                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 DERRICK SHELTON

    Plaintiff,

      v.                                                    Civil Action No. 07-933 (CKK)

 MAYA ANGELOU PUBLIC CHARTER
 SCHOOL,

    Defendant.


                                  MEMORANDUM OPINION
                                    (September 18, 2009)

       Plaintiff, Derrick Shelton, an adult student, brought this action under the Individuals with

Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et. seq.,1 as well as 42 U.S.C. § 1983

(“Section 1983”), against Defendant, Maya Angelou Public Charter School (“MAPCS”). The

IDEA provides that all children with disabilities will be provided a free and appropriate public

education (“FAPE”), and provides for procedural safeguards to ensure that disabled children

receive individualized education programs (“IEP”) to fulfill the Act’s goals. Plaintiff alleges that

Defendant MAPCS has failed to comply with an April 5, 2007 Hearing Officer Determination

(“HOD”), and seeks declaratory and injunctive relief.

       The parties in this case previously filed cross-motions for summary judgment. In a

Memorandum Opinion and Order dated September 26, 2008, the Court denied Defendant’s


       1
        The IDEA was reauthorized and recodified pursuant to the Individuals with Disabilities
Education Improvement Act in 2004, Pub. L. No. 108-446, 118 Stat. 2647 (2004). The
amendments provide that the short title of the reauthorized 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) (“This chapter may be cited as the ‘Individuals with Disabilities
Education Act’”). Accordingly, the Court refers to the amended Act herein as the IDEA.
motion for summary judgment, and granted-in-part and denied-in-part Plaintiff’s motion for

summary judgment. See Shelton v. Maya Angelou Pub. Charter Sch., 578 F. Supp. 2d 83

(D.D.C. 2008). As is specifically relevant to the instant Memorandum Opinion, the Court denied

Plaintiff’s motion for summary judgment with respect to his Section 1983 claim, finding that

Plaintiff had “altogether fail[ed] to demonstrate that he is entitled to summary judgment.”2 See

id. at 105. The Court emphasized in particular that Plaintiff had wholly “fail[ed] to establish

‘that the District of Columbia has a custom or practice that is the moving force behind the

alleged IDEA violations,’” as is required to state a Section 1983 claim based upon an alleged

IDEA violation. See id. (quoting Walker v. District of Columbia, 157 F. Supp. 2d. 11, 30

(D.D.C. 2001)). Rather, Plaintiff’s motion for summary judgment “state[d] only that ‘the refusal

to comply with hearing officer’s determinations is not a new phenomenon in the District of

Columbia Public School system,’” and did “not provide any factual support for this assertion.”

Id. at 105 (quoting Pl.’s MSJ at 14). Although such a failure “would ordinarily indicate that his

Section 1983 claim should not proceed to trial,” because the Defendant had not addressed

Plaintiff’s Section 1983 claim at all in its motion for summary judgment nor had it moved for

summary judgment in its favor on that claim, the Court was unable to dismiss the Section 1983

claim from this lawsuit. See id. Accordingly, the Court denied Plaintiff’s motion for summary



       2
         The Court also denied Plaintiff’s motion for summary judgment with respect to his
IDEA claim and allegations that MAPCS’ refusal to implement the HOD ultimately resulted in a
denial of FAPE. Shelton, 578 F. Supp. 2d at 101-04. As permitted by the Court’s September 26,
2008 Order, Plaintiff has since filed a renewed motion for summary judgment on his IDEA claim
and request for compensatory education. See Pl.’s Mem. in Support of his Request for
Compensatory Education, Docket No. [30]. Plaintiff’s renewed motion filed with respect to his
IDEA claim shall be addressed by separate order and is not at issue in the instant Memorandum
Opinion.

                                                 2
judgment with respect to his Section 1983 claim, but concluded that Plaintiff’s Section 1983

must remain in the lawsuit for the time being. Id. However, given the complete lack of support

for Plaintiff’s Section 1983 claim, the Court directed the Defendant to “file an appropriate

motion regarding the viability of Plaintiff’s Section 1983 claim.” Id.

       Pursuant to that directive, Defendant filed a [29] Motion to Dismiss Plaintiff’s Section

1983 Claim, which is now pending before the Court. Upon a searching examination of both

parties’ filings, the relevant statutes and case law, and the entire record herein, the Court finds

that Plaintiff has failed to state a Section 1983 claim, and therefore GRANTS Defendant’s [29]

Motion to Dismiss pursuant to Rule 12(b)(6), for the reasons set forth below.

                                        I. BACKGROUND

       The Court assumes familiarity with the factual background of this case, which is set forth

in detail in its September 26, 2008 Memorandum Opinion, see generally Shelton, 578 F. Supp.

