FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WINDY PAYNE, individually and as
guardian on behalf of; D.P., a
minor child,
Plaintiffs-Appellants,
v.
No. 07-35115
PENINSULA SCHOOL DISTRICT, a
municipal corporation; ARTONDALE D.C. No.
CV-05-05780-RBL
ELEMENTARY SCHOOL, a municipal
corporation; JODI COY, in her OPINION
individual and official capacity;
JAMES COOLICAN, in his individual
and official capacity; JANE DOES 1-
10; JOHN DOES 1-10,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
August 8, 2008—Seattle, Washington
Filed March 18, 2010
Before: Harry Pregerson, Cynthia Holcomb Hall and
John T. Noonan, Circuit Judges.
Opinion by Judge Hall;
Dissent by Judge Noonan
4381
4384 PAYNE v. PENINSULA SCHOOL DISTRICT
COUNSEL
Thomas B. Vertetis, Gordon, Thomas, Honeywell, Malanca,
Peterson & Daheim LLP, Tacoma, Washington, for the appel-
lant.
Michael A. Patterson and Donald F. Austin, Patterson
Buchanan Fobes Leitch & Kalzer P.S., Seattle, Washington,
for the appellees.
OPINION
HALL, Senior Circuit Judge:
Windy Payne (“Payne”), the mother of D.P., an autistic stu-
dent, appeals from the district court’s dismissal without preju-
dice of the suit she brought on D.P.’s behalf for negligence,
outrage, and § 1983 violations.1 Her claims were predicated
on D.P.’s constitutional rights and statutory rights under the
Individuals with Disabilities Education Act (“IDEA”). The
district court found that it lacked subject matter jurisdiction
over Payne’s federal claims because Payne failed to exhaust
her administrative remedies before coming into federal court.2
We have jurisdiction pursuant to 28 U.S.C. § 1291 and agree.
1
Payne also asserted her own emotional distress claim under a negli-
gence cause of action. Because this cause of action arises under state law,
however, the district court’s jurisdiction over it was only supplemental,
and that court could properly decline to exercise jurisdiction on an inde-
pendent basis after the federal claims had been dismissed.
2
The treatment of this issue as jurisdictional was consistent with this cir-
cuit’s precedent at the time of the district court’s opinion. See Robb v.
PAYNE v. PENINSULA SCHOOL DISTRICT 4385
I.
Because this appeal arises from a grant of summary judg-
ment, we present the facts in the light most favorable to
Payne. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916,
922 (9th Cir. 2004).
D.P. suffers from moderate autism, which has delayed his
academic progress and caused his resistance to work, his diffi-
culties staying on task, and his impulsive, “inappropriate or
aggressive” responses to his environment. In September 2003,
as is required under the IDEA, see 20 U.S.C. § 1414 (2006),
an Individualized Education Plan (“IEP”) was developed for
D.P. to address these limitations and provide appropriate edu-
cation. That plan placed him in a transition classroom at
Artondale Elementary School, set out instructional goals, and,
most relevant to this case, sought to address his behavioral
issues through various intervention methods, including the use
of time-out in a “safe room.”
This case concerns that safe room, a roughly 5′ x 6′ room
located within the special education classroom. It is the teach-
er’s use of that room with D.P., rather than the room itself,
that is at issue here. The parties dispute the details as to what
Payne consented to (i.e. a locked, closed door, with no adult
inside), the duration of D.P.’s periods of confinement, and
whether the window was covered. However, they agree that
D.P. was locked in the room on multiple occasions in
response to his classroom behavior. On several occasions, he
Bethel School District, 308 F.3d 1047 (9th Cir. 2002) It is unclear whether
the failure to exhaust is still a jurisdictional matter after the Supreme
Court’s decision in Jones v. Bock. See 549 U.S. 199, 216 (2007) (finding
failure to exhaust to be an affirmative defense under the Prison Litigation
Reform Act (“PLRA”)); Robb, 308 F.3d at 1051 (describing the PLRA’s
exhaustion requirement as similar to the IDEA’s). However, the parties
have not raised this issue and we decline to reach it, though we note that
Appellees did include the failure to exhaust as an affirmative defense in
their answer to Payne’s complaint.
4386 PAYNE v. PENINSULA SCHOOL DISTRICT
removed his clothes in there, and urinated and defecated on
himself. He helped his teacher, Jodi Coy, clean up his excre-
ment. He began to exhibit anxious behaviors and experience
emotional and scholastic setbacks
Payne was wary of the safe room’s use from the beginning.
