1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

ANNIE CLAY, et al., 

 

Plaintiffs, 

 

v. 

 

DISTRICT OF COLUMBIA, 

 

Defendant. 

 

Civil Action No. 09-1612 (BAH) (DAR) 

MEMORANDUM OPINION 

 This case is a civil action to enforce rights under the Individuals with Disabilities 

Education Act (“IDEA”), as amended, 20 U.S.C. §§ 1400 et seq., as well as under the 

Fifth Amendment’s due process clause. Compl. at 1. Congress enacted the IDEA “to 

ensure that all children with disabilities have available to them a free appropriate public 

Education [(‘FAPE’)] that emphasizes special education and related services designed to 

meet their unique needs and prepare them for further education, employment, and 

independent living.” Petties ex rel. Martin v. District of Columbia, No. 10-7149, 2011 

WL 6004534, at *1 (D.C. Cir. Dec. 2, 2011) (quoting 20 U.S.C. § 1400(d)(1)(A)). The 

defendant in this case, the District of Columbia, filed a partial motion to dismiss, which 

the Court referred to a Magistrate Judge for a Report and Recommendation. Presently 

before the Court are the plaintiffs’ objections to the Report and Recommendation dated 

September 9, 2011 of Magistrate Judge Deborah A. Robinson, ECF No. 29 (the 

“Report”), as well as the plaintiffs’ motion to treat certain allegations in the Amended 

Complaint as admitted, ECF No. 24. For the reasons explained below, the Court will 

accept and adopt the Magistrate Judge’s recommendations, with the clarifications and 
2 

modifications explained in this Memorandum Opinion, and will grant the defendant’s 

partial motion to dismiss. In addition, the Court will deny the plaintiffs’ motion to treat 

certain allegations in the Amended Complaint as admitted. 

I. DEFENDANT’S PARTIAL MOTION TO DISMISS 

A. Background 

Magistrate Judge Robinson has described the background of this case in the 

Report. See Report at 1-5. The Court will therefore provide only a brief overview of the 

relevant facts. On August 25, 2009, Plaintiff Annie Clay, “[i]n her own right” and on 

behalf of her granddaughter, commenced this civil action against the District of Columbia 

to enforce rights under the IDEA and the Fifth Amendment due process cause. Report at 

1. The plaintiffs filed an Amended Complaint with leave of court on September 30, 

2010.1 Id.; ECF No. 18, Am. Compl. In the Amended Complaint, the plaintiffs “seek 

reversal of a Hearing Officer’s Determination (HOD) issued May 28, 2009, which denied 

them [their rights under IDEA and the Fifth Amendment] in violation of 20 U.S.C. §§ 

1415(b)(6), 1415(b)(7), 1415(c)(2), 1415(f), 1415(h) and the Fifth Amendment.” Report 

at 3. Plaintiffs “seek damages and injunctive relief for Defendant[’s] violation of 

Plaintiff’s Fifth Amendment and IDEA rights in violation of 42 U.S.C. § 1983.” Id. The 

plaintiffs’ Fifth Amendment and Section 1983 claims are based on allegations that the 

District violated the plaintiffs’ IDEA and due process rights, inter alia, because the 

attorney who represented the District in the IDEA administrative proceeding filed a late 

and deficient response to the plaintiffs’ complaint and a late notice of insufficiency and 

																																																													

1 The plaintiffs had previously filed an amended complaint, apparently without leave of court, on March 18, 

2010. See Report at 2-3; ECF No. 10, “First Amended Complaint.” Thus, there is some confusion over 

whether the operative, September 30, 2010 complaint, ECF No. 18, is a “first” or “second” amended 

complaint.		See Pls.’ Objections to the Report and Recommendations of the Magistrate Judge, ECF No. 30, 

at 2.
3 

motion to dismiss, and because the hearing officer dismissed the plaintiffs’ complaint at 

the administrative hearing. Am. Compl. ¶¶ 58-72. 

 The District of Columbia has filed a partial motion to dismiss the Amended 

Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Report at 

4. Pursuant to Rule 12(b)(1), the District seeks to dismiss for lack of subject matter 

jurisdiction (1) the plaintiffs’ IDEA claims involving school years “2003-2006” as barred 

by the statute of limitations,2 and (2) the plaintiffs’ Fifth Amendment and Section 1983 

claims for failure to exhaust administrative remedies. Id. The partial motion to dismiss 

also seeks to dismiss the Fifth Amendment and Section 1983 claims under Rule 12(b)(6) 

for failure to state a claim upon which relief can be granted. Id. 

