Filed: Jan. 13, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 1-13-2009 M.S.G. v. Lenape Regional High Precedential or Non-Precedential: Non-Precedential Docket No. 07-1567 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "M.S.G. v. Lenape Regional High" (2009). 2009 Decisions. Paper 2053. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/2053 This decision is brought to you for free and open access
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 1-13-2009 M.S.G. v. Lenape Regional High Precedential or Non-Precedential: Non-Precedential Docket No. 07-1567 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "M.S.G. v. Lenape Regional High" (2009). 2009 Decisions. Paper 2053. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/2053 This decision is brought to you for free and open access b..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-13-2009
M.S.G. v. Lenape Regional High
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1567
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"M.S.G. v. Lenape Regional High" (2009). 2009 Decisions. Paper 2053.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/2053
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-1567
_____________
M.S.-G., INDIVIDUALLY AND
BY HIS PARENTS AND LEGAL
GUARDIANS, K.S.-G. AND J.S.-G.,
Appellants
v.
LENAPE REGIONAL HIGH SCHOOL DISTRICT
BOARD OF EDUCATION and DANIEL HICKS,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY
__________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 06-cv-2847)
District Judge: Honorable Joseph H. Rodriguez
___________
Argued March 26, 2008
___________
Before: McKee, Rendell, and Tashima,* Circuit Judges
(Filed: January 13, 2009)
___________
*
Honorable A. Wallace Tashima, Senior Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
Jamie Epstein, Esq. (ARGUED)
1101 Route 70 West
Cherry Hill, NJ 08002
Counsel for Appellants
Walter F. Kawalec, Esq. (ARGUED)
Richard L. Goldstein, Esq.
Marshall, Dennehey, Warner, Coleman & Goggin
200 Lake Drive East
Suite 300
Cherry Hill, NJ 08012
Counsel for Appellees
___________
OPINION
___________
TASHIMA, Circuit Judge:
M.S.-G., a high school student, along with his parents, J.S.-G. and K.S.-G.
(collectively “M.S.-G.”), appeal the District Court’s dismissal of M.S.-G.’s action,
brought under the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. § 1400
et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the New
Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1, against Lenape Regional
High School District and Daniel Hicks, Superintendent (collectively “Lenape”), stemming
from his suspension from Shawnee High School. The Administrative Law Judge (“ALJ”)
conducting M.S.-G.’s due process hearing twice dismissed M.S.-G.’s petition for failure
to satisfy the IDEA pleading requirements. The District Court dismissed M.S.-G.’s
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complaint on the same ground. We have jurisdiction to review the District Court’s
decision under 28 U.S.C. § 1291, and we will affirm.
Because we write for the parties, we recite only those facts necessary to our
analysis of the issues presented on appeal. We review de novo the dismissal of a
complaint under Federal Rule of Civil Procedure 12(b)(6). Phillips v. County of
Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). In so doing, we “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be
entitled to relief.”
Id. at 233 (internal citation and quotation marks omitted).1
M.S.-G. contends that the ALJ and District Court erred in dismissing his complaint
for failure to conform to the IDEA’s pleading standards. On June 5, 2006, M.S.-G. filed
a due process complaint with the New Jersey Office of Special Education Programs
requesting relief under the IDEA. The following text comprised the entirety of the June 5
complaint’s substantive allegations:
Failure of respondent to: (a) maintain M.S.-G. in his current placement after
10 days of suspension during the current school year in remedy for said
1
Although the District Court must employ a modified de novo review of the
decisions of an administrative fact finder, see S.H. v. State-Operated Sch. Dist. of the City
of Newark, 336 F.3d 260, 270–71 (3d Cir. 2003), and we, in turn, review the District
Court’s factual findings for clear error, see Shore Reg’l High Sch. Bd. of Educ. v. P.S. ex
rel P.S.,
381 F.3d 194, 199 (3d Cir. 2004), no such deference is called for when the
decisions of the ALJ and District Court involve only questions of law.
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failures we seek compensatory education and an order requiring respondent
to return and maintain M.S.-G. in his current placement; (b) to provide MS-
G with a psychiatric evaluation for which we seek an independent
psychiatric evaluation, (c) to properly address M.S.-G’s drug dependency as
a manifestation of his educational handicap in his IEP for which we seek
said correction to MS-G’s IEP as a remedy. (d) failure to evaluate MS-G for
and provide him with a positive behavior intervention plan for which we
seek same as a remedy.
(punctuation errors in original). The ALJ found that the complaint failed to state the
reason for M.S.-G.’s suspension, or describe M.S.-G.’s individualized education program
(“IEP”) and his “current placement.” It also failed to include factual details relevant to
M.S.-G.’s requested remedies, such as circumstances which might necessitate a return to
his current placement, and facts indicating whether he communicated with the defendants
about the proposed psychiatric evaluation, or whether the defendants refused to
accommodate the request. The ALJ encouraged the parties to communicate and to make
a good faith effort to resolve their differences.
