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finding failure to exhaust administrative remedies when an issue was not appealed to the BSEA
Summary of this case from Stanley C. v. M.S.D. of S.W Allen County SchoolsOpinion
CASE NO. 4:03-cv-00095-DFH-WGH.
December 23, 2004
Ninamary Buba Maginnis, MAGINNIS LAW OFFICE, for plaintiffs.
Steven D. Groth, BOSE McKINNEY EVANS, Kathryn Symmes Kirk, INDIANA STATE ATTORNEY GENERAL, Margaret Bannon Miller, BOSE McKINNEY EVANS, LLP, Nicholas Anthony Miller, INDIANA STATE ATTORNEY GENERAL, Karen G. Sharp, BOSE McKINNEY EVANS, LLP, Robert B. Wente, INDIANA STATE ATTORNEY GENERAL, for defendants.
ENTRY ON PENDING MOTIONS
This case presents a host of claims and issues concerning the education of plaintiff Marc C. Weyrick, who is now an adult. At the core of the case are claims arising under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., based on his education in high school. However, in the Third Amended Complaint, plaintiffs have chosen to surround those claims with a host of other claims. Those claims present issues that have become the subject of several motions and numerous briefs that contribute little other than delay to resolution of the core claims. The motions challenge the standing of Marc's mother and the viability of claims asserted under other federal laws, as well as long-stale claims under the IDEA concerning Marc's elementary school education.
Plaintiff Marc Weyrick is now 23 years old. He is dyslexic. He attended public schools in New Albany, Indiana, for much of his primary and secondary education. Defendants are the Indiana Department of Education and several of its administrative agencies and employees ("State Defendants"), as well as the New Albany-Floyd County Consolidated School Corporation and several of its employees ("Local Defendants"). Marc and his mother, plaintiff Brenda Kemp, have sued directly under the IDEA and also under section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and under 42 U.S.C. § 1983. They assert the following claims asserting the rights of both Marc and his mother over many years beginning when Marc was in the second grade.
• Count 1: a direct IDEA claim against the Local Defendants for various failures to comply with the IDEA.
• Count 2: § 504 against the Local Defendants for discriminating against Marc in providing regular and special education services.
• Count 3: § 1983 against the Local Defendants for various failures to comply with the IDEA.
• Count 4: § 1983 and § 504 against the State Defendants for various failures to comply with the IDEA.
• Count 5: a direct IDEA claim against the Independent Hearing Officer who denied plaintiffs' requested relief at an administrative hearing.
• Count 6: § 1983 against the State Defendants for conduct pursuant to "patterns and procedures" in violation of the IDEA.
• Count 7: § 1983 against the Independent Hearing Officer for failure to conduct an impartial hearing as required by the IDEA.
• Count 8: § 1983 and § 504 against all defendants based on various violations of the IDEA.
• Count 9: § 1983 against the individual Local Defendants in their individual capacities based on violations of the IDEA and the United States and Indiana Constitutions.
• Count 10: § 1983 against the individual State Defendants in their individual capacities based on violations of the IDEA and the United States and Indiana Constitutions.
• Count 11: § 504 against the Local Defendants in their individual capacities for retaliating against Marc's mother for asserting Marc's rights under the IDEA.
• Count 12: § 504 against the State Defendants in their individual capacities for retaliating against Marc's mother for asserting Marc's rights under the IDEA.
• Count 13: a direct IDEA claim against the Local Defendants in their individual capacities for violating certain written notice requirements of the IDEA.
• Count 14: § 504 against the State Defendants for discriminating against Marc in providing special education services.
All defendants have moved to dismiss Marc's mother as a party for lack of standing. The Local Defendants have moved to dismiss the complaint for failure to state a claim against them cognizable under the IDEA, § 504, or § 1983. The State Defendants have moved for summary judgment on all claims against them. For reasons explained below, the motions to dismiss the claims of Ms. Kemp are granted in part and denied in part. The State Defendants' motion for summary judgment on all claims against them is granted. The Local Defendants' motion to dismiss is granted with respect to individual Local Defendants Riekhof, McClure, Todd and South, who were involved only with Marc's elementary education. The Local Defendants' motion to dismiss is granted in part and denied in part with respect to the other individual Local Defendants and the claims against the District. The following claims survive against the Local Defendants:
• Count 1: against the District under the IDEA.
• Count 2: against the District under § 504.
• Counts 3, 8, and 9: against the District and several individual Local Defendants under § 1983 based on Marc's high school education.
Factual and Legal Background
The IDEA requires as a condition for receipt of certain federal funds that states provide to all children with disabilities a "free appropriate public education" ("FAPE"). 20 U.S.C. § 1412(a)(1). Under the IDEA, the education provided by the state must be tailored to the individual needs of the child and must be "reasonably calculated" to result in meaningful educational benefit. Board of Education v. Rowley, 458 U.S. 176, 181, 204 (1982). To accomplish these goals, the IDEA mandates that a "case conference" be convened at least annually for every child with a disability. In the case conference, the student's parents or guardians, teachers, and other specialists meet to document the student's limitations and needs, to set individualized educational goals, and to incorporate these in a written plan for each school year outlining the services and instruction necessary to achieve the goals. This plan is called an Individualized Education Program ("IEP"). See 20 U.S.C. § 1414(d). The IDEA mandates that an IEP be developed and revised at least annually for every child with a disability. The IDEA does not rely on parents to come forward to ask for help. Under the "Child Find" provision of the IDEA, states must ensure that all children residing in the state who are in need of special education are "identified, located, and evaluated." 20 U.S.C. § 1412(a)(3)(A).In 1990, toward the end of second grade, Marc enrolled at Slate Run Elementary School in New Albany, Indiana. He was determined eligible for special education as a child with a learning disability. He attended several elementary schools within the New Albany-Floyd County School Corporation ("the District") over the next few years. He received special education and related services each of these years. It appears that IEPs were in place for Marc during these years, but the parties dispute whether the IEPs complied with the IDEA.
Despite being unable to read at grade level, Marc was promoted with his peers to fourth and fifth grades. Ms. Kemp was unsatisfied with her son's educational progress. In 1992, she decided to enroll him in The de Paul School, a private school in Louisville, Kentucky, emphasizing special education, especially for students with dyslexia. Marc attended The de Paul School from fifth through eighth grades.
In the fall of 1996, Ms. Kemp re-enrolled Marc in the District at Hazelwood Junior High for ninth grade. The parties disagree as to whether Hazelwood personnel were aware or made aware of Marc's disability or of his previous receipt of special education services in the District. For present purposes, the court must assume that he was not specifically identified as having a disability upon re-enrollment, that no IEP was developed for him, and that no case conference was convened. Marc showed signs of educational progress while at Hazelwood, though the parties disagree as to whether this progress was attributable to education at Hazelwood or was a residual effect of his years at The de Paul School.
From Hazelwood, Marc went on to New Albany High School. Unfortunately, his high school career was marked by pervasive absenteeism and steadily declining performance, and ultimately by failing grades. The parties dispute whether this record was attributable solely to his disability and other illnesses, or whether Marc also lacked motivation for reasons unrelated to his learning disability. As at Hazelwood, no IEP was developed for Marc at New Albany High School. The parties dispute whether Ms. Kemp alerted school personnel to Marc's learning disability.
In the spring of 2000, when he was eighteen years old and had failed many courses in the eleventh grade, Ms. Kemp arranged to have Marc evaluated at the Children's Resource Group in Indianapolis. The evaluation confirmed a significant language-based learning disability.
In July 2000, Ms. Kemp filed a complaint with the Department of Exceptional Learners ("DEL"), an agency of the Indiana Department of Education ("IDOE"), alleging that the District had committed numerous violations of Indiana state administrative regulations adopted to implement the IDEA. The DEL found that Marc had been eligible for and had received special education services in his grade school years within the District and that he had never been determined ineligible. Therefore, when Marc enrolled in ninth grade, the District was required by law to convene a case conference and to re-evaluate Marc to determine if he still needed special education services. The DEL found that the District's failure to take either step violated several state regulations. See 511 I.A.C. §§ 7-12-1(g)(5); 7-10-3(o); 7-3-23; and 7-4-1(b) (repealed 2000).
