                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-13-2009

M.S.G. v. Lenape Regional High
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1567




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"M.S.G. v. Lenape Regional High" (2009). 2009 Decisions. Paper 2053.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/2053


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 07-1567
                                   _____________

                          M.S.-G., INDIVIDUALLY AND
                          BY HIS PARENTS AND LEGAL
                         GUARDIANS, K.S.-G. AND J.S.-G.,
                                                       Appellants

                                           v.

                 LENAPE REGIONAL HIGH SCHOOL DISTRICT
                  BOARD OF EDUCATION and DANIEL HICKS,
               INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY

                                     __________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                               (D.C. Civil No. 06-cv-2847)
                    District Judge: Honorable Joseph H. Rodriguez
                                      ___________

                               Argued March 26, 2008
                                   ___________

                Before: McKee, Rendell, and Tashima,* Circuit Judges

                               (Filed: January 13, 2009)
                                     ___________



      *
              Honorable A. Wallace Tashima, Senior Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
Jamie Epstein, Esq. (ARGUED)
1101 Route 70 West
Cherry Hill, NJ 08002
      Counsel for Appellants

Walter F. Kawalec, Esq. (ARGUED)
Richard L. Goldstein, Esq.
Marshall, Dennehey, Warner, Coleman & Goggin
200 Lake Drive East
Suite 300
Cherry Hill, NJ 08012
       Counsel for Appellees

                                      ___________

                                       OPINION
                                      ___________

TASHIMA, Circuit Judge:

       M.S.-G., a high school student, along with his parents, J.S.-G. and K.S.-G.

(collectively “M.S.-G.”), appeal the District Court’s dismissal of M.S.-G.’s action,

brought under the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. § 1400

et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the New

Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1, against Lenape Regional

High School District and Daniel Hicks, Superintendent (collectively “Lenape”), stemming

from his suspension from Shawnee High School. The Administrative Law Judge (“ALJ”)

conducting M.S.-G.’s due process hearing twice dismissed M.S.-G.’s petition for failure

to satisfy the IDEA pleading requirements. The District Court dismissed M.S.-G.’s


                                            -2-
complaint on the same ground. We have jurisdiction to review the District Court’s

decision under 28 U.S.C. § 1291, and we will affirm.

       Because we write for the parties, we recite only those facts necessary to our

analysis of the issues presented on appeal. We review de novo the dismissal of a

complaint under Federal Rule of Civil Procedure 12(b)(6). Phillips v. County of

Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). In so doing, we “accept all factual

allegations as true, construe the complaint in the light most favorable to the plaintiff, and

determine whether, under any reasonable reading of the complaint, the plaintiff may be

entitled to relief.” Id. at 233 (internal citation and quotation marks omitted).1

       M.S.-G. contends that the ALJ and District Court erred in dismissing his complaint

for failure to conform to the IDEA’s pleading standards. On June 5, 2006, M.S.-G. filed

a due process complaint with the New Jersey Office of Special Education Programs

requesting relief under the IDEA. The following text comprised the entirety of the June 5

complaint’s substantive allegations:

       Failure of respondent to: (a) maintain M.S.-G. in his current placement after
       10 days of suspension during the current school year in remedy for said


       1
               Although the District Court must employ a modified de novo review of the
decisions of an administrative fact finder, see S.H. v. State-Operated Sch. Dist. of the City
of Newark, 336 F.3d 260, 270–71 (3d Cir. 2003), and we, in turn, review the District
Court’s factual findings for clear error, see Shore Reg’l High Sch. Bd. of Educ. v. P.S. ex
rel P.S., 381 F.3d 194, 199 (3d Cir. 2004), no such deference is called for when the
decisions of the ALJ and District Court involve only questions of law.

                                             -3-
       failures we seek compensatory education and an order requiring respondent
       to return and maintain M.S.-G. in his current placement; (b) to provide MS-
       G with a psychiatric evaluation for which we seek an independent
       psychiatric evaluation, (c) to properly address M.S.-G’s drug dependency as
       a manifestation of his educational handicap in his IEP for which we seek
       said correction to MS-G’s IEP as a remedy. (d) failure to evaluate MS-G for
       and provide him with a positive behavior intervention plan for which we
       seek same as a remedy.

(punctuation errors in original). The ALJ found that the complaint failed to state the

reason for M.S.-G.’s suspension, or describe M.S.-G.’s individualized education program

(“IEP”) and his “current placement.” It also failed to include factual details relevant to

M.S.-G.’s requested remedies, such as circumstances which might necessitate a return to

his current placement, and facts indicating whether he communicated with the defendants

about the proposed psychiatric evaluation, or whether the defendants refused to

accommodate the request. The ALJ encouraged the parties to communicate and to make

a good faith effort to resolve their differences.

