L.W. v. Enterprise Elementary School District

• Court: District Court, E.D. California
• Decided: October 20, 2022
• Docket: 2:22-cv-00716
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 | L.W., a minor, by and through his Guardian Ad No. 2:22-cv-00716-KJM-DMC Litem, Nichole Wilder, 12 ORDER B Plaintiff, 14 v: 15 | Enterprise Elementary School District, a local education agency, 16 Defendant. 17 18 19 In this suit under the Individuals with Disabilities Education Act (IDEA), defendant 20 | Enterprise Elementary School District (EESD) moves to dismiss the plaintiff's complaint for lack 21 | of subject matter jurisdiction and failure to state a claim. For the reasons below, the court denies 22 | the motion.!

' The court grants the defendant’s request for judicial notice of orders and pleadings from □ related administrative proceeding. See Request for Judicial Notice (RJN), ECF No. 12-2; Moreno v. Ross Island Sand & Gravel Co., No. 2:13-CV-00691-KJM, 2015 WL 5604443, at *2 (E.D. Cal. Sept. 23, 2015) (courts can take judicial notice of “pleadings and orders in related proceedings”). But the court does not take judicial notice of disputed factual information contained in those documents. See Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001).

1 I. BACKGROUND 2 Plaintiff L.W. is a five-year old student with Wolf-Hirschhorn Syndrome who has 3 multiple disabilities, including “limited ability to fight off an infection.” Compl. ¶¶ 5, 8–9, ECF 4 No. 1. Defendant EESD is a school district responsible for providing special education and 5 related services for L.W. under the IDEA and state law. Id. ¶¶ 5, 7. 6 L.W.’s conditions require him to receive education remotely at home, and L.W.’s parent 7 requested EESD to provide in-person assistance for L.W. to navigate a laptop or other 8 technology. Id. ¶ 12. Soon after receiving the parents’ request, EESD filed a due process 9 complaint with the Office of Administrative Hearings (OAH), seeking an order permitting it to 10 “unconditionally implement” teleservices and to “unconditionally exchange medical information” 11 with L.W.’s physicians. RJN Ex. A at 5.2 The plaintiff also filed a due process complaint with 12 OAH, and OAH consolidated the two related matters. Compl. ¶ 14; see Compl. Ex. 1 at 2, ECF 13 No. 1-1. 14 On January 31, 2022, OAH issued a decision finding for the plaintiff on each issue. 15 Compl. ¶ 15. The administrative law judge (ALJ) found EESD’s “offer of exclusive virtual 16 services denied Student a FAPE [Free and Appropriate Public Education].” Compl. Ex. 1 at 23. 17 Further, the ALJ concluded it “was not the responsibility of Parent” to provide L.W. the “needed 18 assistance to facilitate the technology and maintain attention while in school with consistent 19 support.” Id. at 24. The ALJ noted the plaintiff’s reliance on “equitable judicial discretion to 20 craft an appropriate compensatory education remedy” despite “fail[ing] to submit any 21 documentary or testimonial evidence that addressed compensatory education.” Id. at 39. In the 22 end, the ALJ ordered EESD to fund several services provided by a nonpublic agency of the 23 “parent’s choice,” including specialized academic instruction, speech and language services, 24 occupational therapy, and physical therapy. Compl. ¶ 16; Compl. Ex. 1 at 42. 25 While the express language of the order does not specify which party has the 26 burden of identifying certified nonpublic agencies, see Compl. Ex. 1 at 42, the plaintiff

2 When citing page numbers on filings, the court uses the pagination automatically generated by the CM/ECF system. 1 believed the decision placed the burden on the parent. See Compl. ¶ 17. Since the OAH 2 decision issued, L.W.’s parent has been unable to identify nonpublic agencies to provide 3 L.W. with the services the ALJ ordered. Id. ¶¶ 18–20. L.W.’s parent “has approached 4 EESD staff to inquire about potential nonpublic agencies,” but “obtained no information 5 about such available agencies.” Id. ¶ 20. The plaintiff does “not seek reversal of any of 6 the findings or the basic Order for services by OAH.” Id. ¶ 15. Rather, the plaintiff seeks 7 “an alteration” of the remedies to place the burden of locating nonpublic agencies to 8 provide compensatory services to L.W. on EESD, not the parent. Id. ¶¶ 21–26; see OAH 9 Order Redline, ECF No. 21. The plaintiff also seeks “reasonable attorney’s fees and costs 10 in prosecuting this matter.” Id. ¶ 28. 11 The defendant moves to dismiss the plaintiff’s complaint for lack of subject matter 12 jurisdiction and for failure to state a claim. Mot., ECF No. 12. Plaintiff L.W., a minor, by 13 and through his guardian ad litem, Nichole Wilder, opposes the motion. Opp’n, ECF No. 14 13. The defendant has replied, Reply, ECF No. 14.3 The court held a videoconference 15 hearing on October 7, 2022. Tania Whiteleather appeared for L.W. and Kyle Raney 16 appeared for the defendant.4 See Min. Order, ECF No. 20. At hearing, the court granted 17 the plaintiff’s petition for appointment of guardian ad litem and appointed Nichole Wilder 18 as the guardian ad litem for L.W. See id. 19 II. LEGAL STANDARD 20 A party may move to dismiss for “failure to state a claim upon which relief can be 21 granted.” Fed. R. Civ. P. 12(b)(6). The motion may be granted if the complaint lacks a 22 “cognizable legal theory” or if its factual allegations do not support a cognizable legal theory. 23 Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019) (quoting Balistreri v.

