RICHARD D. BENNETT, District Judge.
Plaintiff Cynthia Tawes ("Plaintiff" or "Tawes"), as parent and next friend of the minor child, J.W., originally filed this eleven-count Complaint in the Circuit Court for Somerset County, Maryland, against Defendants Board of Education of Somerset County ("BOE"), Superintendent of Schools for Somerset County — Dr. John B. Gaddis ("Gaddis"), John Doe #1, John Doe #2, and John Doe #3. (ECF No. 2.) The gravamen of this case involves her allegations that her minor son J.W. was bullied by other students while attending the 2014 Secondary Summer School Program at Washington High School in Somerset County. Specifically, it is alleged that J.W. is a student who has been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD"), and ultimately Oppositional Defiant Disorder ("ODD") and Major Depressive Disorder ("MDD"). Accordingly, consistent with the mandates of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq., J.W. has been eligible to receive special education instruction and support services. These services included his attendance at the 2014 Secondary Summer School Program.
As to the Defendants BOE and Gaddis (jointly referred to as "Defendants"), Plaintiff alleges: negligence (Count I); negligence per se (Count II); deprivation of a right to a free appropriate public education under 42 U.S.C. § 1983, the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq., and U.S. Const. Amend XIV (Count III); wrongful expulsion under Md. Code Ann., Educ. § 7-305 (Count IV); deprivation of constitutional rights under 42 U.S.C. §§ 1985, 1986 and U.S. Const. Amend XIV (Counts V, VI); violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504") and Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. (Count VII); and educational malpractice (Count VIII). Tawes additionally alleges assault and battery against John Doe #1 (Count IX) and John Doe #2 (Count X), and invasion of privacy, unlawful use of photograph/personal depiction against John Doe #3 (Count XI).
Currently pending before this Court is Defendants' Motion to Dismiss Counts I-VIII. (ECF No. 7.) Specifically, the Motion does not address Counts IX-XI alleging state causes of action.
This Court accepts as true the facts alleged in Plaintiff's Complaint. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). J.W. was a student in Somerset County Public Schools ("SCPS") from kindergarten until the summer before his eighth grade year. (ECF No. 2 at ¶¶ 8, 47, 53.) He was diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") in kindergarten, and as a result, SCPS created an Individualized Education Plan ("IEP") to provide him with special education services, as mandated by the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. (Id. at ¶¶ 9-10.) On May 28, 2013, near the end of J.W.'s sixth grade year, Maple Shade Youth & Family Services, Inc. ("Maple Shade") performed a psychological assessment of J.W. and diagnosed him with ADHD, Oppositional Defiant Disorder ("ODD"), and problems with academics. (Id. at ¶ 14.) The findings and diagnoses made by Maple Shade were provided to SCPS, the Somerset Intermediate School, and J.W.'s IEP team. (Id. at ¶ 16.)
In seventh grade, J.W. received failing grades. (Id. at ¶ 18.) At some point near the end of that 2013-2014 school year, J.W. was informed that he would need to attend the 2014 Secondary Summer School Program (the "Program") in order to advance to the eighth grade. (Id.) On May 12, 2014, J.W.'s IEP team performed their annual meeting and assessment of J.W. (Id. at ¶ 19.) While the IEP team focused on his ADHD diagnosis, they did not "list, incorporate, or mention J.W.'s diagnosis of ODD or problems with academics." (Id. at ¶ 20.) At this meeting, the IEP team also determined that J.W. was not eligible for Extended Year Services, which would have provided special education services to him during the Program. (Id. at ¶ 21.) On May 17, 2014, after the IEP team's annual review, Maple Shade again performed a psychological assessment of J.W. and diagnosed him with Major Depressive Disorder ("MDD"). (Id. at ¶ 15.)
J.W. attended the 2014 Program held at Washington High School for grades six through twelve. (Id. at ¶¶ 4, 22, 26.) On the morning of July 3, 2014, he was walking in the hallway to class after breakfast when John Doe #1 grabbed J.W. from behind and "forcibly dragged him into the men's restroom," and a group of students followed.
