Lee v. Seed Public Charter School of Washington

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE

         Plaintiff, parent of minor M.L., brings multiple claims against Defendant SEED Public Charter School of Washington, D.C. (“SEED”) based on M.L.’s experience while attending SEED’s college-preparatory, public boarding school.^[1] In broad strokes, Plaintiff alleges that, while attending SEED, M.L. was bullied and harassed by other students because of his autism disability and that Defendant failed to take proper steps to prevent and remedy the bullying and harassment. Ultimately, due to the bullying and harassment, M.L. attempted suicide in his dormitory room and was soon thereafter withdrawn from SEED. Based on these events, Plaintiff brings claims against Defendant for disability discrimination under the Rehabilitation Act of 1973, for the failure to provide M.L. with a free and appropriate public education under the Individuals with Disabilities Education Act (“IDEA”), for gross negligence, and for the negligent infliction of emotional distress.

         Before the Court is Defendant’s [5] Motion to Dismiss Plaintiff’s Amended Complaint. Defendant claims that, for various reasons, each of Plaintiff’s four claims should be dismissed. Upon consideration of the pleadings,^[2] the relevant legal authorities, and the record as a whole, the Court GRANTS IN PART AND DENIES WITHOUT PREJUDICE IN PART Defendant’s motion. First, the Court GRANTS IN PART Defendant’s Motion and DISMISSES WITHOUT PREJUDICE Plaintiff’s claim under the IDEA because Plaintiff has failed to properly exhaust that claim. The Court further DISMISSES WITH PREJUDICE Plaintiff’s Rehabilitation Act claim insofar as it relies on events occurring before August 22, 2017, as those events occurred outside the limitations period. The Court otherwise DENIES WITHOUT PREJUDICE Defendant’s Motion. On the current record, considering only events occurring on or after August 22, 2017, Plaintiff has stated a timely claim for disability discrimination under the Rehabilitation Act sufficient to withstand a motion to dismiss. Additionally, Plaintiff has made sufficient allegations, which taken as true, state a claim for gross negligence against Defendant. Accordingly, at this time, the Court will not dismiss Plaintiff’s claims for gross negligence and the negligent infliction of emotional distress.

         I. BACKGROUND

         For the purposes of the motion before the Court, the Court accepts as true the well-pled allegations in Plaintiff's Amended Complaint. The Court does “not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in the United States, 758 F.3d 296, 315 (D.C. Cir. 2014).

         M.L. is a minor with autism. Am. Compl., ECF No. 1-2, ¶ 3. Autism is a developmental disability which is characterized by deficits in verbal and non-verbal communication, a tendency to engage in repetitive and stereotypical movements, and unusual reactions to changes in routine or environment. Id. M.L. displays many of these symptoms. Id.

         The allegations in this lawsuit concern M.L.’s experience at SEED from 2016 to 2017. SEED is a college-preparatory, public boarding school which serves grades six through twelve. Id. at ¶ 8. During the 2016 to 2017 academic school year, M.L. was ten years old and in the sixth grade, as he had previously advanced two grades. Id. at ¶ 3. M.L. lived in the SEED dormitories with other students during the relevant time period. Id.

         The first alleged incident of bullying and harassment occurred on September 26, 2016. Two other students allegedly assaulted M.L. while he was on the soccer field. Id. at ¶ 17. The other students stomped on M.L.’s face and hit him with rocks so that he suffered a concussion. Id. Plaintiff filed a report with the District of Columbia Metropolitan Police Department regarding this incident. Id. Plaintiff requested from SEED additional information about the attack, and a SEED official agreed to send Plaintiff the incident report with the student names redacted. Id. at ¶ 18. On October 12, 2016, the two students involved in the attack turned themselves in to the District of Columbia Metropolitan Police Department, and they were expelled from SEED. Id. Plaintiff claims that on October 25, 2016, SEED administrators acknowledged the constant bullying by some students and promised to take steps to protect M.L. from bullying in the future. Id.

         According to Plaintiff, on September 19, 2017, M.L. was again physically assaulted, stomped on, and punched. Id. at ¶ 20. Plaintiff states that she requested an incident report but did not receive one. Id. at ¶ 21. The constant harassment by various students against M.L. continued and intensified in September of 2017, but SEED officials allegedly failed to document, investigate, or act on these incidents. Id. at ¶ 22.

         Plaintiff claims that in September of 2017, M.L. was labeled as gay by some students which resulted in constant rumors about M.L. Id. at ¶ 23. M.L. was constantly harassed in the shower and bathroom. And, students shared a video of M.L. naked in the shower. Id. Plaintiff explains that M.L. became afraid to leave his dorm room to go to the bathroom at night. Id. at ¶ 24. But, SEED officials allegedly failed to document, investigate, or act on these incidents. Id. at ¶¶ 23-24.

         On September 27, 2017, after students harassed M.L., calling him gay, M.L. attempted to commit suicide in his dorm room. Id. at ¶ 25. That day, Plaintiff removed M.L. from the residential program. Id. at ¶ 26. And, on October 17, 2017, Plaintiff withdrew M.L. from SEED because he could not attend the school without being in the residential program. Id. at ¶¶ 27-28.

         According to Plaintiff, SEED has had multiple issues with students being bullied or harassed. These allegations were covered by news outlets and at least one incident led to another student’s suicide at SEED. Id. at ¶¶ 29-38.

         II. LEGAL STANDARD

         Defendant requests dismissal of Plaintiff’s claims both for lack of subject matter jurisdiction and for failure to state a claim for which relief may be granted. These two grounds for dismissal are analyzed pursuant to different rules.

         Motions to dismiss for lack of subject matter are analyzed pursuant to Federal Rule of Civil Procedure 12(b)(1). A court must dismiss a case pursuant to Rule 12(b)(1) when it lacks subject-matter jurisdiction. In determining whether there is jurisdiction, “the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (quoting Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)) (internal quotation marks omitted). “At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact.” Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). In spite of the favorable inferences that a plaintiff receives on a motion to dismiss, it is still true that the “[p]laintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Am. Farm Bureau v. EPA, 121 F.Supp.2d 84, 90 (D.D.C. 2000). “Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to ...