A.W. v. Jersey City Public Schools, No. 01-cv-140 (WGB) (D. N.J. 5/1/2002)

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A.W., Plaintiff, v. THE JERSEY CITY PUBLIC SCHOOLS; NEW JERSEY DEPARTMENT OF EDUCATION; et al., Defendants.

No. 01-cv-140 (WGB)

United States District Court, D. New Jersey.

May 1, 2002.

Elizabeth Athos, Esq., EDUCATION LAW CENTER Jeffrey E. Fogel, Esq., Attorneys for Plaintiff.

Todd J. Schwartz, D.A.G., Office of the Attorney General of New Jersey R.J. Hughes Justice Complex, William T. Connell, Esq., DWYER, CONNELL & LISBONA, ESQS., Stephen Jay Edelstein, Esq. SCHWARTZ, SIMON, EDELSTEIN, CELSO & KESSLER, ESQS. Attorneys for Defendants.

OPINION

BASSLER, District Judge.

Plaintiff A.W. is a high school student with a learning disability (severe dyslexia). Defendants are the Jersey City School District, the New Jersey Department of Education, and a number of the entities' employees. Plaintiff alleges that Defendants failed to either identify or account for his condition in a timely fashion, and as a result deprived him of a free appropriate public education for over ten years. Plaintiff's complaint seeks a declaratory judgment that Defendants violated his rights as secured by federal and state law, and seeks financial recovery in the form of compensatory and punitive damages, as well as attorney's fees and costs.

This matter is now before the Court on the motion of Defendant New Jersey Department of Education and its Defendant employees, namely Dr. Jeffrey Osowski, Barbara Gantwerk, and Melinda Zangrillo (collectively, "State Defendants"),¹ to dismiss Plaintiff's Complaint pursuant to Fed. R. Civ. P. 12(b)(6). Defendants contend that they should be dismissed from this action because they are insulated by the doctrine of sovereign immunity, and because Plaintiff failed to exhaust his available administrative procedures.²

The Court has jurisdiction pursuant to 20 U.S.C. § 1415(i)(3)(A) and 28 U.S.C. §§ 1331, 1343, 1367, and 2201. For the following reasons, State Defendants' motion to dismiss is denied.

I. BACKGROUND

A. Procedural History

On January 10, 2001 Plaintiff commenced this action. Plaintiff claims that State Defendants, and others, violated his rights under the Individuals with Disabilities Education Act, 20 U.S.C.A. § 1400 et seq. ("IDEA"); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 794 ("RA"); the Civil Rights Act of 1971, 42 U.S.C. § 1983 ("Section 1983"); Art. VIII, § 4, ¶ 1 of the New Jersey Constitution; and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. ("NJLAD").

State Defendants received a pair of extensions of time to answer, move, or otherwise respond to the Complaint. On April 17, 2001, State Defendants timely served Plaintiff with their Motion to Dismiss Plaintiff's Complaint, pursuant to Fed. R. Civ. P. 12(b)(6). In compliance with Appendix N of the Local Rules of Civil Procedure, Defendants filed their completed motion packet with the Court on June 28, 2001. Simultaneously, Plaintiff filed a cross-motion to amend his complaint. Pursuant to Rule 78, the Court took both motions under advisement on July 23, 2001.

In March, 2002, having carefully reviewed the parties' submissions and the relevant law, it became apparent to the Court that Defendants' motion should be denied, and that Plaintiff's cross-motion to amend should be granted.³ Mindful of the lengthy pendency of the parties' motions, on March 18, 2002 the Court entered an Order denying Defendants' motion and granting Plaintiff's motion. Although the Court had begun preparing an Opinion to explain its decision, so as to expeditiously resolve this matter the Court issued its March 18, 2002 Order before the Opinion was ready for issuance.

On April 8, 2002, the Court referred this matter to mediation, and stayed all proceedings. On April 11, 2002, State Defendants filed their Answer to Plaintiff's Amended Complaint, as well as a jury demand and cross-claims. On April 17, 2002, before the Court issued this Opinion, State Defendants appealed the Court's March 18, 2002 Order. Defendants' appeal is presently pending. Although Defendants have appealed the Order that this Opinion discusses, the Court has nonetheless elected to issue the Opinion in order to assist the Third Circuit in its review of the Court's March 18, 2002 decision.

B. Factual History

Plaintiff A.W. is a twenty-year-old tenth grade student with severe dyslexia who has been enrolled in the Jersey City Public Schools from September, 1988, when he entered the second grade, through the present.⁴ A.W.'s dyslexia, which impairs his ability to read and write, was never diagnosed by Defendants. Consequently, from September, 1988 until May, 2000, Plaintiff did not receive an appropriate educational program and made minimal, if any, progress in the areas of reading, writing, and spelling.

