D. L. v. Hernando County Sheriff's Office

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

D.L., a minor, by and through his next-of-

friends, S.L. and R.L., mother and father of

the minor,

Plaintiff,

v. Case No. 8:22-cv-35-JLB-AEP

HERNANDO COUNTY SHERIFF’S

OFFICE, a public entity,

AL NIENHUIS, in his official capacity as

Sheriff of Hernando County, Florida,

DEPUTY PAUL SMITH, School Resource

Officer, in his individual and official

capacities,

HERNANDO COUNTY SCHOOL BOARD, a

public entity.

Defendants.

/

ORDER

Plaintiff D.L., a minor, sued Defendants Hernando County Sheriff’s Office

(“HCSO”), Sheriff Al Nienhuis (“Sheriff Nienhuis”), Deputy Paul Smith (“Deputy

Smith”), and the Hernando County School Board (“HCSB”) for Fourth and

Fourteenth Amendment violations, as well as violations of Title II of the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12132. (Doc. 42.) Defendants moved to

dismiss D.L.’s initial complaint (Doc. 1) in two separate motions—one from the

HCSO, Sheriff Nienhuis, and Deputy Smith and one from the HCSB—and D.L. has

responded to both. (Doc. 17; Doc. 19; Doc. 29; Doc. 36.) Only the second of these two

motions to dismiss—that of the HCSB—is addressed in this Order. A prior order of

this Court directed solely towards the motion to dismiss filed by the HCSO, Sheriff

Nienhuis, and Deputy Smith dismissed certain claims against those defendants and

permitted D.L. to file an amended complaint, which he did. (See Doc. 37; Doc. 42).

As D.L. notes in his amended complaint––the operative complaint––his

claims against the HCSB remain unchanged.1 After careful review, the Court

GRANTS HCSB’s Motion to Dismiss (Doc. 29) because Plaintiff failed to exhaust

the administrative remedies available to him prior to filing this lawsuit. Counts III

and IV of the First Amended Complaint (Doc. 42) are therefore DISMISSED

without prejudice. If D.L. indeed exhausted the available administrative

remedies prior to filing suit here, he is granted leave to file a second amended

complaint within twenty (20) days of the date of this Order.

BACKGROUND

D.L. is a child with Non-Communicative Autism, which impedes his ability to

“stay[] focused, pay[] attention, control[ his] behavior, comply[] with directives, and

[remain] seated.” (Doc. 42 at ¶ 27.) During the 2017–2018 school year, D.L. was

1 D.L. states he has “not amended the Counts of the Complaint against the

Hernando County School Board inasmuch as there is a pending Motion to Dismiss

filed by the Hernando County School Board which has not as of yet been ruled on by

the Court.” (Doc. 42 at 15 n.3; see id. at 16 n. 4.) It is worth noting, however, that

D.L. did apparently remove the claim for punitive damages against the HCSB.

(Compare Doc. 1 at ¶ 61, with Doc. 42 at ¶ 66.) The only other relevant change

between the initial complaint and the operative complaint is the count numbers of

those claims exclusively against the HCSB. (Compare Doc. 1, with Doc. 42.) They

are now Counts III and IV. (See Doc. 42.)

enrolled in the fifth grade at Winding Waters Elementary School (“Winding

Waters”), which is administered by the HCSB. (Id. at ¶ 26.) School personnel were

aware of D.L.’s autism diagnosis and understood that D.L. required a “behavior

intervention plan” in order to “manage his disability-related behaviors.” (Id. at ¶

28.)

On January 10, 2018, while D.L. was in a classroom at Winding Waters, D.L.

had an autism-related outburst, wherein he had difficulty “complying with

directives from teachers and administrators; controlling his emotions; and,

controlling his physical conduct.” (Id. at ¶ 29.) At the time, D.L. was ten years old,

stood 4’10” tall, and weighed ninety pounds. (Id. at ¶ 26.) As a result of this

outburst, D.L. was removed from the classroom2 and taken to an office at the school

where he was “placed in seclusion.”3 (Id. at ¶ 29.) After some time in seclusion,

D.L. was handcuffed by Deputy Smith and other school personnel and carried out of

Winding Waters’ building. (Id. at ¶¶ 30–31.) D.L. was then transported by the

HCSO to Spring Brook, a mental health facility in Hernando County, where he was

involuntarily committed. (Id. at ¶ 32.) D.L. suffered “physical injuries,” “emotional

distress,” and “mental suffering” when he was handcuffed and transported from

2 D.L. does not specify in his Complaint who removed him from the classroom or

who took him to the school office. (Doc. 42 at ¶ 29.)

