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R.G. On Behalf of M.G v. Clovis Unified School District and Mary Bass

March 22, 2011



Doc. # 14

This is an action for declaratory and injunctive relief and compensatory education and tuition reimbursement expenses by plaintiff R.G. on behalf of M.G. (collectively, Plaintiffs) against defendants Clovis Unified School District ("Clovis" or "District") and Mary Bass in her official capacity as Direction of Special Education Local Plan Area ("SELPA") (collectively, "Defendants"). The complaint in this action was filed on October 20, 2010. The currently-operative First Amended Complaint ("FAC") was filed on January 18, 2011. All claims alleged in the FAC are pursuant to the Individuals With Disabilities Education Act ("IDEA") 20 U.S.C. §§ 1400 et seq. In the instant motion, Defendants move to dismiss or strike portions of the FAC or, in the alternative, for a more definite statement. Defendants' motion to dismiss challenges the existence of federal question jurisdiction pursuant to 28 U.S.C. § 1331. Venue is proper in this court.


The following are facts alleged in the FAC. These facts are presumed true for purposes of Defendants' motion to dismiss.

At the time of the filing of the FAC, M.G. was a 19-year old eligible student with a disability within the meaning of the IDEA. M.G. has been classified as having mild to moderate mental retardation, cerebral palsy, a history of seizures and severe visual impairment due to ocular motor functioning. Students with disabilities under the IDEA receive triennial assessments, the purpose of which is to determine an Individual Education Plan ("IEP"). The IEP is formulated by a team of educators (the "IEP Team") and includes the input and participation of the student and the student's parent(s)/guardian. Input into the IEP process includes evaluations of the student's disabilities, progress in skills acquisition, responses to different educational approaches, and similar inputs. The IEP, when carried out, is to provide the student with a Free Appropriate Education ("FAPE") in the Least Restrictive Environment ("LRE").

Plaintiffs allege the IEP for the 2010-2011 school year proposed placement of M.G. in the LINKS Program; a segregated secondary education program serving exclusively students with disabilities similar to M.G.'s. Plaintiffs contend that the placement was proposed without adequate consideration of the ability of the LINKS program to provide appropriate education for M.G., without consideration of M.G. particular disabilities, and without consideration of any alternative, less restrictive (meaning less segregated) alternative. Plaintiffs allege a number of concerns regarding the ability of the LINKS program to teach important life skills including the amount of time allocated to substantive learning, the amount of time spent in social activities, the amount of time and opportunities for work experience and the amount of opportunity for educational experience within populations of students without disabilities.

The FAC alleges that R.G., having concluded that the IEP offered was deficient with regard to providing an appropriate reading program, paid for private reading tutoring to augment M.G.'s reading program. Also, having concluded that the IEP did not offer a FAPE in the least restrictvie environment, R.G. enrolled M.G. in a program at Fresno City College and transported M.G. to and from the college for classes. On behalf of M.G., R.G. refused to sign the proposed November 2009 IEP for the 2010-2011 school year. Because M.G. refused to sign the IEP, Clovis filed a Request for Due Process Hearing (Administrative Due Process Complaint) on January 19, 2010. Clovis asserted three claims for determination. First, Clovis claimed that the IEP proposed for the 2010-2011 Extended School Year ("ESY") and for the 2010-2011 school year would provide M.G. with a FAPE in the LRE. On February 11, 2010, Clovis added a claim asserting that its evaluation of M.G.'s Speech and Language Skills ("S/L") of November 9, 2009, was appropriate and that M.G. was not entitled to an Independent Education Evaluation ("IEE") in this area; and a claim that its evaluation of M.G.'s reading skills of the same date was appropriate and that M.G. was not entitled to an IEE in this area either.

The Administrative Law Judge ("ALJ") sitting for the Office of Administrative Hearings ("OAH") issued his opinion and order on July 22, 2010 (hereinafter the "Decision"). Plaintiffs' FAC purports to be an appeal of the ALJ's Decision. As will be discussed infra, the parties dispute the precise scope of the issues that were adjudicated in the ALJ's Decision and therefore administratively exhausted for purposes of this court's subject matter jurisdiction. Plaintiffs contend that the ALJ's Decision finding that M.G.'s S/L evaluation was appropriate and that the IEP would provide a FAPE in the LRE were erroneous as a matter of law because certain legal tests were not applied and/or certain alternatives or assessments were not incorporated into the Decision. Defendants contend that Plaintiffs are raising claims in this appeal that were not raised before the ALJ and are therefore not exhausted. Defendants also contend that Plaintiffs have failed to state claims for which relief can be granted.

