Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brick v. Estancia Municipal School District

United States District Court, D. New Mexico

September 18, 2019

TISHA BRICK, and A.B., Plaintiffs,
v.
ESTANCIA MUNICIPAL SCHOOL DISTRICT; EVELYN HOWARD-HAND, Estancia Municipal School District Legal Counsel; LORIE GERKEY, Walsh Gallegos Trevino Russo & Kyle P.C.; STEPHANIE REYNOLDS, Chief, Estancia Police Department; MICO FERNANDEZ, Officer, Estancia Police Department; VANESSA GUTIERREZ, Triple A Participant Self Direction LLC.; STATE OF NEW MEXICO; NEW MEXICO PUBLIC EDUCATION DEPARTMENT; THE OFFICE OF CIVIL RIGHTS DENVER DIVISION; RAY SHARBATT, Deputy District Attorney; Defendants.

          MEMORANDUM OPINION AND ORDER

         THIS 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 12, 2019
(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 21, 2019
(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.

         Plaintiff Tisha Brick ("Plaintiff") is proceeding pro se on her own behalf and on behalf of her son, Plaintiff A.B.

         Background

         Plaintiff 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.

         Plaintiff 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.

         Defendants 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.

         Plaintiff subsequently filed a motion to amend her Complaint. See Doc. 43, filed June 21, 2019.

         Motions to Dismiss

         Defendants 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.

         Defendant 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.

         Both motions seek dismissal of the claims Plaintiff asserts on behalf of her son because Plaintiff is not an attorney.[1]

         Dismissal of Claims Asserted on Behalf of Plaintiff A.B.

         The 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. 2000).

         Section 504 of the Rehabilitation Act

         Section 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.