Doe v. Harlandale Independent School District

Western District of Texas, txwd-5:2018-cv-00889

MOTION to Dismiss for Lack of Jurisdiction, Motion to Dismiss for Failure to State a Claim by Harlandale Independent School District.

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8 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION JON HARLANDALE-GA DOE § Plaintiff § § VS. § CIVIL ACTION NO. SA-18cv889-OLG § HARLANDALE INDEPENDENT § SCHOOL DISTRICT § Defendant § JURY DEMAND DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION, OR IN THE ALTERNATIVE, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND REQUEST FOR SANCTIONS TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES, Defendant Harlandale Independent School District ("HISD") and files this motion to dismiss for lack of subject-matter jurisdiction, pursuant to FRCP 12(b)(1), or in the alternative, motion to dismiss for failure to state a claim, pursuant to FRCP 12(b)(6), and request for sanctions, pursuant to FRCP 11, asking the Court to dismiss Plaintiffs' claims in their entirety, with prejudice, and award appropriate sanctions, and would show the Court the following: I. NATURE AND STAGE OF THE PROCEEDINGS 1. The parents of minor Jon Doe bring this lawsuit as his next friends. Dkt. No. 1-2, ¶ 5. Jon Doe is a former student of HISD, allegedly diagnosed with unidentified "various learning disabilities," who attended a public school within HISD prior to the 2017-2018 school year. Dkt. No. 1-2, ¶¶ 9-10. Plaintiffs assert that HISD failed to identify and evaluate and provide him special educational services under the under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400, et seq. ("IDEA"), resulting in an alleged "Child Find" violation of the IDEA. Dkt. No. 1-2, pp. 1, 4. 1 8 2. Plaintiffs also claim that based on the IDEA "Child Find" violation, HISD has also violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. ("Section 504"), and Section 1983 of Title 42 of the United States Code ("§ 1983"). Dkt. No. 1-2, pp. 4-5. The entirety of Plaintiffs' claims consist of allegations that HISD failed to identify Jon Doe as a student needing special education services and to provide him with those educational services, resulting in academic and emotional harm. Dkt. No. 1-2, p. 5. 3. Plaintiffs initially filed suit in state court. See Dkt. No. 1-2. Upon service of the lawsuit, HISD sent Plaintiffs' counsel detailed correspondence outlining Plaintiffs' failure to exhaust the mandatory due process hearing request system with the Texas Education Agency under IDEA prior to bringing suit and indicating that the school district would seek sanctions if Plaintiffs did not dismiss their suit. See Ex. A, A-11. HISD subsequently removed this case on federal question grounds. Dkt. No. 1. 4. On August 28, 2018, this Court issued notice to Plaintiff's counsel that he was not admitted to practice in the Western District of Texas and requested that he submit a motion requesting permission to appear in this case. Dkt. No. 3. On April 26, 2019, Plaintiff filed a Notice of Appearance, which does not appear to comply with the Court's August 28, 2018 notice and request for a motion to appear pro hac vice. See Dkt. No. 11. 5. Following HISD's motion to compel Jon Doe's identity and the entry of a protective order, Plaintiff's counsel provided Jon Doe and his parent's identity to defense counsel on or about November 30, 2018. See Ex. A-2. On December 4, 2018, this Court issued a Scheduling Order. Dkt. No. 8. Plaintiffs have failed to comply with the Court's Order to submit a settlement offer. 