On or about Monday, July 7, 2014, J.W. was called to the principal's office and was shown the video recording. (Id. at ¶ 46.) J.W. stated that he did nothing wrong, and the principal did not ask any further questions. (Id.) Later that day, he was expelled from the Program. (Id. at ¶ 47.) J.W.'s mother did not receive any verbal or written notice that J.W. was expelled or any information about subsequent administrative options or procedures. (Id. at ¶ 48.) In addition, no accommodations were made for J.W. following his expulsion. (Id. at ¶ 50.) When J.W.'s mother contacted SCPS to determine what credits J.W. earned from the Program, SCPS informed her that J.W. passed and would be eligible for the eighth grade. (Id. at ¶ 52.) However, SCPS refused to provide her with information about the expulsion. (Id. at ¶ 58.) After she brought the incident to the attention of the Assistant Superintendent of Instruction, she received a letter that stated that staff members' actions related to J.W.'s expulsion were appropriate. (Id. at ¶ 59.)
As a result of the incidents that occurred at the Program, J.W. was unwilling to reenroll in school at SCPS. (Id. at ¶ 53.) He was subsequently diagnosed with Post Traumatic Stress Disorder and Manic Depressive Disorder with suicidal ideation, which caused him to "[e]lope from his new school and home on more than one occasion, and ultimately being committed to Dover Behavioral Health." (Id. at ¶ 55.) After he was released from Dover Behavioral Health, he continued to receive mental health treatment that consisted of psychological evaluations twice a week and psychotherapy sessions five times a week. (Id. at ¶ 56.) J.W. presently receives mental health treatment in response to these alleged incidents. (Id. at ¶ 57.) The Plaintiff Tawes filed this Complaint in the Circuit Court for Somerset County.
A motion to dismiss for failure to exhaust administrative remedies is governed by Federal Rule of Civil Procedure 12(b)(1), which requires dismissal when the court lacks subject matter jurisdiction.
Five of Plaintiff's claims asserted against Defendants— negligence (Count I), negligence per se (Count II), violation of the Individuals with Disabilities Education Act ("IDEA") (Count III), violation of 29 U.S.C. § 705 ("Section 504") (Count VII), and educational malpractice (Count VIII)— allege that her son J.W. was deprived of a free appropriate public education ("FAPE") guaranteed to him under the IDEA during the 2014 Secondary Summer School Program (the "Program"). (ECF No. 2.) As explained below, all of these claims either directly or indirectly assert IDEA violations. Accordingly, the IDEA and Maryland law require Tawes to exhaust her administrative remedies before filing an action in this Court, which she has failed to do.
The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., ensures that children with disabilities receive needed special education services. Fry v. Napoleon Community Schools, 137 S.Ct. 743, 748 (2017). Congress enacted the IDEA "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). To ensure the delivery of a free appropriate public education (FAPE), the IDEA requires a school district to provide an appropriate Individualized Education Program ("IEP") for each child determined through evaluation to be learning disabled. 20 U.S.C. § 1414(d).
Defendants argue that Plaintiff's IDEA claim should be dismissed for failure to exhaust administrative remedies. (ECF No. 9-1 at 25-27.) The IDEA requires that a dissatisfied parent exhaust administrative procedures before seeking redress in the district courts. Fry, 137 S. Ct. at 748. "The district court's jurisdiction under the IDEA is limited to review of the final `findings and decision' of the administrative proceedings." A.H. by & through H.C. v. Craven Cty. Bd. of Educ., No. 4:16-CV-282-BO, 2017 WL 3493612, at *2 (E.D.N.C. Aug. 14, 2017) (citing 20 U.S.C. § 1415(i)(2)(A)). "The IDEA's exhaustion requirement serves the important purpose of allowing states to use their special expertise to resolve educational disputes." E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of Educ., 773 F.3d 509, 514 (4th Cir. 2014) (citing Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 208 (1982) (emphasizing that courts lack the expertise to resolve questions of educational policy)); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 526 (2007) ("Once the state educational agency has reached its decision, an aggrieved party may commence suit in federal court[.]"). Therefore, a plaintiff's failure to exhaust administrative remedies deprives the federal courts of subject matter jurisdiction over an IDEA claim. See, e.g., A.H., 2017 WL at *2 (citing M.M. ex rel. D.M. v. School Dist. of Greenville County, 303 F.3d 523, 536 (4th Cir. 2002)).