The Paynes consulted with Coy and other District administra-
tors regarding its use during the IEP’s development and after
the defecating incident, expressing concerns over having D.P.
in there with a closed door and no adult inside. Coy defended
her use of the safe room as an appropriate response to D.P.’s
attempts to gain attention through his misbehavior. The
Paynes continued to have disagreements with Coy and admin-
istrators regarding access to the classroom and D.P.’s outside
tutoring, which led them to request repeatedly that D.P. be
moved from Coy’s classroom. When those requests were
denied, the Paynes requested mediation. Though that media-
tion resulted in an agreement that D.P. would be transferred
to another school in the district, the record suggests that the
Paynes did not attempt to address D.P.’s emotional problems
there and that they were later unhappy with the District’s pro-
vision of the services to which it had agreed. Despite the
mediation agreement’s failure to resolve all of Payne’s issues
with the District’s provision of services, Payne never sought
an impartial due process hearing. D.P. is currently being
home-schooled.
In December 2005, Payne filed a complaint in the district
court. Payne claims the teacher’s use of the room caused her
son’s “significant regression in communicative and sensory
functions,” the diminishment of his “academic prowess and
abilities,” and the continuing “signs of emotional trauma.”
She sought general damages for “extreme mental suffering
and emotional distress and special damages,” as well as puni-
tive damages for the violation of D.P.’s civil rights, and
declaratory relief stating that the District’s safe room policy
was tortious and unconstitutional.
PAYNE v. PENINSULA SCHOOL DISTRICT 4387
Appellees Peninsula School District, Artondale Elementary
School, Coy, and James Coolican (collectively “Appellees”)
filed a motion for summary judgment. The district court found
that it lacked subject matter jurisdiction over Payne’s federal
claims because Payne failed to exhaust her administrative
remedies before coming into federal court. It then declined to
exercise supplemental jurisdiction over her state law claims,
finding no independent basis for jurisdiction over them.
II.
We review de novo both a district court’s decision to grant
summary judgment, Univ. Health Servs., Inc. v. Thompson,
363 F.3d 1013, 1019 (9th Cir. 2004), and its determination of
whether it has subject matter jurisdiction, see Schnabel v. Lui,
302 F.3d 1023, 1028-29 (9th Cir. 2002).
To ensure “appropriate public education that emphasizes
special education and related services designed to meet [the]
unique needs” of children with disabilities, the IDEA requires
school districts to develop IEPs outlining the educational ser-
vices to be provided for those children. 20 U.S.C.
§ 1400(d)(1)(A); id. § 1414(d). Those services include “devel-
opmental, corrective, and other supportive services” that
address a wide range of academic, emotional, and physical
issues “as may be required to assist a child with a disability
to benefit from special education.” Id. § 1401(26).
[1] In order to carry out these objectives and permit paren-
tal involvement, the IDEA created procedural safeguards. See
Robb v. Bethel School District, 308 F.3d 1047, 1049 (9th Cir.
2002). If parents are not satisfied with decisions regarding
their child’s educational program or with the services pro-
vided, they are guaranteed an “impartial due process hearing.”
Id. § 1415(f). They must exhaust this procedure prior to filing
a civil action. Id. § 1415(l). This exhaustion requirement rec-
ognizes the traditionally strong state and local interest in edu-
cation, allows for the exercise of discretion and educational
4388 PAYNE v. PENINSULA SCHOOL DISTRICT
expertise by state agencies, affords full exploration of techni-
cal educational issues, furthers development of the factual
record and promotes judicial efficiency by giving state and
local agencies the first opportunity to correct shortcomings.
Kutasi v. Las Virgenes Unified Sch. Dist., 494 F.3d 1162,
1167 (9th Cir. 2007). Plaintiffs “seeking relief that is also
available under” the IDEA must exhaust procedures “to the
same extent as would be required had the action been brought
under” the IDEA. 20 U.S.C. § 1415(l).
We have two cases controlling our analysis: Witte v. Clark
County School District, 197 F.3d 1271, 1275 (9th Cir. 1999)
(where exhaustion was not required), and Robb v. Bethel
School District, 308 F.3d 1047, 1049 (9th Cir. 2002) (where
it was). In Witte, a student with Tourette’s Syndrome filed a
civil action seeking damages for past physical and emotional
abuse after he was allegedly force-fed food to which he was
allergic, strangled, subjected to physical “take downs,” forced
to walk and run despite hindering deformities, and deprived
of food. See 197 F.3d 1271. In Robb, a student with cerebral
palsy filed an action seeking damages for emotional trauma
and lost educational opportunities after she was removed from
the classroom for peer tutoring. See 308 F.3d 1047.
