MEMORANDUM OPINION FILED APRIL 18, 2008
INTRODUCTION
Plaintiff D.G. asserts that he was a student in the Somerset Hills School District (the “District”) and was eligible for services and protection under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400
et seq.
(“IDEA”). (Dkt. entry no. 1, Compl., at ¶¶ 3, 9.) Plaintiffs C.G. and T.G. (together with D.G., the “Plaintiffs”) are the parents of D.G.
(Id.
at ¶ 8.) Plaintiffs commenced this action against the District and the following employees of Bernards High School, the District high school D.G. attended, at all times relevant to the complaint: (1) Lynn J. Caravello (“Caravello”), the principal, (2) Richard Charwin (“Charwin”), the Director of Guidance, (3) Anne Connor (“Connor”), the nurse, (4) Sarah Dundas (“Dundas”), the Guidance Counselor, (5) John Grund (“Grund”), the Student Assistance Counselor, (6) Peter Miller (“Miller”), the Su
Plaintiffs contend, inter alia, that (1) the District’s actions and inactions violated D.G.’s rights under the IDEA and “New Jersey Statutes” (count 1), (2) the “Defendant District’s refusal to make accommodations for D.G., including but not limited to, refusing to modify its attendance policy also constitutes disability-based discrimination prohibited by Section 504” of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (count 2), (3) the defendants’ conduct violated Plaintiffs’ rights to procedural due process under 42 U.S.C. § (“Section”) 1983 and the Fourteenth Amendment to the United States Constitution (count 3), and (4) the District deprived D.G. of his rights under the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1 et seq. (“NJLAD”) (count 4). (See id. at ¶¶ 19-102.) The District, Charwin, Connor, Dundas, Grund, and Miller (collectively, the “Moving Defendants”) move to dismiss the complaint insofar as asserted against them pursuant to Federal Rules of Civil Procedure (“Rules”) 12(b)(1) and 12(b)(6). (Dkt. entry no. 4.) 1 Plaintiffs oppose the motion. (Dkt. entry no. 6.) For the reasons stated herein, the Court will (1) grant the motion with respect to the (a) IDEA claim and Fourteenth Amendment claim (count 1 and count 3) insofar as such claims are asserted against the Moving Defendants and (b) Rehabilitation Act claim (count 2) insofar as such claim is asserted against Charwin, Connor, Dundas, Grund, and Miller, the individual Moving Defendants, and (2) deny the motion with respect to the (a) Rehabilitation Act claim (count 2) insofar as such claim is asserted against the District and (b) NJLAD claim (count 4) insofar as such claim is asserted against the Moving Defendants.
BACKGROUND
D.G. attended schools within the District from kindergarten through twelfth grade. (Compl., at ¶ 20.) For purposes of addressing this motion only, the Court will accept the following allegations contained in the complaint as true.
D.G.’s school records indicate that as early as fourth grade he was often “down” and focused on things he did not like about himself rather than his strengths. (Id. at ¶ 23.) In sixth grade, D.G. demonstrated behavioral issues and signs of depression, including suicidal thoughts. (Id. at ¶ 25.) During seventh grade and eighth grade, D.G.’s emotional and behavioral limitations continued and he committed “defiant and aggressive actions.” (Id. at ¶ 27.) District personnel informed C.G., D.G.’s mother, that he had threatened to kill himself at least twice. (Id. at ¶ 28.) District personnel did not refer D.G. for any type of evaluation from fourth through eighth grades. (See id. at ¶¶ 26, 29, 32.) However, the principal of D.G.’s elementary school “told D.G.’s parents they must have him privately evaluated and threatened to remove D.G. from school if his suicidal comments persisted.” (Id. at ¶ 30.)
D.G.’s depression problems continued when he entered Bernards High School. D.G. spent nearly eight hours in an emergency room in September 2003 while his parents unsuccessfully attempted to secure a place for him at an in-patient psychiatric
D.G. was given an in-school suspension after he jumped off the high school bleachers in October 2003. (Id. at ¶¶ 37-39.) Thereafter, on January 6, 2004, D.G. was admitted to a hospital and diagnosed with major depression, alcohol abuse, and cannabis abuse. (Id. at ¶ 41.) D.G. was admitted to Sunrise House in April 2004 for four weeks, and Touchstone Hall in September 2004 for four months. (Id. at ¶ 45.) Certain defendants were informed about D.G.’s hospitalization and his inability to attend school. (Id. at ¶¶42, 46.) Grund told C.G. that District personnel would contact D.G.’s counselors while he was in the treatment facilities to provide course syllabi and homework, but Plaintiffs assert, upon information and belief, that no District personnel ever contacted D.G.’s counselors during the relevant time period. (Id. at ¶¶ 48-49.) 2 Plaintiffs further assert that the defendants did not offer any services to support D.G.’s transition back into Bernards High School. (Id. at ¶ 51.)
