United States District Court, D. New Mexico
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
NEW MEXICO PUBLIC EDUCATION DEPARTMENT'S MOTION TO
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.
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.
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.
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. 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 12(b)(6) Standard
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).
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).
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
(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
(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
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,
Section 504 of the Rehabilitation Act
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”).
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.
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