DOE v. VINELAND CITY BOARD OF EDUCATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

M.D. and S.H., individually No. 1:19-cv-12154-NLH-MJS

and on behalf of their minor

child L.D., OPINION

Plaintiffs,

v.

VINELAND CITY BOARD OF

EDUCATION d/b/a VINELAND CITY

PUBLIC SCHOOLS; NEW JERSEY

DEPARTMENT OF EDUCATION;

KEVIN DEHMER, Interim

Commissioner of Education;

NEW JERSEY OFFICE OF

ADMINISTRATIVE LAW; KATHLEEN

CALEMMO, Administrative Law

Judge, DEAN J. BUONO,

Administrative Law

Judge; and DOES 1-250,

SIMILIARLY SITUATED

ADMINISTRATIVE LAW

JUDGES,

Defendants.

ROBERT CRAIG THURSTON

THURSTON LAW OFFICES LLC

100 SPRINGDALE ROAD A3

PMB 287

CHERRY HILL, NJ 08003

Counsel for Plaintiffs.

KERRY SORANNO

STATE OF NEW JERSEY

OFFICE OF THE ATTORNEY GENERAL

25 MARKET STREET - P.O. BOX 112

TRENTON, NJ 08625

Counsel for the State Defendants.

JAY D. BRANDERBIT

KENT & MCBRIDE, P.C.

1617 JFK BOULEVARD

SUITE 1140

PHILADELPHIA, PA 19103

Counsel for Vineland City Board of Education.

HILLMAN, District Judge

Currently before the Court is the State Defendants’1 Motion

to Dismiss Plaintiffs’2 Complaint (ECF 49). For the reasons that

follow, the State Defendants’ motion will be granted in part and

denied in part.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

For purposes of this motion, the Court takes the facts

alleged in the complaint as true and will only recount those

salient to the instant motion. L.D. is a disabled child who was

receiving special education services from Vineland City Public

Schools (“VPS”). (ECF 26 at 50). Plaintiffs allege that L.D.

was diagnosed with Attention Deficit Hyperactivity Disorder

along with other neurological disorders when he was in the first

grade. (Id.) At that time, because L.D.’s parents felt that he

1 The State Defendants are the New Jersey Department of Education

(the “NJDOE”), the New Jersey Office of Administrative Law (the

“OAL”), the Commissioner of Education, Kathleen Calemmo,

Administrative Law Judge, Dean J. Buono, Administrative Law

Judge and DOEs 1-250, Similarly Situated Administrative Law

Judges. (See ECF 49).

2 Plaintiffs are M.D. and S.H., individually and on behalf of

their minor child L.D. (See generally ECF 26).

was not getting the proper educational services at the public

elementary school, they sent him to a charter school in the

area. (Id. at 50-51). L.D. struggled at the charter school and

his parents re-enrolled him in the public elementary school when

he reached the fifth grade. (Id.) However, L.D. was provided

with a similar education plan as the one he received at the

charter school and struggled academically. (Id.) Though VPS

held an Initial Identification and Evaluation Planning session

with Plaintiffs and recorded that L.D. had some disabilities,

VPS refused to consider L.D. for special education despite

multiple requests. (Id. at 51-53). When VPS finally agreed to

evaluate L.D., they still refused to provide special education

and suggested that L.D.’s parents speak to him about his

struggles. (Id. at 53). Plaintiffs allege that the evaluation

that was provided fell grossly short of the legal standard for

such evaluations. (Id. at 55). After continued failed efforts

to get VPS to address their concerns, Plaintiffs removed L.D.

from VPS and placed him in a private program, where he greatly

improved his academic performance. (Id. at 60-61).

On June 28, 2018, Plaintiffs filed a due process complaint

against VPS with the NJDOE. (Id.) VPS never responded to the

complaint, and it was later transferred to the OAL for a

hearing. (Id.) Plaintiffs allege that though they were

entitled to a hearing within approximately ten days of that

transmittal, ALJ Buono held a settlement conference instead.

(Id.) Thereafter, because the parties did not settle, the

matter was transferred to ALJ Calemmo to hold a hearing, who set

the hearing date for months out into the future, despite there

being no adjournment request by the parties. (Id. at 62).

Plaintiffs allege that ALJ Calemmo issued her opinion 209 days

after their case was transmitted to the OAL and 60 days after

the last hearing was held. (Id.) Plaintiffs also generally

allege that the ALJs were not properly trained and supervised by

the NJDOE and OAL in order to be able to carry out their

responsibilities under the law. (See id. at 122).