The DEL directed the District to convene a case conference, to re-evaluate Marc, and to develop an IEP with corrective measures specified by the DEL aimed at remedying the effects of the District's violations. In August 2000, Marc, his mother, and their counsel met with District personnel to develop an IEP. An IEP with corrective measures was developed for the 2000-01 school year, but the parties now dispute whether it complied with the IDEA. Lacking confidence that the corrective measures contained in the IEP would be effective, Marc withdrew from New Albany High School without graduating. In June 2001, Marc enrolled in a non-credit high school equivalency test prep course at Landmark College in Vermont. In the fall of 2001, he passed the test and earned a high school equivalency diploma.
In August 2002, Ms. Kemp contacted IDOE alleging a variety of state and federal law violations on the part of the District. She requested a due process hearing pursuant to 511 I.A.C. § 7-30-3. The due process hearing took place in November 2002. Independent Hearing Officer ("IHO") Jerry Colglazier adopted the findings of the DEL and further determined:
• The District had developed adequate IEPs for Marc in second through fourth grade and he had received a FAPE during those years.
• The District denied Marc a FAPE upon Marc's return to the District in ninth grade by not convening a case conference, not identifying Marc as a student with a disability, and not developing an IEP.
• Despite the denial of a FAPE, the District did provide educational benefits to Marc in the ninth and tenth grade.
• The IEP eventually developed by the District pursuant to the order of the IDOE was reasonably calculated to provide educational benefit and its corrective measures "provided a remedy for the denial of a FAPE."
• Marc was therefore not entitled to reimbursement for the cost of either his years at The de Paul School or his attendance at Landmark College.
Plaintiffs appealed to the State Board of Special Education Appeals ("BSEA") and the BSEA upheld the IHO's decision. Plaintiffs then filed this suit. This court has jurisdiction pursuant to 20 U.S.C. § 1415(i)(3)(A) and 28 U.S.C. § 1331.
Discussion
I. Standing of Ms. Kemp
In plaintiffs' thrice-amended fourteen-count complaint, Ms. Kemp has brought suit as Marc's parent, as herself individually, and in exercise of Marc's Power of Attorney. All of the defendants argue that Ms. Kemp lacks standing to bring suit as a parent on Marc's behalf because Marc is now an adult and there has been no showing that he is incompetent or otherwise incapable of asserting his own legal interests.
The IDEA expressly grants a private right of action to parents for violations of the procedural safeguards of the IDEA. 20 U.S.C. § 1415(f), (g) (i); Honig v. Doe, 484 U.S. 305, 312 (1988). Ms. Kemp has alleged that the defendants failed to identify and evaluate Marc regarding his need of special education services, failed to provide him with an IEP, and failed to convene required case conferences. These alleged actions violate the rights of both parent and child under the IDEA. However, the IDEA provides that a state "may provide that, when a child with a disability reaches the age of majority . . . all other rights accorded to parents under this subchapter transfer to the child." 20 U.S.C. § 1415(m)(1). Indiana has so provided. Indiana's "Article 7" regulations implementing the IDEA state that unless a parent has been appointed the child's legal guardian, "when a student attains eighteen (18) years of age, all of the rights that were formerly provided to the student's parents under this article . . . shall transfer to the student." 511 I.A.C. § 7-28-4(a). Under this general rule, since there is no claim that Ms. Kemp has been appointed Marc's guardian, her rights under the IDEA and whatever measure of standing they conferred were transferred to Marc on his 18th birthday pursuant to § 1415(m)(1) and the corresponding Indiana administrative rule.
Plaintiffs argue that Marc's case falls under an exception to the general rule. Section 1415(m)(2) provides that if a child with a disability who is not incompetent has reached majority age "but is determined not to have the ability to provide informed consent with respect to [his] educational program . . . the State shall establish procedures for appointing the parent of the child . . . to represent the educational interests of the child." The two pertinent requirements in this exception are that (1) the student has been determined to be unable to provide informed consent, and (2) the State has established procedures for appointing the parent as representative. Ms. Kemp relies on Indiana Code § 29-3-1-5, the Indiana statute authorizing a durable power of attorney executed by an incapacitated person before becoming incapacitated. She argues that this provision is such an established procedure within the meaning of § 1415(m)(2). She also argues that because Marc qualifies as an "incapacitated person" under Indiana law, he has been "determined" unable to provide informed consent under § 1415(m)(2).
The court is not persuaded. First, Indiana's durable power of attorney statute is not a procedural provision enacted pursuant to the enabling language of § 1415(m)(2). Second, there has been no showing that Marc is "incapacitated" under Indiana's definition of that term or that he has been determined "not to have the ability to provide informed consent with respect to [his] educational program." Under Indiana Code § 29-3-1-7.5, the definition of an incapacitated person includes "an individual who cannot be located upon reasonable inquiry." Ms. Kemp argues that "Marc is in the military, and he is unable to be reached for long periods of time, and his whereabouts while in the military theater may make him unavailable to pursue his claims personally" (emphasis added). Such speculation falls short of establishing that Marc "cannot" be located upon reasonable inquiry.
Accordingly, Ms. Kemp lacks standing to bring claims for injuries allegedly suffered only by Marc. Insofar as Marc has granted her a Power of Attorney, however, she can represent his interests and act on his behalf without being herself a named party. The Local Defendants' motion to dismiss Ms. Kemp for lack of standing is granted for all claims alleging injury only to Marc. The motion is denied in other respects; Ms. Kemp has standing to bring her claims of unlawful retaliation under § 504 of the Rehabilitation Act, which allege injuries suffered by herself. As explained below, however, on the merits these claims do not survive the State Defendants' motion for summary judgment or the Local Defendants' motion to dismiss.
Plaintiffs' response brief includes a suggestion that the defense standing motions are sanctionable under Rule 11 of the Federal Rules of Civil Procedure. The suggestion is groundless on the merits, but it also fails to use the correct procedure, which requires a 21-day "warning-shot" letter. See Fed.R.Civ.P. 11(c)(1)(A). Plaintiffs' counsel is familiar with this procedure from other litigation in which the same defense counsel have served her with such a letter.
II. Local Defendants' Motion to Dismiss for Failure to State a Claim
The Local Defendants (the District and its employees) have moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure all of the counts of the fourteen-count complaint that apply to them. They assert qualified immunity from suit where plaintiffs have sought unavailable remedies. They further assert that plaintiffs have failed to plead essential elements of their § 504 and § 1983 claims. The individual employees assert a general qualified immunity to liability under all of the counts. Finally, the Local Defendants raise untimeliness as an affirmative defense to liability for many of the alleged claims.
A. Standard for Dismissal
In ruling on a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, the court must assume as true all well-pleaded facts set forth in the complaint, construing the allegations liberally and drawing all reasonable inferences in the light most favorable to the plaintiff. Forseth v. Village of Sussex, 199 F.3d 363, 368 (7th Cir. 2000). Under the liberal notice pleading standard in federal civil actions, the plaintiff is entitled to the benefit not only of his allegations but of any other facts he might assert that are not inconsistent with his allegations. Thus, in responding to a motion for judgment on the pleadings, a plaintiff may posit new facts in his brief and, so long as they are not inconsistent with his complaint, the court must assume they are true for purposes of deciding the motion. See, e.g., Trevino v. Union Pacific Railroad Co., 916 F.2d 1230, 1239 (7th Cir. 1990) (reversing dismissal). Defendants are entitled to dismissal only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Chaney v. Suburban Bus Division, 52 F.3d 623, 626-27 (7th Cir. 1995). Nevertheless, a plaintiff may still plead himself out of court if the complaint includes particulars that show he cannot possibly be entitled to the relief he seeks. Warzon v. Drew, 60 F.3d 1234, 1239 (7th Cir. 1995), citing Thomas v. Farley, 31 F.3d 557, 558-59 (7th Cir. 1994).
