United States District Court, N.D. California, San Jose Division
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
LUCY H. KOH, District Judge.
Plaintiff S.D. ("S.D."), by and through her guardian Cindy Brown, brings this action against Defendant Moreland School District ("MSD") alleging violations of the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. ; Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794; and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq. ("Compl.") ECF No. 1. MSD moves to dismiss S.D.'s second and third causes of actions for violations of Section 504 and the ADA. ("Mot.") ECF No. 11. S.D. opposes the Motion, ("Opp'n") ECF No. 19, and MSD replied, ("Reply") ECF No. 21. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution without oral argument and hereby VACATES the hearing scheduled for August 7, 2014, at 1:30 p.m. ECF No. 11. The Case Management Conference set for August 7, 2014, at 1:30 p.m. shall take place as scheduled. Having considered the submissions of the parties and the applicable law, the Court hereby DENIES MSD's motion to dismiss.
A. Factual Background
S.D., a minor, is diagnosed with autism and "requires intensive support and high quality interventions" for self-harming behaviors. Compl. ¶ 8. Starting at a young age, S.D. began banging her head and "mouthing, chewing and swallowing inedible objects." Id. Before S.D. transitioned to Moreland School District, she attended a public school in a different district. Id. ¶ 10. S.D. alleges that her previous school included "appropriate supports and services" for autistic children and that her self-harming behaviors there were mild. Id. ¶¶ 10-11. S.D. alleges that although she had "behavioral spikes" at her previous school, her head banging disappeared and her risk of injury was minimal to near zero. Id. ¶ 11.
In August 2012, S.D. transitioned to Easterbrook Discovery School, located in Moreland School District. Id. ¶ 12. Here, S.D. alleges that her behavior "regressed" in a variety of ways. Id. Most significantly, S.D. alleges that she began repeatedly banging her head to the point of injury. Id. On or about September 18, 2012, S.D. "banged her head on the glass covering the fire extinguisher and broke the glass against her head." Id. MSD hired an independent observer around November 2012 to document S.D.'s behavior. Id. ¶ 16. The observer noted that S.D.'s "self-injurious behaviors, mostly consisting of banging her head on hard surfaces, " occurred "2-23x per day, lasting from 5 seconds to 5 minutes per incident." Id. S.D. claims that she left a mark on her head 83% of the time she banged it, and that the lumps that resulted from S.D.'s head-banging "would stay with her all day." Id. ¶ 26. In addition, S.D.'s attention span decreased while attending the new school, and she started to "develop adverse reactions even being near the Easterbrook School." Id. ¶ 15. Finally, S.D. reports other regressive behavior during this time, including refusing to follow instructions, chewing fingernails, chewing off clothing accessories, and hitting her head onto others. Id. ¶ 17.
S.D. believes that the school was unable to properly care for her. S.D.'s teacher stated that he did not believe "that S.D. was capable of attending school without harming herself." Id. ¶ 34. S.D. alleges that MSD had no individualized intervention plan for S.D.'s behavior when she started school. Id. ¶ 37. S.D. also alleges that the staff "went unsupervised for months by anyone with appropriate training in restraining children with severe head banging behaviors." Id. The aide assigned to work with S.D. was not trained to work with children with autism and children with head-banging behaviors. Id. ¶ 45. After S.D. put her head through the fire extinguisher glass, the aide believed that S.D. did not require medical examination. Id. S.D. alleges that the staff used inappropriate and unauthorized physical restrains that were "seriously traumatizing to S.D." Id. ¶ 39.
S.D. alleges that her behavior at her new elementary school was evidence of regression. Although S.D. engaged in some head-banging at her previous school, S.D.'s previous teacher stated that her previous head-banging was "intermittent" and that "weeks went by without any behaviors" Id. ¶ 30. S.D. was previously able to attend school without being placed at risk of injury. Id. Additionally, S.D. alleges that she was able to participate in her classroom independently at her previous school, whereas at Easterbrook S.D. became highly dependent on her aide for things she could previously do on her own. Id. ¶ 45.
In January 2013, S.D.'s family asked MSD if S.D. could move to a different classroom. Id ¶¶ 18-19. In a meeting held on April 3, 2013, S.D.'s parent expressed serious concern about the change in S.D.'s behavior, including S.D.'s self-injurious behavior, and requested a new placement for the S.D. Id. MSD denied S.D.'s request for a change of placement. Id. ¶ 20.
S.D. subsequently filed for an Administrative Due Process hearing under Section 1415 of the IDEA. Id. S.D. argued that the District had denied her a "free appropriate public education" ("FAPE") for the 2012-13 and 2013-14 school years by "failing to offer appropriate placement and support services." Id. ¶ 22. On January 3, 2014, an Administrative Law Judge ("ALJ") found against S.D. on all issues. Id. ¶¶ 46, 48-49.
B. Procedural History
S.D. filed her Complaint on February 21, 2014. ECF No. 1. MSD filed its Motion to Dismiss on March 20, 2014. ECF No. 11. S.D. opposed the Motion on May 20, 2014, ECF No. 19, and MSDs replied on May 30, 2014, ECF No. 21.
II. LEGAL ...