                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA
_______________________________
                                )
DEMETRI EASTER,                 )
                                )
          Plaintiff,            )
                                )
     v.                         ) Civ. Action No. 14-1754 (EGS)
                                )
DISTRICT OF COLUMBIA,           )
                                )
          Defendant.            )
                                )

                       MEMORANDUM OPINION

  Plaintiff Demetri Easter (“Mr. Easter”) brings this action

against the District of Columbia (“the District”) alleging

violations of the Individuals with Disabilities Education Act

(“IDEA”), 20 U.S.C. § 1400 et seq., and Section 504 of the

Rehabilitation Act, 29 U.S.C. § 794(a). On December 5, 2014, the

District moved for partial dismissal of the complaint. On

January 22, 2015, Mr. Easter moved to amend the complaint. For

the reasons set forth below, Mr. Easter’s motion to amend the

complaint is GRANTED, and the District’s motion for partial

dismissal of the complaint is DENIED WITHOUT PREJUDICE AS MOOT.

  I.   BACKGROUND

  Mr. Easter is a 22-year-old student who has been found

eligible for special education services as a student with a

disability under the IDEA. Compl., ECF No. 1 at ¶ 9. From 2008

to 2013, Mr. Easter was committed to the D.C. Department of
Youth Rehabilitation Services (“DYRS”), the District’s juvenile

justice system. Id. at ¶ 10. Mr. Easter was released from

commitment on his 21st birthday, April 7, 2013, and has been

homeless since that time. Id.

    Mr. Easter’s complaint alleges that he was denied a free

appropriate education (“FAPE”) as guaranteed by the IDEA. 1 See

generally Compl. Specifically, while Mr. Easter was committed to

Alternative Solutions for Youth (“ASY”), a secure DYRS-managed

facility, he did not receive any special education services. Id.

at ¶ 17. Mr. Easter alleges that because no Local Education

Agency is assigned responsibility for students housed at ASY, he

was denied special education services, despite his eligibility. 2

Id. Further, when Mr. Easter was released from commitment in

April of 2013, he alleges that D.C. Public Schools (“DCPS”)

failed to offer him a viable option for continuing his

education. Id. at ¶ 25. Specifically, DCPS suggested that Mr.


1 A FAPE includes “special education and related services . . .
provided at public expense . . . in conformity with the
[student’s] individualized education program.” 20 U.S.C. §
1401(9).

2 The IDEA operates according to a three-tiered scheme under
which the state, or in this case the District, submits a plan of
compliance to the U.S. Secretary of Education who then
administers IDEA funds. 20 U.S.C. §§ 1412-1414. The state is
then responsible for distributing funds to the Local Education
Agencies who directly provide education services to students and
who must spend the funds in a manner consistent with the purpose
and substantive provisions of the IDEA. Id. at §§ 1413(a),
1414(a),(b).
                                 2
Easter enroll as a ninth grader at Anacostia Senior High School

even though he was nearly 22 years old. Id. Nonetheless, Mr.

Easter attempted to enroll in the ninth grade, but was turned

away due to a lack of documentation proving his residency in the

District. Id. at ¶ 22. Mr. Easter’s lack of permanent residence

prevented him from enrolling in any educational placement for

the 2013-2014 School Year. Id. at ¶ 43.

    On July 8, 2013, Mr. Easter’s counsel filed a complaint with

the Office of the State Superintendent of Education (“OSSE”) on

behalf of Mr. Easter, three other named complainants, and all

similarly situated students – that is, students aged 18-22 with

special education needs who had been, or were presently,

committed to DYRS. Id. at ¶ 30. In a Letter of Decision dated

November 20, 2013, OSSE found that DCPS had not complied with

various provisions of the IDEA and accompanying regulations. 3 Id.

at ¶ 34. As a corrective action for the violations related to

Mr. Easter, the Letter of Decision directed DCPS to convene a

meeting with Mr. Easter to determine an immediate educational




3 Though too extensive to recount in detail here, these
violations included a failure on the part of DCPS to take
reasonable steps to promptly obtain Mr. Easter’s education
records or evaluate Mr. Easter for special education services,
and a systemic failure on the part of both DCPS and DYRS to
maintain valid and reliable education data for adult students.
Compl., ECF No. 1 at ¶¶ 34, 35.
                                 3
placement and to develop a plan for compensatory education

services. Id. at ¶ 36.