Plaintiffs originally filed this case against VPS on May 6,

2019. (ECF 1). On October 23, 2020, Plaintiffs amended the

complaint to include the State Defendants. (ECF 26). The

operative complaint added various counts against some or all of

the State Defendants. They are Count I (legal error on the

standard of FAPE in violation of the IDEA by ALJ Calemmo); Count

III (procedural violations of the IDEA by ALJ Calemmo); Count IV

(other legal errors of ALJ Calemmo against the OAL and ALJ

Calemmo); Count VIII (systemic violation of the 10 Day

Peremptory Hearing Date rule by the State Defendants); Count IX

(systemic violation of the adjournment rule by the State

Defendants); Count X (systemic violation of the access to

records procedural safeguards by the State Defendants); Count XI

(systemic violation of discovery rules by the State Defendants);

Count XII (systemic violation of the rules of evidence by the

State Defendants); Count XIII (systemic violation of New Jersey

regulations in special education cases by the State Defendants);

Count XIV (systemic violation of hearing officer qualifications

by the NJDOE, the OAL, ALJ Buono, ALJ Calemmo, and Doe ALJs);

Count XV (systemic violation of the independence of the

adjudicating body of special education disputes by the State

Defendants); Count XVI (federal preemption against the State

Defendants); Count XVII (violation of § 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq., by the

NJDOE, the OAL, ALJ Buono, and ALJ Calemmo); Count XVIII

(violation of Title II of the Americans with Disabilities Act of

1990, 42 U.S.C. § 12101 et seq. (the “ADA”) by the NJDOE, the

OAL, ALJ Buono, and ALJ Calemmo); Count IXX (systemic civil

rights violations under 42 U.S.C.§ 1983 by the State

Defendants); Count XX (systemic violation of the 45 Day Rule as

Denial of FAPE by the State Defendants); and Count XXI

(procedural violations of the IDEA by the State Defendants).

Instead of attacking the complaint count by count, the

State Defendants organize their motion to dismiss around certain

legal theories and arguments. Thus, the Court will address the

motion to dismiss by proceeding through the State Defendants’

arguments in the order that they are raised.

BACKGROUND

I. The IDEA

Though Plaintiffs state claims under laws other than the

IDEA, the thrust of their complaint revolves around the

defendant’s failure to honor their responsibilities under the

IDEA. Therefore, the Court will provide some color on the IDEA

as a statutory and regulatory scheme. Congress enacted the IDEA

to, among other things, ensure “the rights of children with

disabilities and parents of such children are protected[.]” 20

U.S.C. § 1400(d)(1)(A)-(B). The IDEA requires that every child

with a disability receive a free appropriate public education (a

“FAPE”) from their public school if that school receives federal

funding under the IDEA. Id. at § 1412(a)(1)(A); 34 C.F.R. §

300.101(a). The term “free appropriate public education” means

the provision of “special education and related services” that

meet certain criteria. 20 U.S.C. § 1401(9). The IDEA also

guarantees parents of disabled children a right to participate

in the educational programming offered to their children.

To ensure that public schools adequately provide a FAPE and

that the rights of disabled students and their parents are not

infringed, Congress enacted various “procedural safeguards” that

participating public schools must comply with. Id. at §

1412(6)(A); id. at § 1415(a). One such procedural safeguard

provides standards for adjudicating disputes about whether a

school has adequately provided a FAPE. Per Congress’

requirements, these disputes begin with the filing of a “due

process petition” or “due process complaint.” Either the public

school or the child may file a due process complaint, and that

complaint may seek relief with respect to “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.” Id. at § 1415(b)(6).

The IDEA contemplates that it is the State Educational

Agency that is responsible for ensuring fair and impartial

procedures in place to handle any due process petition. Id. at

§1415 (f)(1)(A) (“Whenever a complaint has been received under

subsection (b)(6) or (k), the parents or the local educational

agency involved in such complaint shall have an opportunity for

an impartial due process hearing, which shall be conducted by

the State educational agency or by the local educational agency,

as determined by State law or by the State educational

agency.”); id. at §1415(e)(1) (“Any State educational agency or

local educational agency that receives assistance under this

subchapter shall ensure that procedures are established and

implemented to allow parties to disputes involving any matter.”)

Once a due process complaint has been filed, Congress has set

strict deadlines by which certain events must occur. See Id. at

§ 1415(f)(1)(B)(ii) (referencing timelines “applicable [to] a

due process hearing”); 34 C.F.R. § 300.515(a) (setting forth a

strict timeframe for due process petition resolution); N.J.A.C.

6A:14-2.7(j) (same).

Beginning with the date the due process complaint is filed,

the parties have thirty days within which to settle or otherwise

resolve the dispute to the satisfaction of the parent and child.

See 20 U.S.C. § 1415(f)(1)(B); 34 C.F.R. § 300.510(b). This

period is referred to as the “resolution period.” If the case

is not resolved during the resolution period, it may proceed to

a hearing. Congress has called these “due process hearings.”

In New Jersey, “[a] due process hearing is an administrative

hearing conducted by an administrative law judge” in the OAL.

N.J.A.C. 6A:14-2.7(a). “If the local educational agency has not

resolved the complaint to the satisfaction of the parents within

30 days of the receipt of the complaint, the due process hearing

may occur, and all of the applicable timelines for a due process

hearing under this subchapter shall commence” 20 U.S.C. §

1415(f)(1)(B)(ii); 34 C.F.R. § 300.510(b); see N.J.A.C. 6A:14-

2.7(j) (“A final decision shall be rendered by the

administrative law judge . . . after the conclusion of the

resolution period”). Once the 30-day resolution period ends,

federal regulations require that due process petitions be

decided by hearing officers within 45 days, unless either party

requests specific adjournments. 34 C.F.R. § 300.515(a) (states

receiving federal funding “must ensure that not later than 45

days after the expiration of the 30 day period under §

300.510(b) . . . (1) A final decision is reached in the hearing;

and (2) A copy of the decision is mailed to each of the

parties.”). New Jersey’s Administrative Code contains a similar

requirement. N.J.A.C. 6A:14-2.7(j) (“[a] final decision shall

be rendered by the administrative law judge not later than 45

calendar days after the conclusion of the resolution period[.]”)

