ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS IN PART AND DENYING IT IN PART
This mаtter comes before the Court pursuant to Defendants’ motion to dismiss Plaintiffs complaint under Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure. The Court, being fully advised of the premises, FINDS and ORDERS:
Background
Shayne Padilla was an eleven-year old (at the time of filing this action) girl with medical and developmental disabilities who was enrolled in Denver County and City School District No. 1 (“DPS”) between 1992 and 1997. Plaintiff has sued the.school district and five individual district employees: Patrice Hall, the school district’s Special Education Director; Cynthia Rose, a school district behavior specialist; Maria Diaz, a special education teacher; Jean Boggs, a school nurse; and Jeannie Hayes, a paraprofessional аide.
Shayne began attending DPS in 1992. (Am.ComplA 9.) On October 5,1992, Shayne was referred to the Alternative Resources Team as a child with disabilities. (Am. Compl.fl 10.) Shayne was identified as a child that required various special education requirements. (Am.Compl.¶ 10.)
During the 1993-1994 school year, Shayne was permitted by DPS to attend Ellis Elementary School on a one-half day basis. (Am.Compl.¶ 12.) On February 2, 1994, an Administrative Review Team was scheduled to discuss the amount of time Shayne could spend at school each day. (Am.Compl.¶ 12.) However, at the meeting the Team discussed the educational level of service, a change in location of service, and a reevaluation of Shayne’s disability. (Am.Compl.¶ 16.) DPS administrators then promised Mrs. Padilla (Shaynе’s mother) that a plan would be developed to provide behavioral augmentative communication services to Shayne. (Am. Compl.¶ 19.)
On February 8, 1994, ARC of Denver, on behalf of the Padilla family, wrote a letter to Patrice Hall, giving her notice of DPS’s failure to provide clear goals and objectives for Shayne’s special education program. (Am. ComplA 20.) But DPS failed to take any action based on the letter. (Am.Compo.f 21.)
On March 10, 1994, DPS developed an Individual Education Plan (“IEP”) for Shayne. (Am.Compl.¶ 24.) The IEP indicated that Shayne needed: (1) the use of augmentative/alternative communications systems and consultations; (2) auditory training and speech training by school staff; (3) a behavior management plan; (4) consultation from a hearing disabilities specialist; and (5) ongoing behavior consultations. (Am. Compl.¶ 24.)
However, DPS failed to carry out Shayne’s IEP. (Am. Compl.¶ 25.) Cynthia Rose observed Shayne in the classroom on March 10, 1994, but no specific behavior management plan was created or implemented. (Am. Compl.¶ 26.) On March 22, 1994, Rosemary Hare, a hearing and speech therapist, evaluated Shayne in her classroom and found it to be large and chaotic and the staff used restraint rather than redirection when moving Shayne from one room to another. (Compl.¶ 22.)
In 1996, DPS rezoned the schools. (Am. Compl.¶ 29.) Shayne was thus transferred to Park Elementary School. (Am.Compl.¶ 30.) Shayne reacted to this change in environmеnt by “acting out” at school. (Am. Compl.32.) But DPS took no steps to identify the reasons for Shayne’s actions or to create a behavior modification plan to ad *1263 dress Shayne’s actions. (Am.Compl.¶ 33.) Further, Park Hill staff refused to tube feed Shayne even though it was required according to her 1996 IEP. (Am.Compl.¶ 34.)
In September 1996, Patrice Hall called Mrs. Padilla to tell her that Shayne could no longer attend Park Hill because the staff was not trained to accommodate Shayne’s needs. (Am.Compl.¶ 35.) Ms. Hall told Mrs. Padilla that the only option for Shayne was to transfer to her home school, Centennial Elementary. (Am.Compl.¶ 40.) Despite Mrs. Padilla’s concerns, Shayne was placed in Centennial Elementary. (Am.Compl.¶ 42.)