2d 83, and therefore discusses only those facts and allegations that are relevant to the pending

Motion to Dismiss.3 On May 21, 2007, Plaintiff filed the Complaint in the above-captioned civil

action. See Compl., Docket No. [1]. As is relevant to the issues at hand, Plaintiff’s Complaint

alleges a Section 1983 claim based on alleged violations of the IDEA—more specifically, the

Defendant’s refusal to comply with the April 5, 2007 HOD. See Compl. ¶¶ 26-31. Plaintiff

contends that “MAPCS have [sic] violated and continue to violate section 1983 by blatantly

refusing to comply with the April 5, 2007 HOD,” and that these actions, which “were performed

under the color of state law,” resulted in a violation of Plaintiff’s “rights under federal statute”

       3
         The Court emphasizes that, although Defendant’s briefing occasionally refers to
materials outside the pleadings, see, e.g., Def.’s Reply at 3 (referencing “[t]he exhibits relied on
by both Plaintiff and Defendant in the recent filings”), the Court has not relied upon or
considered any material outside the pleadings in ruling upon the instant Motion to Dismiss.
                                                   3
(i.e., the IDEA). Id. ¶¶ 27-29. Plaintiff furthis alleges that he “has suffered and is suffering

irreparable harm to his education and development,” and that “the actions of MAPCS are

interfering with [his] ability to obtain access to a free and appropriate education.” Id. ¶¶ 30-31.

Noticeably absent from Plaintiff’s Complaint is any allegation that the District or MAPCS has or

had a custom or practice of refusing to comply with HODs or that the alleged IDEA violation in

this case were somehow caused by an alleged municipal custom or practice. See generally id.

       Currently pending before the Court is Defendant’s Motion to Dismiss, in which the

Defendant asserts that Plaintiff’s Section 1983 claim should be dismissed for failure to state a

claim pursuant to Rule 12(b)(6).4 See Def.’s MTD, Docket No. [29]. Plaintiff has filed an

Opposition, see Pl.’s Opp’n, Docket No. [32], and Defendant a Reply, see Def.’s Reply, Docket

No. [33]. Accordingly, briefing with respect to Defendant’s Motion to Dismiss is now complete

and the matter is ripe for the Court’s review and resolution.

                                     II. LEGAL STANDARD

       The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain

statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));

accord Erickson v. Pardus, 551 U.S. 89, 93 (per curiam). Although “detailed factual allegations”



       4
          Although Defendant, in moving to dismiss Plaintiff’s Section 1983, did not specifically
articulate that its motion is brought pursuant to Federal Rule of Civil Procedure 12(b)(6), it is
nonetheless readily apparent that Defendant’s motion is a Rule 12(b)(6) motion for failure to
state a claim. See, e.g., Def.’s MTD at 2 (“Plaintiff has failed to establish . . . the required
elements for a § 1983 claim); Pl.’s Opp’n at 2 (describing Defendant’s motion as a “Rule
12(b)(6) motion[]”).

                                                  4
are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the “grounds” of

“entitle[ment] to relief,” a plaintiff must furnish “more than labels and conclusions” or “a

formulaic recitation of the elements of a cause of action.” Id. at 1964-65; see also Papasan v.

Allain, 478 U.S. 265, 286 (1986). Instead, a complaint must contain sufficient factual matter,

accepted as true, to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at

570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).

       In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must

construe the complaint in a light most favorable to the plaintiff and must accept as true all

reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine

Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also

Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (“The complaint must be ‘liberally

construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be

derived from the facts alleged.”). However, as the Supreme Court recently made clear, a plaintiff

must provide more than just “a sheer possibility that a defendant has acted unlawfully.” Iqbal,

129 S. Ct. at 1950. Where the well-pleaded facts set forth in the complaint do not permit a court,

drawing on its judicial experience and common sense, to infer more than the “mere possibility of

misconduct,” the complaint has not shown that the pleader is entitled to relief. Id. at 1950.

                                        III. DISCUSSION

       As the Court previously explained in its September 26, 2008 Memorandum Opinion,

courts in this District have concluded that “IDEA violations can be the predicate for a § 1983


                                                  5
claim based on those statutory violations.” Johnson v. District of Columbia, 190 F. Supp. 2d 34,

46-47 (D.D.C. 2002); R.S. v. District of Columbia, 292 F. Supp. 2d 23, 28 (D.D.C. 2003). In

considering such claims, courts have largely applied a four-part test, requiring plaintiffs to show:

(1) that the defendant violated IDEA; (2) that “exceptional circumstances” exist, such that the

defendant’s conduct that caused the IDEA violation was persistently egregious and prevented or

frustrated the plaintiff from securing equitable relief under the IDEA; (3) “that the District of

Columbia has a custom or practice that is the moving force behind the alleged IDEA violations”;

and (4) that the normal remedies offered under the IDEA, including compensatory education, are

inadequate to compensate the plaintiff for the harm he or she allegedly suffered. Walker v.

