ORDER – PAGE 1 

 IN THE UNITED STATES DISTRICT COURT 

 NORTHERN DISTRICT OF TEXAS 

 DALLAS DIVISION 

ASHLEY GRIMMETT, et al., § 

 § 

 Plaintiffs, § 

 § 

v. § Civil Action No. 3:22-CV-876-N 

 § 

KEISHA COLEMAN, et al., § 

 §

 Defendants. § 

 MEMORANDUM OPINION AND ORDER

 This Order addresses Defendant Desoto Independent School District’s (“DISD”) 

motion to dismiss Plaintiffs’ amended complaint [8].1

 Because the Plaintiffs’ claims are 

not subject to administrative exhaustion, the Court retains jurisdiction of the case. 

However, because Plaintiffs have not pled their claims against DISD with enough 

specificity, the Court dismisses their claims but allows the Plaintiffs leave to amend. 

I. ORIGINS OF THE MOTION

 This case arises out of a dispute regarding the alleged abuse of a four-year-old child 

while at school. Plaintiffs Ashley and Jeremy Grimmett enrolled their son, J.G., an 

incapacitated minor, in Amber Terrace Elementary School within DISD. Am. Compl. ¶ 6. 

J.G. has been diagnosed with Trisomy 2 Chromosome Disorder and Autism. Id. ¶ 10. As 

a result, he suffers from severely impaired verbal and motor skills. Id. ¶ 10. In 2019, DISD 

classified J.G. as a disabled student requiring certain accommodations. Id. ¶ 11. 

1

 The motion and this Order address only Plaintiffs’ claims against DISD. 

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ORDER – PAGE 2 

 In February 2020, the Grimmetts discovered that J.G. had been abused by a 

teacher’s aide employed by DISD. Id. ¶¶ 12–13. They contacted both campus and district 

officials to investigate what happened to their child. Id. ¶¶ 14, 16. The Grimmetts filed 

suit against DISD and several co-defendants asserting claims under the Americans with 

Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act, 42 U.S.C. § 1983, and 

Title VI of the Civil Rights Act of 1964. Id. ¶ 2. The Grimmetts allege that DISD violated 

J.G.’s rights by maintaining customs and policies resulting in failure to train and supervise, 

failure to monitor video surveillance, and failure to monitor the use of restraints in nonemergency circumstances. Id. ¶¶ 17–22. DISD now moves to dismiss based on the 

Grimmetts’ failure to exhaust administrative remedies and failure to state a claim. 

II. LEGAL STANDARDS UNDER FEDERAL RULE OF CIVIL PROCEDURE 12 

A. Rule 12(b)(1) Legal Standard 

 A Rule 12(b)(1) movant may challenge subject matter jurisdiction through either a 

facial attack, which challenges the sufficiency of the pleadings, or a factual attack, which 

provides evidentiary materials in addition to the motion. Rodriguez v. Tex. Comm'n on the 

Arts, 992 F. Supp. 876, 878 (N.D. Tex. 1998). In determining whether subject matter 

jurisdiction exists, courts may consider “(1) the complaint alone; (2) the complaint 

supplemented by the undisputed facts evidenced in the record; or (3) the complaint 

supplemented by undisputed facts plus the court’s resolution of disputed 

facts.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). When “‘standing is 

challenged on the basis of the pleadings,’ [courts] must ‘accept as true all material 

allegations of the complaint and . . . construe the complaint in favor of the complaining 

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ORDER – PAGE 3 

party.’” Ass’n of Am Physicians & Surgeons, Inc. v. Tex. Med. Bd., 627 F.3d 547, 550 (5th 

Cir. 2010) (quoting Pennell v. City of San Jose, 485 U.S. 1, 7 (1988)) (first alteration and 

omission in original). Plaintiffs bear the burden of proof in the Rule 12(b)(1) context, but 

a court should grant the motion “only if it appears certain that the plaintiff cannot prove a 

set of facts in support of his claim that would entitle plaintiff to relief.” Ramming v. United 

States, 281 F.3d 158, 161 (5th Cir. 2001) (internal citation omitted).2

 

B. Rule 12(b)(6) Legal Standard 

 When deciding a Rule 12(b)(6) motion to dismiss, a court must determine whether 

the plaintiff has asserted a legally sufficient claim for relief. Blackburn v. City of Marshall, 

42 F.3d 925, 931 (5th Cir. 1995). “When reviewing a motion to dismiss, a district court 

must consider the complaint in its entirety, as well as . . . documents incorporated into the 

complaint by reference, and matters of which a court may take judicial notice.” Funk v. 

Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011) (internal quotation marks omitted). A 

viable complaint must include “enough facts to state a claim to relief that is plausible on 

its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). To meet this “facial 

plausibility” standard, a 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, 556 U.S. 662, 678 (2009). A court generally accepts well-pleaded facts as true 

2 Although the Supreme Court has abrogated this standard in the Rule 12(b)(6) 

context, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 570 (2007), courts still use this verbiage in the Rule 12(b)(1) context. See, 

e.g., McRaney v. N. Am. Mission Bd. of the S. Baptist Convention, Inc., 966 F.3d 346, 348 

(5th Cir. 2020). 

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and construes the complaint in the light most favorable to the plaintiff. Gines v. D.R. 

Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012). But a plaintiff must provide “more than 

labels and conclusions, and a formulaic recitation of the elements of a cause of action will 

not do.” Twombly, 550 U.S. at 555 (internal citations omitted). “Factual allegations must 

be enough to raise a right to relief above the speculative level . . . on the assumption that 

all the allegations in the complaint are true (even if doubtful in fact).” Id. (internal citations 

omitted). 

III. THE COURT GRANTS THE MOTION TO DISMISS

A. The Grimmetts’ Suit Is Not Subject to IDEA Exhaustion 

Before filing a lawsuit under separate statutory causes of action seeking relief that 

is also available under IDEA, plaintiffs must exhaust the formal administrative procedures 

mandated by IDEA. Fry v. Napoleon Cmty. Sch., 580 U.S. 154, 158 (2017) (citing 20 

U.S.C. § 1415(l)). But when the core guarantee of IDEA, a free and appropriate public 

education (“FAPE”), is not the gravamen of the plaintiff’s suit, exhaustion is not necessary. 

Fry, 580 U.S. at 158. The Fifth Circuit has explained that this analysis must be conducted 

by examining the complaint as a whole rather than each claim individually. W.S. by & 

through Elizabeth S.G. v. Dallas Indep. Sch. Dist., 2022 WL 6316442, at *3 (5th Cir. 2022) 

(citing T.B. by & through Bell v. Nw. Indep. Sch. Dist., 980 F.3d 1047, 1053 (5th Cir. 

2020)). The Supreme Court articulated a two-part inquiry to assess whether the complaint 

is subject to exhaustion: 

First, could the plaintiff have brought essentially the same claim if the alleged 

conduct had occurred at a public facility that was not a school—say, a public 

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ORDER – PAGE 5 

theatre or library? And second, could an adult at the school—say, an 

employee or visitor—have pressed essentially the same grievance? 

Fry, 580 U.S. at 171. When these questions are answered affirmatively and there are no 

express allegations related to the denial of a FAPE, the complaint probably does not 

concern a FAPE. Id. 

 When adults physically abuse a disabled student at school, exhaustion is not 

required because the substance of the claim does not involve the adequacy of the 

educational program. Wilson v. City of Southlake, 2021 WL 4936251, at *5 (N.D. Tex. 

2021) (citing Fry, 580 U.S. at 172 n.9); see also Heston v. Austin Indep. Sch. Dist., 816 F. 

App’x 977, 982 (5th Cir. 2020) (unpub.) (Claims “that are solely concerned with physical 

injury and abuse are not subject to the exhaustion requirements of the IDEA.”). The 

physical abuse exception applies regardless of whether the teacher struck the disabled 

student out of animus or frustration. See Fry, 580 U.S. at 172 n.9. 

Because the Grimmetts have not alleged exhaustion of administrative remedies 

under IDEA, the Court proceeds directly into the gravamen analysis. The complaint 

overwhelmingly focuses on the alleged abuse of J.G. and the policies that allowed the 

physical assault to take place. The first paragraph of the complaint characterizes the case 

as a “school abuse case” involving “verbal and physical abuse and physical restraint.” Am. 

