Citations
- 726 F. Supp. 2d 868
Full opinion text
MEMORANDUM OPINION
THOMAS A. WISEMAN, JR., Senior District Judge.
Before the Court are three separate motions filed by Defendants Sumner County Board of Education (“Board”) or Donna Weidenbenner: (1) Motion to Strike (Doc. No. 20), filed by the Board, seeking to strike the allegations set forth in Paragraph 7 of the Complaint; (2) Motion to Dismiss (Doc. No. 22), filed by the Board pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, seeking dismissal on the grounds of lack of subject-matter jurisdiction and, alternatively, for failure to state a claim upon which relief may be granted; and (3) Motion to Dismiss filed on behalf of Weidenbenner, reiterating the Board’s arguments for dismissal based upon Rule 12(b)(1) or 12(b)(6), but also asserting that the claims under Title II of the Americans with Disabilities Act (“ADA”) and § 504 of the Rehabilitation Act, made against Weidenbenner in both her official and representative capacities, are subject to dismissal. Plaintiffs have filed one omnibus response in opposition to all three motions, and Sumner County has filed a single reply brief. The motions have been fully briefed and are ripe for resolution.
For the reasons set forth herein, the motions to dismiss will be granted in part and denied in part; the motion to strike will be denied.
I. MOTIONS TO DISMISS
A. Standard of Review
The Board asserts that dismissal is required under Rule 12(b)(1) for lack of subject-matter jurisdiction, based upon Plaintiffs’ alleged failure to exhaust administrative remedies as required by the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(l) The Board also asserts that Plaintiffs have the burden of proving jurisdiction.
There is a dispute among the Circuit Courts of Appeals as to whether exhaustion of administrative remedies under the IDEA, is a jurisdictional requirement or whether exhaustion is merely a condition precedent for filing an IDEA lawsuit. The Seventh and Eleventh Circuits have held that the failure to exhaust administrative remedies does not deprive a court of subject-matter jurisdiction. See, e.g., Charlie F. v. Bd. of Educ. of Skokie Sch. Dist 68, 98 F.3d 989, 991 (7th Cir.1996); N.B. by D.G. v. Aluchua County Sch. Bd., 84 F.3d 1376, 1379 (11th Cir.1996). These courts reason that the lack of exhaustion is usually waivable while lack of jurisdiction is not. Charlie F., 98 F.3d at 991. In these jurisdictions, the failure to exhaust administrative remedies is an unmet condition precedent for filing a lawsuit, and may result in dismissal for failure to state a claim under Rule 12(b)(6) or on a motion for summary judgment.
Other courts have concluded that exhaustion of administrative remedies is a jurisdictional prerequisite. See, e.g., Polera v. Bd. of Educ., 288 F.3d 478, 483 (2d Cir.2002); MM v. Sch. Dist. of Greenville County, 303 F.3d 523, 536 (4th Cir.2002); Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1063 (10th Cir.2002); Witte v. Clark County Sch. Dist., 197 F.3d 1271, 1274 (9th Cir.1999). In these jurisdictions, the failure to exhaust administrative remedies results in dismissal for lack of subject-matter jurisdiction. Urban v. Jefferson County Sch. Dist. R-1, 89 F.3d 720, 725 (10th Cir.1996).
While the Sixth Circuit does not appear to have expressly decided this issue, a recent Supreme Court decision has made it clear that exhaustion generally, when statutorily required, is not a jurisdictional bar. Rather, exhaustion is an affirmative defense that must be raised and proved by the defendant. Jones v. Bock, 549 U.S. 199, 212-13, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (analyzing the exhaustion provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915A, and finding that, although many lower courts, including the Sixth Circuit, had treated this provision as jurisdictional, exhaustion is better regarded as an affirmative defense). In light of the analysis applied in Jones v. Bock, at least one other district court within the Sixth Circuit has concluded that failure to exhaust administrative remedies in the context of a claim brought under the IDEA is an affirmative defense, not a jurisdictional bar. B.H. v. Portage Pub. Sch. Bd. of Educ., No. 1:08-cv-293, 2009 WL 277051, at *3 (W.D.Mieh. Feb. 2, 2009) (converting defendant’s Rule 12(b)(1) motion into Rule 56 motion). Other district courts within the Sixth Circuit have similarly considered the failure-to-exhaust issue without couching it as jurisdictional. See, e.g., Doe v. Dublin City Sch. Dist., No. 2:09-cv738, 2010 WL 1434318 (S.D.Ohio April 8, 2010) (dismissing complaint under Fed.R.Civ.P. 12(b)(6) based upon plaintiffs’ failure to exhaust remedies).
