United States District Court, N.D. California
J.F., a minor, by her Guardian ad litem CHERISE ABEL-IRBY, Plaintiff,
NEW HAVEN UNIFIED SCHOOL DISTRICT, et al., Defendants
For J.F., by and through her Guardian Ad Litem Cherise Abel-Irby, Cherise Abel-Irby, Plaintiffs: Nicole D. Hodge, LEAD ATTORNEY, Law Offices of Nicole D. Hodge, Oakland, CA.
For New Haven Unified School District, Chris Perry, as an individual and in his Official capacity, Angela Higgerson, as an individual and in her Official capacity, Kenneth Pando, as an individual and in his Official, Defendants: Kimberly Anne Smith, LEAD ATTORNEY, Laurie Elizabeth Reynolds, Roy Albert Combs, Fagen Friedman & Fulfrost LLP, Oakland, CA; David Reis Mishook, Fagen Friedman and Fulfrost, Oakland, CA.
For Sarah Kappler, in her official capacity, Abhi Brar, as an individual and in his Official capacity, Defendants: Kimberly Anne Smith, LEAD ATTORNEY, Laurie Elizabeth Reynolds, Fagen Friedman & Fulfrost LLP, Oakland, CA; David Reis Mishook, Fagen Friedman and Fulfrost, Oakland, CA.
ORDER RE MOTION TO DISMISS COUNTS ONE AND TWO OF PLAINTIFF'S FIRST AMENDED COMPLAINT
SUSAN ILLSTON, United States District Judge.
Now before the Court is defendants' motion to dismiss Counts One and Two of plaintiff's first amended complaint (" FAC") for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). This matter is scheduled for hearing on November 21, 2014. Pursuant to Civil Local Rule 7-1(b), the Court determines that this motion is appropriate for resolution without oral argument and VACATES the hearing. For the reasons set forth below, the Court GRANTS defendants' motion to dismiss Counts One and Two of the FAC with leave to amend.
The following background facts are taken from the allegations in the FAC. This case arises from problems between plaintiff J.F., a minor student, and defendants, her school district and certain staff members of her former high school. Plaintiff appeals the administrative decision of the California State Office of Administrative Hearings (" OAH") pursuant to the Individuals with Disabilities Education Act (" IDEA"), 20 U.S.C. § 1400 et. seq .
I. Statutory Scheme
The IDEA provides that when a special education student is suspended for disciplinary reasons for more than ten days, the school district must conduct a manifestation determination to decide whether the conduct at issue was a manifestation of the student's disability. 20 U.S.C. § 1415(k)(1)(E); 34 C.F.R. § 300.536(a)(1). To make this determination, members of the student's individualized education plan (IEP) team meet to review the student's educational file. 20 U.S.C. § 1415(k)(1)(E)(i); 34 C.F.R. § 300.530(e)(1). If the review team determines that (1) the conduct in question was caused by, or had a direct and substantial relationship to, the student's disability; or (2) the conduct was the direct result of the district's failure to implement the student's IEP, then the student's conduct " shall be determined to be a manifestation of the child's disability." 20 U.S.C. § 1415(k)(1)(E)(ii); see 34 C.F.R. § 300.530(e)(2).
If the review team determines that the student's conduct was a manifestation of the student's disability, then the district is required to conduct a functional behavioral assessment, implement a new or review an existing behavioral intervention plan, and return the student to the placement from which the student was removed. 20 U.S.C. § 1415(k)(1)(F); 34 C.F.R. § 300.530(f). In contrast, if the review team determines that the student's conduct was not a manifestation of the student's disability, then the district may apply the same disciplinary procedures that apply to children without disabilities. 20 U.S.C. § 1415(k)(1)(C); 34 C.F.R § 300.530(c).
The IDEA further provides that the parent of a student with a disability may appeal the manifestation determination by requesting an administrative due process hearing. 20 U.S.C § 1415(k)(3)(A); 34 C.F.R. § 300.532(a), (c). The administrative law judge (" ALJ") hearing the dispute may order a change in placement of the student or return the student to the placement from which she was removed. 20 U.S.C. § 1415(k)(3)(B)(ii); 34 C.F.R. § 300.532(b)(2).
II. October 26, 2012 Incident
Plaintiff is a student qualified to receive special education services under an IEP. FAC ¶ ¶ 2, 4, 13. Plaintiff suffers from Attention Deficit and Hyperactivity Disorder (" ADHD"), for which she takes daily medication. Id. ¶ 3. Plaintiff attended James Logan High School in defendant New Haven Unified School District from the start of the 2012-2013 school year until her suspension on October 26, 2012. Id. ¶ ¶ 1, 13; Ex. A at 3.
On October 26, 2012, plaintiff was involved in a physical fight on school grounds with two other students. Id. ¶ ¶ 5, 24. Moments after the fight, one of the school principals, defendant Abhijit Brar, encountered plaintiff yelling and upset in the hallway. Id. Ex. A at 6. Plaintiff tried to evade defendant Brar several times, so defendant Brar approached plaintiff from behind and grabbed her arm. Id. ¶ ¶ 5, 28 Ex. A at 6. Plaintiff responded by kicking defendant Brar and striking him in the chest. Id. Defendant Brar then placed plaintiff in a " full body bear hold" to restrain her. Id. At this time, defendant Christopher Perry, a campus security technician, arrived and assisted defendant Brar. Id. ¶ 28 Ex. A at 6. After defendant Brar released plaintiff, plaintiff fell to the floor and vomited. Id. ¶ 29. As a result of this altercation, the district suspended plaintiff for multiple student code violations. Id. Ex. A at 8.
III. Procedural History
A. Manifestation Determination
Following plaintiff's suspension from school, the district held a manifestation determination hearing on October 30, 2012. Id. The review team examined plaintiff's conduct in the context of another disability from which she suffered, specific learning disability (" SLD"), and determined that plaintiff's conduct was not a manifestation of her SLD. Id. Ex. A at 2 n.5, 8. The district subsequently convened a second manifestation determination hearing on February 19, 2013 and determined that plaintiff's conduct was not a manifestation of her ADHD. Id. ¶ 7; Ex. A at 9. The district held this second hearing pursuant to a January 7, 2013 settlement agreement reached after plaintiff filed a due process complaint against the district in Fall 2012. Id. Ex. A at 9. As part of the settlement agreement, the district agreed to conduct a " full behavioral evaluation" once plaintiff was in a regular school placement. Dkt. No. 106-1, Declaration of David R. Mishook (" Mishook Decl.") ¶ 2.
On March 28, 2013, plaintiff requested a due process hearing before the OAH seeking review of the district's February 2013 manifestation determination. FAC Ex. A at 1. On May 20, 2013, the ALJ affirmed the district's determination that plaintiff's conduct was not a manifestation of her disability. Id. Ex. A. In her expedited decision, the ALJ noted that plaintiff had ...