UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
SHANISE TAYLOR, )
)
Plaintiff, )
) Civil Action No. 09-175 (EGS)
v. )
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff Shanise Taylor alleges that the District of
Columbia and the District of Columbia Public Schools (“DCPS”)
violated the Individuals with Disabilities Act (“IDEA”), 20
U.S.C. §§ 1400 et seq., and § 504 of the Rehabilitation Act (“the
Rehabilitation Act”), 29 U.S.C. § 794, by failing to provide her
son, K.T., with a free appropriate education (“FAPE”).1 Compl.
¶ 2. Pending before the Court is defendants’ motion for partial
dismissal of the complaint. Specifically, defendants’ seek
(i) dismissal of defendant DCPS from the action as non sui juris,
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The IDEA was enacted to assure that children with
educational disabilities obtain a FAPE designed to meet their
unique needs. See 20 U.S.C. § 1400, et seq.; see Reid v.
District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). The
IDEA “ensure[s] that the rights of children with disabilities and
parents of such children are protected.” 20 U.S.C. § 1400(d).
For purposes of this motion, defendants are not challenging
plaintiff’s IDEA claims. See Def.’s Mot. at 5-6 (“Defendants do
not dispute that Plaintiff is entitled to a FAPE, as provided for
in the IDEA, 20 U.S.C. § 1421(a)(1). Nor do Defendants contest
. . . that K.T. may have disabilities that entitle [him] to
various special education services under the IDEA.”).
and (ii) dismissal of plaintiff’s Rehabilitation Act claim for
failure to state a claim. Upon consideration of the motion, the
response and reply thereto, the applicable law, and for the
reasons stated below, the Court GRANTS defendants’ motion.
I. BACKGROUND
Ms. Taylor is the parent of K.T., a ten-year-old boy who
qualifies for special education and related services as a child
with a disability. Compl. ¶¶ 5, 8. DCPS completed a
psychological evaluation of K.T. on April 4, 2008. Compl. ¶ 9.
On June 5, 2008, plaintiff notified DCPS that she would not
accept its April 4, 2008 psychological evaluation and requested
authorization to obtain an independent comprehensive
psychological evaluation of K.T. Compl. ¶ 10. After DCPS failed
to timely respond to plaintiff’s request, plaintiff filed an IDEA
due process complaint alleging that DCPS “had failed to respond
to a request for authorization to obtain an independent
evaluation at public expense.” Compl. ¶¶ 12-13 (internal
quotation marks omitted). A hearing on the administrative
complaint was held on October 22, 2008, and a hearing officer’s
decision issued on October 31, 2008, denying the claim and
dismissing the case. Compl. ¶¶ 14-15.
Following dismissal of her administrative action, plaintiff
filed suit in this Court alleging violations of the IDEA and
§ 504 of the Rehabilitation Act. Defendants subsequently filed a
2
motion for partial dismissal of plaintiff’s complaint. This
motion is now ripe for determination by the Court.
II. LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235,
242 (D.C. Cir. 2002). A complaint must present “enough facts to
state a claim to relief that is plausible on its face” and “above
the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). In considering a 12(b)(6) motion, the Court
must construe the complaint “‘liberally in the plaintiff’s
favor,’ ‘accept[ing] as true all of the factual allegations’”
alleged in the complaint. Aktieselskabet AF 21 November 2001 v.
Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008) (alteration in
original) (quoting Kassem v. Wash. Hosp. Ctr., 513 F.3d 251, 253
(D.C. Cir. 2008)). Indeed, a plaintiff is entitled to “the
benefit of all inferences that can be derived from the facts
alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.
Cir. 1994). A court need not, however, “accept inferences drawn
by plaintiffs if such inferences are unsupported by the facts set
out in the complaint. Nor must [a] court accept legal
conclusions cast in the form of factual allegations.” Id.
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “[O]nly a
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complaint that states a plausible claim for relief survives a
motion to dismiss.” Id.
III. ANALYSIS
A. Defendant DCPS
Defendants seek dismissal of defendant DCPS as non sui
juris, explaining that DCPS is a non-suable agency. See Def.’s
Mot. at 7-8. In her opposition brief, plaintiff indicates that
she “does not oppose the dismissal of DCPS” as her “[c]laims
against DCPS, an agency of the District of Columbia, may be
properly construed as having been brought against the District.”
Pl.’s Opp’n Br. at 1. Accordingly, defendant DCPS is dismissed
as a party from this action.
B. Section 504 of the Rehabilitation Act
Next, defendants seek dismissal of Count III of plaintiff’s
complaint - her Rehabilitation Act claim. See Compl. ¶¶ 22-28.
Plaintiff seeks a declaration that “DCPS violated Section 504 [of
the Rehabilitation Act] by failing to provide K.T. with [a]
FAPE.” Compl. ¶ 2.