Both federal and New Jersey State law permit “specific

adjournments” to be granted “at the request of either party”

which will effectively toll the 45-day period within which a

decision must be entered. See N.J.A.C. 6A:14-2.7(j) (45-day

period may only be extended if “specific adjournments are

granted by the administrative law judge in response to requests

by either party to the dispute”); 34 C.F.R. § 300.515(c) (“[a]

hearing or reviewing officer may grant specific extensions of

time beyond the periods set out in paragraphs (a) and (b) of

this section at the request of either party.”). No other delays

are contemplated. Therefore, if no specific adjournments are

requested by the parties, a final decision must be rendered

within 45 days after the end of the 30-day resolution period.

34 C.F.R. § 300.515(a); N.J.A.C. 6A:14-2.7(j). The Court refers

to this requirement as the “45 Day Rule.” With that overview,

the Court turns to Plaintiffs’ allegations.

DISCUSSION

I. Subject Matter Jurisdiction

This Court exercises subject matter jurisdiction pursuant

to 28 U.S.C. § 1331 and § 1367.

II. Standard of Review

When considering a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted

pursuant to Federal Rule of Civil Procedure 12(b)(6), a court

must accept all well-pleaded allegations in the complaint as

true and view them in the light most favorable to the plaintiff.

Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well

settled that a pleading is sufficient if it contains “a short

and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations, a

plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a

cause of action will not do . . . .” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (alteration in original)

(citations omitted) (first citing Conley v. Gibson, 355 U.S. 41,

47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc.,

40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v.

Allain, 478 U.S. 265, 286 (1986)).

To determine the sufficiency of a complaint, a court must

take three steps: (1) the court must take note of the elements a

plaintiff must plead to state a claim; (2) the court should

identify allegations that, because they are no more than

conclusions, are not entitled to the assumption of truth; and

(3) when there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement for relief. Malleus v.

George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 664, 675, 679 (2009) (alterations,

quotations, and other citations omitted).

A district court, in weighing a motion to dismiss, asks

“not whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claim.”

Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416

U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“Our

decision in Twombly expounded the pleading standard for ‘all

civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d

203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in

the coffin for the ‘no set of facts’ standard that applied to

federal complaints before Twombly.”). “A motion to dismiss

should be granted if the plaintiff is unable to plead ‘enough

facts to state a claim to relief that is plausible on its

face.’” Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at

570).

A court in reviewing a Rule 12(b)(6) motion must only

consider the facts alleged in the pleadings, the documents

attached thereto as exhibits, and matters of judicial notice.

S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,

181 F.3d 410, 426 (3d Cir. 1999). A court may consider,

however, “an undisputedly authentic document that a defendant

attaches as an exhibit to a motion to dismiss if the plaintiff’s

claims are based on the document.” Pension Benefit Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.

1993). If any other matters outside the pleadings are presented

to the court, and the court does not exclude those matters, a

Rule 12(b)(6) motion will be treated as a summary judgment

motion pursuant to Rule 56. Fed. R. Civ. P. 12(b).

Rule 12(b)(1) governs the State Defendants’ motion to the

extent it challenges Plaintiffs’ action on standing and immunity

grounds. “A challenge to subject matter jurisdiction under Rule

12(b)(1) may be either a facial or a factual attack.” Davis v.

Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). “The former

challenges subject matter jurisdiction without disputing the

facts alleged in the complaint, and it requires the court to

‘consider the allegations of the complaint as true.’” Id.

(quoting Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d

Cir. 2006)). A factual challenge attacks the allegations

underlying the complaint’s assertion of jurisdiction, “either

through the filing of an answer or ‘otherwise present[ing]

competing facts.’” Id. (quoting Constitution Party of Pa. v.

Aichele, 757 F.3d 347, 358 (3d Cir. 2014)).

The Court of Appeals for the Third Circuit has held that

motions to dismiss for lack of standing are best understood as

facial attacks. In re Schering Plough Corp. Intron/Temodar

Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012)

(“Defendants’ Rule 12(b)(1) motions are properly understood as

facial attacks because they contend that the [a]mended

[c]omplaints lack sufficient factual allegations to establish

standing.”). In assessing a facial attack on subject matter

jurisdiction under Rule 12(b)(1), courts must apply the familiar

12(b)(6) standard. Id. (“In evaluating whether a complaint

adequately pleads the elements of standing, courts apply the

standard of reviewing a complaint pursuant to a Rule 12(b)(6)

motion to dismiss for failure to state a claim”); see also

Baldwin v. Univ. of Pittsburgh Med. Ctr., 636 F.3d 69, 73 (3d

Cir. 2011) (“A dismissal for lack of statutory standing is

effectively the same as a dismissal for failure to state a

claim.”). Guided by In re Schering Plough and Baldwin, the

Court finds it must apply the 12(b)(6) standard to Defendants’

jurisdictional arguments.

