Individually v. Kerens Indep. Sch. Dist.

ELIZABETH REED, Individually and as Representativeof the Estate of J. R., Deceased, Plaintiff, v. KERENS INDEPENDENT SCHOOL DISTRICT, Defendant.

Civil Action No. 3:16-CV-1228-BH

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

June 6, 2017

Consent Case

MEMORANDUM OPINION AND ORDER

By order filed September 29, 2016, this matter has been transferred for the conduct of all further proceedings and the entry of judgment. (doc. 23.) Before the Court for determination is Defendant's Motion to Dismiss Plaintiff's First Amended Complaint, filed October 31, 2016 (doc. 29). Based on the relevant filings and applicable law, the defendant's Rule 12(b)(1) motion to dismiss is DENIED, and its Rule 12(b)(6) motion to dismiss is GRANTED in part and DENIED in part.

I. BACKGROUND

On May 5, 2016, Elizabeth Reed (Plaintiff), individually and on behalf of the estate of her minor son (J.R.), filed suit against the Kerens Independent School District (Defendant) after J.R. took his own life. (doc. 1.)¹ Her amended complaint alleges claims under Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments Act of 1972, the Rehabilitation Act of 1973, the Americans with Disabilities Act (ADA), and 42 U.S.C. § 1983 as a result of its allegedfailure to take action to prevent other students from bullying J.R.² (doc. 26 at 22-25.) She seeks damages, attorneys' fees, and equitable relief. (Id. at 26-28.)

J.R. was a middle school "student of Hispanic and Anglo descent," who was 5' 4" tall and weighed 260 pounds.³ (Id. at 14.) Plaintiff alleges that because of his weight, he had "very obvious and large female like breasts." (Id.) He suffered from depression and received psychoactive medication and counseling. (Id. at 14, 17.) His school was aware of his depression and that he took medication for it.⁴ (Id. at 14.)

Beginning in the 2009-2010 school year, other students began to bully and harass J.R. on an almost daily basis, calling him derogatory names that made fun of his weight, his physical attributes, and race. (Id.) He repeatedly reported to Plaintiff that he was bullied at school by other students, who called him names, teased him, and pushed him to the floor.⁵ (Id.) J.R.'s parents informed the school about the bullying and were assured that it would be resolved. (Id. at 14-15.) J.R. also went to his school's principal "more than once" to complain of bullying and harassment. (Id. at 15.) The school board was informed by other parents about bullying within the district. (Id. at 15-16.) As a result of the continued bullying, J.R.'s grades suffered, he required special tutoring for the STAR test, and he continued to binge eat, which caused him to become more depressed. (Id. at 17.)

J.R. had repeated disciplinary issues at school in 2012 and 2013. (Id. at 17.) He was disciplined for not letting go of a student's backpack, fighting, setting a trash can on fire, and rubbing another student's crotch. (Id.) J.R. also sniffed glue at school, and empty bottles of glue were found in his locker. (Id.) As a result, he received punishment ranging from detention to in-school and out-of-school suspensions. (Id.) The school did not investigate the cause of the altercations involving J.R. or the reason for his actions, and it did not inform his parents about the glue. (Id.)

Plaintiff alleges that some of her son's disciplinary problems were the result of Defendant not "inquiring as to why [he] was involved in the first instance." (Id. at 15.) For example, on April 25, 2013, J.R. was hit with a hockey stick by another student in P.E. class. (Id.) He told the other boy to stop or that he would report him. (Id.) The other student responded, "I don't give a damn, I'll just kick your ass." (Id.) An alteration ensued, but only J.R. was written up. (Id.) The school did not inquire as to why J.R. was involved. (Id.)

On May 5, 2014, as J.R. was leaving school, he was surrounded by a small group of male students. (Id. at 17-18.) The students "began to bully and harass him based upon his obesity." (Id. at 18.) He was knocked to the ground and was unable to get up. (Id.) While on the ground, J.R. asked the group, "What are you going to do if I kill myself?" (Id.) A female student who heard the statement left to inform the principal about what he said.⁶ (Id.)

