Doan v. Downingtown Area Sch. Dist., CIVIL ACTION No. 19-959

KIM DOAN and I.D., Plaintiffs v. DOWNINGTOWN AREA SCHOOL DISTRICT and LARRY MUSSOLINE, Defendants

CIVIL ACTION No. 19-959

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

August 13, 2020

MEMORANDUM OF DECISION

THOMAS J. RUETER United States Magistrate Judge

Presently before the court is the motion to dismiss plaintiffs' Amended Complaint ("Am. Compl.") for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) (the "Motion"; Doc. 14) filed by defendants Downingtown Area School District ("the District") and Larry Mussoline ("Mussoline"), and the response of plaintiffs, Kim Doan ("Doan") and I.D. ("Resp."; Doc. 15). The Honorable Juan R. Sánchez held oral argument on the Motion on October 9, 2019.¹ For the following reasons, the Motion will be GRANTED as to Counts I, III, and IV, and DENIED as to Count II.

I. Background

Plaintiff Doan is the mother of I.D., who at all times relevant herein was, and still is, a minor child. (Am. Compl. ¶ 11.) Plaintiff I.D. is a twice-exceptional student, meaning that I.D. is a "gifted student" as that term is defined under Pennsylvania Law, 22 Pa. Cons. Stat. §16.1 (2019), and a "child with a disability" under the Individuals with Disabilities Education Act, 20 U.S.C. § 1401(3). Id. ¶ 12.

On June 7, 2013, while I.D. was enrolled in Lionville Elementary and preparing for second grade for the 2013-2014 school year, I.D. received an initial Gifted Individualized Education Plan ("GIEP"). Id. ¶ 14. The GIEP identified I.D.'s special educational needs and provided I.D. with advanced math instruction using an individualized, computer-based model. Id. ¶ 16. I.D.'s GIEP was based upon a Gifted Multidisciplinary Evaluation conducted in May 2013. Id. ¶ 15. Plaintiff Doan alleges that over the course of I.D.'s second-grade year, I.D. showed deteriorating academic performance indicating that I.D. required a more social educational environment. Id. ¶ 17.

As a result, Doan requested a revision to the GIEP to properly effectuate these changes. Id. ¶ 18. The District granted Doan's request in mid-2014, when I.D. was between second and third grade. Id. Under the revised GIEP, a then-third-grader I.D. received math instruction in a fourth-grade math class for the entire 2014-2015 school year. Id. ¶ 20.

During the 2015-2016 school year, I.D. was enrolled in fourth grade at Lionville Elementary, and took fifth-grade math daily in a regular fifth-grade math classroom.² Id. ¶ 21. In April of 2016, the District contacted Doan and raised concerns about I.D.'s math programming for the 2016-2017 school year, as I.D. would be enrolled in fifth grade, but pursuant to the GIEP, I.D. would learn sixth-grade math in a sixth-grade math classroom. Id. ¶ 23. This presented an issue, as all sixth-grade students in the District are educated at one school, the Marsh Creek Sixth Grade Center. Id. ¶ 24. On May 18, 2016, based on Doan'sconversations with the District about the logistics of I.D.'s math education for the 2016-2017 school year, the District offered a Notice of Recommended Educational Placement ("NOREP"). Id. ¶ 25.

Pursuant to the NOREP proposed for the 2016-2017 school year, I.D. would receive sixth-grade math instruction using an online model during I.D.'s fifth-grade year, and I.D. would remain at Lionville Elementary for these sessions. Id. ¶ 26. No new education evaluation—which is required for gifted students before revision of a GIEP or IEP involving gifted education—was conducted. Id. ¶ 27.

Doan rejected the NOREP and requested a due process hearing. Id. ¶ 29. Specifically, Doan requested that I.D. receive sixth-grade math provided in a regular math classroom, consistent with the GIEP and IEP. Id. ¶ 30. In her due process complaint, Doan stated that the District should have been required to transport I.D. to the Marsh Creek Sixth Grade Center for his math class. Id. ¶ 31. In the due process hearing, Hearing Officer Brian Jason Ford agreed with Doan ("Hearing Officer decision"). Id. ¶ 32. In his August 12, 2016 decision, Hearing Officer Ford held that the District's NOREP was "not appropriate," and that an appropriate gifted math program for I.D. must include placement above grade level in a regular classroom for that grade level. Id. The Hearing Officer held that while the District may exercise its discretion as to the physical location of that classroom, it must transport I.D. to the Marsh Creek Center if in fact that was the only option. Id. ¶ 35. The District appealed Hearing Officer Ford's decision to the Pennsylvania Commonwealth Court. Id. ¶ 37. During the pendency of that appeal, the District did not implement the Hearing Officer's order. Id. ¶ 38.

