RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0267p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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COURTLAND BISHOP, Individually and on
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behalf of a minor, and MICHELLE BISHOP,
Individually and on behalf of a minor, -
Plaintiffs-Appellants, -
No. 09-3383
,
>
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v.
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THE CHILDREN’S CENTER FOR
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DEVELOPMENTAL ENRICHMENT, dba The
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Ohio State University Children’s Center for
Therapies, dba Oakstone Academy; REBECCA -
Developmental Enrichment, dba CCDE
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MORRISON, Individually and as agent and -
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Chief Executive Officer of The Children’s
Defendants-Appellees. -
Center for Developmental Enrichment,
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N
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 08-00766—Gregory L. Frost, District Judge.
Argued: June 16, 2010
Decided and Filed: August 25, 2010
Before: SILER and GIBBONS, Circuit Judges; REEVES, District Judge.*
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COUNSEL
ARGUED: Kathi J. Machle, R. J. DONOVAN CO., LPA, Columbus, Ohio, for
Appellants. S. Adele Shank, LAW OFFICE OF S. ADELE SHANK, Columbus, Ohio,
for Appellees. ON BRIEF: Kathi J. Machle, Richard J. Donovan, R. J. DONOVAN
CO., LPA, Columbus, Ohio, for Appellants. S. Adele Shank, LAW OFFICE OF S.
ADELE SHANK, Columbus, Ohio, Robert H. Willard, HARRIS & MAZZA, Columbus,
Ohio, for Appellees.
*
The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
1
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OPINION
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SILER, Circuit Judge. Courtland and Michelle Bishop and their minor disabled
son CB1 brought suit against the private school to which CB had been assigned just less
than three years after the school expelled CB. Ohio’s statute of limitations, which is
applied to their federal constitutional claims, bars suit after two years. They argued their
claims were statutorily tolled under Ohio’s minority tolling statute. The district court
did not address this argument but instead dismissed the claims as time-barred, because
it concluded that equitable tolling was not appropriate. We REVERSE and REMAND
the decision of the district court.
FACTUAL AND PROCEDURAL BACKGROUND
The Bishops reside with their minor son CB in the Worthington, Ohio School
District. Because of a disability, CB was placed at Oakstone Academy (“Oakstone”).
The Oakstone school is a portion of the Children’s Center for Developmental
Enrichment’s (“CCDE”) non-profit business. Oakstone provided educational services
to CB pursuant to his Individualized Education Plan (“IEP”) beginning in 2002.
Worthington School District contracted with Oakstone to provide these services.
In 2005, CB was slated for placement in a transition pre-K classroom for the
following year. On August 16, 2005, however, the Bishops learned that CB had actually
been retained in the previous level preschool classroom, rather than progressing to the
pre-K classroom as envisioned by the IEP. They allege that their attempts to discuss this
issue with school personnel were ignored, and the Bishops claim that they were ordered
on the first day of school to take CB home until Rebecca Morrison, the director of
1
Throughout this opinion “the Bishops” will refer to Courtland and Michelle Bishop, “CB” will
refer to their minor son, and “Plaintiffs” will refer to the Bishops and CB collectively.
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Oakstone, could talk to them. On August 31, 2005, Morrison decided that CB no longer
had a place at Oakstone.
Plaintiffs filed a complaint notice and request for due process hearing with the
Ohio Department of Education on October 25, 2005, but withdrew the complaint and
hearing request before the hearing.
On May 20, 2006, the Bishops, on behalf of themselves and CB, filed suit in U.S.
District Court, alleging that they were damaged as a result of CB’s expulsion. They
sought relief under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794
(“Rehabilitation Act”), the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12131, et seq., the Individuals with Disabilities Education Improvement Act
(“IDEIA”), 20 U.S.C. § 1400, and 42 U.S.C. § 1983. On March 5, 2007, the district
court dismissed for failure to exhaust administrative remedies under the IDEIA. In
doing so it reasoned that Plaintiffs could not circumvent the exhaustion requirements of
the IDEIA by also bringing claims under the Rehabilitation Act, the ADA, or § 1983.
On August 14, 2007, Plaintiffs filed an administrative due process complaint
against Worthington Schools, the Ohio Department of Education, and CCDE. On
October 16, 2007, the District Level Hearing Officer concluded that the complaint failed
to state a claim against CCDE on which relief could be granted. Plaintiffs then requested
State Level Review, which was denied. The decision was made final in a second
decision on March 17, 2008. Plaintiffs’ claims against Worthington Schools proceeded
through the administrative process, and a final decision was issued on June 12, 2008.