III. Analysis

a. Failure to Show Violation of the IDEA or New Jersey

Regulations by the State Defendants

The State Defendants move to dismiss the claims that

revolve around their alleged violation of the IDEA on the

grounds that Plaintiffs have failed to state claims. The State

Defendants argue that they have sufficient procedures in place

to comply with the IDEA and Plaintiffs’ complaint is really just

venting their discontent with the ALJ’s decision. With respect

to Count VIII and IX, they argue that there is no rule that a

due process hearing must be conducted within ten days of a

case’s transmittal from the NJDOE to the OAL and that settlement

is encouraged under the IDEA.

It may be true that settlement may be encouraged under the

IDEA, but in making that argument the State Defendants skirt the

fact that the New Jersey Regulations do provide that the first

hearing should be approximately ten days after transmittal.

N.J.A.C. § 1:6A-9.1(a) (“Upon unsuccessful conclusion of the

resolution process or mediation, as provided in N.J.A.C. 6A:14–

2.7, the representative of the Office of Special Education

Programs shall immediately contact the Clerk of the Office of

Administrative Law and the Clerk shall assign a peremptory

hearing date. The hearing date shall, to the greatest extent

possible, be convenient to all parties but shall be

approximately 10 days from the date of the scheduling call.”).

Plaintiffs allege that they did not receive a hearing anywhere

close to ten days after the transmittal of their case to the OAL

— instead they received a settlement conference. That is more

than enough to state a plausible claim at this juncture.

Similarly, the State Defendant’s attack on Count IX

alleging a violation of the adjournment rule completely misses

the fact that the IDEA only allows adjournments at the request

or consent of the parties and Plaintiffs allege that there was

no request or consent to some of the lengthy adjournments. 34

C.F.R. § 300.515(a); (ECF 26 at 63).

In the same vein, Plaintiffs have adequately pled in Count

X that the procedures provided by the State Defendants did not

adequately protect their discovery rights by not requiring VPS

to provide discovery at least five days before the hearing. The

State Defendants are right that there is no rule or regulation

that specifically states that discovery must be exchanged five

days before the hearing without exceptions. But in so arguing

they miss the forest for the trees and the plain letter of the

applicable regulations. The IDEA makes clear that discovery

should be exchanged freely and without delay before a hearing

and that such disclosure occur not closer that five days before

the hearing date. See 20 U.S.C. § 1415(f)(2)(A) (“Not less than

5 business days prior to a hearing conducted pursuant to

paragraph (1), each party shall disclose to all other parties

all evaluations completed by that date, and recommendations

based on the offering party's evaluations, that the party

intends to use at the hearing.”); id. at § 1415(b)(1) (the

procedures put in place by the state must provide “[a]n

opportunity for the parents of a child with a disability to

examine all records relating to such child[.]”); 34 C.F.R. §

300.613 (“The agency must comply with a [discovery] request

without unnecessary delay[.]”)

New Jersey regulations mirror the federal regulations as

they should. See N.J.A.C. § 1:6A-10.1(c) (“Upon application of

a party, the judge shall exclude any evidence at hearing that

has not been disclosed to that party at least five business days

before the hearing, unless the judge determines that the

evidence could not reasonably have been disclosed within that

time.”). Further, the thrust of Count X is directed toward the

State Defendants’ overall failure to facilitate discovery in a

timely manner. Plaintiffs identify issues with specific

discovery requests and the delays that the State Defendants

allegedly facilitated.3 (ECF 26 at 100).

3 Plaintiffs’ allegations that the State Defendants violated New

Jersey law on discovery, evidence, and generally the procedures

set forth on due process hearings (Counts XI-XIII) are

sufficiently supported factually and by specific references to

the relevant provisions of the New Jersey Administrative Code.

See N.J.A.C. 6A:14-2.7(j) (45-day period may only be extended if

In addition, Plaintiffs have adequately pled that the State

Defendants failed to ensure the independence of the OAL (Count

XV) and that ALJs were adequately trained (Count XIV). The IDEA

requires both that the due process hearing be conducted by an

impartial hearing officer and that the state receiving federal

funds under the IDEA put in place procedures to make sure that a

fair hearing is conducted. 20 U.S.C. § 1415(f)(3); 34 C.F.R. §

300.511; and N.J.A.C. § 6A:14-2.7(k).

Plaintiffs have alleged that the OAL is so emmeshed in the

NJDOE that they have not been able to get a fair and impartial

hearing. They also have alleged that the training of the ALJs

assigned to due process hearings is so lacking that it violates

the requirement that the hearings be conducted by an ALJ with

requisite skill and knowledge so as to be capable of rendering a

timely decision. See 34 C.F.R. § 300.515(a) (states receiving

federal funding “must ensure that not later than 45 days after

the expiration of the 30 day period under § 300.510(b) . . . (1)

A final decision is reached in the hearing; and (2) A copy of

the decision is mailed to each of the parties.”).

The NJDOE has the overarching responsibility to ensure that

the procedures for due process hearings run smoothly without

“specific adjournments are granted by the administrative law

judge in response to requests by either party to the dispute”);

N.J.A.C. § 1:6A-1.1(a)(identifying evidentiary rules); N.J.A.C.

