Sorah v. Tipp City Exempted Village School District Board of Education

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ZACHERY SORAH, et a/., .

Plaintiffs,

V. : Case No. 3:19-cv-120

SCHOOL DISTRICT BOARD OF

EDUCATION, et a/., :

Defendants.

DECISION AND ENTRY SUSTAINING DEFENDANTS’ MOTION FOR

JUDGMENT ON THE PLEADINGS (DOC. #6); OVERRULING

PLAINTIFFS’ MOTION TO AMEND COMPLAINT (DOC. #11);

JUDGMENT TO ENTER IN FAVOR OF DEFENDANTS AND AGAINST

PLAINTIFFS; TERMINATION ENTRY

Plaintiff Zachery Sorah and his mother, Brandy Sorah, filed suit against Tipp

City Exempted Village School District Board of Education and its Superintendent,

Gretta Kumpf, Ph.D., seeking damages and injunctive relief under Title Il of the

Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12131 et seq., and

§ 504 of the Rehabilitation Act of 1973 ("8 504), 29 U.S.C. § 794 et seq.

This matter is currently before the Court on Defendants’ Motion for

Judgment on the Pleadings, Doc. #6, and on Plaintiffs’ Motion to Amend

Complaint, Doc. #11. For the reasons set forth below, the Court sustains the

Motion for Judgment on the Pleadings and overrules the Motion to Amend

Complaint.

I. Background and Procedural History

Zachery Sorah is a disabled young adult who graduated from Tipp City

Exempted Village School District in 2017. He has been diagnosed with a speech

impediment, auditory processing disorder, attention deficit disorder and poor

socialization skills. While he was a student, his disabilities were addressed under

an Individual Education Plan (“IEP”) and a Section 504 Plan.

This lawsuit arises out of events that took place during Zachery’s last

semester of his senior year of high school. On January 11, 2017, he was given a

3-day in-school suspension after tobacco and a vape pen were found in his car on

school property. Three months later, on April 20, 2017, he was given a 10-day

out-of-school suspension with a recommended 80-day expulsion after a wooden

pipe, rolling papers and empty tobacco wrappers were found in his car on school

property.

The expulsion hearing, conducted by Superintendent, Dr. Gretta Kumpf, and

Principal, Steve Verhoff, was held on April 27, 2017. According to Plaintiffs,

although Brandy reminded them of Zachery’s disabilities, there was no discussion

at that hearing of whether Zachery’s behavior might be related to his disabilities,

i.e., a “manifestation determination.” The following day, Dr. Kumpf agreed to hold

the 80-day expulsion in abeyance if Zachery complied with certain conditions upon

his return to school.

Plaintiffs allege that, when Zachery returned to school on May 4, 2017, his

schedule was reduced from seven periods to four periods. His classwork was self-

taught on the computer and he had to manage his own classes with little direction

or guidance from his teachers. The teachers assigned to his room were often

unfamiliar with the subject matter assigned to him. Contrary to his IEP and Section

504 Plan, he was not given visual supports or frequent checks of his

comprehension of the subject matter. In addition, he was escorted everywhere he

went in the school building, forbidden to socialize with other students and forced

to leave school to eat his lunch. He was also barred from attending the Senior

Prom, the Senior Father Luncheon, the Senior Awards Ceremony, Senior Picnic,

the Senior Sports Awards Ceremony, and varsity baseball games.

Zachery graduated from high school in late May of 2017. In April of 2019,

he and his mother, Brandy, filed suit against the Tipp City Exempted Village School

Board of Education and against Dr. Kumpf, alleging violations of Title Il of the ADA

and § 504 of the Rehabilitation Act. Doc. #1. They allege that “[als a result of

Defendants’ discriminatory and retaliatory actions, Zachery suffered a compromise

in his education.” /d. at PagelD#6. They also allege that Zachery was punished

more harshly than a non-disabled student who engaged in unlawful behavior. /d.

at PagelD#5.

Defendants have filed a Motion for Judgment on the Pleadings, Doc. #6.

Along with their memorandum in opposition to that motion, Doc. #10, Plaintiffs

filed a Motion to Amend Complaint, Doc. #11. The factual allegations in the

proposed Amended Complaint are largely the same, but Plaintiffs seek leave to add

a claim under 42 U.S.C. 8 1983 for an alleged violation of their Fourteenth

Amendment rights, and to explicitly assert a claim for damages against Dr. Kumpf

in her individual capacity. Both motions are fully briefed and ripe for decision.

ll. Defendants’ Motion for Judgment on the Pleadings (Doc. #6)

Title Il of the ADA provides that “no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or be denied

the benefits of the services, programs, or activities of a public entity, or be

subjected to discrimination by such entity.” 42 U.S.C. 8 12132. Count | of the

Complaint alleges that Defendants discriminated against Zachery on the basis of

his disability by denying him full and equal enjoyment of educational services, and

that Defendants punished him more harshly than a similarly-situated, non-disabled

student, all in violation of Title Il of the ADA. Doc. #1.