As the disposition of Doe v. Dublin City School District suggests, the distinction is largely academic unless the objection has been waived, as the failure to exhaust may provide a grounds for dismissal, just not on the basis of lack of subject-matter jurisdiction. Further, although construing the exhaustion requirement as an affirmative defense would ordinarily shift the burden of proof to the Board, the Sixth Circuit has clearly held that the “burden ... rests with the [plaintiff] to demonstrate the futility or inadequacy of administrative review.” Gean v. Hattaway, 330 F.3d 758, 774 (quoting Honig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)). In the present case, the Board does not, for purposes of its motion, dispute the facts set forth in Plaintiffs’ complaint, and the only issue presented is a legal one: whether exhaustion was required in this case. Because there are no material factual disputes that pertain to resolution of this issue, the Court will construe the Board’s motion as a motion to dismiss under Rule 12(b)(6), which provides for dismissal of actions that fail to state a claim upon which relief can be granted. Under this standard, this Court must construe the Complaint in favor of Plaintiffs, accept the factual allegations contained in the Complaint as true, and determine whether Plaintiffs’ factual allegations present plausible claims. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The claims must be “plausible” and not merely “conceivable.” Id. at 570, 127 S.Ct. 1955.
B. Factual and Procedural Background
Plaintiffs make the following factual allegations in the Complaint:
Plaintiffs are Allen and Jennifer Sagan, residents of Sumner County, Tennessee, and they bring this action individually and on behalf of their minor child, referred to herein as Jane Doe.
Jane Doe has Down syndrome, and during the 2008-2009 school year was a special-needs student at Station Camp Elementary School, a public school that is under the exclusive control of the Sumner County Board of Education. The Board is the ultimate decision-making body of the Sumner County school system with regard to the employment of teachers and all other policy determinations in the operation of the public schools within Sumner County.
Defendant Donna Weidenbenner is a citizen of Sumner County, Tennessee, and was at all times material to the complaint the “Special Needs Teacher at Station Camp Elementary School.” The Board established the Special Needs Class for the specific purpose of providing an adequate public education for special needs students such as Jane Doe. Plaintiffs were assured that Weidenbenner had all the necessary qualifications and credentials required for special needs teachers.
During the 2008-2009 academic year, Jane Doe was subjected to physical abuse and outrageous conduct perpetrated by Weidenbenner, including:
(1)being forcefully pushed into another teacher’s classroom in one instance and, unbeknownst to that teacher, left there alone and unattended, where she lay on the floor for at least twenty minutes, terribly distraught and crying uncontrollably;
(2) being subjected to “constant abusive comments” by Weidenbenner;
(3) having Weidenbenner put a fingernail or something else sharp under one of Jane Doe’s fingernails for discipline;
(4) being required to smell her own feces if she had a toileting accident;
(5) being pulled forcefully into a standing position, resulting in bruises on her arms; and
(6) being referred to as “a little shit” in her own presence as well as that of her mother and others.
(See Compl., Doc. No. 1, at ¶¶ 8-12.)
In paragraph 7 of the Complaint, Plaintiffs assert that “[d]uring the 2008-2009 academic year Jane Doe and other special needs children were subjected to physical abuse and outrageous conduct perpetrated by [Weidenbenner],” including such things as “force feeding the children to the point of vomiting”; “forcefully shoving children into furniture causing bruises and abrasions”; “kicking and throwing children to the point they cry and become non-responsive and despondent”; and “strapping children to a commode for extended periods of time,” among other alleged abusive acts. (Compl. ¶ 7(a)-(s).)
Plaintiffs allege that these were not “isolated incidents” insofar as Weidenbenner had engaged in similar conduct in prior academic years with other special needs children, but the Board “failed to take such action as to prevent special needs students from the foreseeable and specific danger of harm at the hands of Miss Donna [Weidenbenner].” (Compl. ¶ 13.) Reports regarding Weidenbenner’s conduct were made to officials and employees of the Board prior to the 2008-2009 academic year but were ignored. Plaintiffs allege that “[o]n one occasion an assistant teacher reported concerns about [Weidenbenner’s] behavior but was told to ‘mind her own business’ and that [Weidenbenner] was the ‘expert.’ ” (Compl. ¶ 14.) The Complaint does not indicate when or to whom the assistant teacher’s report was made or what type of “concerns” she expressed. Weidenbenner’s conduct, however, was “done openly in the school with no attempt by her to conceal her actions and in front of school officials.” (Compl. ¶ 15.)