On June 13, 2006, M.S.-G. submitted a second petition for an expedited due
process hearing. The allegations in the second petition were much the same, except that
M.S.-G. added the following details:
M.S.-G. [is] a 10th grade student in a self contained placement at Shawnee
High School . . . .
M.S.-G. was suspended for 10 days on 5/31/06 however respondent has
refused to allow him to return to his current placement. Additionally, he
was suspended 5/23/06 for 2 days, on 5/9/06 for 3 days, on 3/10/06 for 3
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days, on 2/10/06 for 2 days, on 2/2/06 for 1 day, on 1/5/06 for 5 days,
1/6/06 for 2 days, on 11/30/05 for 1 day, and on 12/7/05 for 1 day.
Although the remedies requested were substantially the same, M.S.-G. slightly altered the
wording and format of the request:
(a) compensatory education for the days in which he was improperly
removed;
(b) an order requiring respondent to return and maintain M.S.-G. in his
current placement;
(c) an appropriate psychiatric evaluation;
(d) for M.S.-G. to be evaluated for and provided with a positive behavior
intervention plan[];
(e) and to properly identify behaviors which are a manifestation of his
educational handicap (including his drug dependency) in his IEP to be
programmed for and not be disciplined for.
On June 16, 2006, the ALJ dismissed the second petition for failure sufficiently to
state a claim. Although he recognized that M.S.-G. now provided the dates of his
suspensions, the letter still failed to allege facts that would justify a finding that M.S.-G.
was wrongfully removed from or entitled to return to his current placement.
On January 24, 2007, the District Court granted Lenape’s motion to dismiss based
on M.S.-G.’s failure to conform to the IDEA pleading requirements. The District Court
grounded its holding on the failure of the administrative complaints to state “why the
school suspended M.S.-G.[,]” “the nature of M.S.-G.’s problem and how it relates to the
suspensions[,]” and how the proposed solutions will “resolve the problem.”
We conclude that M.S.-G. failed to satisfy the pleading requirements set forth in
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the IDEA. The IDEA requires state and local educational agencies receiving federal
education funds to “establish and maintain procedures . . . to ensure that children with
disabilities and their parents are guaranteed procedural safeguards with respect to the
provision of a free appropriate public education . . . .” 20 U.S.C. § 1415(a). One such
procedure is the opportunity to present a complaint “with respect to any matter relating to
the identification, evaluation, or educational placement of the child . . . .” Id. §
1415(b)(6)(A); see also 34 C.F.R. § 300.507(a)(1) (2007). The complaint must provide
notice to the opposing party, including “(III) a description of the nature of the problem of
the child relating to such proposed initiation or change, including facts relating to such
problem; and (IV) a proposed resolution of the problem to the extent known and available
to the party at the time.” 20 U.S.C. § 1415(b)(7)(A)(ii)(III)–(IV); see also 34 C.F.R. §
300.508(b)(5)–(6). M.S.-G. failed to provide a description of the nature of the problem
that included facts; he merely identified the problem, in this case, his multiple
suspensions.
We also reject M.S.-G.’s suggestion that the Supreme Court’s description of these
pleading standards as “minimal” in Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 55
(2006), somehow converts the specific statutory provision into a bare notice pleading
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requirement.2 Schaffer did not confront the issue at hand. Moreover, the purpose of the
statute to foster cooperation between the parents and educational agency is served by a
development of the factual basis for the dispute prior to the initiation of adversarial
proceedings. See id. at 53 (“The core of the statute . . . is the cooperative process that it
establishes between parents and schools.”).
M.S.-G. does not contest the District Court’s dismissal of his § 1983 and state law
claims. See Skretvedt v. E.I. DuPont De Nemours, 372 F.3d 193, 202–03 (3d Cir. 2004)
(“We have held on numerous occasions that an issue is waived unless a party raises it in
its opening brief, and for those purposes a passing reference to an issue will not suffice to
bring that issue before this court.”) (citation, quotation marks, and alteration omitted).
We therefore deem those issues waived.
For the foregoing reasons, we will AFFIRM the judgment of the District Court.
2
Likewise, Escambia County Bd. of Educ. v. Benton, 406 F. Supp. 2d. 1248
(S.D. Ala. 2005), does not bear the weight of M.S.-G.’s argument. That decision
specifically acknowledged the IDEA’s requirement that the complaint include facts
relating to the claimed problems.
Id. at 1259. The court concluded, however, that such a
requirement was satisfied as to the particular challenge to an IEP raised for the first time
at a due process hearing when the plaintiff raised several other distinct challenges to the
same IEP in his complaint.
Id. at 1260.
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