1 Pursuant to the Protective Order in this case (Dkt. No. 7), the Exhibits to this 12(b)(1) motion are being filed concurrently with a motion for leave to file them under seal. 2 8 See Ex. A, A-3. Plaintiffs have also not provided Initial Disclosures, despite HISD raising this issue in its previous motion to compel, and the Court's discussion of disclosures in its Order on the motion to compel. See Dkt. Nos. 4, 5; see also Ex. A. II. STATEMENT OF ISSUES 6. Plaintiffs' claims, whether asserted under IDEA, § 504, or § 1983, are subject to dismissal for Plaintiff's failure to exhaust administrative remedies with the Texas Education Agency, as required by the IDEA, as the failure to exhaust deprives this Court of subject-matter jurisdiction. Moreover, because the lack of jurisdiction is clear, the claims are not warranted by existing law, and the factual contentions regarding prerequisites to suit have no evidentiary support, HISD is requesting appropriate sanctions. 7. In the alternative, despite amending their petition, Plaintiffs have failed to state a claim upon which relief can be granted. Plaintiffs have not alleged any actionable violations of § 1983, nor any facts that would support a claim for municipal liability against HISD. Plaintiffs have similarly failed to allege facts that would support a claim under § 504, § 1983 or the IDEA. 8. Plaintiffs' request for exemplary damages under § 504, IDEA, or § 1983 should be dismissed as these statutes do not provide for such damages against governmental entities such as HISD. Plaintiffs' request for compensatory damages under the IDEA are similarly foreclosed. III. ALLEGED FACTS 9. The pertinent factual allegations from Plaintiffs' First Amended Petition are as follows:  Jon Doe is a young boy who was enrolled in an HISD school prior to the 2017-2018 school year. 3 8  Throughout Jon's unspecified time enrolled in HISD, the school district allegedly ignored his obvious special needs and instead attributed his learning difficulties as "bad behavior" and viewed him as a "bad kid."  At some time subsequent to his enrollment in HISD, Jon has been "determined to qualify for various disabilities in accordance with various applicable laws."  While Jon was enrolled in HISD, the school district "completely ignored Plaintiff as being eligible for the educational programs offered." See Dkt. No. 1-2, pp. 1, 3-4. IV. RULE 12(b)(1) MOTION TO DISMISS A. Standard of Review 10. Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may challenge the jurisdiction of the district court over subject matter asserted by the plaintiff. See FED. R. CIV. P. 12(b)(1); Rodriguez v. Texas Comm'n on the Arts, 992 F. Supp. 876, 878 (N.D. Tex.1998), aff'd, 199 F.3d 279 (5th Cir. 2000). The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Id. (citing McDaniel v. United States, 899 F. Supp. 305, 307 (E.D. Tex. 1995)). Accordingly, the plaintiff constantly bears the burden of proving that jurisdiction does in fact exist. Id. (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)). A "complaint based on [the IDEA] is not a justiciable controversy until the plaintiff has exhausted his administrative remedies. . ." Gardner v. Sch. Bd. Caddo Parish, 958 F.2d 108, 112 (5th Cir. 1992). If "the court lacks the statutory or constitutional power to adjudicate the case," the lawsuit must be dismissed. Wood v. Katy Indep. Sch. Dist., 2009 WL 2485967, at *2 (S.D. Tex. 2009). Courts analyze FRCP 12(b)(1) jurisdictional challenges by reviewing: (1) the complaint; (2) the 4 8 complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). B. Plaintiffs' IDEA/Section 504/Section 1983 claims are barred due to their failure to exhaust administrative remedies. 11. Plaintiffs assert that HISD violated its "Child Find" obligations. See Dkt. No. 1-2. The IDEA was designed to ensure that "all children with disabilities have available to them a free appropriate public education ("FAPE") that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living". 20 U.S.C.A. § 1400(d)(1)(A). The IDEA provides parents "an opportunity to present complaints with respect to any matter relating to identification, evaluation, or educational placement of the child, or the provision of free appropriate public education [FAPE] to such child." 