§ 1:6A-10.1(d) (outlining discovery rules).

actually adjudicating disputes itself. The IDEA is organized

such that the ALJs who conduct the due process hearings may not

be NJDOE employees. 20 U.S.C. §1415 (f)(3)(A)(i). But that

very same statute makes clear that it is the NJDOE who is

responsible for the infrastructure that creates such impartial

due process hearings. Id. at §1415(f)(1)(A) (“Whenever a

complaint has been received under subsection (b)(6) or (k), the

parents or the local educational agency involved in such

complaint shall have an opportunity for an impartial due process

hearing, which shall be conducted by the State educational

agency or by the local educational agency, as determined by

State law or by the State educational agency.”) Plaintiffs have

outlined the training deficiencies of the ALJs and the ways that

the OAL and the NJDOE are intertwined with sufficient facts to

survive a motion to dismiss. (ECF 26 at 123 (“Upon information

and belief, none of the ALJs receive any training on IDEA, its

regulations, and the New Jersey regulations for special

education due process cases. This is the fault of both NJDOE and

the OAL as neither provides any training.”); id. at 128 (“Since

the budget and salaries of NJDOE and OAL employees are subparts

of and determined by the larger budget of the executive branch,

they are beholden to the same pot of money. This creates a

personal and/or professional interest that conflicts with the

ALJ’s objectivity in special education due process hearings.”))

The Court renders no opinion as to whether these allegations

will ultimately be meritorious, only that they are sufficiently

pled to survive a motion to dismiss.

The State Defendants also argue that Plaintiffs have not

shown a systemic violation of the IDEA.4 The Court disagrees.

First, the State Defendants seem to be overstating the pleading

standard, arguing that Plaintiffs must “demonstrate” and “prove”

their claims at this time. (ECF 49 at 1, 16). Plaintiffs need

only state a plausible claim. Malleus, 641 F.3d at 563.

Second, to the extent that the State Defendants are suggesting

that an individual plaintiff cannot prove a systemic violation,

that argument misstates caselaw and fails to understand the

scope of Plaintiffs’ allegations. Reinholdson v. Minnesota, 346

F.3d 847, 851 (8th Cir. 2003) (“[T]rials of those individual

claims may expose issues of systemic violation[.]”) The

touchstone of a systemic violation is that it cannot be remedied

by the administrative process because the issue is so pervasive.

Brach v. Newsom, 2020 WL 6036764, at *8 (C.D. Cal. Aug. 21,

2020) (“A plaintiff alleging a systemic violation is not

entitled to an exception if “it involves only a substantive

claim having to do with limited components of a program, and if

the administrative process is capable of correcting the

4 The State Defendants specifically tie this argument to Counts

XI-XIII, but seem to be making a more global point about the

pleading of systemic violations. (ECF 49 at 14).

problem.”) Plaintiffs have alleged that the problems in how

their due process matter was handled was rooted in widespread

issues that make the system in place futile to remedy their

concerns. (See ECF 26 at 105). Discovery on their individual

matter certainly could bear out their concerns.5

b. Whether Plaintiffs’ IDEA Claims Against State Officials

Must be Dismissed.

The State Defendants’ argument that the counts alleging

violation of the IDEA against state officials must be dismissed

because the IDEA does not allow claims against individual

officials has some support in case law. See Taylor v. Altoona

Area Sch. Dist., 513 F. Supp. 2d 540, 553 (W.D. Pa. 2007)

(discussing the IDEA and stating, “The United States Court of

Appeals for the Third Circuit has recognized that Congress does

not normally seek to impose liability on individuals when it

places conditions on the receipt of federal funds by entities

that employ such individuals.”) (citing Emerson v. Thiel

College, 296 F.3d 184, 190 (3d Cir.2002)); R.S. v. Glen Rock Bd.

of Educ., No. 14-CV-0024 SRC, 2014 WL 7331954, at *5 (D.N.J.

Dec. 19, 2014).

That said, this Court acknowledges that “in many

5 The State Defendants argue that Plaintiffs have not plausibly

pled any procedural violation for Count III. (ECF 49 at 13).

As explained below, the Court will dismiss Count III with

respect to the ALJ defendant on the grounds of judicial

immunity. Count III otherwise only names VPS, who has not moved

to dismiss the claim.

circumstances it is appropriate for a plaintiff to assert IDEA

and Rehabilitation Act claims against individuals in their

‘official capacities’ as school administrators, school district

personnel, or school board members[.]” New Jersey Prot. &

Advoc., Inc. v. New Jersey Dep't of Educ., 563 F. Supp. 2d 474,

492 (D.N.J. 2008). To be sure, the court in New Jersey Prot. &

Advoc., Inc., ended up dismissing the claims against the

individuals named in their official capacities as duplicative of

the claims against the state. Id. It may indeed be the case

that such claims will turn out to be duplicative in this matter,

but at this early stage in litigation, the Court is not prepared

to dismiss the claims against the individual defendants on this

ground. With the scope of the liability, if any, that may

actually fall to the NJDOE and the OAL unresolved at this point

in litigation, the Court will not dismiss the claims against the

individual defendants as duplicative. P.V. ex rel. Valentin v.

Sch. Dist. of Philadelphia, 2011 WL 5127850, at *12 (E.D. Pa.