3 The defendant objects to Nichole Wilder’s declarations supporting the plaintiff’s opposition as an improper attempt to introduce new information not pled in the complaint. Wilder Decl. Obj., ECF No. 14-2. Because the court does not rely on these declarations in deciding the motion, the defendant’s objection is denied as moot. 4 At hearing, the court cautioned counsel for the defendant that any future noncompliance with the court’s standing order requiring exhaustion of meet and confer efforts prior to filing motions may result in sanctions. 1 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)). The court assumes all factual 2 allegations are true and construes “them in the light most favorable to the nonmoving party.” 3 Steinle v. City & Cnty. of San Francisco, 919 F.3d 1154, 1160 (9th Cir. 2019) (quoting Parks Sch. 4 of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995)). If the complaint’s allegations do 5 not “plausibly give rise to an entitlement to relief,” the motion must be granted. Ashcroft v. Iqbal, 6 556 U.S. 662, 679 (2009). 7 III. ANALYSIS 8 A. Statutory Standing—Aggrieved Party 9 The defendant first seeks to dismiss the plaintiff’s complaint for lack of subject matter 10 jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The defendant argues the plaintiff 11 does not have standing under the IDEA because the plaintiff is not an aggrieved party. The 12 defendant confuses Article III standing and statutory standing. Lack of standing under a statute 13 may be challenged under Rule 12(b)(6) for failure to state a claim, and not under Rule 12(b)(1). 14 The court construes the defendant’s argument as one based on Rule 12(b)(6) and will proceed 15 with a statutory standing analysis. 16 The defendant claims the plaintiff cannot be an aggrieved party because the plaintiff 17 “prevailed on every single issue in the underlying due process hearing.” P. & A. at 12, ECF No. 18 12-1. Further, the defendant argues “a plaintiff must demonstrate that they were denied relief 19 they affirmatively requested.” Id. The IDEA provides procedural safeguards for children with 20 disabilities. S.C. by K.G. v. Lincoln Cnty. Sch. Dist., 16 F.4th 587, 589 (9th Cir. 2021). One such 21 safeguard is the right of “any party aggrieved” by the “findings and decisions” rendered during an 22 impartial due process hearing to bring a civil action in federal court. 20 U.S.C. § 1415(i)(2). In 23 California, a due process hearing is heard in the first instance by an ALJ within the state’s OAH. 24 Martinez v. Newsom, 46 F.4th 965, 973 (9th Cir. 2022); see Cal. Educ. Code §§ 56501, 56505. 25 The IDEA does not define “party aggrieved.” However, the Ninth Circuit has found “a 26 ‘party aggrieved’ . . . includes [a plaintiff] who is aggrieved by a school district's failure to either 27 appeal or comply with a final administrative order and who seeks court enforcement of that final 28 administrative order.” S.C. by K.G., 16 F.4th at 591 (9th Cir. 2021). The Ninth Circuit cites to a 1 First Circuit decision, which concludes “Congress could not have intended to leave plaintiffs 2 without an IDEA statutory remedy when they succeed before the hearing officer and the school 3 system does not appeal the administrative decision but simply fails to fulfill a continuing 4 obligation to provide services.” Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 115–16 (1st Cir. 5 2003). The First Circuit observes, “Congress could not have intended for a school system to be in 6 a better position under IDEA when it refuses to comply with a final administrative order.” Id. at 7 116 (emphasis in original). Leaving a court powerless to issue injunctive relief in such 8 circumstances would create a perverse incentive for school systems “not to announce their 9 intentions to refuse to comply with those orders, and generally not to comply.” Id. 10 Here, the plaintiff argues “the term ‘aggrieved’ must include a student who . . . is given 11 compensatory education services but cannot, because of language in the hearing officer’s order 12 and simple facts, access that remedy. Such a situation results in no remedy for the student at all.” 13 Opp’n at 7. The court finds the plaintiff’s argument persuasive. Congress’s clear intent in 14 providing procedural protections in the IDEA is to ensure a child’s right to a FAPE is enforced. 15 Lake Washington Sch. Dist. No. 414 v. Off. of Superintendent of Pub. Instruction, 634 F.3d 1065, 16 1067 (9th Cir. 2011). In this case, the ALJ found L.W. was denied a FAPE and, relying on the 17 judge’s equitable powers, ordered compensatory education to remedy the denial of a FAPE. 18 Compl. Ex. 1 at 24, 37–39. However, both in its reply and during the hearing, the defendant 19 argues nothing in the ALJ’s order obligated EESD to provide anything other than funding for the 20 services. See Reply at 6 (“The OAH Decision does not direct the District to assist Plaintiff with 21 locating [non-public agencies] to provide compensatory education services to Plaintiff.”). 