    During a meeting held on March 12, 2014, DCPS again suggested

that Mr. Easter enroll at Anacostia Senior High School as a

ninth grader, or alternatively, that he waive special education

services and attend an accelerated program designed for older

students who were behind their same-age peers. Id. at ¶ 44. Mr.

Easter inquired about alternative programs, including the

Kingsbury HOPE program, but was told his “level of service was

too high” and that none of the DCPS programs for adult students

could accommodate his special education needs. Id. at ¶ 45. In

short, Mr. Easter could attend a program with his same-age

peers, but only if he waived his right to special education

services. Id. Unsatisfied with the District’s proposal, Mr.

Easter filed an administrative Due Process Complaint against

DCPS and OSSE on April 4, 2014. Id. at ¶ 47. Following lengthy

proceedings, the Hearing Officer provided Mr. Easter some, but

not all, of the relief he requested. 4 Id. at ¶ 55.

    Mr. Easter filed a complaint in this Court on October 20,

2014. First, Mr. Easter alleges that errors committed by the


4 Mr. Easter sought approximately three years of compensatory
education services, but was awarded only one year. Compl., ECF
No. 1, at ¶¶ 48, 55. Additionally, Mr. Easter raised “systemic”
claims and a claim under the Rehabilitation Act, but these
claims were dismissed for lack of jurisdiction. Id. at ¶ 55.


                                 4
Hearing Officer adversely impacted the level of compensatory

education he was awarded. 5 Id. at 15-20. Second, Mr. Easter

alleges that the District systematically violated the IDEA by

failing to identify a Local Education Agency responsible for

students committed to ASY. Id. at 20-24. Third, Mr. Easter

alleges that the District discriminated against him because of

his disability, in violation of Section 504 of the

Rehabilitation Act. Id. at 24-25. Mr. Easter seeks a declaratory

judgment against DCPS and OSSE, an order that the District

provide appropriate compensatory awards to Mr. Easter, an award

of attorney’s fees and costs, and any other relief the Court

deems just and proper. Id. at 25.

    On December 5, 2014, the District moved for partial dismissal

of the complaint pursuant to Federal Rule of Civil Procedure

12(b)(6). Def’s. Mot., ECF No. 9. The District contends that Mr.

Easter’s “systemic” claim is not cognizable under the IDEA and

that Mr. Easter has failed to plead sufficient facts in support

of a Rehabilitation Act claim. 6 Id. at 5-8. On January 22, 2015,

Mr. Easter moved to amend his complaint. Pl’s. Mot., ECF No. 14.




5 Among other things, Mr. Easter argues that the Hearing Officer
erred in finding that DCPS did not have notice of his
homelessness. Compl., ECF No. 1 at ¶ 59-70.
6 The District does not move to dismiss Mr. Easter’s claim of
Hearing Officer error.


                                 5
Without conceding that his initial complaint failed to state a

claim, Mr. Easter argues that the proposed amended complaint is

a timely, good faith effort to clarify the facts and legal

theories underlying his claims. 7 Id. at 4. In addition to the

relief sought in the original complaint, the amended complaint

also seeks injunctive relief requiring the District to take

appropriate affirmative steps to remedy the systemic violations.

Id. at 27. The District opposes the motion to amend. Def’s.

Opp., ECF No. 17.

    II.   STANDARD OF REVIEW

    Federal Rule of Civil Procedure 15(a) provides that leave to

file an amended complaint should be “freely give[n]. . . when

justice so requires.” Fed. R. Civ. P. 15(a)(2). Thus, although

the decision to grant a motion to amend is within the district

court’s discretion, Walker v. Pharm Research & Mfrs. of Am., 256

F.R.D. 234, 238 (D.D.C. 2009), it is an abuse of discretion for

the court to deny leave without “provid[ing] a sufficiently

compelling reason.” Robinson v. Detroit News, Inc., 211 F. Supp.




7 Specifically, the amended complaint divides the systemic claim
into two separate counts – one concerning the District’s failure
to monitor and enforce the IDEA to ensure all students receive
FAPE, and the second concerning the District’s failure to
identify the Local Education Agency responsible for students in
the juvenile justice system. See generally Amend. Compl., ECF
No. 14-1 at 20-25. Mr. Easter’s other claims remain
substantially similar although he provides additional facts. See
generally id.
                                 6
2d 101, 113-114 (D.D.C. 2002). Such reasons may include “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] futility of amendment.” Foman

v. Davis, 371 U.S. 178, 182 (1962). Generally, under Rule 15(a)

the non-movant bears the burden of persuasion that a motion to

amend should be denied. See Dove v. Wash. Metro. Area Trasit

Auth., 221 F.R.D. 246, 247 (D.D.C. 2004).