Section 504 of the Rehabilitation Act provides, in relevant part, that “[n]o

otherwise qualified individual with a disability . . . shall, solely by reason of her or

his disability, be excluded from the participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity receiving Federal financial

assistance.” 29 U.S.C. § 794(a). Count Il of the Complaint alleges that

Defendants violated 8 504 by excluding Zachery from participation in their

programs and activities, denying him the benefits of those programs and activities,

and subjecting him to discrimination on the basis of his disability. It further alleges

that Defendants engaged in retaliatory actions against Zachery and Brandy in

response to Brandy’s objections to the manner in which Zachery was being

treated. Doc. #1.

Both the ADA and 8 504 “authorize individuals to seek redress for violations

of their substantive guarantees by bringing suits for injunctive relief or money

damages.” Fry v. Napoleon Cmty. Schs., -U.S.-, 137 S. Ct. 743, 750 (2017).

Here, Plaintiffs seek both. They ask that “Defendants be enjoined from further

unlawful conduct,” and that “Plaintiffs be awarded compensatory damages,

including those relating to emotional distress.” Doc. #1, PagelD#8.

In their Motion for Judgment on the Pleadings, Defendants argue that: (1)

Brandy Sorah lacks standing to pursue claims under the ADA and § 504; (2) Dr.

Kumpf cannot be held individually liable under the ADA or § 504, and the claims

brought against her in her official capacity are redundant; and (3) Zachery’s ADA

and § 504 claims against the school board are subject to dismissal because he

failed to exhaust administrative remedies as required by the Individuals with

Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(I).

A. Fed. R. Civ. P. 12(c)

Motions for judgment on the pleadings under Federal Rule of Civil Procedure

12(c) are analyzed under the same standard as motions to dismiss under Federal

Rule of Civil Procedure 12(b)(6). See Warrior Sports, Inc. v. Nat‘l Collegiate

Athletic Ass'n, 623 F.3d 281, 284 (6th Cir. 2010). “For purposes of a motion for

judgment on the pleadings, all well-pleaded material allegations of the pleadings of

the opposing party must be taken as true, and the motion may be granted only if

the moving party is nevertheless clearly entitled to judgment.” JPMorgan Chase

Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (internal citation and

quotation marks omitted). However, the court need not accept as true legal

conclusions or unwarranted factual inferences. /d. (citing Mixon v. Ohio, 193 F.3d

389, 400 (6th Cir. 1999)).

To withstand a Rule 12(c)} motion for judgment on the pleadings, “a

complaint must contain direct or inferential allegations respecting all the material

elements under some viable legal theory.” Commercial Money Ctr., Inc. v. Illinois

Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). “The factual allegations in the

complaint need to be sufficient to give notice to the defendant as to what claims

are alleged, and the plaintiff must plead ‘sufficient factual matter’ to render the

legal claim plausible, £e., more than merely possible.” Fritz v. Charter Twp. of

Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting Ashcroft v. /qbal, 556 U.S.

662 (2009)). A “legal conclusion couched as a factual allegation” need not be

accepted as true, nor are recitations of the elements of a cause of action

sufficient. Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

As Defendants note in their reply brief, Plaintiffs’ Memorandum in

Opposition to the Motion for Judgment on the Pleadings contains numerous

additional factual allegations that are not contained in the Complaint. Because

these additional allegations are matters outside the pleadings, the Court cannot

consider them in ruling on Defendant’s motion. Johnson v. Metro. Gov't of

Nashville and Davidson Cty., Tenn., 502 F. App’x 523, 541-42 (6th Cir. 2012).

Moreover, Plaintiffs are not permitted to remedy pleading deficiencies through a

response brief. See Montesi v. Nationwide Mut. Ins. Co., 970 F. Supp. 2d 784,

792 (W.D. Tenn. 2013); Jocham v. Tuscola Cty., 239 F. Supp. 2d 714, 732 (E.D.

Mich. 2003). Accordingly, only the facts alleged in the Complaint will be

considered.

B. Brandy Sorah’s Standing

The first question is whether Brandy Sorah has standing to assert claims

under the ADA or § 504.' The ADA prohibits discrimination in the form of

retaliation “against any individual because such individual has opposed any act or

practice made unlawful by” the ADA. 42 U.S.C. § 12203(a). Likewise, it is

unlawful to retaliate against any person because such person has filed a complaint

or participated in a hearing under 8 504. 29 C.F.R. § 33.13. Because the ADA

and § 504 have “a similar scope and aim,” Brandy’s retaliation claims may be

analyzed together. A.C. ex rel. J.C. v. Shelby Cty. Bd. of Educ., 711 F.3d 687,

697 (6th Cir. 2013).