In the Report and Recommendation issued on September 9, 2011, the Magistrate 

Judge recommended dismissing the plaintiffs’ claims involving school years “2003-

2006” as barred by the statute of limitations. Id. at 8-11. The Magistrate Judge also 

recommended that the plaintiffs’ Fifth Amendment and Section 1983 claims be dismissed 

for failure to state a claim upon which relief can be granted. Id. at 11-15. 

On September 23, 2011, the plaintiffs filed five objections to the Magistrate 

Judge’s Report and Recommendation.3 See Pls.’ Objections to the Report and 

Recommendations of the Magistrate Judge (“Pls.’ Obj.”), ECF No. 30. The District has 

																																																													

2

 There is confusion over the designation of different school years in the partial motion to dismiss and in 

the Report. The Court addresses that issue in detail below. 3 “Rule 72(b) of the Federal Rules of Civil Procedure authorizes the referral of dispositive motions to a 

magistrate judge for a report and recommendation.” Ascom Hasler Mailing Sys., Inc. v. U.S. Postal Serv., 

Nos. 00-1401, 00-2089, 2011 WL 4526034, at *1 (D.D.C. Sept. 30, 2011). “When a party files written 

objections to any part of the magistrate judge’s recommendation, the Court considers de novo those 

portions of the recommendation to which objections have been made, and ‘may accept, reject, or modify 

the recommended decision; receive further evidence; or return the matter to the magistrate judge.’” Id. 

(quoting Fed. R. Civ. P. 72(b)(3)). 
4 

responded to the objections. Def.’s Resp. to Pls.’ Objections to the Report and 

Recommendations of the Magistrate Judge (“Def.’s Resp.”), ECF No. 31. 

 For the reasons explained below, the Court adopts the Magistrate Judge’s 

recommendations, with the modifications and clarifications reflected in this 

Memorandum Opinion, and grants the partial motion to dismiss. 

B. The Plaintiffs’ Objections 

1. Objection Regarding The Designation Of The Complaint 

The plaintiffs’ first objection concerns whether the operative Complaint in this 

action, ECF No. 18, should be termed a “first” amended complaint or a “second” 

amended complaint. The plaintiffs object to parts of the Report that refer to the 

document as a “second” amended complaint, since the plaintiffs contend that they have 

only amended their complaint once, despite the procedural confusion that accompanied 

the amendment. See supra n.1. This objection lacks legal significance. The Report has 

clearly identified the relevant version of the Complaint. Accordingly, this objection does 

not provide any basis for rejecting the Report’s conclusions. 

2. Objection Regarding The Designation Of School Years 

The plaintiffs’ second objection concerns the way the Report and the partial 

motion to dismiss have designated different school years for statute of limitations 

purposes. IDEA contains a two-year statute of limitations, see 20 U.S.C. § 

1415(b)(6)(B), (f)(3)(c), and the plaintiff filed the administrative claim underlying this 

case on March 19, 2009. Mem. in Supp. of Def.’s Mot. for Partial Dismissal of the Am. 

Compl., ECF No. 19, (“Def.’s Mot. to Dismiss Mem.”) at 7. Thus, the date occurring 

two years prior to the claim was March 19, 2007. The Report recommended that the 
5 

“Defendant’s motion to dismiss Plaintiffs’ IDEA claim for school years 2003-2006 be 

granted.” Report at 11. At the same time, the Report stated that it “makes no finding . . . 

with respect to any claims regarding the 2006-2007 school year, since the Defendant did 

not move to dismiss Plaintiffs’ IDEA claims concerning the 2006-2007 school year.” Id. 

The plaintiffs point out, correctly, that this section of the Report uses potentially 

misleading nomenclature to address the relevant school years. The plaintiffs contend, 

and the Court agrees, that it is clear from the Defendant’s motion to dismiss that the 

Defendant did originally intend to seek dismissal of claims for the entirety of the 2006-

2007 school year. See Def.’s Mot. to Dismiss Mem. at 7 (“[A]ny claims prior to the 

2007-08 school year are barred by the IDEA’s two-year limitations period.”). 