On August 8, 2008, the Bishops again filed suit in federal court, individually and
on behalf of CB. They alleged causes of action under the Rehabilitation Act, § 1983,
and Ohio law against CCDE, Worthington Schools, and Morrison as defendants. The
district court found that the suit was time-barred and granted summary judgment for the
Defendants. It reasoned that the claims accrued at the time of the injury, not after
administrative exhaustion, as Plaintiffs argued. Consequently, it found that equitable
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tolling was inapplicable, but did not address the minority2 statutory tolling argument
raised by Plaintiffs.
STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo, viewing the
facts and inferences drawn from those facts in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005).
DISCUSSION
I. Accrual of Plaintiffs’ Claims and the Statute of Limitations
Since neither the Rehabilitation Act, nor § 1983 contains a limitations period, see
James v. Upper Arlington City Sch. Dist., 228 F.3d 764, 769 (6th Cir. 2000) (citing
Southerland v. Hardaway Mgmt. Inc., 41 F.3d 250, 254 (6th Cir. 1994) (Rehabilitation
Act), and Wilson v. Garcia, 471 U.S. 261, 266-67 (1985) (§1983)), the most appropriate
or analogous Ohio limitations period applies to Plaintiffs’ claims under these statutes.
See Wilson, 471 U.S. at 266-67. The nearest analogous statute for both claims is Ohio
Revised Code § 2305.10, which provides a two-year statute of limitations period. See
LRL Props. v. Portage Metro Housing Auth., 55 F.3d 1097, 1105 (6th Cir. 1995)
(§1983); Lewis v. LaFayette County Detention Ctr., No. 99-5538, 2000 WL 556132, at
*2 (6th Cir. April 28, 2000) (Rehabilitation Act). Consequently, Plaintiffs had two years
from the time their claims accrued in which to file.
Although the statutes of limitations for both the Rehabilitation Act and § 1983
are borrowed from state law, the actions accrue and the statutory period begins to run
according to federal law. See Wallace v. Kato, 549 U.S. 384, 388 (2007); Southerland,
41 F.3d at 254. The general federal rule is that “the statute of limitations begins to run
when the reasonable person knows, or in the exercise of due diligence should have
2
Plaintiffs do not raise the question of disability tolling, and we are not deciding the applicability
of that rule. See Ohio Rev. Code. § 2305.16.
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known, both his injury and the cause of that injury.” Campbell v. Grand Trunk W. R.R.
Co., 238 F.3d 772, 775 (6th Cir. 2001).
Consequently, Plaintiffs’ claims accrued on August 31, 2005, when they knew
that CB had been expelled from Oakstone because of the Bishops’ inquiries into his class
assignment. It is irrelevant that Plaintiffs also had an administrative remedy available
to them at that point, or that they were required to exhaust that remedy before bringing
suit; redress was available at the time of the injury. Cf James, 228 F.3d at 769.
Plaintiffs had until August 31, 2007, to file their claims under the Rehabilitation Act or
§1983, and the district court correctly concluded that the claim accrued and the statutory
period began running on August 31, 2005.
II. Statutory Tolling for Minority under Ohio Law
When the statute of limitations is borrowed from state law, so too are the state’s
tolling provisions, except when they are “inconsistent with the federal policy underlying
the cause of action under consideration.” Bd. of Regents v. Tomanio, 446 U.S. 478, 485
(1980). In Ohio, unless otherwise provided, if a person was within the age of minority
at the time his claim accrued, he may bring the claim within the statutory period after the
disability was removed. See Ohio Rev. Code. § 2305.16. If the minor plaintiff’s claims
are joint and inseparable with the claims of other parties, they too can benefit from his
disability and bring their claims within the statutory period after his disability ends. Id.
CB was a minor when his claim accrued, meaning that Ohio’s minority tolling
provision applies to his case unless it would be “inconsistent with the federal policy
underlying [his] cause of action” under §1983 or the Rehabilitation Act. See Bd. of
Regents, 449 U.S. at 485. The Supreme Court’s language focuses our inquiry on “the
federal statute at issue,” Hardin v. Straub, 490 U.S. 536, 539 (1989), in other words, “the
cause of action under consideration.” Bd. of Regents, 446 U.S. at 485. The federal
statutes at issue are § 1983 and the Rehabilitation Act, and we have not previously
decided whether Ohio’s minority tolling statute is inconsistent with either of these
statutes.
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The chief goals of § 1983 are compensation and deterrence, and its subsidiary
goals are uniformity and federalism. Hardin, 490 U.S. at 539. Applying Ohio’s
minority tolling statute does not undermine either of these goals. As the Supreme Court
explained in Hardin:
A State’s decision to toll the statute of limitations during the [plaintiff’s]
disability does not frustrate § 1983’s compensation goal. Rather, it
enhances the [plaintiff]’s ability to bring suit and recover damages for
injuries. Nor does the State’s decision to toll its statute of limitations
hinder § 1983’s deterrence interest. In the event an official’s misconduct
is ongoing, the plaintiff will have an interest in enjoining it; thus, the
time during which the official will unknowingly violate the Constitution
may well be short. The State also may have decided that if the official
knows an act is unconstitutional, the risk that he or she might be haled
into court indefinitely is more likely to check misbehavior than the
knowledge that he or she might escape a challenge to that conduct within
a brief period of time.