Oct. 31, 2011) (“While some courts have dismissed claims against

individual, official capacity defendants as redundant, they have

done so after satisfying themselves that the remaining entity

defendant(s) were willing to take responsibility for the

individual defendants' action.”)

c. Whether the ALJs Are Entitled to Judicial Immunity.

The State Defendants argue that the ALJs sued in this

matter are protected by judicial immunity and the Court agrees.

Plaintiffs’ principal argument against this is that the law does

not recognize judicial immunity for state ALJs. (ECF 51 at 37-

38). At least one panel of the Third Circuit has recognized

judicial immunity for a state official acting in the capacity of

an ALJ. Savadjian v. Caride, 827 F. App'x 199, 202 (3d Cir.

2020). In addition, judicial immunity as a doctrine has been

understood to broadly insulate judicial officers for their acts

taken in a judicial capacity. See Kaul v. Christie, 372 F.

Supp. 3d 206, 246 (D.N.J. 2019) (“Absolute judicial immunity

applies to all claims, whether official-capacity or personal-

capacity, that are based on judicial acts,” which includes

administrative law judges, and the immunity is only stripped for

“nonjudicial actions” and “actions, though judicial in nature,

taken in the complete absence of all jurisdiction.”) (citing

Mireles v. Waco, 502 U.S. 9, 12 (1991); Dongon v. Banar, 363 F.

App'x 153, 155 (3d Cir. 2010); Raffinee v. Comm'r of Soc. Sec.,

367 F. App'x. 379, 381 (3d Cir. 2010) (citing Butz v. Economou,

438 U.S. 478, 514 (1978)). Accordingly, the claims against the

ALJs will be dismissed with prejudice. Thompson v. Cobham, 2012

WL 2374724, at *2 (D.N.J. 2012) (citing Gary v. Gardner, 445 F.

App’x 465, 467 (3d Cir. 2011) (affirming dismissal with

prejudice of action barred by judicial immunity)).6

6 The Court will also dismiss Count IV against the OAL for

d. Whether Plaintiffs’ § 1983 Claims Must Be Dismissed.

The Court will dismiss the claims under § 1983 against the

NJDOE and the OAL with prejudice7 because they are arms of the

state, and the state as not waived its Eleventh Amendment

immunity. Docherty v. Cape May Cty., 2017 WL 3528979, at *4

(D.N.J. Aug. 15, 2017) (“Thus, the Court dismisses the § 1983

failure to state a claim. The provision of the IDEA allowing

appeal of the underlying administrative decision is clear that

the scope of any appeal is cabined by the allegations in the due

process complaint. 20 U.S.C.A. § 1415(h)(2)(A) (stating that

parties to a due process petition may appeal matters to the

district court that were determined based on the underlying due

process complaint). This is not to say that Plaintiffs do not

have other viable claims against the OAL only that the

administrative appeal is not one of them.

7 District courts “should freely give leave to amend when justice

so requires.” Schomburg v. Dow Jones & Co., 504 F. App'x 100,

103 (3d Cir. 2012) (citing Rule 15(a)(2)) (internal alterations

omitted). “Thus, leave to amend ordinarily should be denied

only when amendment would be inequitable or futile.” (Id.)

“[T]hese principles apply equally to pro se plaintiffs and those

represented by experienced counsel.” Alston v. Parker, 363 F.3d

229, 235 (3d Cir. 2004). “Futility ‘means that the complaint,

as amended, would fail to state a claim upon which relief could

be granted.’” Burtch v. Milberg Factors, Inc., 662 F.3d 212, 231

(3d Cir. 2011) (quoting Great W. Mining & Min. Co. v. Fox

Rothschild LLP, 615 F.3d 159, 175 (3d Cir. 2010)). Courts have

held amendment to be inequitable where the plaintiff already had

an opportunity to amend the complaint. Lake v. Arnold, 232 F.3d

360, 374 (3d Cir. 2000) (“[W]e are inclined to give the District

Court even broader discretion when, as here, the court has

already granted the requesting party an opportunity to amend its

complaint.”); McMahon v. Refresh Dental Mgmt., LLC, 2016 WL

7212584, at *11 (W.D. Pa. Dec. 13, 2016) (“The court need not

provide endless opportunities for amendment, especially where

such opportunity already has been enjoyed.”) (internal

alterations and quotation marks omitted). Here the Eleventh

Amendment serves as an absolute bar and amendment of the claims

would be futile.

and NJCRA claims for damages against Lanigan in his official

capacity, based on Eleventh Amendment immunity.”); Rashid v.

Lanigan, 2018 WL 3630130, at *10 (D.N.J. July 31, 2018)

(“Plaintiffs’ claims seeking declaratory relief as to, and

monetary damages from, Defendants in their official capacities

are dismissed with prejudice as barred by Eleventh Amendment

immunity[.]”)

And courts in this district have made clear that the NJDOE

and the OAL are arms of the state for Eleventh Amendment

purposes. Wright v. New Jersey/Dep't of Educ., 115 F. Supp. 3d

490, 494 (D.N.J. 2015) (“The Department of Education is

considered an arm of the state government for purposes of

determining sovereign immunity under the Eleventh Amendment.”);

ASAH v. New Jersey Dep't of Educ., 2017 WL 2829648, at *7

(D.N.J. June 30, 2017) (“For the purposes of the Eleventh

Amendment, the DOE is an arm of the state government.”);

Rodrigues v. Fort Lee Bd. of Educ., 458 F. App'x 124, 127 (3d

Cir. 2011) (“The Office of Administrative Law is a state agency.