B. Unavailable Remedies
In counts 1, 3, 8, 9, and 13, plaintiffs seek money damages for alleged IDEA violations. Money damages are not available to plaintiffs under the IDEA. See Charlie F. v. Board of Education of Skokie School Dist. 68, 98 F.3d 989, 991 (7th Cir. 1996) (stating that the IDEA's "elaborate provision for educational services and payments to those who deliver them — is inconsistent with monetary awards to children and parents"), citing Anderson v. Thompson, 658 F.2d 1205 (7th Cir. 1981). In their motion, however, the Local Defendants appear to gather all of plaintiffs' requests for monetary relief under the rubric of damages. This does not reflect the law.
In School Committee of Town of Burlington v. Department of Education, 471 U.S. 359 (1985), the Supreme Court stated in clear terms that monetary awards to plaintiffs under the IDEA are authorized under certain circumstances in the form of retroactive reimbursement of expenditures for educational services made necessary by a state's failure to provide a free and appropriate public education. "We conclude that the Act authorizes such reimbursement." Id. at 369. The Court distinguished between reimbursement and damages: "[Defendant] characterizes reimbursement as `damages,' but that is simply not the case." Id. at 370. Here, plaintiffs seek both reimbursement and other forms of monetary relief. To the extent plaintiffs seek "monetary damages" (counts 3 and 9), "money damages" (counts 8 and 9), "damages" (counts 1 and 3), or "punitive damages" (counts 1, 3, 8, 9 and 13), as opposed to reimbursement or compensatory services, they seek relief that is not available under the IDEA.
This conclusion does not establish the broad shield of immunity to liability for the counts Local Defendants have identified. Counts 3, 8, and 9 are not pure IDEA claims. To the extent these counts state allegations against the Local Defendants, they are § 1983 claims based on alleged deprivations of plaintiffs' rights secured by the IDEA. Money damages are available under § 1983. Monell v. Department of Social Services, 436 U.S. 658, 712-13 (1978).
At this time, § 1983 is available to enforce the IDEA, at least in the Seventh Circuit. In Smith v. Robinson, the Supreme Court found that the detailed and comprehensive enforcement scheme of the IDEA's predecessor statute precluded use of § 1983 to enforce that statute. 468 U.S. 992, 1012-13, 1018 (1984). In response to Smith, Congress amended the statute in 1986. See Pub.L. No. 99-372, 100 Stat. 796 (1986). Section 1415( l) of the IDEA now provides, subject to an administrative exhaustion requirement, that:
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.20 U.S.C. § 1415( l). Although § 1983 is not identified specifically in the statute, the Seventh Circuit has held that the provision now codified as § 1415( l) "was enacted for the express purpose of ensuring that § 1983 claims would be available to enforce the IDEA." Marie O. v. Edgar, 131 F.3d 610, 622 (7th Cir. 1997). Defendants are not immune to suit under counts 3, 8, and 9 on the theory that plaintiffs seek an unavailable remedy.
Federal circuit courts are split as to whether § 1415( l) encompasses § 1983 and thereby overruled that portion of Smith disallowing the use of § 1983 to enforce the IDEA. Compare, e.g., Sellers v. School Board, 141 F.3d 524, 529-30 (4th Cir. 1998) (finding that § 1415( l) does not authorize suits under § 1983), with W.B. v. Matula, 67 F.3d 484, 494 (3d Cir. 1995) (finding that Congress "specifically intended" that IDEA violations be addressed by § 504 and § 1983). Despite this split, "a majority of the circuits have case law holding or at least implying that § 1983 suits may be based on IDEA violations." Padilla v. School District No. 1, 233 F.3d 1268, 1272 n. 5 (10th Cir. 2000) (holding that § 1415( l) does not authorize suits under § 1983).
Counts 1 and 13 seek money damages and are brought directly under the IDEA. The Local Defendants reason that since money damages are not available directly under the IDEA, they have qualified immunity to suit on these counts. Therefore, according to Local Defendants, plaintiffs have failed as a matter of law to state a claim upon which relief can be granted. The invocation of qualified immunity is something of a misnomer, however. The doctrine applies under § 1983 (and Bivens claims against federal officials) to protect a defendant from individual liability for money damages if a reasonable official in her position would not have understood that her actions would violate the law. On Counts 1 and 13, the issue is simply whether the relief being sought is available at all for claims brought directly under the IDEA. Money damages are not available for such claims, Charlie F., 98 F.3d at 991, but plaintiffs seek various other forms of relief in counts 1 and 13 which are available under the IDEA. Complaint ¶¶ 30, 148; see also Charlie F., 98 F.3d at 991-92 (governing law and nature of claim, rather than plaintiff's prayer for relief, dictate available relief).
Defendants rely on Scott C. v. Bethlehem Area School Dist., 2000 WL 1201345, *3 (E.D. Pa. Aug. 9, 2000), to support their argument for qualified immunity on IDEA claims against individual defendants. The court in Scott C. appears to have accepted that argument without focusing on the fact that employees of local school districts are not, in their individual capacities, proper defendants on IDEA claims at all. The statute imposes obligations on a "State educational agency, State agency, or local educational agency." 20 U.S.C. § 1415(a); see generally Bradley v. Arkansas Dept. of Educ., 301 F.3d 952, 957 n. 6 (8th Cir. 2002) ("We have found no authority, and the parties have not directed this Court to any authority, awarding such [educational] expenses against either state or local education officials. This is hardly surprising, inasmuch as the IDEA is devoid of textual support for such an award."). This rule under the IDEA is consistent with the Seventh Circuit's holding that individual employees are not proper defendants under § 504 of the Rehabilitation Act because they are not the recipients of the federal funds. Grzan v. Charter Hospital of Northwest Indiana, 104 F.3d 116, 120 (7th Cir. 1997).
The Local Defendants cannot be held liable for the particular remedy of money damages under counts 1 and 13. For count 1, this leaves claims against the District for compensatory education, reimbursement, injunctive and declaratory relief, and attorney fees. These are conventional remedies under the IDEA. On count 13, only claims for injunctive relief and attorney fees remain, but these are claims only against individual defendants in their individual capacities. Injunctive relief is not available against officials like these in their individual capacities, as distinct from their official capacities (which would be redundant if injunctive relief were imposed against the District under Count 1). An injunction enforcing the IDEA against a school employee in her individual capacity would order her, in the words of the complaint, to "comply with the requirements of the IDEA," or in other contexts more specifically to provide particular educational services for a student. Such an order against an individual in her individual capacity would apply even if the defendant were to retire, be fired, or change careers, which would have no purpose. This leaves only the request for attorney fees under Count 13. A claim for attorney fees alone will not support a claim of this nature. The IDEA authorizes attorney fee awards to a prevailing party, 20 U.S.C. § 1415(i)(3)(B), but the party seeking a fee award must first obtain relief under the IDEA. No such relief is available under Count 13, which is dismissed in its entirety for failure to state a claim upon which relief can be granted.
C. Rehabilitation Act § 504
Section 504 of the Rehabilitation Act of 1973 provides in pertinent part that "No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a).
Local Defendants contend that in counts 2, 8, and 11 plaintiffs have failed to plead essential elements of a claim under § 504. Counts 2 and 8 of the complaint assert § 504 claims against the District as well as District employees in their individual capacities. Count 8 also asserts a § 504 claim against the IHO and the IDOE. Count 11 asserts a § 504 claim for retaliation against District employees in their individual capacities. As explained below, plaintiffs have alleged the essential elements of their § 504 claims against the District in count 2 but not in count 8. All of their § 504 claims against the Local Defendants in their individual capacities fall short.
To survive a motion to dismiss a § 504 claim under Rule 12(b)(6), a plaintiff must establish that he could ultimately prove four elements: (1) plaintiff is an individual with a disability under the Act, (2) plaintiff is otherwise qualified for the benefit sought, (3) plaintiff was discriminated against solely by reason of his disability, and (4) the program or activity in question receives federal financial assistance. Grzan v. Charter Hospital of Northwest Indiana, 104 F.3d 116, 119 (7th Cir. 1997).
