ORDER-1 

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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

LESLIE JACKSON, 

 Plaintiff 

 v. 

DISTRICT OF COLUMBIA, et al., 

 Defendants.

No. 1:09-cv-00839 BJR 

No. 1:10-cv-00604 BJR 

(designated related cases) 

 

I. INTRODUCTION 

This matter comes before the court on two motions to dismiss filed by the defendants in 

Jackson v. District of Columbia, et al., 1:09-cv-00839 (BJR) (“Jackson I”) and Jackson v. Rhee, 

et al., 1:10-cv-00604 (BJR) (“Jackson II”).1

 Plaintiff Leslie Jackson brings this action on behalf 

of her minor son pursuant to the Individuals with Disabilities Education Improvement Act of 

2004, 20 U.S.C. §§ 1400 et seq. (“IDEIA”) 2, 42 U.S.C. § 1983 (“Section 1983”), Section 504 of 

 

1

 The cases are designated related pursuant to D.C. Local Rule 40.5(b)(2). The parties in each case are 

identical. 

2

 Until the 2004 revisions to the Act, it was known as the Individuals with Disabilities Education 
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the Rehabilitation Act, 29 U.S.C. § 794 (“Section 504”), and the Americans with Disabilities 

Act, 42 U.S.C. § 12132 (the “ADA”). Defendants, the District of Columbia and Michelle Rhee, 

in her official capacity as Chancellor of the District of Columbia Public Schools (“DCPS”), seek 

to partially or entirely dismiss the operative complaints in each case pursuant to Federal Rule of 

Civil Procedure 12(b)(6) and the doctrine of res judicata.

3

 Upon consideration of the motions 

and replies, the oppositions thereto, as well as the relevant law, the court finds as follows. 

II. BACKGROUND 

This matter has a long and laboured history. To date, five administrative complaints have 

been filed with the Student Hearing Office4

, three lawsuits have been filed in federal court, and 

an untold number of meetings and hearings have been held. At the center of this dispute is a 

child, AJP, who has moderate to severe physical disabilities and developmental delays. As a 

result, he qualifies for special education services through DCPS. The parties, despite 

admonishments from Hearing Officers and at least two district court judges, have been unable to 

agree on an individual education plan (“IEP”) and placement for AJP. This court is concerned 

that the parties have become so entrenched in their battle that they long ago forgot what is 

important here—AJP. With this in mind, the court will now address the motions before it. 

 Act, or IDEA. This earlier abbreviation is reflected in passages quoted throughout this opinion. 

3

 Defendants move to dismiss the Amended Complaint in Jackson I (dkt. no. 9) and seek partial dismissal of 

the Complaint in Jackson II (dkt. no. 3). 

4

 The Student Hearing Office is part of the District of Columbia Superintendent of Education Office of 

Review and Compliance. A parent dissatisfied with an individual education plan developed for his or her child has a 

right to a due process hearing conducted by the state or local education agency before an impartial hearing officer. 

20 U.S.C. § 1415(f)(1), (3). The decision of the hearing officer (“HOD”) is final, and any party aggrieved by a HOD 

may challenge it in a civil action. Id. § 1415(i)(1), (2). 

 
ORDER-3 

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A. Statutory Background

 1. The IDEIA 

The IDEIA aims “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.” 20 U.S.C. § 1400(d)(1)(A). The D.C. court of appeals has explained the 

crucial role that the IEP plays in providing the FAPE the statute guarantees: 

If a child's initial evaluation suggests he is entitled to a FAPE, 

IDEA then requires the school district to create and implement an 

IEP, which is the “primary vehicle” for implementing the Act. 

Honig v. Doe, 484 U.S. 305, 311, 108 S. Ct. 592, 98 L. Ed. 2d 686 

(1988). The IEP is “[p]repared at meetings between a 

representative of the local school district, the child's teacher, the 

parents or guardians, and, whenever appropriate, the disabled 

child.” Id. It “sets out the child’s present educational performance, 

establishes annual and short-term objectives for improvements in 

that performance, and describes the specially designed instruction 

and services that will enable the child to meet those objectives.” 

Id.; see also 34 C.F.R. § 300.343(b)(2) (requiring a “meeting to 

develop an IEP” within 30 days following the completion of a 

disabled student's initial evaluation). 