  Where the court grants the Plaintiff’s motion for leave to

file an amended complaint, the amended complaint supersedes the

prior operative complaint. Nat’l Mortg. Co. v. Navarro, 220

F.R.D. 102, 106 (D.D.C. 2006)(citing Washer v. Bullit Cnty., 110

U.S. 558, 562 (1884)). Any pending motions to dismiss the prior

operative complaint may be dismissed without prejudice as moot.

Nat’l Mortg. Co., 220 F.R.D. at 106; Johnson v. District of

Columbia, No. 13-CIV-1445, 2015 WL 4396698, at *2 (D.D.C. July

7, 2015)(citing Turner v. Knight, 192 F. Supp. 2d 391, 397 (D.

Md. 2002)).

  III. ANALYSIS

     A. Mr. Easter’s Amended Complaint is Timely and in Good
        Faith

  Mr. Easter argues that the amended complaint is a timely and

good faith effort to clarify the facts and legal theories


                                7
underlying his claims and that the amended complaint does not

radically alter the scope and nature of his claims for relief. 8

Pl.’s Mot., ECF No. 14 at 6-7. He argues that the District will

not be unduly prejudiced by the filing of an amended complaint

and that the amended complaint is not futile because it states a

plausible claim for relief. Id. at 7-8. The District argues that

granting leave to amend is futile because Mr. Easter’s systemic

claims and Rehabilitation Act claim, as alleged in the amended

complaint, fail to cure deficiencies in his original complaint.

Def.’s Opp., ECF No. 17 at 4. 9

    “An amendment is futile if the proposed claim would not

survive a motion to dismiss.” Smith v. Café Asia, 598 F. Supp.

2d 45, 48 (D.D.C. 2009) (internal quotation marks omitted). For




8 Mr. Easter first argues that he is entitled to file an amended
complaint “as a matter of course” pursuant to Federal Rule
15(a)(1). See Pl.’s Mot., ECF No. 14 at 1, 5-6. After the 2009
Amendments to the Federal Rules of Civil Procedure, however,
this is no longer correct. The amended rule now provides for
amendment “as a matter of course” within “21 days after service
of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f) whichever is earlier.” Fed. R.
Civ. P. 15(a)(1)(B). The District filed a motion to dismiss
pursuant to Rule 12(b)(6) on December 5, 2014 and Mr. Easter did
not file a motion to amend his complaint until January 22, 2015
– that is, 48 days later. Accordingly, the applicable provision
is Rule 15(a)(2) which provides that “[i]n all other cases, a
party may amend its pleading only with the opposing party’s
written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).

9 The District does not argue that it would be unduly prejudiced
by the filing of an amended complaint or that Mr. Easter has
acted in bad faith, or with dilatory motive, in moving to amend.
                                  8
practical purposes, review for futility is identical to review

of a Rule 12(b)(6) motion to dismiss. Driscoll v. George

Washington Uni., 42 F. Supp. 3d 52, 57 (D.D.C. 2012). A claim

survives a motion to dismiss if it pleads “enough facts to state

a claim to relief that is plausible on its face.” Bell Atl. Co.

v. Twombly, 550 U.S. 544, 570 (2007); see also Foman, 371 U.S.

at 182 (“If the underlying facts or circumstances relied on by a

plaintiff may be a proper subject for relief, he ought to be

afforded an opportunity to test his claim on the merits.”).

     1. Mr. Easter’s “Systemic” Claims

  The District argues Mr. Easter’s “systemic” claims are futile

because they fail to identify an appropriate claim for relief.

Def’s. Opp., ECF No. 17 at 5. Mr. Easter counters that his

allegations concerning the District’s failure to monitor the

Local Education Agencies and failure to identify a Local

Education Agency for students committed to ASY clearly establish

an IDEA violation. Pl.’s Mot., ECF No. 18 at 2-3.

