ORDER GRANTING IN PART AND DENYING IN PART ROBERT BRITO JR.'S MOTION TO DISMISS

FRANK MONTALVO, District Judge.

On this date, the court considered Robert Brito Jr.'s ("Brito") "Defendant Robert Brito, Jr.'s Motion to Dismiss and Alternative Motion for Judgment on the Pleadings," ("Motion to Dismiss") [ECF No. 11], filed September 20, 2011; Plaintiffs Marco Tristan and Martha Tristan's (collectively "the Tristans") "Plaintiffs' Response to Motions Filed by Defendants Clarice Jones and Defendant Robert Brito, Jr." ("Response") [ECF No. 16], filed October 11, 2011, and "Defendant Robert Brito, Jr.'s Reply to Plaintiffs' Response to Brito's Motion to Dismiss and Alternative Motion for Judgment on the Pleadings" ("Reply") [ECF No. 17], filed October 12, 2011. For the reasons set forth below, the court will grant in part and deny in part Brito's Motion.

I. BACKGROUND

A. Procedural History

The Tristans filed suit in state court on July 18, 2011, bringing a variety of claims against defendants Brito, Clarice Jones ("Jones"), and Socorro Independent School District ("SISD"). The defendants collectively removed the case to this court, and Brito filed his Motion to Dismiss on September 20, 2011. On October 10, 2011, the Tristans filed their "Plaintiffs' Amended Complaint" ("Complaint") [ECF No. 15]. Therein, the Tristans assert state law claims against defendants for assault, breach of fiduciary duty, negligent hiring and supervision, and negligence; claims under Title 42, United States Code, Section 1983 ("1983") for alleged violations of the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the Constitution; claims for violation of Title 20, United States Code, Section 1400 et seq, the Individuals with Disabilities Act ("IDEA"); and claims under Title 29, United States Code, Section 794 of the Rehabilitation Act ("Section 504"). The Tristans bring claims against Brito in both his individual and official capacity. Brito subsequently requested that the court consider his Motion to Dismiss as addressing the Tristans' newly amended Complaint.1

B. Facts Alleged2

Plaintiffs are the next friends and guardians of E.A.T., a minor. E.A.T. attended Salvador H. Sanchez Middle School ("Sanchez Middle School"), a public school which is part of the SISD. At all relevant times, Jones was the principal of the school and Brito was a teacher employed by SISD. Prior to the events at issue, E.A.T. was in a car accident and suffered a traumatic brain injury which left him physically and mentally impaired. Months passed before E.A.T. was able to return to school. The Tristans attended several Admission Review and Dismissal (ARD) Committee meetings, where educators, medical personnel, and other professionals met to determine E.A.T's eligibility for special education services at SISD. At these meetings, the committee discussed E.A.T's physical condition, including his brain injury and multiple skull fractures he had suffered. The ARD committee also determined that E.A.T. did not have behavior problems which would require implementation of a Behavior Modification Plan or Modification Assertive Discipline Form. At the conclusion of the ARD committee assessment, E.A.T. was placed in a Special Education Unit at Sanchez Middle School. Brito taught English to E.A.T. within the Special Education Unit. When E.A.T. was placed in Brito's class, the Tristans were not informed that Brito had only a provisional license to teach in the Special Education Unit. At some point after E.A.T. joined Brito's class, Brito lost this provisional certification after he failed the special education certification exam for the third time. Although school administrators were aware that Brito no longer had the required certification, they did not remove Brito from the classroom and did not inform the Tristans. Teaching assistants also subsequently reported concerns about Brito's discipline methods which included "making E.A.T. kneel for extended periods of time, yelling at E.A.T., shaking E.A.T., and allowing other students to hit E.A.T."3 School administrators took no action in response to these reports. On April 2, 2010, an incident occurred where Brito "grabbed E.A.T. by the back of the neck and forcefully slammed E.A.T's head" onto a desk.4 Soon after this incident, Brito was removed from his teaching position at SISD. He later pled guilty to the criminal offense of causing injury to a child.

The Tristans allege that E.A.T. suffered, and continues to suffer, mental and physical injuries as a result of Brito's conduct, and that of Jones and SISD.

C. Parties' Arguments

Brito raises three arguments in support of his Motion to Dismiss the claims against him. First, he contends that the state tort claims for assault, negligence, and breach of fiduciary duty, as well as claims under the Texas Constitution must be dismissed because the Tristans have brought the same claims against SISD. Brito maintains that the Texas Civil Practice and Remedies Code requires the court to dismiss these claims upon SISD's motion to dismiss its employees from the suit. Second, Brito argues that the Section 504 and IDEA claims against him must be dismissed because there is no individual liability under these acts, and claims against him in his official capacity are duplicative of the claims against SISD. Finally, Brito asserts that the Tristans' Section 1983 claims seek remedies available under the IDEA, and thus must be dismissed because the Tristans failed to exhaust IDEA administrative procedures.

