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Saenz v. Board of Education of Silver Consolidated Schools

United States District Court, D. New Mexico

April 24, 2019

JOE SAENZ, on behalf of V.S., Plaintiff,
v.
BOARD OF EDUCATION OF SILVER CONSOLIDATED SCHOOLS, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT NEW MEXICO PUBLIC EDUCATION DEPARTMENT'S MOTION TO DISMISS

          GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on Defendant New Mexico Public Education Department's (“NMPED”) Motion to Dismiss. Doc. 12. Having reviewed the motion and attendant briefing (docs. 18, 24), having considered oral argument on the matter (doc. 35), and being otherwise fully advised, the Court hereby GRANTS in part and DENIES in part NMPED's Motion to Dismiss for the reasons described below.

         I. Procedural Posture

         This case stems from allegations brought by Plaintiff regarding his son's education in the Silver Consolidated Schools (“SCS”) district in Silver City, New Mexico. Doc. 1. On April 19, 2018, Plaintiff filed a request for an Individuals with Disabilities Education Act (“IDEA”) due process hearing against SCS and NMPED, alleging denial of a free and appropriate public education (“FAPE”) to his son, V.S. Id. at 4. NMPED appointed a due process hearing officer (“DPHO”) and filed a motion contesting the jurisdiction of the DPHO to hear claims against NMPED. Id. at 5. Particularly, the motion sought dismissal on the basis that the local educational agency (“LEA”), SCS, was the sole entity responsible for the provision of a FAPE to V.S, and that NMPED, as the state educational agency (“SEA”), was not a proper party. Id. The DPHO granted NMPED's motion and dismissed NMPED on May 16, 2018. Thereafter, the DPHO conducted a four-day due process hearing in Silver City in August 2018. Id. On September 12, 2018, the DPHO issued a final written decision, holding that SCS had denied V.S. a FAPE for two school years and ordering remedy. Id.

         Plaintiff, on behalf of V.S., filed suit against the Board of Education of Silver Consolidated Schools and NMPED in this Court on October 12, 2018, bringing claims under the IDEA and Section 504 of the Rehabilitation Act (“Section 504”), and seeking attorney's fees and costs. Id. at 19-20.[1] On December 14, 2018, NMPED filed a Motion to Dismiss for failure to state a claim. Doc. 12. The Motion was fully briefed on January 10, 2019, doc. 24, and the Court heard oral argument on the Motion on January 31, 2019, doc. 34. The Motion is now before the Court.

         II. Legal Standards

         A. The 12(b)(6) Standard

         Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint for failure to state a claim upon which the court can grant relief. Fed.R.Civ.P. 12(b)(6). When ruling on a motion to dismiss, the court must accept as true all of Plaintiff's well- pleaded factual allegations and must view them in the light most favorable to the nonmoving party. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). To survive a motion to dismiss, the complaint must include “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). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).

         The court need only evaluate allegations “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.; see also Bixler v. Foster, 596 F.3d 751, 756 (10th Cir. 2010). Further, the court is not required to accept conclusions of law or the asserted application of law to the alleged facts. Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir. 1994). Following these principles, the Court considers whether the facts “plausibly give rise to an entitlement to relief.” Barrett v. Orman, 373 Fed.Appx. 823, 825 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at 679).

         B. The IDEA

         The IDEA seeks “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living.” 20 U.S.C. § 1400(d)(1)(A). Within New Mexico, although the SEA is responsible “for implementing the IDEA and policing IDEA compliance, ” the LEA is “given primary responsibility for overseeing the actual provision of special education services to disabled children.” Ellenberg v. New Mexico Military Institute, 478 F.3d 1262, 1269 (10th Cir. 2007) (internal citations and quotations omitted) (“Ellenberg I”). “Should an LEA … prove unable to establish and maintain programs of free appropriate public education in compliance with IDEA, the SEA must provide special education and related services directly to disabled children. Id. (internal citations and quotations omitted). To determine whether the SEA must directly provide a student a FAPE when an LEA is not providing one, the Tenth Circuit looks to 20 U.S.C § 1413(g). See Chavez ex rel. M.C. v. N.M. Pub. Educ. Dept., 621 F.3d 1275, 1284-85 (10th Cir. 2010). Section 1413(g) provides:

(1) In general
A State educational agency shall use the payments that would otherwise have been available to a local educational agency or to a State agency to provide special education and related services directly to children with disabilities residing in the area served by that local educational agency, or for whom that State agency is responsible, if the State educational agency determines that the local educational agency or State agency, as the case may be-
(A) has not provided the information needed to establish the eligibility of such local educational agency or State agency under this section;
(B) is unable to establish and maintain programs of free appropriate public education that meet the requirements of subsection (a);
(C) is unable or unwilling to be consolidated with 1 or more local educational agencies in order to establish and maintain such programs; or
(D) has 1 or more children with disabilities who can best be served by a regional or State program or service delivery system designed to meet the needs of such children.
(2) Manner and location of education and services
The State educational agency may provide special education and related services under paragraph (1) in such manner and at such locations (including regional or State centers) as the State educational agency considers appropriate. Such education and services shall be provided in accordance with this subchapter.

20 U.S.C. § 1413(g) (2016) (emphasis added). In Chavez, the court assumed without deciding that “determines” means “finds out.” Id. at 1285. Moreover, the Chavez court reminded the lower courts that, for IDEA “procedures to work, they must be given time: the IDEA does not provide ‘immediate relief[, ]” but cautioned, “[w]e do not, however, intend to signal state agencies that they may routinely rely on procedural requirements to insulate them from all liability[] where the statutory remedies have run off the rails.” Chavez, 621 F.3d at 1287, 1290.

         C. Section 504 of the Rehabilitation Act

         The Rehabilitation Act “requires schools to give all students with disabilities equal access to ensure those children receive a free and appropriate public education.” KG by and through Christine C. v. Santa Fe Pub. Sch. Dist., 2013 WL 12330111, at *3 (D.N.M. May 17, 2013) (slip copy) (internal quotations omitted). Section 504 states, in relevant part,

No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ...
For the purposes of this section, the term “program or activity” means all of the operations of- (2) (A) a college, university, or ... (B) a local educational agency...

29 U.S.C. §§ 794(a)-(b) (2016). “[W]hile Section 504 and the IDEA both provide certain forms of relief for individuals with disabilities, they have separate purposes. Section 504 provides relief from discrimination…but the IDEA provides relief from inappropriate educational placement decisions, regardless of discrimination.” Ellenberg v. N.M. Military Institute, 572 F.3d 815, 821-22 (10th Cir. 2009) (“Ellenberg II”).

         III. Fact Summary

         The Court finds the following facts relevant for the purposes of Defendant's Motion to Dismiss:

1. V.S. is a twelve-year-old nonspeaking student with autism living in Silver City, New Mexico. He is qualified to receive services under the IDEA through an Individualized Education Plan (“IEP”) at SCS. Doc. 1 at 6-8.
2. During the 2016-2017 school year, SCS placed V.S. on a shortened school day/week schedule and required Plaintiff to attend with him. Id. at 8, 17.
3. In December 2017, the LEA created an IEP for V.S. that provided solely homebound educational services, because SCS did not have a qualified special education teacher, Plaintiff could not attend school with V.S., and there was inadequate staff to accommodate V.S. Id. at 8.
4. In February 2018, SCS disenrolled V.S. from school. Id.
5. Plaintiff requested an IDEA administrative due process hearing on April 19, 2018, alleging that SCS and NMPED had denied V.S. a FAPE in ...

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