20 U.S.C. § 1415(b)(1)(E). "Under the IDEA, public school districts have an obligation known as 'Child Find,' which requires them to 'identify, locate, and evaluate all children with disabilities ... to ensure that they receive needed special-education services.'" Krawietz by Parker v. Galveston Indep. Sch. Dist., 900 F.3d 673, 674 (5th Cir. 2018)(citing Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 245, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009) (internal quotations and alterations omitted) (citing 20 U.S.C. § 1412(a)(3)(A)). The IDEA clearly establishes mandatory administrative procedures for resolving, among other issues, Child Find complaints. See 20 U.S.C. § 1415 (b)(6)(A). A parent who brings an administrative complaint pursuant to 20 U.S.C. § 1415(b)(6) is entitled to an impartial due process hearing through a state or local agency. 20 U.S.C. § 1415(f); Gardner v. School Bd. Caddo Parish, 958 F.2d 108, 111 (5th Cir. 1992). 5 8 12. "Child Find" violations can only be addressed in court after administrative remedies have been exhausted. See 20 U.S.C. § 1415(l) ("before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter."). Prior to filing a lawsuit in Texas, a petitioner must exhaust administrative remedies with the Texas Education Agency by filing a request for due process hearing. See 20 U.S.C. § 1415 (i)(2)(A); 19 TEX. ADMIN. CODE § 89.1151(a), (b); D.A. v. Houston Indep. Sch. Dist., 716 F. Supp. 2d 603, 613 (S.D. Tex. 2009), aff'd, 629 F.3d 450 (5th Cir. 2010). The IDEA allows parties "aggrieved by the findings and decisions made" by the hearing officer to appeal the "decision of the hearing officer" within 90 days. See 20 U.S.C. § 1415(i)(2)(A-B). Filing a Request for Due Process Hearing, without more, is insufficient. See M.L. v. Frisco ISD, 451 Fed. Appx. 424 (5th Cir. 2011). Instead, 20 U.S.C. § 1415(f) requires a parent to first seek state administrative review through an impartial due process hearing conducted by either the local or state educational agency. The parties must participate in a resolution session prior to the due process hearing. When a party pursues the § 1415(f) hearing resolution through the local educational agency, § 1415(g) provides for an appeal to the state educational agency. Notably, the IDEA does not provide a right to state or federal civil actions unless and until a party is aggrieved by the findings and decision of a state-conducted § 1415(f) hearing or is otherwise unable to appeal a local educational agency's § 1415(g) due process hearing. See 20 U.S.C. § 1415(i)(2); El Paso Indep. Sch. Dist. v. Richard R., 567 F. Supp. 2d 918, 938 (W.D. Tex. 2008)("parents have a direct and exclusive pathway to a due process hearing administered by the Texas Education Agency. Additionally, should the parents 6 8 remain dissatisfied following the due process hearing officer's decision, they may file a civil action in state or federal district court.") 13. Here, Plaintiffs claim that Jon Doe is a minor child with unidentified "various disabilities in accordance with various applicable laws." Dkt. No. 1-2, p. 1. Plaintiffs claim that he was enrolled in an HISD school prior to the 2017-2018 school year, and the District failed to identify him as a student needing special education services. Dkt. No. 1-2, pp. 3-4. Plaintiff specifically avers that HISD had a duty to identify and evaluate him for services under the IDEA, and that this "Child Find" failure under IDEA also violated § 504 and § 1983. Dkt. No. 1-2, pp. 4-5. It is undisputed that Plaintiffs never filed a request for a due process hearing with the Texas Education Agency. See Ex. B. Instead of requesting a due process hearing, Plaintiffs filed a complaint with TEA requesting an investigation. Ex. B-1. TEA investigated, issued a report, and then issued notice of its agreement with HISD's corrective action plan. Ex. B-2, B-3, B-4. Thus, there are no findings or decisions by a hearing officer to form the basis of an appeal and confer jurisdiction upon this Court. See 20 U.S.C. § 1415(i)(2)(A-B). Indeed, Plaintiffs affirmatively and falsely assert that there "are no administrative remedies that exist under the IDEA" to address the alleged "Child Find failures". Dkt. No. 1-2, p. 6.2 However, Plaintiffs seek relief available under the IDEA. In fact, the entirety of Plaintiffs' lawsuit is premised upon an alleged "Child Find" failure under the IDEA. See Dkt. No. 1-2. 