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O.R. v. Clark County School District

United States District Court, D. Nevada

March 31, 2018

O.R., by and through her parents, SIG and LORI ROGICH and SIG and LORI ROGICH, individually, Plaintiffs,
CLARK COUNTY SCHOOL DISTRICT, a county school district, Defendant.




         Before the Court is Defendant Clark County School District's Partial Motion to Dismiss. (ECF No. 8). For the reasons stated below, the Court denies Defendant's motion.


         On June 6, 2017, Plaintiffs filed their Complaint claiming that Clark County School District (the District) deprived Plaintiff O.R., a child who has a learning disorder and lives within the boundaries of the District, of a free appropriate public education (FAPE). (ECF No. 1). Plaintiffs' Complaint lists causes of action under the Individuals with Disabilities Education Act (IDEA), Title II of Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504). Id. Defendant moves to dismiss only the ADA and Section 504 claims. (ECF No. 8). The following factual allegations are taken from Plaintiffs' Complaint.

         Before O.R. started kindergarten in 2008, the District determined that she was qualified for special-education services. (ECF No. 1 at 8). O.R. attended the District kindergarten program for most of the 2008-2009 school year, until her parents, Sig and Lori Rogich, enrolled her in a private school. Id. At her parents' request, Pettigru Counseling Associates conducted two psychoeducational evaluations of O.R., one in December 2009 and the other in March 2013. Id. The 2013 evaluation by Pettigru listed the following diagnoses: Learning Disorder NOA (Nonverbal Learning Disorder-NLD); Reading Disorder (Developmental Dyslexia); Mathematics Disorder; Disorder of Written Expression; Generalized Anxiety Disorder; Dysthymic Disorder; Developmental Coordination Disorder (in partial remission); Mixed Receptive-Expressive Language Disorder (in partial remission); Phonological Disorder (in remission). Id. Pettigru indicated that, based on these diagnoses, O.R. requires a specific teaching methodology called the Orton-Gillingham Approach to receive an appropriate education. Id. at 9. In January 2014, O.R.'s parents presented the Pettigru evaluations to the District. Id.

         Upon conducting its own evaluation of O.R., the District proposed an Individualized Education Plan (IEP) to O.R's parents in May 2014, and another in June 2016. Id. at 9-10. Neither of the District's IEP proposals included the Orton-Gillingham Approach that the Pettigru evaluation recommended. Id. at 10. Instead, the District's IEPs “had salient components from Orton-Gillingham in the accommodations/modifications and goals to provide a multi-sensory approach.” Id. at 9. O.R.'s parents requested that O.R. be placed with teachers specifically trained in the Orton-Gillingham Approach, and placed O.R. in private school until the District completed such training. Id. The District denied the requests.

         After the IEP discussions failed, O.R.'s parents filed a Due Process Complaint with an Independent Hearing Officer (IHO). The complaint claimed that the District failed to provide O.R. with a FAPE because it failed to take into account and address O.R.'s needs as stated in the Pettigru evaluation. Id. at 1-2. In a decision dated November 14, 2016, the IHO agreed, finding that “the District predetermined that under no circumstances would a methodology be put into” the IEP. Id. at 10. The IHO also held that O.R.'s parents were entitled to tuition reimbursement and transportation costs for June 2014, and the 2014-15, 2015-16, and 2016-17 school years. Id. at 2. The District appealed the IHO's decision to a State Review Officer (SRO), who reversed the IHO's decision on March 8, 2017. Id. at 11. Plaintiffs then filed the instant lawsuit. (ECF No. 1).

         In its Partial Motion to Dismiss, the District argues that Plaintiffs did not allege specific facts to establish claims under Section 504 and the ADA beyond the facts necessary to establish Plaintiffs' IDEA claim. (ECF No. 8 at 5-7). The District argues that Plaintiffs failed to allege that the District had the requisite mens rea of intentional discrimination, such that Plaintiffs cannot prevail on damages under Section 504 and the ADA. (ECF No. 8 at 3).


         An initial pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). The court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b) (6). In ruling on a motion to dismiss, “[a]ll well-pleaded allegations of material fact in the complaint are accepted as true and are construed in the light most favorable to the non-moving party.” Faulkner v. ADT Sec. Services, Inc., 706 F.3d 1017, 1019 (9th Cir. 2013) (citations omitted).

         To survive a motion to dismiss, a complaint need not contain “detailed factual allegations, ” but it must do more than assert “labels and conclusions” or “a formulaic recitation of the elements of a cause of action . . . .” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, a claim will not be dismissed if it contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” meaning that the court can reasonably infer “that the defendant is liable for the misconduct alleged.” Id. at 678 (internal quotation and citation marks omitted). The Ninth Circuit, in elaborating on the pleading standard described in Twombly and Iqbal, has held that for a complaint to survive dismissal, the plaintiff must allege non-conclusory facts that, together with reasonable inferences from those facts, are “plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).


         A. ...

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