To establish a prima facie case of retaliation, Brandy must prove that she:

(1) engaged in activity protected under § 504 or the ADA; (2) Defendants knew of

the protected activity; (3) Defendants then took adverse action against her; and (4)

' As previously noted, Brandy’s son, Zachery, is no longer a minor. Accordingly,

she is not bringing these claims on his behalf, but rather is asserting her own

separate claims.

there was a causal connection between the protected activity and the adverse

action. /d. The burden would then shift to Defendants to prove that they had a

legitimate, non-discriminatory basis for the adverse action. Brandy would then

have to prove that the articulated reason was pretextual. /d.

It is undisputed that Brandy engaged in protected activity under § 504 and

the ADA by advocating on Zachery’s behalf, and that Defendants were aware of

her protected activity. The Complaint includes a long list of adverse actions that

Defendants allegedly took against Zachery following Brandy’s complaints. It is,

however, devoid of any allegations that Defendants took any adverse action

directly against her. The Complaint alleges only that “[a]s a result of Defendants’

discrimination and retaliation, Brandy was required to deal with her son’s reactions

to the treatment, including Zachery’s repeated threats to drop out of high school,

but also to miss significant time from work in order to attempt to advocate for her

son.” Doc. #1, PagelD##6-7.

Defendants argue that these consequential damages, in the form of lost

wages and emotional distress, are insufficient to confer standing on Brandy. The

Court agrees. In Burton v. Cleveland Heights— University Heights City School

District Board of Education, No. 1:17cv134, 2017 WL 4348915 (N.D. Ohio Sept.

29, 2017), the court held that a disabled student’s mother lacked standing to

pursue claims under 8 504 and the ADA based on violations of her daughter's

rights. The Complaint did not allege that the school district had discriminated

against the mother or retaliated against her. Rather, it alleged only that she

“suffered consequential damages, including pain, suffering, and emotional distress

as a result of Defendant’s actions.” /d. at *4. See also A.S. by R.D.S. v. Butler

Cty., 700 F. App’x 105, 109-110 (3d Cir. 2017) (holding that parents alleging

emotional distress stemming from violations of their chi/d’s rights lacked standing

to pursue their own claims under the ADA and 8 504).

Given that Brandy Sorah has failed to allege that Defendants took any

adverse action directly against her as a result of her advocacy, the Court concludes

that she lacks standing to pursue claims under the ADA and 8 504,

Cc. Dr. Kumpf’s Individual Liability Under ADA and § 504

The Complaint does not specify whether Dr. Gretta Kumpf is sued in her

official capacity as Superintendent of the Tipp City Exempted Village School

District, in her individual capacity, or both.

Defendants argue that, to the extent that Dr. Kumpf is sued in her official

capacity, the claims should be dismissed as redundant, given that her employer is

also sued. See Johnson v. Washington Cty. Career Ctr., No. 2:10-cv-076, 2010

WL 2570929, at *4 (S.D. Ohio June 22, 2010) (“Courts regularly dismiss as

redundant claims against agents in their official capacities when the principal entity

is also named as a defendant in the suit.”). Plaintiffs do not dispute that the

claims brought against Dr. Kumpf in her official capacity are redundant and subject

to dismissal on that basis.

To the extent that Dr. Kumpf is sued in her individual capacity, Defendants

argue that these claims must be dismissed because there is no individual liability

under either Title Il of the ADA or 8 504. See Everson v. Leis, 556 F.3d 484, 501

n.7 (6th Cir. 2009) (“Title Il of the ADA does not . . . provide for suit against a

public official acting in his individual capacity.”); Lee v. Mich. Parole Bd., 104 F.

App’x 490, 493 (6th Cir. 2004) (“neither the ADA nor the [Rehabilitation Act]

impose[s] liability upon individuals.”). Again, Plaintiffs impliedly concede that, as

currently pled, these claims are subject to dismissal. They argue only that their

Amended Complaint will set forth facts and laws showing that Kumpf is a proper

Defendant. Doc. #10, PagelD#54.

To the extent that Dr. Kumpf is sued in her official capacity, the Court

dismisses without prejudice the claims against her as redundant. To the extent

that she is sued in her individual capacity, the Court dismisses with prejudice the

ADA and § 504 claims against her on the merits.

D. ‘Failure to Exhaust Administrative Remedies

This leaves only Zachery’s ADA and § 504 claims against the school board.

