Sorah v. Tipp City Exempted Vill. Sch. Dist. Bd. of Educ.

611 F.Supp.3d 441

Zachery SORAH, et al., Plaintiffs,

v.TIPP CITY EXEMPTED VILLAGE SCHOOL DISTRICT BOARD OF EDUCATION, et al., Defendants.

Case No. 3:19-cv-120

United States District Court, S.D. Ohio, Western Division.

Signed March 16, 2020

Jeffrey Michael Silverstein, Freking, Myers & Reul LLC, Dayton, OH, for Plaintiffs.

Sandra R. McIntosh, Freund Freeze & Arnold, Columbus, OH, for Defendants.

DECISION AND ENTRY SUSTAINING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS (DOC. #6); OVERRULING PLAINTIFFS' MOTION TO AMEND COMPLAINT (DOC. #11); JUDGMENT TO ENTER IN FAVOR OF DEFENDANTS AND AGAINST PLAINTIFFS; TERMINATION ENTRY

WALTER H. RICE, UNITED STATES DISTRICT JUDGE

Plaintiff Zachery Sorah and his mother, Brandy Sorah, filed suit against Tipp City Exempted Village School District Board of Education and its Superintendent, Gretta Kumpf, Ph.D., seeking damages and injunctive relief under Title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12131 et seq. , and § 504 of the Rehabilitation Act of 1973 (" § 504"), 29 U.S.C. § 794 et seq.

This matter is currently before the Court on Defendants' Motion for Judgment on the Pleadings, Doc. #6, and on Plaintiffs' Motion to Amend Complaint, Doc. #11. For the reasons set forth below, the Court sustains the Motion for Judgment on the Pleadings and overrules the Motion to Amend Complaint.

I. Background and Procedural History

Zachery Sorah is a disabled young adult who graduated from Tipp City Exempted Village School District in 2017. He has been diagnosed with a speech impediment, auditory processing disorder, attention deficit disorder and poor socialization skills. While he was a student, his disabilities were addressed under an Individual Education Plan ("IEP") and a Section 504 Plan.

This lawsuit arises out of events that took place during Zachery's last semester of his senior year of high school. On January 11, 2017, he was given a 3-day in-school suspension after tobacco and a vape pen were found in his car on school property. Three months later, on April 20, 2017, he was given a 10-day out-of-school suspension with a recommended 80-day expulsion after a wooden pipe, rolling papers and empty tobacco wrappers were found in his car on school property.

The expulsion hearing, conducted by Superintendent, Dr. Gretta Kumpf, and Principal, Steve Verhoff, was held on April 27, 2017. According to Plaintiffs, although Brandy reminded them of Zachery's disabilities, there was no discussion at that hearing of whether Zachery's behavior might be related to his disabilities, i.e. , a "manifestation determination." The following day, Dr. Kumpf agreed to hold the 80-day expulsion in abeyance if Zachery complied with certain conditions upon his return to school.

Plaintiffs allege that, when Zachery returned to school on May 4, 2017, his schedule was reduced from seven periods to four periods. His classwork was self-taught on the computer and he had to manage his own classes with little direction or guidance from his teachers. The teachers assigned to his room were often unfamiliar with the subject matter assigned to him. Contrary to his IEP and Section 504 Plan, he was not given visual supports or frequent checks of his comprehension of the subject matter. In addition, he was escorted everywhere he went in the school building, forbidden to socialize with other students and forced to leave school to eat his lunch. He was also barred from attending the Senior Prom, the Senior Father Luncheon, the Senior Awards Ceremony, Senior Picnic, the Senior Sports Awards Ceremony, and varsity baseball games.

Zachery graduated from high school in late May of 2017. In April of 2019, he and his mother, Brandy, filed suit against the Tipp City Exempted Village School Board of Education and against Dr. Kumpf, alleging violations of Title II of the ADA and § 504 of the Rehabilitation Act. Doc. #1. They allege that "[a]s a result of Defendants' discriminatory and retaliatory actions, Zachery suffered a compromise in his education." Id. at PageID#6. They also allege that Zachery was punished more harshly than a non-disabled student who engaged in unlawful behavior. Id. at PageID#5.

