1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

BURMA L. COVINGTON,Natural parent and legalconservator of DAVID JASONCOVINGTON,

Plaintiff-Appellant.

v.

KNOX COUNTY SCHOOL

SYSTEM; KNOX COUNTYBOARD OF EDUCATION;ALLEN MORGAN, in his

official capacity asSuperintendent; DONNA

PARKER, individually and inher official capacity asPrincipal; LINDA K. CATHEY,individually and in her officialcapacity as a Knox CountySchool Official; JOE MARLIN,individually and in his officialcapacity as a Knox CountySchool Official; MAUREENUMBEHAGEN, individuallyand in her official capacity asa Knox County School
2 Covington v. Knox County School

System, et al.

No. 99-5210

*

The Honorable Kathleen McDonald O’Malley, United States District

Judge for the Northern District of Ohio, sitting by designation.

Official; KNOX COUNTY,TENNESSEE,

Defendants-Appellees.



1

Appeal from the United States District Court

for the Eastern District of Tennessee at Knoxville.

No. 98-00207—James H. Jarvis, District Judge.

Submitted: December 10, 1999

Decided and Filed: March 6, 2000

Before: BATCHELDER and MOORE, Circuit Judges;

O’MALLEY,

*

 District Judge.

_________________

COUNSEL

ON BRIEF: Danny Paul Dyer, GENTRY, TIPTON, KIZER& McLEMORE, Knoxville, Tennessee, Mark P. Jendrek,Knoxville, Tennessee, for Appellant. Mary A.R. Stackhouse,Knoxville, Tennessee, William A. Young, O’NEIL, PARKER& WILLIAMSON, Knoxville, Tennessee, Pamela L. Reeves,WATSON, HOLLOW & REEVES, Knoxville, Tennessee,Robert L. Crossley, Sr., CROSSLEY LAW FIRM, Knoxville,Tennessee, John E. Owings, KNOX COUNTY LAWDIRECTOR’S OFFICE, Knoxville, Tennessee, for Appellees.
No. 99-5210 Covington v. 

____________

OPINION

____________

KAREN NELSON MOORE, 

appellant Burma Covington, actinher disabled son Jason, appeals thsummary judgment for the defenfailure to exhaust her administraIndividuals with Disabilities EdU.S.C. § 1400 et seq. Covington ar

alleges violations of David’s substahis special education school and iunder the IDEA and therefore doShe further contends that, even if the scope of the IDEA, exhausticircumstances of this case and tBecause we agree that exhaustiodamages are the only suitable ralleged injuries and yet damages aadministrative process, we REVEgrant of summary judgment anproceedings.

I. BACKGRO

David Jason Covington was bo

was a special education student aEducation Center (KAEC) from 19a special education diploma in Mmultiple mental and emotional dis

Burma Covington alleges tha

between 1990 and 1994, Jason wroom” that could only be unlocketime-out room, which Covington i
4 Covington v. Knox County School

System, et al.

No. 99-5210

1In response to the defendant’s motion for summary judgment,

Covington presented an affidavit, testifying to and incorporating all theallegations of the complaint. Thus, the allegations of the complaint alsoconstitute the plaintiff’s substantive evidence on summary judgment.measure,” is described in the complaint1 as beingapproximately four feet by six feet, dark and “vault-like,”with a concrete floor, no furniture, no heat, no ventilation, andonly one small reinforced window located at least five feetabove the floor. Covington claims that Jason was repeatedlylocked in the time-out room for several hours at a timewithout supervision and was often not allowed to leave theroom for lunch. On at least one occasion, Jason was allegedlymade to disrobe before being locked in the time-out room.Covington further alleges that on at least one occasion,because of the lack of supervision by school officials and thelong duration of his confinement, Jason was forced to relievehimself on the concrete floor of the room and to remain therewith his excrement for a period of time.

As a result of these incidents, Burma Covington filed an

administrative complaint with the Tennessee Department ofEducation on March 17, 1994. The Department of Educationreferred the complaint to the Knox County School System,which responded to the complaint by means of a letter thatdenied the allegations in part and attempted to explain theschool officials’ actions, but offered no other relief.Covington subsequently requested a due process hearing, aspermitted by the IDEA, see 20 U.S.C. § 1415(f), describing

the reason for this request as “inappropriate discipline,including abusive confinement in a locked time out room.”J.A. at 77 (Letter from Gary Buchanan, att’y for pl.). Overthe next three years, this hearing and the related discoverywere repeatedly scheduled, delayed, and re-scheduled. Therecord evidence suggests, and the district court found, thatCovington was largely responsible for the delays.