Defendants argue that these claims must be dismissed because Zachery failed to

exhaust his administrative remedies prior to filing suit. Neither Title Il of the ADA

nor § 504 of the Rehabilitation Act contains an exhaustion requirement.

Nevertheless, if the plaintiff is “seeking relief that is also available” under the

Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., the

plaintiff must exhaust the IDEA’s administrative procedures “to the same extent as

would be required had the action been brought under [the IDEA].” 20 U.S.C.

10

§ 1415(l). Therefore, the Court must first determine whether Zachery is “seeking

relief that is also available” under the IDEA. If he is, then the Court must

determine whether he has exhausted his administrative remedies to the same

extent that would have been required had he filed suit under the IDEA.

1. Zachery is Seeking Relief Also Available Under the IDEA

The IDEA’s “core guarantee” is a “free appropriate public education”

(“FAPE”) for all children with disabilities, tailored to their individual needs. Fry v.

Napoleon Cmty. Schs., —U.S.—, 137 S. Ct. 743, 748 (2017). This is typically

accomplished through an individualized education program, or “IEP.” Under the

IDEA, parents may present a complaint “with respect to any matter relating to the

identification, evaluation, or educational placement of the child, or the provision of

a [FAPE] to such child.” 20 U.S.C. 1415(b)(6)(A). The filing of a complaint

triggers initial meetings, followed by a due process hearing before an impartial

hearing officer. The hearing officer’s decision may be appealed to the state agency

and then the courts. Fry, 137 S. Ct. at 749 (citing 20 U.S.C. § 1415)).

Zachery’s Complaint does not explicitly allege that he was denied a “free

appropriate public education.” This, however, is not dispositive. The court must

“look to the substance, or gravamen” of the complaint to determine whether it

seeks relief for the denial of a FAPE. /d. at 753, 755. In making that

determination, the court asks two hypothetical questions: (1) “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 (2)

11

“could an aduft at the school—say an employee or visitor—have pressed essentially

the same grievance?” /d. at 756. If the answer to these questions is “no,” then

the complaint probably implicates the denial of a FAPE, “even if it does not

explicitly say so.” /d.?

Defendants argue that this analysis leads to the inevitable conclusion that

Zachery is seeking relief for the denial of a FAPE. The Court agrees. As discussed

above, Zachery alleges that, at the expulsion hearing, there was “no discussion

regarding a manifestation determination or evaluation being conducted to

determine whether Zachery’s behavior was related to his disabilities.” Doc. #1,

PagelD#3. As Defendants note, this is a clear reference to the IDEA, which

establishes specific procedures governing alternative placement of students who

have violated a code of student conduct. If school personnel seek a change in

placement, including a suspension, of more than ten school days, the school must

make a “manifestation determination” to consider “if the conduct in question was

caused by, or had a direct and substantial relationship to, the child's disability.”

20 U.S.C. § 1415(k)(1)(E)(i)(1).?

Zachery further alleges that when he returned to school on May 4, 2017,

he: (1) was required to sit in a small room by himself for one period each day, with

2 Another factor to be considered is whether the plaintiff has “previously invoked

the IDEA's formal procedures to handle the dispute.” Fry, 137 S. Ct. at 757.

3 Given that Dr. Kumpf decided not to impose the recommended 80-day

expulsion, and that Zachery’s suspension lasted no more than 10 school days, it

does not appear that the school had a duty to make a manifestation determination.

12

no teacher present; (2) had his schedule reduced from seven to four periods; (3)

was forced to manage his own classes; (4) was given no direction or guidance; (5)

had to teach himself on the computer, which was “confusing and difficult” for him;

(6) was placed in a room with rotating teachers who were often unfamiliar with the

subject matter that he was assigned; (7) was often abandoned by the teachers

during the school day; (8) was subjected to numerous distractions and disruptions

that interfered with the learning environment and exacerbated his ability to learn;

and (9) was denied visual supports or frequent checks relating to his understanding

of the subject matter in disregard of his § 504 and IEP plans. Doc. #1,

PagelD##4-5. In addition, Zachery alleges that he was barred from participating in

numerous extra-curricular activities. /d. at PagelD#5.

Zachery specifically alleges that “[a]s a result of Defendants’ discriminatory

and retaliatory actions, [he] suffered a compromise in his education.” /d. at

PagelD#6. Returning to the hypothetical questions in the Fry analysis, it is clear

that Zachery’s ADA and § 504 claims could not have been brought if the alleged

conduct occurred in a public facility other than a school. It is also clear that an

adult employee or visitor to the school could not have pressed the same claims.

These are claims that can only be brought by a student complaining that he was

denied certain educational services to which he was entitled. The Court therefore

rejects Plaintiffs’ argument that the gravamen of the Complaint concerns

“disability-based discrimination, not failure to provide a FAPE.” Doc. #10,

PagelD#57.

