BASSLER, District Judge:
Plaintiff A.W. is a high school student with a learning disability (severe dyslexia). Defendants are the Jersey City School District, the New Jersey Department of Education, and a number of the entities' employees. Plaintiff alleges that Defendants failed to either identify or account for his condition in a timely fashion, and as a result deprived him of a free appropriate public education for over ten years. Plaintiff's complaint seeks a declaratory judgment that Defendants violated his rights as secured by federal and state law, and seeks financial recovery in the form of compensatory and punitive damages, as well as attorney's fees and costs.
This matter is now before the Court on the motion of Defendant New Jersey Department of Education and its Defendant employees, namely Dr. Jeffrey Osowski, Barbara Gantwerk, and Melinda Zangrillo (collectively, "State Defendants"), to dismiss Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(6). Defendants contend that they should be dismissed from this action because they are insulated by the doctrine of sovereign immunity, and because Plaintiff failed to exhaust his available administrative procedures.
Each of the foregoing individuals was named as a defendant in his or her official capacity. Defendants Gantwerk and Zangrillo were also sued in their individual capacities.
Defendants had originally argued that Plaintiff's action should also be dismissed on statute of limitations grounds. Defendants subsequently agreed to withdraw their limitations argument for purposes of this motion.
The Court has jurisdiction pursuant to 20 U.S.C. § 1415(i)(3)(A) and 28 U.S.C. § 1331, 1343, 1367, and 2201. For the following reasons, State Defendants' motion to dismiss is denied.
I. BACKGROUND
A. Procedural History
On January 10, 2001 Plaintiff commenced this action. Plaintiff claims that State Defendants, and others, violated his rights under the Individuals with Disabilities Education Act, 20 U.S.C.A. § 1400 et seq. ("IDEA"); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 794 ("RA"); the Civil Rights Act of 1971, 42 U.S.C. § 1983 ("Section 1983"); Art. VIII, § 4, ¶ 1 of the New Jersey Constitution; and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. ("NJLAD").
State Defendants received a pair of extensions of time to answer, move, or otherwise respond to the Complaint. On April 17, 2001, State Defendants timely served Plaintiff with their Motion to Dismiss Plaintiff's Complaint, pursuant to Fed.R.Civ.P. 12(b)(6). In compliance with Appendix N of the Local Rules of Civil Procedure, Defendants filed their completed motion packet with the Court on June 28, 2001. Simultaneously, Plaintiff filed a cross-motion to amend his complaint. Pursuant to Rule 78, the Court took both motions under advisement on July 23, 2001.
In March, 2002, having carefully reviewed the parties' submissions and the relevant law, it became apparent to the Court that Defendants' motion should be denied, and that Plaintiff's cross-motion to amend should be granted. Mindful of the lengthy pendency of the parties' motions, on March 18, 2002 the Court entered an Order denying Defendants' motion and granting Plaintiff's motion. Although the Court had begun preparing an Opinion to explain its decision, so as to expeditiously resolve this matter the Court issued its March 18, 2002 Order before the Opinion was ready for issuance.
This Opinion, which was completed after Plaintiff's motion to amend was granted, refers in every instance to Plaintiff's Amended Complaint, and the causes of action contained therein.
On April 8, 2002, the Court referred this matter to mediation, and stayed all proceedings. On April 11, 2002, State Defendants filed their Answer to Plaintiff's Amended Complaint, as well as a jury demand and cross-claims. On April 17, 2002, before the Court issued this Opinion, State Defendants appealed the Court's March 18, 2002 Order. Defendants' appeal is presently pending. Although Defendants have appealed the Order that this Opinion discusses, the Court has nonetheless elected to issue the Opinion in order to assist the Third Circuit in its review of the Court's March 18, 2002 decision.
B. Factual History
Plaintiff A.W. is a twenty-year-old tenth grade student with severe dyslexia who has been enrolled in the Jersey City Public Schools from September, 1988, when he entered the second grade, through the present. A.W.'s dyslexia, which impairs his ability to read and write, was never diagnosed by Defendants. Consequently, from September, 1988 until May, 2000, Plaintiff did not receive an appropriate educational program and made minimal, if any, progress in the areas of reading, writing, and spelling.
