United States District Court, E.D. Kentucky, Central Division, Lexington
L.G., by and through his next friends, his parents, G.G. and L.G, Plaintiffs,
FAYETTE COUNTY KENTUCKY BOARD OF EDUCATION, Defendant.
MEMORANDUM OPINION AND ORDER
C. REEVES JR UNITED STATES DISTRICT JUDGE
matter is pending for consideration of Defendant Fayette
County Kentucky Board of Education’s (“the
Board”) motion to dismiss the plaintiff’s Amended
Complaint pursuant to Rules 12(b)(1) and (6) of the Federal
Rules of Civil Procedure. [Record No. 9] For the reasons that
follow, the Court will grant the motion.
L.G., a minor child, is a former student at Morton Middle
School. [Record No. 8, ¶¶ 1, 6] While attending
Morton in late September 2016, L.G. was diagnosed with an
e-coli infection and, as a result, was required not to attend
the school. [Id. at ¶¶ 6-7] Sometime
thereafter, L.G.’s mother contacted the school
administration and provided a medical statement from the
plaintiff’s physician stating that he would not be
allowed to return to school for an extended period of time.
[Id. at ¶ 8] L.G. alleges that, at some unknown
time, his mother discovered that the medical statement was
not accepted by the school when she found out L.G. was
receiving failing grades.
November 2017, L.G. and his parents were contacted by a
Cabinet for Health and Family Services social worker
regarding a complaint filed that alleged L.G. was dependent,
neglected or abused. [Id. at ¶ 11] The
plaintiff and his parents became aware during this time that
a truancy petition had been filed against L.G.’s
parents for his absences. L.G. was approved for HomeBound
instruction in January 2017, and the truancy charges were
later withdrawn. [Id. at ¶¶ 16-17] The
plaintiff’s parents withdrew L.G. from Fayette County
Public Schools in March 2017 as a result of the truancy
charges and alleged lack of attention to L.G.’s right
to an appropriate education.
alleges that from September 2016 to January 2017, the Board
failed in their obligation to identify L.G. with a disability
and, as a result, he was denied a free and appropriate
education in violation of § 504 of the Rehabilitation
Act (“§ 504”). [Id. at ¶¶
23-24] He also claims that the Board retaliated against him
in violation of state and federal law. [Id. at
defendant’s argument that the plaintiff has failed to
exhaust his administrative remedies contests this
Court’s subject matter jurisdiction under Rule 12(b)(1)
of the Federal Rules of Civil Procedure. A 12(b)(1) motion
“can either attack the claim of jurisdiction on its
face, in which case all allegations of the plaintiff must be
considered as true, or it can attack the factual basis for
jurisdiction, in which case the trial court must weigh the
evidence and the plaintiff bears the burden of proving that
jurisdiction exists.” DLX, Inc. v. Kentucky,
381 F.3d 511, 516 (6th Cir. 2004). A facial challenge to the
Court’s subject matter jurisdiction, such as the
defendant’s challenge here, “merely questions the
sufficiency of the pleading.” Ohio Nat. Life Ins.
Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).
“In reviewing such a facial attack, a trial court takes
the allegations in the complaint as true, which is a similar
safeguard employed under 12(b)(6) motions to dismiss.”
Id. “[T]he party claiming jurisdiction bears
the burden of demonstrating that the court has jurisdiction
over the subject matter.” Id. at 324.
Court must determine whether the complaint states a viable
claim for relief under Rule 12(b)(6) of the Federal Rules of
Civil Procedure. It “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual
allegations must be sufficient to raise a right to relief
above the speculative level, Twombly, 550 U.S. at
555, and permit the Court to “draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. While a
complaint need not contain detailed factual allegations, it
must contain more than an “unadorned, the
Id. “A pleading that offers ‘labels and
conclusions’ or a ‘formulaic recitation of the
elements of a cause of action’” is insufficient.
Id. (quoting Twombly, 550 U.S. at 555).
L.G. § 504 Claim
Board argues that L.G.’s claim that he was denied a
free and appropriate education in violation of § 504
should be dismissed because L.G. failed to exhaust his
administrative remedies. It contends that, although L.G. did
not expressly bring a claim under the Individuals with
Disabilities Education Act (“IDEA”), he was
required to comply with the IDEA’s exhaustion
IDEA requires recipients of federal funds to furnish a free
appropriate public education (“FAPE”) to children
with disabilities. See 20 U.S.C. § 1412(a)(1)
(2012). This guarantee is protected with certain procedural
safeguards. Id. § 1415. Parties may present a
complaint concerning the provision of FAPE, id.
§ 1415(a)(6), and may be entitled to a “due
process hearing” before an impartial hearing officer.
Id. § 1415(f). A party aggrieved by the result
of an IDEA due process hearing may appeal the result to the
state educational agency. Id. § 1415(g). The
outcome of the administrative review hearing may then be
challenged in district court. Id. § 1415(i)(2).
exhaustion requirements also apply to claims brought under
other federal laws such as the ADA and § 504 when they
seek “relief that is also available under [the
IDEA].” 20 U.S.C. § 1415(1). The United States
Supreme Court recently explained that whether claims brought
under other federal laws must comply with the IDEA’s
exhaustion requirements “hinges on whether [the]
lawsuit seeks relief for the denial of a free appropriate