13

2. Zachery is Required to Exhaust Administrative Remedies

Given that Zachery’s Complaint implicates the denial of a FAPE, he must

therefore exhaust the IDEA’s administrative procedures “to the same extent as

would be required” had he brought this action under the IDEA. 20 U.S.C.

§ 1415(I). It is undisputed that he made no effort to exhaust his administrative

remedies.

In S.E. v. Grant County Board of Education, 554 F.3d 633 (6th Cir. 2008),

the court held that “when a plaintiff has alleged injuries that could be redressed to

any degree by the IDEA’s administrative procedures and remedies, exhaustion of

those remedies is required.” /d. at 642 (quoting Robb v. Bethel Sch. Dist. #403,

308 F.3d 1047, 1048 (9th Cir. 2002)). A factual record, developed by

“educational professionals through the administrative process,” assists the court in

making a reasoned decision concerning the merits of the plaintiff's claims. /d. at

643. See also Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 61 (1st Cir. 2002)

(“the administrative process facilitates the compilation of a fully developed record

by a factfinder versed in the educational needs of disabled children—and that

record is an invaluable resource for a state or federal court required to adjudicate a

subsequent civil action covering the same terrain.”); Polera v. Bd. of Educ. of

Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 487 (2d Cir. 2002) (“[t]he

IDEA’s exhaustion requirement was intended to channel disputes related to the

education of disabled children into an administrative process that could apply

administrators’ expertise in the area and promptly resolve grievances.”).

14

Citing F.H. ex rel. Hall v. Memphis City Schools, 764 F.3d 638 (6th Cir.

2014), Zachery notes, however, that “[e]xhaustion is not required if it would be

futile or inadequate to protect the plaintiff's rights.” /d. at 644 (quoting Covington

v. Knox Cty. Sch. Sys., 205 F.3d 912, 917 (6th Cir. 2000)). Whether exhaustion

is required is a question of law. Hoeft v. Tucson Unified Sch. Dist., 967 F.2d

1298, 1303 (9th Cir. 1992). Zachery bears the burden of proving that it would be

futile or inadequate to require exhaustion of administrative remedies. Gean v.

Hattaway, 330 F.3d 758, 773 (6th Cir. 2003).

Here, Zachery argues that exhaustion would be futile or inadequate because:

(1) he has already graduated from high school; and (2) compensatory damages,

which he maintains is the only remedy that will make him whole, cannot be

awarded by an IDEA hearing officer. See Crocker v. Tennessee Sec. Sch. Athi.

Ass'n, 980 F.2d 382, 386 (6th Cir. 1992) (noting that, under the IDEA’s

predecessor statute, monetary damages may be awarded as restitution for

educational expenses but “general damages for emotional injury or injury to a

dignitary interest” are not available).

In Fry, the Supreme Court expressly left open the question of whether

exhaustion would be required when the plaintiff complains about the denial of a

FAPE but seeks a remedy, such as money damages for emotional distress, that an

IDEA hearing officer is not authorized to award. 137 S. Ct. at 752 n.4.

Nevertheless, other courts have addressed this issue. The Fifth Circuit recently

noted that most circuits have held that “the IDEA requires plaintiffs who were

15

denied a free appropriate public education to exhaust regardless of the remedy

they seek.” McMillen v. New Caney Indep. Sch. Dist., 939 F.3d 640, 647 (5th

Cir. 2019) (collecting cases). Likewise, in Frazier, the First Circuit held that

“[e]xhaustion is beneficial regardless of whether the administrative process offers

the specific form of remediation sought by a particular plaintiff.” 276 F.3d at 61.

The Sixth Circuit generally requires exhaustion even if the plaintiff is seeking

compensatory damages that a hearing officer could not award. It has, however,

recognized certain exceptions. In Covington v. Knox County School System, 205

F.3d 912 (6th Cir.), amended on denial of reh'g (May 2, 2000), disabled student

Jason Covington’s parents filed suit under 42 U.S.C. § 1983, alleging that the

school district violated Jason's constitutional rights by repeatedly locking him in a

time-out room as a form of discipline. They argued that, because they were

seeking compensatory damages, which were not available under the IDEA, it would

be futile to require them to exhaust administrative remedies. The Sixth Circuit

agreed with other circuits that, standing alone, the nature of the remedy sought,

i.e., money damages, did not excuse the failure to exhaust the administrative

process. /d. at 916. Otherwise, a plaintiff could “circumvent the IDEA’s elaborate

scheme simply by appending a claim for damages[.]” /d. at 917.*

4 See also P.G. v. Rutherford Cty. Bd. of Educ., 313 F. Supp. 3d 891, 905-06

(M.D. Tenn. 2018) (holding that “Sixth Circuit precedent requires that the plaintiffs

exhaust their administrative remedies and build a record even if the plaintiff seeks

certain relief, like money damages, that is unavailable in an IDEA administrative

proceeding.”).

