                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-1538
PAMELA MCCORMICK, next friend of
ERON MCCORMICK, a minor,
                                               Plaintiff-Appellant,
                                 v.


WAUKEGAN SCHOOL DISTRICT #60; THOMAS O’ROURKE,
individually and in his capacity as Head of the Special
Education Department; OLIVER RUFF, individually and
in his official capacity as Associate Principal; and JAN
NETERER, individually and in her capacity as Physical
Education Instructor,
                                            Defendants-Appellees.

                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
         No. 01 C 3598—Harry D. Leinenweber, Judge.
                          ____________
      ARGUED APRIL 14, 2004—DECIDED JULY 7, 2004
                    ____________



  Before BAUER, COFFEY, and KANNE, Circuit Judges.
  KANNE, Circuit Judge. Eron McCormick suffers from a
rare form of muscular dystrophy known as McArdle’s
Disease. This disease, characterized by deficient levels of
glycogen phosphorylase and a concomitant inability to
2                                                No. 02-1538

process glycogen in the muscles, severely constrains Eron’s
physical capabilities. As a result, Eron and his parents
developed an “individualized education program” (“IEP”)
with Waukegan School District #60 officials pursuant to the
Individuals with Disabilities Education Act, 20 U.S.C.
§§ 1400, et seq. (“IDEA”), that limited Eron’s participation
in physical education class. After the relevant IEP was
developed, Eron allegedly suffered muscle and kidney
damage caused by overexertion in physical education class.
His parents brought suit against the school district and
several individual defendants under 42 U.S.C. § 1983 and
various Illinois tort-law theories. The district court, ruling
on a Federal Rule of Civil Procedure 12(b)(6) motion,
dismissed the complaint without prejudice because Eron
failed to exhaust the administrative remedies available
under IDEA, 20 U.S.C. § 1415. For the reasons stated
herein, we reverse.


                        I. History
   In our de novo review of a dismissal for failure to exhaust
administrative remedies, “we must take all of the well-
pleaded factual allegations contained in the amended
complaint as true and draw all inferences therefrom in the
light most favorable to the non-moving party.” Wilczynski
v. Lumbermens Mut. Cas. Co., 93 F.3d 397, 401 (7th Cir.
1994).
  In August of 1999, Eron began attending the Waukegan
School District Freshman Center, a school serving only
students in the ninth grade. The Freshman Center received
notice of Eron’s physical limitations and the dangers of
exceeding those limitations from correspondence signed by
Dr. Teepu Siddique, the Director of the Neuromuscular
Disorders Program at Northwestern Medical Faculty
Foundation, Inc. An October 27, 1999, letter, for example,
explained:
No. 02-1538                                               3

    [Eron] is a patient in our Muscular Dystrophy Clinic
    and has been under our care since 1992. Eron has a
    condition known as McArdle’s Disease. This is a genetic
    metabolic disorder of the muscles that typically begins
    in childhood and progresses through adulthood.
    The characteristics of this disease are muscle fatigue,
    especially during physical activities, muscle pain and
    cramps, muscle stiffness with exercise and muscle
    wasting (loss of muscle mass). These patients will often
    develop dark burgundy colored urine from the abnormal
    presence of myoglobin (a muscle protein) which is
    released by the muscles following physical activities
    that exceed their limitations. Kidney and permanent
    muscle damage can occur as a result of this and vi-
    gorous exercise is to be avoided.
(R. 1, Ex. A). The Freshman Center provided Eron with
elevator access and a bathroom pass to accommodate his
needs throughout the school year.
   Eron was scheduled to participate in physical education
during his second (and final) semester at the Freshman
Center. On February 14, 2000, near the beginning of the
semester, Eron and his parents met with school officials for
a reevaluation of his IEP. The IEP approved “adaptive
physical education,” with limited exertion. The McCormicks
submitted several recommendations from doctors that
advised Eron to be cautious when exercising and to stop
anytime he was winded or felt muscle pain. The doctors
suggested non-strenuous activities like walking, throwing
lightweight objects, and social games. Jan Neterer, the
physical education instructor, called Eron’s parents after
reviewing the IEP; during the conversation, she claimed to
understand the limitations set forth in the IEP and agreed
to follow it.
  On June 9, 2000, just prior to the end of the semester
(and Eron’s stint at the Freshman Center), Neterer in-
4                                              No. 02-1538

