United States District Court, E.D. North Carolina, Western Division
ESTELLE SINGLETARY, on behalf of N.M.M., a minor child, Plaintiff,
CUMBERLAND COUNTY SCHOOLS, Defendant.
LOUISE W. FLANAGAN, District Judge.
This matter is before the court on defendant's partial motion to dismiss for lack of subject matter jurisdiction predicated on failure to exhaust administrative remedies, under Federal Rule of Civil Procedure 12(b)(1). (DE 57). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United States Magistrate Judge Robert B. Jones, Jr., entered a memorandum and recommendation ("M&R"), (DE 85), wherein it is recommended defendant's motion be granted in part. The parties have filed objections to the M&R, and the time for response has passed. In this posture, the issues raised are ripe for ruling. For the reasons stated below, the court adopts in part and rejects in part the M&R, and defendant's motion is granted.
STATEMENT OF THE CASE
Plaintiff, proceeding pro se, commenced this action on behalf of N.M.M., a minor with Schizencephaly and spastic quadriplegic cerebral palsy, under the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. §§ 1400-82. By complaint, filed November 14, 2012, plaintiff requested relief from an adverse decision of a state administrative proceeding completed in July 2012, as provided for by the IDEA. See 20 U.S.C. § 1415(i). See generally ES v. Cumberland Cnty. Schs., 12 EDC 03259 (2012) (July 2012 Order, DE 70).
In her complaint, plaintiff alleged defendant violated N.M.M.'s right to the least restrictive educational environment ("LRE"); failed to provide assistive technologies, including a tricycle, spoons, cups, and communication devices, tailored to N.M.M.'s developmental level; and failed to individualize N.M.M.'s individualized education plan ("IEP") for the 2011-12 school year, by not providing measurable goals. (Compl., DE 1, at 4-5). In addition, plaintiff sought review of certain evidentiary rulings made by the administrative law judge ("ALJ") who presided over the state administrative proceeding, and relief under the Americans with Disabilities Act ("ADA"). (Id. at 5-6). Plaintiff requested $1, 300, 000.00 in damages; an apology letter from defendant; as well as unspecified training and requirements for defendant's employees who worked with N.M.M.
On December 19, 2012, defendant filed a motion to dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. (DE 5). Therein, defendant argued the court could not grant the relief requested by plaintiff and that the court lacked subject matter jurisdiction over plaintiff's ADA claim, because plaintiff failed to exhaust her administrative remedies. Although plaintiff responded to defendant's motion, she also sought leave to amend her complaint on January 15, 2013. In her proposed first amended complaint, plaintiff sought to add further claims under the IDEA, including an allegation that defendant prevented N.M.M. from "enter[ing] her rightful LRE"; claims for retaliation and discrimination under the Rehabilitation Act; a claim under the ADA; and a claim pursuant to 42 U.S.C. § 1983. (DE 12-1). In addition to her motion to amend, plaintiff filed a motion for joinder, pursuant to Federal Rule of Civil Procedure 18(a), whereby she sought to join claims against defendant, arising out of a second administrative proceeding, which concluded with an administrative order of dismissal in October 2012. Such claims contested N.M.M.'s 2012-13 IEP. See generally ES v. Cumberland Cnty. Schs., 12 EDC 07742 (Order of Dismissal Without Prejudice, Oct. 24, 2012) (October 2012 Dismissal Order, DE 25-8).
On August 30, 2013, a magistrate judge denied plaintiff's motion for joinder without prejudice. (DE 17). The magistrate judge also denied plaintiff's motion for leave to amend in part, where the proposed amended complaint asserted claims for discrimination under the Rehabilitation Act, claims under the ADA, and claims pursuant to § 1983, finding that all such claims were futile. However, the magistrate judge allowed plaintiff to amend her complaint to assert further claims pursuant to the IDEA and retaliation under the Rehabilitation Act. Finally, the magistrate judge recommended this court deny defendant's motion to dismiss as moot.
On August 30, 2013, the court adopted the magistrate judge's recommendation and denied defendant's motion to dismiss as moot. (DE 19). On that same date, plaintiff filed the first amended complaint. (Am. Compl., DE 18). Shortly after, on September 11, 2013, defendant sought a more definite statement, pursuant to Federal Rule of Civil Procedure 12(e), arguing plaintiff's statement in the first amended complaint regarding N.M.M.'s "rightful LRE" was so vague or ambiguous that defendant could not reasonably prepare a response. (DE 20). On September 17, 2013, plaintiff renewed her motion for joinder, again seeking review of the October 2012 Dismissal Order. (DE 22).
On October 10, 2013, defendant's motion for a more definite statement, as well as plaintiff's renewed motion for joinder, were referred to the magistrate judge for ruling. On November 26, 2013, the magistrate judge denied defendant's motion for a more definite statement, holding defendant's concerns could be allayed through discovery. (DE 27). He also denied, without prejudice, plaintiff's renewed motion for joinder, because plaintiff failed to attach a proposed amended complaint to her motion.
On December 10, 2013, plaintiff filed a motion to amend her first amended complaint. (DE 32). On January 9, 2014, plaintiff's motion was referred to the magistrate judge. During the pendency of plaintiff's motion to amend, on December 27, 2013, the parties filed separate Rule 26(f) reports. Pursuant to Local Civil Rule 72.2, the parties' Rule 26(f) reports were referred to the magistrate judge for conduct of a hearing, pursuant to Federal Rule of Civil Procedure 16(b). On February 24, 2014, the magistrate judge entered case management order, after resolution of discrepancies between the parties' Rule 26(f) reports at hearing. (DE 45). In addition, the court sua sponte issued order governing the receipt of the administrative record consistent with Local Rule 5.1(a)(1) and as contemplated by 20 U.S.C. § 1415(i)(2)(C)(i), where plaintiff sought relief from adverse findings and decision of a state administrative proceeding under the IDEA. ("Administrative Record Order, " DE 46).
In the Administrative Record Order, the court directed the North Carolina Department of Public Instruction to certify and transmit the administrative record associated with the July 2012, Order to the Clerk of Court by March 17, 2014. (Administrative Record Order, at 2). The court directed the parties to file the same on the docket within seven days of the Department of Public Instruction's transmittal of the administrative record to the Clerk. (Id. at 3).
On March 14, 2014, over defendant's objection, the magistrate judge entered order granting plaintiff's motion for leave to amend her first amended complaint. (DE 48). Plaintiff's second amended complaint was filed the same day. (Second Am. Compl., DE 49). In her second amended complaint, plaintiff asserts multiple claims, summarized in pertinent part as follows:
Claim Paragraph 2: defendant failed to follow specific goals set forth in N.M.M.'s 2011-12 IEP, and the ALJ conducting the hearing improperly excluded certain evidence tending to show the same;
Claim Paragraph 3: defendant did not allow certain assistive technologies, including an adaptive tricycle for N.M.M.'s physical therapy and assistive technologies beyond "two choices and a single big mac switch" for N.M.M.'s speech therapy;
Claim Paragraph 8: defendant humiliated plaintiff by providing N.M.M. a walker at the beginning of the 2012-13 school year and harmed N.M.M. by moving all her classmates to "typical" classrooms, but leaving her in a special needs setting;
Claim Paragraph 9: defendant failed to provide appropriate therapeutic services for N.M.M. at school;
Claim Paragraph 10: defendant retaliated against N.M.M. for plaintiff's 2011-12 administrative complaint;
Claim Paragraph 13: defendant removed N.M.M. to a different elementary school during the ...