In count 2, plaintiffs alleged that Marc qualifies as an individual with a disability under the Rehabilitation Act, Complaint ¶ 39, satisfactorily pleading the first element of a § 504 claim. Plaintiffs also alleged that Marc was "otherwise qualified for participation in the public school programs offered by defendant school district." Complaint ¶ 40. This satisfies the second element. In count 2, plaintiffs are not alleging discrimination in violation of § 504 based on the Local Defendants' failure to provide Marc with necessary special education services under the IDEA. If this were the case, plaintiffs would fail at the second element, because without his disabilities, Marc would not be otherwise qualified for special education under the IDEA. See Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979) ("An otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap.") (emphasis added). Rather, plaintiffs base their § 504 claim in count 2 on defendants' alleged deprivation of Marc's "right to participate in a public school education and receive the same educational benefits as non-disabled students." Complaint ¶ 45.
Regarding the third element, the Seventh Circuit has observed that "Section 504 proscribes discrimination between the non-handicapped and the `otherwise qualified' handicapped." Grzan, 104 F.3d at 121. "Section 504, by its very terms, does not cover discrimination among similarly handicapped persons. . . . If others with the same handicap do not suffer the discrimination, then the discrimination does not result solely by reason of [the] handicap." Id. Accordingly, plaintiffs have alleged in count 2 that "Plaintiff Marc C. Weyrick was denied the benefits of the public school program solely because of his handicap. Other handicapped students . . . were denied benefits of the public school program, while those without . . . disabilities were allowed to enjoy the benefits of a public school education that [were] denied to Plaintiff Marc C. Weyrick and to all those similarly situated." Complaint ¶¶ 42, 43. This allegation satisfactorily pleads the third element.
Finally, plaintiffs allege that "Defendant local school district receives federal financial assistance." Complaint ¶ 41. This allegation satisfies the fourth element as against the District. Because plaintiffs have sufficiently alleged all four elements of a cause of action against the District under count 2, the Local Defendants' motion to dismiss plaintiffs' § 504 claims against the District is denied for count 2.
In count 8, by contrast, plaintiffs assert a § 504 discrimination claim against the District for "refusing to provide special education teachers and educational aides" who are trained in "methods of instruction that must be in place for dyslexic children like Marc C. Weyrick to learn to read and write." Complaint ¶ 72. Without his disability, Marc would not be "otherwise qualified" for the special education instructors and services in question. Count 8 fails at the second element to state a viable claim under § 504.
The complaint also does not state a cause of action under § 504 against the employees in their individual capacities. Under controlling Seventh Circuit precedent, those claims lack the fourth element. The complaint does not and could not allege that any individual defendant is a recipient of federal funds; they are only employees of entities that receive federal funds. "Employees of the recipients of federal financial assistance are not in themselves the recipients of such assistance. Absent specific allegations to the contrary, we can only assume that as an employee who merely was paid a wage or salary, [an employee] was never in such a position and thus was never a recipient of federal funds." Grzan, 104 F.3d at 120 (affirming dismissal of § 504 claim against employee of recipient of federal funds). The Local Defendants' motion to dismiss plaintiffs' § 504 claims in Counts 2, 8 and 11 is granted insofar as these counts sue the District employees in their individual capacities.
Local Defendants argue that in counts 3, 8 and 9, plaintiffs fail to state a claim under 42 U.S.C. § 1983 because (1) they do not identify the specific statutory or constitutional violation suffered, and (2) they fail to plead essential elements of a § 1983 cause of action.
Defendants' first contention is incorrect, at least with respect to statutory violations. Counts 3 and 9 incorporate by reference paragraphs 2 through 29 of the complaint. These paragraphs contain the general allegations of the complaint and clearly allege violations of the IDEA. The fact that these allegations are not expressly reproduced in the specific counts is immaterial. "We examine the complaint as a whole." Quranic Literacy Institute v. Boim, 291 F.3d 1000, 1008 (7th Cir. 2002). Count 8 contains references to "a free and appropriate education at public expense (`FAPE') as required by . . . federal law," as well as "FAPE, pursuant to IDEA," and more than two dozen uses of the phrase "FAPE as required by . . . federal law." There are at least six references to specific statutory provisions of the IDEA in the counts themselves. See Complaint ¶¶ 79, 80, 95, 102, 113. Plaintiffs obviously are invoking § 1983 to enforce violations of their federal rights under the IDEA. The Local Defendants have not otherwise challenged plaintiffs' § 1983 claims against the District for failure to allege essential elements. These claims survive against the District in counts 3 and 8. The District is not named in count 9.
Plaintiffs also claim that defendants violated Marc's "right to a FAPE as guaranteed by federal and state laws for the education of handicapped children, and as protected by the Fourteenth Amendment to the United States Constitution and [the Indiana Constitution]." Complaint ¶ 122. However, even a generous reading of the complaint, as is required, fails to reveal a cognizable state or federal constitutional claim. In response to the motion to dismiss, plaintiffs have referred only generically to "constitutional rights." They have failed to develop an argument supporting such a claim, so any such claims are waived. Teumer v. General Motors Corp., 34 F.3d 542, 545-46 (7th Cir. 1994).
Local Defendants also challenge plaintiffs' claims against the District employees in their individual capacities for failure to adequately allege essential elements of a § 1983 claim. The Local Defendants contend first that plaintiffs must allege knowing, willful, or at least reckless action on the part of the individual defendants.
Section 1983 provides for civil remedies against a person who "subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. . . ." It is well established that a § 1983 claim against an individual defendant requires proof of individual causation and responsibility for the alleged deprivation of federal rights. E.g., Baucher v. Eastern Indiana Production Credit Ass'n, 906 F.2d 332, 334 (7th Cir. 1990) (for liability to arise under § 1983, "the individual must . . . have caused the plaintiff's loss"); Schultz v. Baumgart, 738 F.2d 231, 238 (7th Cir. 1984); Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983).
Reading the complaint generously, it alleges that the individual Local Defendants contributed to the alleged deprivations of Marc's rights under the IDEA. In general terms, it also alleges deliberate violations. At this stage of the case, the court must give plaintiff the benefit of the allegations in the complaint. The Local Defendants' briefs suggest that it is simply improper and unfair to allow § 1983 claims against them for damages in their individual capacities. That position was persuasive for the Supreme Court in Smith v. Robinson, of course, especially in light of the comprehensive remedial scheme established under the IDEA. Congress amended the statute, however, and the Seventh Circuit has allowed § 1983 claims based on IDEA violations. Marie O., 131 F.3d at 622. Perhaps the principal difference between the IDEA remedies and the use of § 1983 is the potential for individual liability for damages from school district officials and employees. Even if it seems unfair or unwise to subject individual teachers, counselors, psychologists, and principals to litigation and potential liability, that is the plainly foreseeable result of the 1986 statutory amendments, at least as extended to § 1983 in Marie O. This court is not free to apply the rule of Smith v. Robinson.
The Local Defendants also argue that they are entitled to qualified immunity on the § 1983 claims. As noted, the complaint alleges their individual responsibility for deliberate deprivations of IDEA rights. The defendants hotly dispute these allegations, but on a Rule 12(b)(6) motion, the court must give plaintiffs the benefit of those allegations in the complaint. Based on the allegations, the court must assume that the individual local defendants took deliberate actions that reasonable educators in their positions would have recognized would violate the IDEA. Whether plaintiffs can prove these allegations is a question for a later time. For now, these claims against the individual Local Defendants contained in parts of counts 3 and 8, and all of count 9 survive the motion to dismiss, apart from claims arising from Marc's elementary years, which are clearly barred by any applicable statute of limitations, as discussed below.
E. Official Capacity Claims
Plaintiffs sue all of the individual Local Defendants in both their individual and official capacities. The individual Local Defendants argue that plaintiffs' claims against them in their official capacities must be dismissed. The court agrees. Official capacity actions are redundant where, as here, the entity for which the individuals worked itself is named. "As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166 (1985). Accordingly, plaintiffs' claims against the individual Local Defendants in their official capacities are dismissed because the employer — the District — is also named in each surviving claim where individual Local Defendants are named.