3 “Seclusion” is a term of art defined in the Florida Education Code as “the

involuntary confinement of a student in a room or area alone and preventing the

student from leaving the room or area. The term does not include time-out used as

a behavior management technique intended to calm a student.” Fla. Stat. §

1003.573(1)(e).

Winding Waters to Spring Brook. (Id. at ¶¶ 31–33.) He “continues to suffer

emotional distress” in the aftermath of these events. (Id. at ¶ 35.)

D.L. brings two claims against the HCSB. (Id. at ¶¶ 52–66.) First, he argues

that the HCSB violated his right against disability-based discrimination under the

ADA. (Id. at ¶¶ 52–58.) Second, D.L. alleges that the HCSB failed to make

reasonable accommodations in violation of the ADA. (Id. at ¶¶ 59–66.) D.L. seeks

declaratory relief, injunctive relief, compensatory damages, and attorneys’ fees and

costs for these injuries. (Id. at ¶¶ 58, 66.)

Defendant HCSB moves to dismiss, arguing that (1) D.L. failed to exhaust

administrative remedies, (2) D.L. failed to state a claim for violation of the ADA

against the School Board, and (3) D.L.’s Complaint is an impermissible shotgun

pleading. The Court will assess the merits of these various arguments in turn. (See

Doc. 29.)

DISCUSSION

“At the motion to dismiss stage, all well-pleaded facts are accepted as true,

and the reasonable inferences therefrom are construed in the light most favorable to

the plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir.

1999) (citing Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir.

1998)). To state a claim, a complaint must provide “a short and plain statement of

the claim showing that the pleader is entitled to relief,” and “must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[C]onclusory allegations,

unwarranted factual deductions or legal conclusions masquerading as facts will not

prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir.

2003) (citation omitted).

I. D.L. has failed to exhaust his administrative remedies as is

required under the Individuals with Disabilities Education

Act.

The HCSB argues that D.L.’s ADA claims against it are barred because D.L.

failed to exhaust his administrative remedies as required by the Individuals with

Disabilities Education Act (“IDEA”). (Doc. 29 at 6). D.L. asserts that the

exhaustion requirement is inapplicable here because he is not seeking relief for a

denial of “free appropriate public education,” often referred to by the acronym,

“FAPE.” (Doc. 36 at 4–6.) For the reasons outlined below, the Court finds that D.L.

has failed to exhaust his administrative remedies, as required by the IDEA, and

accordingly, his claims against the HCSB are due to be dismissed.

The plain language of the IDEA requires that any child with a disability

seeking to enforce his rights under, among other federal statutes, the ADA and the

IDEA must exhaust the administrative procedures set forth in the section 1415(f) of

the IDEA “before the filing of a civil action under such laws.” 20 U.S.C. § 1415(l).

Indeed, heeding this statutory mandate, the Eleventh Circuit has repeatedly

held that “claims asserted under Section 504 and/or the ADA are subject to [the]

requirement that litigants exhaust the IDEA’s administrative procedures to obtain

relief that is available under the IDEA before bringing suit under . . . the ADA.”

Babicz v. School Bd. of Broward Cnty., 135 F.3d 1420, 1422 (11th Cir.1998); M.T.V

v. DeKalb Cnty. Sch. Dist., 446 F.3d 1153, 1158 (11th Cir. 2006) (holding the same).

The IDEA guarantees a FAPE to students with disabilities through the

provision of various special education services, including an “individualized

education program” (“IEP”). See Loren F. ex rel. Fisher v. Atlanta Indep. Sch.

Sys., 349 F.3d 1309, 1311–12 (11th Cir. 2003) (citing 20 U.S.C. § 1414(d)(1)(A)–(B)).

IEPs are aimed at improving students’ educational attainment and include a

number of measures designed to evaluate student progress and ensure that

students with disabilities are meeting their academic goals. 20 U.S.C. §

1414(d)(1)(A). That said, the Eleventh Circuit has explained that the IDEA’s

“unambiguous” exhaustion requirement applies to a “broad spectrum of claims,”

namely “any matter relating to the identification, evaluation, or educational

placement of the child, or the provision of a free appropriate public education to

such child,” including, among others, claims brought pursuant to the IDEA, the

ADA, Section 504, or the Constitution. M.T.V., 446 F.3d at 1158 (“This Court has

held any student who wants relief that is available under the IDEA must use the

IDEA’s administrative system, even if he invokes a different statute”) (internal

citation and quotation omitted). As the Eleventh Circuit has succinctly stated,

“[t]he philosophy of the IDEA is that plaintiffs are required to utilize the elaborate

administrative scheme established by the IDEA before resorting to the courts to

challenge the actions of the local school authorities.” Id.