The following day, May 6, 2014, J.R. wrote in the boys' restroom at school: "In 3 days there will be a shooting - you have been warned." (Id.) The school investigated and determined that he wrote the statement. (Id. at 2.) J.R. informed the administrators that he was hearing voices that keptsaying, "You're going die, you're going to die," and that he had re-occurring dreams in which a friend was shot and killed. (Id. at 18.) He also informed the administrators that he was taking medication for depression. (Id.) Plaintiff was called to the school. (Id.) When she arrived, Plaintiff and J.R. were informed by a school administrator that there would be a hearing, but that it was likely that J.R. would be sent to the disciplinary alternative education program for a month. (Id. at 19.) The chief of police told them that there would be criminal proceedings. (Id.) Plaintiff took J.R. home, and later that day, he committed suicide. (Id. at 2, 19.)

On August 23, 2014, Plaintiff filed a complaint with the U.S. Department of Education, Office for Civil Rights (OCR). (Id. at 20.) She alleged that Defendant discriminated against J.R. because of his disability and race. (Id.) On September 25, 2015, Defendant voluntarily entered into a resolution agreement. (Id. at 21.) On May 5, 2016, Plaintiff filed this action. (doc. 1.)

On October 31, 2016, Defendant moved to dismiss Plaintiff's claims. (doc. 29.) She responded on December 7, 2016,⁷ and Defendant replied on January 6, 2017. (docs. 38, 43.)

II. RULE 12(b)(1)

Defendant moves to dismiss Plaintiff's ADA and § 504 claims under the under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction. (doc. 29 at 10.)

"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). They "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on theparty seeking the federal forum." Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).

A Rule 12(b)(1) motion "may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment." Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006). A court must dismiss the action if it determines that it lacks jurisdiction over the subject matter. Fed. R. Civ. P. 12(h)(3); Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). "When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam). A dismissal under Rule 12(b)(1) "is not a determination of the merits," and it "does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction." Id. Accordingly, considering Rule 12(b)(1) motions first "prevents a court without jurisdiction from prematurely dismissing a case with prejudice." Id.

A district court may dismiss for lack of subject-matter jurisdiction based on (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981) (en banc). A motion to dismiss based on the complaint alone presents a "facial attack" that requires the court to merely decide whether the allegations in the complaint, which are presumed to be true, sufficiently state a basis for subject-matter jurisdiction. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1998). If sufficient, those allegations alone provide jurisdiction. Id. Facial attacks are usually made early in the proceedings. Id. "A facial attack requires the court merely to decide if the plaintiff has correctly alleged a basis for subject matter jurisdiction" by examining the allegations in the complaint, which are presumedto be true. Rodriguez v. Tex. Comm'n on the Arts, 992 F. Supp. 876, 878 (N.D. Tex. 1998) (citations omitted).

If the defendant supports the motion with evidence, however, then the attack is "factual" and "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Williamson, 645 F.2d at 413. A factual attack may occur at any stage of the proceedings. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980). Regardless of the nature of attack, the party asserting federal jurisdiction continually carries the burden of proof to show it exists. Ramming, 281 F.3d at 161. Here, Defendant's motion presents a facial attack that does not require the resolution of factual matters outside the pleadings.⁸ See Williamson, 645 F.2d at 412-13.

A. Exhaustion of Administrative Remedies

Defendant argues that Plaintiff's ADA and § 504 claims should be dismissed for lack of jurisdiction because she failed to exhaust her administrative remedies prior to filing suit. (doc. 29 at 10.) It contends that Plaintiff's claims relating to J.R.'s identification as a student with a disability, educational placement, accommodation, and plan are subject to the exhaustion requirements of the Individuals with Disabilities Education Act (IDEA), but that Plaintiff has not pleaded that she exhausted her administrative remedies prior to filing suit. (Id. at...