At all relevant times, A.W. was eligible for special education and related services under the Individuals with Disabilities Act, and was a qualified individual with a disability under the Rehabilitation Act. During that same time, Defendants received federal financial assistance for educational programs, including funds under the IDEA.

On January 28, 2000, after A.W. obtained an independent educational evaluation diagnosing his condition, the District developed an Individualized Education Program ("IEP") for him, which required specialized reading, writing, and spelling instruction to address his inability to read, write, and spell. As a result, Plaintiff concedes that appropriate educational services were implemented for him in May, 2000.⁵

Prior to the implementation of A.W.'s IEP in 2000, in December 1997, A.W.'s grandmother (who was his legal guardian), participated in the filing of a complaint with the New Jersey Department of Education ("NJDOE") on behalf of A.W. and other Jersey City students with dyslexia. Through that complaint, A.W.'s grandmother brought the specifics of A.W.'s case to the attention of the NJDOE and its employees responsible for the complaint investigation. Those employees included State Defendant Barbara Gantwerk, Director of the Office of Special Education Programs, and Melinda Zangrillo, Coordinator of Compliance.

As a result of the complaint investigation, NJDOE ultimately issued a report in June, 1998. The report concluded the District was noncompliant because it failed to demonstrate that its written reading curricula could be adapted to meet the needs of classified pupils. Despite this finding, NJDOE did not provide A.W. with any relief as a result of the complaint investigation. In part because he failed to receive relief, A.W. now alleges that NJDOE and its employees knew or reasonably should have known of his dyslexia, and should have known that an educational program effective at remediating his condition should have been implemented.

Relevant to the State Defendants' motion to dismiss, A.W.'s Amended Complaint alleges that the State Department of Education violated the IDEA by failing to identify and address his dyslexia (Count I); violated the IDEA by failing to develop and implement a program to deal with dyslexic students, and by failing to train its employees accordingly (Count II); and violated Section 504 of the Rehabilitation Act by denying A.W. a free appropriate public education (Count IV).

A.W.'s Amended Complaint further alleges that State Defendants Osowski, Gantwerk, and Zangrillo (sued in their official capacities), violated the IDEA by failing to identify, address, or provide for A.W.'s dyslexia (Count I). Finally, A.W. alleges that State Defendants Gantwerk and Zangrillo (sued in their individual capacities) should be held liable pursuant to 42 U.S.C. § 1983 for violating his rights as secured by the IDEA and § 504 of the RA, by virtue of their personal participation in the allegedly ineffective investigation of his grandmother's December, 1997 complaint (Count VIII).

II. ANALYSIS

A. Motion to Dismiss Standard

Federal Rule of Civil Procedure 12(b)(6) allows a party to move for a dismissal based upon the pleader's "failure to state a claim upon which relief can be granted." Since the long-established federal policy of civil litigation is to decide cases on the proofs, district courts generally disfavor Rule 12(b)(6) motions. Melo-Sonics Corp. v. Cropp, 342 F.2d 856 (3d Cir. 1965); Panek v. Bogucz, 718 F. Supp. 1228, 1229 (D.N.J. 1989).

In deciding a motion to dismiss for failure to state a claim, all allegations in the pleadings must be accepted as true and the plaintiff must be given the benefit of every favorable inference that can be drawn from those allegations. See Conley v. Gibson, 355 U.S. 41, 48 (1957); Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 n.1 (3d Cir. 1987); Markowitz, 906 F.2d at 103.

Rule 12(b)(6) does not countenance "dismissals based on a judge's disbelief of a complaint's factual allegations." Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheur v. Rhodes, 416 U.S. 232, 236 (1974). Accepting the facts in the pleadings as true and giving them all reasonable inferences, a court must dismiss under Rule 12(b)(6) "[i]f as a matter of law `it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Neitzke, 490 U.S. at 326-27

State Defendants claim that the causes of action against them should be dismissed because even when all of the facts alleged in Plaintiff's complaint are taken as true, pursuant to the Eleventh Amendment, State Defendants are immune from suits by private citizens for money damages. Plaintiff disagrees, and argues that State Defendants' motion should be denied because Congress, by enacting the RA and the IDEA, validly abrogated the State Defendants' Eleventh Amendment immunity. Plaintiff further contends that even if the State Defendants' immunity from suit was not validly abrogated by Congress, the State nonetheless waived its...