F. Statutes of Limitations Under the IDEA, § 1983, and § 504
The Local Defendants argue that many of plaintiffs' claims are time-barred. They argue that any relief for plaintiffs' claims brought directly under the IDEA is limited to events within the two years preceding plaintiffs' request for a due process hearing. They argue that plaintiffs' § 504 and § 1983 claims are limited to claims accruing within two years of their filing the present action with this court. The court finds that the claims arising from Marc's elementary years are barred so clearly as a matter of law that they should be dismissed at this stage, but that later claims are not necessarily barred.
1. The IDEA Claims
Defendants contend that the applicable limitations period for IDEA claims in Indiana bars any consideration of claims accruing before the two years preceding plaintiffs' request for a due process hearing. Defendants may be correct, and may eventually prove that they are correct, but their argument is insufficient to support a motion to dismiss all potentially time-barred claims at this stage of the litigation.
The IDEA does not provide a limitations period for filing a civil action. When a federal statute is silent with respect to the applicable limitations period, "we generally borrow a limitations period from an analogous state cause of action." Powers v. Indiana Department of Education, 61 F.3d 552, 556 (7th Cir. 1995) (applying 30-day limit to request for attorney fees under IDEA), citing Wilson v. Garcia, 471 U.S. 261, 266-67 (1985), and Dell v. Board of Education, 32 F.3d 1053, 1058 (7th Cir. 1994). Defendants argue that the analogous limitations period in Indiana is found in Indiana Code § 34-11-2-4, which sets a two-year limitations period for personal injury actions. Defendants point to a recent decision by the Indiana BSEA, the state agency that reviews due process decisions made by local hearing officers pursuant to the IDEA, expressly adopting Indiana Code § 34-11-2-4 as the appropriately analogous limitations period for IDEA claims. Duneland School Corp. and Porter County Educational Interlocal, 104 L.R.P. 947 (Ind. BSEA Dec. 16, 2003).
Accordingly, the court has not considered whether any shorter period might be borrowed from Indiana or federal law. Cf. Powers, 61 F.3d at 557-58 (applying Indiana's 30-day limit for seeking judicial review of administrative decision to request for attorney fees under IDEA); Dell v. Board of Education, 32 F.3d at 1059 (applying 120-day limit under Illinois School Code); id. at n. 15 (collecting cases with widely varying results from other circuits).
A federal court may borrow a state limitations periods for a federal cause of action only if "application of the state statute would not be inconsistent with underlying federal policies." County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 240 (1985). Consistency with underlying federal policies was not a question before the BSEA in Duneland. Given the IDEA's emphasis on prompt resolution of educational issues, however, the court is confident that a two-year statute of limitations is not too short to be consistent with federal policies. See Powers, 61 F.3d at 556 (applying 30-day limit to attorney fee dispute: "The general policy under the IDEA is to resolve educational disputes as quickly as possible."); Dell, 32 F.3d at 1060 (applying 120-day limit: "to succeed in safeguarding the student, the IDEA's policies encourage the prompt, rather than protracted, resolution of disputes concerning the disabled student's education").
To enforce a limitations period in a given case, a court must decide the threshold question of accrual. Although a state limitations period may be borrowed, the accrual of a federal cause of action is a matter of federal law. Wilson v. Giesen, 956 F.2d 738, 740 (7th Cir. 1992). Absent overriding considerations, a federal claim accrues on the date that the plaintiff discovers, or should have discovered, that he or she has been injured. Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1991). In this case, the alleged injuries span in excess of a decade, but they can easily be divided into two periods for purposes of determining accrual. Marc attended District elementary schools for several years before transferring to The de Paul School for grades five through eight. After that interlude, he returned to District schools for the remainder of his middle and high school years. These two periods in the District schools are distinct, not only by virtue of the private-school interlude, but also because of key substantive differences relevant to accrual.
In the elementary school period, Marc had been identified and evaluated as a student with a disability in need of an IEP, and IEPs were developed and in place during those years. Dissatisfied with his lack of progress in the District schools, Ms. Kemp removed him and enrolled him at The de Paul School. Paragraph 15 of the complaint states: "[B]ecause of Marc's appalling lack of educational progress . . . it became clear to parent Brenda Kemp that the School did not have the expertise, training, and financial resources." Thus, plaintiffs had clearly discovered an injury. Plaintiffs assert that at that time, Ms. Kemp "did not know what her rights were." Complaint ¶ 15. But a plaintiff's subjective and correct understanding of her legal rights is not the test for accrual. Otherwise a claim might never accrue and the limitations clock might never start to run. In general, a claim accrues when a plaintiff gains knowledge of the injury that implicates the legal rights, regardless of her knowledge of the rights themselves. See Tolston v. National Railroad Passenger Corp., 102 F.3d 863, 865 (7th Cir. 1996) ("The key [to accrual] is knowledge of the injury; . . . it does not matter whether the plaintiff realizes that a legal wrong has occurred.").
Plaintiffs' complaint establishes that they had knowledge of the educational injuries they now assert as violations of their rights under the IDEA. Thus, a denial-of-FAPE claim had accrued by the time Ms. Kemp withdrew Marc from the District and enrolled him in The de Paul School in 1992. That is ten years before plaintiffs filed a due process request on August 29, 2002. The court need not decide on a specific limitations period in this instance. Ten years is clearly far beyond any that might be deemed appropriate. Permitting litigation of claims ten years after they accrued, and after many events have occurred to influence the child's education and development, would be inconsistent with the policy goals of the IDEA. Thus, any state limitations period long enough to encompass plaintiffs' elementary school claims would be "inconsistent with the underlying federal policies," County of Oneida, 470 U.S. 226 at 240, and could not be borrowed by this court. While untimeliness is an affirmative defense and plaintiffs are not required to plead the timeliness of their suit, Tregenza v. Great American Communications Co., 12 F.3d 717, 718 (7th Cir. 1993), citing Gomez v. Toledo, 446 U.S. 635, 640 (1980), a plaintiff can, as here, plead herself out of court if she alleges facts that make clear that her suit is time-barred. Tregenza, 12 F.3d at 718; Andrews v. Consolidated Rail Corp., 831 F.2d 678, 683 (7th Cir. 1987) (upholding dismissal of claim on statute of limitations grounds at Rule 12(b)(6) stage). All of plaintiffs' claims related to alleged injuries suffered during Marc's elementary school years, including requests for reimbursement for Marc's years at The de Paul School, are barred.
The same cannot be said, at least at this stage, of plaintiffs' claims arising from Marc's secondary education in District schools. They are less removed in time, and the nature of the injuries is different. When Marc returned to the District in the ninth grade he was not identified or evaluated as having a disability. No case conference was convened, and no IEP was developed or implemented until plaintiffs complained very late in Marc's high school years. Plaintiffs have alleged injuries resulting from Defendants' total failure to assist Marc throughout these years.
In adopting the two-year limitations period in Duneland, the Indiana BSEA expressly adopted the hearing officer's observation that the two-year limit was appropriate "unless there was a continuing violation . . . which would stop the running of the statute of limitations." The court agrees that the continuing violation theory could avoid a statute of limitations defense to an IDEA claim in a proper case. To be clear, plaintiffs have not made a "continuing violation" argument at this stage. However, as noted above, a statute of limitations provides an affirmative defense. A plaintiff is not required to negate an affirmative defense in her complaint. A defendant is entitled to dismissal under Rule 12(b)(6) only where there is no set of facts consistent with the allegations in the complaint that would entitle the plaintiff to the relief he seeks. Here, there are allegations in the complaint relating to Marc's latter period in the District from which it might be possible to infer a continuing violation of the sort that might render timely an otherwise untimely action.
The continuing violation doctrine permits a plaintiff to pursue a claim that began outside the limitations period "if the plaintiff's injury becomes apparent only in light of later events or if it is unreasonable to require or even permit the plaintiff to sue separately over every incident of the defendant's unlawful conduct." Macklin v. United States, 300 F.3d 814, 824 (7th Cir. 2002); Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir. 2001); Hardin v. S.C. Johnson Son, Inc., 167 F.3d 340, 344 (7th Cir. 1999). Plaintiffs have alleged facts that could be consistent with an injury becoming apparent only in light of later events: they have alleged that Marc's adequate educational performance in ninth grade and part of tenth grade was due to the residual benefits of his tenure at The de Paul School. Complaint ¶ 15. This allegation could, if true, constitute a reasonable explanation why plaintiffs' discovery of the injury was delayed: the alleged injury — the failure to educate Marc — was masked for a period of time by the lingering effect of educational benefits received elsewhere.