On October 1,1996, Mrs. Pаdilla and other parents of disabled children met with Denver School Board member Laura Lefkowitz. (Am.Compl.¶ 43.) At the meeting, Mrs. Padilla voiced her concern over the refusal to tube feed Shayne, the failure to implement a behavioral management plan, and the failure to address Shayne’s communication needs. (Am.Compl.¶ 44.) Ms. Lefkowitz promised to look into the concerns. (Am.Compl.¶ 47.)
In November 1996, Mrs. Padilla agreed to bring a stroller to school which would be used to move Shayne from the classroom to the resource room. (Am.Compl.¶ 50.) Additionally, several meetings were held to develop behavior modification techniques for Shayne. (Am.Compl.¶ 51.) The behavior modification techniques were documented in Action Plans and included: (1) that DPS staff learn to detect precipitous behaviors leading to Shayne’s outbursts; (2) that DPS staff intervene before outbursts occur; (3) that DPS staff use visual cues with verbal information to redirect Shayne; (4) that DPS staff identify three other means of redirection; and (5) if these techniques were not successful, that DPS staff may place Shayne in her stroller and wheel her out of the area until she is calm. (Am.Compl.¶ 52.) Maria Diaz, Jean Boggs, and Cynthia Rose were all instrumental in developing these techniques. (Am.Compl.53.)
DPS failed to provide any further guidance on how to implement these techniques. (Am.Compl.¶ 56.)
Mrs. Padilla never gave permission to use the stroller as a “time out” or a means of рhysical restraint. (Am.Compl.¶ 56.) The Centennial staff, however, used the stroller as a means of restraint and “time out.” (Am.Compl.¶ 57.) Between November 1996 and February 1997, Jeannie Hayes, placed Shayne in the stroller and put her in a closet off the resource room, unobserved and unsupervised, for fifteen to twenty minutes at a time. (Am.Compl.¶ 58.) Nevertheless, on February 4, 1997, Centennial staff assured Mrs. Padilla that the resource room was being used as a quiet setting where Shayne could get one-on-one attention. (Am. Compl.¶ 60.)
A new IEP was also developed for Shayne at this time. (Am.Compl.¶ 61.) This included: (1) the need for consistency, predictability and routines; (2) the need for adequate preparation time for transitions; (3) the need for visual modes and cues for transitioning; (4) the need to have her intent interpreted by the DPS staff; and (5) the need for a behavior management plan, which was in progress. (Am.Compl.¶ 61.)
Restraining Shayne in her stroller and placing her in a closet unobserved was in direct contradiction to her February 4, 1997, IEP and November and December Action Plans. (Am.Compl.62.) Mrs. Padilla advised DPS staff on several occasions that they should not restrain or grab Shayne. (Am.Compl.¶ 65.) Further, DPS staff, including Cynthia Rose, were on notice of Shayne’s averseness to restraining because her administrative and educational files contained many notations to that effect. (Am.Compl.¶ 66.) One such document was a letter from Mrs. Padilla specifically stating that DPS staff should not use “time outs” and that Shayne will struggle and resist such attempts out .of fear of being hurt. (Am.Compl.¶ 67.)
On February 12, 1997, Ms. Hayes tried to force Shayne to eat, which caused Shayne to become agitated. (Am.Compl.¶ 69.) When Shayne became agitated, the Centennial staff did not follow any of the strategies outlined in the IEP or Actions Plans. (Am.Compl.¶¶ 70-72.) Instead, Ms. Hayes and Ms. Diaz and other DPS personnel placed Shayne in her stroller, restrained her with a seat belt attached to the stroller, and wheeled the stroller into the small storage closet off the resource room. (Am.Compl.¶¶ 73.) Ms. Hayes backed the stroller *1264 against the far wall in the storage closet and left Shayne unattended. (Am.Compl.¶ 73.) Shayne became more agitated and upset. (Am.Compl.¶ 74.) The stroller toppled backwards, causing Shayne to hit her head on the floor. (Am.Compl.¶ 76.) No one was supervising Shayne at this time. (Am.Compl.¶ 77.) As a result of this fall, Shayne suffered a skull fracture. (Am.Compl.¶ 79.)
