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Tawes v. Board of Education of Somerset County

United States District Court, D. Maryland

December 11, 2017

CYNTHIA TAWES, Plaintiff,
v.
BOARD OF EDUCATION OF SOMERSET COUNTY, et al., Defendants.

          MEMORANDUM OPINION

          Richard D. Bennett, United States District Judge

         Plaintiff Cynthia Tawes (“Plaintiff” or “Tawes”), as parent and next friend of the minor child, J.W., originally filed this eleven-count Complaint in the Circuit Court for Somerset County, Maryland, against Defendants Board of Education of Somerset County (“BOE”), Superintendent of Schools for Somerset County - Dr. John B. Gaddis (“Gaddis”), John Doe #1, John Doe #2, and John Doe #3. (ECF No. 2.) The gravamen of this case involves her allegations that her minor son J.W. was bullied by other students while attending the 2014 Secondary Summer School Program at Washington High School in Somerset County. Specifically, it is alleged that J.W. is a student who has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), and ultimately Oppositional Defiant Disorder (“ODD”) and Major Depressive Disorder (“MDD”). Accordingly, consistent with the mandates of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq., J.W. has been eligible to receive special education instruction and support services. These services included his attendance at the 2014 Secondary Summer School Program.

         As to the Defendants BOE and Gaddis (jointly referred to as “Defendants”), Plaintiff alleges: negligence (Count I); negligence per se (Count II); deprivation of a right to a free appropriate public education under 42 U.S.C. § 1983, the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq., and U.S. Const. Amend XIV (Count III); wrongful expulsion under Md. Code Ann., Educ. § 7-305 (Count IV); deprivation of constitutional rights under 42 U.S.C. §§ 1985, 1986 and U.S. Const. Amend XIV (Counts V, VI); violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. (Count VII); and educational malpractice (Count VIII). Tawes additionally alleges assault and battery against John Doe #1 (Count IX) and John Doe #2 (Count X), and invasion of privacy, unlawful use of photograph/personal depiction against John Doe #3 (Count XI).

         Currently pending before this Court is Defendants' Motion to Dismiss Counts I-VIII. (ECF No. 7.) Specifically, the Motion does not address Counts IX-XI alleging state causes of action.[1] The parties' submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the following reasons, Defendants' Motion to Dismiss (ECF No. 7) is GRANTED with respect to Counts I, II, III, V, VI, VII, and VIII. The remaining state law claims set forth in Counts IV, IX, X and XI are REMANDED back to the Circuit Court for Somerset County, Maryland.

         BACKGROUND

         This Court accepts as true the facts alleged in Plaintiff's Complaint. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). J.W. was a student in Somerset County Public Schools (“SCPS”) from kindergarten until the summer before his eighth grade year. (ECF No. 2 at ¶¶ 8, 47, 53.) He was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) in kindergarten, and as a result, SCPS created an Individualized Education Plan (“IEP”) to provide him with special education services, as mandated by the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq. (Id. at ¶¶ 9-10.) On May 28, 2013, near the end of J.W.'s sixth grade year, Maple Shade Youth & Family Services, Inc. (“Maple Shade”) performed a psychological assessment of J.W. and diagnosed him with ADHD, Oppositional Defiant Disorder (“ODD”), and problems with academics. (Id. at ¶ 14.) The findings and diagnoses made by Maple Shade were provided to SCPS, the Somerset Intermediate School, and J.W.'s IEP team. (Id. at ¶ 16.)

         In seventh grade, J.W. received failing grades. (Id. at ¶ 18.) At some point near the end of that 2013-2014 school year, J.W. was informed that he would need to attend the 2014 Secondary Summer School Program (the “Program”) in order to advance to the eighth grade. (Id.) On May 12, 2014, J.W.'s IEP team performed their annual meeting and assessment of J.W. (Id. at ¶ 19.) While the IEP team focused on his ADHD diagnosis, they did not “list, incorporate, or mention J.W.'s diagnosis of ODD or problems with academics.” (Id. at ¶ 20.) At this meeting, the IEP team also determined that J.W. was not eligible for Extended Year Services, which would have provided special education services to him during the Program. (Id. at ¶ 21.) On May 17, 2014, after the IEP team's annual review, Maple Shade again performed a psychological assessment of J.W. and diagnosed him with Major Depressive Disorder (“MDD”). (Id. at ¶ 15.)