 The defendant’s response to the plaintiffs’ instant objection now appears to 

concede that the plaintiff may have timely claims that originated during the latter part of 

the 2006-2007 school year, after the March 19, 2007 bar date. See Def.’s Resp. at 2. 

Thus, the defendant states that “Plaintiffs’ objections in this regard are moot.” Id. The 

defendant therefore appears to have responded to the plaintiffs’ objection to the Report 

by narrowing the original grounds of its partial motion to dismiss in a manner consistent 

with the recommendation and the understanding of the Magistrate Judge. In other words, 

the defendant’s motion, which originally sought to dismiss all claims prior to the 2007-

2008 school year, now seeks only to dismiss all claims prior to the 2006-2007 school 

year, as recommended by the Magistrate Judge. In accordance with this understanding, 

the Magistrate Judge’s recommendation to dismiss all claims prior to the 2006-2007 

school year is accepted and those claims will be dismissed. 
6 

The plaintiff asserts that claims arising at any point during the 2006-2007 school year 

should be deemed timely, despite the fact that September 2006 through early March 2007 

falls outside the limitations period. No authority for this argument of stretching the 

IDEA limitations period is cited by either party, however. See Report at 10 n.4. In any 

event, whether the entire 2006-2007 school year is covered or just the final few months is 

of little practical import. The defendant’s compliance with IDEA will be evaluated as of 

the March 19, 2007 bar date and the minor child’s needs on that date will be cumulative 

of the entire year. 

3. Objections Regarding Dismissal of the Fifth Amendment and Section 

1983 Claims 

The plaintiffs’ third and fourth objections are that the Magistrate Judge 

improperly dismissed the Fifth Amendment and Section 1983 claims asserted in Counts 

VI and VII of the Amended Complaint. The claim in Count VI asserts that the Hearing 

Office, District of Columbia Public Schools, the Office of the State Superintendent of 

Education, and the District of Columbia violated the Fifth Amendment and Section 1983 

“by depriving [the plaintiffs] of their claim for adjudication of their administrative 

complaint, without due process of law” and that these entities have a “custom or practice” 

of doing so. Am. Compl. ¶¶ 91-93. The claim in Count VII asserts that the same entities 

deprived the plaintiffs of their rights under IDEA, in violation of Section 1983, and that 

they have “custom or practice” of doing so. Id. ¶¶ 95-96.

The Magistrate Judge dismissed these claims because she found, inter alia, that 

the plaintiffs’ claims are essentially for injuries under the IDEA and that the remedial 

scheme of the IDEA provides appropriate avenues for relief. Report at 14-15. 
7 

 a. Plaintiffs’ Section 1983 Claim for IDEA Violations 

Section 1983 provides, in relevant part, that “[e]very person who, under color of 

any statute, ordinance, regulation, custom, or usage, of any State or Territory or the 

District of Columbia, subjects, or causes to be subjected, any citizen of the United States 

or other person within the jurisdiction thereof to the deprivation of any rights, privileges, 

or immunities secured by the Constitution and laws, shall be liable to the party injured in 

an action at law, suit in equity, or other proper proceeding for redress . . . .” 42 U.S.C. § 

1983. The question of whether, and under what circumstances, an individual may bring a 

Section 1983 claim premised upon a violation of IDEA has yet to be decided by the Court 

of Appeals in this Circuit. See DL v. District of Columbia, 730 F. Supp. 2d 84, 90 

(D.D.C. 2010) (hereinafter, “DL I”) (citing Blackman v. District of Columbia, 456 F.3d 

167, 172 n.6 (D.C. Cir. 2006) (“We have not yet decided whether a section 1983 action 

can be brought to enforce the FAPE right. . . . Because none of the parties addresses the 

issue here, we save it for another day. . . .”)). 

Some courts in this District have held that plaintiffs may not sue under Section 

1983 to enforce the IDEA because the IDEA itself is a comprehensive remedial scheme. 

See id. at 89-90 (“Plaintiffs do not have a right to sue under § 1983 to enforce the IDEA. . 