Lesense v. Dist. of Columbia, 447 F.3d 828, 830 (D.C. Cir. 2006); see also Honig v. Doe, 484 

U.S. 305, 311 (1988) (Congress envisioned the IEP “as the centerpiece of the statute’s education 

delivery system for disabled children”). 

 The understandable hope on which the statute is based is that the implementation of an 

IEP will permit the child to improve. Thus, the IDEIA commands that a local educational agency 

ensure that a re-evaluation of each child is done when either the agency determines that “the 

educational or related services needs, including improved academic achievement and functional 

performance, of the child warrant a reevaluation,” or if the child’s parents or teacher requests it. 

20 U.S.C. § 1414(a)(2)(A). Such an evaluation must occur at least once every three years, unless 
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the local educational agency and the parent agree it is unnecessary. 20 U.S.C. § 

1414(a)(2)(B)(ii); 34 C.F.R. § 300.303. Furthermore, beginning with the first IEP in effect once 

the child is 16, and updated annually thereafter, the IEP must include the following: 

(aa) appropriate measurable postsecondary goals based upon age 

appropriate transition assessments related to training, education, 

employment, and, where appropriate, independent living skills; 

(bb) the transition services (including courses of study) needed 

to assist the child in reaching those goals; and 

(cc) beginning not later than 1 year before the child reaches the 

age of majority under State law, a statement that the child has 

been informed of the child's rights under this title, if any, that will 

transfer to the child on reaching the age of majority under 

section 615(m). 

20 U.S.C. § 1414(d)(1)(A)(i)(VIII); see also 34 C.F.R. § 300.320(b). 

 2. Section 504 of the Rehabilitation Act 

 Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified handicapped 

individual in the United States ... shall, solely by reason of his handicap, be excluded from the 

participation in, be denied the benefits of, or be subjected to discrimination under any program or 

activity receiving Federal financial assistance....” 29 U.S.C. § 794; see also Robinson v. District 

of Columbia, 535 F.Supp.2d 38, 41 (D.D.C.2008) (“Section 504 prohibits programs and entities 

that receive federal funding from denying benefits to, or otherwise discriminating against, a 

person ‘solely by reason’ of that individual's handicap.”). In the context of cases involving 

children who receive benefits pursuant to the IDEIA, courts have consistently recognized that in 

order to establish a violation of § 504, “‘something more than a mere failure to provide the free 

appropriate education required by [the IDEA] must be shown.’” Lunceford v. D.C. Bd. of Educ., 

745 F.2d 1577, 1580 (D.C.Cir.1984) (quoting Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th 

Cir.1982)); see also Robinson, 535 F.Supp.2d at 42 (citing cases). “Specifically, plaintiffs must 
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show either bad faith or gross misjudgment on the part of the governmental defendants.” 

Robinson, 535 F.Supp.2d at 42. 

 3. The Americans with Disabilities Act 

 The ADA provides that “no qualified individual with a disability shall, by reason of such 

disability, be excluded from participation in or be denied the benefits of the services, programs, 

or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 

12132. To show that the exclusion was “by reason of” his or her disability, an individual must 

establish that the disability “actually play[ed] a role in the ... decision making process and [had] a 

determinative influence on the outcome.” Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 

2008) (quoting Soledad v. U.S. Dep't of Treasury, 304 F.3d 500, 503–04 (5th Cir. 2002); see also 

Cummings v. Woodson Senior High School, 563 F.Supp.2d 256, 260 (D.D.C. 2008) (observing 

that a plaintiff must show she was discriminated against on the basis of her disability); Hinson v. 

Merritt Educational Center, 521 F.Supp.2d 22, 31 (D.D.C. 2007) (same). 

B. Factual Background and Procedural History 

 When AJP was two years old he was diagnosed with Pervasive Developmental Disorder. 

See Jackson II Compl., Dkt. No. 1 at ¶ 3. As such, he was entitled to receive special education 

services from DCPS pursuant to 20 U.S.C. § 1401(3)(B). He was enrolled in the District of 

Columbia Infant and Toddler Child Find Program and received language, occupational, and 

technical services. Id. In August 2004, when AJP was three years old, DCPS developed an IEP 

for him. It included speech therapy, occupational therapy, assistive technology, sign language 

instruction, behavioral management services, and a full time, one-to-one dedicated aide. See 
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Jackson I Complaint, Dkt. No. 1 at ¶ 27. The IEP was signed by Ms. Jackson, and AJP was 

placed in Stoddert Elementary School. See Jackson II Complaint, Dkt. No. 1 at ¶ 4.5 

 In March 2005, DCPS notified Ms. Jackson that it would be changing AJP’s placement 

because Stoddert Elementary School no longer offered the services that AJP needed per his IEP. 

