United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM AND RECOMMENDATION AND ORDER
S. Cayer, United States Magistrate Judge.
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.
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.
fully considered the arguments, the record, and the
applicable authority, the undersigned respectfully recommends
that Defendants' Motions to Dismiss be granted
as discussed below.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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
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.
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. §
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 §
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
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).
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