Immediately after the fall, Shayne appeared dazed and confused. (Am.Compl.¶ 80.) Despite these signs, after examination by Ms. Boggs, DPS staff attempted to feed Shayne, causing her to vomit food and blood. (Am.Compl.¶ 80.) DPS staff then contacted Mrs. Padilla,, but did not seek any immediate medical attention. (Am.Compl.82.)
As a result of this fall, Shayne has suffered pain, bruising, swelling, cranial bleeding, a significant increase in seizure activity, along with other adverse symptoms. (Am.Compl.¶ 86.)
At the end of the 1996-1997 school year, the Padilla family moved to Adams County. (Am.Compl.¶ 95.) Shayne currently receives educational services through Adams County. (Am.Compl.¶ 95.)
Plaintiff brings two claims for relief. First she alleges that her rights were violated under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., because the defendants “excluded Plaintiff from participation in publicly funded general and special educational programs at Denver Public Schools, and denied her the benefits of those programs because of the nature of her disability, in violation of Title II of the ADA.” Plaintiff also brings a cause of action under 42 U.S.C. § 1983, alleging that ■ Defendants deprived her of her federal statutory right to a free and appropriate public education as provided for undеr the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.
Discussion
Dismissal for failure to state a claim upon which relief can be granted is warranted only where a plaintiff can prove no set of facts that would entitle him to relief.
Jojota v. Chavez,
A. IDEA History
In 1975, Congress recognized the need for appropriate educational servicеs for disabled children by enacting the Education of the Handicapped Act (the “EHA”). 20 U.S.C. § 1400 et seq. Under the EHA, state and local school districts must assure that:
to the maximum extent appropriate, handicapped children ... are educated with children who are not handicapped, and that ... removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes, with the use of supplementary aids and services cannot be achieved satisfactorily.
20 U.S.C. § 1412(5).
In 1984, the Supreme Court held that a disabled child could not bring a § 1983 action to enforce rights under the EHA.
See Smith v. Robinson,
Nothing in this chapter shall bе construed to restrict or limit the rights, procedures, and remedies under the Constitution, Title V of the Rehabilitation Act of 1973, or other federal statutes protecting the rights of handicapped children and youth, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (b)(2) and (e) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.
20 U.S.C. § 1415(f) (Supp.1998). The enactment of this amendment expressly overruled
*1265
Smith. See, e.g., Mrs. W. v. Tirozzi,
In 1990, Congress renamed the EHA as IDEA. IDEA was amended again on June 4, 1998, at which time § 1415(f) became § 1415(l). The only change made in § 1415(l) was the addition of the phrase “the Americans with Disabilities Act” in recognition that the ADA was another vehicle by which handicapped children could vindicate their rights.
B. Exhaustion of Plaintiffs Administrative Remedies Would Have Been Futile
Defendant first moves to dismiss both of Plaintiffs claims because Plaintiff failed to exhaust her administrative remedies. If a child seeks legal relief that is also available under IDEA, she must exhaust the administrative procedures set out in § 1415(b)(2) and § 1415(c). See 20 U.S.C. § 1415(1).
20 U.S.C. § 1415(b)(2) (1994) provides:
Whenever a complaint has been received under paragraph (1) of this subsection, the parents or guardian shall have an opportunity for an impartial due process hearing which shall be conducted by the state education agency or by the local educational agency or intermediate educational unit, as determined by state law or by the state educational agency. No hearing conducted pursuant to the requirements of this paragraph shall be conducted by an employee of such agency or unit involved in the education care of the child.
20 U.S.C. § 1415(c) (1994) provides:
If the hearing required in paragraph (2) of subsection (b) of this section is conducted by a local educational agency or an intermediate educational unit, any party aggrieved by the findings and decision rendered in such a hearing may appeal to the state educational agency which shall conduct an impartial review of such hearing. The officer conducting suсh review shall make an independent decision upon the completion of such review.
In the case at bar, Plaintiff requested a due process hearing from DPS. In her request for hearing, Plaintiff requested “any relief that is available through the DPS administrative process, including money damages or attorney fees.” A hearing was scheduled for April 14,1998.