C.G. repeatedly asked Dundas, Connor, Caravello, and Grund to evaluate D.G. for eligibility for special education services, but no meeting was ever scheduled to discuss C.G.’s requests and she was not given any written response indicating why her evaluation requests had been denied. (Id. at ¶¶ 53-55.) Dundas told C.G. that D.G. had not been evaluated for eligibility for special education services because “he can do the work.” (Id. at ¶ 64.) Accordingly, despite C.G.’s repeated requests, D.G. was not evaluated or provided with services to accommodate his depression and he continued to have difficulty in school. (Id. at ¶¶ 56, 66.)
Caravello told C.G., on May 17, 2006, that D.G. would not be permitted to graduate in June with his classmates because he had missed too many class sessions, and thus, would not receive credit for certain classes. (Id. at ¶ 67.) D.G. was also not permitted to walk in the graduation procession or attend the Senior Class Breakfast. (Id. at ¶ 71.) C.G. contacted Miller and the president of the Somerset Hills Board of Education on behalf of D.G. but both refused to intervene. (Id. at ¶ 73.) D.G. and C.G. filed a due process request with the Office of Administrative Law (“OAL”) in July 2006 asserting that D.G. should be awarded a high school diploma. (Id. at ¶ 75.) However, because the District contended that the OAL lacked the authority to issue a high school diploma, C.G. and D.G. withdrew their petition. (Id. at ¶¶ 76-77.) D.G. took the G.E.D. examination in October 2006 and received a diploma from the New Jersey Department of Education on November 7, 2006. (Id. at ¶ 78.) Nevertheless, Plaintiffs commenced this action on September 25, 2007 seeking, inter alia, compensatory and consequential damages from the District and certain District personnel, who were employees of Bernards High School at times relevant to the complaint. (See id.)
DISCUSSION
I. Legal Standards Governing a Motion to Dismiss
A. Rule 12(b)(1)
A defendant may move to dismiss a claim for lack of subject matter jurisdiction
A defendant can also attack subject matter jurisdiction by factually challenging the jurisdictional allegations set forth in the complaint.
Iwanowa,
B. Rule 12(b)(6)
The Court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). On a motion to dismiss, the Court generally must accept as true all of the factual allegations in the complaint, and must draw all reasonable inferences in favor of the plaintiff.
Cal. Pub. Employees’ Ret. Sys. v. Chubb Corp.,
The Court, when considering a motion to dismiss, may generally not “consider matters extraneous to the pleadings.”
In re Burlington Coat Factory Sec. Litig.,
A. IDEA Claim
Plaintiffs assert that the District violated D.G.’s rights under the IDEA. (CompL, at ¶ 79.) Plaintiffs emphasize that the District’s failure to evaluate D.G. and provide him "with educational accommodations and services, inter alia, (1) exacerbated his depression, (2) caused him to lose self-esteem, (3) “impeded him in acquiring necessary training and education”, (4) caused him to suffer from the stigma of not graduating with his peers and receiving his diploma, and (5) delayed his plans to attend college and resulted in lost earnings. (Id. at ¶ 80.) Further, Plaintiffs assert that C.G. and T.G. suffered from emotional and mental distress, monetary losses, and the loss of enjoyment of their son, and were deprived of their right to participate in important decisions regarding their son. (Id. at ¶¶ 82-83.) Thus, Plaintiffs seek compensatory and consequential damages from the District, as well as attorneys fees, costs, and such other relief as the Court deems just and proper. (Id. at Wherefore Cl. following ¶ 83.)
1. Statute of Limitations
The Moving Defendants argue that Plaintiffs’ IDEA claim should be dismissed because they failed to bring such claim within the applicable two-year statute of limitations period. (Moving Defs. Br., at 2-5.) The IDEA provides:
A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing ..., in such time as the State law allows.