See Plaintiff’s Opposition to Dismiss in Jackson I (“Jackson I Opp.”), Dkt. No. 11 at 2. 

Thereafter, on August 10, 2005, DCPS issued a new IEP, placing AJP in the citywide autism 

program at Barnard Elementary School. Jackson I Comp., Dkt. No. 1 at ¶ 30. The IEP also 

changed AJP’s classification from “developmentally delayed” to “autistic.” Id. 

 Ms. Jackson did not agree with the new classification and placement. Id. at 32. On 

September 13, 2005, she filed an administrative due process complaint with the Student Hearing 

Office asserting AJP’s “stay put” rights.6 Ms. Jackson alleges that DCPS denied her request. 

Jackson II Comp. at ¶ 8. One week later, on September 22, she filed suit in the United States 

District Court for the District of Columbia, Laster v. District of Columbia, 1:05-cv-01875 

(Urbina), and moved for a temporary restraining order. Judge Urbina granted her request for a 

“stay put” injunction on September 28, 2005. Jackson II Compl., Dkt. No. 1 at ¶ 10. Thereafter, 

Judge Urbina issued an order requiring that “DCPS fund all related services and supplemental 

aids on [AJP’s 2004 IEP]...until [the] administrative due process complaint [before the Student 

 

5

 Ms. Jackson also alleges that at around this time, in December 2004, she found a bruise on AJP’s head 

when she picked him up from school. Jackson I Opp. at 2. She alleges that AJP suffered a seizure later that evening 

and was taken to the hospital where he received a CT Scan. Id. She claims that she was told the CT Scan was normal 

and that AJP had suffered a seizure. Id. AJP had another seizure in January 2005 and in April 2006, he was 

hospitalized for a “huge” seizure. Jackson II Comp. Dkt. 1 at ¶ 4. She claims that during this stay, the hospital staff 

informed her that the CT Scan from 2004 showed some swelling of AJP’s brain. Id. at ¶ 5. Ms. Jackson raised these 

allegations for the first time in Jackson I in her Opposition to defendants’ Motion to Dismiss. Defendants claim that 

this is the first time that DCPS was made aware of the alleged December 2004 incident. Jackson I Reply, Dkt. No. 

12 at 4. The allegations are re-iterated in the Jackson II Complaint. See Jackson II Comp. Dkt. No. 1. 

6

 The IDEIA allows for a student to remain in his or her “then current educational placement,” referred to as 

the student’s “stay put” placement, pending resolution of the administrative proceedings. 
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Hearing Office] is decided and any appeal therefrom concluded....” See Laster, Dkt. No. 4, 

September 30, 2005 Order (emphasis added). 

 The hearing on the administrative complaint had been scheduled for November 10, 2005. 

However, after Judge Urbina’s ruling, counsel for Ms. Jackson removed the hearing from the 

Student Hearing Office’s calendar. See Jackson I Defendants’ Opposition to Request for 

Temporary Restraining Order (“Def. Opp. to TRO”), Dkt. No. 4 at 2. From November 2005 to 

September 2008, no further administrative proceedings were requested or held for AJP. Id. 

 In November 2005, Ms. Jackson withdrew AJP from DCPS and began homeschooling 

him. Id. From November 2005 through July 2009, DCPS did not have any contact with AJP. Id. 

DCPS claims that Ms. Jackson denied it access to AJP, and as a result, it was unable to evaluate 

and update his IEP. Id. However, per Judge Urbina’s September 30, 2005 Order, DCPS was still 

required to pay for all of AJP’s services and supplemental aides. See Laster, Dkt. No. 4-3. 

 DCPS convened a Multidisciplinary Team (“MDT”)/IEP meeting on October 17, 2006 in 

order to review and revise AJP’s IEP. The parties’ descriptions of the meeting differ. DCPS 

claims that Ms. Jackson did not cooperate, instead arguing that per Judge Urbina’s order, AJP’s 

2004 IEP remained in effect. Ms. Jackson counters that she wanted to participate in the meeting 

but was forceably removed by a security guard when she tried to tape record the meeting. 