The IDEA provides the following step-by-step process for filing a grievance under the IDEA if a parent is dissatisfied with the services provided by a school to the child, as prescribed by the child's IEP:
Fry, 137 S. Ct. at 749. In Maryland, a person wishing to file suit under the IDEA must first file a petition with the Maryland Office of Administrative Hearings ("OAH"). Md. Code Regs. 13A.05.01.15; 34 C.F.R. 300.504. The OAH then conducts due process hearings pursuant to the provisions of the IDEA. J.R. v. Smith, No. DKC 16-1633, 2017 WL 3592453, at *2, n.2 (D. Md. Aug. 21, 2017) (citing Md. Code Ann., Educ. § 8-413; Md. Code Regs. 13A.05.01.15(C)).
Neither the Complaint (ECF No. 2) nor Plaintiff's Opposition (ECF No. 9) indicate that Plaintiff took any administrative steps required under the IDEA.
Plaintiff brings additional claims alleging that her son was denied a FAPE by Defendants' failure to provide related accommodations or special education services to J.W. Although Plaintiff does not bring these claims under the IDEA, because the gravamen of her claims is the denial of a FAPE to a child, the IDEA exhaustion requirements still apply. As the United States Supreme Court recently explained in Fry, "if a suit brought under [another law protecting children with disabilities] seeks relief that is also available under the IDEA, the plaintiff must first exhaust the IDEA's administrative procedures." 137 S. Ct. at 748. Under IDEA Section 1415(l), "a suit must seek relief for the denial of a FAPE, because that is the only `relief' the IDEA makes `available,' . . . [and] a court should look to the substance, or gravamen, of the plaintiff's complaint to determine whether the suit seeks relief for a denial of FAPE." Id. at 752. Fry provided the following practical test to determine whether the gravamen of a complaint concerns the denial of a FAPE:
Id. at 756. First, as explained above, Plaintiff has brought an IDEA claim based on identical facts to those used to support these claims under other laws designed to protect children with disabilities. Second, considering the Fry test, Counts I, II, VII, and VIII could only be brought in a school setting and only a child could allege the denial of the provision of accommodations per an IEP. Accordingly, because Plaintiff is seeking relief that is available under the IDEA, per Fry, she must meet the administrative exhaustion requirements of the IDEA and Maryland state law before bring suit in a district court. Fry, 137 S. Ct. at 748. As explained above, Plaintiff has not exhausted the administrative remedies available under the IDEA. Accordingly, Counts I, II, VII,
Plaintiff alleges that Defendants conspired to interfere with J.W.'s civil rights in violation of 42 U.S.C. § 1985 (Count V) and knew of such conspiracy in violation of 42 U.S.C. § 1986 (Count VI). (ECF No. 2 at ¶¶ 98-108.) A § 1985 claim requires an invidiously discriminatory motive on behalf of defendants, see Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268 (1993), and concrete facts which would demonstrate that defendants entered into an agreement to deprive Plaintiff of constitutional rights. Justice v. Hussey, No. 5:15-CV-546-BO, 2016 WL 1601193, at *3 (E.D.N.C. Apr. 20, 2016), aff'd, 670 Fed. App'x. 785 (4th Cir. 2016) (citing Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995)). Plaintiff, however, fails to state a claim for civil conspiracy under § 1985 because she has not alleged any invidiously discriminatory motive of the Defendants or any concrete facts that would support the conclusion that Defendants entered into an agreement to deprive J.W. of his constitutional rights. Rather, her § 1985 assertions are conclusory statements that are insufficient to survive a motion to dismiss under Rule 12(b)(6). See Twombly, 550 U.S. at 555; see also Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013).