. . and is thus immune from suit under the Eleventh

Amendment[.]” Because Eleventh Amendment immunity bars

Plaintiffs’ claims against the NJDOE and the OAL, the Court will

dismiss that count without leave to amend.

The Court will not, however, dismiss the claim against the

Commissioner at this time. An exception to the Eleventh

Amendment is a suit against an official in their official

capacity seeking prospective injunctive relief. While not

pleaded artfully, Plaintiffs’ complaint essentially asks the

Court to remedy the procedural problems with the dispute

resolution system so that Plaintiffs can get a fair result as

required under the law and perhaps bring other claims. (See ECF

26 at 146 (“Defendants have denied Plaintiffs their right to

timely assert other claims because of the delays and systemic

flaws.”)) Where there is an ongoing violation of federal law

and the relief is prospective, the Court may order it. Delaware

River Joint Toll Bridge Comm'n v. Sec'y Pennsylvania Dep't of

Lab. & Indus., 985 F.3d 189, 193-94 (3d Cir. 2021), cert. denied

sub nom. Berrier v. Delaware River Joint Toll Bridge Comm'n, 142

S. Ct. 109 (2021) (determining whether to grant the relief

“requires us to ‘conduct a straightforward inquiry into whether

the complaint alleges an ongoing violation of federal law’ and

whether it ‘seeks relief properly characterized as

prospective.’”) (quoting Verizon Md., Inc. v. Pub. Serv. Comm'n

of Md., 535 U.S. 635, 645 (2002)).

While the State Defendants are correct that the IDEA does

not allow Plaintiffs to use the IDEA to use § 1983 to remedy

violations of the IDEA, it does not bar suit under § 1983 based

on separate substantive rights. First, 20 U.S.C. § 1416(l)

states:

Nothing in this chapter shall be construed to restrict or

limit the rights, procedures, and remedies available under

the Constitution, the Americans with Disabilities Act of

1990, title V of the Rehabilitation Act of 1973, or other

Federal laws protecting the rights of children with

disabilities, except that before the filing of a civil

action under such laws seeking relief that is also

available under this subchapter, the procedures under

subsections (f) and (g) shall be exhausted to the same

extent as would be required had the action been brought

under this subchapter.

Subsection (l) specifically leaves open the avenue for

plaintiffs to sue based on other substantive laws if the relief

sought was distinct from what is available under the IDEA. A.W.

v. Jersey City Pub. Schs., 486 F.3d 791, 798 (3d Cir. 2007) (“By

preserving rights and remedies “under the Constitution,” section

1415 [(l)] does permit plaintiffs to resort to section

1983 for constitutional violations, notwithstanding the

similarity of such claims to those stated directly under IDEA.”)

(emphasis in original). Even though Plaintiffs mention

provisions of the IDEA as background for their § 1983 claim,

they cite to the Fourteenth Amendment as the underlying basis.8

(ECF 126 at 146). Courts have held that there is a property

interest in education and that therefore, prior to the

deprivation of such interest, a plaintiff must be provided with

a meaningful opportunity to be heard prior to the deprivation in

order to comport with the Fourteenth Amendment. Hamilton v.

8 Plaintiffs also cite to the Fourth Amendment without further

elaboration. And such claim will be dismissed without

prejudice.

Radnor Twp., 502 F. Supp. 3d 978, 990 (E.D. Pa. 2020) (“The

Fourteenth Amendment creates a guarantee of fair procedure

whereby an individual can assert that she was deprived of a

life, liberty, or property interest without due process of

law.”) (internal quotation marks omitted); Garcia v. Capistrano

Unified Sch. Dist., 2018 WL 6017009, at *12 (C.D. Cal. Mar. 30,

2018) (“Further, a plaintiff can bring a Section 1983 action

alleging the deprivation of procedural due process in state

special education administrative proceedings.”); K.A. ex rel.

J.A. v. Abington Heights Sch. Dist., 28 F. Supp. 3d 356, 367

(M.D. Pa. 2014) (noting property interest in public education);

Abernathy v. Indiana Univ. of Pennsylvania, 2013 WL 3200519, at

*1 (W.D. Pa. June 18, 2013) (noting the need for a meaningful

opportunity to be heard before the deprivation of education);

Dommel Properties, LLC v. Jonestown Bank & Tr. Co., 2013 WL

1149265, at *9 (M.D. Pa. Mar. 19, 2013) (“The fundamental

requirement of due process is the opportunity to be heard ‘at a

meaningful time and in a meaningful manner.”). Thus,

maintaining a separate claim under the Fourteenth Amendment to

be vindicated via § 1983 is in accordance with § 1415(l) so long

as the claim is ripe.9

9 See C.H. v. Cape Henlopen Sch. Dist., 606 F.3d 59, 73 n.13 (3d

Cir. 2010) (“As a matter of chronology, a state administrative

complaint could not seek relief for a due process violation that

had not yet occurred. Thus, any claim for deprivation of

e. Violation of § 504 and the ADA.

