J.P.E.H. v. Hooksett School, et a l . 07-CV-276-SM 10/22/08 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
J.P.E.H., by his parent and next friend, Elizabeth Campbell, Plaintiff
v. Civil No. 07-cv-276-SM Opinion No. 2008 DNH 193
Hooksett School District; Carol Soucv; Joanne Esau; Jagueline Perra; Janet Butler; Jeanne Kincaid; Marjorie Polak; Peter Folev; Judith Pillion; Sarah Browning; Mary Heath; and Charles (Phil) Littlefield, Defendants
O R D E R
Given the magistrate judge's preliminary review and
construction of Elizabeth Campbell's complaint (see document no.
6), this case consists of claims under the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq.;
Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation
Act"), 29 U.S.C. § 701, et seq.; and chapter 186-C of the New
Hampshire Revised Statutes Annotated ("RSA").
Before the court is a motion to dismiss the complaint filed
by six individuals who are employed by the Hooksett School
District ("HSD"), i.e., defendants Soucy, Perra, Butler, Kincaid,
Polak, and Littlefield (document no. 28), and a second motion to dismiss filed by another five individuals who are employed by the
New Hampshire Department of Education ("DOE"), i.e., deendants
Esau, Foley, Fillion, Browning, and Heath (document no. 35).
Campbell objects. For the reasons given, both motions are
granted.
A motion to dismiss for "failure to state a claim upon which
relief can be granted," F e d . R. C i v . P. 12(b)(6), requires the
court to conduct a limited inquiry, focusing not on "whether a
plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims." Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974). When considering a motion to
dismiss under Rule 12(b)(6), the court "must assume the truth of
all well-plead facts and give the plaintiff[s] the benefit of all
reasonable inferences therefrom." Alvarado Aguilera v. Negron,
509 F.3d 50, 52 (1st Cir. 2007) (quoting Ruiz v. Bally Total
Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007)). In
addition, "[a] document filed pro se is /to be liberally
construed,' and 'a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings
drafted by lawyers.'" Erickson v. Pardus, 127 S. C t . 2197, 2200
(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
" [A] complaint is properly dismissed for failure to state a claim
'only if the facts lend themselves to no viable theories of
2 recovery.''" Garnier v. Rodriquez. 506 F.3d 22, 26 (1st Cir.
2007) (quoting Phounq Luc v. Wvndham M q m t . Corp.. 496 F.3d 85, 88
(1st Cir. 2007)).
In his report and recommendation, which was approved by the
court (see document no. 16), the magistrate judge recommended
that all of Campbell's claims seeking monetary damages be
dismissed because "[i]t is black letter law that . . . money
damages of any sort are not available in a private suit under the
IDEA." Diaz-Fonseca v. Puerto Rico. 451 F.3d 13, 28 (1st Cir.
2006) (citing Nieves-Marquez v. Puerto Rico. 353 F.3d 108, 124
(1st Cir. 2003)). Moreover, "the IDEA does not permit an award
of any monetary relief, including tuition reimbursement and
compensatory education, against individual school officials who
are named in their personal capacities as defendants in an IDEA
action." Diaz-Fonseca. 451 F.3d at 34-35; see also Bradley v.
Ark. Dep't of Ed u c .. 301 F.3d 952, 957 n.6 (8th Cir. 2002) ("We
have found no authority, and the parties have not directed this
Court to any authority, awarding such expenses [i.e.. educational
expenses incurred by the plaintiffs that should have been paid by
the school district] against either state or local education
officials. This is hardly surprising, inasmuch as the IDEA is
devoid of textual support for such an award.") Because the IDEA
does not provide for any relief that could be awarded against the
3 individual defendants, Campbell has failed to state a claim
against them on which relief could be granted. Therefore, all
eleven individual defendants are entitled to dismissal of
plaintiff's IDEA claims against them.
Plaintiff's Rehabilitation Act claims against the individual
defendants must also be dismissed. The Rehabilitation Act
"forbids any program receiving federal aid from discriminating
against an individual by reason of a handicap." Toledo v.
Sanchez, 454 F.3d 24, 38 (1st Cir. 2006). "While '[t]he First
Circuit Court of Appeals and the Supreme Court have yet to decide
th[e] issue of individual liability[,] . . . the majority of
circuits that have confronted this issue [have held] that no
personal liability can attach to agents and supervisors under . .