However, on April 1, 1998, DPS moved to dismiss Plaintiffs due process hearing on the following grounds: (1) that the hearing officer did not have jurisdiction to hold the due process hearing, (2) that Plaintiff was entitled to a due process hearing only on her current educational placement, and (3) that the request for a due process hearing did not relate to the identification, evaluation, educational placement, or the provision of a free appropriate education.
On April 6, 1998, the hearing officer dismissed Plaintiffs request for a due process hearing because his authority did not allow for money damages, “nor did [he] see any relief a Hearing Officer [could] grant a student presently residing and attending school in another county and in another school district.”
The Court finds that exhaustion was not required in this case because further administrative appeal would have been futile. Here Plaintiff was never granted a due process hearing, but instead was denied one on grounds that the hearing officer did not have authority to grant “any relief.” Congress specified this same circumstance as one where exhaustion of administrative remedies is not required under IDEA:
(1) it would be futile to use the due process procedures ...; (3) it is improbable that adequate relief can be obtained by pursuing- administrative remedies (e.g., the hearing officer lacks the authority to grant the relief sought ...
H.R.Rep. 296, 99th Cong., 1st Sess. 7 (1985). It is simply illogical for DPS to try and argue that Plaintiff must have exhausted her administrative remedies in one breath, when at the same time it has argued that Plaintiff has no right to such a hearing.
See Thompson v. Board of Special Sch. Dist. No. 1,
Furthermore, the great weight of authority suggests waiving exhaustion is appropriate in this circumstance. For instance, in
Hayes v. Unified School Dist. No. 377,
the Tenth Circuit stated: “Exhaustion of remedies is not
*1266
required if adequate relief is not reasonably available or pursuit of such relief wоuld be futile.”
Because the plaintiff lived outside of the district at the time of the due process hearing, the hearing officer lacked authority to grant relief. DPS recognized as much when it successfully moved to dismiss Plaintiffs request for a due process hearing. DPS may not successfully argue that Plaintiff failed to exhaust her administrative remedies when it had Plaintiffs due process hearing dismissed. Therefore, becаuse the hearing officer’s authority went only as far as the school district’s boundaries, and could not grant monetary relief in any event, any appeal of Plaintiffs denied request for an administrative hearing would have been futile.
Defendant’s motion to dismiss Plaintiffs claims for failure to exhaust her administrative remedies is therefore DENIED.
C. General Damages Are Available In § 1983 Actions Predicated Upon IDEA
Whether general damages are available under IDEA is far from settled. Indeed, to the Court’s knowledge, this will be the first time a Tenth Circuit court has addressed the issue directly. Under 42 U.S.C. § 1983, a plaintiff may bring a cause of action for violating the constitution or a federal statute. Section 1983 does not expand any rights provided by stаtute, it merely secures them.
Defendant has moved to dismiss Plaintiffs § 1983 claim because Plaintiff is seeking damages. Defendant contends that damage actions are not available under § 1983 when one is suing for violations of IDEA. In making this argument, Defendant primarily relies on
Crocker v. Tennessee Secondary Sch. Athletic Ass’n,
In
Crocker,
the Sixth Circuit found that the claim in that instance should be dismissed because claims for general damages were not allowed under IDEA.
See id.
at 386. The Sixth Circuit recognized that IDEA confers the authority upon courts to “grant such relief as the Court determines appropriate.”
Id.
But the court of appeals found that damages for emotional anguish in that case did not constitute appropriate relief.
See id.
The Sixth Circuit based its decision on the fact that
Burlington School Community v. Massachusetts Department оf Education
interpreted IDEA to not allow general damages, and that it had decided this issue in an earlier Sixth Circuit case.
Likewise, the Eighth Circuit also determined that general damages were not available under IDEA.
See
Although not cited by either party, the Fourth Circuit also found that general damages were not available under IDEA.
See Sellers v. School Bd. of City of Manassas, Virg.,
*1267
Contrary to these three circuits, the majority of federal courts confronting this question have concluded that IDEA allows a cause of action for general damages.
