motion to dismiss was granted under facts that are virtually identical to the facts of the present case.” However, the District Defendants did not provide a copy of the District of Nevada’s ruling; they provided a citation to and copy of the Ninth Circuit’s unpublished opinion affirming the District Court’s dismissal. This is not in accordance with the rules. The District Defendants then argue that “it is not clear that the Ninth Circuit Court of Appeals Local Rules apply to govern what cases may be cited to a District Court as persuasive authority.” In so arguing, the District Defendants construe the language in Rule 36-3, “may not be cited to the courts of this circuit,” to mean that the rule only applies to citations to the various Courts of Appeals. District Defendants refer to Rule 47(a) (1), Federal Rules of Appellate Procedure: Each court of appeals acting by a majority of its judges in regular active service may, after giving appropriate public notice and opportunity for comment, make and amend rules governing its practice [Emphasis added]. District Defendants contend that Rule 47(a)(1) does not grant the individual Circuit Courts authority to make rules governing the District Courts’ practice. District Defendants refer to Rule 83(a)(1), Federal Rules of Civil Procedure: After giving public notice and an opportunity for comment, a district court, acting by a majority of its district judges, may adopt and amend rules governing its practice. A local rule must be consistent with — but not duplicate — federal statutes and rules adopted under 28 U.S.C. §§ 2072 and 2075.... District Defendants assert that there is no requirement in Rule 83(a)(1) that the District Courts follow the local rules of the Ninth Circuit. District Defendants refer to Rule 5 — 133(i), Local Rules of Practice for the Eastern District: ... If case, statutory, or regulatory authority is relied upon that has not been reported, published, or codified in any [of the listed official reporters], a copy of that authority shall be appended to the brief or other document in which the authority is cited. This requirement shall include, but not be limited to, the Statutes at Large, the Public Laws of the United States, the California Administrative Code, administrative regulations not contained in the Code of Federal Regulations or the Federal Register, and decisions and other matters published in specialized reporter services. District Defendants contend that they complied with Rule 5-133(i) because they attached a copy of the Fliess opinion to their brief. Finally, District Defendants argue that Sorchini is distinguishable because Sorchini contains no holding as to the power of the District Courts to consider unpublished opinions for their persuasive effect. District Defendants’ construction and interpretation of Rule 36-3 is without merit. This Court has held that Rule 36-3 prohibits citation to unpublished decisions of the Ninth Circuit which do not satisfy the exceptions stated in the rule or which were issued before January 1, 2007. See Brown v. County of Kern, 2008 WL 544565 at *12 n. 6 (E.D.Cal.2008). However, District Defendants’ citation to the Ninth Circuit opinion affirming the District Court’s dismissal in Fliess does not warrant the sanction requested by Plaintiff, i.e., that District Defendants’ motion to dismiss be denied on this ground alone. The Ninth Circuit’s Fliess opinion does not apply. However, the parties were advised by Order filed on June 24, 2009, that judicial notice is taken of the Order granting Defendants’ motion to dismiss filed on December 23, 2002 in Fliess v. Washoe County, et al., No. CV-N-02-0011-LRH(RAM), United States District Court for the District of Nevada. The Court may take judicial notice of matters of public record, including duly recorded documents, and court records available to the public through the PACER system via the internet. See Fed.R.Evid. Rule 201(b); United States v. Howard, 381 F.3d 873, 876, fn. 1 (9th Cir.2004). Ninth Circuit Rule 36-3 does not prohibit citation to or reliance on unpublished District Court decisions, which are, like published District Court opinions, only persuasive authority. San Luis & Delta-Mendota Water Authority v. Salazar, 2009 WL 1575169 at *18 n. 8 (E.D.Cal.2009); In re Van Wagoner Funds, Inc. Securities Litigation, 382 F.Supp.2d 1173, 1182 n. 5 (N.D.Cal.2004). In Fliess, the Nevada District Court granted the defendants’ motion to dismiss for lack of subject matter jurisdiction. The plaintiff was a minor child who suffered a number of disabilities and attended public school in Washoe County, Nevada. Plaintiff brought his action under the IDEA. The District Court ruled: I. Background In the instant ease, the Plaintiffs IEP apparently included an instant reward system for appropriate behavior and for a ‘quiet room to be used as appropriate and physical restraint to b[sie] used As [sic] appropriate pursuant to A.B. 280.’ (Complaint at 2 ¶ 7). Plaintiff alleges that his teacher and the WCSD did not adhere to this IEP. Specifically, Plaintiff alleges that on September 15, 2002, he was handcuffed by WCSD School Police and placed in a school district police car. Plaintiff claims to have suffered severe emotional distress as a result of being handcuffed and placed in the police car and he now seeks $50,000.00 in compensatory damages and $150,000.00 in punitive damages. Notably, Plaintiff does not seek any equitable relief. III. Discussion Plaintiffs complaint alleges that the WCSD did not adhere to the IEP that was specifically designed to appropriately deal with the Plaintiffs behavior problems. This allegation apparently relates to two distinct incidents. The first incident stemmed from Plaintiff misbehaving on a school field trip. As a result of his misbehavior, Plaintiff was allegedly handcuffed and placed in a WCSD police car. The second incident stemmed from the Plaintiff hitting his teacher, who then summoned the WCSD Police. The Police allegedly issued the Plaintiff a citation and asked him to sign it. Plaintiff claims that these acts were ‘in violation of the I.E.P. in that the Defendants ... failed to follow the mandates of the I.E.P. and the recommendations for discipline contained therein.’ Plaintiff alleges to have suffered severe emotional distress as a result of these incidents and has brought the instant action to redress his alleged injuries. The IDEA confers on disabled children and their parents the right to have complaints related to the disabled child’s IEP resolved before an impartial hearing officer, under the auspices of the relevant state or local educational agency, and in connection with the ‘identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child.’ 20 U.S.C. § 1415(b)(1). The IDEA permits parties which are dissatisfied with the outcome of the administrative process to ‘bring a civil action with respect to the complaint presented [to the agency],’ either in state court or in federal district court. 20 U.S.C. § 1415(i)(2)(A). However, judicial review under the IDEA is ordinarily available only after a plaintiff has exhausted administrative remedies. 20 U.S.C. § 1415(e)(2). If a plaintiff is required to exhaust administrative remedies, but fails to do so, federal courts are without jurisdiction to hear the plaintiffs claim. See Dreher, 22 F.3d at 231. In the instant case, there is no evidence that Plaintiff has sought redress of the alleged violations of his IEP through the administrative process. In fact, Plaintiff argues that he is not required to do so. Plaintiff seeks only monetary damages in this action and ‘[ajlthough the IDEA allows courts to grant “such relief as the court determines is appropriate,” 20 U.S.C. § 1415 (i) (2) (B) (iii), ordinarily monetary damages are not available under that statute.’ Witte, 197 F.3d at 1275. Plaintiff argues that the Ninth Circuit’s decision in Witte v. Clark County School District, controls this case. Plaintiff further argues that Witte stands for the proposition that because monetary damages are unavailable under the IDEA, plaintiffs who seek solely monetary damages are not required to exhaust administrative remedies prior to filing an action in federal court. Additionally, Plaintiff argues that the facts of Witte ‘mirror[ ] precisely the facts of the Plaintiffs case.’ Thus, according to Plaintiff he was not required to exhaust administrative remedies prior to filing this action. In support of his claim that he need not exhaust administrative remedies, Plaintiff cites the following passage from Witte: ‘Because [the] Plaintiff seeks only monetary damages, which is not relief that is available under the IDEA, and because all educational issues have already been resolved to the parties’ mutual satisfaction through the IEP process, Plaintiff is not seeking relief that is available under the IDEA. That being so, under the plain words of the statute, exhaustion of administrative remedies is not required.’ Witte, 197 F.3d at 1275 (internal citations and quotations omitted). Plaintiffs reliance on Witte is, however, misplaced. Moreover, the Plaintiffs argument is wholly unsupported by the record. Indeed, the instant case is significantly different from Witte. ‘Before filing suit, the plaintiff in Witte already had agreed with the defendant school district — through informal processes available under the IDEA or through its formal procedures — to new educational plans and services that would address the educational component of his injuries.’ Robb v. Bethel School District # 403, 308 F.3d 1047, 1051-52 (9th Cir.2002) (discussing why the plaintiff in Witte was permitted to seek monetary damages). Unlike Witte, all of the educational issues have ‘not’ been resolved to the parties’ mutual satisfaction through the IDEA processes in this case. Indeed, there is no evidence or even suggestion that the Plaintiff pursued his administrative remedies, not to mention exhausted them. Plaintiffs argument that the language in Witte suggests he may avoid the IDEA’S exhaustion requirement merely by limiting the relief sought to monetary damages is misguided and expressly contradicted by Ninth Circuit precedent. In the recent case of Robb v. Bethel School District # 403, the Ninth Circuit clearly noted that to read Witte as permission to opt out of the IDEA simply by making a demand for money or services the IDEA does not provide, would be to read Witte out of context. Robb, 308 F.3d at 1051. Plaintiff has done exactly that. The Robb court clarified the correct standard as follows: [The] primary concern in determining whether a plaintiff must use the IDEA’S administrative procedure relates to the source and nature of the alleged injuries for which he or she seeks a remedy, not the specific remedy requested. The dispositive question generally is whether the plaintiff has alleged injuries that could be redressed to any degree by the IDEA’S administrative procedures and remedies. If so, exhaustion of those remedies is required. If not, the claim necessarily falls outside the IDEA’S scope, and exhaustion is unnecessary. Where the IDEA’S ability to remedy a particular injury is unclear, exhaustion should be required to give educational agencies an initial opportunity to ascertain and alleviate the alleged problem. Id. at 1050 .... In the instant case, Plaintiff admits to behavioral problems and to hitting his teacher. The teacher and the police allegedly reacted to Plaintiffs various incidents of misbehavior in ways outside of the Plaintiffs IEP, i.e., by handcuffing him, placing him in a police car, and giving him a citation. Plaintiff alleges that these reactions were violations of his IEP, which comprised the mutually agreed upon procedures for dealing with such behavioral problems. Assuming, as the Court is required to do here, that these allegations are true, they are clearly illustrative of the type of educational issues that could and should be redressed through the IDEA’S administrative procedures and remedies. Accordingly, the fact that the Plaintiff seeks solely monetary damages does not confer this Court with subject matter jurisdiction over this case. The answer to the dispositive question in this case is that the Plaintiff has alleged injuries that could be redressed, to a large degree, by the IDEA’S administrative procedures and remedies. The Ninth Circuit in Robb noted that ‘the exhaustion requirement embodies the notion that educational agencies, not the courts, ought to have primary responsibility for the educational programs that Congress has charged them to administer.’ Id. at 1051. In sum, Plaintiff has remedies available to him through the administrative process. Until Plaintiff submits to such, this Court does not have subject matter jurisdiction. Finally, Plaintiff has also alleged a supplementary claim for relief based on negligent supervision. The Court does not have jurisdiction over this pendent non-IDEA claim and will dismiss it for that reason. Plaintiff argues that he was not required to exhaust administrative remedies under the IDEA because his lawsuit does not pertain to any matters that could be resolved under the IDEA. Plaintiff asserts that he resolved all educational issues with the School District prior to filing this Complaint and does not seek any remedies like those sought in Kutasi Plaintiff submits the declaration of Plaintiffs counsel, Christine Hopkins, wherein she avers that Plaintiff can truthfully amend his Complaint “to state that following the September 29, 2008 incident, the school district initially denied Plaintiffs request for independent study as a temporary placement but the Plaintiffs parents and district then came to an agreement for a temporary independent study placement through October 17, 2008;” “that [C.B.’s] parents received a letter dated October 31, 2008, from Sonora School District Superintendent Marguerite Bulkin stating the following (with Plaintiffs name redacted to state [C.B.]): ‘At the October 29, 2008 meeting of the Sonora School District Governing Board, the Board voted to accept your request to revoke the inter-district Attendance Agreement for your son [C.B.], effective October 20, 2008 ... According to Gold Rush Charter School, [C.B.] enrolled in their program on October 28, 2008;” and that C.B. “and his parents worked administratively with Sonora School District since 2005 to obtain services under the IDEA and section 504 of the Rehabilitation [Act], including but not limited to (a) evaluation of his disabilities, (b) approval of an inter-district transfer agreement to prevent an attempt by Sonora School District to remove Plaintiff from the School District based on residency issues (despite the attendance of Plaintiff and his siblings at Sonora Elementary School for many years) and (c) implementation and approval of his section 504 behavioral accommodation plan.” Plaintiff argues that these proposed amendments will establish that Plaintiff did exhaust all his administrative remedies prior to bringing this lawsuit because he agreed to a post-incident placement and has worked with the School District since 2005 to achieve accommodations. At the hearing, District Defendants argued that amendment to include these allegations will not satisfy the administrative exhaustion requirements. District Defendants contend that informal discussions and resolution with the School District do not suffice to comply with the IDEA’S statutory exhaustion requirements, citing S.M. v. West Contra Costa County Unified School District Financing Corp., 2009 WL 1033826 (N.D.Cal.2009), and Hayden C. v. Western Placer Unified School District, 2009 WL 1325945 (E.D.Cal.2009). In S.M., Plaintiff, a student with a learning disability, filed suit in 2006 against the school district and others alleging that he had been physically and verbally abused by other students and staff, and that, instead of addressing the abusive behavior, the school district shifted him to a campus for students with learning disabilities where the abuse continued. Plaintiff alleged, among others, claims under the IDEA. The District Court dismissed that case in 2007 for failure to exhaust administrative remedies. Shortly before the 2007 dismissal, Plaintiff and his mother filed a request for due process with the school district’s Office of Administrative Hearings (OAH). On March 7, 2007, the school district, Plaintiff and his mother resolved the OAH proceedings by entering into a “Final Mediation Agreement,” which contained a General Release and Discharge. In November 2007, Plaintiff and his mother filed the case at issue based on many of the same events in the original 2006 case, asserting claims under the Constitution and federal statutes, as well as under California statutory and common law. After finding that Plaintiffs claims, other than tort claims, arising from conduct that occurred prior to March 7, 2007, were barred by the Final Mediation Agreement, the District Court addressed Plaintiffs claims based on events subsequent to March 7, 2007. The District Court dismissed those claims because of Plaintiffs failure to exhaust the IDEA’S administrative remedies. In Hayden C., the Plaintiffs parents originally filed for a due process hearing on July 15, 2008, alleging IDEA violations with regard to the educational services Plaintiff was receiving. That administrative complaint was presented to the Office of Administrative Hearings in accordance with the provisions of the IDEA. Plaintiff subsequently withdrew her action pursuant to a Settlement Agreement executed by the parties, which detailed educational programs and services to be provided to Plaintiff. After the settlement was reached, Plaintiffs parents complained about the way the educational services contemplated by the settlement agreement were being implemented. In December 2008, P