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A.C. v. Charlotte Mecklenburg Schools Board of Education

United States District Court, W.D. North Carolina, Charlotte Division

August 1, 2019

A.C., a minor, by her parent HIND BOUABID, Plaintiffs,
CHARLOTTE MECKLENBURG SCHOOLS BOARD OF EDUCATION, NORTH CAROLINA STATE BOARD OF EDUCATION, MARK JOHNSON, State Superintendent of Public Instruction in his official and individual capacity, SHERRY H. THOMAS, NC Department of Public Instruction Interim Director of Exceptional Children in her official and individual capacity, ANN W. STALNAKER, Assistant Superintendent for Programs for Exceptional Children in her official and individual capacity, ERIC MATTHEW BAILEY, Exceptional Children's Community Coordinator in his individual and official capacity, AMANDA MCPETERS, Exceptional Children's Manager/Exceptional Children's Teacher in her individual and official capacity, Defendants.


          David S. Cayer, United States Magistrate Judge.

         THIS MATTER is before the Court on State Defendants' “Motion to Dismiss” (Doc. 9), Individual Defendant's Mark Johnson's and Sherry H. Thomas' “Motion to Dismiss, ” (Doc. 15) and Plaintiff's “Response in Opposition . . . [to Defendants'] Motion[s] to Dismiss” (Doc. 18), and the parties' briefs and exhibits.

         This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and these Motions are ripe for the Court's consideration.

         Having fully considered the arguments, the record, and the applicable authority, the undersigned respectfully recommends that Defendants' Motions to Dismiss be granted as discussed below.


         Plaintiff A.C. filed a Petition for Contested Case Hearing on October 2, 2017, alleging denial of a free appropriate public education (“FAPE”) regarding her Individualized Education Program (“IEP”). A.C. sought relief under the Individuals with Disabilities Education Act (“IDEA”). A.C. is diagnosed with Developmental Delay, Intellectual Disability - Moderate and Autism. A hearing was held before an Administrative Law Judge (“ALJ”) on nonconsecutive dates between January and March 2018. The ALJ entered a decision on June 8, 2018 finding that A.C. showed a right to relief regarding the lack of benchmarks or other measurable criteria in her IEP as they pertained to a least restrictive environment. The decision allowed for an appeal to be taken to the North Carolina State Board of Education (“Board”) within thirty days of receipt of the decision.

         Plaintiff and Defendant Charlotte Mecklenburg Schools Board of Education (“CMS”) appealed the ALJ's decision to the Office of Administrative Hearings (“OAH”) on Monday, July 9, 2018. The Board determined that both appeals were untimely. Both parties emailed the Dispute Resolution Consultant for the North Carolina Department of Public Instruction (“DPI”) and requested reconsideration of the Board's determination. Those requests were denied, and the parties again requested review of the decision, this time by either the Attorney General or the State Review Hearing Officer (“SRO”). That request was granted on October 11, 2018. The Board's decision was upheld on October 18, 2018. In the SRO's decision, both parties were advised of their right to initiate a civil action in state or federal court “based on this Decision”- meaning the Decision on the timeliness of the appeals rather than the merits of the case.

         Plaintiff filed her Complaint in this action on January 21, 2019 alleging (1) failure to provide A.C. a FAPE in violation of IDEA, (2) discriminatory conduct against Plaintiff based upon A.C.'s disability in violation of Section 504 of the Rehabilitation Act (“Section 504”) and Title II of the Americans with Disabilities Act (“ADA”), and (3) deprivation of Plaintiff's constitutional rights in violation of 42 U.S.C. § 1983.


         Fed. R. Civ. P. 12(b)(1) provides for dismissal where the court lacks jurisdiction over the subject matter of the lawsuit. The court should grant a 12(b)(1) motion “if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Richmond, Fredericksburg & Potomoc R.R. Co. v. U.S., 945 F.2d 765, 768 (4th Cir. 1991). Individuals seeking relief under IDEA must exhaust their administrative remedies before filing a civil action. 20 U.S.C. § 1415(i)(2).

         North Carolina follows a two-tiered administrative review process. First, an ALJ conducts the due process hearing required by IDEA. N.C. Gen. Stat. § 115C-109.6(f). Second, an aggrieved party may seek review of the first-tier decision by filing a written notice of appeal with the North Carolina State Board of Education, Exceptional Children Division “within 30 [thirty] days after receipt of notice of the decision.” N.C. Gen. Stat. § 115C-109.9(a), 109.6(g). After a SRO reviews the merits of the ALJ's decision in accordance with 20 U.S.C. § 1415(g), 34 CFR § 300.514, N.C. Gen. Stat. § 115C-109.9, and renders a decision, a party may bring a civil action in federal or state court. N.C. Gen. Stat. § 115C-109.9(d). In a two-tiered administrative review process, a first-tier decision that is not appealed is final. 34 CFR § 300.514;

         The Fourth Circuit has held that a plaintiff's failure to exhaust administrative remedies available under IDEA deprives the court of subject matter jurisdiction. M.M. v. Sch. Dist. of Greenville Cnty., 303 F.3d 523, 526 (4th Cir. 2002). See also, E.L. v. Chapel Hill-Carrboro Bd. of Educ., 773 F.3d 509, 516 (4th Cir. 2014)(because student failed to properly appeal ALJ's decision to state review officer, student failed to exhaust administrative remedies).

         Parties may not circumvent the exhaustion requirement by cloaking their IDEA claim under the guise of another law that does not require exhaustion such as § 1983, Section 504, or the ADA. See, J.S. v. Isle of Wight Cnty. Sch. Bd., 402 F.3d 468, 480 (4th Cir. 2005). In Fry v. Napoleon Cmty. Sch., the Supreme Court held that the “exhaustion rule hinges on whether a lawsuit seeks relief for the denial of a FAPE, ” and “[i]f a lawsuit charges such a denial, a plaintiff cannot escape § 1415(1) merely by bringing her suit under a statue other than the IDEA.” 137 S.Ct. 743, 747 (U.S. 2017).

         In determining whether the substance of a complaint concerns the denial of FAPE, the Supreme Court held that courts may consider (1) “Could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school, . . .?” and (2) “[C]ould an adult at the school [such as an employer or visitor] have pressed essentially the same grievance?” Id. at 747. If the answers are “no, ” “the complaint probably does concern a FAPE.” Id. In addition, “prior pursuit ...

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