       On June 13, 2006, M.S.-G. submitted a second petition for an expedited due

process hearing. The allegations in the second petition were much the same, except that

M.S.-G. added the following details:

       M.S.-G. [is] a 10th grade student in a self contained placement at Shawnee
       High School . . . .

       M.S.-G. was suspended for 10 days on 5/31/06 however respondent has
       refused to allow him to return to his current placement. Additionally, he
       was suspended 5/23/06 for 2 days, on 5/9/06 for 3 days, on 3/10/06 for 3


                                              -4-
       days, on 2/10/06 for 2 days, on 2/2/06 for 1 day, on 1/5/06 for 5 days,
       1/6/06 for 2 days, on 11/30/05 for 1 day, and on 12/7/05 for 1 day.

Although the remedies requested were substantially the same, M.S.-G. slightly altered the

wording and format of the request:

       (a) compensatory education for the days in which he was improperly
       removed;
       (b) an order requiring respondent to return and maintain M.S.-G. in his
       current placement;
       (c) an appropriate psychiatric evaluation;
       (d) for M.S.-G. to be evaluated for and provided with a positive behavior
       intervention plan[];
       (e) and to properly identify behaviors which are a manifestation of his
       educational handicap (including his drug dependency) in his IEP to be
       programmed for and not be disciplined for.

       On June 16, 2006, the ALJ dismissed the second petition for failure sufficiently to

state a claim. Although he recognized that M.S.-G. now provided the dates of his

suspensions, the letter still failed to allege facts that would justify a finding that M.S.-G.

was wrongfully removed from or entitled to return to his current placement.

       On January 24, 2007, the District Court granted Lenape’s motion to dismiss based

on M.S.-G.’s failure to conform to the IDEA pleading requirements. The District Court

grounded its holding on the failure of the administrative complaints to state “why the

school suspended M.S.-G.[,]” “the nature of M.S.-G.’s problem and how it relates to the

suspensions[,]” and how the proposed solutions will “resolve the problem.”

       We conclude that M.S.-G. failed to satisfy the pleading requirements set forth in


                                              -5-
the IDEA. The IDEA requires state and local educational agencies receiving federal

education funds to “establish and maintain procedures . . . to ensure that children with

disabilities and their parents are guaranteed procedural safeguards with respect to the

provision of a free appropriate public education . . . .” 20 U.S.C. § 1415(a). One such

procedure is the opportunity to present a complaint “with respect to any matter relating to

the identification, evaluation, or educational placement of the child . . . .” Id. §

1415(b)(6)(A); see also 34 C.F.R. § 300.507(a)(1) (2007). The complaint must provide

notice to the opposing party, including “(III) a description of the nature of the problem of

the child relating to such proposed initiation or change, including facts relating to such

problem; and (IV) a proposed resolution of the problem to the extent known and available

to the party at the time.” 20 U.S.C. § 1415(b)(7)(A)(ii)(III)–(IV); see also 34 C.F.R. §

300.508(b)(5)–(6). M.S.-G. failed to provide a description of the nature of the problem

that included facts; he merely identified the problem, in this case, his multiple

suspensions.

       We also reject M.S.-G.’s suggestion that the Supreme Court’s description of these

pleading standards as “minimal” in Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 55

(2006), somehow converts the specific statutory provision into a bare notice pleading




                                              -6-
requirement.2 Schaffer did not confront the issue at hand. Moreover, the purpose of the

statute to foster cooperation between the parents and educational agency is served by a

development of the factual basis for the dispute prior to the initiation of adversarial

proceedings. See id. at 53 (“The core of the statute . . . is the cooperative process that it

establishes between parents and schools.”).

       M.S.-G. does not contest the District Court’s dismissal of his § 1983 and state law

claims. See Skretvedt v. E.I. DuPont De Nemours, 372 F.3d 193, 202–03 (3d Cir. 2004)

(“We have held on numerous occasions that an issue is waived unless a party raises it in

its opening brief, and for those purposes a passing reference to an issue will not suffice to

bring that issue before this court.”) (citation, quotation marks, and alteration omitted).

We therefore deem those issues waived.

       For the foregoing reasons, we will AFFIRM the judgment of the District Court.




       2
               Likewise, Escambia County Bd. of Educ. v. Benton, 406 F. Supp. 2d. 1248
(S.D. Ala. 2005), does not bear the weight of M.S.-G.’s argument. That decision
specifically acknowledged the IDEA’s requirement that the complaint include facts
relating to the claimed problems. Id. at 1259. The court concluded, however, that such a
requirement was satisfied as to the particular challenge to an IEP raised for the first time
at a due process hearing when the plaintiff raised several other distinct challenges to the
same IEP in his complaint. Id. at 1260.

                                              -7-