. . Congress did not intend relief under the IDEA to coexist with relief under § 1983.”); 

Alston v. District of Columbia, 561 F. Supp. 2d 29, 46 (D.D.C. 2008) (dismissing Section 

1983 claim where “the plaintiff’s claims are essentially for injuries under the IDEA” and 

“the plaintiff has alleged no violations of federal rights for which there is not an existing, 

comprehensive remedial scheme”). 
8 

Other courts in this District have held that plaintiffs may sue to enforce the IDEA 

under Section 1983 in certain narrow circumstances. In Walker v. District of Columbia, 

the court set forth a four-part test for stating a Section 1983 claim premised upon 

violation of the IDEA. 157 F. Supp. 2d 11, 30-31 (D.D.C. 2001). This test requires 

plaintiffs to show: 

(1) that the defendant violated IDEA; (2) that “exceptional circumstances” exist, 

such that the defendant’s conduct that caused the IDEA violation was persistently 

egregious and prevented or frustrated the plaintiff from securing equitable relief 

under the IDEA; (3) “that the District of Columbia has a custom or practice that is 

the moving force behind the alleged IDEA violations”; and (4) that the normal 

remedies offered under the IDEA, including compensatory education, are 

inadequate to compensate the plaintiff for the harm he or she allegedly suffered. 

Hinson ex rel. N.H. v. Merritt Educ. Ctr., 521 F. Supp. 2d 22, 28 (D.D.C. 2007) (citing 

Walker, 157 F. Supp. 3d at 30). Alternatively, some courts in this district only require 

plaintiffs to show the first and the third prongs of the Walker test. Id. (citing R.S. v. 

District of Columbia, 292 F. Supp. 2d 23, 28 (D.D.C. 2003)). The Magistrate Judge, 

applying the Walker test, found that the plaintiffs’ allegations failed to satisfy the second, 

third, and fourth prongs of the test. Report at 13. 

In their objections, the plaintiffs suggest that the Magistrate Judge should have 

applied a modified version of the Walker test because the plaintiff has alleged procedural 

violations of IDEA’s hearing requirements, not just the denial of the right to free and 

appropriate public education. Pls.’ Obj. at 16-17. Specifically, the plaintiffs argue that 

the Walker test, which was “designed to apply to denials of FAPE, if it applies at all, 

clearly requires some modification when applied to denials of a child’s right to a due 

process hearing” and associated procedural rights. Id. at 17. The plaintiffs do not cite 

any case law for this view and the Court declines to adopt it. The Walker test does not 
9 

distinguish between procedural and substantive violations of IDEA and, in any event, the 

procedural safeguards of the IDEA exist to promote the statute’s substantive ends. 

In the alternative, the plaintiffs argue that the Magistrate Judge improperly 

determined that the Amended Complaint failed to satisfy the Walker test. The Magistrate 

Judge found that the Amended Complaint does not establish “(2) any ‘persistently 

egregious’ conduct by the defendant, or to any other ‘exceptional circumstances’; (3) any 

‘custom or practice’ of the District of Columbia, or (4) any inadequacy of the remedies 

provided by IDEA’s comprehensive remedial scheme.” Report at 13. To the extent that 

the Amended Complaint does allege an improper “custom or practice,” the Report found 

these allegations to be conclusory. See id. at 14 & 14 n.7. The Court notes that some of 

the plaintiffs’ allegations relating to the deficient customs and practices of the defendant 

are premised upon judicial admonitions contained in prior district court opinions. See 

Am. Compl. ¶ 68 (“Since this Court’s decision in Massey v. D.C., 400 F. Supp. 2d 66 

(D.D.C. 2005), members of this Court, across a series of decisions, have decried DC’s 

repeated violation of IDEA’s Response requirements . . .”). 

The plaintiffs’ Amended Complaint does allege various procedural flaws in the 

disposition of the plaintiffs’ administrative complaint. The Court agrees, however, that 

the Amended Complaint does not present the type of exceptional circumstances 

necessary to trigger Section 1983 liability for an IDEA violation under Walker.