22 Because the express language of the order did not clarify who had the burden of identifying 23 certified nonpublic agencies that can provide the compensatory education services the ALJ 24 ordered for L.W., the plaintiff’s mother assumed she has had the burden until now. But if the 25 parent is required to carry the burden to identify agencies to provide L.W. with compensatory 26 education, particularly given her unsuccessful efforts to date, EESD would be allowed to escape 27 any responsibility for its past denial of a FAPE. Cf. M.C. on Behalf of J.C. v. Cent. Reg'l Sch. 28 Dist., 81 F.3d 389, 397 (3d Cir. 1996) (“[A] child's entitlement to special education should not 1 depend upon the vigilance of the parents . . . .). The plaintiff in this case is aggrieved because the 2 denial of a FAPE to L.W. continues to not be remedied. 3 The defendant’s motion, to the extent it challenges standing, will be denied. 4 B. Exhaustion of Remedies 5 The defendant also moves to dismiss the plaintiff’s complaint under Rule 12(b)(6) for 6 failure to exhaust administrative remedies. P. & A. at 14. While at hearing, the defendant 7 conceded exhaustion of remedies is a secondary argument, the court addresses it here. The 8 defendant argues the plaintiff failed to exhaust administrative remedies because the plaintiff did 9 not seek the appropriate remedies during the due process hearing and did not file a motion for 10 reconsideration under California law. P. & A. at 14–15; Reply at 7. Here as well, the court 11 disagrees. 12 “Once a due process hearing [sic] issues an order that is not appealed by either party, the 13 IDEA requires that the order be treated as ‘final.’ 20 U.S.C. § 1415(i)(1)(A). No other 14 administrative procedures are required to be exhausted.” Porter v. Bd. of Trustees of Manhattan 15 Beach Unified Sch. Dist., 307 F.3d 1064, 1071 (9th Cir. 2002). Here, the OAH decision is “the 16 final administrative determination.” Cal. Ed. Code § 5605(h). The plaintiff did not need to 17 exhaust any other state procedures. See Porter, 307 F.3d at 1074 (“Only § 1415 procedures are 18 required to be exhausted prior to suit.”). 19 The defendant’s motion, to the extent based on non-exhaustion, also will be denied. 20 C. Futility of Claim 21 Lastly, the defendant argues the plaintiff’s first claim seeking partial alteration of the 22 OAH remedy should be dismissed because the plaintiff “failed to offer any rationale as to why an 23 order requiring [the defendant] to ‘locate a nonpublic agency to provide the compensatory 24 services to L.W.’ would result in a more favorable outcome for Plaintiff.” P. & A. at 16. The 25 defendant argues, because the plaintiff “seems to have already contacted all of the relevant 26 nonpublic agencies in the area and determined them unsuitable,” “[t]here is no reason to believe 27 [the defendant] would have a different, more favorable result. . . .” Id. at 17. 1 The ALJ’s order requires the defendant “to provide” the plaintiff with “individual, in- 2 person, in-home” specialized academic instruction, speech and language, occupational therapy, 3 and physical therapy “as equitable remedies for [the defendant’s] FAPE denials . . . .” Compl. 4 Ex. 1 at 40. Ultimately, as the plaintiff asserts, it is the responsibility of the defendant to provide 5 L.W. with these services as remedies for violating L.W.’s rights under the IDEA. Id.; see D.E. v. 6 Cent. Dauphin Sch. Dist., 765 F.3d 260, 272–73 (3d Cir. 2014) (noting district court and 7 defendants’ interpretation of hearing officer’s order, “which places all of the responsibility on 8 [the plaintiff] and his parents to remedy [the defendant’s] failures under the IDEA, is contrary to 9 the very purpose of the statute, which is to provide a remedy for those denied a FAPE” (emphasis 10 in original)). As the defendant itself notes in reply, the ALJ’s award has “no restrictions on cost 11 or location.” Reply at 4. Even if the plaintiff has been unable to locate services within the 12 Redding area, the ALJ’s order does not impose a geographic limitation and does not relieve the 13 defendant of its obligation to provide compensatory education. Moreover, the defendant may 14 have resources unavailable to the parent to identify appropriate services, wherever the provider 15 may be located. 16 IV. CONCLUSION 17 For the reasons above, the court denies the defendant’s motion to dismiss. The 18 defendant shall file its answer within fourteen days. 19 Within twenty-one days, the parties shall file a joint status report advising the court of 20 their positions regarding the court’s possible referral of this case for settlement discussions 21 facilitated by a member of this court’s voluntary dispute resolution panel, the assigned magistrate 22 judge or another judge of this court. 23 This order resolves ECF No. 12. 24 IT IS SO ORDERED. 25 DATED: October 19, 2022.