2 Plaintiffs' conclusory assertion that exhaustion would have been futile is similarly fraught, as the undisputed evidence shows that Plaintiffs did avail themselves of TEA's special education complaint process, yet failed completely to avail themselves of TEA's due process hearing system. See Ex. B, B-1, B-2, B-3, B-4. Moreover, Plaintiffs bear the burden of establishing the futility or inadequacy of administrative remedies. Gardner v. Sch. Bd. Caddo Parish, 958 F.2d at 112. 7 8 14. It is well established that plaintiffs must exhaust their administrative remedies available through IDEA before they file a civil action in court. Gardner v. Sch. Bd. Caddo Parish, 958 F.2d 108, 111-112 (5th Cir. 1992); Eddins v. Excelsior Indep. Sch. Dist., 88 F.Supp. 2d 683, 689 (E.D.Tex. 2000). Similarly, Section 504 claims which arise in the public school context and relate to the IDEA's mandates of providing a FAPE, also can only be remedied in federal court after administrative remedies have been exhausted. See Fry v. Napoleon Community Schools, 137 S.Ct. 743 (2017) (discussing section 504 claims for which exhaustion is required and 504 claim for which there is no exhaustion requirement). Briefly stated, all allegations that relate to FAPE, whether asserted under IDEA, or some other statute, are subject to IDEA's exhaustion requirement. Hooker v. Dallas Indep. Sch. Dist., 3:09-CV-0676-G-BH, 2010 WL 4025776 at *8 (N.D. Tex. Sept. 13, 2010), report and recommendation adopted, 3:09-CV-0676-G BH, 2010 WL 4024896 (N.D. Tex. Oct. 13, 2010). "Plaintiffs must exhaust administrative remedies before filing a civil lawsuit if they seek relief for injuries that could be redressed to any degree by the IDEA's administrative procedures." Kutasi v. Las Virgenes Sch. Dist. 494 F.3d 1162, 1163 (9th Cir. 2007). The exhaustion requirement allows the local agency to employ their education expertise and develop a complete factual record; this requirement promotes judicial efficiency. Wood v. Katy Indep. Sch. Dist., No. H-08-0358, 2009 WL 2485967, at *3 (S.D.Tex. Aug. 6, 2009). A party "cannot avoid the requirement to file under IDEA by disguising claims under other causes of action." Wood v. Katy Indep. Sch. Dist., No. H-08-0358, 2010 WL 1064763, at *3 (S.D. Tex. Mar. 18, 2010); see, e.g., Rose v. Yeaw, 214 F.3d 206, 210-12 (1st Cir. 2000); Babcz v. School Bd. of Broward County, 135 F.3d 1420, 1422 n.10 (11th Cir.), cert denied, 525 U.S. 816 (1998); Charlie 8 8 F. v. Bd. of Educ. of Skokie Sch. Dist., 98 F.3d 989, 991 (7th Cir. 1996); Christopher W. v. Portsmouth Sch. Comm., 877 F.2d 1089, 1094 (1st Cir. 1989). 15. The IDEA makes clear that when a plaintiff files suit under the ADA and Rehabilitation Act, the IDEA will require exhaustion if he is "seeking relief that is also available under" the IDEA. 20 U.S.C. § 1415(f). Relief "available" under the IDEA includes "relief for the events, condition, or consequences of which the person complains, not necessarily the relief of the kind the person prefers." Charlie F. v. Bd. of Educ., 98 F.3d 989, 992-993 (7th Cir. 1996). Thus, courts look to the source and nature of the alleged injuries, rather than the specific remedy itself. See Hayes v. Unified Sch. Dist. No. 377, 877 F.2d 809, 812 (10th Cir. 1989) (stating that the IDEA's remedies must be exhausted before a plaintiff files a non-IDEA suit if that suit could have been filed under the IDEA). In the case at bar, Plaintiffs were required to exhaust administrative remedies under the IDEA for the claims they now raise in this suit. See, Pace, 403 F.3d at 293. Plaintiffs readily admit in their pleadings that they failed to exhaust administrative remedies, albeit misrepresenting to the Court that administrative remedies do not exist, while simultaneously making the conclusory assertion that exhaustion would have been futile. Dkt. No. 1-2, p. 6. 