         J.W. attended the 2014 Program held at Washington High School for grades six through twelve. (Id. at ¶¶ 4, 22, 26.) On the morning of July 3, 2014, he was walking in the hallway to class after breakfast when John Doe #1 grabbed J.W. from behind and “forcibly dragged him into the men's restroom, ” and a group of students followed.[2] (Id. at ¶ 33.) Another student, John Doe #2, “began to taunt, antagonize, threaten, harass and bully” J.W. and then “physically assaulted” him. (Id. at ¶ 36-38.) Another student, John Doe #3, recorded the assault of J.W., presumably using a cellphone. (Id. at ¶ 39.) The assault stopped when they heard that a male staff member was coming, and most of the students left the restroom. (Id. at ¶ 42.) After this incident, J.W. completed the school day. (Id. at ¶ 44.) Within the days following the incident, John Doe #3's video recording was “posted and published to several online social and multimedia websites.” (Id. at ¶ 45.)

         On or about Monday, July 7, 2014, J.W. was called to the principal's office and was shown the video recording. (Id. at ¶ 46.) J.W. stated that he did nothing wrong, and the principal did not ask any further questions. (Id.) Later that day, he was expelled from the Program. (Id. at ¶ 47.) J.W.'s mother did not receive any verbal or written notice that J.W. was expelled or any information about subsequent administrative options or procedures. (Id. at ¶ 48.) In addition, no accommodations were made for J.W. following his expulsion. (Id. at ¶ 50.) When J.W.'s mother contacted SCPS to determine what credits J.W. earned from the Program, SCPS informed her that J.W. passed and would be eligible for the eighth grade. (Id. at ¶ 52.) However, SCPS refused to provide her with information about the expulsion. (Id. at ¶ 58.) After she brought the incident to the attention of the Assistant Superintendent of Instruction, she received a letter that stated that staff members' actions related to J.W.'s expulsion were appropriate. (Id. at ¶ 59.)

         As a result of the incidents that occurred at the Program, J.W. was unwilling to reenroll in school at SCPS. (Id. at ¶ 53.) He was subsequently diagnosed with Post Traumatic Stress Disorder and Manic Depressive Disorder with suicidal ideation, which caused him to “[e]lope from his new school and home on more than one occasion, and ultimately being committed to Dover Behavioral Health.” (Id. at ¶ 55.) After he was released from Dover Behavioral Health, he continued to receive mental health treatment that consisted of psychological evaluations twice a week and psychotherapy sessions five times a week. (Id. at ¶ 56.) J.W. presently receives mental health treatment in response to these alleged incidents. (Id. at ¶ 57.) The Plaintiff Tawes filed this Complaint in the Circuit Court for Somerset County.[3] (ECF No. 1 at 1.) On August 18, 2017, Defendants timely filed a Notice of Removal to this Court, asserting federal question jurisdiction under 28 U.S.C. § 1331. (Id. at 2.)

         STANDARD OF REVIEW

         A motion to dismiss for failure to exhaust administrative remedies is governed by Federal Rule of Civil Procedure 12(b)(1), which requires dismissal when the court lacks subject matter jurisdiction.[4] Khoury v. Meserve, 268 F.Supp.2d 600, 606 (D. Md. 2003); Clarke v. DynCorp Intern. LLC, 962 F.Supp.2d 781, 786 (D. Md. 2013). The plaintiff bears the burden to show that subject matter jurisdiction exists. Piney Run Preservation Ass'n v. Cnty. Comm'rs of Carroll Cnty., 523 F.3d 453, 459 (4th Cir. 2008). A motion to dismiss for failure to state a claim is governed by Rule 12(b)(6), which authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006); see also Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016). The sufficiency of a complaint is assessed by reference to the pleading requirements of Rule 8(a)(2), which provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a motion under Rule 12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Bell Atl., Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009).

         ANALYSIS

         I. Plaintiff failed to exhaust her administrate remedies for her Individuals with Disabilities Education ...


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