  Courts have recognized “systemic” claims under the IDEA where

the plaintiff has alleged a “pattern and practice” of systematic

IDEA violations unable to be addressed through the Due Process

Hearing procedures. See Quatroche v. East Lyme Bd. of Educ., 604

F. Supp. 2d 403, 411 (D. Conn. 2009) (citing Mrs. W. v. Tirozzi,

832 F.2d 748, 757 (2nd Cir. 1987)). A claim is “systemic” where

the complaint “implicates the integrity of the IDEA’s dispute

                                9
resolution procedures themselves, or requires restructuring of

the education system itself in order to comply with the dictates

of the [IDEA].” Mrs. M. v. Bridgeport Board of Educ., 96 F.

Supp. 2d 124, 133 n. 12 (D. Conn. 2000); see also Blunt v. Lower

Meiron School Dist., 559 F. Supp. 2d 548, 558 (E.D. Pa. 2008)

(recognizing an exception to the IDEA’s administrative

exhaustion requirement where the plaintiff has alleged “systemic

legal deficiencies” unable to be remedied through administrative

procedures).

  Mr. Easter has sufficiently stated a systemic violation of the

IDEA by alleging that the District failed to identify a Local

Education Agency responsible for students at ASY. This failure,

he alleges, meant that he was not offered special education

services while committed to ASY. This is precisely the type of

issue that cannot be addressed on a student-by-student basis

during Due Process Hearings, but is better addressed by seeking

injunctive relief in federal court, as Mr. Easter does here.

Accordingly, Ms. Easter’s systemic claims are not futile.

     2. Mr. Easter’s Rehabilitation Act Claim

  The District argues that Mr. Easter’s Rehabilitation Act claim

is futile because he fails to allege that he was discriminated

against solely based on his disability, or that OSSE and DCPS

acted with bad faith or gross misjudgment. Def’s. Opp., ECF No.

17 at 6-7. Mr. Easter maintains that his allegations clearly

                               10
establish the nexus between his disability and the District’s

failure to provide him FAPE. Pl.’s Rep., ECF No. 18 at 5.

Further, Mr. Easter argues that he has pled sufficient facts to

raise a reasonable inference that the District exercised gross

misjudgment in that the District (1) failed to offer adult

education to someone with his special education needs, and (2)

suggested he waive his right to FAPE in order to attend school

with his same-age peers. Id.

  To sustain a Rehabilitation Act claim, a plaintiff must show

that the discrimination or exclusion was caused “solely by

reason of” his or her disability. Alston v. District of

Columbia, 561 F. Supp. 2d 29, 38 (D.D.C. 2008)(citing Lunceford

v. D.C. Bd. of Educ., 745 F.2d 1577, 1580 (D.C. Cir. 1984)).

Further, liability will not be imposed so long as the officials

involved exercised “professional judgment, in such a way as to

not depart grossly from accepted standards among education

professionals.” Walker v. District of Columbia, 969 F. Supp.

794, 797 (D.D.C. 1997).

  The allegations in the amended complaint support a

Rehabilitation Act claim. While adult students who do not have

disabilities may attend alternative programs with their same-age

peers, Mr. Easter was denied a free appropriate education at an

alternative program because he required more special education

services than any program for adult students could provide. In

                               11
other words, Mr. Easter alleges he was denied the same services

as other adult students solely because of his disability.

Further, Mr. Easter alleges that he was given the choice between

waiving his right to special education in order to attend school

with his same-age peers or attending a traditional high school

as a ninth grader. A reasonable fact finder may conclude that

such a choice was grossly out of line with accepted educational

standards. Allowing amendment of Mr. Easter’s Rehabilitation Act

claim is therefore not futile, and Mr. Easter’s motion to amend

the complaint is granted.

     B. The District’s Motion to Dismiss is Moot

  Leave to amend the complaint having been granted, Mr. Easter’s

amended complaint supersedes the original complaint and becomes

the operative complaint. See Nat’l Mortg. Co., 220 F.R.D. at

106. The District’s pending motion to dismiss refers to the

original complaint. Where leave to amend the complaint has been

granted, all pending motions pertaining to the prior operative

complaint may be denied without prejudice as moot. Id.; Johnson,

2015 WL 4396698, at *5. Accordingly, the District’s motion to

dismiss the original complaint is denied without prejudice as

moot.

  IV.   CONCLUSION

  For the foregoing reasons, Mr. Easter’s motion for leave to

file an amended complaint is GRANTED, and the District’s motion

                               12
for partial dismissal of the original complaint is DENIED

WITHOUT PREJUDICE AS MOOT. An appropriate order accompanies this

Memorandum Opinion.

Signed:   Emmet G. Sullivan
          United States District Judge
          September 8, 2015




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