The Tristans do not substantively respond to Brito's arguments regarding their state tort and state constitutional claims, nor do they challenge his assertion that there is no individual liability under Section 504 or the IDEA. The Tristans do dispute Brito's challenge to their 1983 claims. Particularly, they argue that exhaustion is not required in circumstances where — as is the case here — the damages all stem from a single act of violence by a teacher.

II. APPLICABLE LAW5

Pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) the court may dismiss a complaint for "failure to state a claim upon which relief can be granted."6 However, "the motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted."7

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead "enough facts to state a claim to relief that is plausible on its face."8 "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."9 The factual allegations in a complaint "must be enough to raise a right to relief above the speculative level."10 In reviewing a complaint, a court must "accept all well-pleaded factual allegations as true, and ... interpret the complaint in the light most favorable to the plaintiff,"11 resolving all doubts on the plaintiffs behalf.12 However, the court need not "accept as true a legal conclusion couched as a factual allegation."13

III. DISCUSSION

A. State Common Law and Texas Constitutional Claims

Brito contends the Texas constitutional claims and the assault, negligence, and breach of fiduciary duty claims are barred by statute, and must be dismissed. The court disagrees.

Brito bases his argument on Section 101.106 ("Section 101.106") of the Texas Civil Practices and Remedies Code, which provides that:

At first glance, Brito's argument for dismissal under Section 101. 106 appears meritorious. The Tristans do not dispute that their common law and state constitutional claims against Brito are based on the same subject matter as the claims against SISD. Further, it is undisputed that SISD is a "governmental unit" and Brito is an "employee" of a governmental unit as those terms are defined in the statute.15

However, because the Tristans filed suit against both SISD and Brito, it is subsection (e) of Section 101.106, rather than subsection (a), that governs.16 Subsection (e) specifies that employees shall be dismissed on the filing of a motion by the governmental unit.17 Brito asserts that SISD has filed such a motion. He cites to a joint motion by SISD and Jones filed in state court before the case was removed.18 However, in that motion SISD makes clear that it is only seeking to dismiss Jones.19 Brito does not address this issue, nor provide any authority for the proposition that a motion to dismiss one employee under Section 101. 106 requires the dismissal of all employees. Accordingly, unless and until SISD moves to dismiss Brito, he is not entitled to dismissal of these claims pursuant to Section 101.106.

B. IDEA and Section 504 Claims

Brito next contends that the Tristans cannot maintain claims against him for alleged violations of the IDEA and Section 504 because there is no individual liability under these Acts. The Tristans do not address this argument.

The IDEA requires states to provide a "free appropriate public education" to children with disabilities.20 Section 504 prohibits schools or other entities receiving federal funds from discriminating against individuals with disabilities.21 Neither the IDEA nor Section 504, however, provides a cause of action against a school official sued in his individual capacity.22 Accordingly, the court will dismiss the Tristans' IDEA and Section 504 claims against Brito in his individual capacity.

Brito argues that the IDEA and Section 504 claims against him in his official capacity should also be dismissed, because such claims are duplicative of the Tristans' claims against SISD. When a plaintiff sues a government employee in his official capacity and also sues the city, "[t]he official-capacity claims and the claims against the governmental entity essentially merge."23 In such situation, the Supreme Court instructs that:

Thus, the Tristans' claims against Brito in his official capacity are in reality claims against SISD. Because the Tristans have already sued SISD for their IDEA and Section 504 claims, the claims against Brito in his official capacity will be dismissed as duplicative.25

C. Constitutional Claims Brought Pursuant to Section 42 U.S.C. 1983

Finally, Brito contends that the Tristans' 1983 claims seek relief available under the IDEA, and thus, should be dismissed because the Tristans failed to exhaust their statutory remedies.26 The Tristans do not dispute they failed to exhaust their IDEA remedies, but argue that exhaustion should not be required under the circumstances of this case. Accordingly, the court must first determine whether the 1983 claims are subject to the IDEA exhaustion requirement, and, if so, whether the Tristans have established that they should be excused from this requirement.

1. The 1983 Claims Are Not Subject to the IDEA Exhaustion Requirement

The Tristans' 1983 claims are not subject to exhaustion because they arise from an incident unrelated to the provision of educational services, and seek relief for non-educational injuries which cannot be remedied through the IDEA.

