                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 14 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

K.D., a minor, by and through her guardian      No.    19-56192
ad litem, Leila Carrera,
                                                D.C. No.
                Plaintiff-Appellant,            2:19-cv-02032 PA (Ex)

 v.
                                                MEMORANDUM*
LOS ANGELES UNIFIED SCHOOL
DISTRICT,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                    Percy Anderson, District Judge, Presiding

                           Submitted August 12, 2020**
                              Pasadena, California

Before: CALLAHAN, BUMATAY, and VANDYKE, Circuit Judges.

      K.D., a minor, by and though her guardian ad litem, appeals the district

court’s dismissal of her action under the Individuals with Disabilities Education

Act (“IDEA”) against the Los Angeles Unified School District (“LAUSD”). The


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
district court concluded that K.D. failed to exhaust the administrative process

required by the IDEA because her claim effectively alleged denial of a free and

appropriate public education (“FAPE”). We have jurisdiction under 28 U.S.C. §

1291, and we affirm.

       K.D. is a minor with a genetic disorder (Prader-Willi Syndrome) that

produces, among other disabilities, intellectual and speech delays and a sense of

hunger that cannot be sated. K.D. alleges that, over the course of her education,

the LAUSD never provided teachers and staff with training related to Prader-Willi

Syndrome, did not conduct an Assistive Technology/Augmentative and Alternative

Communication (“AT/AAC”) assessment of K.D., did not include important

specialists in K.D.’s periodic IEP meetings, and denied K.D.’s mother’s request for

a one-on-one aid or the assistance of a behavioral therapist. As a result of the

LAUSD’s alleged failures, K.D. claims to have suffered a denial of meaningful

access to the benefits of a public education, loss of equal educational opportunity,

humiliation, hardship, anxiety, depression, and a physical injury. K.D. requested a

due process hearing under the IDEA to raise her claims, but before the hearing was

held, K.D. and the LAUSD entered into a settlement agreement. Subsequently,

K.D. filed this suit.

       We apply Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017), to

determine when claims fall under the exhaustion requirement of the IDEA. There,


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the Supreme Court explained that “§ 1415(l)’s exhaustion rule hinges on whether a

lawsuit seeks relief for the denial of a free appropriate public education,” id. at

754, which hinged on two 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” and (2) “could an adult at the school—say, an employee or

visitor—have pressed essentially the same grievance?” Id. at 756. The Supreme

Court concluded that “when the answer [to those questions] is no, then the

complaint probably does concern a FAPE, even if it does not explicitly say so.” Id.

      Here, K.D.’s claims could only be brought by a student, and only against a

school, because they are based on an alleged failure to assess her needs as a student

and provide appropriate education to meet those needs. Accordingly, the district

court properly held that K.D. had to exhaust her IDEA remedies before seeking

judicial relief. This determination is further supported by the fact that K.D.

initiated the IDEA’s process before filing her lawsuit. See id.

      K.D. also argues that exhaustion would be futile because she seeks monetary

damages—which are not available under the IDEA administrative process. We

rejected this argument in Paul G. v. Monterey Peninsula Unified School District,

933 F.3d 1096 (9th. Cir. 2019), where, as here, the damages sought were based on

an alleged failure to provide a FAPE.

      We also held that the administrative process should have the first


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opportunity to determine if a failure occurred, notwithstanding plaintiff’s request

for monetary damages. Id. at 1102. Similar to Paul G., K.D. settled with the

LAUSD without receiving a determination of her administrative claims. Settling a

case without receiving an administrative ruling does not satisfy the IDEA’s

exhaustion requirement. Paul G., 933 F.3d at 1098 (“Plaintiffs failed to exhaust

because they settled their IDEA case without receiving an administrative decision

. . . .”). Therefore, we hold that K.D. failed to administratively exhaust her claims

below.

       “The exhaustion requirement is intended to prevent courts from acting as

ersatz school administrators and making what should be expert determinations

about the best way to educate disabled students.” Payne v. Peninsula Sch. Dist.

653 F.3d 863, 876 (9th Cir. 2011) (en banc), overruled on other grounds by Albino

v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc). That concern is particularly

apropos here, where liability turns on whether K.D. should have been assessed for

possible communication accommodations, and what form those accommodations

should have taken. K.D.’s claims are best handled by school administrators—not

this court.

       The district court correctly held that the gravamen of K.D.’s claims relate to

her FAPE and that she was therefore required to exhaust the IDEA’s administrative

remedies. K.D.’s request for monetary damages does not excuse her from


                                          4
exhausting those administrative remedies, and K.D.’s settlement with the LAUSD

does not constitute exhaustion of those administrative remedies. The district

court’s dismissal of K.D.’s action is AFFIRMED.




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