structed Eron to run laps and perform push-ups. Neterer
advised Eron that if he could not complete the tasks she
assigned, he would receive a failing grade in physical edu-
cation and would have to repeat the ninth grade. Despite
Eron’s protestations and references to his IEP, Neterer
continued to threaten Eron with failure and berate him
until he consented to the exercises. Eron informed Neterer
that his muscles were cramping and hurting during the
exercise; she nevertheless insisted that he should continue,
again ignoring the IEP.
  The day after these alleged events, June 10, 2000, Eron
was taken to the emergency room because of painful and
cramping muscles, severe exhaustion, and bloody urine, a
sign of kidney damage due to severe myoglobin accumula-
tion. Eron missed the last few days of the school year, but
graduated from the Freshman Center and moved on to his
sophomore year at the high school. Eron has experienced
increased muscle weakness and pain since June 9, 2000.
Moreover, permanent damage occurred to his kidneys, evi-
denced by the abnormal color of his urine following the
overexertion. This damage may well have hastened the
need for a kidney dialysis regimen and has increased the
possibility of other kidney complications.
   On May 16, 2001, Pamela McCormick, Eron’s mother,
filed a complaint in federal court on behalf of Eron. Count
I, brought under 42 U.S.C. § 1983, alleged that the
Defendants, acting under color of state law, violated Eron’s
constitutional rights to equal protection, to personal pri-
vacy, and to be free from cruel and unusual punishment.
The other three counts were all brought under Illinois law.
Count II claims that the Defendants acted wilfully and
wantonly in ignoring the medical advice of Eron’s doctors
and the narrow proscriptions of the IEP, among other
things. Count III claimed that the Defendants intentionally
inflicted emotional distress on Eron; Eron does not allege
No. 02-1538                                                  5

any ongoing or continuing emotional damages. And Count
IV attempts to recover Eron’s medical expenses and his
parents’ lost wages.
  The district court, relying on Charlie F. v. Board of
Education of Skokie School District 68, 98 F.3d 989 (7th Cir.
1996), dismissed the complaint without prejudice on the
grounds that Eron had failed to exhaust the administrative
remedies available to him under IDEA. This appeal ensued.


                        II. Analysis
  Even though Eron did not invoke IDEA in his complaint,
the district court properly considered whether he was re-
quired to exhaust under IDEA. The relevant section of
IDEA is as follows:
    Nothing in this chapter shall be construed to restrict or
    limit the rights, procedures, and remedies available
    under the Constitution, the Americans with Disabilities
    Act of 1990, title V of the Rehabilitation Act of 1973, or
    other Federal laws protecting the rights of children
    with disabilities, except that before the filing of a civil
    action under such laws seeking relief that is also avail-
    able under this subchapter, the procedures under
    subsections (f) and (g) of this section shall be exhausted
    to the same extent as would be required had the action
    been brought under this subchapter.
20 U.S.C. § 1415(l) (emphasis added). It is uncontested that
Eron did not exhaust the administrative remedies available
under IDEA. The sole issue on appeal is whether Eron is
required to exhaust before filing a complaint in federal
court.
  In Charlie F., we answered the same question in the
affirmative. 98 F.3d at 993. In that case, a teacher invited
her pupils to air their grievances against Charlie, a student
whose disabilities (attention deficit disorder and panic
attacks) apparently disrupted the class. Charlie’s ensuing
6                                                No. 02-1538

