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G.M., A Minor, By and Through His Guardian Ad Litem; Kevin v. Drycreek Joint Elementary School ) District; California

December 30, 2010

G.M., A MINOR, BY AND THROUGH HIS GUARDIAN AD LITEM; KEVIN MARCHESE, AN INDIVIDUAL; AND LYNDI MARCHESE, AN INDIVIDUAL,
PLAINTIFFS,
v.
DRYCREEK JOINT ELEMENTARY SCHOOL ) DISTRICT; CALIFORNIA DEPARTMENT ) OF EDUCATION; AND JACK ) O'CONNELL, IN HIS OFFICIAL CAPACITY AS STATE SUPERINTENDENT ) OF PUBLIC INSTRUCTION FOR THE STATE OF CALIFORNIA,
DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER GRANTING MOTION TO DISMISS

Defendants the California Department of Education ("CDE") and Jack O'Connell, State Superintendent of Public Instruction for the State of California (the "Superintendent"), sued herein only in his official capacity, (collectively "Defendants") move for dismissal of Plaintiffs' First Amended Complaint ("FAC") under Federal Rule of Civil Procedure ("Rule") 12(b)(1). Defendants argue under Rule 12(b)(1) that the Court lacks subject matter jurisdiction because Plaintiffs have not pursued administrative remedies against the CDE. Defendants also seek dismissal under Rule 12(b)(6), arguing Plaintiffs' § 1983 claims fail to state a claim. (ECF No. 17.) G.M. and his parents Kevin Marchese and Lyndi Marchese (collectively, "Plaintiffs") oppose the motion. (ECF No. 21.) The motion was heard on October 25, 2010.

I. Legal Standard

A. Federal Rule of Civil Procedure Rule 12(b)(1)

"A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction can take one of two forms." Bean v. McDougal Littell, 538 F. Supp. 2d 1196, 1198 (D. Ariz. 2008). "It can be a 'facial attack,' in which case 'the challenger asserts that the allegations contained in [the] complaint are insufficient on their face to invoke federal jurisdiction.' Or it can be a 'factual attack,' in which case the challenger asserts that federal jurisdiction does not exist in fact." Id. (citation omitted).

Defendants' Rule 12(b)(1) motion is "a facial attack on . . . subject matter jurisdiction[.]" Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009). Therefore, the factual allegations in Plaintiffs' complaint are assumed to be true and all reasonable inferences are drawn therefrom in Plaintiffs' favor. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). However, the Court is not required to "assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). Further, Plaintiffs have the burden of establishing jurisdiction. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).

B. Federal Rule of Civil Procedure 12(b)(6)

A Rule 12(b)(6) dismissal motion tests the legal sufficiency of the claims alleged in a complaint. Novarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal under Rule 12(b)(6) is appropriate only where the complaint either 1) lacks a cognizable legal theory, or 2) fails to allege "sufficient facts . . . under a cognizable legal theory." Balistreri v. Pacific Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). To avoid dismissal, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007).

In deciding a Rule 12(b)(6) motion, the material allegations of the complaint are accepted as true and all reasonable inferences are drawn in favor of the Plaintiffs. See al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). However, conclusory statements and legal conclusions are not entitled to a presumption of truth. See Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949-50 (2009); Twombly, 550 U.S. at 555. "In sum, for a complaint to survive a motion to dismiss, the nonconclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

II. Factual Allegations in Plaintiffs' FAC

G.M. is a fourteen year old student who attends Dry Creek Joint Elementary School District (the "District"). (FAC ¶ 33.) G.M. is diagnosed with dyslexia and other learning disabilities and is eligible for, and receiving, special education under the federal Individuals with Disabilities Education Act ("IDEA"). Id. In 2008, G.M.'s parents ("Parents") filed an administrative due process complaint against the District, following which the parties reached a Settlement Agreement. Id. ¶¶ 36-37. Part of the settlement required G.M. "to commence services with an independent provider who specializes in teaching students with dyslexia[.]" Id. This is addressed in the Settlement Agreement signed by the Parents and the District as follows: "the District agreed to contract and pay the dyslexia specialist . . . 15 hours a week for 1:1 services[.]" Id. ¶ 38.

Following the settlement, an Individualized Education Program ("IEP") was prepared and signed which "included goals in language arts and math, but . . . reflected no goals or services related to the general education curriculum." Id. G.M. received language services through the outside provider but "math instruction and related services were not provided[.]" Id. ¶ 39. G.M. was to attend Physical Education ("P.E.") at school during last period but problems with the school and the District have arisen in the last year with regard to G.M. attending P.E. Id. ¶¶ 37, 56. "The District did not obtain a contract for or fund the language services for the outside provider as called for in the 10/09/08 Settlement Agreement." Id. ¶ 40. Therefore, Parents have paid "for services so as not to lose them . . . and [the District] only provided partial and inconsistent reimbursement . . . [;] and only provided full reimbursement after [Parents] filed [a] due process [complaint against the District in the State Office of Administrative Hearings ("OAH") on June 11, 2009]." Id. ¶¶ 40, 46.

G.M.'s annual IEP was held on May 28, 2009, but no written offer of Free Appropriate Public Education ("FAPE") was ever given to Parents. Id. ¶¶ 44-45. A second IEP was scheduled for August 5, 2009 but Parents were not given adequate notice and therefore, were unable to attend. Id. ¶ 51. The District held the IEP on August 5, 2009 without Parents "and unilaterally determined Student's program and services[.]" Id. ¶ 52. After giving Parents proper notice, a third IEP was held on August 28, 2009, which all parties attended; the District subsequently offered a FAPE, which Parents rejected. Id. ¶ 57.

Parents filed a due process complaint against the District in the OAH on June 11, 2009 "[b]ecause no IEP or written offer of FAPE was forthcoming." Id. ¶ 46. The District filed a due process complaint against Parents in the OAH on July 30, 2009 to obtain an assessment of G.M. by an "'independent' specialist[.]" Id. ¶ 49. "On August 12, 2009, the District amended its July 31, 2009 request for due process (for assessment) to request a finding of FAPE with regard to the program and services offered at the August 5, 2009 IEP, which Student's parents had been unable to attend." Id. ¶ 54. "The District also requested consolidation with the parent's June 11, 2009 due process complaint. This request was granted by [the OAH]." Id.

The OAH held an administrative hearing on the consolidated due process complaints on November 30 and December 1, 2, 8, 9, and 10, 2009. Id. ¶ 60. The administrative law judge issued a decision on February 18, 2010 "finding for the District and concluding that the District had made a valid offer of FAPE at the August 28, 2009 IEP and could assess Student." Id. ¶ 61.

In 2009 and 2010, Parents complained to the CDE about the District under the IDEA's Complaint Resolution ...


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