United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on:
(i) Defendants Evelyn Howard-Hand and Lorie Gerkey's
Motion to Dismiss for Failure to State a Claim, Doc. 15,
filed December 28, 2018
(ii) Estancia Municipal School District's Motion to File
the Due Process Hearing Administrative Record Under Seal,
Doc. 24, filed January 30, 2019
(iii) Estancia Municipal School District's Motion to
Dismiss Plaintiff's Complaint, Doc. 26, filed February
(iv) Plaintiff's Emergency Motion to Request Status
Conference, Doc. 41, filed June 21, 2019
(v) Plaintiff's Motion to Withdraw, Doc. 42, filed June
(vi) Plaintiff's First Motion to Amend/Correct Original
Complaint, Doc. 43, filed June 21, 2019
(vii) Defendant Estancia Municipal School District's
Motion to Strike Plaintiff's Notice of Completion of
Briefing (Amended), Doc. 45, filed June 27, 2019
(viii) Plaintiff's Second Emergency Motion to Request
Status Conference, Doc. 50, filed August 26, 2019.
Tisha Brick ("Plaintiff") is proceeding pro se on
her own behalf and on behalf of her son, Plaintiff A.B.
A.B., a former student of Estancia Municipal School District
("EMSD"), "has a legal Doctor's
recommendation to be given Medical Cannabis daily as a
necessary routine medication for mental health
management." Complaint ¶¶ 4, 6 at 3. Plaintiff
Tisha Brick "has been and currently is the legal
caregiver under the Medical Cannabis Program" and
"is the primary responsible person for managing and
administering the medication for minor [A.B.] including when
he needed PRN administered at school." Complaint ¶
7 at 3. A.B. "was involuntarily withdrawn from EMSD by
EMSD . . . on February 6, 2018 after months of an unresolved
educational dispute between [Plaintiff] and EMSD."
Complaint ¶ 8 at 3. Plaintiff participated in a Due
Process Hearing "against EMSD" in August 2018.
Complaint ¶¶ 9 at 3.
alleges that Defendants "violat[ed] multiple Federal
laws toward both the student [A.B.] and the Parent Tisha
Brick. The laws violated appear to fall primarily under
Section 504 [of the Rehabilitation Act], ADA [Americans with
Disabilities Act], and IDEA [Individuals with Disabilities in
Education Act]." Complaint at 2.
Howard-Hand and Gerkey, and Defendant EMSD filed motions to
dismiss the Complaint for failure to state a claim. See Doc.
15, filed December 28, 2018; Doc. 26, filed February 12,
2019. The motions to dismiss argue that Plaintiff fails to
state claims under Section 504 of the Rehabilitation Act, the
ADA, and the IDEA, and that Plaintiff cannot assert claims on
behalf of her son.
subsequently filed a motion to amend her Complaint. See Doc.
43, filed June 21, 2019.
Howard-Hand and Gerkey, of Walsh Gallegos Treviño
Russo & Kyle P.C., are "EMSD Legal Counsel."
Complaint at 1. Their motion to dismiss asserts that
Plaintiff fails to state a claim under: (i) Section 504,
because Howard-Hand and Gerkey are not recipients of public
funding; (ii) the ADA, because Howard-Hand and Gerkey are not
public entities; and (iii) the IDEA, because Howard-Hand and
Gerkey are private entities. Doc. 15 at 3-5.
EMSD's motion to dismiss asserts that Plaintiff fails to
state a claim under: (i) the IDEA, because Plaintiff
"fail[ed] to identify the issues or state how and why
she is aggrieved by the [Due Process Hearing Officer]'s
findings and decision;" and (ii) Section 504 and the
ADA, because Plaintiff does not allege that she is a
qualified individual with a disability. Doc. 26 at 8-15.
motions seek dismissal of the claims Plaintiff asserts on
behalf of her son because Plaintiff is not an
of Claims Asserted on Behalf of Plaintiff A.B.
Court dismisses all the claims Plaintiff asserts on behalf of
her son, A.B., without prejudice because "[a] litigant
may bring his own claims to federal court without counsel,
but not the claims of others." Fymbo v. State Farm
Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir.
504 of the Rehabilitation Act
504 of the Rehabilitation Act ("Section 504")
provides: "No otherwise qualified individual with a
disability in the United States, as defined in section
705(20) of this title, 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" 29 U.S.C. § 794(a). "A prima facie
case under § 504 consists of proof that (1) plaintiff is
handicapped under the Act; (2) he is 'otherwise
qualified' to participate in the program; (3) the program
receives federal ...