                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA


                                  )
NICOLE LUCAS,                     )
                                  )
                Plaintiff,        )
                                  ) Civil Action No. 09-247 (EGS)
                v.                )
                                  )
DISTRICT OF COLUMBIA, et al.,     )
                                  )
                Defendants.       )
                                  )


                          MEMORANDUM OPINION

     Plaintiff Nicole Lucas alleges that the District of Columbia

and the District of Columbia Public Schools (“DCPS”) violated the

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

seq., and § 504 of the Rehabilitation Act (“the Rehabilitation

Act”), 29 U.S.C. § 794, by failing to provide her daughter, U.L.,

with a free appropriate education (“FAPE”).1    Compl. ¶ 2.

Pending before the Court is defendants’ motion for partial

dismissal of the complaint.    Specifically, defendants’ seek

(i) dismissal of defendant DCPS from the action as non sui juris,

     1
       The IDEA was enacted to assure that children with
educational disabilities obtain a FAPE designed to meet their
unique needs. See 20 U.S.C. § 1400, et seq.; see Reid v.
District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). The
IDEA “ensure[s] that the rights of children with disabilities and
parents of such children are protected.” 20 U.S.C. § 1400(d).
For purposes of this motion, defendants are not challenging
plaintiff’s IDEA claims. See Def.’s Mot. at 7 (“Defendants do
not dispute that Plaintiff is entitled to a FAPE, as provided for
in the IDEA, 20 U.S.C. § 1421(a)(1). Nor do Defendants contest
. . . that U.L. may have disabilities that entitle her to various
special education services under the IDEA.”).
and (ii) dismissal of plaintiff’s Rehabilitation Act claim for

failure to state a claim.   Upon consideration of the motion, the

response and reply thereto, the applicable law, and for the

reasons stated below, the Court GRANTS defendants’ motion.

I.   BACKGROUND

     Ms. Lucas is the parent of U.L., an eight-year-old girl who

qualifies for special education and related services as a child

with multiple disabilities.   Compl. ¶¶ 5, 8.   On or about April

4, 2008, DCPS convened a multidisciplinary team meeting for U.L.,

in which it determined that occupational therapy, psychiatric,

clinical psychological, speech and language, and functional

behavioral assessment evaluations of U.L. were warranted.    Compl.

¶¶ 9, 10.   After DCPS failed to complete speech and language,

clinical psychological, or functional behavioral assessment

evaluations of U.L. by September 17, 2008, Compl. ¶ 11, plaintiff

filed an IDEA due process complaint alleging that DCPS “had

failed timely to conduct and review evaluations in all areas of

suspected disability.”   Compl. ¶¶ 12-13 (internal quotation marks

omitted).   A hearing on the administrative complaint was held on

October 22, 2008, and a hearing officer’s decision issued on

November 12, 2008, denying plaintiff’s request for a finding of a

denial of a FAPE for DCPS’ failure to conduct and review a

clinical psychological evaluation, and dismissing that claim.

Compl. ¶¶ 14-15.


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      Following dismissal of her administrative action, plaintiff

filed suit in this Court alleging violations of the IDEA and

§ 504 of the Rehabilitation Act.       Defendants subsequently filed a

motion for partial dismissal of plaintiff’s complaint.      This

motion is now ripe for determination by the Court.

II.   LEGAL STANDARD

      A motion to dismiss under Rule 12(b)(6) tests the legal

sufficiency of a complaint.     Browning v. Clinton, 292 F.3d 235,

242 (D.C. Cir. 2002).     A complaint must present “enough facts to

state a claim to relief that is plausible on its face” and “above

the speculative level.”     Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007).   In considering a 12(b)(6) motion, the Court

must construe the complaint “‘liberally in the plaintiff’s

favor,’ ‘accept[ing] as true all of the factual allegations’”

alleged in the complaint.     Aktieselskabet AF 21 November 2001 v.

Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008) (alteration in

original) (quoting Kassem v. Wash. Hosp. Ctr., 513 F.3d 251, 253

(D.C. Cir. 2008)).     Indeed, a plaintiff is entitled to “the

benefit of all inferences that can be derived from the facts

alleged.”   Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.

Cir. 1994).   A court need not, however, “accept inferences drawn

by plaintiffs if such inferences are unsupported by the facts set

out in the complaint.     Nor must [a] court accept legal

conclusions cast in the form of factual allegations.”       Id.


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“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).    “[O]nly a

complaint that states a plausible claim for relief survives a

motion to dismiss.”     Id.

III. ANALYSIS

     A.     Defendant DCPS

     Defendants seek dismissal of defendant DCPS as non sui

juris, explaining that DCPS is a non-suable agency.    See Def.’s

Mot. at 7-8.    In her opposition brief, plaintiff indicates that

she “does not oppose the dismissal of DCPS” as her “[c]laims

against DCPS, an agency of the District of Columbia, may be

properly construed as having been brought against the District.”

Pl.’s Opp’n Br. at 1.    Accordingly, defendant DCPS is dismissed

as a party from this action.

     B.     Section 504 of the Rehabilitation Act

     Next, defendants seek dismissal of Count III of plaintiff’s

complaint - her Rehabilitation Act claim.    See Compl. ¶¶ 22-28.

Plaintiff seeks a declaration that “DCPS violated Section 504 [of

the Rehabilitation Act] by failing to provide U.L. with [a]

FAPE.”    Compl. ¶ 2.