20 U.S.C. § 1415(f)(3)(C). This statute of limitations does not apply, however, it the parent was prevented from requesting an impartial due process hearing because the local educational agency (1) misrepresented that it had solved the problem forming the basis of the complaint, or (2) withheld information from the parent that it was required to provide. 20 U.S.C. § 1415(f)(3)(D). C.G. repeatedly requested that D.G. be evaluated for eligibility for special education services. When District personnel denied such evaluation requests, they were required to provide his parents with written notice explaining why they refused to evaluate him, stating that the parents have procedural safeguards available to them, including filing a complaint and requesting an impartial due process hearing, and describing the means by which the parents could obtain a description of such procedural safeguards. See 20 U.S.C. §§ 1415(b)(3)(B), (c)(l)(A)-(C). Thus, because the District withheld information it was required to provide to D.G.’s parents, the IDEA’S two-year statute of limitations does not apply here. See 20 U.S.C. § 1415(f)(3)(D).
Plaintiffs’ IDEA claim also is not barred by the above two-year statute of limitations period under the continuing violations doctrine. “The continuing violations doctrine is an equitable exception to a strict application of a statute of limitations where the conduct complained of consists of a pattern that has only become cognizable as illegal over time.”
Foster v. Morris,
2. Substantive Aspects of the IDEA claim
The IDEA imposes a “child find” duty, which requires that all disabled children residing in a particular state, who are in need of special education and related services, are identified, located, and evaluated, and a method is developed to determine whether disabled children are currently receiving needed special education and related services. 20 U.S.C. § 1412(a)(3)(A). Moreover, all state and local educational agencies that receive assistance under the IDEA must maintain procedures to ensure that disabled children and their parents “are guaranteed procedural safeguards with respect to the provision of a free appropriate public education by such agencies.” 20 U.S.C. § 1415(a). Such procedural safeguards must include, inter alia, (1) written prior notice to parents when a local educational agency refuses to initiate the evaluation or educational placement of a disabled child, and (2) the opportunity to present a complaint regarding the evaluation or educational placement of a disabled child. 20 U.S.C. §§ 1415(b)(3)(B), (b) (6)(A)-(B). When a complaint pertaining to the evaluation or educational placement of a disabled child is received, the child’s parents or the local educational agency have an opportunity for an impartial due process hearing conducted by either the state or local educational agency. 20 U.S.C. § 1415(f)(1)(A). If the hearing is conducted by a local education agency, however, any aggrieved party may appeal the findings and decision to the state educational agency. 20 U.S.C. § 1415(g)(1).
A party aggrieved by the findings and decision made by a state or local educational agency in connection with an impartial due process hearing, may commence an action in any state or district court without regard to the amount in controversy. 20 U.S.C. § 1415(i)(2)(A);
see
20 U.S.C. § 1415(f). Such aggrieved party “shall have 90 days from the date of the decision of the hearing officer to bring such an action, or, if the State has an explicit time limitation ... in such time as the State law allows.” 20 U.S.C. § 1415(i)(2)(B). All administrative procedures provided under the IDEA must be exhausted before an aggrieved party may file a civil action “seeking relief that is also available” under the IDEA, even if such action asserts violations of other laws such as the Americans with Disabilities Act, Rehabilitation Act, or United States Constitution.
See
20 U.S.C. § 1415(0-“Therefore, to the extent that any claim seeks relief that is ‘available’ under the IDEA, the IDEA’S administrative remedies must be exhausted before such action is brought.”
L.R. v. Manheim Twp. Sch. Dist.,
Plaintiffs, as noted above, seek compensatory and consequential damages with respect to their IDEA claim. The IDEA does not expressly state that monetary relief is an “available” remedy. However, in a civil action commenced in state or district court by an aggrieved party, the IDEA permits the court to “grant such
The Third Circuit, in
W.B. v. Matula,
concluded that an action may be maintained under Section 1983 for violations of the IDEA, and “an aggrieved parent or disabled child is not barred from seeking monetary damages in such an action.”
Although the Third Circuit held that Section 1983 could not be used to assert violations of rights under the IDEA, the court did not address its statements in
Matula
regarding the availability of monetary damages under the IDEA. Therefore, it is unclear under Third Circuit ease law whether “appropriate” relief under the IDEA includes compensatory and consequential damages. Nevertheless, other circuit courts have determined that monetary damages are not available under the IDEA.