According to Plaintiffs, the Board knew or should have known, by and through its employees and agents, of the specific risk of harm to Jane Doe posed by Weidenbenner, “given the number of years she exhibited this conduct and prior reports to officials of same, but took no steps to stop the abuse.” (Compl. ¶ 18.) Plaintiffs allege the Board failed to train and supervise Weidenbenner in her position as teacher of special-needs children, and failed to properly train and supervise other employees in detecting and reporting the abuse of special needs children. (Compl. ¶ 21.) These failures allegedly resulted in physical and emotional injuries to Jane Doe for which she is entitled to compensatory damages for “past and future expenses, past and future physical pain and suffering, mental anguish, and past and future lost capacity for the enjoyment of life.” (Compl. ¶ 22.)
C. Analysis and Discussion
Based upon the factual allegations set forth above, Plaintiffs assert four separate “counts” in their Complaint. First, in Count I, Plaintiffs aver that Defendant Weidenbenner committed the alleged acts of abuse against Jane Doe under color of state law and by virtue of her authority as a Special Needs Teacher at a public school in Sumner County, and thereby deprived Jane Doe of clearly established rights guaranteed by the First and Fourteenth Amendments to the Constitution, for which 42 U.S.C. § 1983 provides redress. Plaintiffs specifically aver that Weidenbenner’s acts deprived Jane Doe of (1) freedom from unreasonable, unjustified and excessive force; (2) liberty and property without due process; (3) freedom from summary punishment; (4) freedom from interference with familial association; and (5) freedom from arbitrary governmental activity which shocks the conscience of a civilized society, thereby causing Jane Doe to sustain injuries and damages that would not otherwise have occurred. (Compl. ¶¶23-24.)
Count II is asserted against the Board only and asserts that the Board “permitted, encouraged, tolerated, and knowingly acquiesced to an official pattern, practice or custom of its special needs teachers, and particularly [Weidenbenner], of violating the constitutional rights of students and their families, including Plaintiffs”; that the Board has “vested final policy-making authority with respect to the special education program in [Weidenbenner]” such that Weidenbenner’s acts “constitute the official policies, practices and customs of the Defendant School Board, rendering Defendant School Board directly liable for any and all unconstitutional actions committed by [Weidenbenner]”; and that the School Board is directly liable for the Board’s policies and customs in effect during the 2008-2009 academic year, which were the underlying cause of Jane Doe’s injuries and damages. Plaintiffs further allege that the Board had actual knowledge of Weidenbenner’s shocking conduct and failed to take action to prevent her from continuing to prey on disabled students.
In Count III, Plaintiffs aver that they “have a constitutional right of familial association” with their child and to the society and companionship of their child guaranteed by the Fourteenth Amendment to the Constitution but that, as a result of Weidenbenner’s abuse and the Board’s breach of duties that permitted such abuse, Defendants violated those rights.
Count IV, asserted against “Defendants” generally, purports to state a claim under Title II of the Americans with Disabilities Act (“ADA”) and § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), based upon Defendants’ failure to comply with their duty to provide Jane Doe a “free and appropriate public education” and failure to provide Jane Doe with appropriate classroom facilities and teachers to accomplish the mandates of her Individualized Education Plan (“IEP”), thereby violating Jane Doe’s rights under the ADA and the Rehabilitation Act and causing injury to Jane Doe. (Compl. ¶¶ 36-43.)
In its Motion to Dismiss, the School Board asserts, first, that all of Plaintiffs’ claims are subject to dismissal as a result of Plaintiffs’ failure to exhaust administrative remedies as required by the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. Additionally and alternatively, the Board maintains that (1) Plaintiffs have failed to state a claim for which relief may be granted under § 1983 for deprivation of parental rights guaranteed by the Fourteenth Amendment; (2) the acts alleged in the Complaint, even accepted as true, do not amount to a deprivation of Jane Doe’s constitutional rights; and (3) as a matter of law, Plaintiffs have not stated facts that would support a finding that the Board was responsible for any constitutional deprivations that might have occurred.
Defendant Weidenbenner, in her separately filed Motion to Dismiss, incorporates by reference the arguments in the Board’s motion and memorandum, but also asserts that (1) the “official capacity” claim against her under the ADA and Rehabilitation Act must be dismissed because an official-capacity claim is essentially the same as suit against the entity by which the individual is employed, and the entity is already named as a defendant; and (2) the ADA and Rehabilitation Act claims against her in her individual capacity must be dismissed for failure to state a claim because there is no individual liability under Title II of the ADA. (