Ortiz v. Puerto Rico, CIVIL NO. 11-1475 (GAG)

AMANDA M. RAMIREZ ORTIZ on behalfof her son PEDRO A PEREZ RAMIREZ, Plaintiff,

v.COMMONWEALTH OF PUERTO RICO DEPARTMENT OF EDUCATION, et al. Defendants.

CIVIL NO. 11-1475 (GAG)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

Dated: October 25, 2011

OPINION AND ORDER

Plaintiff in this matter, Amanda M. Ramirez Ortiz on behalf of her son Pedro A. Perez Ramirez ("Plaintiff") brought suit against the Commonwealth of Puerto Rico Department of Education ("DOE") and the Honorable Jesus Rivera ("Rivera") (collectively referred to as "Defendants") seeking declaratory and injunctive relief, as well as reimbursement and damages for alleged violations of the Individual 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 42 U.S.C. § 1983 ("Section 1983").

Presently before the court is Defendants' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Docket No. 23). Plaintiff filed a timely opposition (Docket No. 29), to which Defendants replied (Docket No. 40). After considering these submissions and the pertinent law, the court GRANTS in part and DENIES in part Defendants' motion to dismiss.

I. Standard of Review

In her opposition to Defendants' motion to dismiss (Docket No. 29), Plaintiff asks this court to treat Defendants' motion as one for summary judgment because both parties have presented matters outside of the pleadings in this case, specifically various documents from the administrative record.

"Ordinarily, a court may not consider any documents that are outside of the complaint, or not expressly incorporated therein, unless the motion is converted into one for summary judgment." Alt. Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001) (citing Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)). However, there is "a narrow exception 'for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to the plaintiffs' claim; or for documents sufficiently referred to in the complaint.'" Alt. Energy, Inc., 267 F.3d at 33 (quoting Watterson, 987 F.2d at 3).

The complaint specifically refers to the administrative orders issued by the DOE as well as the parties' corresponding motions filed before the administrative judge, none of which are contested by either party. Therefore, the court can consider these submitted documents without converting the motion to dismiss into a motion for summary judgment. See Barber v. Verizon New England, Inc., 2005 WL 3479834 at *1 n.1 (D.R.I. Dec. 20, 2005) ("While a court deciding a Rule 12(b)(6) motion is normally constrained to consider only the plaintiff's complaint, a court may nonetheless take into account a document whose contents are linked to the complaint . . . without converting the motion into a summary judgment request.") (citing Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 17 (1st Cir. 1998)). Accordingly, the court will proceed under a Rule 12(b)(6) standard of review.

Under Rule 12(b)(6), a defendant may move to dismiss an action against him for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). When considering a motion to dismiss, the court must decide whether the complaint alleges enough facts to "raise a right to relief above the speculative level." See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In so doing, the court accepts as true all well-pleaded facts and draws all reasonable inferences in the plaintiff's favor. Parker v. Hurley, 514 F.3d 87, 90 (1st Cir. 2008). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). "[W]here the well-pleaded facts do not permit the court to infermore than the mere possibility of misconduct, the complaint has alleged -but it has not 'show[n]'-'that the pleader is entitled to relief.'" Iqbal, 129 S. Ct. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).

In sum, when passing on a motion to dismiss the court must follow two principles: (1) legal conclusions masquerading as factual allegations are not entitled to the presumption of truth; and (2) plausibility analysis is a context-specific task that requires courts to use their judicial experience and common sense. Id. at 1949-50 (citing Twombly, 550 U.S. at 555-56). In applying these principles, courts may first separate out merely conclusory pleadings, and then focus upon the remaining well-pleaded factual allegations to determine if they plausibly give rise to an entitlement to relief. Iqbal, 129 S. Ct. at 1950.

II. Factual & Procedural Background

Minor Pedro Antonio Perez Ramirez ("Pedro") is a fifteen year old child diagnosed with severe autism. The DOE is a public division organized under the laws of the Commonwealth of Puerto Rico in charge of public education. Co-defendant Rivera is currently the Secretary of Education of the Commonwealth of Puerto Rico and is responsible for the administration and implementation of all programs of education for children within the Commonwealth.