     Section 504 of the Rehabilitation Act provides that “[n]o

otherwise qualified handicapped individual in the United States

. . . shall, solely by reason of his handicap, be excluded from

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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; see also Robinson

v. District of Columbia, 535 F. Supp. 2d 38, 42 (D.D.C. 2008)

(“Section 504 prohibits programs and entities that receive

federal funding from denying benefits to, or otherwise

discriminating against, a person ‘solely by reason’ of that

individual’s handicap.”).   In the context of cases involving

children who receive benefits pursuant to the IDEA, courts have

consistently recognized that in order to establish a violation of

§ 504, “‘something more than a mere failure to provide the free

appropriate education required by [the IDEA] must be shown.’”

Lunceford v. District of Columbia, 745 F.2d 1577, 1580 (D.C. Cir.

1984) (quoting Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th Cir.

1982)); see also Robinson, 535 F. Supp. 2d at 42 (citing cases).

“Specifically, plaintiffs must show either bad faith or gross

misjudgment on the part of the governmental defendants.”

Robinson, 535 F. Supp. 2d at 42.

     Having carefully reviewed plaintiff’s complaint, the Court

concludes that plaintiff has alleged insufficient facts to

establish a violation of § 504.        Id.   The relevant facts, as set

forth in Ms. Lucas’ complaint, are that: (i) DCPS convened a

multidisciplinary team meeting for U.L., in which it determined

that occupational therapy, psychiatric, clinical psychological,


                                   5
speech and language, and functional behavioral assessment

evaluations of U.L. were warranted, Compl. ¶¶ 9-10; and (ii) DCPS

did not complete the speech and language, clinical psychological,

or functional behavioral assessment evaluations of U.L. by

September 17, 2008, which prompted Ms. Lucas to file a due

process complaint.   Compl. ¶¶ 11-12.   Even when viewed in the

light most favorable to plaintiff, “[t]hese facts do not show

anything other than a possible denial of FAPE under the IDEA”;

they do not support an allegation that DCPS acted in bad faith or

with gross misjudgment.   Torrence v. District of Columbia, No.

09-443, 2009 U.S. Dist. LEXIS 107305, at *12 (D.D.C. Nov. 17,

2009); see also, e.g., Robinson, 535 F. Supp. 2d at 42 (“Although

plaintiffs’ complaint includes allegations that defendants failed

to provide D.R. with a FAPE, that defendants failed to provide

appropriate special education services and evaluations, and that

the hearing officer erred in his decision to dismiss plaintiffs’

case in its entirety, the complaint completely fails to suggest

allegations of bad faith or gross misjudgment sufficient to

support a Section 504 claim.   Hence, that claim must be

dismissed.”).   Plaintiff, therefore, has failed to state a claim

under § 504 of the Rehabilitation Act.

     While plaintiff also asserts that “DCPS has created and

adhered to a policy, custom or practice of refusing timely to

authorize funding of evaluations of special education students in


                                 6
the District of Columbia, including U.L.,” and that this “policy,

custom, or practice” is evidence of bad faith and gross

misjudgment, see Compl. ¶¶ 27-29, plaintiff’s complaint is devoid

of any facts from which the Court could infer such a “policy,

custom, or practice.”    The facts, as alleged, reflect only the

District’s failure to timely conduct, review, or authorize the

funding of an independent evaluation of U.L.; plaintiff’s “naked

assertions” of a broader “policy, custom, or practice” are simply

insufficient to survive a motion to dismiss.    See Iqbal, 129 S.

Ct. at 1949-50 (“A pleading that offers ‘labels and conclusions’

or ‘a formulaic recitation of the elements of a cause of action

will not do.’   Nor does a complaint suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’ . . .

While legal conclusions can provide the framework of a complaint,

they must be supported by factual allegations.” (internal

citations omitted)).    Indeed, the conclusory, boilerplate

language of Count III - which plaintiff’s counsel has included in

at least three separate actions filed in this court - recently

led Judge Collyer to dismiss an identically pled Rehabilitation

Act claim.   See Torrence, 2009 U.S. Dist. LEXIS 107305, at *8-13

(concluding that the plaintiff had failed to state a claim under

§ 504 of the Rehabilitation Act, and noting that “§ 504 [of the

Rehabilitation Act] is attuned to programatic failures while the

IDEA is focused on the individual student who needs special


                                  7
education”); compare Torrence Compl. ¶¶ 23-29, No. 09-443, Docket

No. 1 with Lucas Compl. ¶¶ 24-30, No. 09-247, Docket No. 1.2

Accordingly, Count III of plaintiff’s complaint is dismissed for

failure to state a claim.

IV.   CONCLUSION

      For the reasons set forth above, the Court GRANTS

defendants’ motion for partial dismissal.   Defendant DCPS is

dismissed as a party from this action, and Count III of

plaintiff’s complaint is dismissed for failure to state a claim

under § 504 of the Rehabilitation Act.   An appropriate Order

accompanies this Memorandum Opinion.

SIGNED:    Emmet G. Sullivan
           United States District Court Judge
           February 2, 2010




      2
        The third case in which this conclusory language is used
is Taylor v. District of Columbia, No. 09-175. By Order this
same day, the Court is dismissing the Rehabilitation Act claim in
that case as well.

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