For purposes of Defendants' motion to dismiss, the factual allegations in Plaintiff's pleadings are accepted as true. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 n. 1 (3d Cir. 1987).
At all relevant times, A.W. was eligible for special education and related services under the Individuals with Disabilities Act, and was a qualified individual with a disability under the Rehabilitation Act. During that same time, Defendants received federal financial assistance for educational programs, including funds under the IDEA.
On January 28, 2000, after A.W. obtained an independent educational evaluation diagnosing his condition, the District developed an Individualized Education Program ("IEP") for him, which required specialized reading, writing, and spelling instruction to address his inability to read, write, and spell. As a result, Plaintiff concedes that appropriate educational services were implemented for him in May, 2000.
The Court assumes that A.W. has continued to receive appropriate educational services following the implementation of his IEP.
Prior to the implementation of A.W.'s IEP in 2000, in December 1997, A.W.'s grandmother (who was his legal guardian), participated in the filing of a complaint with the New Jersey Department of Education ("NJDOE") on behalf of A.W. and other Jersey City students with dyslexia. Through that complaint, A.W.'s grandmother brought the specifics of A.W.'s case to the attention of the NJDOE and its employees responsible for the complaint investigation. Those employees included State Defendant Barbara Gantwerk, Director of the Office of Special Education Programs, and Melinda Zangrillo, Coordinator of Compliance.
As a result of the complaint investigation, NJDOE ultimately issued a report in June, 1998. The report concluded the District was noncompliant because it failed to demonstrate that its written reading curricula could be adapted to meet the needs of classified pupils. Despite this finding, NJDOE did not provide A.W. with any relief as a result of the complaint investigation. In part because he failed to receive relief, A.W. now alleges that NJDOE and its employees knew or reasonably should have known of his dyslexia, and should have known that an educational program effective at remediating his condition should have been implemented.
Relevant to the State Defendants' motion to dismiss, A.W.'s Amended Complaint alleges that the State Department of Education violated the IDEA by failing to identify and address his dyslexia (Count I); violated the IDEA by failing to develop and implement a program to deal with dyslexic students, and by failing to train its employees accordingly (Count II); and violated Section 504 of the Rehabilitation Act by denying A.W. a free appropriate public education (Count IV).
A.W.'s Amended Complaint further alleges that State Defendants Osowski, Gantwerk, and Zangrillo (sued in their official capacities), violated the IDEA by failing to identify, address, or provide for A.W.'s dyslexia (Count I). Finally, A.W. alleges that State Defendants Gantwerk and Zangrillo (sued in their individual capacities) should be held liable pursuant to 42 U.S.C. § 1983 for violating his rights as secured by the IDEA and § 504 of the RA, by virtue of their personal participation in the allegedly ineffective investigation of his grandmother's December, 1997 complaint (Count VIII).
II. ANALYSIS
A. Motion to Dismiss Standard
Federal Rule of Civil Procedure 12(b)(6) allows a party to move for a dismissal based upon the pleader's "failure to state a claim upon which relief can be granted." Since the long-established federal policy of civil litigation is to decide cases on the proofs, district courts generally disfavor Rule 12(b)(6) motions. Melo-Sonics Corp. v. Cropp, 342 F.2d 856 (3d Cir. 1965); Panek v. Bogucz, 718 F. Supp. 1228, 1229 (D.N.J. 1989).
In deciding a motion to dismiss for failure to state a claim, all allegations in the pleadings must be accepted as true and the plaintiff must be given the benefit of every favorable inference that can be drawn from those allegations. See Conley v. Gibson, 355 U.S. 41, 48 (1957);Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 n. 1 (3d Cir. 1987);Markowitz, 906 F.2d at 103.