Indeed, “[t]he philosophy of the IDEA is that plaintiffs are required to utilize

the elaborate administrative scheme established by the IDEA before resorting to

the courts to challenge the actions of the local school authorities.” N.B. v. Alachua

Cnty. Sch. Bd., 84 F.3d 1376, 1378 (11th Cir. 1996). If the relief sought by a

plaintiff can be provided under the IDEA, the plaintiff’s ADA or Section 504 legal

claims will be subject to dismissal if the plaintiff does not first exhaust his

administrative remedies, absent the plaintiff demonstrating that the administrative

process is either futile or inadequate. See MTV, 446 F.3d at 1158.

A. The structure of D.L.’s Complaint makes it clear that the crux of

his claims against the HCSB is the denial of FAPE.

In determining whether a claim alleges the denial of a FAPE, the Court looks

to “the gravamen or essence of the claim,” and “whether the complaint seeks to

harness the means and ends that the ADA provides.” Durbrow v. Cobb Cnty. Sch.

Dist., 887 F.3d 1182, 1190 (11th Cir. 2018) (citation and quotation omitted). The

Supreme Court has provided clear directions for this analysis, instructing courts to

ask two hypothetical questions: “First, could the plaintiff have brought essentially

the same claim if the alleged conduct had occurred at a public facility that was not a

school—say a public theater or library? And second, could an adult at the school—

say, an employee or visitor—have pressed essentially the same grievance?” Fry v.

Napoleon Cmty. Sch., 137 S. Ct. 743, 756 (2017). Under the Fry test, where these

questions are answered affirmatively, the suggestion is that “the heart of the claim

does not concern the deprivation of a FAPE, since the claim would not be

inextricably bound to the appropriateness of an intellectually disabled child’s

educational program.”4 Durbrow, 887 F.3d at 1190.

Here, the gravamen of D.L.’s ADA claim against the HCSB is the HCSB’s

alleged failure to make accommodations for schoolchildren with disabilities. (See

Doc. 42.) Specifically, D.L. alleges, among other things, that the HCSB used

“improper and unnecessary seclusion, excessive physical force and physical

restraints . . . [rather than] providing reasonable modifications to schoolchildren

with disabilities, including Plaintiff, such as crisis intervention, de-escalation,

patience, and waiting.” (Id. at ¶¶ 55–57.) D.L. argues that the HCSB was aware

that the use of seclusion and “excessive restraint, including mechanical restraints, .

. . [on] elementary-aged schoolchildren, including schoolchildren with disabilities,

by School Personnel” was “improper[]” and “unlawful” pursuant to a 2009 report by

the Government Accountability Office (“GAO”), a 2009 letter from former U.S.

Secretary of Education Arne Duncan to Chief State School Officers, and a resultant

2010 Florida Statute titled “Seclusion and restraint of students with disabilities in

public schools.” (Id. at ¶¶ 8–11); Fla. Stat. § 1003.573. The GAO report cited by

D.L. provides that the IDEA “requires that eligible students be educated in the least

restrictive environment.” Seclusions and Restraints: Selected Cases of Death and

4 Notably, there is an exception to the requirement that a plaintiff exhaust his

administrative remedies where doing so would be futile or inadequate. N.B., 84

F.3d at 1379. This exception is limited however, as parents cannot “deliberate[ly]

disregard and circumvent[] agency procedures established by Congress” through

unilateral actions or requests for damages that exceed the authority’s capability.

Id.

Abuse at Public and Private Schools and Treatment Centers, U.S. Gov’t

Accountability Off. (May 19, 2009) https://www.gao.gov/assets/gao-09-719t.pdf. The

report further provides:

IDEA also mandates that special education students have an

Individualized Education Program (IEP), a written document that in

part explains the educational goals of the student and the types of

services to be provided. IEPs are developed by parents and school

personnel and may contain instructions related to the use of strategies

to support the student. These could include, for example, instruction

approaches and behavioral interventions such as the use of seclusion

and restraints.

Id. at 3.