humiliation caused a loss of confidence and self-esteem;
this, allegedly, led to fistfights and disruptions of Charlie’s
educational progress. Id. at 990.
  Like Eron, Charlie filed a federal lawsuit with both fed-
eral and state-law theories of recovery, seeking only money
damages (which IDEA administrative process does not
provide). Charlie F. rejected outright the argument that a
plaintiff could avoid IDEA administrative process by
requesting only money damages: “[t]he statute speaks of
available relief, and what relief is ‘available’ does not ne-
cessarily depend on what the aggrieved party wants.” Id. at
991. Instead, courts should look to the “theory behind the
grievance” to see if IDEA’s process was activated: in
Charlie’s case, “the complaint [ ] filed on his behalf deals
with acts that have both an educational source and an ad-
verse educational consequence.” Id. at 991-92. Thus, the
damage done to Charlie, if proven, could in fact be remedied
(in part at least) by services available under IDEA, such as
psychological counseling or educational assistance. Id.
   The Defendants insist that Charlie F. compels dismissal
of the instant case for failure to exhaust IDEA administra-
tive processes. Waukegan emphasizes that “developmental,
corrective, and other supportive services (including . . .
psychological services, physical and occupational therapy, . .
. counseling services, and medical services, except that such
medical services shall be for diagnostic and evaluation
purposes only) as may be required to assist a child with a
disability . . .” are available under IDEA. 20 U.S.C.
§ 1401(a)(17). Further, argues Waukegan, Eron brought a
state-law claim for intentional infliction of emotional dis-
tress. Like Charlie F., reasons Waukegan, we should find
that IDEA could remedy at least some of Eron’s damages
through in-kind services, such as psychological counseling,
rather than money damages.
  Conversely, the McCormicks assert that Eron’s case
is distinguishable from Charlie F. For one, Eron’s case
No. 02-1538                                                       7

is premised on physical injury. IDEA does not provide
medical services to disabled individuals (beyond diagnostic
and evaluative services). The heart of Eron’s claim is the
permanent damage to his body from overexertion caused by
Defendants’ conduct. Second, Eron has not alleged any need
for prospective educational assistance, whereas in Charlie
F., the court deduced that a significant amount of the
damages requested would be premised on the harm to
Charlie’s education caused by his teacher’s actions. The
McCormicks were fully satisfied with Eron’s high school
experience after his graduation from the Freshman Center
and did not claim that the physical education incident in-
terfered in Eron’s academic development.1 Finally, with
regard to the state emotional distress claim, Eron insists
that he is suing only for the negative emotional experience
on June 9, 2000, and that day’s immediate aftermath (his
hospitalization), not for an ongoing emotional condition,
which might be addressed by prospective psychological
counseling.
  “[P]arents may bypass the [IDEA] administrative pro-
cess where exhaustion would be futile . . . .” Honig v. Doe,
484 U.S. 305, 327 (1988). Eron contends that the particular
circumstances of his case, as set out in the complaint,
necessitate a finding that pursuing administrative remedies
under IDEA would be futile. As Charlie F. stands alone in
discussing this issue in Seventh Circuit case law, the
collective wisdom of our sister circuits is particularly


1
   Eron has since graduated from high school. This fact alone does
not affect our analysis of the problem, however. For one, gradua-
tion from high school does not necessarily eliminate the possibility
of receiving benefits under IDEA. Frazier v. Fairhaven Sch.
Comm., 276 F.3d 52, 63 (1st Cir. 2002). Furthermore, the need to
exhaust should not depend upon the extent of delay in litigation
or the choice of a plaintiff to delay litigation until he or she
graduates. Id.
8                                                No. 02-1538