4

 See 

Hinson, 521 F. Supp. 2d at 28 (dismissing Section 1983 claim asserted as part of IDEA 

suit since plaintiffs “do not allege any exceptional circumstances or demonstrate why the 

normal remedies offered under the IDEA are inadequate to compensate [the minor child] 

																																																													

4

 Having decided that the plaintiffs’ allegations do not state a Section 1983 claim for relief under Walker, 

the Court need not resolve the question of whether the IDEA precludes suits under Section 1983 entirely, 

since the plaintiffs’ claim would fail under either approach. 
10 

for the harm he allegedly suffered.”). Moreover, the Court finds that IDEA can provide 

adequate relief to the plaintiffs. The IDEA affords the Court broad discretion in 

fashioning appropriate relief. See 20 U.S.C. § 1415(i)(2)(C)(iii); Reid ex rel. Reid v. 

District of Columbia, 401 F.3d 516, 522 (D.C. Cir. 2005) (noting that the Supreme Court 

has explained that courts’ powers to fashion “appropriate relief” under IDEA entail 

“broad discretion” and implicate “equitable considerations.”) (quoting Florence County 

Sch. Dist. Four v. Carter, 510 U.S. 7, 15-16, (1993)). Here, the plaintiffs have requested 

reversal of the hearing order dismissing the plaintiffs’ complaint, injunctive relief, 

compensatory relief and damages, and attorneys’ fees. Compl. at 25. If the Court 

determines that relief is warranted in this case, the Court has the power under the IDEA 

to award all the relief the plaintiff has requested, with the exception of the unexplained 

claim for compensatory damages. See, e.g., Gorman v. District of Columbia, No. 11-

150, 2011 WL 5330786, at *1 (D.D.C. Nov. 4, 2011) (noting that the IDEA gives courts 

authority to award attorney’s fees for both the civil litigation and the underlying 

administrative proceeding); DL v. District of Columbia, No. 05-1437, 2011 WL 5555877, 

at *21-26 (D.D.C. Nov. 16, 2011) (hereinafter, “DL II”) (awarding injunctive relief under 

the IDEA); see also Alston, 561 F. Supp. 2d at 46 (“The remedial scheme of the IDEA 

provides for appeal of the Hearing Officer’s determination, injunctive relief and awards 

of compensatory education and attorney’s fees.”). Therefore, the plaintiffs’ Section 1983 

claim for violation of the IDEA will be dismissed. 

 b. Plaintiffs’ Section 1983 Claim for Violation of Due Process 

The plaintiffs also object to the Report’s recommendation of dismissal of their 

Section 1983 claim asserting a violation of due process under the Fifth Amendment. 
11 

“The IDEA’s comprehensive enforcement scheme does not preclude suit under § 1983 to 

enforce any constitutional rights.” DL I, 730 F. Supp. 2d at 93. Therefore, the IDEA 

itself does not bar the plaintiffs’ due process claims. Id. 

To impose liability on the District of Columbia for a constitutional violation under 

42 U.S.C. § 1983, “a plaintiff must show not only a violation of his rights under the 

Constitution, but also that the District’s custom or policy caused the violation.” Cohen v. 

District of Columbia, 744 F. Supp. 2d 236, 247 (D.D.C. 2010) (citing Feirson v. District 

of Columbia, 506 F.3d 1063, 1066 (D.C. Cir. 2007)); see also Baker v. District of 

Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (citing Monell v. Dep’t of Social Servs., 

436 U.S. 658, 694 (1978)). “There are four basic categories of municipal action Plaintiff 

may rely on to establish municipal liability: (1) express municipal policy; (2) adoption by 

municipal policymakers; (3) custom or usage; and (4) deliberate indifference.” Hunter v. 

District of Columbia, No. 08-303, 2011 WL 5529857, at *5 (D.D.C. Nov. 15, 2011) 

(citing Monell, 436 U.S. at 690-94); see also Baker, 326 F.3d at 1306-07. “A single 

incident [of violation] is insufficient to impose liability against the District.” Cohen, 744 

F. Supp. 2d at 247 (citing Monell, 436 U.S. at 694). 

The plaintiffs argue that a different standard applies. According to the plaintiffs, 

“in order to state a claim for a Fifth Amendment due process claim pursuant to Section 

1983,” a plaintiff must only “(1) identify a property or liberty interest protected by the 

due process clause; and (2) allege facts showing that he was deprived of that interest 

without appropriate procedural protections.” Pls.’ Obj. at 5 (citing Atherton v. District of 

Columbia, 567 F.3d 672, 689 (D.C. Cir. 2009)). The plaintiffs’ reliance on this standard 

from the D.C. Circuit’s opinion in Atherton is misplaced because the portion of Atherton
12 

cited by the plaintiffs involved claims against individual government officials. See 

Atherton, 567 F.3d at 689. The only defendant in this action is the District of Columbia. 