490 U.S. at 543. Thus, “[t]olling is neither inconsistent with nor required by § 1983’s
goal of compensating persons whose constitutional rights have been violated.” Id. at
542. Furthermore, while we have not dealt specifically with Ohio’s minority tolling
statute in the § 1983 context, we held, in an unpublished decision, that Michigan’s
minority tolling statute could apply in a §1983 case to allow an otherwise time-barred
claim to proceed. See Hawkins v. Czarnecki, No. 96-2437, 1998 U.S. App. Lexis 1690,
at *9-10 (6th Cir. Feb. 2, 1998); cf. Austin v. Brammer, 555 F.2d 142, 143-44 (6th Cir.
1977) (recognizing the applicability of Ohio’s statute, which allows tolling for
imprisonment, in the §1983 context).
We have not previously examined the compatibility of Ohio’s tolling statute with
the Rehabilitation Act, but we have recognized that it is “is a ‘civil rights statute . . .
closely analogous to section 1983.’” Hall v. Knott County Bd. of Educ., 941 F.2d 402,
408 (6th Cir. 1991) (quoting Alexopulos v. San Francisco Unified Sch. Dist., 817 F.2d
551, 554 (9th Cir. 1987)). Consistent with that recognition, we have applied the same
state-law limitations period to Rehabilitation Act claims as to § 1983 claims.
Southerland, 41 F.3d at 254. Thus, Ohio’s tolling provisions apply to CB’s claims
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because the minority tolling statute is not inconsistent with § 1983, and the
Rehabilitation Act’s goal of protecting individuals with handicaps from discrimination,
see Baker v. Bd. of Regents, 991 F.2d 628, 631-32 (10th Cir. 1993), is not undermined
by allowing minority tolling. See Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 983-
84 (5th Cir. 1992) (reversing and remanding a district court’s decision that a plaintiff’s
claims were time-barred under the Rehabilitation Act because the court had failed to
consider whether Texas’s minority tolling statute was applicable).
The Bishops’ claims are also tolled by virtue of CB’s minority. According to
Ohio’s tolling provisions, a third-party’s claims are tolled based on the disability of one
party when the third-party’s claims are “joint and inseparable” from the disabled party’s
claims. See Ohio Rev. Code. § 2305.16. Under Ohio law, claims can be “joint and
inseparable” even though they are “separate and distinct.” Fehrenback v. O’Malley, 841
N.E.2d 350, 366 (Ohio Ct. App. 2005). The Bishops seek monetary losses and loss of
consortium, and these claims are derivative of CB’s constitutional claims because they
arose from his expulsion from Oakstone. See id. (reasoning that parents’ claims for loss
of consortium and medical expenses were derivative of the minor child’s malpractice
claim because all three claims “arose out of the same allegedly tortious act,” even though
the parents’ injuries were separate and distinct and the single alleged wrong gave rise
to two separate and distinct claims: one on behalf the child for personal injury and one
on behalf of the parents for loss of consortium and medical expenses); see also Loudin
v. Mills, No. C-990569, 2000 Ohio App. Lexis 2006, at *12-13 (Ohio Ct. App. May 12,
2000) (recognizing parents’ claims for loss of consortium and reimbursement for
incurred losses as derivative claims of their son’s claims of sexual assault, which were
thereby subject to the same statute of limitations and minority tolling as their son’s
claim, and characterizing their claims for negligent and intentional infliction of
emotional distress as separate claims that were nevertheless tolled during the minority
of their son). Since we conclude that both CB’s and the Bishops’ federal law claims
were subject to minority tolling and therefore not barred by the statute of limitations, we
reverse and remand the district court’s decision as to these claims.
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III. State Law Claims
When all the federal claims in a case have been dismissed, there is a strong
presumption in favor of dismissing any remaining state law claims unless the plaintiff
can establish an alternate basis for federal jurisdiction. See 28 U.S.C § 1367; United
Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). Consequently, the district court did
not err in dismissing Plaintiffs’ state law claims upon its dismissal of the federal claims
in this case. Nevertheless, because we reverse the district court’s decision on Plaintiffs’
federal claims, we also reverse the district court’s decision on their state law claims.
Since the district court will once again have federal claims before it, we remand the state
law claims to the district court to allow it to determine whether to exercise supplemental
jurisdiction in light of this change in circumstances.
REVERSED AND REMANDED for further proceedings consistent with this
opinion.