[2] The Witte court decided exhaustion was not necessary
because the parties (1) had resolved all educational issues
through the IEP process, (2) sought only retrospective dam-
ages, and (3) had claims centering around physical abuse and
injuries. Witte, 197 F.3d at 1275-76. Robb found that exhaus-
tion was required and distinguished itself from Witte because
its plaintiffs (1) had not taken full advantage of IDEA admin-
istrative procedures, (2) requested money damages to com-
pensate for “psychological and educational injuries the IDEA
may remedy,” and (3) did not claim physical injury. Robb,
308 F.3d at 1052. In both cases, the inquiry may be boiled
down to one central question: whether the plaintiffs “seek
relief for injuries that could be redressed to any degree by the
IDEA’s administrative procedures.” Kutasi v. Las Virgenes
PAYNE v. PENINSULA SCHOOL DISTRICT 4389
Unified Sch. Dist., 494 F.3d 1162, 1163-64 (9th Cir. 2007). If
the answer to that question is either yes or unclear, exhaustion
is required. See id. at 1168 (citing Robb, 308 F.3d at 1050).
Our analysis depends primarily on whether this case is
more like Witte or Robb. Factually, we are somewhere in
between. This case does not involve actions equivalent to
forcing-feeding, strangulation, “take downs,” or food depriva-
tion, actions which were part of no IEP and “served no legiti-
mate educational purpose.” Witte, 197 F.3d at 1273. However,
this case likewise is not so purely educational as Robb, where
a child was taken out of class and given peer tutoring on a
hallway floor instead. See 308 F.3d at 1048. Instead, we are
in a middle ground involving disciplinary measures employed
as a part of a larger educational strategy.
[3] Payne would have us draw a hard line between disci-
pline and education, and place this case on the side of Witte,
where the child was punished for actions related to his disabil-
ities. That would oversimplify the issue. Witte concerned
abuses which served “no legitimate educational purpose,”
and, indeed, it is hard to fathom the pedagogy behind feeding
a child a food to which he was allergic or choking him to
make him run faster, to take two examples. See Witte, 197
F.3d at 1273. But we have also recognized that “[p]roper con-
duct and education are inextricably intertwined” in the context
of special education. Doe by Gonzales v. Maher, 793 F.2d
1470, 1491 (9th Cir. 1986). The two are connected here,
where D.P.’s IEP includes aversive and behavioral interven-
tion plans to address his tendency to bite, scratch, yell, and
refuse to stay on task, and where Washington law includes
isolation rooms among the disciplinary measures schools may
employ to enforce their rules. See Wash. Admin. Code § 180-
40-235; id. § 392-172-394. Thus, this case is unlike Witte,
where “neither the genesis nor the manifestations of the abuse
were educational.” Robb, 308 F.3d at 1052. Instead, like the
conduct at issue in Robb, the use of the safe room here was
4390 PAYNE v. PENINSULA SCHOOL DISTRICT
“at least . . . an attempt at an educational program.” Id. at
1052 n.3 (internal quotation marks omitted).
[4] Because we are persuaded that this case is more akin
to Robb, we believe that exhaustion was required. As in Robb,
Payne has not taken full advantage of the IDEA administra-
tive procedure because she did not seek an impartial due pro-
cess hearing, even though the mediation failed to resolve all
issues regarding the District’s provision of educational ser-
vices and even though her complaint reflects an ongoing con-
cern with safe rooms as they were used with D.P. See 20
U.S.C. § 1415(f), (l). Like the Robb plaintiffs, Payne also
claims injuries—“significant repression in communicative
and sensory functions,” diminished “academic prowess and
abilities,” and continued emotional trauma in D.P.—for which
IDEA provides some relief. See id. § 1401(26) (outlining aca-
demic, psychological, and therapeutic corrective and support-
ive services provided). Finally, Payne is also not claiming
physical injuries for D.P. within the meaning of Witte. See
197 F.3d 1271, 1273, 1276 (9th Cir. 1999) (describing forced
feeding and walking, strangulation, and “take downs” as
physical abuse and injuries).
Payne’s arguments to the contrary are unavailing. Even
though monetary damages are not ordinarily available under
the IDEA, see id. at 1275, she may not avoid the exhaustion
requirements by requesting only monetary damages, see
Robb, 308 F.3d at 1049. Neither may she avoid those require-
ments by attempting on appeal to recast her damages as retro-
spective only when her complaint clearly alleges ongoing
injuries. See id. at 1053 n.4 (declining to permit the plaintiffs
to reframe their claims as retrospective only on appeal when
they had not attempted to limit their damage claim in the dis-
trict court).