The Pennsylvania Commonwealth Court affirmed the Hearing Officer's opinion on March 6, 2017. Id. ¶ 40; See Downingtown Area Sch. Dist. v. K.D., 2017 WL 877316 (Pa.Cmwth. Mar. 6, 2017). The court held that the NOREP was not appropriate. Id. ¶ 42. The court stated that the District must provide I.D. with normal sixth-grade classroom instruction. Id. ¶ 43. The court said, "receiving math lessons in a separate room via one-on-one, independent and computer-based learning can hardly be said to qualify as a 'regular education classroom.'"³ Id. ¶ 45. However, the District continued to use the computer-based plan for the remainder of I.D.'s fifth-grade year. Id. ¶ 47. Doan filed a contempt petition based upon the District's refusal to follow the order, however, the petition was not heard until after the school year had ended—rendering it moot. Id. ¶ 49.

According to the Amended Complaint, I.D. now receives instruction that better accommodates his needs. Id. ¶ 51. However, Doan alleges that the District's failure to modify the NOREP during the entirety of I.D.'s fifth-grade year led to long-lasting harm for I.D.'s development. Doan alleges damages based on I.D.'s social and educational setbacks, poor academic performance, and the need to hire a tutor. Specifically, Doan challenges (1) the District's appeal of Hearing Officer Ford's decision, (2) the refusal to implement an appropriate plan during the Commonwealth Court appeal, and (3) the resistance to implementing an appropriate plan ever after the Commonwealth Court affirmed Hearing Officer Ford.

II. Applicable Law

To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,550 U.S. 544, 570 (2007)). A district court first identifies those factual allegations that constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to the assumption of truth" and must be disregarded. Iqbal, 556 U.S. at 679. The court then assesses "the 'nub' of the plaintiff['s] complaint—the well-pleaded, nonconclusory factual allegation[s]"—to determine whether it states a plausible claim for relief. Id.

"[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). However, a court may dismiss a claim with prejudice based on "bad faith or dilatory motives, truly undue or unexplained delay, repeated failures to cure the deficiency by amendments previously allowed, or futility of amendment." Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993).

III. Discussion

Defendants argue that the Amended Complaint fails to allege any claims upon which relief can be granted, and seek dismissal under Rule 12(b)(6). The court addresses each argument below.

A. Plaintiffs' Claims under 42 U.S.C. § 1983

In their Amended Complaint, in Counts I, II, and III, plaintiffs assert claims under § 1983 against the District. 42 U.S.C. § 1983 provides, in part, that

[e]very person, who, under color of any statute, ordinance, regulation, custom, or usage, of a State or Territory ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law....

This statute does not create substantive rights; rather, it provides a remedy for violations of rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).

To prevail on their claims, plaintiffs must allege facts supporting an inference that "a person acting under color of state law engaged in conduct that violated a right protected by the Constitution or laws of the United States." Morrow v. Balaski, 719 F.3d 160, 165-66 (3d Cir. 2013). In evaluating a § 1983 claim, a court must first "identify the exact contours of the underlying right said to have been violated." Id. at 166 (quoting Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (en banc)). The court must then "determine whether the plaintiff has alleged a deprivation of a constitutional right at all." Id.

The liability of a municipality—in this case, the District—under 42 U.S.C. § 1983 is governed by Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). Under Monell, a municipality cannot be subjected to liability solely because its agents or employees caused injury to another person. Id. Rather, a municipal entity may be liable under § 1983 only "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy" deprives a citizen of constitutional rights. Id. at 694. An official policy may be established under three circumstances: (1) the municipal entity adopted and promulgated a policy, the implementation of which caused the constitutional deprivation; (2) the policymaker failed to act affirmatively even though the need to take some action is...