16

Nevertheless, the Sixth Circuit concluded that Covington’s case warranted

an exception to this general rule.

Although we agree with those courts that have decided that a mere

claim for money damages is not sufficient to render exhaustion of

administrative remedies unnecessary, we hold that in the unique

circumstances of this case—in which the injured child has already

graduated from the special education school, his injuries are wholly in

the past, and therefore money damages are the only remedy that can

make him whole—proceeding through the state’s administrative

process would be futile and is not required before the plaintiff can file

suit in federal court.

\n Gean, the Sixth Circuit later clarified that the holding in Covington “was

based not upon the fact that the plaintiff sought monetary damages, but on the

fact that the IDEA did not provide a remedy for the type of harm allegedly suffered

by plaintiff, which was more in the nature of a tort than a violation of a federal

entitlement scheme.” 330 F.3d at 774.

Again, in F.H. ex rel. Hall v. Memphis City Schools, 764 F.3d 638 (6th Cir.

2014), the court held that exhaustion would be futile for a disabled student who

sought compensatory damages for physical, sexual and verbal abuse inflicted on

him by aides at his school. As in Covington, F.H. had already graduated from high

school and was seeking compensatory damages for “non-educational” injuries that

could not be remedied through the administrative process. /d. at 644.

Zachery argues that his case in akin to Covington and Hall in that: (1) he has

already graduated; and (2) compensatory damages, which cannot be awarded by

an IDEA hearing officer, are the only remedy that will make him whole. He notes

that, in this lawsuit, he is not seeking either compensatory education or tuition

17

reimbursement.° He therefore argues that exhaustion would be futile or inadequate

to protect his rights.

The Court finds that Zachery’s case is factually distinguishable from

Covington and Hal/in one important aspect. The plaintiffs in Covington and Half

complained of physical and/or sexual abuse at school, giving rise to tort-like claims

that were redressable only by compensatory damages. In contrast, Zachery’s

alleged injuries are almost entirely educational in nature, predicated on the denial of

a FAPE. The thrust of his claims is that, as a result of the discipline imposed by

Defendants, he was deprived of educational services and excluded from

participation in extracurricular activities on the basis of his disability. Although he

also alleges emotional distress and loss of dignity, the injuries at issue stem from

Defendants’ alleged failure to provide a FAPE. Under the circumstances presented

here, neither Zachery’s graduation nor the fact that he is seeking compensatory

damages excuses him from exhausting administrative remedies under the IDEA.

Notably, the IDEA requires states to provide a FAPE to disabled students

through their twenty-first birthday, even if they have been suspended or expelled

from school. 20 U.S.C. 8 1412(a)(1)(A). Accordingly, even though the

educational injuries complained of occurred during Zachery’s last month of high

school, they could have been redressed through the IDEA’s administrative

Zachery’s statement—that he seeks on/y compensatory damages—is belied by

the Complaint which also demands that “Defendants be enjoined from further

unlawful conduct” and that “Plaintiff[] be awarded all other legal and equitable

relief to which he may be entitled.” Doc. #1, PagelD#8.

18

procedures and remedies. See Ruecker v. Sommer, 567 F. Supp. 2d 1276, 1292

(D. Ore. 2008) (holding that exhaustion of administrative processes was not futile

because “a compensatory education was an available administrative remedy and

remained a viable option even after Ruecker’s graduation.”); Refd ex rel. Reid v.

Dist. of Columbia, 401 F.3d 516, 522 (D.C. Cir. 2005) (explaining that

compensatory education awards may be awarded “to compensate for a past

deficient program,” and such awards are appropriate even beyond age twenty-

one).

In Ferren C. v. School District of Philadelphia, 612 F.3d 712 (3d Cir. 2010),

the court upheld the district court’s award of compensatory education that

extended three years beyond plaintiff’s twenty-first birthday. It noted that

“monetary awards cannot fully compensate a student for a school district’s past

failures.” Accordingly, “[i]f an individual was deprived of his or her right to an

adequate FAPE .. . prior to the age of twenty-one, it follows that the student

could only be fully compensated by an award of compensatory education that

contains the elements of a FAPE that she was previously denied.” /d. at 720.

Here, Zachery did nothing to exhaust the administrative remedies that were

available to him at the time of the alleged injury. Instead, he waited almost two

years after graduation and then filed suit seeking money damages for the alleged

violations of the ADA and 8 504. But, as Defendants correctly note, Zachery’s

preferred damages do not necessarily establish futility.