helpful in deciding whether exhausting the administrative
process would be a futile act for Eron.
  “Where . . . a plaintiff has alleged injuries that could be
redressed to some degree by the IDEA’s administrative
procedures and remedies, then the courts should require
exhaustion of administrative remedies.” Robb v. Bethel Sch.
Dist., 308 F.3d 1047, 1054 (9th Cir. 2002) (holding that a
student suing for lost educational opportunities and
emotional damages based on her removal from the class-
room in favor of allegedly deficient, unsupervised student
tutoring must exhaust administrative remedies); see also
Polera v. Bd. of Educ., 288 F.3d 478, 490-91 (2d Cir. 2002)
(rejecting a futility argument and holding that a blind
student suing for lost educational opportunities and retro-
active honor society recognition must exhaust administra-
tive remedies); Frazier v. Fairhaven Sch. Comm., 276 F.3d
52, 57-64 (1st Cir. 2002) (holding that a plaintiff must ex-
haust administrative remedies when she sought money
damages under 42 U.S.C. § 1983, alleging that the school
inappropriately disciplined her for conduct related to her
disability).
  On the other hand, if the plaintiff has alleged injuries
that cannot “be redressed to any degree by the IDEA’s ad-
ministrative procedures and remedies[,]” then it would be
futile to exhaust, and the disabled individuals can bring
their disputes directly to court. Padilla v. Sch. Dist. No. 1,
233 F.3d 1268, 1274-75 (10th Cir. 2000) (holding that a
disabled student who suffered a fractured skull and exac-
erbation of a seizure disorder when she was placed in an
unsupervised windowless closet did not need to exhaust
because the claim was brought “solely to redress” the phy-
sical injuries and was outside of the scope of IDEA); see also
Witte v. Clark County Sch. Dist., 197 F.3d 1271, 1275-76
(9th Cir. 1999) (holding exhaustion to be unnecessary and
distinguishing Charlie F. by pointing to physical abuse and
No. 02-1538                                                         9

injuries and the lack of possible remedies under IDEA’s
administrative processes that could address the plaintiff’s
damages).
   In Eron’s case, his complaint asserts that he suffered
permanent physical injuries that will reduce the quality of
his life—and perhaps even shorten it. The nature of his
claim is not educational; no change to his IEP could remedy,
even in part, the damage done to Eron’s body. By adding an
intentional infliction of emotional distress claim to his
complaint, Eron only seeks to recover for the arguably
outrageous actions of Neterer, the physical education in-
structor. He does not allege any ongoing emotional dif-
ficulties that might be addressed through IDEA. After
closely examining the “theory behind the grievance” in
Eron’s complaint, we are convinced that it would be futile
for Eron to exhaust the administrative process under the
circumstances of this case because IDEA does not provide
a remedy for his alleged injuries, which are non-educational
in nature.2


2
   We are mindful of the Supreme Court’s holding in Booth v.
Churner, 532 U.S. 731 (2001), that, under the Prison Litigation
Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”), prisoners are not
excused from pursuing administrative remedies simply because
they have requested relief (in that case, money damages) that is
not available under a prison’s administrative procedures. Con-
trary to the assertions of the Defendants, Booth does not compel
exhaustion in every case tangentially related to a statute with
administrative procedures. The relevant text of the PLRA is as
follows:
    No action shall be brought with respect to prison condi-
    tions . . . by a prisoner . . . until such administrative remedies
    as are available are exhausted.
42 U.S.C. § 1997e(a). The Supreme Court interpreted this to mean
“that Congress has mandated exhaustion clearly enough, regard-
less of the relief offered through administrative procedures.”
Booth, 532 U.S. at 741. As noted earlier, IDEA demands that a
                                                  (continued...)
10                                                No. 02-1538

                      III. Conclusion
  For the foregoing reasons, we REVERSE the district court’s
dismissal of Eron’s lawsuit and REMAND for further proceed-
ings consistent with this opinion.

A true Copy:
       Teste:

                         ________________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




2
  (...continued)
plaintiff exhaust administrative remedies only when “seeking
relief that is also available under this subchapter.” 20 U.S.C.
§ 1415(l).


                    USCA-02-C-0072—7-7-04
