ARTHUR J. SCHWAB, District Judge.
This is a civil rights action brought by Plaintiffs, Teri and Virgil Henry, as parents of M.H., against numerous Defendants in connection with what appears to be an appeal of a May 16, 2016 Decision and Final Order of Special Education Hearing Officer, Defendant Skidmore, who is employed by the Pennsylvania Office for Dispute Resolution. However, in the extensive and confusing narrative of Plaintiffs' pro se complaint, they reference claims relating to M.H.'s current Individualized Education Program (IEP), which presumably have not been subject to an administrative proceeding.
On March 31, 2017, this Court previously Granted the Motion to Dismiss brought pursuant to Fed. R. Civ. Pr. 12(b)(1), (4), (5) and (6); Denied as Moot a Motion for More Definite Statement pursuant to Fed. R. Civ. P. 12(e); and, Granted a Motion to Strike Minor from Caption and Case filed by Defendants Pittsburgh Public School District, Denise (unknown last name), Mary-Lou (unknown last name), Amy Berner, Tracy Brezicki, Paulette Colonna, Mary-Jane Conley, Sylbia Kunst, Cicily Kurian, Dr. Linda Lane, David May-Stein, Tom Spickler, Donna Westbrooks-Martin, Kimberly Zangrilli, and Aimee Zundel, collectively referred to as the "School District Defendants."
Now pending before this Court is a Motion to Dismiss, filed by Defendant Skidmore, a Hearing Officer who presided over in the subject administrative hearing and issued a Decision thereon (
Though Plaintiffs' Response to the instant Motions was due on March 10, 2017, 21 days after a ruling thereon, on April 14, 2017, Plaintiffs belatedly filed what appears to be a "Response," mainly to the Court's prior Memorandum Opinion at
Plaintiffs were, in fact, ordered to respond to the instant Motions by April 14, 2017, and in what they have titled as a "Re-Memorandum Opinion on Motion to Dismiss (
A Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) challenges this Court's "very power to hear the case." See Judkins v. HT Window Fashions Corp., 514 F.Supp.2d 753, 759 (W.D. Pa. 2007) (quoting Mortenson v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). As the party asserting jurisdiction, Plaintiff "bears the burden of showing that its claims are properly before the district court." Dev. Fin. Corp. v. Alpha Housing & Health Care, 54 F.3d 156, 158 (3d Cir. 1995). In reviewing a Motion to Dismiss pursuant to Rule 12(b)(1), this Court must distinguish between facial attacks and factual attacks. See Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006).
A facial attack challenges the sufficiency of the pleadings, and the Court must accept the Plaintiff's allegations as true. Id. A Defendant who attacks a complaint on its face "[asserts] that considering the allegations of the complaint as true, and drawing all reasonable inferences in favor of [plaintiff], the allegations of the complaint are insufficient to establish a federal cause of action." Mullen v. Thompson, 155 F.Supp.2d 448, 451 (W.D. Pa. 2001). Dismissal is proper under Rule 12(b)(1) only when "the claim clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or . . . is wholly insubstantial and frivolous." Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) (quoting Bell v. Hood, 327 U.S. 678, 682 (1946)).
When, as in this case, a Defendant launches a factual attack on subject matter jurisdiction, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Petruska, 462 F.3d at 302 (quoting Mortenson, 549 F.2d at 891). In a factual attack, this Court must weigh the evidence relating to jurisdiction, with discretion to allow affidavits, documents, and even limited evidentiary hearings. See United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007).
Under Rule 12(b)(6), a Complaint must be dismissed for "failure to state a claim upon which relief can be granted." Detailed factual pleading is not required — Rule 8(a)(2) calls for a "short and plain statement of the claim showing that the pleader is entitled to relief" — but a Complaint must set forth sufficient factual allegations that, taken as true, set forth a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plausibility standard does not require a showing of probability that a claim has merit, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007), but it does require that a pleading show "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678. Determining the plausibility of an alleged claim is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679
Building upon the landmark United States Supreme Court decisions in Twombly and Iqbal, the United States Court of Appeals for the Third Circuit explained that a District Court must undertake the following three steps to determine the sufficiency of a complaint:
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013) (citation omitted).