19

Several cases are instructive in this regard. Polera v. Board of Education of

Newburgh Enlarged City School District, 288 F.3d 478 (2d Cir. 2002) is almost

directly on point. There, the plaintiff sued during her senior year of high school,

alleging violations of the ADA and § 504 and seeking compensatory damages.

The Second Circuit found that the district court lacked jurisdiction over the claims

because the plaintiff had failed to exhaust her administrative remedies. It rejected

the district court’s finding that exhaustion would have been futile.

The Second Circuit held that “[WJhere, as here, a full remedy is available at

the time of injury, a disabled student claiming deficiencies in his or her education

may not ignore the administrative process, then later sue for damages.” /d. at

488. The court rejected the plaintiff’s reliance on the Sixth Circuit’s decision in

Covington, noting that, because of the nature of Covington’s claims, “damages

would have been the only adequate remedy even had he sought immediate relief at

the time of the wrongdoing. Nothing could ‘undo’ the harm that he had suffered.”

ld. at 490. The Second Circuit held that, “[i]Jn contrast, had Polera pursued

administrative procedures at the time of the alleged wrongdoing, she could have

obtained the materials she needed and, perhaps, remedial tutoring or schedule

adjustments to undo the effects of the wrong. For Polera, unlike the plaintiff in

Covington, a fully effective remedy was available at the time; she simply chose not

to pursue it.” /d.

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The Second Circuit concluded as follows:

disabled-student plaintiffs, like Polera, should not be permitted to “sit

on” live claims and spurn the administrative process that could

provide the educational services they seek, then later sue for

damages. Were we to condone such conduct, we would frustrate the

IDEA's carefully crafted process for the prompt resolution of

grievances through interaction between parents of disabled children

and the agencies responsible for educating those children. The fact

that the administrative process could not provide damages does not

render Polera's claim futile; she could have obtained complete relief at

the time, through changes to her IEPs, additional educational services,

and, if necessary, remedial education.

Id. See also Muskrat v. Deer Creek Pub. Schs., 715 F.3d 775, 785-86 (10th Cir.

2013) (“A plaintiff may not wait to bring IDEA-redressable claims until, for

example, the child graduates or leaves the school district—thus leaving nothing but

damages to adjudicate.”); Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058,

1067 (10th Cir. 2002) (“we reject the argument that exhaustion will be excused

because relief is no longer ‘available’ at the time the plaintiff seeks to file a civil

suit if relief was available at the time the alleged injuries occurred.").

Likewise, in Frazier, the First Circuit rejected plaintiff's claim that graduation

should excuse the exhaustion requirement. It noted that “even after graduation,

compensatory education is an available remedy.” 276 F.3d at 63. Moreover, “the

entire matter of timing is largely within a plaintiff’s control.” /¢. A plaintiff cannot

evade the exhaustion requirement by holding onto the claim until graduation and

then filing suit seeking money damages. /d. See also Ripple v. Marble Falls Indep.

Sch. Dist., 99 F. Supp. 3d 662, 688 (W.D. Tex. 2015) (noting that the majority of

circuits have held that “plaintiffs cannot sidestep the exhaustion requirements by

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seeking non-IDEA relief after the plaintiff has graduated, where IDEA relief could

have remedied the injury while the plaintiff was in school.”).

Here, Zachery Sorah seeks relief for educational injuries. He has failed to

show that relief was not available to him through the IDEA at the time of his injury.

Although he was just weeks away from graduating, he could have requested a

hearing and the hearing officer would have had the authority to order

compensatory education to remedy the alleged denial of a FAPE. Zachery cannot

“sit on” his live claims, wait two years and then seek compensatory damages.

Under the circumstances presented here, he was required to exhaust

administrative remedies that were available under the IDEA. On this basis, the

Court SUSTAINS Defendants’ Motion to Dismiss the ADA and § 504 claims

against the school board.® Said claims are DISMISSED WITHOUT PREJUDICE for

failure to exhaust administrative remedies.

Hil. Plaintiffs’ Motion to Amend Complaint (Doc. #11)

Plaintiffs seek leave to file an Amended Complaint to include a cause of

action under 42 U.S.C. § 1983 against the school board and against Dr. Kumpf in

her individual capacity. Doc. #11. Section 1983 imposes liability on persons who,

while acting under color of state law, deprive a citizen of rights secured by the

Constitution or laws of the United States.

§ Although this may seem like a harsh result, it is one that is compelled by law.

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As previously noted, the factual allegations in the proposed Amended

Complaint remain largely the same. Plaintiffs now allege, however, that

Defendants violated Zachery’s Fourteenth Amendment rights when they “engaged

in an unconstitutional policy or custom of failing to [sic] the laws of the United

States and the State of Ohio by failing to adequately address the needs of a

disabled student” and “ignored or refused to take appropriate action in response to

concerns about the unlawful treatment and abuse of Zachary Sorah . . . despite

notice repeatedly given to administrators, including the Superintendent.” Doc.