Rule 12(b)(6) does not countenance "dismissals based on a judge's disbelief of a complaint's factual allegations." Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheur v. Rhodes, 416 U.S. 232, 236 (1974). Accepting the facts in the pleadings as true and giving them all reasonable inferences, a court must dismiss under Rule 12(b)(6) "[i]f as a matter of law `it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'"Neitzke, 490 U.S. at 326-27 State Defendants claim that the causes of action against them should be dismissed because even when all of the facts alleged in Plaintiff's complaint are taken as true, pursuant to the Eleventh Amendment, State Defendants are immune from suits by private citizens for money damages. Plaintiff disagrees, and argues that State Defendants' motion should be denied because Congress, by enacting the RA and the IDEA, validly abrogated the State Defendants' Eleventh Amendment immunity. Plaintiff further contends that even if the State Defendants' immunity from suit was not validly abrogated by Congress, the State nonetheless waived its immunity from suit when it accepted federal funds for educational purposes.
B. Eleventh Amendment Immunity Generally
The Eleventh Amendment to the Constitution of the United States provides that:
[t]he Judicial Power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by Citizens of another State or Subjects of any Foreign State.
U.S. Const., Amend. XI.
It is well settled that the Eleventh Amendment provides each state with immunity not only from suits brought by citizens of other states, but also from suits brought by its own citizens. See, e.g., Edelman v. Jordan, 415 U.S. 651 (1974). The Supreme Court has also interpreted Eleventh Amendment immunity to extend to state agencies and instrumentalities, so long as the state is a real party-in-interest.Regents of Univ. of Cal. v. Doe, 519 U.S. 425 (1997); Chisolm v. McManimon, 275 F.3d 315 (3d Cir. 2001). Additionally, the Eleventh Amendment bars suits for money damages against state officials acting in their official capacities. See Edelman, 415 U.S. at 663-67; Will v. Michigan Dep't. of State Police, 491 U.S. 58, 70-71 (1989). Here, there is no dispute that all of the State Defendants are state agencies or state officials entitled to the protection of the Eleventh Amendment.
Case law makes it clear that Eleventh Amendment immunity is not absolute, and that it can at times be circumvented. First, Eleventh Amendment immunity can be abrogated by Congress, against the will of the individual states. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). Alternatively, a state can elect to voluntarily waive its immunity from suit under the Eleventh Amendment. College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999).
The US Supreme Court established a two-part test to determine whether Congress has abrogated the States' Eleventh Amendment immunity. According to Seminole Tribe, in order to abrogate the States' sovereign immunity, Congress must (1) unequivocally express its intent to abrogate the immunity; and (2) have acted pursuant to a valid exercise of power. 517 U.S. at 44.
Here, it is undisputed that Congress unequivocally expressed its intent to abrogate the States' sovereign immunity by the plain language of the IDEA and the RA. Therefore, the first part of the Seminole Tribe test has been satisfied. Thus, the central abrogation issue is whether Congress enacted these statutes pursuant to a valid exercise of power.
20 U.S.C. § 1403(a) provides "A state shall not be immune under the eleventh amendment to the Constitution of the United States from suit in Federal court for a violation of this chapter."
42 U.S.C. § 2000d-7(a)(1) provides "A State shall not be immune under the Eleventh Amendment . . . from suit in Federal court for a violation of section 504 of the Rehabilitation Act." See also, Doe v. Div. Of Youth Family Svcs., 148 F. Supp.2d 462, 491n.5 (D.N.J. 2001)
State Defendants argue that Congress overstepped its bounds when it sought to abrogate the states' immunity from IDEA and RA suits. Defendants note that in recent years, the Supreme Court has invalidated six separate statutes as exceeding congressional authority in this area:City of Boerne v. Flores, 521 U.S. 507 (1997) (Religious Freedom Restoration Act of 1993); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999) (Patent and Plant Variety Protection Remedy Clarification Act); College Savings Bank v. Florida Prepaid, 527 U.S. 666 (1999) (Trademark Remedy Clarification Act); Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) (Age Discrimination in Employment Act); and Bd. of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356 (2001) (Title I of the Americans with Disabilities Act).