See, e.g., W.B.,
In
Franklin,
the Supreme Court confronted the question whether there was an implied right of action under Title IX of the Education Amendments of 1972.
See id
at 62,
The plain language of IDEA supports awarding compensatory damages. For instance, Section § 1415(1) states that “[njoth-ing in this chapter shall be construed to limit the rights, procedures, and remedies available under the Constitution, Title V of the Rehabilitation Act of 1973, or other Federal Statutes____” Moreover, the plain language of the remedy provision in IDEA commands that a court may “grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(e)(2) (1994). There is no restriction for money damages. Thus, plain language of IDEA statute specifically leaves the remеdies available under IDEA to the courts’ discretion. Absent any Congressional intent to the contrary, a court may order any appropriate relief, including money damages.
See Franklin,
When one looks to the legislative history of IDEA, there is no “clear indication” by Congress that it intended to foreclose compensatory damages. IDEA was adopted in 1975, only a few years after Title IX.
See Emma C.,
The Supreme Court’s
Burlington
decision did not preclude awarding compensatory damages under
IDEA
as the Sixth and Eighth Circuits concluded.
See
The Court further notes that Tenth Circuit courts do disregard the
Franklin
presumption when deciding the compensatory damage question. Judge Babcock’s decision in
Tanberg v. Weld County Sheriff
is instructive.
This Court simply cannot ignore the fundamental mis-starting point of the Sixth, Eighth, and Fourth Circuits. One must start with the presumption that any and all relief is available under a federаl statute. Curiously, not only did those courts of appeal ignore the Franklin presumption, but they ignored Franklin in its totality. Franklin was not even mentioned in any of those opinions. As previously discussed, when one starts with the Franklin presumption, the outcome is clear.
In this ease, when heeding the express statutory command of “appropriate relief,” compensatory damages are especially suitable. Here the plaintiffs family had planned on moving to another school district before the incident in question occurred. After the incident occurred, the plaintiffs family was most likely even more resolved to move out of the school district. In April of that same year the plaintiffs family signed a contract to move to another school district. In August of that year, the plaintiffs family moved. Consequently, equitable relief is not appropriate in this case because the plaintiffs family has moved outside of the school district. As Franklin noted, compensatory damages should first be assessed before equitable remedies in any event. Here, there would be no “appropriate remedy” without compensatory damages.
Finally, the Court must note that it is aware of the practical implications of allowing damages in IDEA cases. For instance, compensatory damages could discourage educators from implementing innovative programs and may expose school districts to liabilities.
See Emma C.,
We caution that in fashioning a remedy fоr an IDEA violation, a district court may wish to order educational services, such as compensatory education beyond a child’s *1269 age of eligibility, or reimbursement for providing at private expense what should have been offered by the school, rather than compensatory damages for generalized pain and suffering.
W.B.,
Therefore, Defendants’ motion to dismiss Plaintiffs § 1983 claim on the ground that no compensatory damages are available is DENIED.
D. IDEA Allows Individual Liability Lawsuits
Defendants next argue that- the plaintiff may not pursue a § 1983 claim against individual defendants because IDEA doеs not allow individual liability suits as a general rule. It is well established that § 1983 allows individual liability suits.
See McClelland v. Facteau,
The Court finds that Defendant’s argument is without merit. Defendant relies on two second circuit decisions,
Gerasimou v. Ambach,
What Defendants fail to realize is that Quackenbush’s conclusion (that § 1983 actions arе not generally available) was drawn in similar terms to the Supreme Court’s decision in Smith, which held that individual actions for violations of IDEA were not available. But as previously discussed, Congress passed legislation that expressly allowed for individual causes of action. See 20 U.S.C. § 1415(1). Thus, Quackenbush’s conclusion that § 1983 actions are not available under IDEA is no longer true. Necessarily, Defendants logical extension of that conclusion— that IDEA does not allow for individual liability — is also no longer the law of the land.