#11-1, PagelD#68.

A. Fed. R. Civ. P. 15(a)(2)

Federal Rule of Civil Procedure 15(a)(2) provides that the court should freely

give leave to amend a pleading “when justice so requires.” However, leave need

not be given if there is “undue delay, bad faith or dilatory motive on the part of the

movant, repeated failure to cure deficiencies by amendments previously allowed,

undue prejudice to the opposing party by virtue of allowance of the amendment” or

if the proposed amendment would be futile. Foman v. Davis, 371 U.S. 178, 182

(1962). A proposed amendment is futile if it would not survive a Rule 12(b)(6)

motion to dismiss. Aiverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d

505, 512 (6th Cir. 2010).

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B. Futility of Amendment

Defendants argue that Plaintiffs’ proposed amendment would be futile

because: (1) Brandy Sorah lacks standing to pursue claims under the ADA, § 504,

and § 1983; (2) Dr. Kumpf cannot be held individually liable under the ADA or

§ 504; and (3) given that the factual allegations implicate the denial of a FAPE,

Zachery was required to exhaust his administrative remedies under the IDEA and

failed to do so.

The Court has already explained why Brandy Sorah lacks standing to pursue

her own claims under the ADA and § 504. For similar reasons, she also lacks

standing to pursue claims under § 1983. See Claybrook v. Birchwell, 199 F.3d

350, 357 (6th Cir. 2000) (holding that § 1983 claims are “entirely personal to the

direct victim of the alleged constitutional tort” and are not available to the victim's

family members who may suffer emotional distress or other “consequent collateral

injuries”). Likewise, the Court has already explained why the ADA and

§ 504 claims brought against Dr. Kumpf in her individual capacity are not viable,

and why Zachery was required to exhaust his administrative remedies prior to filing

such claims against the school board.

To the extent that Zachery now seeks leave to add § 1983 claims against

Dr. Kumpf and the school board, the proposed amendment would be futile.

Plaintiffs correctly note that Dr. Kumpf may be held individually liable under

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§ 1983 if she directly participated in the alleged constitutional violations.

Nevertheless, the Court cannot reach the merits of that claim because Zachery

failed to exhaust his administrative remedies under the IDEA.

Given that the § 1983 claims are based on the same factual allegations as

the ADA and § 504 claims—which the Court has held implicate the denial of a

FAPE—the 8 1983 claims are subject to the same exhaustion requirement. See,

e.g., Gean, 330 F.3d at 774 (holding that plaintiffs must exhaust administrative

remedies prior to filing 8 1983 due process claim); Ruecker, 567 F. Supp. 2d at

1294 (holding that persons alleging constitutional injuries must exhaust

administrative remedies “if they seek relief that also is available under the IDEA.”);

Frazier, 276 F.3d at 63 (holding that allowing a plaintiff to pursue a § 1983 claim

without exhausting administrative remedies under the IDEA “would allow a plaintiff

to bypass the administrative procedures merely by crafting her complaint to seek

relief that educational authorities are powerless to grant.”); McMillen, 939 F.3d at

648 (dismissing § 1983 claim and § 504 claim for failure to exhaust administrative

remedies). For the reasons previously discussed, the Court rejects Plaintiffs’

argument that exhaustion is not required.

Accordingly, the Court OVERRULES WITHOUT PREJUDICE Plaintiffs’ Motion

to Amend Complaint, Doc. #11.

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IV. Conclusion

For the reasons set forth above, the Court SUSTAINS Defendants’ Motion

for Judgment on the Pleadings, Doc. #6. Plaintiff Brandy Sorah’s claims are

DISMISSED WITH PREJUDICE, as are Plaintiff Zachery Sorah’s ADA and 8 504

claims against Dr. Kumpf in her individual capacity. The ADA and § 504 claims

brought against Dr. Kumpf in her official capacity are DISMISSED WITHOUT

PREJUDICE as redundant. Zachery Sorah’s ADA and 8 504 claims against the

School Board are DISMISSED WITHOUT PREJUDICE for failure to exhaust

administrative remedies.

The Court OVERRULES Plaintiffs’ Motion to Amend Complaint, Doc. #11,

given that the proposed amendment would be futile.

Judgment shall be entered in favor of Defendants and against Plaintiffs.

The captioned case is hereby ordered terminated upon the docket records of

the United States District Court for the Southern District of Ohio, Western Division,

at Dayton.

Date: March 16, 2020 Lfion leo

WALTER H. RICE

UNITED STATES DISTRICT JUDGE

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