Plaintiffs have also made allegations that could permit a finding that it is unreasonable to require them to sue separately over every incident of Defendants' unlawful conduct. This reflects a critical aspect of the continuing violation doctrine: namely, it requires a continuing violation. It does not apply where a single violation sets in motion merely a continuing injury. Clark v. City of Braidwood, 318 F.3d 764, 766-67 (7th Cir. 2003). But the IDEA duties at issue here are ongoing. Evaluation, case conferences, and IEP development are required at a minimum annually, and more frequently if needed. Thus, plaintiffs' allegations of at least three years of continuous inaction with respect to Marc's disability might support a finding of a continuing violation.
The fact that the case is here on a Rule 12(b)(6) motion to dismiss is critical. The court expresses no opinion as to whether plaintiffs could establish at later stages of litigation that the circumstances triggering the continuing violation doctrine exist in fact. However, even if plaintiffs' complaint were devoid of a single fact triggering the continuing violations doctrine, plaintiffs are not required to plead the timeliness of their suit. Tregenza, 12 F.3d at 718, citing Gomez, 446 U.S. at 640. At this stage, the question is only whether there is any possibility that a set of facts exists that could overcome the statute of limitations defense. Early v. Bankers Life and Casualty Co., 959 F.2d 75, 80 (7th Cir. 1992). The court cannot rule out that possibility. And while a plaintiff can plead herself out of court if she alleges facts that make clear that her suit is time-barred, Tregenza, 12 F.3d at 718, plaintiffs have not done this with respect to Marc's secondary education, as they did with respect to his elementary years. The Local Defendants' motion to dismiss plaintiffs' IDEA claims for untimeliness is denied insofar as it applies to claims related to events beginning with Marc's return to District schools in the ninth grade.
2. The § 504 and § 1983 Claims
The limitations period for claims brought under § 1983 is the statute of limitations for personal injury claims in the state where the alleged injury occurred. Wilson v. Garcia, 471 U.S. 261, 279-80 (1985); Hondo, Inc. v. Sterling, 21 F.3d 775, 778 (7th Cir. 1994). In Indiana, the § 1983 limitations period is two years. Ind. Code § 34-11-2-4; Brademas v. Indiana Housing Finance Authority, 354 F.3d 681, 687 (7th Cir. 2004). For claims under § 504, federal courts "borrow" the most analogous state limitation. Andrews, 831 F.2d at 683 (borrowing two-year limit for employment claims where § 504 plaintiff claimed discrimination in employment). The court sees no reason not to extend the reasoning of Wilson v. Garcia and to apply the two-year limit for personal injury claims to other § 504 claims, or at least to claims like those asserted here for inadequate education. In any event, plaintiffs have not argued that any other longer specific statute of limitations applies.
Plaintiffs brought this action on May 16, 2003. Therefore, defendants argue, all of plaintiffs' § 1983 or § 504 claims accruing before May 16, 2001, are time barred. Plaintiffs respond that "there is no bar to the claims being brought forward because the due process exhaustion requirements of IDEA cause a delay in arriving in federal court." Pl. Reply Br. at 16. This is essentially an argument based on the doctrine of equitable tolling.
The doctrine of equitable tolling holds that "a person is not required to sue within the statutory period if he cannot in the circumstances reasonably be expected to do so." Central States, Southeast Southwest Areas Pension Fund v. Slotky, 956 F.2d 1369, 1376 (7th Cir. 1992). However, this is a federal tolling doctrine. The Supreme Court has held as a general rule that state, not federal, tolling provisions apply to state statutes of limitations borrowed for § 1983 suits. Board of Regents v. Tomanio, 446 U.S. 478, 484-86 (1980). Nonetheless, Indiana tolling law is inapplicable here because, as the Court in Tomanio explained, the general rule of applying state tolling provisions is excepted where the federal right "is structured to require previous resort to state proceedings, so that the claim may not even be maintained in federal court unless such resort be had." 446 U.S. at 490. That is the case here. The IDEA requires administrative exhaustion before Rehabilitation Act or § 1983 claims premised on IDEA violations can be brought in state or federal court. 20 U.S.C. § 1415( l); Marie O., 131 F.3d at 622.
For these reasons, the federal doctrine of equitable tolling applies, and it suggests that plaintiffs' § 1983 and § 504 claims may not be limited to claims accruing within two years of their filing this action, as defendants argue. Rather, they are at most limited to within two years of when plaintiffs requested a due process hearing, as they were required to do under § 1415( l). They made this request on August 29, 2002. Applying equitable tolling, plaintiffs' § 1983 and § 504 claims accruing on or after August 29, 2000, are timely filed in this court.
For earlier claims based on Marc's secondary education, the continuing violation doctrine could be as relevant here as it was with plaintiffs' pure IDEA claims discussed above, primarily because a single set of factual allegations is involved. And the same analysis applies. At this stage of the litigation, the question is only whether there is any possibility that a set of facts exists that if proven would establish a defense to the statute of limitations. Early, 959 F.2d at 80. Based on the possibility of a continuing violation, the court cannot rule out that possibility. The Local Defendants' motion to dismiss plaintiffs' § 504 and § 1983 claims for untimeliness is denied insofar as it applies to claims related to Marc's secondary education.
To summarize the rulings on the Local Defendants' motion to dismiss:
• Money damages are not available under the pure IDEA claim in count 1, though equitable relief may be available against the District.
• Count 13, an IDEA claim against the individual Local Defendants, is dismissed for failure to state a claim.
• Plaintiffs' § 504 claims against the individual Local Defendants in their individual capacities are dismissed for failure to state a claim. This eliminates the relevant portions of counts 2 and 8, and all of count 11.
• The Local Defendants' motion to dismiss the § 1983 claims against them in their individual capacities is denied, apart from claims arising before Marc's return to District schools in the ninth grade, which include all § 1983 claims against defendants Riekhof, McClure, Todd and South.
• All claims in this lawsuit related to alleged injuries occurring before Marc Weyrick's return to District schools in the ninth grade are barred by the statute of limitations.
• The Local Defendants' motion to dismiss on statutes of limitations is denied with regard to all claims arising after Marc returned to District schools in the ninth grade.
• All claims against the individual Local Defendant employees in their official capacities are dismissed as redundant of claims against the District.
• All of plaintiffs' state and federal constitutional claims are dismissed for failure to state a claim.
• The surviving claims against the Local Defendants are as follows:
• Count 1: against the District under the IDEA for equitable relief, including reimbursement.
• Count 2: against the District under § 504.
• Counts 3, 8 and 9: against the District and individual Local Defendants under § 1983 for claims arising after Marc returned to the District schools in the ninth grade.
III. State Defendants' Motion for Summary Judgment
The State Defendants in this case are the IDOE itself; IDOE employees McDowell, Reed, Marra, Holmes, and Bowman; the state BSEA; BSEA employees Dewes, Quist, and Therrein; and IHO Colglazier. The State Defendants have moved for summary judgment on all claims against them on several grounds. They argue that plaintiffs failed to exhaust their administrative remedies before bringing suit against the State Defendants. They assert quasi-judicial immunity. They argue that in several counts plaintiffs have failed to raise a genuine issue of material fact. Finally, they invoke the Eleventh Amendment as barring this court's jurisdiction over § 1983 actions against them. The IDEA requires a waiver of Eleventh Amendment immunity as a condition for a state's acceptance of federal funds for the program. 20 U.S.C. § 1403(a); Board of Educ. of Oak Park and River Forest High School Dist. No. 200 v. Kelly E., 207 F.3d 931, 935 (7th Cir. 1999) (holding that waiver is valid under Congress's spending power). The court need not address whether this waiver extends to IDEA-based § 504 and § 1983 claims; the first three arguments support summary judgment in favor of all of the State Defendants.