No courts have addressed the issue of whether § 1983 allows individual liability for violations of IDEA. Instead, courts have assumed that a cause of action exists against individuals for substantive violations of IDEA in light of Congress’s amendments to IDEA.
4
See, e.g., Hayes,
Thus, Defendants’ motion to dismiss Plaintiffs § 1983 claim because IDEA does not allow individual liability suits is DENIED.
E. Qualified Immunity
As a prefatory matter, the Court notes that the doctrine of qualified immunity only shields officials acting in their individual capacity.
See Brandon v. Holt,
When a defendant asserts the qualified immunity defense, the Court must first determine whether a plaintiff has sufficiently
*1270
alleged a violation of a constitutional or statutory right.
See Tonkovich v. Kansas Bd. of Regents,
For a-right to be clearly established, ordinarily “there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.”
Medina v. City and County of Denver,
But the plaintiff must do more than identify an abstract right; the plaintiff must articulate the clearly established right and the conduct that violated it with specificity.
See Tonkovich,
The Court’s review of whether Plaintiff is entitled to qualified immunity is limited to the pleadings.
See Dill v. City of Edmond,
Plaintiff contends that the clearly established right in this instance is IDEA. IDEA “confers upon disabled students an enforceable substantive right to public education in participating States____”
Honig v. Doe,
A. Violation of Shayne’s IEP
Plaintiff asserts that Defendants violated her right to a free and appropriate public education, in part, by not following her Individual Education Plan (“IEP”). IDEA defines free and appropriate public education as “special education and related services that meet the standards of the state educational agency and are in conformity with the IEP for each student.” 20 U.S.C. § 1401(18) (1994). This provision has been in effect since 1975. Given this statute and the Tenth Circuit’s acknowledgment of public education’s obligation to provide IEPs under IDEA, the Court finds that adhering to a student’s IEP is a clearly established right such that if a reasonablе person does not follow a student’s IEP, one would understand that she is violating that right.
See O’Toole v. Olathe Dist. Schs. Unified Sch. Dist. No. 233,
However, Plaintiff must still carry her burden of alleging specific facts which show that Defendants violated Shayne’s IEP in such a way that a reasonable person would recognize that their action or inaction was a violation of Shayne’s statutory rights. The Court will address Plaintiffs allegations regarding each defendant in turn.
*1271 1. Behavioral Specialist Cynthia Rose
It is alleged that although Cynthia Rose observed Plaintiff in the classroom on March 10, 1994, she did not create or implement a specific behavior management plan at that time. (Am.Compl.¶ 26.) In fact, no behavior modification techniques were implemented until November 1996. (Am. Compl.¶¶ 50-51.) This behavior management plan was required according to Shayne’s 1994 IEP. More than a two-year delay in implementing some type of behavior modification plan is a delay such that a reasonable person in Ms. Rose’s position would recognize that she violated Shayne’s IEP. Given these allegations, the Court finds that Plaintiff has carried her burden of alleging specific facts which show that, if proven, a reasonable person would realize that she is violating Shayne’s rights under IDEA. 7 Accordingly, Ms. Rose is not entitled to qualified immunity at this stage in the proceedings.
2. Director of Special Education Patrice Hall
Plaintiff alleges that Patrice Hall violated her rights because Ms. Hall was on specific notice that DPS staff were not adhering to Shayne’s IEP in many ways. (Am.Compl.¶¶ 20, 46, 66-67, 108-110.) If Ms. Hall was in fact aware of the tactics alleged by Plaintiff in her complaint, as the Special Education Director she acquiesced in not taking steps to prevent staff from violating Shayne’s rights. Ms. Hall was the final decision maker responsible for providing and/or ensuring Shayne’s appropriate care. (Am.Compl.¶¶ 117-18.) There can be no doubt that Plaintiff has carried her burden of alleging specific facts that show a dereliction of duties to follow Shayne’s IEP on Ms. Hall’s behalf. Accordingly, Ms. Hall is not entitled to qualified immunity at this stage in the proceedings.