Although no due process hearing had yet taken place,

Covington filed a complaint in federal district court on

No. 99-5210 Covington v. 

Following Witte, Matula, and Pl

that, while a claim for money damacreate an exception to the exhauIDEA, in this case exhaustion woudamages, which are unavailable tprocess, are the only remedy capinjuries.

III. CONCLU

For the foregoing reasons, we RE

and REMAND for further proceed
12 Covington v. Knox County School

System, et al.

No. 99-5210

education school officials, was not required to exhaust formaladministrative remedies, because the parties had alreadyinformally agreed to provide the injured child with all“remedies that are available under the IDEA,” see id. at 1276.Furthermore, the Witte court noted that the relief sought forthe plaintiff’s injuries was “retrospective only” and that therelief available under the IDEA was not well-suited toremedying past instances of physical injury. See id.

In Jason’s case, as in Plasencia, “the condition creating the

damage has ceased,” and there is no equitable relief thatwould make Jason whole. Plasencia, 29 F. Supp. 2d at 1152;

cf. Padilla v. School Dist. No. 1, 35 F. Supp. 2d 1260, 1265-

66 (D. Colo. 1999) (holding that exhaustion was not requiredbecause the plaintiff had moved outside the school districtand the administrative officer consequently lacked theauthority to grant relief). But see N.B., 84 F.3d at 1379

(finding it irrelevant, for exhaustion purposes, that theplaintiff “no longer attends any of the defendant schooldistricts”); Torrie v. Cwayna, 841 F. Supp. 1434, 1442 (W.D.

Mich. 1994) (same). Furthermore, we note that our holdingin the instant case does not conflict with our prior holding inDoe v. Smith, 879 F.2d 1340 (6th Cir. 1989). In Doe v. Smith,

we held that parents may not avoid the state administrativeprocess through “the unilateral act of removing their childfrom a public school.” Id. at 1343. There was no showing in

that case that following the school system’s administrativeprocedure would have been futile; indeed, the relief sought bythe plaintiff in Doe v. Smith – a more appropriate educationalplacement, provided at public expense – is precisely the kindof relief that the state administrative process is equipped toafford. See id. at 1341-42. Therefore, Doe v. Smith is

inapplicable to a case such as Covington’s, where theadministrative process would be incapable of impartingappropriate relief due to the nature of Jason’s alleged injuriesand the fact that he has already graduated from the specialeducation school, not due to Covington’s unilateral act.

No. 99-5210 Covington v. 

April 3, 1998, under 42 U.S.C. § 1Jason’s Fourth, Fifth, and Fourteenraising state-law claims of intentiodistress and false imprisonment. Tviolations of, or even mention, thmoved for summary judgment. FoSchool District No. 377, 877 F.21989), the district court found that exhaust her administrative remediIDEA, because her complaint disciplinary practices. The court stthe use of the ‘time-out’ room as a a matter mentioned in the plainEducation Program] and a matter sat 283 (D. Ct. Op.). The court also commenced the administrative pFinding that Covington had not exremedies and that she had failed exhaustion would be futile, the defendants’ summary judgment mcase without prejudice.

Covington filed a motion to alte

arguing that the district court’s opinin the record, that her cause of actiIDEA and therefore exhaustion exhaustion would be futile administrative remedies are inadecourt’s decision results in a viprotection rights. The district cwithout opinion on January 13, 1filed a timely notice of appeal. In hessentially the same issues that sexception that she appears to haAmendment and procedural due prthat the school’s actions violated process rights under the FFurthermore, Covington argues fothat requiring her to exhaust her 
6 Covington v. Knox County School

System, et al.

No. 99-5210

2The act currently known as the IDEA has had several different

names since it was first adopted in 1975, including the Education of theHandicapped Act (EHA) and the Education of All Handicapped ChildrenAct (EAHCA). For the sake of consistency, we refer to the Act as “theIDEA” throughout this opinion, even when the case cited uses one of theAct’s former names.would violate Jason’s Seventh Amendment right to trial byjury.

II. ANALYSIS

A. Summary Judgment Standard

This Court reviews a district court’s grant of summary

judgment de novo. See EEOC v. Northwest Airlines, Inc.,188 F.3d 695, 701 (6th Cir. 1999). Summary judgmentshould be granted only if there is no genuine issue of materialfact and the moving party is entitled to judgment as a matterof law. See FED. R.