See Am. Compl. As discussed above, in a Section 1983 suit for constitutional claims 

against the District of Columbia, the Supreme Court’s ruling in Monell requires that the 

plaintiff show that the alleged constitutional harm resulted from the District’s custom or 

policy. Cohen, 744 F. Supp. 2d at 247. Indeed, the D.C. Circuit confirmed this rule in 

Atherton itself, when it affirmed the dismissal of the plaintiff’s Section 1983 claims 

against the District of Columbia in that case. Atherton, 567 F.3d at 691 (“Under § 

1983[,] a municipality is liable . . . only for constitutional torts arising from ‘action 

pursuant to official municipal policy.’”) (quoting Triplett v. District of Columbia, 108 

F.3d 1450, 1453 (D.C. Cir. 1997) and Monell, 436 U.S. at 691 (1978)); see also id. 

(affirming dismissal of claim against the District because “[t]he facts alleged by Atherton 

do not support an inference of a course the city’s ‘policymakers consciously chose to 

pursue.’”) (quoting Triplett, 108 F.3d at 1453); see also Hinson, 521 F. Supp. 2d at 32 

(dismissing Fifth Amendment claim in IDEA case where “Plaintiffs’ Complaint does not 

allege facts which, if taken as true, would demonstrate that [the child] may have been 

deprived of procedural due process.”). 

The Magistrate Judge recommended dismissing the plaintiffs’ Section 1983 claim 

asserting violation of the Fifth Amendment because she found that the allegations 

supporting that claim were “[legal] conclusions cloaked as fact, and cannot be regarded 

as a basis upon which to find that Plaintiffs have stated a Fifth Amendment or Section 

1983 claim upon which relief can be granted.” Report at 14. While the Report is not 

entirely explicit on this point, the Magistrate Judge evidently recommended dismissing 
13 

the Section 1983 claim because she determined the plaintiff had failed adequately to 

allege facts establishing that any due process violation resulted from a District “custom or 

policy.” See Report at 14 n.7. 

This Court agrees. Even assuming, arguendo, that a due process violation 

occurred, the Amended Complaint does not adequately allege that any violation resulted 

from a District custom or policy. The Amended Complaint states that “[D.C. Public 

Schools] has a custom or practice of violating IDEA’s Response and Notice requirements 

and of denying parents and students who file due process complaints of their rights to 

IDEA’s due process hearing procedural protections and their right to bring any complaint 

to the DCPS Student Hearing Office, in violation of 42 U.S.C. § 1983.” Am. Compl. ¶ 

72. More specifically, the Amended Complaint alleges that the particular Assistant 

Attorney General involved in the administrative proceeding in this case filed a late 

response, notice of insufficiency, and motion to dismiss and committed other procedural 

violations of the IDEA, and that this attorney has also done so in other cases. Id. ¶¶ 58-

60; 68-72. The Amended Complaint states that “[a]pproximately 139 . . . [published] 

Hearing Officer’s Determinations . . . involved cases in which DCPS was represented by 

the same Assistant Attorney General (AAG) who represented DCPS in Plaintiff’s’ 

administrative action,” but the pleading does not allege that this AAG filed late responses 

or notices in all of these cases, nor does it specifically allege that any other claimants 

were denied due process or otherwise harmed. See id. Instead, the Amended Complaint 

concludes that this “pattern of conduct increases the likelihood that parents will be taken 

by surprise at due process hearings and that DCPS will succeed in its attempts to deprive 

parents and children of their right to adjudication of their claim, without due process of 
14 

law.” Id. ¶ 61. Similarly, the Amended Complaint states that there is a custom or 

practice of filing deficient responses to IDEA administrative complaints. Id. ¶¶ 68-74. 

The Amended Complaint states that “DCPS’ Response to Plaintiffs’ due process 

complaint did not contain the information required by IDEA,” id. ¶ 67, although the 

pleading does not specify precisely what information was missing, what information is 

routinely not disclosed as part of a District custom or practice, or how this omission 

denied the plaintiff due process. 