Building on the foregoing decisions, State Defendants have assembled an intricate and scholarly argument to support their position that the IDEA and the RA should be added to the expanding list of statutes with unconstitutional abrogation provisions. Plaintiff disagrees, and argues at length that both the IDEA and RA satisfy the general test for abrogation set out by the Supreme Court, and are valid exercises of Congressional power.
Neither the Supreme Court nor the Third Circuit have specifically addressed the issue of whether the IDEA and the RA validly abrogate states' immunity. The appellate court that addressed the issue most recently, the Eighth Circuit, concluded that Congress had not validly abrogated the states' immunity under either the IDEA or the RA. Bradley v. Arkansas Dep't. of Educ., et al., 189 F.3d 745, 755 (8th Cir. 1999), rev'd on other grounds sub nom, Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000) (en banc), cert den. Arkansas Dept. of Education v. Jim C., 533 U.S. 949 (2001). In doing so, the Bradley/Jim C. decision went against recent rulings in other circuits which concluded that Congress had validly abrogated the states' immunity. See, e.g., Amos v. Maryland Dep't of Pub. Safety Correctional Svces., 178 F.3d 212, 222-23 (4th Cir. 1999), decision vacated and rehearing en banc granted, ___ F.3d ___ (Dec. 28, 1999); Clark v. California, 123 F.3d 1267, 1270 (9th Cir. 1997).
The Eighth Circuit also concluded that even though Congress had not validly abrogated the states' immunity, the state (Arkansas, in that case) could still be held liable because it had waived its immunity from suit under both the RA and the IDEA.
Given the preceding conflict in other circuits' jurisprudence and the absence of any binding precedent to clarify matters, the Court finds itself in a predicament where it has been asked to choose between the parties' arguments either in favor or against abrogation. Fortunately, the Court need not lend its voice to the growing abrogation muddle by picking one side or the other, for it is apparent to the Court that Defendants' motion to dismiss must be denied on other grounds. Specifically, the Court finds that if the allegations in Plaintiff's Amended Complaint are assumed to be true, then New Jersey has waived its immunity from IDEA and RA suits.
As previously noted, the Supreme Court has determined that a state may voluntarily consent to waive the immunity provided to it under the Eleventh Amendment. College Savings Bank, 527 U.S. at 670; Lavia v. Pennsylvania, 224 F.3d 190, 195 (3d Cir. 2000). In order for waiver to be valid, there must be an "intentional relinquishment or abandonment of a known right or privilege." Id. at 682 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
One way for a state to waive its immunity is by voluntarily participating in federal spending programs where Congress has conditioned such participation on the state's consent to waive its sovereign immunity. College Savings Bank, 527 U.S. at 686; Jim C. v. United States, 235 F.3d 1079, 1081 (8th Cir. 2000); Litman v. George Mason Univ., 186 F.3d 544 (4th Cir. 1999). Congress' grant to states of conditional funds is "in the nature of a contract," the legitimacy of which "rests on whether the State voluntarily and knowingly accepts the terms." Bell Atlantic MD, Inc. v. MCI WorldCom, Inc., 240 F.3d 279 (4th Cir 2001) (citing Pennhurst State Sch. Hosp. v. Halderman, 451 U.S. 1, 17 (1981)).
Therefore, in order for the waiver to be valid, Congress must "manifest a clear intent to condition participation in the programs funded under the Act on a State's consent to waive its constitutional immunity."Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1984). Additionally, the state must voluntarily participate in the program by accepting federal funds under the Act. College Savings Bank, 527 U.S. at 686. Finally, the requirement that a state waive its immunity for receipt of funds must not be so coercive as to amount to unconstitutional compulsion. Id. at 687 (citing South Dakota v. Dole, 483 U.S. 203, 211 (1987)); Jim C., 235 F.3d at 1081.