See, e.g., Cave v. E. Meadow Union Free Sch. Dist.,
B. Rehabilitation Act Claim
Plaintiffs assert that D.G. is an individual with a disability under Section 504 of the Rehabilitation Act, who was qualified for educational programs provided by the District. (Compl., at ¶ 86.) Plaintiffs further assert that D.G. “was excluded from participation in, denied the benefits of, and subjected to discrimination at defendant District’s schools.” (Id. at ¶ 88.) Plaintiffs note that the District receives federal funds. (Id. at ¶ 87.) Thus, Plaintiffs contend that the District’s refusal to accommodate D.G. by, inter alia, modifying its attendance policy, constituted disability discrimination under Section 504 of the Rehabilitation Act. (Id. at ¶ 93.) 4
[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency[.]
29 U.S.C. § 794(a). A student or former student can state a claim under Section 504 by showing that (1) he or she is “disabled” under the act, (2) he or she is “otherwise qualified” to participate in school activities, (3) the defendant receives federal financial assistance, and (4) he or she “was excluded from participation in, denied the benefits of, or subject to discrimination at, the school.”
Andrew M. v. Del. County Office of Mental Health & Mental Retardation,
A plaintiff may use the same conduct as the basis for both an IDEA claim and a Rehabilitation Act claim.
Andrew M.,
Charwin, Connor, Dundas, Grund, and Miller, who are the individual Moving Defendants, do not receive federal financial assistance. Accordingly, they are not subject to Section 504 of the Rehabilitation Act.
See
A.W.,
Plaintiffs assert that D.G. is an individual with a disability under Section 504. (Compl., at ¶ 86.) Specifically, Plaintiffs allege that at all times relevant to the complaint, D.G. suffered from severe depression, which substantially limited his major life activities.
See
29 U.S.C. § 705(20)(B).
(See generally,
Compl., at ¶¶ 23-81.) Plaintiffs note that certain employees of the District schools D.G. attended were aware of D.G.’s disability due to his behavioral problems in school, his threats of suicide made to District personnel, and C.G. directly informing District personnel about D.G.’s increased depression, hospitalizations, and her concerns for his well-being and academic progress.
(See
Compl., at ¶¶ 23-24, 28, 35, 37, 39, 42, 46-47, 53, 57, 60-64, 66.)
See Ridgewood Bd. of Educ.,
Against this backdrop, we find that Plaintiffs have sufficiently alleged that the District excluded D.G. from participation in, and denied him the benefits of the programs and services offered by its schools.
See Tereance D.,
C. Section 1983 and Fourteenth Amendment Claim
Plaintiffs assert that Caravello, Charwin, Connor, Dundas, Grund, Miller, and Palazzi (1) failed to inform them of their right to obtain an evaluation of and receive appropriate services for D.G., (2) failed to have D.G. evaluated, (3) did not hold a meeting to determine whether D.G. should be evaluated, and (4) intentionally ignored information indicating that D.G. suffered from depression, and thus, needed an evaluation. (Compl., at ¶ 95.) Plaintiffs further assert that the District
has a practice and/or policy of not complying with its procedural obligations with respect to identifying and evaluating students like D.G. including not convening a meeting with the parents to decide whether to conduct an evaluation, not providing written notice to the parents and not notifying parents of their right to seek a hearing.
(Id. at ¶ 96.) Thus, Plaintiffs contend that the defendants violated their rights to procedural due process under the Fourteenth Amendment and Section 1983. (Id. at 97.)
A plaintiff asserting civil rights violations under Section 1983 must establish that the defendant acted under color of state law to deprive the plaintiff of a right secured by the United States Constitution or the laws of the United States.
Groman v. Twp. of Manalapan,
The Due Process Clause of the Fourteenth Amendment provides, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. The Due Process Clause protects individuals against two types of government action.
So-called “substantive due process” prevents the government from engaging in conduct that “shocks the conscience,” or interferes with rights “implicit in the concept of ordered liberty”. When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner. This requirement has traditionally been referred to as procedural due process.
United States v. Salerno,
Liberty interests protected by the Due Process Clause are created and defined by existing rules stemming from state laws or rules, or “understandings that secure certain benefits and that support claims of entitlement to those benefits.”
Goodmann v. Hasbrouck Heights Sch. Dist.,
No. 04-5861,
The Supreme Court has noted that a state:
is constrained to recognize a student’s legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause.
Goss v. Lopez,
The Court notes that Plaintiffs’ procedural due process claim, insofar as asserted against the individual Moving Defendants, also fails because Plaintiffs did not take advantage of all procedures available while D.G. was a student.