A. Standard for Summary Judgment
Summary judgment is warranted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Only genuine disputes over material facts can prevent a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the suit under the governing law, and a dispute about a material fact is genuine only if the evidence is such that a reasonable trier of fact could find for the non-moving party. Id.
B. Exhaustion of Administrative Remedies
Plaintiffs did not raise claims against any of the State Defendants at the administrative review level. State Defendants argue that all of plaintiffs' claims against them should therefore be dismissed for failure to exhaust administrative remedies.
Before bringing a civil suit based on violations of the IDEA, a claimant generally is required to exhaust available IDEA administrative due process hearing and appeal procedures. 20 U.S.C. § 1415( l). This exhaustion requirement extends not only to claims brought directly under the IDEA but also to claims brought under "other Federal laws protecting the rights of children with disabilities . . . seeking relief that is also available" under the IDEA. Id. The Seventh Circuit has held that this exhaustion requirement encompasses all injuries for which the IDEA authorizes some remedy, without regard for the particular remedy desired by the claimant. Charlie F., 98 F.3d at 991-92. With very few exceptions, noted below as necessary, all of plaintiffs' alleged injuries are of a type for which the IDEA provides a remedy. Plaintiffs were therefore required to exhaust administrative remedies before filing an action with this court, unless some exception applies.
Plaintiffs' complaint alleges acts "that have both an educational source and an adverse educational consequence." Charlie F., 98 F.3d at 991-92. Thus, the damage done to Marc, "if proven, could in fact be remedied (in part at least) by services available under IDEA." Id.
Courts recognize some exceptions to the IDEA's general rule of administrative exhaustion, such as where exhaustion would be futile or inadequate. Honig, 484 U.S. at 326-27. The burden of demonstrating the futility or inadequacy of the administrative process rests with the party seeking to bypass that process. Id. at 327.
Plaintiffs have not presented a cogent argument to excuse them from IDEA exhaustion requirements. They have alleged numerous violations of the IDEA by various State Defendants, including failing to monitor the Local Defendants, arriving at substantively flawed decisions at the hearing and appeal stages, and in general failing their statutory duty to ensure that Marc received a FAPE. But such allegations, even if proven true, do not without more establish the futility or inadequacy of the administrative process.
The closest plaintiffs come to arguing to excuse administrative exhaustion based on futility or inadequacy are statements throughout the complaint and supporting briefs implying systemic flaws and patterns or practices of illegality in the state's procedures for implementing the IDEA. Courts have recognized that allegations of systemic flaws and patterns of illegality might support a finding of administrative futility or inadequacy and thus excuse administrative exhaustion under the IDEA. See Beth v. Carrol, 87 F.3d 80, 89 (3d Cir. 1996) (recognizing "systemic" deficiencies as possible exception to IDEA exhaustion requirement); Hoeft v. Tuscon Unified School Dist., 967 F.2d 1298, 1303-04 (9th Cir. 1992) (recognizing same in dicta where a state agency "has adopted a policy or pursued a practice of general applicability that is contrary to the law"). One of plaintiffs' allegations against the State Defendants is as follows:
Floyd County School personnel were not qualified to work with dyslexic students because they employed unconventional, unscientifically proven teaching methodologies. . . . The IDOE has established therefore a policy or custom of engaging in unconstitutional Indiana law and federal law conduct that displays a deliberate indifference toward reading disabled students and their "unique needs."
Complaint ¶ 27 (emphasis added). Even if plaintiffs were able to prove that the Local Defendants' teaching methodology was deficient, such evidence could not without more raise a genuine issue regarding the State Defendants' systemic or pattern conduct. Plaintiffs' use of "therefore" in the above argument as though the inference were obvious, is an unsupported conclusion insufficient to withstand summary judgment.
Plaintiffs further assert that the "IDOE did not ensure the availability of qualified personnel to provide special education and related services to all children as well as Marc with disabilities in the state of Indiana." Complaint ¶ 28 (emphasis added). While plaintiffs have come forward with evidence to support their allegations regarding Marc, that evidence does not permit at the summary judgment stage the inference that "all children as well as Marc" were affected as Marc was affected. Phrasing allegations as a challenge to broad policies or systemic deficiencies, rather than as a challenge to an individualized education plan, or lack of it, is not sufficient to trigger an exception to the IDEA's exhaustion requirement. If it were sufficient, the exhaustion requirement would be meaningless. Any claimant with an individual grievance could simply present such a grievance as the evident result of broader state-level defects — all children as well as my child — and thereby be excused from pursuing administrative remedies. The burden of proof necessary to bypass administrative channels entails more than that.
In count 6 of the complaint, plaintiffs assert that the "actions and omissions by IDOE employees were undertaken pursuant to [state agency] patterns or procedures and constituted state action and [were] undertaken under color of state law." Complaint ¶ 65. Again, plaintiffs have offered only alleged deficiencies in Marc's education. Perhaps that experience is part of a statewide pattern, but if so, it is plaintiffs' obligation to come forward with evidence to support the claim. They have not met that obligation.
Plaintiffs assert that the "State Defendants failed to provide an adequate monitoring and compliance system that was reasonably calculated to detect the IDEA violations that denied Marc a FAPE." Pl. Br. at 11. But plaintiffs have offered no evidence about the state's monitoring and compliance system except that it allegedly failed in Marc's case. Individual denials of a free and appropriate public education are precisely what the administrative due process mechanisms mandated by the IDEA are intended to address. Exceptions to the administrative exhaustion requirement, by contrast, are a recognition of the fact that there are some problems, typically broader in scope, that the administrative process just cannot fix. As the party bearing the burden of proof that an exception to the exhaustion requirement is justified, plaintiffs must persuade the court that available administrative procedures are not capable of redressing the particular problem identified. Plaintiffs have not done this, because they have not identified such a problem in other than the most general conclusory fashion. Marc's experience in Indiana's schools, however unsatisfactory it may have been, is simply not sufficient evidence of a pattern of lawlessness or systemic defects.
Because plaintiffs alleged injuries for which the IDEA provides relief, they were required to exhaust administrative remedies for their claims against the State Defendants. 20 U.S.C. § 1415( l). They did not exhaust these remedies and have not met their burden of showing that any circumstances exist that might trigger an exception to the IDEA administrative exhaustion requirement. This supports summary judgment in favor of most but not all of the State Defendants for most but not all of the claims against them. Since there are exceptions, it is necessary to address briefly the individual counts against the State Defendants.
1. Counts 5, 7 and 8
Counts 5 and 7 and portions of count 8 contain various allegations against the IHO, Jerry Colglazier. Complaint ¶¶ 58-61, 67-70, 99. All could have been raised on appeal to the BSEA. Mr. Colglazier is entitled to summary judgment on these claims based on failure to exhaust administrative remedies. As explained below, he is also protected by quasi-judicial immunity.
2. Count 12
Count 12 alleges that various state employees retaliated against Ms. Kemp for asserting her son's rights in violation of § 504 of the Rehabilitation Act. The employees are sued in their individual capacities. This claim fails for the same reason plaintiffs § 504 claim failed against the Local Defendants in their individual capacities. Section 504 confers a right against certain recipients of federal funds. Individual employees, unless proven otherwise, are not considered recipients of federal funds for purposes of suit under § 504. See Grzan, 104 F.3d at 120. The state employees in their individual capacities were not recipients of federal funds under § 504. Summary judgment is granted in favor of all State Defendants named in count 12.
3. Count 14
Count 14 alleges that the IDOE discriminated against Marc in violation of § 504 of the Rehabilitation Act. Complaint ¶¶ 149-153. Paragraph 151 states that Marc "was excluded from the educational services sought solely by reason of his handicap." Paragraph 153 states that "such discrimination is deliberate indifference in its failure to provide Marc special education services that meet Marc's specific learning disability, and provide Marc with a [FAPE]." Since this allegation under § 504 is based on alleged violations of the IDEA, it falls squarely within the exhaustion requirement of 20 U.S.C. § 1415( l). The State Defendants are entitled to summary judgment on count 14 for failure to exhaust administrative remedies.