. the Rehabilitation Act.'" Mitchell v. Mass. Dep't of Corr.,
190 F. Supp. 2d 204, 213 (D. Mass. 2002) (quoting Castro Ortiz v.
Faiardo, 133 F. Supp. 2d 143, 150-51 (D.P.R. 2001) (citing
cases)). The reasoning of Mitchell and Castro Ortiz is
persuasive. Because Campbell has alleged no facts suggesting
that any of the individual defendants is a "program or activity
receiving Federal financial assistance," Mitchell, 190 F. Supp.
2d at 213, she has failed to state a claim against them under the
Rehabilitation Act. Accordingly, all eleven individual
4 defendants are entitled to dismissal of plaintiff's
Rehabilitation Act claims against them.
Finally, plaintiff's state-law claims against the individual
defendants, under RSA chapter 186-C, must also be dismissed.
"RSA chapter 186-C . . . represents New Hampshire's efforts to
ensure compliance with the federal law." In re Milan Sch. Dist.,
123 N.H. 227, 231 (1983).1 Thus, it stands to reason that absent
some express statement to the contrary, from either the
legislature or the New Hampshire Supreme Court, the remedies
available under RSA chapter 186-C are no more extensive than
those under the IDEA.
The legislature has expressed itself clearly. "It is the
purpose of [RSA] chapter [186-C] to ensure that the state board
of education and the school districts of the state provide a free
and appropriate public education for all educationally disabled
children." RSA 186-C:1 (Supp. 2007) (emphasis added). The
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J.P.E.H. v. Hooksett School, et a l . 07-CV-276-SM 10/22/08 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
J.P.E.H., by his parent and next friend, Elizabeth Campbell, Plaintiff
v. Civil No. 07-cv-276-SM Opinion No. 2008 DNH 193
Hooksett School District; Carol Soucv; Joanne Esau; Jagueline Perra; Janet Butler; Jeanne Kincaid; Marjorie Polak; Peter Folev; Judith Pillion; Sarah Browning; Mary Heath; and Charles (Phil) Littlefield, Defendants
O R D E R
Given the magistrate judge's preliminary review and
construction of Elizabeth Campbell's complaint (see document no.
6), this case consists of claims under the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq.;
Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation
Act"), 29 U.S.C. § 701, et seq.; and chapter 186-C of the New
Hampshire Revised Statutes Annotated ("RSA").
Before the court is a motion to dismiss the complaint filed
by six individuals who are employed by the Hooksett School
District ("HSD"), i.e., defendants Soucy, Perra, Butler, Kincaid,
Polak, and Littlefield (document no. 28), and a second motion to dismiss filed by another five individuals who are employed by the
New Hampshire Department of Education ("DOE"), i.e., deendants
Esau, Foley, Fillion, Browning, and Heath (document no. 35).
Campbell objects. For the reasons given, both motions are
granted.
A motion to dismiss for "failure to state a claim upon which
relief can be granted," F e d . R. C i v . P. 12(b)(6), requires the
court to conduct a limited inquiry, focusing not on "whether a
plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims." Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974). When considering a motion to
dismiss under Rule 12(b)(6), the court "must assume the truth of
all well-plead facts and give the plaintiff[s] the benefit of all
reasonable inferences therefrom." Alvarado Aguilera v. Negron,
509 F.3d 50, 52 (1st Cir. 2007) (quoting Ruiz v. Bally Total
Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007)). In
addition, "[a] document filed pro se is /to be liberally
construed,' and 'a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings
drafted by lawyers.'" Erickson v. Pardus, 127 S. C t . 2197, 2200
(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
" [A] complaint is properly dismissed for failure to state a claim
'only if the facts lend themselves to no viable theories of
2 recovery.''" Garnier v. Rodriquez. 506 F.3d 22, 26 (1st Cir.
2007) (quoting Phounq Luc v. Wvndham M q m t . Corp.. 496 F.3d 85, 88
(1st Cir. 2007)).
In his report and recommendation, which was approved by the
court (see document no. 16), the magistrate judge recommended
that all of Campbell's claims seeking monetary damages be
dismissed because "[i]t is black letter law that . . . money
damages of any sort are not available in a private suit under the
IDEA." Diaz-Fonseca v. Puerto Rico. 451 F.3d 13, 28 (1st Cir.
2006) (citing Nieves-Marquez v. Puerto Rico. 353 F.3d 108, 124
(1st Cir. 2003)). Moreover, "the IDEA does not permit an award
of any monetary relief, including tuition reimbursement and
compensatory education, against individual school officials who
are named in their personal capacities as defendants in an IDEA
action." Diaz-Fonseca. 451 F.3d at 34-35; see also Bradley v.