This report, cited by D.L. as a rationale behind the passage of the Fla. Stat. §

1003.573, draws a clear connection between the IDEA, IEPs, and the necessity of

modifying behavioral interventions such as seclusion and restraint when dealing

with students with disabilities. The letter from Secretary Duncan drew on the GAO

report to warn state officials of the dangers of disciplining children with disabilities

and to encourage such officials to “ensure that every student in every school under

your jurisdiction is safe and protected from being unnecessarily or inappropriately

restrained or secluded.” See Letter from Arne Duncan to Chief State School

Officers, U.S. Dep’t of Ed. (Jul. 31, 2009)

https://www2.ed.gov/policy/elsec/guid/secletter/090731.html. The Florida Statute

passed in response to Secretary Duncan’s letter regulates school districts in their

disciplinary treatment of students with disabilities. (See Doc. 42 at ¶ 11); Fla. Stat.

§ 1003.573. Thus, the statute governing the conduct which D.L. challenges, is, by

his own admission, derived from reports and commentaries on the appropriateness

of certain disciplinary tactics for students with IEPs. (Doc. 42 at ¶¶ 8–11.)

The upshot of this historical information is that students with disabilities’

right to not be subject to a particular type of discipline is closely related to the

provision of an educational plan that can meet those students’ learning goals.

Indeed, D.L. emphasizes this important connection between teachers’ instructional

approaches and behavioral interventions for students with disabilities by noting

that “the Hernando County School District [has a significant percentage of]

students with disabilities under the Individuals with Disabilities Education Act

(IDEA).” (Id. at ¶ 20.) D.L.’s references to these sources and agency opinions in the

opening paragraphs of his complaint serve to place the subsequent claims squarely

within the realm of public education. That is, what makes the conduct of the HCSB

school personnel allegedly improper and unlawful is that the alleged violative

conduct took place in a school and was, per D.L.’s own concession, governed by

various pieces of legislation intended to protect students with disabilities in public

schools.

Based on the allegations made in D.L.’s operative complaint, therefore, it is

clear that his ADA claims against the HCSB “focus[] precisely on the adequacy of

the educational program the School District offered [him].” Dubrow, 887 F.3d at

1190. These allegations communicate clearly to the Court that the essence of D.L.’s

ADA claims is that the HCSB denied D.L. a FAPE by failing to appropriately tailor

its disciplinary tactics to his disability. Fry, 137 S.Ct. at 756.

B. Applying the Fry test, it is clear that the gravamen of D.L.’s claims

against the HCSB is the denial of FAPE.

The Fry test further reveals that the provision of an appropriate education is

the central focus of D.L.’s operative complaint. With respect to the first question of

the Fry test—whether the plaintiff could have brought essentially the same claim if

the alleged conduct had occurred at a public facility that was not a school—the

answer is clearly no. See Fry, 137 S.Ct. at 756. That is, D.L. could not have raised

the same claim if the conduct occurred in a library or theater, since neither of these

facilities routinely provides behavioral interventions for children with disabilities

tailored to those children’s specific disability-related educational needs.

Where a student has particularized educational needs that require a

modification of behavioral interventions, complaints regarding such behavioral

interventions are clearly connected to the student’s learning program. Barnett v.

Baldwin Cnty. Bd. of Educ., 60 F. Supp. 3d 1216, 1229 (S.D. Ala. Oct. 8, 2014)

(finding that the right of IEP students with disabilities to not be subject to a

particular type of discipline “is inextricably intertwined with the development of an

IEP plan and the ability of the students to receive appropriate educational

services”); J.M. ex rel. McCauley v. Francis Howell Sch. Dist., 850 F.3d 944, 949

(8th Cir. 2017) (determining that the plaintiff’s claim that the school district

imposed physical discipline prohibited by his IEP was subject to the IDEA’s

exhaustion requirement).

This Court is not alone in its answer to the first part of the Fry inquiry.

Several courts have found that students with disabilities challenging school

officials’ disciplinary tactics as being excessively forceful are required to first

exhaust their administrative remedies because, “to the extent [a plaintiff’s] claims .

. . are based on the proper implementation of . . . an IEP, such claims are for

violation of a FAPE.” Johnson v. Sikes, No. 4:18-cv-216, 2020 WL 3259538, at *12

(S.D. Ga. June 16, 2020); see also Harris v. Brown, No. 1:20-cv-02320-JPB, 2021 WL

733673, at *4 (N.D. Ga. Feb. 25, 2021) (holding that where a plaintiff claimed that

he was entitled to specific disciplinary procedures because of his disabilities and

was denied such modifications, he was required to exhaust his administrative

remedies because his “allegations of abuse are specifically tied to his IEP and the

failure to follow certain disciplinary procedures”); A.H. ex rel. H.C. v. Craven Cnty.