During the 2006-2007 school year, Pedro was placed at the Instituto Modelo de Ensenanza Individualizada ("IMEI"). During the school year, Plaintiff met with Pedro's teachers at IMEI. She was informed that IMEI lacked the necessary tools to help Pedro. As a result, Pedro was removed from IMEI. Plaintiff contacted the DOE to discuss different placement and related services. The parties were unable to reach an agreement for placement and related services so Plaintiff filed an IDEA complaint (Complaint No. 2007-107-031) ("First Complaint"). Following this complaint, the DOE conducted an evaluation and prepared an Individual Education Plan ("IEP").

On May 11, 2007, Administrative Judge Marie Lou De La Luz-Quiles produced a Resolution and Order (the "First Resolution") (Docket No. 11-1) which stated in pertinent part:

1. The Provisional Remedy is hereby granted to Student Pedro A. Perez Ramirez, so that he be provided psychological therapy services by Behavior Analysis, Inc. to help him in his educational program and guarantee that he receives a proper education according to his needs.

2. The plaintiff must visit the Department of Education, 9th floor, provisional Remedies Office, and fill in all the corresponding documents.

3. The plaintiff must submit his psychological evaluation, along with all the required documents, to the Department of Education, 9th floor.

4. The plaintiff must fill in the required form at the Provisional Remedies Office and be advised of the entire procedure, as explained to him during the Administrative Hearing . . . .

The captioned parties are hereby advised that the party adversely affected by this Resolution may file a Motion for Reconsideration regarding same within a period of twenty (20) days after this Resolution has been filed in the case docket.

On June 21, 2007, pursuant to the First Resolution, a signed contract between Plaintiff and Behavior Analysis Inc. ("Behavior") was provided to Defendant. Behavior is a Florida corporation that was doing business in Puerto Rico and provides Applied Behavior Analysis ("ABA") therapies. Behavior evaluated Pedro and concluded that he needed an intensive program of no less than twenty ABA sessions per week, plus weekly evaluations.

On July 17, 2007, the DOE received the contract between Plaintiff and Behavior for the provision of psychological services. In response, the DOE filed an Informative Motion and Request for Clarification of Judgment (Docket No. 32-1) on the First Resolution. The DOE informed the Administrative Judge that, according to the agreement, Behavior would be providing their services through Carlos A. Vazquez. The DOE's motion further informed that the documents submitted by Plaintiff did not include evidence that Mr. Vazquez was licensed to practice psychology in Puerto Rico, which is a requirement in accordance with the regulations of said profession. The motion further notified the administrative judge that the DOE sent a letter to Behavior on June 29, 2007, informing it that the department could not approve the agreement.¹ Finally, the DOE requested that the First Resolution be corrected to order that the psychological services be provided through a corporation or psychologist certified to practice in Puerto Rico.

On September 21, 2007, Administrative Judge Marie Lou De La Luz-Quiles produced asecond administrative resolution nunc pro tunc ("Second Resolution") (Docket No. 32-2) clarifying the First Resolution ordered on May 11, 2007. The Second Resolution stated that the therapy services which were alluded to in the First Resolution are behavioral modification therapies using the ABA method. The resolution further stated that Plaintiff must submit the assessment performed by Behavior and all supporting documents to the 9th floor of the DOE. A hearing was held on October 11, 2007 to clarify this matter. At the hearing, both parties were requested to submit briefs supporting their corresponding positions. On October 24, 2007, the DOE filed a memorandum of law (Docket No. 32-3) explaining its reasons for denying future and past payment of the ABA services provided by Behavior. Plaintiff never submitted a brief of its own. Pedro began receiving ABA therapy from Behavior in October of 2007 at Plaintiff's expense.

On July 8, 2008, Administrative Judge Marie Lou De La Luz-Quiles issued a third resolution nunc pro tunc ("Third Resolution") (Docket No. 32-4) in response to the DOE's submitted brief. Plaintiff never received notice of the Third Resolution.² The Third Resolution denied Plaintiff's request for the purchase of the ABA behavioral...