Compl. ¶ 1. The Grimmetts claim that the teacher aide’s “engag[ed] him in a highly 

threatening manner” and “struck him across the face and neck.” Id. ¶ 12. When J.G. 

brought this behavior to the attention of his parents, he complained that “he had been hit.” 

Id. ¶ 13. Throughout the facts section of the complaint, the alleged policies are related 

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ORDER – PAGE 6 

back to the physical and verbal abuse. See, e.g., id. ¶ 20. In fact, the complaint does not 

mention the failures to reasonably accommodate J.G.’s disability or the effect on his 

educational achievement until the final two paragraphs of the facts section. Id. ¶ 25. The 

two-step assessment from Fry demonstrates that the FAPE is not at issue; J.G. could bring 

the same claims if he were physically assaulted in any other public facility, and an adult 

would be entitled to bring the same claim if physically assaulted within a school. See Fry,

580 U.S. at 171. Although the ADA and Section 504 claims relate to reasonable 

accommodations within the classroom, they are outweighed by the allegations of physical 

harm.3

 This suit falls squarely within Fry’s physical abuse exception, and accordingly, the 

Grimmetts’ claims may proceed without IDEA exhaustion. 

B. The Grimmetts Have Not Adequately Pled 

 Their Claims Under Rule 12(b)(6) 

 1. The Grimmetts’ Have Not Adequately Pled a Custom or Policy. – Section 1983 

does not permit vicarious liability for municipalities. A “municipality cannot be held liable 

solely because it employs a tortfeasor — or, in other words, a municipality cannot be held 

liable under § 1983 on a respondeat superior theory.” Monell v. Dep’t. of Soc. Servs. of 

New York, 436 U.S. 658, 691 (1978) (emphasis in original). Municipality or corporate 

liability under section 1983 requires proof of three elements: “a policymaker; an official 

policy; and a violation of constitutional rights whose ‘moving force’ is the policy or 

custom.” Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell, 

3

 Although the Court may have come to a different conclusion regarding the ADA and 

Section 504 claims in isolation, the Court must analyze the gravamen of the complaint as 

a whole. W.S., 2022 WL 6316442, at *3. 

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ORDER – PAGE 7 

436 U.S. at 694). If plaintiffs do not sufficiently plead all three elements, they run the risk 

of collapsing their claim into one of respondeat superior liability. Id. at 580. 

 There are two ways of defining an “official custom or policy” for the purposes of 

Monell liability: 

1. A policy statement, ordinance, regulation, or decision that is officially 

adopted and promulgated by the municipality's lawmaking officers or by an 

official to whom the lawmakers have delegated policy-making authority; or 

2. A persistent, widespread practice of city officials or employees, which, 

although not authorized by officially adopted and promulgated policy, is so 

common and well settled as to constitute a custom that fairly represents 

municipal policy. Actual or constructive knowledge of such custom must be 

attributable to the governing body of the municipality or to an official to 

whom that body had delegated policy-making authority. 

Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992) (quoting Bennett v. City of Slidell, 735 

F.2d 861, 862 (5th Cir. 1984) (en banc)). 

 When proceeding under the custom prong, the precise identity of a policymaker is 

a question of law, but a plaintiff must still allege that “‘[a]ctual or constructive knowledge 

of such custom’ is attributed to a . . . policymaker.” Peña v. City of Rio Grande City, 879 

F.3d 613, 623 (5th Cir. 2018) (quoting Hicks-Fields v. Harris Cnty., 860 F.3d 803, 808 

(5th Cir. 2017)); see also Blanchard-Daigle v. Greers, 802 F. App’x 113, 117 (5th Cir. 

2020) (unpub.) (“Indeed, we said that naming the entity that acted under the policy was 

fundamental.”) (citing Groden v. City of Dallas, 826 F.3d 280, 284 n.4 (5th Cir. 2016)).

