                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 YVETTE STREET,

    Plaintiff,

           v.                                                Civil Action No. 13-557(CKK)
 DISTRICT OF COLUMBIA,

    Defendant.


                                  MEMORANDUM OPINION
                                     (August 26, 2013)

       Plaintiff Yvette Street, on behalf of her minor child S.S., filed suit against the District of

Columbia, alleging the District failed to provide S.S. with a free appropriate public education in

violation of the Individuals with Disabilities Education Improvement Act (“IDEA”),1 20 U.S.C.

§ 1400 et seq. Presently before the Court is the Plaintiff’s [18] Motion for Leave to File First

Amended Complaint. The District opposes the Plaintiff’s motion on the grounds the proposed

amendments are futile. Upon consideration of the pleadings,2 the relevant legal authorities, and

the record as a whole, the Court finds that the limited record and briefing provided by the parties

in insufficient to allow the Court to conclude whether the Plaintiff’s proposed claims under the
       1
            The IDEA was re-authorized and re-codified pursuant to the Individuals with
Disabilities Education Improvement Act in 2004, Pub. L. No. 108–446, 118 Stat. 2647 (2004).
The short title of the re-authorized and amended provisions remains the Individuals with
Disabilities Education Act. See Pub. L. No 108–446, § 101; 118 Stat. at 2647; 20 U.S.C. § 1400
(2006). Accordingly, the Court refers to the amended Act herein as the IDEA.
       2
          Pl.’s Mot., ECF No. [18]; Def.’s Opp’n, ECF No. [19]; Pl.’s Reply, ECF No. [20]. The
parties are advised to verify all pleadings are accurately filed. In this case, the Plaintiff filed her
motion and associated exhibits under the incorrect event. At the instruction of the Clerk’s
Office, the Plaintiff re-filed her motion, but in doing so attached a copy of the original complaint
as her proposed first amended complaint. The Court considers the proposed first amended
complaint attached to the Plaintiff’s initial filing in disposing of the motion, but the parties are on
notice that in the future the Court shall not consider any exhibits or pleadings not properly filed.
Rehabilitation Act are futile, but the Defendant’s objection to the Plaintiff’s new factual

allegations is unpersuasive. Accordingly, the Plaintiff’s motion is GRANTED without prejudice

to the Defendant’s right to raise its objection to the Plaintiff’s Rehabilitation Act claims in the

context of dispositive motion practice.

                                       I. BACKGROUND

       S.S. is a twelve year-old boy with autism that is eligible for special education services.

Compl., ECF No. [1], ¶ 4. S.S. was enrolled at MacFarland Middle School for the 2011-2012

and 2012-2013 school years. Id. ¶ 11. The Plaintiff alleges that a number of incidents took place

while S.S. attended MacFarland, including an instructional aide improperly using physical

restraints on S.S., id. at ¶¶ 11-12, and S.S. receiving blows to the head with heavy objects, id. at

¶ 15. In September 2012, the Plaintiff alleges that another student with “extreme behavioral

problems” pushed S.S., knocking him onto the concrete floor. Id. at ¶ 20. S.S. reportedly

suffered a back injury, dislocated hand, and injured tooth. Id. “S.S. developed school avoidance

(an intense fear of attending school) due to the many injuries he has sustained at MacFarland,”

and since the September 2012 incident has not returned to MacFarland Middle School. Id. ¶ 21.

The District reportedly has refused to provide home instruction to S.S. Id. The Plaintiff

contends that S.S. cannot return to a large public school environment because the child “cannot

read and cannot distinguish one public school from another.” Id. at ¶ 22.

       On December 21, 2012, the Plaintiff filed an administrative due process complaint

against the District seeking a non-public school placement for S.S. for the remainder of the 2012-

2013 school year, compensatory education, and other services for S.S. Def.’s Ex. 1 (12/21/12

Admin. Compl.) at 12. A Hearing Officer conducted an administrative hearing over the course

of three days in February and March 2013. Compl. ¶ 3. The Hearing Officer determined that the

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Plaintiff failed to meet her burden to show that MacFarland Middle School was not an

appropriate placement for S.S. during the 2011-2012 and 2012-2013 school years. Def.’s Ex. 2

(3/18/2013 Hearing Officer Determination) at 36.          The Hearing Officer thus denied the

Plaintiff’s request for compensatory education.