District of Columbia, 157 F. Supp. 2d. 11, 30 (D.D.C. 2001); R.S., 292 F. Supp. 2d at 28.

Alternatively, some courts have only considered the first and third factors of the Walker test. See

R.S., 292 F. Supp. 2d at 29 (citing Johnson, 190 F. Supp. 2d at 46-47, Zearley v. Ackerman, 116

F. Supp. 2d 109, 114 (D.D.C. 2000)).

       Defendant has moved for dismissal of Plaintiff’s Section 1983 claim pursuant to Rule

12(b)(6), arguing that—even assuming Plaintiff can demonstrate a violation of the IDEA as

required in prong one—Plaintiff has failed to adequately allege the required elements as set forth

in the second, third and fourth prongs of the Walker test. Because the Court agrees with

Defendant that Plaintiff has failed to allege “that the District of Columbia has a custom or

practice that is the moving force behind the alleged IDEA violations,” as is required under the

third prong, Plaintiff’s Section 1983 claim fails for this reason, and the Court need not consider

Defendant’s arguments in the alternative.

       Plaintiff’s Section 1983 claim is predicated solely upon the Defendant’s refusal to comply


                                                  6
with the April 5, 2007 HOD. See Compl. ¶¶ 26-31. As the Court previously explained in its

September 26, 2008 Memorandum Opinion, Plaintiff’s allegation that the Defendant violated the

April 5, 2007 HOD is, without more, insufficient to support a Section 1983 claim. Plaintiff must

also set forth some factual basis to support an allegation that a municipal policy or custom caused

Defendant to violate the HOD. See Shelton, 578 F. Supp. 2d at 104-05. This Plaintiff has not

done. Indeed, Plaintiff has neither alleged that the Defendant’s refusal to comply with the HOD

was somehow caused by an alleged municipal custom or practice nor has he set forth in his

Complaint any factual allegations that would support a reasonable inference that the District or

MAPCS has or had a custom or policy of refusing to comply with HODs. See generally Compl.

       Plaintiff’s only argument in support of his claim that he has sufficiently alleged a

municipal policy or practice is his ill-founded assertion that the Defendant’s refusal to comply

with the April 5, 2007 HOD is somehow by itself a municipal policy. See Pl.’s Opp’n at 9.

According to Plaintiff, “MAPCS’ refusal to comply with a hearing officer’s determination

resulted in a single decision that became policy.” Id. Plaintiff further continues that this “single

decision made by MAPCS, resulted in staff understanding that in situations regarding

unfavorable HOD’s, noncompliance was allowed because the unfavorable HOD was being

appealed.” Id. Significantly, however, Plaintiff has not offered any factual support for this

statement nor has he pointed to any factual allegations in the Complaint or elsewhere that could

reasonably be inferred to support such an assertion. Simply opining without support that a

particular act is a policy does not make it so. Rather, Plaintiff must offer a factual basis for this

claim, which he has not done.

       Plaintiff responds that “section 1983 does not require a plaintiff to prove multiple


                                                   7
instances of misconduct if the plaintiff can prove an unconstitutional municipal policy

responsible for a single instance of misconduct.” Id. This argument misses the point entirely.

Although a Plaintiff need not allege multiple instances of misconduct in order to successfully

state a Section 1983 claim, a plaintiff does need to include some factual basis for the allegation

that a municipal policy or custom caused the alleged IDEA violations—whether that is shown

through allegations of multiple incidents or otherwise. Accordingly, because Plaintiff’s

Complaint does not set forth any factual allegations that could support a reasonable inference that

the Defendant had a policy or practice of refusing to comply with HODs or that the alleged IDEA

violation in this case was the result of a municipal policy, Defendant’s [29] Motion to Dismiss

Plaintiff’s Section 1983 Claim for failure to state a claim pursuant to Rule 12(b)(6) is

GRANTED.

                                       IV. CONCLUSION

       For the foregoing reasons, the Court GRANTS Defendant’s [29] Motion to Dismiss

Plaintiff’s Section 1983 Claim for failure to state a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6). An appropriate Order accompanies this Memorandum Opinion.



Date: September 18, 2009

                                                       /s/
                                                      COLLEEN KOLLAR-KOTELLY
                                                      United States District Judge




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