The IDEA guarantees children with disabilities a free appropriate public education ("FAPE").27 In addition to requiring federally funded schools to provide needed services to disabled students, the IDEA also requires that schools establish administrative procedures to provide parents "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child."28 Parties are required to exhaust these procedures before bringing such complaints in state or federal court.29 Crucially, this exhaustion requirement applies not only to IDEA claims, but also to any other claims which "seek relief that is also available under [the IDEA]."30 The purpose of the exhaustion requirement is "to ensure that parties resolve all educational issues underlying their claims."31

Courts have struggled to determine when claims not brought under the IDEA require exhaustion.32 In assessing whether non-IDEA claims seek relief available under the IDEA, courts have interpreted "`available' to mean relief for the events, condition, or consequences of which the person complains, not necessarily relief of the kind the person prefers."33 This analysis focuses "on the source and nature of the alleged injuries for which [the plaintiff] seeks a remedy."34

The Tristans contend that their 1983 claims are based on a single incident — Brito's alleged assault of E.A.T. on April 2, 2010.35 The Complaint alleges that defendants "violated the Constitutional right of E.A.T. to be free from invasion of his personal security by use of excessive force and discipline."36 The Tristans further allege that defendants "impeded and hindered the course of justice with the intent to deny E.A.T. equal protection of the laws."37 They do not allege that E.A.T. was denied any educational rights or opportunities, nor do they plead for recovery for any educational injuries.38

Brito argues that the section 1983 claims fall under the IDEA because they allege excessive discipline in a special education classroom. He supports this argument by citing to cases where courts held that complaints regarding in-class discipline were subject to IDEA exhaustion. None of these cases are controlling in this circuit, however, and many are distinguishable from this case. For example, Brito cites to Hayes Through Hayes v. Unified Sch. Dist. No. 377, where the Tenth Circuit found that "the discipline of a child in the classroom, including short-term suspensions and `time-out' periods, is a matter that relates to the public education of a handicapped child and that therefore falls within the scope of the [IDEA]."39 However, at least one other Circuit has declined to extend the holding in Hayes as requiring IDEA exhaustion for "beatings [that] go far beyond what the Hayes court envisioned when it spoke of `time-out rooms' and `discipline.'"40 Likewise, the court finds the discipline in Hayes distinguishable from Brito's alleged conduct, which was so unacceptable that he was subsequently removed from his position and pled guilty to a criminal offense.41 Moreover, it is not clear from the Complaint that Brito's alleged assault was intended as discipline. While the Tristans allege that "Brito's conduct was apparently a form of discipline,"42 they simultaneously state that "[i]n the event the described conduct of Brito is not considered a form of discipline, said conduct resulted in physical contact with E.A.T. that each Defendant knew or should have known that [sic] it would be regarded as offensive and provocative."43 Based on the facts alleged, the assault by Brito cannot be related to any attempted educational program. Thus, this case is clearly distinguishable from Hayes and other cases where discipline is conceived of as part of a child's education.44

Having determined that the 1983 claims do not assert violations of any educational rights, the court declines to conclude that simply because E.A.T. is disabled, any injury he suffers in school is automatically subject to the IDEA.45 Congress enacted the IDEA "to ensure that the rights of children with disabilities and parents of such children are protected."46 Consequently, it would be absurd to interpret the statute as placing restrictions on a disabled student seeking redress for constitutional torts, when such restrictions would not apply if the same claims were brought by his non-disabled classmates.47

The Fifth Circuit has also rejected the notion that the IDEA encompasses all torts occurring in the special education classroom. In Morris v. Dearborne, parents of a disabled child brought state tort and Section 1983 claims after a teacher allegedly used a facilitative communication device to manipulate their child into making false abuse allegations.48 The parents also claimed the teacher's actions violated the IDEA, alleging that the school was required to give them prior notice before using the communication device. The Court dismissed the IDEA claims, explaining:

Likewise, the IDEA provides no protection against assault by a teacher, nor does it provide a remedy for the mental and physical injuries E.A.T. allegedly suffered. The Tristans seek, among other things, punitive damages and reimbursement for E.A.T.'s substantial medical expenses. These damages are not available under the IDEA, which generally provides "only prospective educational remedies."50

In sum, the court finds that the Tristans' 1983 claims do not seek relief under the IDEA and thus, are not subject to the exhaustion requirement.

2. The Tristans Have Sufficiently Alleged That Exhaustion of Their 1983 Claims Would Have Been Futile

Because the IDEA does not provide a remedy for the Tristans' 1983 claims, exhaustion of IDEA remedies would have been futile. "[P]arents may bypass the administrative process where exhaustion would be futile or inadequate."51 To establish futility, a plaintiff "must demonstrate that adequate remedies are not reasonably available or that the wrongs alleged could not or would not have been corrected by resort to the administrative hearing process."52

The Tristans allege that "[b]ecause the injuries sustained by E.A.T. were concluded when done and because BRITO was permanently removed from his teaching position by JONES and SISD, Plaintiffs did not have any recourse by seeking administrative solutions, and exhausting administrative remedies under the circumstances would have been useless."53

The Tristans have thus shown that exhaustion would be futile because "the condition creating the damage ha[d] ceased"54 with Brito's removal from the classroom. Moreover, as explained supra, IDEA remedies cannot adequately address the physical and mental injuries caused by the alleged assault.55 Accordingly, exhaustion is not required for these claims.56

IV. CONCLUSION

Accordingly, the court enters the following Orders:

SO ORDERED.