       The Plaintiff filed suit on April 24, 2013, asserting that the District denied S.S. a free

appropriate public education in three ways: by failing “to keep S.S. safe from other students and

staff, to the extent that a significantly hostile environment was created,” Compl. ¶ 27; by failing

to offer S.S. an alternative placement, id. at 33; and and by failing to provide S.S. with home

instruction, id. at ¶ 43. The Plaintiff now seeks to amend her complaint in several major

respects.   First, the Plaintiff intends to add additional factual allegations regarding S.S.’s

disabilities, the incidents that purportedly took place while S.S. attended MacFarland Middle

School, and the administrative process that preceded this litigation. See, e.g., Proposed First Am.

Compl., ECF No. [17-1] at ¶¶ 11-12, 16. Second, the Plaintiff intends to amend the complaint to

include five new claims. The Plaintiff seeks to add two additional IDEA claims based on the

District’s alleged failure to implement S.S.’s individualized education plan and alleged failure to

protect S.S. from bullying. Id. at ¶ 61-66. Additionally, the Plaintiff intends to assert three

causes of action pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701,

including the creation of a hostile environment, denial of a free appropriate public education, and

retaliation for legally protected activities. Id. at ¶¶ 69-92. Finally, the Plaintiff seeks to amend

the complaint to allege the Hearing Officer violated the Plaintiff’s due process rights “by failing

to render a proper decision based on an accurate and impartial understanding of the facts, without

bias.” Id. at ¶ 94. The Defendant opposes the Plaintiff’s motion on the grounds that the Court

lacks subject matter jurisdiction over the Plaintiff’s putative Section 504 claims and the

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additional factual allegations are unnecessary.

                                    I. LEGAL STANDARD

       Pursuant to Federal Rules of Civil Procedure 15(a), “a party may amend its pleading only

with the opposing party’s written consent or the court's leave,” and “[t]he court should freely

give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). However, the Court “may

properly deny a motion to amend if the amended pleading would not survive a motion to

dismiss.” In re Interbank Funding Corp. Securities Litig., 629 F.3d 213, 218 (D.C. Cir. 2010).

“An amendment is futile if the proposed claim would not survive a motion to dismiss.”

Commodore-Mensah v. Delta Airlines, Inc., 842 F. Supp. 2d 50, 52 (D.D.C. 2012) (citation

omitted).

       The Defendant argues that the Plaintiff’s Section 504 claims would not survive a motion

to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure

12(b)(1). To survive a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden

of establishing that the court has subject matter jurisdiction over its claim. Moms Against

Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007).            In determining whether there is

jurisdiction, the Court may “consider the complaint supplemented by undisputed facts evidenced

in the record, or the complaint supplemented by undisputed facts plus the court's resolution of

disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir.

2003) (citations omitted). “At the motion to dismiss stage, counseled complaints, as well as pro

se complaints, are to be construed with sufficient liberality to afford all possible inferences

favorable to the pleader on allegations of fact.” Settles v. U.S. Parole Comm’n, 429 F.3d 1098,

1106 (D.C. Cir. 2005). “Although a court must accept as true all factual allegations contained in

the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1),” the factual

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allegations in the complaint “will bear closer scrutiny in resolving a 12(b)(1) motion than in

resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd.,

503 F.Supp.2d 163, 170 (D.D.C. 2007) (citations omitted).

                                       III. DISCUSSION

       A.      Rehabilitation Act Claims

       Initially, the Defendant argues that the Plaintiff’s proposed Section 504 claims would not

survive a motion to dismiss for lack of subject matter jurisdiction, thus leave to amend the

complaint in this respect would be futile and should be denied. Specifically, the Defendant

argues the Court lacks subject matter jurisdiction over these claims because the Plaintiff failed to

exhaust her administrative remedies. “[A]bsent a showing that exhaustion would be futile or

inadequate, a party must pursue all administrative avenues of redress under the [IDEA] before

seeking judicial review under the Act.” Cox v. Jenkins, 878 F.2d 414, 419 (D.C. Cir. 1989); see