4. Count 8
Count 8 states allegations against both the Local and State Defendants. The IDOE is alleged to have violated § 504 by:
. . . discriminating against disabled children, and for acting with deliberate indifference by refusing to provide special education teachers and educational aides trained to instruct dyslexic students in the tried and true, and proven Orton-Gillingham-based methods of instruction that must be in place for dyslexic children like Plaintiff Marc C. Weyrick to learn to read and write.
Complaint ¶ 72. Plaintiffs have asserted the necessity of the Orton-Gillingham method throughout their complaint and several briefs. These assertions are not specific and are not more than conclusory claims that the method is the only appropriate method for teaching dyslexic students. Plaintiffs have told the court very little about the special education methods used by the state of Indiana. Even if the court were to assume, as it would have to, that the absence of Orton-Gillingham methods is a systemic feature of Indiana's education system, plaintiffs have not come forward with evidence that such absence would qualify as a systemic defect of the sort sufficient to trigger an exception to the administrative exhaustion requirements of 1415( l). Since it was plaintiffs' burden to do so, Honig, 484 U.S. at 327, summary judgement is granted in favor of the State Defendants as to this general claim in count 8.
Other claims in count 8 require specific consideration. Defendants McDowell, Reed, Marra, Bowman, and Holmes are IDOE employees. Paragraphs 94-98 of count 8 name these individuals and describe their official duties. Plaintiffs state no factual allegations against any of these defendants individually, with the exception of Holmes. Most of the allegations come from general allegations in the complaint and are implied by contrasting Marc's alleged denials of FAPE with these defendants' official duties to implement the IDEA. In any case, plaintiffs have identified no conduct, either by inference or expressly in the case of Holmes, that could not have been challenged before the IHO or on appeal to the BSEA. Summary judgment is granted in favor of these defendants because plaintiffs failed to exhaust administrative remedies.
In paragraphs 91-93, plaintiffs identify defendants Dewes, Quist, and Therrien, the three members of the BSEA appeals panel that affirmed the decision of the IHO. Plaintiffs provide no specific allegations as to these defendants, beyond stating their duties to conduct a fair and impartial review the decision of the IHO. The implication is that they failed in these duties.
If plaintiffs' claim is brought pursuant to the general claim under § 504 contained in count 8 — i.e., that the BSEA members discriminated against dyslexic students by declining to find the non-use of the Orton-Gillingham method to be a violation of the IDEA — then it is disposed of by the preceding discussion on this subject.
On the other hand, if the BSEA members are being sued for generally failing to provide a fair and impartial review of the IHO's decision, then they are entitled to summary judgment on either of two grounds, depending on the capacity in which they are being sued. To the extent they are sued in their official capacities, the claims are dismissed as redundant because the state employer for which they work, the BSEA, is also being sued for the same alleged violation of the IDEA in counts 4 and 6. Kentucky v. Graham, 473 U.S. 159, 166 (1985).
To the extent they are sued in their individual capacities, the State Defendants have asserted that the BSEA members are protected from suit by absolute quasi-judicial immunity. "[T]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question." Burns v. Reed, 500 U.S. 478, 486 (1991). The State Defendants have met this burden in the case of the BSEA members (as well as IHO Colglazier).
The State Defendants argue that where "evidence and witnesses are heard, parties are given the opportunity to brief and argue issues, a decision is rendered, and judicial review of adverse findings is available, an administrative agency acts in a judicial capacity." Def. Br. at 7. Defendants cite Butz v. Economou, 438 U.S. 478, 524 (1978), for the proposition that administrative law judges perform functions comparable to those of a judge and are thus protected by quasi-judicial immunity. The Seventh Circuit has extended the quasi-judicial immunity articulated in Butz to state administrative actors. Scott v. Schmidt, 773 F.2d 160, 164 n. 4 (7th Cir. 1985). While the Scott panel noted that the Seventh Circuit had reached different results with respect to quasi-judicial immunity for state administrative actors, the BSEA members here fall safely within the scope of functional duties that the Seventh Circuit has found to invoke quasi-judicial immunity. See id. (listing a spectrum of Seventh Circuit cases recognizing and rejecting quasi-judicial immunity); see also Doe v. Eagle-Union Community School Corp., 101 F. Supp. 2d 707, 717 (S.D. Ind. 2000) ("The defendant members of the BSEA are entitled to absolute immunity for their actions in reviewing the findings and conclusions of the IHO"), aff'd in part and vacated in part on other grounds, 2001 WL 246014 (7th Cir. 2001). Defendants have met their burden on this point, and plaintiffs have not rebutted with a meaningful argument. Accordingly, summary judgment is granted to these defendants in both their individual and official capacities. The State Defendants made similar arguments regarding the quasi-judicial immunity of the IHO. The claims against the IHO also fail for failure to exhaust administrative remedies, but the IHO is also protected by quasi-judicial immunity for the same reasons as are the BSEA members.
5. Counts 4 and 6
Counts 4 and 6 seek relief from the IDOE, the BSEA, and the DEL for violations of the IDEA through § 504 and § 1983, respectively. Complaint ¶¶ 52, 63. Both counts incorporate by reference a set of factual allegations from elsewhere in the complaint setting forth Marc's experiences in the District schools. Complaint ¶¶ 54, 64. For reasons stated above, no exception to the exhaustion requirement has been established. Summary judgment as to these allegations is granted based on failure to exhaust administrative remedies.
Counts 4 and 6 both also contain a particular allegation that requires separate consideration. Each count alleges that the IDOE, BSEA, and DEL failed to provide an impartial review of the IHO's decision as required by 20 U.S.C. § 1415(g). Complaint ¶¶ 56, 66. The pertinent language of § 1415(g), addressing BSEA reviews of IHO decisions, states: "Such agency shall conduct an impartial review of such decision. The officer conducting such review shall make an independent decision upon completion of such review." Plaintiffs could not have have raised this claim on appeal to the BSEA, so the administrative exhaustion requirement is not an issue here. However, plaintiffs still do not have a viable claim against the BSEA in counts 4 and 6.
Plaintiffs' grievance against the BSEA in essence is that its members — Dewes, Therrien, and Quist — failed to strike down the IHO's decision. Their principal grievance with the IHO's decision is that the IHO found express violations of the IDEA, and yet at the same time found the District had met its obligation to provide access to a free appropriate public education. But this is merely an argument that the IHO and BSEA were wrong. A claim that the administrative decision makers reached the wrong result is not an argument upon which an aggrieved party sues the BSEA under § 1415(g). Suing the BSEA for deciding a case incorrectly is no more appropriate than adding the trial judge as a party-defendant to an appeal of an adverse decision. Plaintiffs' remedy for an erroneous decision is an IDEA action against the local school district under 20 U.S.C. § 1415(i)(2). For the foregoing reasons, the State Defendants' motion for summary judgment is granted with respect to counts 4 and 6.
6. Count 10
Count 10 is a § 1983 claim based on IDEA violations, and is brought against IDOE employees in their individual capacities. The factual allegations expressed or incorporated by reference are all ones that, for reasons stated variously above, could have been challenged in the administrative proceedings. None are subject to any exception to the exhaustion requirement, and all are therefore dismissed for failure to exhaust administrative remedies. One exception is any claim against the individual BSEA members. However, count 10 is duplicative of count 8 with regard to these defendants in their individual capacities. Claims against them in count 10 are therefore dismissed for the same reasons as under count 8, including quasi-judicial immunity.
Conclusion
For the foregoing reasons, summary judgment is granted in favor of all the State Defendants on all claims against them. All defendants' motion to dismiss Ms. Kemp for lack of standing is granted except as to one claim (count 12) against the State Defendants. However, since State Defendants have been granted summary judgment for all claims against them, Ms. Kemp has no further standing as a named party in this suit.
The Local Defendants' motion to dismiss is granted with respect to defendants Riekhof, McClure, Todd, and South. It is granted in part and denied in part with respect to the other individual Local Defendants and the claims against District. Several claims remain against the Local Defendants, as summarized within this entry, so the court is not entering a separate final judgment at this time. The court will hold a scheduling conference on Friday, January 14, 2005, at 10:00 a.m. in Room 330, Birch Bayh U.S. Courthouse, Indianapolis, Indiana. Counsel may participate by telephone if they wish to do so.
So ordered.