Defendants have filed a Motion for Judgment on the Pleadings, Doc. #6. Along with their memorandum in opposition to that motion, Doc. #10, Plaintiffs filed a Motion to Amend Complaint, Doc. #11. The factual allegations in the proposed Amended Complaint are largely the same, but Plaintiffs seek leave to add a claim under 42 U.S.C. § 1983 for an alleged violation of their Fourteenth Amendment rights, and to explicitly assert a claim for damages against Dr. Kumpf in her individual capacity. Both motions are fully briefed and ripe for decision.

II. Defendants' Motion for Judgment on the Pleadings (Doc. #6)

Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity." 42 U.S.C. § 12132. Count I of the Complaint alleges that Defendants discriminated against Zachery on the basis of his disability by denying him full and equal enjoyment of educational services, and that Defendants punished him more harshly than a similarly-situated, non-disabled student, all in violation of Title II of the ADA. Doc. #1.

Section 504 of the Rehabilitation Act provides, in relevant part, that "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). Count II of the Complaint alleges that Defendants violated § 504 by excluding Zachery from participation in their programs and activities, denying him the benefits of those programs and activities, and subjecting him to discrimination on the basis of his disability. It further alleges that Defendants engaged in retaliatory actions against Zachery and Brandy in response to Brandy's objections to the manner in which Zachery was being treated. Doc. #1.

Both the ADA and § 504 "authorize individuals to seek redress for violations of their substantive guarantees by bringing suits for injunctive relief or money damages." Fry v. Napoleon Cmty. Schs. , 580 U.S. 154, 137 S. Ct. 743, 750, 197 L.Ed.2d 46 (2017). Here, Plaintiffs seek both. They ask that "Defendants be enjoined from further unlawful conduct," and that "Plaintiffs be awarded compensatory damages, including those relating to emotional distress." Doc. #1, PageID#8.

In their Motion for Judgment on the Pleadings, Defendants argue that: (1) Brandy Sorah lacks standing to pursue claims under the ADA and § 504 ; (2) Dr. Kumpf cannot be held individually liable under the ADA or § 504, and the claims brought against her in her official capacity are redundant; and (3) Zachery's ADA and § 504 claims against the school board are subject to dismissal because he failed to exhaust administrative remedies as required by the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(l).

A. Fed. R. Civ. P. 12(c)

Motions for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) are analyzed under the same standard as motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Warrior Sports, Inc. v. Nat'l Collegiate Athletic Ass'n , 623 F.3d 281, 284 (6th Cir. 2010). "For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment." JPMorgan Chase Bank, N.A. v. Winget , 510 F.3d 577, 581 (6th Cir. 2007) (internal citation and quotation marks omitted). However, the court need not accept as true legal conclusions or unwarranted factual inferences. Id. (citing Mixon v. Ohio , 193 F.3d 389, 400 (6th Cir. 1999) ).

To withstand a Rule 12(c) motion for judgment on the pleadings, "a complaint must contain direct or inferential allegations respecting all the material elements under some viable legal theory." Commercial Money Ctr., Inc. v. Illinois Union Ins. Co. , 508 F.3d 327, 336 (6th Cir. 2007). "The factual allegations in the complaint need to be sufficient to give notice to the defendant as to what claims are alleged, and the plaintiff must plead ‘sufficient factual matter’ to render the legal claim plausible, i.e. , more than merely possible." Fritz v. Charter Twp. of Comstock , 592 F.3d 718, 722 (6th Cir. 2010) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). A "legal conclusion couched as a factual allegation" need not be accepted as true, nor are recitations of the elements of a cause of action sufficient. Hensley Mfg. v. ProPride, Inc. , 579 F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

As Defendants note in their reply brief, Plaintiffs' Memorandum in Opposition to the Motion for Judgment on the Pleadings contains numerous additional factual allegations that are not contained in the Complaint. Because these additional allegations are matters outside the pleadings, the Court cannot consider them in ruling on Defendant's motion. Johnson v. Metro. Gov't of Nashville and Davidson Cty., Tenn. , 502 F. App'x 523, 541-42 (6th Cir. 2012). Moreover, Plaintiffs are not permitted to remedy pleading deficiencies through a response brief. See Montesi v. Nationwide Mut. Ins. Co. , 970 F. Supp. 2d 784, 792 (W.D. Tenn. 2013) ; Jocham v. Tuscola Cty. , 239 F. Supp. 2d 714, 732 (E.D. Mich. 2003). Accordingly, only the facts alleged in the Complaint will be considered.

B. Brandy Sorah's Standing

The first question is whether Brandy Sorah has standing to assert claims under the...