16. "Failure to exhaust the [IDEA's] administrative remedies deprives the court of subject matter jurisdiction." Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2nd Cir. 2008); accord Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 272 (3rd Cir. 2014); Wood v. Katy Indep. Sch. Dist., 2009 WL 2485967 (S.D. Tex. 2009). This exhaustion requirement is mandatory even if the plaintiff has alleged educational violations under IDEA, Americans with Disabilities Act, § 504 or § 1983. Id.; Thomas v. East Baton Rouge Parish Sch. Bd., 29 F.Supp.2d 337, 339 (M.D. La. 1998). 9 8 17. In addition, the fact that Plaintiff seeks monetary damages under Section 504 or 42 U.S.C. § 1983 that may otherwise be unavailable under the IDEA does not allow him to proceed on his claims without first exhausting his administrative remedies. To allow claims that could be brought under the IDEA to go forward simply because a plaintiff has sought monetary damages unavailable under the IDEA would allow plaintiffs to frustrate Congressional purpose by bypassing administrative processes merely by asserting damages claims under another statute, such as the ADA, Section 504 or Section 1983. See Polera v. Board of Educ. Of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486-488 (2nd Cir. 2002); Frazier v. Fairhaven Sch. Committee, 276 F.3d 52, 58-65 (1st Cir. 2002); Waterman v. Marquette-Alger Intermediate Sch. Dist., 739 F.Supp. 361, 365 (W.D. Mich. 1990). 18. Finally, any request by Plaintiffs to amend their pleading would be futile, and should be denied accordingly. As explained above, Plaintiffs have not exhausted their administrative remedies which would confer jurisdiction upon this Court. Moreover, at this point, they cannot exhaust because their claims are now time-barred. The IDEA contains a one-year statute of limitations, which has elapsed. See 19 Tex. Admin. Code § 89.1151(c). Plaintiffs allege that HISD failed to identify Jon Doe as a child in need of special education services prior to the 2017-2018 school year. Dkt. No. 1-2, pp. 3, 5. The undisputed jurisdictional evidence shows that the student was no longer enrolled in HISD as of June 20, 2017. Ex. B-3, B-4. Plaintiffs make no allegations that they filed and pursued a due process complaint with TEA before June 20, 2018 (one year after the student's removal from HISD). Because Plaintiffs failed to timely exhaust, and the statute of limitations has elapsed, granting leave to amend would be futile and should be denied accordingly. V. RULE 12(b)(6) MOTION TO DISMISS 10 8 A. Standard of Review 19. The purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief. See Murray v. Amoco Oil Co., 539 F.2d 1385, 1387 (5th Cir. 1976); see also Mahone v. Addicks Util. Dist. of Harris County, 836 F.2d 921, 935 (5th Cir. 1988). On a Rule 12(b)(6) motion, the court must decide whether the facts alleged, if true, would entitle plaintiff to some legal remedy. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99 (1957). Dismissal is proper if there is either: (1) "the lack of a cognizable legal theory," or (2) "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988). Even if Plaintiffs' claim states a cognizable legal theory, if insufficient facts are alleged to support such theory, dismissal is appropriate pursuant to FED. R. CIV. P. 12(b)(6) for failure to state a claim for which relief can be granted. B. PLAINTIFFS CANNOT STATE A CLAIM UNDER § 1983 20. First, Plaintiffs' § 1983 claim must be dismissed because the IDEA and Section 504 provide the exclusive remedies for violations of those statutes. D.A., 629 F.3d at 456-57 (holding that a plaintiff "cannot assert an IDEA claim through § 1983" and "cannot pursue his [] § 504 claim[] through § 1983"). Here, Plaintiffs allege that HISD violated §1983 by virtue of violating the IDEA, but nothing more. Dkt. No. 1-2, pp. 17-18. Because Plaintiffs do not allege any actionable violations of § 1983, dismissal is appropriate. See D.A., 629 F.3d at 456-57. 