The third step requires this Court to consider the specific nature of the claims presented and to determine whether the facts pled to substantiate the claims are sufficient to show a "plausible claim for relief." Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013); see also Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (In reference to third step, "where there are well-pleaded factual allegations, the Court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.").
When adjudicating a Motion to Dismiss for failure to state a claim, the Court must view all of the allegations and facts in the Complaint in the light most favorable to the plaintiff, and must grant the plaintiff the benefit of all reasonable inferences that can be derived therefrom. Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). However, the Court need not accept inferences or conclusory allegations that are unsupported by the facts set forth in the complaint. See Reuben v. U.S. Airways, Inc., 500 F. App'x 103, 104 (3d Cir. 2012) (quoting Iqbal, 556 U.S. at 678); Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (stating that District Courts "must accept all of the Complaint's well-pleaded facts as true, but may disregard any legal conclusions"). "While legal conclusions can provide the framework of a Complaint, they must be supported by factual allegations." Iqbal, 556 U.S. at 664.
This Court may not dismiss a Complaint merely because it appears unlikely or improbable that Plaintiff can prove the facts alleged or will ultimately prevail on the merits. Twombly, 550 U.S. at 563 n.8. Instead, this Court must ask whether the facts alleged raise a reasonable expectation that discovery will reveal evidence of the necessary elements. Id. at 556. Generally speaking, a Complaint that provides adequate facts to establish "how, when, and where" will survive a Motion to Dismiss. Fowler, 578 F.3d at 212.
In short, a Motion to Dismiss should be granted if a party fails to allege facts, which could, if established at trial, entitle him/her to relief. Twombly, 550 U.S. at 563 n.8.
The Complaint, which is 40 pages single-spaced, written in a vague and confusing run-on narrative, alleges as follows with regard to Defendant Skidmore:
Plaintiffs make numerous allegations concerning Defendant Skidmore.
With regard to Plaintiffs' factual allegations against Defendant Egan, in a three-page, single-spaced paragraph replete with run-on sentences and other disjointed and confusing allegations, Plaintiffs set forth the factual basis of their claim(s) against Ms. Egan.
Defendant Egan contends in her Motion to Dismiss that because the instant lawsuit raises claims against Defendant Egan which arose after the May 16, 2016 Order, this Court lacks subject matter jurisdiction to hear these claims, because Plaintiffs did not pursue their administrative remedies.
The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., requires states educational agencies to "establish and maintain procedures. . . to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of free appropriate public education [FAPE] by such agencies." 20 U.S.C. § 1415(a). Parents and eligible children have the right to request an impartial due process hearing on any matter relating to the indemnification, evaluation or educational placement of the child, or the provision of FAPE to such a child. Id. at § 1415(b)(6) and (f)(1). Either the parent or the aggrieved child may appeal the decision of an administrative hearing officer to the appropriate court of competent jurisdiction. Id. at § 1415(i)(2).
Exhaustion of administrative remedies is a strong policy consideration in the IDEA. Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775, 778 (3d Cir. 1994). The exhaustion of administrative remedies also extends to violations claimed under Section 504 and the Americans with Disabilities Act insofar as they relate to the provision of FAPE to the child. See Batchelor v. Rose Tree Media Sct. Dist, 759 F.3d 266, 272-73 ((3d Cir. 2014).
