United States District Court, D. Nevada
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.
ORDER DEFENDANT'S PARTIAL MOTION TO DISMISS
PLAINTIFFS' COMPLAINT (ECF NO. 8)
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
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.
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'
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
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.
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).
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).
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
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.