21. Plaintiffs' § 1983 claim must furthermore be dismissed because a local governmental entity such as HISD may only be held liable under § 1983 for acts for which it is actually responsible. See Monell v. Department of Social Services of New York, 436 U.S. 658, 691 (1978). To state a claim under § 1983 against HISD, Plaintiffs must demonstrate: (1) an official policy or custom, of 11 8 which (2) a policymaker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose 'moving force' is that policy (or custom). Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir.2002). The entirety of Plaintiffs' § 1983 allegations are a threadbare and conclusory recitation of the elements of a § 1983 claim; they are insufficient. See Dkt. No. 1- 2, p. 18. 22. An "official policy or custom" of a school district is: (1) "a policy statement, ordinance, regulation or decision that is officially adopted and promulgated by the district, or by an official to whom the district has delegated policy-making authority;" or (2) "a persistent, widespread practice of district officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents district policy." Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304 (5th Cir.1995), cert. denied, 517 U.S. 1191 (1996). Plaintiffs provide no well-pleaded allegations of an alleged unconstitutional policy at issue. See Dkt. No. 1-2. 23. Nor can Plaintiffs state a claim premised upon a persistent or widespread practice having the force of official policy. Plaintiffs' complaints consist of only allegations that unidentified HISD employees failed to identify Jon Doe as a child in need of special education services. Dkt. No. 1- 2. Even multiple isolated incidents do not suffice to state a pattern of unconstitutional conduct necessary to state a §1983 claim against the District. See Prince v. Curry, 423 F. App'x 447, 451 (5th Cir.2011) ("The existence of only one or, at most, two other similarly situated defendants does not suggest that Tarrant County has a policy or custom of unconstitutionally subjecting sex offenders to enhanced sentences...."); Yara v. Perryton Indep. Sch. Dist., 2013 WL 1497049, at 4 (N.D.Tex. April 10, 2013) (finding that Red Ribbon Day which was assigned for just two days a 12 8 year for two prior years at a single school could not constitute a "persistent, widespread practice."); Vouchides v. Houston Cmty. Coll. Sys., 2011 WL 4592057, at 12 (S.D.Tex. Sept.30, 2011) ("[A] 'handful' of instances do not constitute a pervasive custom or practice.") (internal citation omitted). In fact, the Fifth Circuit has held that even numerous incidents may not constitute a pattern to show municipal liability. See e.g., Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 852 (5th Cir. 2009) (holding that 27 incidents of excessive force between 2002 and 2005 did not suggest a pattern so common to constitute a municipal policy); Pineda, 291 F.3d 325, at 329 (finding that eleven incidents of unconstitutional searches did not constitute a pattern of illegality in a large police force). Plaintiffs have failed to show that there was an official policy or custom in place that resulted in the alleged constitutional injury. See Dkt. No. 1-2. As such, Plaintiffs' § 1983 claims should be dismissed. 24. Even assuming Plaintiffs have sufficiently alleged a pattern or practice, they have failed to sufficiently plead knowledge by a policymaker in order to hold the District liable under §1983. Whether a particular official has "final policy-making authority" is a question of state law. St. Louis v. Praprotnik, 485 U.S. 112, 128 (1988). It is well-settled law that, in Texas, only the District's Board of Trustees has final policy-making authority in an independent school district. TEX. EDUC. CODE ANN. §11.051; Jett v. Dallas Indep. School Dist., 7 F.3d 1241, 1245 (5th Cir. 1993). Superintendents of schools, school administrators, principals, teachers, and school staff do not have final policy-making authority in a school district. See Jett, 7 F.3d at 1245; Teague v. Texas City Indep. Sch. Dist., 386 F.Supp.2d 893, 896 (S.D. Tex. 2005), aff'd 185 Fed. Appx. 355 (5th Cir. 2006); see also Pena v. Rio Grande City Consolidated Indep. Sch. Dist., 616 S.W.2d 658, 660 (Tex.Civ.App.