C. Waiver of Immunity for Rehabilitation Act Claims
The Supreme Court in Atascadero held that Congress had not unambiguously expressed its intent to abrogate the States' Eleventh Amendment immunity in the Rehabilitation Act, and that the States accordingly were not "subject to suit in federal court by litigants seeking retroactive monetary relief under §§ 504." 473 U.S. at 235. Congress subsequently amended the RA in response to Atascadero, providing:
(1) A State shall not be immune under the Eleventh Amendment . . . from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 . . . or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
42 U.S.C. § 2000d-7(a)(1).
The issue is whether this amended provision manifests a clear intent to condition a state's participation on its consent to waive its Eleventh Amendment immunity. State Defendants argue that it does not. They contend that the word "waiver" does not appear anywhere in the provision. Nor are there any words indicating that acceptance of funds is "conditioned" upon the state's waiver of immunity. Accordingly, State Defendants contend that while this language may constitute an attempt at an abrogation provision, it does not constitute a valid waiver provision.
The Third Circuit, however, recently said that a statute need not "include magic words such as `waiver' or `immunity' or `suit'" in order to constitute a valid waiver provision. MCI Telecommunication Corp. v. Bell Atlantic-Pennsylvania, 271 F.3d 491, 513 (3d Cir. 2001). Indeed, the Supreme Court, in dicta, characterized the amended provision as "an unambiguous waiver of the States' Eleventh Amendment immunity," recognizing that Congress, in response to Atascadero, had crafted the sort of unequivocal notice of waiver that precedent demanded. Lane v. Pena , 518 U.S. 187, 198 (1996).
Although Defendants baldy assert that the language of 42 U.S.C. § 2000d-7(a)(1) "is insufficient to manifest a clear intent to condition participation in the Act's programs on a state's consent to waive its constitutional immunity," (Defendants' Reply Brief, p. 6), several circuit courts of appeal and district courts within this circuit have expressly found that Section 504, as amended, contains an unambiguous waiver of the States' Eleventh Amendment immunity. See,e.g., Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 113-14 (2d Cir. 2001); Jim C., 235 F.3d at 1082; Litman, 186 F.3d at 554; Clark, 123 F.3d at 1271; Bowers v. National Collegiate Athletic Ass'n. Act, Inc., 171 F. Supp.2d 389 (D.N.J. 2001); Frederick L. v. Department of Public Welfare, 157 F. Supp.2d 509, 521 (E.D.Pa. 2001);F.P., et al. v. State of New Jersey, Department of Education, et al., Civ. No. 00-2217 (JWB), slip op. at p. 16 (D.N.J. June 27, 2001); M.A. v. Newark Public Schools, et al., Civ. No. 01-3389 (KSH), bench ruling (D.N.J. Feb. 6, 2002). In fact, Defendants have not made this Court aware of any decision in any other court that has held the RA's waiver provision to be invalid. Accordingly, this Court concludes that Section 504 unambiguously expresses Congress' intent to condition the grant of federal funds on a state's consent to suit.
Defendants do cite to the Eighth Circuit's decision in Bradley, which held in relevant part that Arkansas had not waived its immunity from RA suits. As Defendants concede, however, the RA waiver portion of the Bradley decision was later overruled in Jim C., after a rehearing en banc. Accordingly, although Bradley might once have lent support to Defendants' argument, it has subsequently been negated by Jim C., which squarely rejected the argument now advanced by Defendants.
Defendants alternatively argue that even if the language of the RA constitutes an otherwise valid waiver provision, the financial inducements employed by Congress were so coercive as to make waiver involuntary. However, courts have consistently found this argument unpersuasive, finding that "with section 504, Congress has not crossed the line separating pressure and compulsion." Frederick, 157 F. Supp.2d at 523, citing, Jim C., 235 F.3d at 1081-82; see also Bowers, 171 F. Supp.2d at 407. The Court agrees, and finds that to avoid suit in federal court for its educational programs' allegedly discriminatory conduct against the handicapped, a state could simply decline federal funding for it educational programs if it wished. See Frederick, 157 F. Supp.2d at 523; Jim C., 235 F.3d at 1082; MCI, 271 F.3d at 491. Absent any precedent to the contrary, the Court cannot conclude that New Jersey's waiver of immunity in exchange for receipt of federal funds was sufficiently the result of coercion so as to amount to unconstitutional compulsion.