[5] Finally, the fact that D.P. is currently home-schooled
does not automatically make any administrative remedies
futile. See N.B. v. Alachua County Sch. Bd., 84 F.3d 1376,
PAYNE v. PENINSULA SCHOOL DISTRICT 4391
1379 (11th Cir. 1996) (holding that parents’ removal of a
child from the school district does not excuse the failure to
exhaust administrative remedies), cited with approval in
Robb, 308 F.3d at 1049. The fact that services may not be the
remedy Payne wants does not decide the question. See Robb,
308 F.3d at 1049 (“We understand ‘available’ relief to mean
relief suitable to remedy the wrong done the plaintiff, which
may not always be relief in the precise form the plaintiff pre-
fers.”). Instead, she must prove futility. Id. at 1050 n.2. Her
conclusory statements that D.P. would not benefit from ser-
vices do not meet that burden.
[6] Simply put, Payne is contesting one part of the compre-
hensive educational strategy used to address D.P.’s unique sit-
uation. The safe room was included in his IEP, is a recognized
educational tool under Washington statutes, see, e.g., Wash.
Admin. Code § 392-172-394, and its use allegedly led to inju-
ries that the services provided under the IDEA are meant to
address. This is not to say we condemn or endorse the manner
in which the safe room was used here. Rather we believe that,
as an educational strategy (even if a misguided or misapplied
one), it was better addressed initially by the administrative
process. Therefore, we uphold the district court’s dismissal of
the claims made on D.P.’s behalf.
For these reasons, the district court’s decision is
AFFIRMED.
NOONAN, Circuit Judge, dissenting:
My colleagues, struggling to find a way between Robb and
Witte find at least “an attempt at an educational program” in
a teacher repeatedly locking D.P., a seven-year old autistic
child, into an unventilated, dark space the size of a closet for
indeterminate amounts of time, causing D.P. to become so
fearful that he routinely urinated and defecated on himself. I
4392 PAYNE v. PENINSULA SCHOOL DISTRICT
disagree with the majority’s characterization of Coy’s conduct
as part of an “educational strategy,” the resolution of which
would require exhaustion under the IDEA. I respectfully dis-
sent.
Viewing the facts as we must, in the light most favorable
to the Paynes, it is clear that Ms. Coy’s misuse of the isolation
room serves no legitimate educational purpose, is prohibited
by state administrative regulations, and was imposed as pun-
ishment. The facts in this case are closer to those in Witte v.
Clark County School District, 197 F.3d 1271 (9th Cir. 1999)
than in Robb v. Bethel School District, 308 F.3d 1047 (9th
Cir. 2002). As in Witte, D.P. was subjected to mistreatment
that was part of no IEP and “served no legitimate educational
purpose.” 197 F.3d at 1273. While D.P.’s proposed “behavior
intervention plan” included “containment in [a] safe room,” it
did not authorize the misuse at issue here.
The Washington Administrative Code requires extensive
procedural and substantive safeguards for the use of an isola-
tion room as an aversive intervention. See Wash. Admin.
Code 392-172A-03130(2). Among the requirements are that
the student’s IEP must provide for the isolation and “duration
of its use,” and the enclosure must be “ventilated,” “lighted,”
and “permit continuous visual monitoring of the student from
outside the enclosure.” Id. The regulations also require that
“either the student shall be capable of releasing himself or
herself from the enclosure or the student shall continuously
remain within view of an adult responsible for supervising the
student.” Id. The regulations prohibit isolation without the
requisite safeguards, listing such isolation along with other
interventions that are “manifestly inappropriate by reason of
their offensive nature or their potential negative physical con-
sequences, or their legality.” Id. at 392-172A-03125. These
practices include: stimulating a student with electric current;
throwing, kicking, burning, or cutting a student; striking a stu-
dent with a closed fist; threatening a student with a deadly
weapon; denying or delaying medication or common hygiene
PAYNE v. PENINSULA SCHOOL DISTRICT 4393
care; and submerging a student’s head in water. See id. If a
student were subject to any of these prohibited practices, one
presumes that full exhaustion of the IDEA administrative pro-
cesses would not be required.
If we see the facts in the light most favorable to the Paynes,
Ms. Coy mistreated D.P. by using the isolation room in a
manner explicitly prohibited by the state regulations: covering
up the window, locking the door, forcing D.P. to stay locked
inside for prolonged and indeterminate periods of time, and
failing to place a teacher or aide in the room or at least outside
the room with the door open. The alleged conduct goes far
beyond that in Robb, in which a student was removed from
her class for peer tutoring that occurred on the floor of a dim
hallway with no chair or desk for her to use. 308 F.3d at 1048.
Here was neither education nor attempt at education. Here
was a return to the bleak black days of Dickensian England.
See C. Dickens, Oliver Twist, chapters 2 and 3.
Accordingly, I would hold under Witte that, exhaustion
under the IDEA is not required.