Jackson II Compl. Dkt. No. 1 at ¶ 134.7

 

 On September 23, 2008, DCPS moved for relief from Judge Urbina’s Order. Laster, Dkt. 

No. 60. DCPS argued that the IEP was no longer appropriate for AJP because it was over four 

 

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 Also around this time, DCPS petitioned Judge Urbina to modify the September 30, 2005 Order to allow 

payment by the school district to AJP’s service providers to be made every 15 days rather than weekly. Laster, Dkt. 

No. 36. The court granted DCPS’ request. Id. at Dkt. No. 46. Ms. Jackson claims that after the court made this 

modification, DCPS began disputing all of ARJ’s aide’s and service provider’s invoices. See Jackson I Plaintiff’s 

Opposition to Motion to Dismiss (“Jackson I Opp. to Mot. Dis.”), Dkt. No. 11 at 5-6. 
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years old. Id. In its stead, DCPS sought an order requiring Ms. Jackson to make AJP available 

for classroom observation and re-evaluation, and to attend and participate in an IEP meeting. Id. 

Judge Urbina granted the motion on January 22, 2009, thereby terminating the September 30, 

2005 stay put order. Id. at Dkt. Nos. 73 and 74. In his Memorandum Opinion, Judge Urbina 

instructed the parties to “work together to update AJP’s IEP in accordance with the IDEA.” Dkt. 

No. 74 at 7.8

 Thereafter, DCPS sent Ms. Jackson two letters requesting to meet with her to develop the 

new IEP. Ms. Jackson did not respond to the letters, but instead, on January 26, she filed an 

administrative due process complaint with the Student Hearing Office, requesting a stay put 

order. See Jackson II Compl. at ¶ 16. She then filed another due process complaint on February 

24, 2009. Both actions were dismissed without prejudice; Ms. Jackson also withdrew the 

complaints. The record is unclear which event—dismissal or withdrawal—occurred first. 

 Then, on March 23, 2009, Ms. Jackson filed another due process complaint. In it, she 

sought independent evaluations of AJP, a stay put order for AJP and his providers, transportation 

costs, and compensatory education for “failing to fund certain services that were ordered by 

Judge Urbina.” Jackson I, Dkt. No. 9-3. The case was assigned to Hearing Officer Terry Banks. 

Jackson I Compl. at ¶ 17. The parties attempted to meet for the required pre-hearing resolution 

conference, but Ms. Jackson alleges that a dispute arose over whether she was required to reenroll AJP in the District of Columbia school system before the necessary observation and 

 

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 During this same time-period, the parties were litigating the payment dispute before Special Master Elise 

Baach. See Jackson I Def. Opp. to TRO at 3 fn. 1. Also during this time, Ms. Jackson alleges that Natalia Houston, 

special assistant to the Director of Special Education for DCPS reported Ms. Jackson to The District of Columbia’s 

Child and Family Services for suspected educational neglect. Jackson I Opp. Mot. to Dis. at 7-8. She claims that Ms. 

Houston reported her to Child Family Services in retaliation for Ms. Jackson’s refusal to dismiss the suit before 

Judge Urbina. Id. 
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evaluation could take place. Id. at ¶¶ 21-24. Ms. Jackson claims that the parties spent the next 

several months arguing about whether she had filed the correct paperwork. Id. 

 In the meantime, Hearing Officer Banks issued an interim order in which he denied Ms. 

Jackson’s request for a Stay Put Order. Id. at ¶ 31. Ms. Jackson filed a motion for reconsideration 

and a motion for recusal based on bias. Id.

9

 Officer Banks denied both motions. 

 Next Ms. Jackson filed Jackson I, the first of the two lawsuits presently before this court, 

on May 6, 2009. See Jackson I, Dkt. No. 1. She also sought a temporary restraining order to 

force compliance with Judge Urbina’s September 30, 2005 Order. Id. at Dkt. No. 2. 

