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Z.F, A Minor, By and Through His Parents M.A.F and J.F. and v. Ripon Unified School District

January 27, 2011

Z.F, A MINOR, BY AND THROUGH HIS PARENTS M.A.F AND J.F. AND AND J.F. INDIVIDUALLY; L.H., AND J.H., MINORS, BY AND THROUGH THEIR PARENTS J.A. AND J.R.H. AND J.A. AND J.R.H.
INDIVIDUALLY; A.N., A MINOR, BY THE J.H. AND THROUGH HIS PARENTS, G.N.
AND M.R., AND G.N. AND M.R.
INDIVIDUALLY,
. PLAINTIFFS, ON BEHALF
OF THEMSELVES AND ALL
OTHERS SIMILARLY SITUATED,
v.
RIPON UNIFIED SCHOOL DISTRICT
RIPON UNIFIED SCHOOL ALLEGED UNDER THE UNRUH ACT; DISTRICT BOARD OF TRUSTEES; SAN JOHNSON, JOAQUIN COUNTY OFFICE OF SWARTZLANDER, VMRC, SISEMORE-EDUCATION; VALLEY MOUNTAIN HESTER, AND JACOBS' REGIONAL CENTER (VMRC), MODESTO
SCHOOLS BOARD OF EDUCATION, RICHARD JACOBS, EXECUTIVE DIRECTOR OF VMRC, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, TARA SISEMORE-HESTER, COORDINATOR FOR AUTISM SERVICES FOR VMRC, IN HER OFFICIAL AND INDIVIDUAL CAPACITY; VIRGINIA JOHNSON, DIRECTOR OF MODESTO CITY SCHOOLS SELPA, IN HER OFFICIAL AND INDIVIDUAL CAPACITY; SUE SWARTZLANDER, PROGRAM DIRECTOR FOR MODESTO CITY SCHOOLS, IN HER OFFICIAL AND INDIVIDUAL CAPACITY AND DOES 1 -- 200., DEFENDANTS.
VALLEY MOUNTAIN REGIONAL CENTER, RICHARD JACOBS AND TARA SISEMORE-HESTER
COUNTERCLAIMANTS,
v.
M.A.F. AND J.A., SPECIAL NEEDS ADVOCATES FOR UNDERSTANDING, AND AUTISM REFORM CALIFORNIA,
COUNTERDEFENDANTS.



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

ORDER DENYING MODESTO CITY SCHOOLS' MOTION TO DISMISS PLAINTIFFS' CLAIMS ALLEGED UNDER SECTION 504 AND TITLE II OF THE ADA; THE RIPON DEFENDANTS' MOTION PLAINTIFFS' DENYING TO DISMISS THE Z.F. AND A.N CLAIMS ALLEGED UNDER SECTION 504 AND TITLE II OF THE ADA; GRANTING VMRC'S MOTION TO DISMISS PLAINTIFFS' CLAIM ALLEGED ) UNDER TITLE III OF THE ADA, ) AND DENYING VMRC'S MOTION TO DISMISS PLAINTIFFS' CLAIM (RUSD);MOTION TO DISMISS THE J.H. PLAINTIFFS' CITY SCHOOLS, MODESTO CITY ) § 1983 CLAIM

Pending are three separate dismissal motions seeking dismissal of all claims against each movant in Plaintiffs' First Amended Complaint. Each motion is brought under Federal Rule of Civil Procedure ("Rule") 12(b)(6). Defendants are local school districts, local boards of education, a county office of education, a regional center, and four individuals. Plaintiffs are four minors diagnosed with an Autism Spectrum Disorder, and their parents. (Pls.' First Am. Compl. ("FAC") ¶¶ 20-23.)

Plaintiffs allege: "Defendants have implemented a system under [the Early Intensive Behavioral Treatment Program Procedures and Guidelines ('EIBT/PPG')], which has unlawfully restricted access to intensive [Applied Behavior Analysis ('ABA')] services for Plaintiffs, as well as those similarly situated, in contravention of federal and state law." (FAC ¶ 34.)

I. Legal Standard

To avoid dismissal under Rule 12(b)(6), a plaintiff must have alleged "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, ---U.S. ----, 129 S. Ct. 1937, 1949 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1951).

In analyzing whether a claim has facial plausibility, "[w]e accept as true all well-pleaded allegations of material fact, and construe them in the light most favorable to the non-moving party." Daniels-Hall v. Nat'l Educ. Ass'n, --- F.3d ----, 2010 WL 5141247, at *3 (9th Cir. 2010). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 129 S. Ct. at 1949. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 555, 557).

"In sum, for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss, 572 F.3d at 969 (quoting Twombly, 550 U.S. at 557).

II. Background

A. J.H. Plaintiffs

Plaintiffs J.H. and L.H., and their parents, Plaintiffs J.A. and J.R.H (collectively referred to as the "J.H. Plaintiffs"), "moved from the Santa Cruz area to Modesto" in or about August of 2007. (FAC ¶

51.) Upon moving to Modesto, parent J.A. "was interested in obtaining an EIBT placement for J.H. and L.H." Id. J.H. and L.H. were placed on a waiting list for "services" in an educational program under the EIBT/PPG "based upon the date they moved to Modesto." Id. ¶ 103.

Parents J.A. and J.R.H. subsequently filed requests for an administrative due process hearing before the California Office of Administrative Hearings ("OAH") on March 18, 2008. Id. ¶ 68. The requests were filed against Defendant Modesto City Schools and alleged that the EIBT/PPG "denied them a [Free Appropriate Public Education ('FAPE')]." Id. ¶¶ 67, 68. In August of 2008, "the OAH issued decisions finding that [Modesto City Schools] had denied [J.H. and L.H.] a [FAPE]. Modesto City Schools did not appeal these decisions." Id. ¶ 68.

B. Z.F. Plaintiffs

Plaintiff Z.F. and his parents, Plaintiffs M.A.F. and J.F. (collectively referred to as the "Z.F. Plaintiffs"), reside in Ripon, California. Id. ¶ 20. On November 9, 2007, parents M.A.F. and J.F. filed a request for an administrative due process hearing before the OAH, against Defendant Ripon Unified School District ("RUSD"), Defendant San Joaquin County Office of Education ("SJCOE"), and San Joaquin Special Education Local Plan Area. Id. ¶¶ 49-50. The request alleged that the EIBT/PPG denied Z.F. a FAPE. Id. "On June 6, 2008, the parties entered into a settlement agreement that resolved all pending educational issues." Id. ¶ 50. The agreement states in part:

Student and his Parents are named plaintiffs in a pending class action in federal court and acknowledge that this settlement does not settle the claims asserted in the federal action, to the extent that the federal claims rely on a different cause of action and seek relief that is not available at OAH or under the [Individuals with Disabilities Education Act ('IDEA'), or is not compensable at OAH or under the IDEA.

Id.

C. A.N. Plaintiffs

Plaintiff A.N. and his parents, Plaintiffs M.R. and G.N. (collectively referred to as the "A.N. Plaintiffs"), reside in Ripon, California. Id. ¶ 23. On March 24, 2009, parents M.R. and G.N. filed a request for an administrative due process hearing before the OAH, against RUSD and SJCOE. The request alleged that A.N. was not provided "with an appropriate educational program" through implementation of the EIBT/PPG. Id. ¶¶ 72-74. On April 30, 2009, the parties entered into a ...


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