Defendants filed the instant motion to dismiss on January 31, 2011. Plaintiffs' opposition was filed on February 16, 2011, and the Defendants' reply was filed on February 28, 2011. Hearing on Defendants' motion to dismiss was vacated and the matter was taken under submission as of March 7, 2011.


Defendants assert a number of grounds for dismissal of Plaintiffs' claims. Principally, Defendants move to dismiss on the ground the court lacks subject matter jurisdiction over Plaintiffs' allegedly non-exhausted claims pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and that Plaintiffs claims fail to state claims for which relief can be granted pursuant to Rule 12(b)(6). Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a motion to dismiss for lack of subject matter jurisdiction. It is a fundamental precept that federal courts are courts of limited jurisdiction. Limits upon federal jurisdiction must not be disregarded or evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). The plaintiff has the burden to establish that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). This burden, at the pleading stage, must be met by pleading sufficient allegations to show a proper basis for the court to assert subject matter jurisdiction over the action. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Fed. R. Civ. P. 8(a)(1). When a defendant challenges jurisdiction "facially," all material allegations in the complaint are assumed true, and the question for the court is whether the lack of federal jurisdiction appears from the face of the pleading itself. Thornhill Publishing Co. v. General Telephone Electronics, 594 F.2d 730, 733 (9th Cir. 1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F. 2d 884, 891 (3d Cir.1977); Cervantez v. Sullivan, 719 F. Supp. 899, 903 (E.D. Cal.1989), rev'd on other grounds, 963 F. 2d 229 (9th Cir.1992).

A defendant may also attack the existence of subject matter jurisdiction apart from the pleadings. Mortensen, 549 F. 2d at 891. In such a case, the court may rely on evidence extrinsic to the pleadings and resolve factual disputes relating to jurisdiction. St. Clair v. City of Chico, 880 F. 2d 199, 201 (9th Cir.1989); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983). "No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill Publishing, 594 F.2d at 733 (quoting Mortensen, 549 F.2d at 891).

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set forth factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Twombly"). While a court considering a motion to dismiss must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and must construe the pleading in the light most favorable to the party opposing the motion, and resolve factual disputes in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969), the allegations must be factual in nature. See Twombly, 550 U.S. at 555 ("a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do"). The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("Iqbal").

The Ninth Circuit follows the methodological approach set forth in Iqbal for the assessment of a plaintiff's complaint:

"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."

Moss v. U.S. Secret Service, 572 F.3d 962, 970 (9th Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1950).


Defendants assert a total of ten grounds for dismissal of various portions of the FAC and/or to strike specified claims or, in the alternative, to require a more definite statement. The court will consider each ground in order.

I. Subject Matter Jurisdiction Over "Potential Claims"

Defendants first contend that the court lacks subject matter jurisdiction over what they term several "Potential Claims" that are suggested, if not directly stated, in the FAC. The crux of Defendants' argument with regard to the court's subject matter jurisdiction is that the FAC contains several allegations that are freestanding claims under the IDEA and that were not within the scope of the ALJ's decision and therefore remain unexhausted. Plaintiffs do not dispute that any claim pursuant to the IDEA must be administratively exhausted before it can be heard in federal court. Plaintiffs' basic contention is that what Defendants term unexhausted freestanding claims are, in fact, issues that were necessarily decided by the ALJ in the process of making administrative findings on the issues presented by Defendants in their administrative appeal.

Defendants recognize that Plaintiffs' FAC "seeks reversal of the OAH Decision as to Plaintiff[s'] right to an S/L at District Expense as well as the determination that the IEP provided [M.G.] with a FAPE in the LRE." Doc. # 14 at 26-28. Defendants contend that the FAC also contains additional "Potential Claims" that are alleged in both the "Facts" section in the FAC and in the "Claims" section. Defendants contend the "Facts" portion of the FAC contains the first of the "Potential Claims" which they construe to allege that the "'district refused to incorporate any of the recommendations of Parent's [privately obtained speech and language evaluation] into Student's educational program for the proposed 2010-2011 school year.'" Doc. #14 at 11:9-12. As Defendants point out, the FAC contains a single substantive claim for relief which is titled "Violations of the IDEA." Within that single claim for relief, Defendants contend Plaintiffs have placed a "composite" of claims among which they identify three as being "Potential Claims" for purposes of their argument. The first of these is construed by Defendants to allege that "Defendants 'failed to provide M.G. the full continuum of alternative placements,' (FAC Page 15, ¶ 68); that Defendants 'failed to provide M.G. with an education in the LRE,' (FAC Page 15, ¶ 70); and that the 'recommendations of the independent [speech and language ] evaluation [obtained privately by R.G.] were not incorporated into the IEP' (FAC Page 16, ¶ 78)*fn1 ." Doc. # 14 at 11:18-22.