 Thereafter, on May 18, 2009, Hearing Officer Banks issued his final opinion. See 

Jackson II, Hearing Officer Decision dated May 18, 2009 (the “May 18, 2009 HOD”), attached 

to Dkt. No. 1. He dismissed Ms. Jackson’s due process complaint, holding that Judge Urbina’s 

order relieved DCPS of any obligation to fund services or aides related to the out-dated 2004 

IEP. Id. He also held that AJP was not entitled to a stay put order because the only “placement” 

afforded to him had since been rescinded per Judge Urbina’s order. Id. This left only the 

allegations of DCPS’ failure to reevaluate AJP and update his IEP. However, the Hearing Officer 

held that all of the allegations in the three due process complaints occurred prior to January 22, 

2009 (the date of Judge Urbina’s order in which he rescinded the September 30, 2005 Order), 

and therefore were within Judge Urbina’s jurisdiction. As such, the Hearing Officer lacked the 

authority to adjudicate the claims. Id. Nevertheless, Hearing Officer Banks ordered DCPS to 

convene a meeting to develop a Student Evaluation Plan and IEP for AJP. Id. at p. 5. 

 On June 15, 2009, United States District Judge Kennedy denied Ms. Jackson’s request for 

a temporary restraining order. Jackson I, Dkt. No. 7. Ms. Jackson filed an Amended Complaint 

 

9

 Ms. Jackson alleges a series of emails and other improper contact between legal counsel for DCPS and 

Hearing Officer Banks. See e.g. Jackson II Compl. at ¶¶ 25-27. 
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on June 16, 2009, and DCPS moved to dismiss it. Id., Dkt. Nos. 8 and 9. This motion is currently 

pending before the court and a subject of this order. 

 From May to July 2009, AJP received the following evaluations: (1) an Augmentative 

and Alternative Communication Evaluation; (2) an Occupational Therapy Evaluation; (3) a 

Psychoeducational Evaluation; and (4) a Speech and Language Evaluation. See Jackson II

Compl. Ex. 1 at 8-11. The Children’s National Medical Center (“CNMC”) conducted the 

Augmentative and Alternative Communication Evaluation. Id. at 8. Based on its evaluation, 

CNMC recommended that AJP receive a “full [Augmentative and Alternative Communication 

“AAC”] system that includes symbols, gestures, and [a] durable speech generating 

device...[and] intensive speech therapy services to address his overall learning and assist in the 

manifestation of an AAC system into his daily activities, and expand his receptive and 

expressive language development.” Id. 

 The occupational therapist, Kathy Chumas of Dynamic Development, recommended that 

AJP receive: (1) preferential seating in all academic settings; (2) a sensory diet; (3) an assistive 

technology device; (4) individualized speech and occupational therapy twice weekly; and (5) 

individualized occupational therapy once a week within the school setting. Id. at 9. 

 Interdynamics, Inc. completed AJP’s Psychoeducational Evaluation. It concluded that the 

evaluation “strongly [indicates] a diagnosis of Autism that is co-morbid with ADHD.” Id. at 10. 

It recommended that AJP needs a comprehensive, full time education program, speech and 

language therapy, occupational therapy, medication provisions, educational assistance, behavior 

management (ABA, toileting), one-to-one assistance, and transportation to and from his school 

day. Id. 
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 Interdynamics also completed AJP’s Speech and Language Evaluation. Id. at 11. It found 

that AJP is non-verbal and primarily communicates through gestures. He has significant attention 

and sensory difficulties. Id. Interdynamics concluded that AJP’s communication deficits were 

severe and recommended that he receive speech and language therapy three hours per week. Id. 

 In early August 2009, Ms. Jackson consented to bring AJP to Brightwood Elementary 

School so that DCPS staff members could observe him. Jackson II Compl. at ¶¶ 42 and 52. 

Thereafter, DCPS convened an Multidisciplinary team (“MDT”) meeting on August 26, 2009 to 

update AJP’s IEP and to determine placement. Id., Ex. 1 at 12. The participants in the meeting 

included Ms. Jackson, Natalia Houston (special assistant to the Director of Special Education for 

DCPS), Deidre Williams (Program Manager, DCPS Office of Special Education), Leslie Charles 

(a speech and language pathologist for DCPS), Annie Glanville (an autism specialist with 

DCPS), LaTanya Randolph (a school psychologist), Alicia Nti (an occupation therapist), Gayle 

Hall (a Program Manager for DCPS) and Shenaz Hussain (a physical therapist). Id. None of 

AJP’s current service providers attended the meeting. Id. 