Section 504 of the Rehabilitation Act provides that “[n]o
otherwise qualified handicapped individual in the United States
. . . shall, solely by reason of his handicap, 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; see also Robinson
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v. District of Columbia, 535 F. Supp. 2d 38, 42 (D.D.C. 2008)
(“Section 504 prohibits programs and entities that receive
federal funding from denying benefits to, or otherwise
discriminating against, a person ‘solely by reason’ of that
individual’s handicap.”). In the context of cases involving
children who receive benefits pursuant to the IDEA, courts have
consistently recognized that in order to establish a violation of
§ 504, “‘something more than a mere failure to provide the free
appropriate education required by [the IDEA] must be shown.’”
Lunceford v. District of Columbia, 745 F.2d 1577, 1580 (D.C. Cir.
1984) (quoting Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th Cir.
1982)); see also Robinson, 535 F. Supp. 2d at 42 (citing cases).
“Specifically, plaintiffs must show either bad faith or gross
misjudgment on the part of the governmental defendants.”
Robinson, 535 F. Supp. 2d at 42.
Having carefully reviewed plaintiff’s complaint, the Court
concludes that plaintiff has alleged insufficient facts to
establish a violation of § 504. Id. The relevant facts, as set
forth in Ms. Taylor’s complaint, are that: (i) DCPS conducted a
psychological evaluation of K.T., Compl. ¶ 9; (ii) plaintiff,
declining to accept DCPS’ psychological evaluation, requested
authorization to obtain an independent comprehensive evaluation
of K.T., Compl. ¶ 10; (iii) the District failed to request a due
process hearing to defend its psychological evaluation, Compl. ¶¶
5
11; and (iv) the District did not respond to plaintiff’s request
by September 17, 2008, Compl. ¶ 12. Even when viewed in the
light most favorable to plaintiff, “[t]hese facts do not show
anything other than a possible denial of FAPE under the IDEA”;
they do not support an allegation that DCPS acted in bad faith or
with gross misjudgment. Torrence v. District of Columbia, No.
09-443, 2009 U.S. Dist. LEXIS 107305, at *12 (D.D.C. Nov. 17,
2009); see also, e.g., Robinson, 535 F. Supp. 2d at 42 (“Although
plaintiffs’ complaint includes allegations that defendants failed
to provide D.R. with a FAPE, that defendants failed to provide
appropriate special education services and evaluations, and that
the hearing officer erred in his decision to dismiss plaintiffs’
case in its entirety, the complaint completely fails to suggest
allegations of bad faith or gross misjudgment sufficient to
support a Section 504 claim. Hence, that claim must be
dismissed.”). Plaintiff, therefore, has failed to state a claim
under § 504 of the Rehabilitation Act.
While plaintiff also asserts that “DCPS has created and
adhered to a policy, custom or practice of refusing timely to
authorize funding of evaluations of special education students in
the District of Columbia, including K.T.,” and that this “policy,
custom, or practice” is evidence of bad faith and gross
misjudgment, see Compl. ¶¶ 25-27, plaintiff’s complaint is devoid
of any facts from which the Court could infer such a “policy,
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custom, or practice.” The facts, as alleged, reflect only the
District’s failure to timely conduct, review, or authorize the
funding of an independent evaluation of K.T.; plaintiff’s “naked
assertions” of a broader “policy, custom, or practice” are simply
insufficient to survive a motion to dismiss. See Iqbal, 129 S.
Ct. at 1949 (“A pleading that offers ‘labels and conclusions’ or
‘a formulaic recitation of the elements of a cause of action will
not do.’ Nor does a complaint suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’ . . .
While legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.” (internal
citations omitted)). Indeed, the conclusory, boilerplate
language of Count III - which plaintiff’s counsel has included in
at least three separate actions filed in this court - recently
led Judge Collyer to dismiss an identically pled Rehabilitation
Act claim. See Torrence, 2009 U.S. Dist. LEXIS 107305, at *8-13
(concluding that the plaintiff had failed to state a claim under
§ 504 of the Rehabilitation Act, and noting that “§ 504 [of the
Rehabilitation Act] is attuned to programatic failures while the
IDEA is focused on the individual student who needs special
education”); compare Torrence Compl. ¶¶ 23-29, No. 09-443, Docket
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No. 1 with Taylor Compl. ¶¶ 22-28, No. 09-175, Docket No. 1.2
Accordingly, Count III of plaintiff’s complaint is dismissed for
failure to state a claim.
IV. CONCLUSION
For the reasons set forth above, the Court GRANTS
defendant’s motion for partial dismissal. Defendant DCPS is
dismissed as a party from this action, and Count III of
plaintiff’s complaint is dismissed for failure to state a claim
under § 504 of the Rehabilitation Act. An appropriate Order
accompanies this Memorandum Opinion.
SIGNED: Emmet G. Sullivan
United States District Court Judge
February 2, 2010
2
The third case in which this conclusory language is used
is Lucas v. District of Columbia, No. 09-247. By Order this same
day, the Court is dismissing the Rehabilitation Act claim in that
case as well.
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