—Eastland, 1981, no writ). Thus, the District may not be held liable for any 13 8 "policy" developed by school officials other than the Board of Trustees. Teague, 386 F.Supp.2d at 896. Plaintiffs fail to plead any facts to suggest that the alleged violation of Jon Doe's rights were the result of an intentional decision by the Board of Trustees, nor that the Board had any knowledge of the alleged Child Find violation. See Dkt. No. 1-2. Plaintiffs have neither pleaded actual notice nor constructive knowledge by the Board of the purported constitutional violations. See id. Plaintiffs have thus failed to establish that a policymaker for HISD was the moving force behind the alleged misconduct and Plaintiffs' claims against the District should be dismissed. See Rodriguez v. Houston Indep. Sch. Dist., 710 Fed. Appx. 196, 198 (5th Cir. 2018)(per curiam)(affirming dismissal for attempting to rely on a theory of respondeat superior and failing to plead facts showing municipal liability). C. PLAINTIFFS FAILED TO STATE A CLAIM UNDER THE IDEA. 25. As shown above, Plaintiffs have failed to exhaust their IDEA claim. They have also failed to state a claim. The "IDEA does not penalize school districts for not timely evaluating students who do not need special education." D.G. v. Flour Bluff Indep. Sch. Dist., 481 F. App'x 887, 893 (5th Cir. 2012) (emphasis in original). "The state's Child Find duty is only raised if the state had reason to suspect that: 1) a student was disabled and 2) the student may currently require special education services." Krawietz v. Galveston Indep. Sch. Dist., 2017 WL 1177740, at *5 (S.D. Tex. Mar. 30, 2017) (citing Alvin Indep. Sch. Dist. v. A.D. ex rel. Patricia F., 503 F.3d 378, 382 (5th Cir. 2007)." Here, Plaintiffs provide no well-pleaded factual allegations as to Jon Doe's disability and affirmatively plead that the only remedies available to Jon Doe are "monetary in nature." See Dkt. No. 1-2, p. 18. Thus, Plaintiffs have failed to state a claim under the IDEA. D. PLAINTIFFS FAILED TO STATE A CLAIM UNDER SECTION 504. 14 8 26. Plaintiffs' allegations under Section 504 similarly fail to state a claim. To show a violation of Section 504, Plaintiffs must demonstrate: (1) a disability; (2) exclusion from participation in or denial of benefits of services, programs, or activities for which HISD is responsible, or was subjected to discrimination by HISD; and (3) such exclusion, denial of benefits, or discrimination was solely by reason of the student's disability. See Garrett v. Thaler, 560 F. App'x 375, 382 (5th Cir. 2014). "[A] cause of action is stated under § 504 when it is alleged that a school district has refused to provide reasonable accommodations for the handicapped plaintiff to receive the full benefits of the school program." Marvin H. v. Austin Indep. Sch. Dist., 714 F.2d 1348, 1356 (5th Cir. 1983) (emphasis in original); see Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 990 (5th Cir. 2014); D.A., 629 F.3d at 453. In their Amended Petition, Plaintiffs provided no well- pleaded facts identifying Jon Doe's disability. Dkt. No. 1-2. In addition, Plaintiffs failed to allege any well-pleaded facts showing what, if any, reasonable accommodation was requested and denied, thus failing to state a claim. See Jarrel v. Taylor Cnty. Ct., 2006 WL 2128681, at *3 (N.D. Tex. July 28, 2006) (finding that a complaint did not state a claim because it did not state what accommodations the plaintiff was seeking or why they were denied). 