Bd. of Educ., No. 4:16-cv-282-BO, 2017 WL 3493612, at *4 (E.D.N.C. Aug. 14, 2017)

(finding that the IDEA’s exhaustion requirement applied to allegations involving in-

school incidents of physical abuse when the abuse was the result of improper “de-

escalation techniques” required by a student’s IEP).

The above cited cases reflect precisely the sort of claim that D.L. is alleging

here. Specifically, D.L. emphasizes that, because of his disabilities, he was entitled

to certain modifications “such as crisis intervention, de-escalation, patience, and

waiting” when he “experienced disability-related difficulties including complying

with directives from teachers and administrators.” (Doc. 42 at ¶¶ 57, 29.) These

requested changes to school officials’ behavioral interventions are clearly related to

D.L.’s ability to succeed in the classroom. Thus, the first question of the Fry test—

whether the plaintiff could have brought essentially the same claim if the alleged

conduct had occurred at a public facility that was not a school—is due to be

answered in the negative. Fry, 137 S.Ct. at 756.

The second question of the Fry test, which asks whether an adult at the

school—say, an employee or visitor—could have pressed essentially the same

grievance, is also due to be answered in the negative. Id. Where it “strains

credulity for [p]laintiffs to insist that an adult could bring a Complaint” containing

the text of the operative complaint, the answer to the second question in the Fry

test is also negative. Hayes v. DeSantis, 561 F. Supp. 3d 1187, 1200 (S.D. Fla.

September 15, 2021).

Here, D.L. seeks injunctive relief to prohibit Defendant’s “policy and practice

of imposing unnecessary and excessive physical force and physical restraints

including handcuffs, on schoolchildren with disabilities.” (Doc. 42 at ¶¶ 56–58.) He

further states that the effects of “the unnecessary use of physical restraints,

including handcuffs, on the basis of disability . . . include substantial and

disproportionate physical and emotional injuries, and disruptive exclusions from the

school community.” (Id. at ¶ 54) (emphasis added). The particular needs of

schoolchildren, including their desire for inclusion in their schools’ communities, are

not coextensive with the needs of adults in those same places. See Durbrow, 887

F.3d at 1191 (“[T]he IDEA does not entitle adult employees and visitors to an

individualized special education.”) In sum, an adult at the school could not have

made a grievance identical to D.L.’s and therefore, the answer to the second

question in the Fry test is also no.

C. D.L.’s focus on the HCSB’s disciplinary policies and practices—

rather than specific instances of abusive conduct carried out by a

teacher or principal—tie his claims against the HCSB to the

provision of a FAPE.

In D.L.’s response to the HCSB’s Motion to Dismiss, he notes that his “claims

do not seek relief for the denial of a FAPE” because “[u]tilizing isolation, seclusion,

excessive force, and excessive restraints through use of handcuffs against a child

with disabilities to force compliance to the demands of those in authority is not a

unique form of disability discrimination limited to a school setting.” (Doc. 36 at 7.)

Specifically, D.L. contends that the harms to a child from such disciplinary tactics

do “not result from a denial of access to a ‘free appropriate public education’; the

harm results from the physical, emotional, traumatic injuries suffered by the child

that an IEP cannot remedy.” (Id.)

At this juncture, it is important to reiterate that D.L.’s claims against the

HCSB do not revolve around specific instances of violence carried out by HCSB

personnel, but rather, the HCSB’s general “policy and practice” with regard to

school discipline. (See Doc. 42 at ¶¶ 56–57.) That is, D.L. does not assert “a claim

involving physical abuse of a disabled student by a teacher, acting out of animus or

frustration” which, per the Supreme Court in Fry, is “unlikely to involve the

adequacy of special education.” See N.P. by Perillo v. Sch. Bd. of Okaloosa Cnty.,

Fla., No. 3:18-cv-453-MCR-HTC, 2019 WL 4774037, at *14 (N.D. Fla. Sept. 30,

2019) (quoting Fry, 137 S.Ct. at 756 n.9). Instead, D.L. challenges the HCSB’s

failure to ensure compliance with Fla. Stat. § 1003.573. (See Doc. 42 at ¶ 23.)

Meanwhile, the claims alleging specific instances of discriminatory physical abuse

are against the HCSO, Sheriff Nienhuis, and Deputy Smith, not the HCSB. (Id. at

¶¶ 37–54.)