3. Special Educаtion Teacher Maria Diaz and Paraprofessional Aide Jeannie Hayes
Plaintiff alleges that between November 1996 and February 1997, Ms. Hayes placed Shayne in a stroller and put her in a closet unobserved and unsupervised as a means of restraint and for a “time out” when Shayne would become unruly. (Am.Compl.¶ 58.) This was done without Mrs. Padilla’s knowledge or consent. (Am.Compl.¶ 56.) On February 12, 1997, Ms. Diaz and Ms. Hayes placed Plaintiff in the stroller, and then placed the stroller in the storage closet unsupervised. (Am.Compl.¶ 73.) The stroller toppled backwards, causing Shayne to hit her head. (Am. Compl.74.) Shayne sustained a skull fracture as a result of this fall. (Am.Compl.¶ 79.) Ms. Diaz and Ms. Hayes did not follow any of Shayne’s IEP guidelines during this episode. (Am.Compl.¶¶ 70-72.)
Thеse facts, if proven, are in direct contradiction with Shayne’s IEP behavior plan and rights under IDEA.
See Hayes,
4. School Nurse Jean Boggs
Plaintiff alleges that the school nurse violated her IDEA rights by not giving her prompt medical attention after the fall. However, under the facts alleged, this was not a violation of Shayne’s IEP. It may have been negligent, but it certainly was not a violation of Shayne’s IEP. Further, Plaintiff does not specifically allege facts how Ms. Boggs violated her rights in other instances. Plaintiff merely states that Ms. Boggs was “involved.” (Am.Compl.¶ 118.) But Plaintiff does not state how Ms. Boggs was involved. Plaintiffs allegations are insufficient as a matter of law. Accordingly, Plaintiffs § 1983 claim is DISMISSED WITH PREJ *1272 UDICE AS IT APPLIES TO JEAN BOGGS.
Conclusion
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED IN PART AND DENIED IN PART. Defendants’ motion to dismiss is GRANTED with respect to Plaintiffs § 1983 claim against Ms. Boggs. However, Defendants’ motion to dismiss is DENIED IN ALL OTHER RESPECTS.
Notes
. However, as the Court will explain, like the Sixth and Eighth Circuits, the Fourth Circuit wholly ignored the proper analytical starting point for deciding this issue as set forth in
Franklin v. Gwinnett County,
. The Seventh Circuit also discovered this statutory silence in
Anderson v. Thompson
when it found that IDEA did not allow for money damages.
. Finally, in
Tyler
v.
City of Manhattan,
while the majority dismissed an ADA claim for failure to allege intentional discrimination, a powerful dissent recognized the
Franklin
rationale in arguing that compensatory damages are available under Title II of the ADA.
See
. When one looks to the plain language of' 20 U.S.C. § 1415(1), one can recognize that individual liability suits are available. This subsection effectively granted an individual cause of action. In doing this, § 1415 specifically references other federal statutes in which suits against individuals are allowed. Congress made no attempt to distinguish an IDEA action from those other federal statutes in which relief is permitted and the Court has no reason (and Defendants have supplied none) to conclude otherwise.
. Likewise, it appears from Plaintiff's amended complaint that she is suing the school board as an entity, and not the individual members in their individual capacities.. Therefore, this analysis will not address the School District or School Board's qualified immunity; qualified immunity is not available to entities, only individuals.
See Brandon,
. Indeed, Defendants admitted that violating one’s IEP is a clearly established right when they argued “Plaintiff has not alleged a violation of the IEP,” and thus Plaintiff has not alleged a violation of a clearly established right. (Defs.’ Mot.Dis. at 12.)
. Further, and alternatively, Plaintiff has alleged that Cynthia Rose was on specific notice of DPS’s use of restraints and grabbing Shayne. (Am.Compl.¶ 108.) Plaintiff also alleges that Ms. Rose acquiesced the pattern of conduct that eventually caused Shayne’s injuty. (Am.Compl.¶ 118.) As the Court will explain, these actions were in violation of Shayne’s IEP. As such, if these facts are proven, this also would lead a reasonable person to believe that Ms. Rose had violated Shayne’s statutory rights.