27. Plaintiffs' apparent reliance on a Department of Education letter they purport shows "a coordinated effort" by TEA and unidentified public school districts in Texas to suppress the number of students being served under Section 504 and the IDEA is similarly unavailing, as it contains no information or findings that HISD engaged in any misconduct. Dkt. No. 1-2. Plaintiffs acknowledge that they have no well-pleaded facts to support this baseless claim, and instead ask the Court to allow them to pursue a fishing expedition. Dkt. No. 1-2, p. 19. It is well-established 15 8 that courts should not open "the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 556 U.S. at 678-79. E. PLAINTIFFS CANNOT STATE A CLAIM FOR PUNITIVE DAMAGES. 28. Plaintiffs have asserted a claim for punitive damages which warrants dismissal. See Dkt. No. 1-2, ¶ 44. Section 1983 does not permit punitive damages against a governmental subdivision such as HISD. City of Newport v. Fact Concerts, 453 U.S. 247, 271 (1981); Catlett v. Duncanville Indep. Sch. Dist., No. 3:09-CV-1245-K, 2010 WL 2217889, at 3 (N.D. Tex. May 27, 2010) (school districts are immune from exemplary damages under § 1983). Section 504 of the Rehabilitation Act also does not provide for punitive damage awards against government entities. Barnes v. Gorman, 536 U.S. 181, 189, 122 S. Ct. 2097, 2103 (2002). 29. Plaintiffs' IDEA claim, in its entirety, is a request for "all actual and consequential damages" available under the statute. Dkt. No. 1-2, ¶ 36. Under the IDEA, compensatory and punitive damages are not available. Marvin H. v. Austin Indep. School Dist., 714 F.2d 1348, 1356 (5th Cir.1983) (holding that the appropriate relief under the EHA includes only prospective relief and that a damage remedy is not consistent with the goals of the statute); see also Wood v. Katy Indep. Sch. Dist., CV H-09-1390, 2010 WL 11417849, at *6 (S.D. Tex. Sept. 27, 2010)(collecting cases holding that compensatory and punitive damages are not available under the IDEA). The rationale for denial of compensatory and punitive damages is that "IDEA's primary purpose is to ensure FAPE, not to serve as a tort-like mechanism for compensating personal injury." Wood, at * 6 (citing Nieves–Marquez v. Puerto Rico, 353 F.3d 108, 125 (1st Cir.2003). Therefore, Plaintiffs' claim for punitive damages against HISD under 16 8 IDEA, Section 504 or § 1983 must be dismissed, and Plaintiffs' request for compensatory damages under IDEA must similarly be dismissed. CONCLUSION The scope of a due process hearing is broad, encompassing "complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to the child." 20 U.S.C. § 1415(b)(6) (emphasis added). Here, all of Plaintiffs' claims are clearly within the scope of the IDEA's administrative process because these claims are asserted squarely within the scope of the IDEA's regulations. Thus, Plaintiffs' Section 504 and 42 U.S.C. § 1983 claims were subject to IDEA's exhaustion requirements. Plaintiff should have first brought and exhausted their complaints under the IDEA's due process hearing provisions before a hearing officer appointed by the Texas Education Agency, and their failure to do so deprives the Court of subject-matter jurisdiction. In addition, and in the alternative, Plaintiffs have failed to state a claim in their First Amended Petition. For the reasons detailed above, Plaintiffs' suit is subject to dismissal in its entirety. Accordingly, HISD prays that the Court dismiss Plaintiffs' suit, and requests any and all further relief to which it may be entitled. Respectfully Submitted, By: /s/ Katie Payne Katie E. Payne State Bar No. 24071347 kpayne@wabsa.com 17 8 Attorney-in-Charge By: /s/ D. Craig Wood D. Craig Wood State Bar No. 21888700 cwood@wabsa.com WALSH GALLEGOS TREVIÑO RUSSO & KYLE P.C. 1020 NE Loop 410, Suite 450 San Antonio, Texas 78209 TEL. NO.: (210) 979-6633 FAX NO.: (210) 979-7024 ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the 6th day of May, 2019, a true and correct copy of the above and foregoing was electronically filed with the Clerk of the Court using CM/ECF system, which will send notification of such filing to the following: COUNSEL FOR PLAINTIFF: Terry P. Gorman Gorman Law Firm, PLLC 901 Mopac Expressway South, Suite 300 Austin, Texas 78746 /s/ Katie E. Payne KATIE E. PAYNE 18