The court finds Defendants' arguments regarding non-exhaustion of Plaintiffs' "Potential Claims" unpersuasive. Basically, Defendants' argument expresses a blurring of the distinctions between a claim, an issue within a claim, and a fact in support of or in opposition to a given issue or claim. The requirement of exhaustion applies "[w]hen a plaintiff has alleged injuries that could be redressed to any degree by IDEA's administrative procedures and remedies." Robb v. Bethel Sch. Dist. No. 403, 308 F.3d 1074, 1048 (9th Cir. 2002). Thus, for purposes of this court's analysis a claim subject to the exhaustion rule under the IDEA is an issue upon which the plaintiff specifically seeks relief in the federal court. Pursuant to Robb, each "claim" in the FAC subject to the exhaustion requirement must have a corresponding prayer for relief that could have been, but was not, provided by IDEA's administrative procedures. The court can therefore determine what "claims" are asserted by Plaintiffs by examining the prayers for relief and can determine if those "claims" have been exhausted by determining if they were raised in and denied by the OAH Decision.

Not counting attorney's fees and "[a]ny additional relief that the court may award," the FAC requests six prayers for relief. Plaintiffs' second, third and sixth prayers for relief request (2) "[t]uition reimbursement for any and all monies that R.G. paid to provide M.G. an appropriate education in the least restrictive environment for the 2010-2011 school year, (3) "[c]ompensatory education to compensate M.G. for the denial of an appropriate education in the least restrictive environment for the 2010-2011 school year," and (6) "[a]n academic program for M.G. that ensures that the program will provide here with meaningful benefit." Each of these three prayers for relief arises from and seeks to redress Plaintiff's acknowledged claims that the IEP provided for the 2010-2011 school year failed to provide M.G. with a FAPE in the LRE and directly challenges the OAC Decision's contrary finding that the "2009 IEP provided [M.G.] with a FAPE in the LRE . . . ." Exh. "A" to Doc. # 14 at 36.

In a similar vein, Plaintiffs' fourth and fifth prayers for relief request "[s]ervices to compensate M.G. for direct speech and language services she has missed due to the District's failure to offer appropriate S/L services in its offered IEP," and reimbursement for the cost of the IEE M.R. obtained for M.G. at her own expense, respectively. Doc. # 12-1 at 17, ¶¶ 4 and 5. Plaintiffs' first prayer for relief requests that the court declare that M.G. "is entitled to an IEE at public expense pursuant to the IDEA when she disagrees with the conclusions, recommendations, or proposed goals in the District's evaluation where District has relied on those conclusions, recommendations or proposed goals in the formulation of its proposed IEP." These requests for relief arise out of and seek remedy for Plaintiffs' acknowledged claim for relief alleging M.G. is entitled to an IEE in speech and language at public expense and directly challenges the ALJ's ruling to the contrary.

There are no other prayers for relief set forth in the FAC. The court therefore concludes there are no other "claims" in the FAC that might require exhaustion. The court specifically finds that the first and third "Potential Claims" listed above -- that Defendants 'failed to provide the full continuum of alternative placements, and that the recommendations of the privately obtained independent S/L evaluation were not incorporated into the IEP' -- are not "claims" within the meaning of IDEA's exhaustion requirement. Plaintiffs do not request in the FAP that M.G. be provided with the full continuum of alternative placements, nor do they request that the private S/L evaluation be incorporated into the IEP. The court therefore finds that the first and third of the alleged "Potential Claims" are not claims at all, but are arguments in support of Plaintiffs' acknowledged underlying claims.

The second of the examples of "Potential Claims" cited by Defendants -- that Defendants 'failed to provide M.G. with an education in the LRE -- is not a potential claim, it is an actual claim. The allegation that the IEP failed to provide an education in the least restrictive environment is contained within the more generalized allegation that the IEP failed to provide an FAPE in the LRE, a claim that was admittedly explicitly raised in the FAC and that directly challenges the ALJ's determination to the contrary. The court concludes Plaintiffs' claim for failure to provide an ...

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