The Court finds that these allegations fall short of stating a claim for relief under 

the Fifth Amendment and Section 1983. The complaint must plead facts that are more 

than “merely consistent with” a defendant’s liability; “the plaintiff [must plead] factual 

content that allows the court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). The 

plaintiffs here have not pled facts that would show that any due process violation, 

assuming that one occurred, resulted from “a course the city’s ‘policymakers consciously 

chose to pursue.’” Atherton, 567 F.3d at 691 (quoting Triplett, 108 F.3d at 1453). 

Indeed, to the contrary, the crux of the plaintiffs’ allegations focuses on the actions of a 

single attorney for the District. The Supreme Court’s decision in Monell precludes a 

municipality’s Section 1983 liability for such individualized actions. See Triplett, 108 

F.3d at 1453 (“‘If the mere exercise of discretion by an employee could give rise to a 

constitutional violation, the result would be . . . respondeat superior liability,’ which 

Monell had rejected.”) (quoting St. Louis v. Praprotnik, 485 U.S. 112 (1988) (O’Connor, 

J., plurality opinion)). The plaintiffs also attempt to rely on a “deliberate indifference” 

theory of municipal liability, see, e.g., Am. Compl. ¶ 74, but the Court rejects this theory 
15 

because the plaintiffs have not pled sufficient facts to demonstrate, from an objective 

perspective, that the District “knew or should have known of the risk of constitutional 

violations” arising from the facts alleged in the Complaint. Baker, 326 F.3d at 1307. 

Since the plaintiffs have not adequately alleged facts supporting the “custom or 

policy” element under Monell, their Section 1983 Claim based on alleged violation of the 

Due Process Clause of the Fifth Amendment will be dismissed. 

4. Objection Regarding Exhaustion of Administrative Remedies 

The plaintiffs’ final objection relates to the plaintiffs’ arguments affirming that 

they exhausted their administrative remedies for their Section 1983 and Fifth Amendment 

claims. Pls.’ Obj. at 20-21. The Magistrate Judge did not reach this issue in the Report, 

Report at 15 n.9., and this Court need not reach this issue either because the plaintiffs’ 

Section 1983 and Fifth Amendment claims will be dismissed for the reasons discussed 

above. Insofar as the plaintiffs, in their objections, also assert that they exhausted all 

available administrative remedies for Counts I and II of the Complaint, which allege 

substantive violations of the IDEA and denial of FAPE, the Court need not address those 

arguments either because the partial motion to dismiss is not directed at Counts I and II, 

except with respect to the statute of limitations issue discussed above. 

The Court now turns to the plaintiffs’ motion regarding the sufficiency of the 

defendant’s Answer to the Amended Complaint. 

II. PLAINTIFFS’ MOTION TO TREAT ALLEGATIONS AS ADMITTED 

The plaintiffs filed the Amended Complaint in this action on September 30, 2010 

and the defendant filed its Answer on May 5, 2011, pursuant to an order issued by the 

Magistrate Judge. See ECF Nos. 18, 23; Minute Order dated May 3, 2011 (Robinson, 
16 

M.J.). On May 25, 2011, the plaintiffs filed a motion to treat certain allegations in the 

Amended Complaint as admitted because the plaintiffs contend that the defendant’s 

Answer “pervasively violates the requirements of Rule 8(b) of the Federal Rules of Civil 

Procedure.” Mem. in Supp. of Pls.’ Mot. to Treat Allegations in Pls.’ First Am. Compl. 

as Admitted, or, in the alternative, to Strike Def.’s Answer to Pls.’ First Am. Compl., 

ECF No. 24 (“Pl.’s Rule 8(b) Mem.”) at 2. The plaintiffs argue that the defendant 

“averred that it could not respond [to certain allegations in 32 paragraphs of the Amended 

Complaint] because it lacked knowledge or information of the facts,” when, in actuality, 

“[a]ll the information necessary to admit or deny the allegations . . . ha[s] been known to 

Defendant or under its authority or control since August 2009, at latest.” Id. at 4. 