In concluding that States accepting federal funds under the RA waive their Eleventh Amendment immunity, this Court notes that such immunity is waived only with regard to the individual agency that receives federal funding. Jim C., 235 F.3d at 1081. Plaintiffs allege, and State Defendants do not dispute, that State Defendants are the recipient of federal educational funding relevant to Plaintiff's claims under the RA. Assuming the truth of these allegations, as a Court must on a motion to dismiss, State Defendants' acceptance of funds constitutes a valid waiver of immunity, which precludes dismissal of Plaintiffs' claims under the RA.
D. Waiver of Immunity for IDEA Claims
Similarly, section 604(a) of the IDEA, 20 U.S.C. § 1403(a), provides that "[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from suit in Federal court for a violation of this chapter." Courts have considered this an unequivocal expression of waiver. See John T. ex rel. Robert T. v. Iowa Dept. of Educ., 258 F.3d 860, 864 (8th Cir. 2001); Board of Educ. of Oak Park v. Kelly E., 207 F.3d 931, 935 (7th Cir. 1999); Bradley, 189 F.3d at 753. The absence of words such as "consent" or "waiver" from the IDEA should not matter. Kelly E., 207 F.3d at 935 (the "[o]ne string attached to money under the IDEA is submitting to suit in federal court.")
Plaintiffs allege, and State Defendants do not dispute, that State Defendants are the recipient of federal funding under the IDEA. Assuming the truth of these allegations, as a Court must on a motion to dismiss, State Defendants' acceptance of funds constitutes a valid waiver of immunity, which precludes dismissal of Plaintiffs' claims under theIDEA.
E. Exhaustion of Administrative Procedures
State Defendants next argue that even if Eleventh Amendment immunity does not present a bar to Plaintiff's suit, the claims against them should still be dismissed because Plaintiff failed to exhaust his available administrative procedural remedies. Plaintiff does not dispute that he failed to request a due process hearing as required by the IDEA, but argues that given the factual circumstances of his case, the exhaustion requirement should be excused.
The IDEA requires that a plaintiff exhaust available administrative remedies prior to filing a court action seeking relief. 20 U.S.C.A. § 1415(i)(2); W.B. v. Matula, 67 F.3d 484, 495 (3d Cir. 1995). Although the exhaustion requirement is not absolute, it "may not be circumvented by casting an IDEA claim as a § 1983 action predicated on IDEA." Matula, 67 F.3d at 495. Therefore, even though Plaintiff's action contains IDEA, RA, and § 1983 claims, Defendants argue that the entire action should be dismissed as a result of Plaintiff's failure to request a due process hearing.
The Third Circuit has carved out a limited number of exceptions to the administrative exhaustion requirement. These include circumstances where exhaustion would be futile and inadequate, see, e.g., Komninos v. Upper Saddle River Bd. Of Ed., 13 F.3d 775, 778 (3d Cir. 1994); and where the administrative agency cannot grant the relief sought. See, e.g. Beth V. v. Carroll, 87 F.3d 80, 88 (3d Cir. 1994); Matula, 67 F.3d at 496.
As Plaintiff rightly notes, the compensatory and punitive damages he seeks are not available remedies in administrative proceedings. Mindful that monetary damages are available under § 1983 but not under the IDEA, the Third Circuit has previously held that "where the relief sought in a civil action is not available in an IDEA administrative proceeding, recourse to such proceedings would be futile and the exhaustion requirement is excused." Matula, 67 F.3d at 496.
