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B.R. v. District of Columbia

September 11, 2009

B.R., A MINOR, BY HER MOTHER AND NEXT FRIEND, ULYSSA REMPSON, PLAINTIFF,
v.
DISTRICT OF COLUMBIA ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document No. 11

MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART THE DEFENDANTS'RENEWED MOTION TO DISMISS

I. INTRODUCTION

This matter comes before the court on the defendants' renewed motion to dismiss. The plaintiff, on behalf of her disabled child, appeals an administrative decision dismissing her complaint against the SEED Public Charter School ("SEED") and the District of Columbia Public Schools ("DCPS"), alleging violations under the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq.; 42 U.S.C. § 1983; and § 504 of the Rehabilitation Act, 29 U.S.C. § 794.On December 3, 2007, the court granted the defendants' motion to dismiss the § 1983 claim, but granted the plaintiff leave to amend her complaint within sixty days to allege facts that could sustain a Rehabilitation Act claim. The plaintiff failed to amend her complaint.

The defendants now renew their motion to dismiss, asserting that the plaintiff's complaint should be dismissed for failure to prosecute. For the reasons explained below, the court grants as conceded the defendants' motion to dismiss the Rehabilitation Act claim, but denies the defendants' renewed motion to dismiss the plaintiff's IDEA claim.*fn1

II. BACKGROUND

A. Factual History

The plaintiff alleges the following facts in the complaint. The plaintiff's daughter, B.R., attended SEED from seventh through ninth grade. Compl. ¶ 7. On May 3, 2005, SEED completed an initial Individualized Education Program ("IEP") for B.R., as a result of which she received six hours of special education services. Id. ¶ 8. On December 8, 2005, SEED revised the IEP, providing B.R. with full-time special education services. Id. ¶ 9. On January 26, 2006, however, DCPS then placed B.R. at Hart Middle School, where B.R. did not receive any special education services. Id. ¶ 10. At the end of the 2005-2006 school year, DCPS did not convene a meeting to establish an appropriate educational placement for B.R., nor did they place B.R. in a school for the following academic year. Id. ¶ 11. On August 1, 2006, the plaintiff sent a letter to DCPS warning them that if B.R. did not receive a placement for the 2006-2007 school year within ten days, the plaintiff would utilize her right to unilaterally place B.R. at a school of her choice. Id. ¶ 12.*fn2 After DCPS failed to respond, the plaintiff placed B.R. at High Road School for the 2006-2007 school year. Id.

On September 9, 2006, the plaintiff filed an administrative complaint against SEED, alleging that it had failed to provide her daughter with an appropriate placement and other educational services to which she was entitled. Id. ¶ 9. On December 7, 2006, the hearing officer dismissed the claim against SEED on the grounds that the plaintiff had waived her right to an administrative action by withdrawing a complaint that she had previously filed against SEED. Id. ¶ 12. The hearing officer also dismissed the claim against DCPS. Id.

B. Procedural History

The plaintiff commenced this action on March 7, 2007. See generally Compl. The defendants moved to dismiss the complaint, arguing that the plaintiff had failed to plead facts sufficient to sustain her claims under § 1983 and the Rehabilitation Act. Defs.' Mot. to Dismiss ("Defs.' Mot."). On December 3, 2007, the court granted the defendants' motion to dismiss the § 1983 claim. Mem. Op. (Dec. 3, 2007) at 4-8. Additionally, the court granted the plaintiff leave to amend her claim under the Rehabilitation Act within sixty days to remedy the factual deficiencies in that claim or face dismissal. Id. at 8-10. The plaintiff did not file an amended complaint following the issuance of the December 3, 2007 memorandum opinion and order.

On December 9, 2008, the defendants filed the instant motion, renewing their prior motion to dismiss. See generally Defs.' Renewed Mot. to Dismiss ("Defs.' Renewed Mot."). The plaintiff did not file an opposition, and on January 2, 2009, the court ordered the plaintiff to show cause on or before January 15, 2009 why the defendants' renewed motion to dismiss should not be granted as conceded. See Order (Jan. 2, 2009). At 12:02 a.m. on January 16, 2009, the plaintiff filed a response to the court's order. See generally Pl.'s Resp. to Order to Show Cause ("Pl.'s Resp.").*fn3 The defendants then filed a response, to which the plaintiff replied. Defs.' Resp. to Pl.'s Resp. to Order to Show Cause ("Defs.' Reply"); Pl.'s Resp. to Defs.' Reply ("Pl.'s Sur-reply"). The court now turns to the parties' arguments.

III. ANALYSIS

A. The Court Grants the Defendants' Renewed Motion to Dismiss with Respect to the Plaintiff's ...


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