See Solomon,
Plaintiffs were entitled to present a complaint while D.G. was a student in the District specifically asserting that he was disabled and should be evaluated for educational accommodations and services. If such complaint was not resolved, Plaintiffs were entitled to a due process hearing, and could appeal the results of such hearing or commence an action if dissatisfied with the ultimate results. Plaintiffs did file a due process request with the OAL in July of 2006, but they later withdrew their petition.
(See
Compl., at ¶¶ 75-55.) Accordingly, Plaintiffs failed to take advantage of the adequate processes that were available to them under the IDEA while D.G. was a student experiencing significant difficulties.
See Solomon,
The Court will also grant the Moving Defendants’ motion with respect to Plaintiffs’ Fourteenth Amendment procedural due process claim insofar as such claim is asserted against the District. Plaintiffs allege that the District violated its right to procedural due process by employing a practice or policy of failing to comply with its procedural obligations to identify and evaluate students like D.G. “including not convening a meeting with the parents to decide whether to conduct an evaluation, not providing written notice to the parents and not notifying parents of their right to seek a hearing.” (Compl., at ¶ 96.) Thus, Plaintiffs are essentially alleging that the District is liable under
Monell v. N.Y.C. Dep’t of Soc. Servs.,
D. NJLAD Claim
Plaintiffs assert that D.G. is a handicapped person under NJLAD, who was otherwise qualified for the District’s educational programs. (Compl., at ¶¶ 100-101.) Plaintiff further asserts that the District deprived D.G. of his rights under NJLAD by “failing to make accommodations for D.G., including individualized edu
NJLAD provides in relevant part that “[a]ll persons shall have the opportunity ... to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation” without discrimination on the basis of disability. N.J.S.A. § 10:5-4. A “place of public accommodation” includes any kindergarten, primary, or secondary school. N.J.S.A. § 10:5-5(i). Further, “disability” is defined as, inter alia, “any mental, psychological or developmental disability resulting from anatomical, psychological, physiological or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically”. N.J.S.A. § 10:5-5(q). All of the provisions of NJLAD must be construed “to prohibit any unlawful discrimination against any person because such person is or has been at any time disabled”. N.J.S.A. § 10:5-4.1.
The New Jersey Administrative Code contains provisions implementing the NJLAD “as it pertains to owners, lessees, proprietors, managers, superintendents, agents or employees of any place of public accommodation.” N.J.A.C. § 13:13-4.1. Under these provisions, it is unlawful for any of the above-listed persons or entities to (1) deny an individual access to the accommodations, advantages, facilities, or privileges of a place of public accommodation “on account of that person’s disability or perceived disability”, or (2) discriminate against a person with a disability with respect to eligibility criteria, methods of administration, standards, terms, or conditions for access to accommodations, advantages, facilities or privileges of a place of public accommodation. N.J.A.C. § 13:13— 4. Moreover, the provisions state that:
[a]n owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation [must] make reasonable accommodations to the limitations of a patron or prospective patron who is a person with a disability, including making such reasonable modifications in policies, practices, or procedures, as may be required to afford goods, services, facilities, privileges, advantages, or accommodations to a person with a disability, unless [such person or entity] demonstrates that making the accommodations would impose an undue burden on its operation.
N.J.A.C. § 13.13-4.11(a). In determining whether an accommodation is unreasonable, the Court should consider, inter alia, (1) the size of the business running the place of public accommodation, (2) the nature and cost of the accommodation sought, (3) whether the accommodation sought will fundamentally alter the services, programs, or accommodations offered, and (4) whether the accommodation sought will destroy a building of historical significance. N.J.A.C. § 13.13-4.11(b).
The District encompasses the primary and secondary schools in Somerset Hills, including the schools D.G. attended, which constitute places of public accommodation. See N.J.S.A. § 10:5-5(l). Also, Plaintiffs have sufficiently alleged that D.G. was disabled at all times relevant to the complaint as that term is defined in NJLAD. (See generally Compl. (alleging that D.G. suffers from the psychological condition of major depression).) See N.J.S.A. § 10:5-5(q). Thus, D.G. was entitled to obtain all the accommodations, advantages, facilities, and privileges available at his primary and secondary schools without discrimination on the basis of his depression problems. See N.J.S.A. § 10:5-4.