"Although exhaustion cannot be waived whenever a plaintiff seeks monetary damages rather than relief that is available under the administrative scheme, where there is no administrative remedy for a wrong that the plaintiff suffered, exhaustion is futile and may be waved." Plasencia v. California, 29 F. Supp.2d 1145, 1150 (C.D.Cal. 1998) (citing Matula). In this case, the Court will excuse the exhaustion requirement, because the relief sought by Plaintiff could not now be obtained via a due process hearing. Although such a hearing would once have been the ideal forum for Plaintiff's claims, Plaintiff's dyslexia has now been identified and a suitable IEP implemented.
Plaintiff does not seek to challenge his IEP, his educational placement going forward, or any other aspect of his present educational circumstances. If in addition to money damages Plaintiff also sought a change in his present or future educational circumstances, a due process hearing would have real benefits, despite the fact that Plaintiff's claims for money damages could not also be addressed at the hearing. Instead, Plaintiff seeks a declaration that his rights were violated in the past, and seeks monetary relief to make him whole for injuries allegedly suffered as a result of Defendants' past failures.
Because an administrative body could not redress Plaintiff's alleged injuries or punish Defendants' alleged past wrongs, it would be futile to now subject Plaintiff to administrative procedures in this case. Although the Court is very aware that the IDEA's exhaustion requirement should only rarely be excused, see Matula, 67 F.3d at 496, the Court finds that Plaintiff's case presents one of the handful of exceptional circumstance worthy of doing so.
Because of the facts of Plaintiff's case, the Court finds N.B. v. Alachua County School Board, 84 F.3d 1376 (11th Cir. 1996) (a case quoted at length by Defendants) to be inapposite. In N.B., a deaf student challenged a school district's busing practice without first having exhausted her administrative remedies. The Eleventh Circuit declined to excuse plaintiff's failure, and dismissed the action, even though the plaintiff also sought money damages that were unavailable in a due process hearing. Tacit in the Eleventh Circuit's decision was the fact that an administrative proceeding could still have ended the discriminatory practice and returned the student to school, which would have given the student meaningful, albeit partial, relief. Distinct from the facts inN.B., because no meaningful partial relief would be available to Plaintiff A.W. in a due process hearing, the Court finds waiver of the exhaustion requirement justified.
F. Plaintiff's § 1983 Claims
Finally, the Court must address whether Plaintiff's claims brought pursuant to 42 U.S.C. § 1983 are independently viable. State Defendants originally moved to dismiss the 42 U.S.C. § 1983 claims contained in A.W.'s Complaint on a variety of grounds that the Court need not restate here. By way of response to Defendants' motion, Plaintiff conceded that defects existed in some of his § 1983 claims as pled, and submitted his Amended Complaint, which sought to either correct or withdraw the defective § 1983 claims. Having granted Plaintiff's motion to amend his complaint, the Court now has before it only one argument relevant to Plaintiff's § 1983 claims that has not been rendered moot. Specifically, Defendants contend that Plaintiff's § 1983 claim against Defendant Gantwerk should be dismissed, because Plaintiff's complaint contains only conclusory allegations about Defendant Gantwerk's individual conduct, which was at best supervisory.
Defendant has argued that § 1983 liability can not attach for conduct that is merely supervisory.
Having reviewed the Amended Complaint, the Court does not accept Defendants' argument. The Court is mindful that "all the rules require is a short and plain statement of the claim that gives the defendant fair notice of the plaintiff's claim and the grounds upon which it rests."Conley v. Gibson, 355 U.S. 41, 47 (1957). Accepting all of Plaintiff's allegations as true for purposes of Defendants' motion to dismiss, the Court finds that Plaintiff has put forth a valid § 1983 claim against Defendant Gantwerk, premised on her direct participation in the investigation of his grandmother's complaint. Although this claim may ultimately be disposed of via a motion for summary judgment, at the very least Plaintiff should be given the opportunity to substantiate his claim via discovery. Accordingly, Defendants' motion to dismiss Plaintiff's § 1983 claim is denied.
III. CONCLUSION
For all of the foregoing reasons, Defendants' motion to dismiss Plaintiff's Complaint is denied.
An appropriate Order was entered on March 18, 2002.