The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Tamika Shank, on behalf of her minor son S.S. and in her own right, brings this action pursuant to the Individuals with Disabilities Education Improvement Act of 2004 ("IDEIA")*fn1 and 42 U.S.C. § 1983, alleging that defendants failed to provide S.S. with a Free Appropriate Public Education ("FAPE") while he was enrolled at Howard Road Academy ("HRA"). Defendants have moved to dismiss the complaint. For the reasons stated herein, this motion will be granted in part and denied in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
S.S. is a thirteen year-old seventh grader who has been diagnosed with a language-based learning disorder and a reading disorder. (Am. Compl. ¶ 9.) His academic functioning is between the second and fourth grades. (Id.) S.S. attended HRA from fourth grade through the first half of seventh grade and was retained one time. (Id. ¶ 9.) HRA is a District of Columbia charter school which has elected to be its own Local Education Agency ("LEA") under the IDEIA for special education purposes. (Id. ¶ 7.)
An Individualized Education Plan was developed for S.S. in February 2007, which classified him as a student with a learning disability and provided that he was to receive 17 hours per week of specialized instruction, one hour a week of speech and language therapy, and one hour per week of counseling. (Id. ¶ 11.) On August 17, 2007, Tamika Shank filed a due process complaint requesting an administrative due process hearing. (Pls.' Opp'n 2-3.) The due process complaint alleged that HRA had denied S.S. a FAPE under the IDEA and requested funding and placement for S.S. at a full time special education program, as well as compensatory education. (Id.) On September 7, 2007, HRA sent a referral packet to the District of Columbia Public Schools ("DCPS") requesting a full time special education placement for S.S. (Am. Compl. ¶ 12.) DCPS did not respond to this referral or schedule an IEP meeting before the due process hearing. (Id.)
A due process hearing was conducted on October 23, 2007 before Hearing Officer ("HO") Terry Michael Banks. (Id. ¶ 13.) The HO denied HRA's motion to join DCPS as a party to the hearing, holding that DCPS was not a necessary party as there were no allegations against DCPS. (Id. ¶ 14.) On November 5, 2007, the HO issued his determination ("HOD") holding that plaintiffs had failed to meet their burden of proof on any of the issues presented and dismissing their case without prejudice. (Id. 28.)
On February 15, 2008, Tamika Shank sent letters to HRA and DCPS notifying them that she planned to place S.S. at Accotink Academy and to seek reimbursement and funding for school placement. (Id. ¶ 41.) DCPS responded that they were willing to fund full time special education for S.S. and agreed to place him at Accotink. (Id. ¶ 42.) On February 20, 2008, DCPS issued a Notice of Placement for Accotink Academy and S.S. began attending school there on February 27, 2008. (Id. ¶¶ 42-43.)
Plaintiffs have now brought suit under the IDEIA and 42 U.S.C. § 1983, alleging that defendants failed to provide S.S. with a FAPE and denied him his federal statutory rights under color of law. (Id. ¶¶ 48, 51.) They request that this Court enter a declaratory judgment overturning the HO's decision and finding that S.S. requires a full time special education placement; that it award S.S. compensatory education to be funded by HRA; and that it award attorneys' fees and costs for the administrative due process hearing and the instant action. Defendants have moved to dismiss the complaint. They argue that plaintiffs have failed to state a claim for relief under the IDEIA or § 1983 and that plaintiffs' case is now moot, given S.S.'s placement at Accotink. (Defs.' Mot. 6-10.) They further argue that plaintiffs' complaint should be dismissed because plaintiffs have failed to join DCPS in this action. (Id. 6-7.)
A complaint must be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted if it fails to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). At this stage, all reasonable factual inferences must be construed in plaintiff's favor, and all allegations in the complaint are presumed true. Maljack Prods., Inc. v. Motion Picture Ass'n of Am., Inc., 52 F.3d 373, 375 (D.C. Cir. 1995). "However, the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations." Kowal v. MCI Comm'cns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 2004). To survive a motion to dismiss, the factual allegations of the plaintiff "must be enough to raise a relief above the speculative level." Bell Atl., 127 S.Ct. At 1965.
B. Plaintiffs Have Stated A Claim For Relief Under The IDEIA
Defendants first argue that plaintiffs have failed to state a claim for relief under the IDEIA. (Defs.' Mot. 6.) Defendants contend that as an LEA, they fulfilled their obligation under the IDEIA by sending a referral packet to DCPS requesting a full time educational placement for S.S. See D.C.M.R. 5-3019.9 ("When an LEA Charter concludes that it cannot serve a child with a disability enrolled in its facility using the funds available to it, it shall appeal to DCPS, in its role as designee for the State Education Agency (SEA), for assistance.") Because they fulfilled this obligation, defendants maintain, plaintiffs' IDEIA claim must be dismissed.
This argument is meritless. Defendants' assertion that they have a defense against liability does not mean that plaintiffs have failed to state a claim upon which relief may be granted. Moreover, plaintiffs' ...