The United States Court of Appeals for the Third Circuit has recognized exceptions to the IDEA's exhaustion requirement including where: "(1) it `would be futile or inadequate'; (2) the `issue presented is purely a legal question'; (3) `the administrative agency cannot grant relief (e.g., hearing officer lacks authority to provide a remedy)'; or (4) `exhaustion would work severe or irreparable harm upon a litigant.'" A.C. v. Scranton School District, 191 F.Supp.3d 375, 394 (M.D. Pa. June 13, 2016) (citing Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775, 778 (3d Cir. 1994)). The IDEA exhaustion requirement is jurisdictional. Id. (citation omitted); Blunt v. Lower Merion School Dist., 559 F.Supp.2d 548 (E.D. Pa. 2008) (dismissing unexhausted claims for lack of jurisdiction under Rule 12(b)(1)).
Because there is no allegation that Plaintiffs have exhausted their administrative remedies as to their claims arising after May 16, 2016 Decision, and because Plaintiffs appear to be complaining about the denial of FAPE, exhaustion of administrative remedies is required. Therefore, Plaintiffs have failed to meet their burden of persuasion that these claims are properly before this Court, subject matter jurisdiction as to these claims is lacking. Kehr Packages, Inc., v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). See Fry v. Napolean Community Schools, 137 S.Ct. 743 (Where the gravamen of a suit is the denial of a FAPE, such that a plaintiff is required to exhaust the IDEA's remedies, a court may consider that a plaintiff has previously invoked the IDEA's formal procedures to handle the dispute).
Defendants, Skidmore and Egan, each assert in their respective Motions to Dismiss that Plaintiffs' complaint fails to state a claim upon which relief may be granted. Although the underlying arguments supporting these Motions are varied, this Court, nonetheless, agrees, and will address each, in turn.
First, as to Defendant Skidmore, who was the Special Education Hearing Officer who was responsible for and issued the Decision in the underlying dispute (as was attached by Defendant Skidmore at
Based upon the facts as alleged, Defendant Skidmore's actions as a Hearing Officer and the Decision she rendered in her capacity as Special Education Hearing Officer in this case were within the course and scope of her duties. Other than Plaintiffs' conclusory allegations that the proceedings were not impartial and that the decision and outcome were "highly questionable," Plaintiffs have failed to allege that Ms. Skidmore violated any applicable provision of the requirements for Hearing Officers. See 34 C.F.R. 300.511(d). On this basis, Defendant Skidmore is entitled to absolute immunity for her decision as a Hearing Officer who presided over the underlying administrative proceedings.
Second, as to Defendant Egan, in her capacity as "former director/principal," of WPSBC, notably, Plaintiffs only advance claims against Defendant Egan, instead of WPSBC. Plaintiffs appear to assert claims against Defendant Egan in her official capacity. Importantly, individual liability is not available under the Rehabilitation Act, Title II of the ADA or the IDEA. Taylor v. Altoona Area School Dist., 513 F.Supp.2d 540, 553 (W.D. Pa. 2007). Therefore, because none of those statutes permit recovery against individual defendants, these claims must be dismissed. And, to the extent that Plaintiffs seek to recover under the No Child Left Behind Act, and the Family Educational Rights and Privacy Act, neither of these statutes confers to individuals private causes of action.
Simply put, Plaintiffs have failed to state claims against the remaining Defendants, Skidmore and Egan, for which relief may be granted because they have not advanced allegations which are plausible on their face. As stated in the prior Memorandum Opinion of this Court, and bears repeating, "[w]hile Plaintiffs' complaint, as a pro se pleading, is entitled to a liberal construction, Estelle v. Gamble, 429 U.S. 97, 106 (1976), all parties must, however, follow the Federal Rules of Civil Procedure. Tauro v. Capital One Financial Corp., 2016 WL 7404585 (citations omitted)."
Pursuant to Fed. R. Civ. P. 8(a), Plaintiffs are required to make a short and plain statement of their claims that the Special Education Hearing Officer's Decision should be overturned by this Court. Plaintiffs have failed to attach the Final Order and Decision rendered by the Hearing Officer, which apparently forms the basis for this action, but Defendant Skidmore has attached this document, which this Court has appropriately noted.
An appropriate Order follows.