Here, the Grimmetts engage in two forms of impermissible group pleading. First, 

the Grimmetts repeatedly identify the alleged violations in an ambiguous manner, labeling 

them as “policies, procedures, and/or customs.” See, e.g., Am. Compl. ¶ 36. But the 

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standard for determining municipal liability differs between promulgated policy and 

persistent practices constituting a custom. Failing to specify a theory of liability creates 

confusion that is amplified by the second pleading deficiency: the Grimmetts 

inappropriately group DISD’s Board of Trustees and other policy makers together. As a 

result, it is unclear which employees or entities promulgated the policies at issue, who did 

or should have had knowledge of staff behavior, and whether any policymaker might have 

ratified the alleged customs. This level of generality cannot satisfy the plausibility 

requirement of Rule 12(b)(6). Accordingly, all section 1983 claims against DISD must be 

dismissed. 

 2. The Grimmetts’ Allegations Related to Racial Discrimination Under Title VI 

Are Insufficient. – Section 601 of Title VI of the Civil Rights Act of 1964 “prohibits only 

intentional discrimination.” Bhombal v. Irving Indep. Sch. Dist., 809 F. App’x. 233, 236 

(5th Cir. 2020) (unpub.) (quoting Alexander v. Sandoval, 532 U.S. 275, 280 (2001)). The 

Grimmetts’ complaint incorporates the allegations related to disability discrimination into 

the Title VI claim. Am. Compl. ¶ 24. In relation to the disability claims, the Grimmetts 

identified policies and customs related to failure to train and supervise, failure to monitor 

video surveillance, and failure to monitor the use of restraints in non-emergency 

circumstances. But there is no further explanation of how these policies lead to racial 

discrimination. None of these policies facially target an individual race, nor is there any 

explanation of how these policies disadvantage African American students. Accordingly, 

the Court dismisses the Title VI claims. 

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ORDER – PAGE 9 

3. The Grimmetts’ Allegations Related to Disability Discrimination in Violation 

of the ADA Are Insufficient. – A prima facie case of discrimination under the ADA 

requires that a plaintiff demonstrate “(1) that he is a qualified individual within the meaning 

of the ADA; (2) that he is being excluded from participation in, or being denied benefits 

of, services, programs, or activities for which the public entity is responsible, or is 

otherwise being discriminated against by the public entity; and (3) that such exclusion, 

denial of benefits, or discrimination is by reason of his disability.” Estate of A.R. v. 

Muzyka, 543 F. App’x. 363, 365 (5th Cir. 2013) (unpub.) (quoting Melton v. Dallas Area 

Rapid Transit, 391 F.3d 669, 671–72 (5th Cir. 2004)). The Fifth Circuit has equated 

liability standards under Section 504 and the ADA. D.A. ex rel. Latasha A. v. Houston 

Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir. 2010) (citing Hainze v. Richards, 207 F.3d 

795, 799 (5th Cir. 2000)). 

 The parties do not dispute that J.G. is a qualified individual under the ADA. The 

Grimmetts argue that the policies, practices, and customs issued by DISD lead to disability 

discrimination. But the Grimmetts’ ADA and Section 504 claims fail for the same reason 

as the Section 1983 claims; the group pleading within the complaint makes it unclear who 

promulgated the policies, who did or should have had knowledge of staff behavior, or 

whether any policymaker might have ratified the alleged customs. Therefore, the Court 

cannot determine whether the public entity has engaged in discrimination as opposed to 

isolated individuals, whose actions alone do not satisfy the requirement for school district 

liability under the ADA. Accordingly, the Court dismisses the Grimmetts’ ADA and 

Section 504 claims. 

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CONCLUSION

 Because the gravamen of the complaint is physical abuse, IDEA exhaustion does 

not apply to the Grimmetts’ claims. However, the Grimmetts have not sufficiently stated 

a claim under against DISD upon which relief can be granted, and accordingly the Court 

grants the motion to dismiss. The Court also grants the Grimmetts’ leave to amend their 

pleadings regarding DISD within thirty (30) days of this Order. If the Grimmetts do not 

amend their claims against DISD within that time, the Court will dismiss their claims 

against DISD with prejudice without further notice. This Order does not affect the 

Grimmetts’ claims against individual defendants. 

 

 Signed November 28, 2022. 

 ___________________________ 

 David C. Godbey 

 Chief United States District Judge 

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