The NJDOE also moves to dismiss Count XVII, violation of §

504, and Count XVIII, violation of the ADA. They argue that

dismissal of Counts XVII and XVIII is appropriate because the

“amended complaint is utterly bereft of any factual allegations

that State Defendants denied Plaintiffs’ participation in or the

ability to receive the benefits of any State program or

activity, and it similarly fails to allege that they were

subject to discrimination under any program or activity (ECF 49

at 34). Plaintiffs counter that the State Defendants retaliated

against them for seeking to enforce L.D.’s education rights by

stonewalling the due process hearing procedures. (ECF 51 at

44).

To state a claim of violation Title II of the ADA or § 504,

“a plaintiff must show that he is a qualified individual with a

disability; that he was excluded from a service, program, or

activity of a public entity; and that he was excluded because of

his disability.” Disability Rts. New Jersey, Inc. v. Comm'r,

New Jersey Dep't of Hum. Servs., 796 F.3d 293, 301 (3d Cir.

2015); Furgess v. Pennsylvania Dep't of Corr., 933 F.3d 285, 288

(3d Cir. 2019) (noting that the substantive standards for both

procedural due process in the state administrative proceedings

cannot be redressed by the remedial provisions of the IDEA; the

aggrieved party must file a separate § 1983 action in the

District Court, supported by appropriate factual allegations.”)

claims are the same). The parties do not appear to dispute that

L.D. is a qualified individual with a disability. Rather, the

crux of the dispute is whether Plaintiffs were deprived of

something they otherwise were entitled to as a result of L.D.’s

disability. The complaint clearly outlines the NJDOE and OAL’s

responsibilities to provide impartial due process hearings and

that “[n]umerous actions taken by ALJs Buono and Calemmo were

made in retaliation for Plaintiffs exerting their legal rights

under IDEA[.]” (ECF 126 at 139). This, with the rest of the

allegations in the complaint, is enough to satisfy the Court

that Plaintiffs are entitled to proceed with their ADA and § 504

claims. Indeed, the Supreme Court has noted that an action may

lie for violation of the ADA and § 504 where the facts arise out

of an alleged violation of the IDEA. Fry v. Napoleon Cmty.

Sch., 137 S. Ct. 743, 750, 197 L. Ed. 2d 46 (2017) (“[T]he IDEA

does not prevent a plaintiff from asserting claims under such

laws even if. . .those claims allege the denial of an

appropriate public education (much as an IDEA claim would).”)

Plaintiffs’ complaint alleges that the NJDOE’s flawed procedures

pervaded the dispute resolution system to the extent that they

effectively barred L.D. from receiving the same educational

benefits as other children and retaliated against Plaintiffs for

trying to assert their rights. (See ECF 26 at 139).

The State Defendants characterize the allegations of

violation of § 504 and the ADA as conclusory, focusing on

statements like the above-quoted allegations. Plaintiffs

certainly could have pled their claims more artfully, neatly

tying together how the State Defendants’ flawed procedures

constituted discrimination or some sort of disparate impact in

compact phraseology. But this Court reads the allegations in

the complaint as a whole and the allegations read in that light

tell a story of due process procedures so deficient that

Plaintiffs were not able to place their child in the right

educational setting or seek relief without retaliation, a

benefit that non-disabled children were readily receiving.

Destro v. Hackensack Water Co., 2009 WL 3681903, at *2 (D.N.J.

Nov. 2, 2009) (“The Court must consider the Complaint in its

entirety and review the allegations as a whole and in context.”)

Thus, the Court will not dismiss the claims based on § 504 and

the ADA.

f. Whether Federal Preemption Applies

Plaintiffs assert a count for “federal preemption”,

contending that there “is a direct conflict between the scheme

under federal IDEA law for resolving special education disputes

and NJDOE’s system under the New Jersey Administrative Code for

how New Jersey handles special education disputes

as discussed at length in preceding allegations of this

Complaint.” (ECF 126 at 116.) The State Defendants argue that

Plaintiffs’ contention that the briefing schedule for motions

and the refusal by State Defendants to enforce the 10 day

Peremptory Hearing regulation both directly conflict with the

IDEA fails because neither conflicts with the IDEA. The State

Defendants argue that the IDEA and New Jersey regulations do not

provide for guidelines regarding motion practice in due process

hearings, and the 10-day rule is not contained in the IDEA.

Thus, the State Defendants argue that the IDEA cannot preempt

state law on these issues.

The Court finds that any conflicts between the State’s

procedures as they relate to the IDEA will be more appropriately

resolved after discovery regarding those procedures as a whole,

and a fuller record is provided upon which this Court may opine

on the viability of Plaintiffs’ federal preemption count. See,

e.g., Virtual Studios v. Couristan, Inc., 2011 WL 1871106, at *3

(D.N.J. 2011) (denying the defendant’s argument that the

plaintiff’s state law claim was preempted by federal copyright

law because the court was required to perform a qualitative

analysis to make that determination, and finding that it would

be in a far better position to make such a qualitative

assessment once the record in the matter had been more fully

developed, rather solely on the plaintiff’s complaint).

CONCLUSION

For the reasons expressed in this Opinion, the State

Defendants’ motion to dismiss (ECF 49) will be granted in part

and denied in part.

An appropriate Order will be entered.

Date: March 21, 2022 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.