CIV. P. 56(c); Johnson v. United States

Postal Serv., 64 F.3d 233, 236 (6th Cir. 1995). The movingparty bears the initial burden of showing the absence of agenuine issue of material fact. See Celotex Corp. v. Catrett,477 U.S. 317, 323 (1986). The burden then shifts to thenonmoving party to come forward with evidence showing thatthere is a genuine issue for trial. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 256 (1986). “The evidence of thenonmovant is to be believed, and all justifiable inferences areto be drawn in his favor.” Id. at 255.B. The Exhaustion Requirement Under the IDEA

The IDEA provides that plaintiffs must exhaust their

administrative remedies before bringing suit in federal courtto obtain relief that is also available under the IDEA.2

See Doe v. Smith, 879 F.2d 1340, 1343-44 (6th Cir. 1989),cert. denied, 493 U.S. 1025 (1990); Crocker v. Tennessee

Secondary Sch. Athletic Ass’n, 873 F.2d 933, 935-36 (6th Cir.

No. 99-5210 Covington v. 

7We read Covington’s complaint a

claims, despite the fact that Covington injunction enjoining Defendants from involuntarily confining public school stuherein.” J.A. at 17. Covington has not fdemonstrated any other basis upon which the rights of other public school studentJason. Therefore, Covington’s claim for into our analysis.KAEC has engaged in a “policy oto law by locking children in the ti

Although we agree with those co

a mere claim for money damages exhaustion of administrative remethat in the unique circumstances oinjured child has already graduated school, his injuries are wholly imoney damages are the only remed– proceeding through the state’s admbe futile and is not required before federal court.7 Thus, as one cou

exhaustion cannot be waived wmonetary damages rather than relieadministrative scheme, where thremedy for a wrong that the plaintiis futile and may be waived.” PlaSupp. 2d 1145, 1150 (C.D. Cal. 1967 F.3d 484 (3d Cir. 1995)). See al96 (holding that exhaustion is nseeking money damages, because through the administrative procerelief available to the plaintiffs unbeen provided through a settlemethe United States Court of Apperecently held in Witte v. Clark CoF.3d. 1271 (9th Cir. 1999), that the monetary damages for physical an
10 Covington v. Knox County School

System, et al.

No. 99-5210

906 F. Supp. 1092, 1098 (S.D.W. Va. 1995) (noting that “aclear majority of courts hold exhaustion necessary despite theassertion of a contemporaneous § 1983 claim for damages”),appeal dismissed, 79 F.3d 1141 (4th Cir. 1991); Waterman,

739 F. Supp. at 364-66. The rationales for requiringexhaustion even when the plaintiff seeks money damages arethat plaintiffs could otherwise circumvent the IDEA’selaborate scheme simply by appending a claim for damages,see Waterman, 739 F. Supp. at 365, and that theadministrative process might ultimately afford sufficient reliefto the injured party, even if it is not the specific relief that theplaintiff requested, see Charlie F., 98 F.3d at 991-93.

C. Exceptions to the Exhaustion Requirement

Nonetheless, both the Supreme Court and this court have

held that exhaustion is not required under the IDEA in certaincircumstances. Exhaustion is not required if it would be futileor inadequate to protect the plaintiff’s rights. See Honig, 484

U.S. at 326-27; Smith, 879 F.2d at 1343; Crocker I, 873 F.2dat 936. Nor is exhaustion required if the plaintiffs were notgiven full notice of their procedural rights under the IDEA.See Crocker I, 873 F.2d at 936. The burden of demonstratingfutility or inadequacy rests on the party seeking to bypass theadministrative procedures. See Honig, 484 U.S. at 327.

Covington argues that she was not required to exhaust her

administrative remedies, because to do so would have beenfutile and would have afforded her inadequate relief. First,she points out, she is seeking money damages, which are notavailable through the administrative process. See TENN. CODE 

ANN. § 49-10-601 (1996). Second, Jason has already

graduated from KAEC; consequently, injunctive or otherequitable relief cannot alleviate his injuries. Finally, relyingon an exception to the exhaustion requirement, which hasbeen recognized by the Second Circuit, when “an agency hasadopted a policy or pursued a practice of general applicabilitythat is contrary to the law,” Mrs. W., 832 F.2d at 756 (quoting

H.R.

REP. N

O. 99-296, at 7 (1985)), Covington argues that

No. 99-5210 Covington v. 

3Subsections (f) and (g) provide for a 

at the state agency level. See 20 U.S.C. 

