Opinion
Civil Action No. 03-CV-4319.
May 5, 2004
ORDER
NOW, this 5th day of May, 2004, upon consideration of the Motion to Dismiss of the LLIU Defendants filed November 10, 2003; upon consideration of the Memorandum of Law in Opposition to the Motion to Dismiss of the Lancaster-Lebanon Intermediate Unit, Dr. John George and Patricia Smedley filed January 6, 2004; upon consideration of the briefs of the parties,
IT IS ORDERED that the motion is granted in part and denied in part.
IT IS FURTHER ORDERED that Count VI is dismissed from plaintiffs' Complaint with prejudice.
IT IS FURTHER ORDERED that any claims by R.K. and T.K. for loss of income damages that may be fairly read into plaintiffs' Complaint are dismissed without prejudice.
IT IS FURTHER ORDERED that in all other respects defendants' motion to dismiss is denied. IT IS FURTHER ORDERED that plaintiffs' request for leave to amend their Complaint is granted. Plaintiffs are further directed to delineate which plaintiffs are bringing which counts against which specific defendants.
Defendants Lebanon-Lancaster Intermediate Unit 13 ("LLIU"), Dr. John George and Patricia Smedley move to dismiss plaintiffs' Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
When considering a motion to dismiss the court must accept as true all factual allegations in the complaint and construe all reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff. Jurimex Kommerz Transit G.M.B.H. v. Case Corp., 65 Fed.Appx. 803, 805 (3d Cir. 2003) (citing Lorenz v. CSX Corp., 1 F.3d 1406, 1411 (3d Cir. 1993)). A Rule 12(b)(6) motion should be granted "if it appears to a certainty that no relief could be granted under any set of facts which could be proved." Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997) (citing D.P. Enter. Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984)). But a court need not credit a complaint's "bald assertions" or "legal conclusions" when deciding a motion to dismiss. Morse, 132 F.3d at 906. (Citations omitted.)
Defendants claim that because LLIU is not a Local Educational Agency ("LEA") for purposes of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400-1500, then LLIU cannot be liable for M.K.'s failure to receive a free and appropriate public education under either the IDEA or the Rehabilitation Act, 29 U.S.C. § 790-794e.
A LEA is defined as "a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools. . . . The term includes — (i) an educational service agency". 20 U.S.C. § 1401(15). An educational service agency is defined as:
a regional public multiservice agency — (i) authorized by State law to develop, manage, and provide services or programs to local educational agencies; and (ii) recognized as an administrative agency for purposes of the provision of special education and related services provided with public elementary and secondary schools of the state; and (B) includes any other public institution or agency having administrative control and direction over a public elementary or secondary school.20 U.S.C. § 1401(4). The parties dispute what services, if any, LLIU was responsible for providing or which LLIU actually provided. However, at this stage, we are required to read all inferences in the Complaint in favor of plaintiffs. Plaintiffs have averred that LLIU was involved in providing services to M.K. Accordingly, we deny defendants' motion.
Defendants further move to dismiss because plaintiffs have failed to exhaust their administrative remedies. Plaintiffs aver that they informed defendants of their complaints and requested an "appropriate remediation program as required by the IDEA." (Complaint, Paragraph 30.) They further aver that defendants denied plaintiffs' request. (Complaint, Paragraph 30.) Moreover, defendants admit R.K. and T.K. requested a hearing regarding their concerns. (Memorandum of Law in Support of the Motion to Dismiss of the Intermediate Unit, Dr. John George and Patricia Smedley, page 51.) It may be true, that plaintiffs have failed to exhaust their administrative remedies, but, at this stage, reading all inferences in the Complaint in favor of the plaintiffs, we are unable to determine whether plaintiffs have exhausted their administrative remedies or whether they may be excused from doing so because of futility. Accordingly, we deny defendants' motion to dismiss.
Defendants Dr. George and Ms. Smedley move to dismiss Counts I, II, and IV of plaintiff's Complaint because they assert that the IDEA, the American with Disabilities Act ("ADA"), 42 U.S.C. § 12101-12213, and the Rehabilitation Act, 29 U.S.C. § 790-794e, do not permit a cause of action against individual, non-program, defendants. Specifically, defendants aver that because they are employees of LLIU, and not individual program providers, they may not be held liable under any of the statutes.
Whether or not all plaintiffs may assert a direct cause of action under these acts against the individual defendants, plaintiff M.K. may state a cause of action under 42 U.S.C. § 1983 against the individual defendants for violations of these acts. Because the discoverable issues under the two theories are virtually identical, we need not address this aspect of the motion to dismiss at this juncture. Accordingly, we deny without prejudice this portion of defendants' motion. Upon re-submission of this issue to the court, the parties are instructed to provide and brief the applicable portions of the legislative history regarding individual liability under these acts.
Defendants LLIU, Dr. George, and Ms. Smedley also move to dismiss Counts III and V because plaintiffs have failed to state a claim under 42 U.S.C. § 1983. For LLIU, the motion, in part, presupposes a finding that it is not an LEA, which, for the reasons explained above, we are unable to determine at this stage. All defendants claim that plaintiffs have failed to aver a policy, practice or custom by which defendants violated plaintiffs' rights. Plaintiffs aver in the Complaint that all defendants failed to identify M.K.'s disability, program an appropriate Individual Education Program ("IEP"), failed to implement an appropriate IEP, and failed to take remedial action. At this stage, taking all fair inferences of the Complaint in favor of the plaintiffs, we conclude that plaintiffs have averred sufficient action on the part of defendants to permit a Section 1983 claim.
Defendants Dr. George and Ms. Smedley seek qualified immunity in the event that we decline to dismiss plaintiffs' Section 1983 claims. At this stage, we are unable to conclude that Dr. George's and Ms. Smedley's action were objectively reasonable. Accordingly, at this stage, we deny defendants' request for qualified immunity.
Defendants move to dismiss Count III of the Complaint, which avers a Section 1983 action on the basis of alleged violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Defendants assert that, because plaintiffs fail to aver a class of protected persons to which M.K. belonged and that M.K. was treated differently than those similarly situated, plaintiffs fail to state a claim upon which relief may be granted. We agree that Count III, as currently stated, fails to state a claim upon which relief may be granted. In their response, plaintiffs seek to amend this Count. We grant this request.