As to Plaintiff's § 1986 claim, a claim under 42 U.S.C. § 1986 depends on the proper foundation of a 42 U.S.C. § 1985 claim. See Sellner v. Panagoulis, 565 F.Supp. 238, 248-49 (D. Md. 1982), aff'd, 796 F.2d 474 (4th Cir. 1986) ("A fortiori, [plaintiff] fails to state a claim for relief under section 1986 `since that section merely gives a remedy for misprision of a violation of 42 U.S.C. § 1985.'" (quoting Williams v. St. Joseph Hospital, 629 F.2d 448, 452 (7th Cir. 1980))). Thus, the dismissal of the Plaintiff's § 1985 claim necessitates the dismissal of Plaintiff's § 1986 claim.
Even if Plaintiff stated plausible claims under §§ 1985 and 1986, Defendants further argue that Gaddis is shielded by statutory and qualified immunity on these claims. (ECF No. 7-1 at 11-16.) Plaintiff failed to respond to Defendants' arguments, except to recast these counts as a "failure to provide JW with An Adequate Education." (ECF No. 9 at 4.) By failing to respond to Defendants' arguments, Plaintiff concedes these claims to Defendants. See, e.g., McRae v. Westcor Land Title Ins., No. RWT-16-2332, 2017 WL 1239682, at *3 (D. Md. Mar. 17, 2017) (determining that where plaintiff ignored defendant's argument and failed to address the issue whatsoever, Plaintiff conceded the point); Stenlund v. Marriott Int'l, Inc., 172 F.Supp.3d 874, 887 (D. Md. 2016) ("In failing to respond to [defendant's] argument, Plaintiff concedes the point."). Therefore, Counts V and VI are properly dismissed.
For the above stated reasons, all of Plaintiff's federal claims are dismissed. Remaining are Plaintiff's state law claims of wrongful expulsion against Defendants (Count IV), assault and battery against John Doe #1 (Count IX) and John Doe #2 (Count X), and invasion of privacy, unlawful use of photograph/personal depiction against John Doe #3 (Count XI). (ECF No. 2.) Given that this Court dismisses all of Plaintiff's federal claims, and the case is at the early stage of the proceedings,
When a district court declines to exercise pendent jurisdiction over state law claims originally brought in state court, it has the discretion to remand the case back to that state court. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614 (1988) ("A district court has discretion to remand to state court a removed case involving pendent claims upon a proper determination that retaining jurisdiction over the case would be inappropriate."). "The discretion to remand enables district courts to deal with cases involving pendent claims in the manner that best serves the principles of economy, convenience, fairness, and comity which underlie the pendent jurisdiction doctrine." Id. This case was originally filed in state court and it is therefore within this Court's discretion to remand Plaintiff's state law claims back to the Circuit Court for Somerset County. See Safar v. Tingle, 859 F.3d 241, 257 (4th Cir. 2017) ("[W]e have recognized that in declining supplemental jurisdiction . . . `a court may dismiss the claim or, if it was removed, remand it to State court.'" (quoting Hinson v. Norwest Fin. South Carolina, 239 F.3d 611, 616 (4th Cir. 2001))); Wood v. Crane Co., 764 F.3d 316, 321 (4th Cir. 2014) ("`[A] federal district court has discretion under the doctrine of pendent jurisdiction to remand a properly removed case to state court when all federal-law claims have been eliminated.'" (quoting Carnegie-Mellon, 484 U.S. at 345)). Accordingly, the remaining state law claims set forth in Counts IV, IX, X, and XI are REMANDED back to the Circuit Court for Somerset County.
For the reasons stated above, Defendants' Motion to Dismiss (ECF No. 7) is GRANTED as to Counts I, II, III, V, VI, VII, and VIII and those claims are DISMISSED. The remaining state law claims set forth in Counts IV, IX, X and XI are REMANDED back to the Circuit Court for Somerset County, Maryland.
A separate Order follows.