NJLAD relies on the same analytical framework as the Americans with Disabili
Applying this analytical framework here, the Court finds that Plaintiffs have sufficiently alleged their NJLAD claim against the District. The Court has already stated that D.G. has a disability under NJLAD. Further, Plaintiffs assert that D.G. was “otherwise qualified for the educational programs provided by the defendant District”, and he was denied the benefits of such programs when the District failed to accommodate him by providing individualized educational services and modifying its attendance policies. (Compl., at ¶¶ 101-02.) The accommodations suggested by Plaintiffs, such as modifying the District’s school attendance policies, may have been reasonable.
See
N.J.A.C. § 13.13-4.11(b);
see also
N.J.A.C. § 13.13-4.11(a) (nothing that an employee of a place of public accommodation should accommodate a disabled person if such accommodations would not impose an undue burden). The Moving Defendants do not address the substantive aspects of the NJLAD claim in their brief in support of the motion to dismiss. Thus, the Court will draw all reasonable inferences in favor of Plaintiffs and infer that the District denied D.G. the benefits of its program and services because of his disability. The Court acknowledges that in ruling on a motion to dismiss it “is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.”
Twombly,
The Court, for the reasons stated supra, will (1) grant the motion with respect to Plaintiffs’ (a) IDEA claim and Fourteenth Amendment claim (count 1 and count 3) insofar as such claims are asserted against the Moving Defendants and (b) Rehabilitation Act claim (count 2) insofar as such claim is asserted against Charwin, Connor, Dundas, Grund, and Miller, the individual Moving Defendants, and (2) deny the motion with respect to Plaintiffs’ (a) Rehabilitation Act claim (count 2) insofar as such claim is asserted against the District and (b) NJLAD claim (count 4) insofar as such claim is asserted against the Moving Defendants. The Court will issue an appropriate order separately. 8
Notes
. Defendants Caravello and Palazzi are not •parties to the motion to dismiss and have not appeared. The Court notes that the summons was issued on September 26, 2007. (Dkt. entry no. 2.) The summons was served on (1) the District, Miller, Grund, Connor, and Dundas on October 2, 2007, (2) Charwin on October 4, 2007, and (3) Caravello on November 24,2007. (Dkt. entry nos. 8-13, 16.) However, the summons has not been returned with respect to Palazzi.
. Plaintiffs concede that Dundas did provide C.G. with D.G.’s history, English and math text books, but state that such books were useless without corresponding syllabi. (Id. at ¶ 50.)
. The Moving Defendants argue that Plaintiffs' IDEA claim should be dismissed for failure to exhaust administrative remedies. (See Moving Defs. Br., at 6-8 (arguing that the complaint should be dismissed in its entirety because the Plaintiffs failed to exhaust their administrative remedies as required by the IDEA).) However, because we have determined that the relief Plaintiffs seek is not available under the IDEA, they were not required to exhaust the administrative remedies available under that statute.
. As with the IDEA claim, the Moving Defendants argue that the Rehabilitation Act claim and NJLAD claim, which will be discussed in more detail below, should be dismissed because Plaintiffs failed to commence this action within the applicable statute of limitations period. The Rehabilitation Act and the NJLAD are governed by the two-year statute of limitations generally applicable to personal injury actions.
Hall v. St. Joseph’s Hosp.,
. The Court notes that the Rehabilitation Act does not require a plaintiff to exhaust any administrative remedies before commencing an action alleging that a federal or private entity receiving federal funding discriminated against the plaintiff on the basis of a disability in violation of Section 504.
Burkhart v. Widener Univ., Inc.,
. The Moving Defendants did not address the merits of Plaintiffs’ Rehabilitation Act claim in their brief in support of the motion to dismiss. (See generally, Moving Defs. Br.) Also, the Moving Defendants did not file any reply to Plaintiffs’ brief in opposition to the motion, despite seeking an extension of time in which to file a reply brief. {See dkt. entry no. 14, 11-28-07 Barone Letter.)
. NJLAD does not require a plaintiff to exhaust any administrative remedies before commencing an action.
Mitchell v. Western Union,
No. 06-949,
. The Court will dismiss,
sua sponte,
the Rehabilitation Act claim (count 2) and the Section 1983 and Fourteenth Amendment claim (count 3) insofar as asserted against Caravello and Palazzi on the same grounds as those articulated with respect to the individual Moving Defendants, as Plaintiffs had notice of all of the issues that the Court would reach and had the opportunity to fully address them.
See Couden v. Duffy,