Ark. Dep't of Ed u c .. 301 F.3d 952, 957 n.6 (8th Cir. 2002) ("We
have found no authority, and the parties have not directed this
Court to any authority, awarding such expenses [i.e.. educational
expenses incurred by the plaintiffs that should have been paid by
the school district] against either state or local education
officials. This is hardly surprising, inasmuch as the IDEA is
devoid of textual support for such an award.") Because the IDEA
does not provide for any relief that could be awarded against the
3 individual defendants, Campbell has failed to state a claim
against them on which relief could be granted. Therefore, all
eleven individual defendants are entitled to dismissal of
plaintiff's IDEA claims against them.
Plaintiff's Rehabilitation Act claims against the individual
defendants must also be dismissed. The Rehabilitation Act
"forbids any program receiving federal aid from discriminating
against an individual by reason of a handicap." Toledo v.
Sanchez, 454 F.3d 24, 38 (1st Cir. 2006). "While '[t]he First
Circuit Court of Appeals and the Supreme Court have yet to decide
th[e] issue of individual liability[,] . . . the majority of
circuits that have confronted this issue [have held] that no
personal liability can attach to agents and supervisors under . .
. the Rehabilitation Act.'" Mitchell v. Mass. Dep't of Corr.,
190 F. Supp. 2d 204, 213 (D. Mass. 2002) (quoting Castro Ortiz v.
Faiardo, 133 F. Supp. 2d 143, 150-51 (D.P.R. 2001) (citing
cases)). The reasoning of Mitchell and Castro Ortiz is
persuasive. Because Campbell has alleged no facts suggesting
that any of the individual defendants is a "program or activity
receiving Federal financial assistance," Mitchell, 190 F. Supp.
2d at 213, she has failed to state a claim against them under the
Rehabilitation Act. Accordingly, all eleven individual
4 defendants are entitled to dismissal of plaintiff's
Rehabilitation Act claims against them.
Finally, plaintiff's state-law claims against the individual
defendants, under RSA chapter 186-C, must also be dismissed.
"RSA chapter 186-C . . . represents New Hampshire's efforts to
ensure compliance with the federal law." In re Milan Sch. Dist.,
123 N.H. 227, 231 (1983).1 Thus, it stands to reason that absent
some express statement to the contrary, from either the
legislature or the New Hampshire Supreme Court, the remedies
available under RSA chapter 186-C are no more extensive than
those under the IDEA.
The legislature has expressed itself clearly. "It is the
purpose of [RSA] chapter [186-C] to ensure that the state board
of education and the school districts of the state provide a free
and appropriate public education for all educationally disabled
children." RSA 186-C:1 (Supp. 2007) (emphasis added). The
statute charges no entities other than the school districts of
the state with the obligation to provide a free and appropriate
public education for educationally disabled children. "All
1 While the "federal law" in force when Milan School District was decided was the Education for All Handicapped Children Act of 1975, see 127 N.H. at 230, there is no reason to believe that the statement in Milan School District applies with any less force to the IDEA.
5 expenses incurred by a school district in administering the law
in relation to education for educationally disabled children
shall be paid by the school district where the child resides,
except as follows . . RSA 186-C:13, I (1999) (emphasis
added). None of the exceptions referred to in RSA 186-C:13 makes
an individual school district employee or an employee of the DOE
liable for the expenses of providing services to educationally
disabled children. Finally, "[a]ny action against a local school
district seeking to enforce the special education rights under
state or federal law shall be commenced by requesting an
administrative due process hearing from the department of
education . . ." RSA 186-C:16-b, I (1999) (emphasis added). RSA
186-C:16-b does not describe or authorize actions against any
entity other than a local school district.
In short, RSA chapter 186-C does not establish a private
right of action against individual school district employees or
employees (or contractors) of the DOE. Because Campbell has
failed to state a claim against the individual defendants under
RSA chapter 186-C, all eleven are entitled to dismissal of
Campbell's state-law claims against them.
For the reasons given, the motions to dismiss (document no.
28 and document no. 35) are both granted.
6 SO ORDERED.
Steven Jj/McAuliffe Chief Judge
October 22, 2008
cc: Elizabeth J. Campbell, pro se Melissa A. Hewey, Esq. Anthony I. Blenkinsop, Esq.