20 U.S.C. § 1415(f), (g) (setting forth requirements for impartial due process hearings and

appeals). This exhaustion requirement applies equally to claims concerning the rights of children

with disabilities brought pursuant to the provisions of the Rehabilitation Act.          20 U.S.C.

§ 1415(l).

       The Plaintiff admits that she did not actually exhaust her administrative remedies with

respect to her proposed Section 504 claims. Nor does the Plaintiff argue that exhausting her

administrative remedies would have been a futile pursuit. Rather, the Plaintiff suggests that

because the District did not comply with its internal guidelines regarding the timing of

administrative hearings, the Court should find the Plaintiff constructively exhausted her

administrative remedies. However, because this argument was not raised until the Plaintiff’s

reply, it is unclear (1) whether the Defendant disputes any of the facts that form the basis for the

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Plaintiff’s constructive exhaustion argument; (2) whether the Defendant disputes that a plaintiff

can constructively exhaust IDEA or Rehabilitation Act claims; and (3) if constructive exhaustion

as a general matter applies to these types of claims, whether the Plaintiff constructively

exhausted her remedies in this case. A response from the Defendant is particularly important in

this context because the Plaintiff’s cites only one other case in which a court found that a

plaintiff constructively exhausted his/her remedies under the IDEA. Pl.’s Reply at 4 (citing

Meehan v. Patchogue-Medford School Dist., 29 F. Supp. 2d 129 (E.D.N.Y. 1998)). Because the

2013-2014 school year is approaching, rather than further delay dispositive motion practice by

ordering the Defendant to file a sur-reply, the Court shall permit the Plaintiff to amend the

complaint to include her Section 504 claims, without prejudice to the Defendant’s right to raise

the administrative exhaustion issue in the context of its motion for summary judgment.

       B.      Additional Factual Detail

       The Defendant further contends that the Plaintiff’s proposed amendments are futile

because “the amended complaint does nothing more that unnecessarily add 30 pages to an

already verbose complaint, and does nothing to clarify the basis of Plaintiff’s legal claims.”

Def.’s Opp’n at 9. The Defendant argues that “Plaintiff’s rambling, verbose amended complaint

is bloated with superfluous facts and unnecessary detail, in violation of Fed. R. Civ. P. 8(a)(2).”

Id. The Defendant does not argue that the Plaintiff’s amended allegations fail to state a claim, or

do not provide adequate notice of the legal basis for the Plaintiff’s claims. Reasonable parties

may disagree as to whether the allegations the Plaintiff seeks to add are necessary or useful.

Ultimately the Court’s role is not to police whether the Plaintiff has filed the best complaint, so

long as the complaint states a claim for relief and provides adequate notice to the Defendant as to

the claims it must defend against. The Plaintiff’s lack of brevity does not make the proposed

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amendments futile.

                                     IV. CONCLUSION

       The Plaintiff seeks leave to amend her complaint to add various factual allegations and

five additional causes of action. Given the procedural posture of the motion, the Court lacks an

adequate record from which to determine whether the Plaintiff exhausted her administrative

remedies for her proposed claims under Section 504 of the Rehabilitation Act. The Defendant

may dispute the utility of the new factual allegations, but the Court cannot say that the amended

allegations are futile. Accordingly, the Plaintiff’s [18] Motion for Leave to File First Amended

Complaint is GRANTED without prejudice to the Defendant’s right to raise the administrative

exhaustion issue in the context of the parties’ motions for summary judgment. An appropriate

Order accompanies this Memorandum Opinion.

                                                       /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    UNITED STATES DISTRICT JUDGE




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