The substance of D.L.’s claims against the HCSB pertain to the adequacy of

the special education provided to him, not the specific conduct of school personnel.

For example, D.L. pleads that “[i]nstead of providing reasonable modifications such

as crisis intervention, de-escalation, patience, and waiting, Defendant HCSB,

including school personnel, escalated encounters with Plaintiff and subjected him to

unnecessary seclusion, excessive physical restraint including handcuffing.” (Id. at

¶¶ 63–66.) Policies and practices which tend to escalate encounters with school

resource officers and subject students to instances of excessive force at the hands of

SROs deal with the routine discipline of students and are therefore related to the

HCSB’s educational responsibilities. See Honig v. Doe, 484 U.S. 305, 322–25 (1988)

(explaining that the disciplinary exclusion of disabled students from the classroom

based on those students’ disability-related misconduct is clearly linked to those

students’ abilities to have their educational needs met).

In sum, D.L.’s contention that because the school policies at issue here deal

with discipline, they must be considered separate and distinct from the provision of

a FAPE, is misguided. (Doc. 36 at 6–8.) Insofar as they are directed towards

keeping D.L. in the classroom, the requested modifications to the HCSB’s

disciplinary policies and practices could be addressed via his IEP. Accordingly, D.L.

was required to exhaust his administrative remedies before bringing claims in this

Court against the HCSB.

D. Though he was required to exhaust his administrative remedies

under the IDEA, D.L. has failed to do so.

Under the IDEA, plaintiffs may exhaust such remedies by 1) examining all

relevant records pertaining to the evaluation and educational placement of their

child, 2) requesting prior written notice when the agency proposes, or refuses, to

change the child’s placement, 3) presenting complaints concerning any aspect of the

agency’s handling of a free appropriate public education, and 4) requesting an

opportunity for an “impartial due process hearing” with respect to any such

complaints. N.B., 84 F.3d at 1378. The rationale behind this requirement is to (1)

allow administrators to exercise their discretion and expertise on issues that

requires these characteristics; (2) establish a full a factual record before court

review; (3) prevent a disregard of agency rules and procedures articulated by

Congress; and (4) limit unnecessary judicial involvement. Id. at 1379. If the

plaintiff is dissatisfied by the decisions made after the impartial due process

hearing and wishes to seek relief from a federal court, before doing so, he must first

proceed through an administrative hearing and receive a final decision from an

administrative judge. See Durbrow, 887 at 1191 (citing 20 U.S.C. § 1415(i)(2)(A))

(“In order to properly exhaust a claim that seeks relief for the denial of a free

appropriate public education, the claim must proceed through an administrative

hearing and receive a final decision from an administrative judge before review may

be sought from a federal district court.”).

The operative complaint does not make any claims regarding the exhaustion

of D.L.’s administrative remedies. It fails to allege that D.L. presented his

grievances to the HCSB or anyone at Winding Waters Elementary School,

requested an impartial due process hearing, or sought an administrative hearing

before filing suit here. D.L. does not allege that the HCSB could not address his

claims by voluntarily changing its procedures or by willingly paying him damages.

D.L. also has not demonstrated that relief could not be granted through an

administrative judge or through deliberations between the parties. Finally, D.L.

has made no allegation that an administrative remedy would be somehow futile or

inadequate.

For those reasons, D.L. failed to exhaust all administrative remedies before

bringing this lawsuit, as required by the IDEA, and accordingly, his claims against

the HCSB are due to be dismissed.

CONSLUSION

For the foregoing reasons, the Court finds that D.L. was required to exhaust

his administrative remedies prior to bringing this ADA disability discrimination

lawsuit against the HCSB. Because he failed to do so, his claims against the HCSB

are due to be dismissed.

Accordingly, it is ORDERED:

(1) Defendant HCSB’s Motion to Dismiss (Doc. 29), which the Court construes

as relating to Counts III and IV of the Amended Complaint (Doc. 42), is

GRANTED;

(2) Plaintiff’s claims against the HCSB as set forth in Counts III and IV of

the Amended Complaint (Doc. 42) are DISMISSED without prejudice;

(3) In the event Plaintiff has exhausted his administrative remedies under

the IDEA, Plaintiff is granted leave to file a second amended complaint

within twenty (20) days of the entry of this Order; and

(4) If no second amended complaint is filed within twenty (20) days of the

entry of this Order, then the Clerk of Court is directed to terminate the

Hernando County School Board as a party in this case.

ORDERED at Tampa, Florida on November 8, 2022.

LAD. Challe

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE

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