4That subsection provides that 

administrative findings and decision “shaaction with respect to the complaint prewhich action may be brought in any State or in a district court of the United States controversy.” 20 U.S.C. § 1415(i)(2)(A)1989) (Crocker I). Specifically, thas follows:

Nothing in this chapter shall be limit the rights, procedures, and rthe Constitution, the Americans 1990 [42 U.S.C. § 12101 et Rehabilitation Act of 1973 [29 Uother Federal laws protecting thdisabilities, except that before thunder such laws seeking relief ththis subchapter, the procedures u(g) of this section shall be exhauas would be required had the acthis subchapter.

20 U.S.C. § 1415(l).3 Furtherm

contemplates that plaintiffs will exremedies before bringing a civil acunder the IDEA.4 See Honig v. D

(1988) (citing § 1415(e)(2), the preCrocker I, 873 F.2d at 935 (same)

Covington argues that her claim 

IDEA and therefore that exhausticase. Rather, she urges, her combehavior that constitutes an inviolation. We note that some courto require the exhaustion of adm
8 Covington v. Knox County School

System, et al.

No. 99-5210

5Covington also argues that because there is no evidence in the

record indicating that the time-out room was discussed in Jason’s IEP, thedistrict court erred in concluding that the discipline used on Jason fellunder the IDEA. While Covington’s characterization of the record on thispoint may be accurate, we do not read Hayes so narrowly. Hayes and therelated cases emphasize, instead, the disciplinary nature of the schoolofficials’ actions and their educational source; they do not seem to dependupon a finding that the specific disciplinary matter about which theplaintiff complains was addressed in that student’s IEP.when the plaintiffs do not rely exclusively on the IDEA as thesource of their claims. For example, several courts have heldthat exhaustion is required when plaintiffs bring § 1983 suitsbased on violations of the IDEA. See, e.g., N.B. v. Alachua

County Sch. Bd., 84 F.3d 1376, 1379 (11th Cir. 1996), cert.denied, 519 U.S. 1092 (1997); Mrs. W. v. Tirozzi, 832 F.2d748, 756 (2d Cir. 1987); W.L.G. v. Houston County Bd. ofEduc., 975 F. Supp. 1317, 1328 (M.D. Ala. 1997).Additionally, some courts have held that whenever a claimfalls within the purview of the IDEA – that is, whenever itrelates to the provision of a “free appropriate publiceducation” to a disabled child – exhaustion is required,whether or not the plaintiff characterizes the claim as onearising under the IDEA. See Hayes, 877 F.2d at 813-14;Franklin v. Frid, 7 F. Supp. 2d 920, 922, 925-26 (W.D. Mich.1998) (concluding that despite allegations of a schoolofficial’s intentionally humiliating, poking, hitting, slapping,and verbally abusing a student, the “gravamen of the claim”fell within the purview of the IDEA, requiring exhaustion);Waterman v. Marquette-Alger Intermediate Sch. Dist., 739 F.Supp. 361, 364-65 (W.D. Mich. 1990) (citing Hayes). Hayes,

Franklin, and Waterman concluded that complaints

concerning the disciplinary practices of a school district relateto the way that the district provides education, and thusnecessarily come within the scope of the IDEA.5 However,

because we conclude that exhaustion would be futile inCovington’s case, there is no need to address the issuesinvolved in Hayes. Thus, we express no opinion as towhether Covington’s complaint falls within the ambit of the

No. 99-5210 Covington v. 

6In Crocker I, this court held that par

required to exhaust their administrative 

F.2d at 936. In a subsequent appeal aftthose plaintiffs could not obtain generaemotional or dignitary injuries, nor could suit for such general damages based on Crocker II, 980 F.2d at 386-87; see als

Educ., 941 F.2d 402, 406-07 (6th Cir. 19obtain reimbursement for past or future IDEA but not general damages, such as power), cert. denied, 502 U.S. 1077 (19Hall, we relied in part on the Supreme Cplaintiffs can obtain reimbursement for edsuch reimbursement should not be chaSchool Comm. v. Department of Educ., 47have not previously considered the qurequired by the legislative scheme of the valid damages claim under § 1983 that is however.

IDEA or whether a plaintiff windependent of the IDEA must administrative process before filinsame reason, we do not reach CovinSeventh Amendment claims.

Covington further contends that 

of 20 U.S.C. § 1415(l) requires eplaintiff seeks relief “that is also aand because general money damagthe IDEA, see Crocker v. TennesseAss’n, 980 F.2d 382, 386-87 (6th Cwas not required to exhaust her admdisagree that the plaintiff’s damagfrom exhausting her administrativSixth Circuit has not decided the q

held that a plaintiff seeking monexhaust administrative remedies money damages are not available uthe administrative process. See, eEduc., 98 F.3d 989, 991-93 (7th