United States District Court, D. Nevada
before the court is Clark Country School District's
(“defendant”) motion to dismiss. (ECF No. 7).
Valerie Soto (“plaintiff”), on behalf of herself
and minor child YD, filed a response (ECF No. 10), to which
defendant replied (ECF No. 13).
case involves plaintiff's settlement agreement with
defendant related to a deficiency of accommodations made for
her disabled daughter, YD, and her subsequent claim in
federal court concerning the same issues addressed in the
agreement. See (ECF Nos. 1, 7-11).
daughter, YD, has been diagnosed with autism spectrum
disorder. (ECF No. 1 at 5). Thus, YD is “primarily
nonverbal” and “demonstrates challenging
behaviors, including self-injurious behavior, aggression, and
tantrums.” (Id.). YD is enrolled as a student
within the defendant school system, and defendant's
employees were aware of YD's disorder and that she
required “reasonable accommodation of a Functional
Behavior Analysis (FBA) and Behavior Intervention Plans
(BIPs) to allow [her] meaningful access to education.”
(Id. at 6). There is no evidence that defendant
completed an FBA, allegedly “a necessary step for an
appropriate [BIP].” (Id.).
October 29, 2014, without a BIP and “[a]s a consequence
of [defendant's] inappropriate approach to YD's
behaviors, [she] was allowed to kick herself up to 85 times
during a tantrum and punch herself in the arms and neck, as
well as bang her body into doors, walls, desks or anything
hard” without any restraint by defendant's
repeated requests for [h]omebound [s]ervices” from
January 6, 2015, to May 12, 2015; a physician's order
that YD “remain home from school due to physical
issues”; and after plaintiff “provided
[defendant] with excuses from YD's physicians, ”
defendant did not provide YD with any “[h]omebound
[s]ervices.” (Id. at 7). Plaintiff hired her
daughter's own tutors while YD was away from school.
January 22, 2016, plaintiff filed for a due process hearing
pursuant to the Individuals with Disabilities Education Act
(the “IDEA”), regarding its “regulations
against [defendant] concerning the failure to provide a Free
Appropriate Public Education” (“FAPE”)
during the 2015- 16 school year. (ECF No. 7-11 at 2).
4, 2016, the parties stipulated to a settlement agreement in
which defendant agreed, among other things, to conduct an FBA
in order to “develop a [BIP] . . . develop a data
collection plan, and ensure that all staff working with [YD]
are familiar with the BIP and made aware how to implement the
BIP.” (Id. at 3). Additionally, plaintiff
agreed to “withdraw the January 22, 2016 request for an
impartial due process hearing, with prejudice, after the
final execution of this Settlement Agreement.”
(Id. at 6). The settlement agreement was to
“remain in effect until the agreed upon provisions
[were] implemented or one year from the date of execution of
[the] agreement, whichever [was] earlier.”
August 31, 2016 plaintiff filed her complaint alleging that
YD had been “deprived . . . of a program designed to
meet her individual education needs as adequately as the
needs of her peers without disabilities” in violation
of 29 U.S.C. § 794 (section 504 of the Rehabilitation
Act) and 42 U.S.C. § 12132 (title II of the Americans
with Disabilities Act). (ECF No. 1 at 8). In the instant
motion, defendant argues inter alia that
plaintiff's complaint should be dismissed given
“[p]laintiff's failure to exhaust administrative
remedies by withdrawal and settlement of [p]laintiff's
Section 504 and ADA claims.” (ECF No. 7 at 2).
court may dismiss a plaintiff's complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). A properly pled
complaint must provide “[a] short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Although rule 8 does not
require detailed factual allegations, it does require more
than labels and conclusions. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Furthermore, a
formulaic recitation of the elements of a cause of action
will not suffice. Ashcroft v. Iqbal, 556 U.S. 662,
677 (2009) (citation omitted). Rule 8 does not unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions. Id. at 678-79.
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Id. 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. Id. When a complaint pleads facts that are
merely consistent with a defendant's liability, and shows
only a mere possibility of entitlement, the complaint does
not meet the requirements to show plausibility of entitlement
to relief. Id.
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering a
motion to dismiss. Id. First, the court must accept
as true all of the allegations contained in a complaint.
However, this requirement is inapplicable to legal
conclusions. Id. Second, only a complaint that
states a plausible claim for relief survives a motion to
dismiss. Id. at 678. Where the complaint does not
permit the court to infer more than the mere possibility of
misconduct, the complaint has “alleged - but not shown
- that the pleader is entitled to relief.” Id.
at 679. When the allegations in a complaint have not crossed
the line from conceivable to plausible, plaintiff's claim
must be dismissed. Twombly, 550 U.S. at 570.
Ninth Circuit addressed post-Iqbal pleading
standards in Starr v. Baca, 652 F.3d 1202, 1216 ...