Accordingly, the plaintiffs ask the Court to treat all of these allegations as admitted 

pursuant to Federal Rule of Civil Procedure 8(b)(6). See Fed. R. Civ. P. 8(b)(6) (“An 

allegation . . . is admitted if a responsive pleading is required and the allegation is not 

denied.”). 

 The defendant opposes the plaintiffs’ motion and has stated that it averred that it 

did not have sufficient information or knowledge to respond to certain allegations largely 

because “Defendant’s counsel has requested, but not yet received, a complete copy of the 

underlying administrative record” in this case. Def.’s Opp’n to Pls.’ Mot. to Treat 

Allegations in Pls.’ First Am. Compl. as Admitted, ECF No. 26 (“Def.’s Rule 8(b) 

Opp’n”) at 4. In many instances, the defendant’s responses in the Answer itself indicated 

that the defendant would be able to provide a more thorough response upon review of the 

administrative record. See, e.g., Answer at 3, ¶ 3 (“The Defendant lacks knowledge and 

information sufficient to enable it to respond to the speech therapy services A.K. received 
17 

from 2003-2008 because it does not yet have a complete copy of the administrative 

record.”). 

 In responding to the allegations of a complaint, “a party ‘may not deny sufficient 

information or knowledge with impunity, but is subject to the requirements of honesty in 

pleading. An averment will be deemed admitted when the matter is obviously one as to 

which a defendant has knowledge or information.” Djourabchi v. Self, 240 F.R.D. 5, 12 

(D.D.C. 2006) (quoting David v. Crompton & Knowles Corp., 58 F.R.D. 444, 446 (E.D. 

Pa. 1973)). While it is true that the District would be expected to have knowledge, for 

example, of its actions in the administrative proceeding underlying this case, courts 

generally resort to the sanction of deeming an allegation as admitted where there is bad 

faith or evasive pleading. See 5 Charles Alan Wright, Arthur R. Miller, et al., Fed. Prac. 

& Proc., § 1262 (3d ed.) (hereinafter, “Wright & Miller”) (“[I]f the court finds . . . that 

the party intends to make the pleading evasive, the court may strike the relevant portion 

of the pleading, or treat the allegation as ineffective as a denial . . . However, if 

knowledge of a fact cannot be ascertained within the time the party is given to answer 

with a modest expenditure of effort, a denial of knowledge or information is appropriate . 

. . .”). In Djourabchi v. Self, the chief case relied upon by the plaintiffs, the defendant 

was a general contractor who denied knowledge or information sufficient to respond to 

the allegation that he was not licensed to work in the District of Columbia. 240 F.R.D. at 

12. In that situation, where the defendant denied knowledge of a fact that should have 

been patently obvious to him, the court deemed the allegation as admitted. Id. 

The situation in this case is very different. The defendant here is the District of 

Columbia and the factual allegations at issue involve a single student in a large school 
18 

system. While the Court admonishes the defendant that resort to a denial of information 

or knowledge sufficient to respond to an allegation “should not be capricious,” Wright & 

Miller § 1262, the Court finds that the Answer here does not evidence bad faith or 

evasion and declines to strike the Answer or to deem the plaintiffs’ allegations as 

admitted. The administrative record in this case has now been filed, see ECF No. 27, and 

the plaintiffs may request admission of facts as appropriate during discovery pursuant to 

Federal Rule of Civil Procedure 36. Accordingly, the plaintiffs’ motion to treat certain 

allegations in the Amended Complaint as admitted is denied. 

III. CONCLUSION 

The Court accepts and adopts the Magistrate Judge’s Report and 

Recommendations with the clarifications and modifications explained in this 

Memorandum Opinion. The defendant’s partial motion to dismiss is granted. The Court 

will dismiss all claims arising prior to the 2006-2007 school year as well as all claims 

under 42 U.S.C. § 1983 and the Fifth Amendment. Finally, the plaintiffs’ motion to treat 

certain allegations in the Amended Complaint as admitted is denied. 

The parties are directed to meet and confer and to file a joint report within twenty 

days of the issuance of this Memorandum Opinion setting forth a proposed schedule for 

the resolution of this action, including a briefing schedule for dispositive motions, if 

appropriate. 

An appropriate Order will accompany this Memorandum Opinion. 

DATED: December 14, 2011 /s/ Beryl A. Howell 

 BERYL A. HOWELL 

 United States District Judge