Opinion
Case No. 01-1073-KMH.
September 27, 2001.
MEMORANDUM AND ORDER
This matter is before the court on defendant's motion to dismiss (Doc. 4) pursuant to Fed.R.Civ.P. 12(b)(6). Defendant contends that the court lacks subject matter jurisdiction because the federal claim upon which jurisdiction depends is barred by the statute of limitations. For the reasons stated below, the motion shall be GRANTED.
The parties consented to the exercise of jurisdiction by the undersigned magistrate judge in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. (Doc. 22).
Background
In 1998 plaintiff was a student enrolled in a school within Unified School District 212. Because he was an "individual with a disability" as defined by 29 U.S.C. § 705, the defendant created an accommodation plan for him pursuant to 29 U.S.C. § 794. As part of that plan, plaintiff was to receive modifications to the normal teaching techniques. Included within those modifications were:
a. Give directions in small, distinct steps;
b. Use written back-up for oral directions;
c. Use positive reinforcement;
d. Check often for understanding/review;
e. Request parent reinforcement; and
f. Make student repeat directions.
On September 8, 1998, plaintiff injured his back while lifting weights in his physical education class. Plaintiff alleges that, contrary to his education plan, he was given few or no directions;, the directions given, if any, were not in small distinct steps; and there was not written backup for oral directions. Plaintiff asserts that this noncompliance with the plan violates the Rehabilitation Act, 29 U.S.C. § 794 (Count I), and that the court has subject matter jurisdiction under 29 U.S.C. § 794a. He also alleges a state law claim of negligence (Count II) and requests that the court exercise supplemental jurisdiction over that claim pursuant to 28 U.S.C. § 1367.
Facts
The following facts are uncontroverted:
1. Plaintiff was born February 21, 1982, and attained the age of 18 on February 21, 2000.
2. The events upon which plaintiff's cause of action is based occurred on September 8, 1998.
3. Notice pursuant to K.S.A. 12-105b was served on the defendant on February 16, 2001.
4. The claim pursuant to the notice was denied by letter dated March 9, 2001.
5. This action was filed on March 13, 2001.
Analysis
Defendant argues that plaintiff's claim under 29 U.S.C. § 794 is barred by the statute of limitations and therefore subject matter jurisdiction is lacking. Plaintiff opposes the motion, arguing that K.S.A. 12-105b extends the statute of limitations for his claim under the Rehabilitation Act. As explained in greater detail below, the court finds that plaintiff's Rehabilitation Act claim is barred by the statute of limitations. Because subject matter jurisdiction is based on the existence of a claim under Rehabilitation Act, the case shall be dismissed.
Plaintiff also asserts an unusual alternative argument. Despite the clear wording in the complaint that Count I is a claim under the Rehabilitation Act ( 29 U.S.C. § 794), plaintiff's response brief argues that Count I, in part, is a state law claim of negligence per se. Plaintiff's attempt to recast his claim as negligence per se is creative, but unpersuasive. The gravamen of a claim under 29 U.S.C. § 794 is discrimination by a federally funded program, not negligence. If Count I is in fact a claim based on a state law negligence theory, no federal cause of action has been stated and the case must be dismissed for lack of federal subject matter jurisdiction.
Federal statutes do not establish a statute of limitations for claims brought pursuant to 29 U.S.C. § 794. To remedy this deficiency, the Supreme Court has instructed district courts to look to state law and borrow the most applicable statute of limitations. See, e.g., Owens v. Okure, 488 U.S. 235, 236 (1989). The Tenth Circuit has expressly held that claims under 29 U.S.C. § 794 are most analogous to personal injury claims and the applicable statute of limitations is two years. Baker v. Board of Regents of Kansas, 991 F.2d 628 (10th Cir. 1993) (citing K.S.A. § 60-513). Because the incident giving rise to this lawsuit occurred on September 8, 1998 and the case was filed on March 13, 2001, the Rehabilitation Act claim is barred unless the two year statute of limitations has been tolled by K.S.A. §§ 60-515 and 12-105b.
Defendant concedes that plaintiff was a minor on September 8, 1998 when the accident occurred. Under the tolling provision of K.S.A. § 60-515, if a person is under the age of 18 at the time a cause of action arises, he may bring the cause of action within one year after that disability is lifted. Because plaintiff turned 18 on February 21, 2000 and this action was filed more than one year later (March 13, 2001), the tolling provision of K.S.A. § 60-515 alone does not save plaintiff's Rehabilitation Act claim.
Plaintiff argues that the statute of limitations was also tolled by the filing of a notice of claim with the school district under K.S.A. § 12-105b on February 16, 2001 (within one year of plaintiff's 18th birthday). Section 12-105b is a uniform procedure enacted by the Kansas legislature concerning the presentment and payment of claims against a municipality. Under § 12-105b(d), no person may initiate an action against a municipality unless a notice of claim has been presented to the municipality and the claim has been denied. The time period for bringing an action under the Kansas Tort Claims Act is extended "by the time required for compliance" with the claim procedures. § 12-105b(d).
Plaintiff's argument that § 12-105b tolls the statute of limitations on his claim under the Rehabilitation Act is not persuasive. The law is well established that federal civil rights claims are not subject to the Kansas Tort Claims Act or K.S.A. § 12-105b. Miller v. Brungardt, 904 F. Supp. 1215 (Kan. 1995). This is so because such provisions impermissibly burden a plaintiff from seeking remedial relief for federal civil rights violations. Peoples v. Finney County Board of Commissioners, No. 94-3398, 1995 WL 326131 (10th Cir. June 1, 1995). Because the state law notice requirement are not applicable to civil rights claims, the Tenth Circuit has rejected plaintiff's tolling arguments under § 12-105b.Id. Therefore, plaintiff's claim under the Rehabilitation Act shall be dismissed.
Peoples involved a civil rights actions under 42 U.S.C. § 1983. Plaintiff argues, without citation to any legal authority, that the court should not extend the Tenth Circuit's ruling to an action under the Rehabilitation Act. The court rejects plaintiff's argument. The position urged by plaintiff would permit state legislatures to place impermissible burdens on plaintiff's right to file an action to remedy disability discrimination under 29 U.S.C. § 794.
The federal claim upon which subject matter jurisdiction was based has been dismissed. Based on 28 U.S.C. § 1367, the court declines to exercise supplemental jurisdiction over the negligence claim (Count II). See 28 U.S.C. § 1367(c)(3) (court may decline supplemental jurisdiction over state law claim where court has dismissed all claims over which it had original jurisdiction.) Count II shall be dismissed without prejudice.
IT IS THEREFORE ORDERED that defendant's motion to dismiss (Doc. 4) is GRANTED. Plaintiff s claim for negligence is dismissed without prejudice.