 Based on its observation of AJP, the evaluations, and Ms. Jackson’s own 

recommendations, the MDT developed an IEP that prescribed 23.5 hours per week of specialized 

instruction in an out-of-general education environment, one hour per week of occupational 

therapy, and three hours per week of speech and language therapy. Id. The MDT agreed to 

purchase the assistive technology device recommended by CNMC and prescribed a dedicated 

aide for AJP for the morning bus ride, throughout the school day, and for the afternoon bus ride 

back to his home. Id. at 12-13. 

 In addition, the MDT placed AJP in Tyler Elementary School. Id. at 13. DCPS alleges 

that it selected Tyler Elementary because: (1) AJP could be placed in an intermediate program in 
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which the students range in age from 8-10; (2) the classes have low student to teacher ratios; (3) 

the teacher is certified in special education and trained in Applied Behavior Analysis for children 

with autism; (4) the school employs the PECS methodology recommended in AJR’s 

Psychoeducational Evaluation; (5) AJP’s teacher would be assisted by two board certified 

behavior assistants; and (6) Tyler Elementary has a full time nurse, occupational therapist, and a 

speech and language therapist on its premises. Id. 

 Ms. Jackson objects to the IEP and AJP’s placement at Tyler Elementary. She argues that 

the IEP does not provide sufficient accommodations for AJP’s disabilities. Specifically, she 

claims that the IEP should have included the use of specific assistive technologies, and a plan in 

the event of AJP’s “inevitable seizures.” Id. She objects to his school placement because she 

believes that Tyler Elementary does not have an adequate occupational therapy room, does not 

have a full time nurse, and does not have adequate assistive technology services. Instead, Ms. 

Jackson requests that AJP be placed in one of two private schools, Ivymount or St. Coletta’s. Id. 

at 13-14. 

 Ms. Jackson filed a second request for a temporary restraining order in Jackson I, seeking 

a stay put order. See Jackson I, Dkt. Nos. 13. The request was denied on September 22, 2009. Id. 

at Dkt. No. 15. Thereafter, on October 29, 2009, she filed another administrative due process 

complaint with the Student Hearing Office. See Jackson II Compl., Ex. 1 at 4. In it she alleged 

that DCPS had failed to: (1) develop an appropriate IEP, and (2) provide an appropriate 

placement. The complaint alleged additional violations that predated the May 18, 2009 HOD. Id. 

At the prehearing conference, Hearing Officer Banks excluded those claims pursuant to the 

doctrine of res judicata. Id. 
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 The due process hearing was held on January 11, 2010. Jackson I Compl. at ¶ 64. Ms. 

Jackson claims that she attempted to submit letters from AJP’s physicians in support of her claim 

that Tyler Elementary is not a safe environment for him, but that Hearing Officer Banks 

excluded the letters as inadmissible hearsay. Id. at ¶¶ 65-67. She did present testimony from 

Melanie Davis (AJP’s current care provider), Shirley Flemister (a paraprofessional at Riggs 

Special Center), and his grandfather. See Jackson II Compl., Ex. 1 at 6. DCPS presented 

testimony from Ms. Charles, Ms. Glanville, Ms. Houston, and Ms. Williams. Id. 

 On January 23, 2010, Hearing Officer Banks issued a final decision in which he affirmed 

DCPS’ IEP and placement. Id. at ¶ 69. Ms. Jackson sought leave from this court to file a Second 

Amended Complaint, which Judge Kennedy denied on June 28, 2010. See Johnson I, Dkt. Nos. 

17 and 20. However, while her motion was still pending, Ms. Jackson filed Jackson II on April 

19, 2010. The case was designated related to Jackson I and assigned to this court. Ms. Jackson 

characterizes Jackson II as an appeal of Hearing Officer Bank’s January 23, 2010 decision (the 

“January 23, 2010 HOD”). 

 DCPS moved to partially dismiss Jackson II. See Jackson II, Dkt. No. 3. The motion is 

currently pending and is a subject of this order. In addition, Ms. Jackson moved for summary 

judgment in both cases. See Jackson I, Dkt. No. 21; Jackson II, Dkt. No. 7. On March 23, 2010, 

per DCPS’s request, the motions were dismissed without prejudice pending the resolution of 

DCPS’ motions to dismiss. On October 18, 2011, both cases were transferred to this district court 

judge. Jackson I, Dkt. No. 25; Jackson II, Dkt. No. 11. 

 
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III. STANDARD OF REVIEW

 A. Fed. R. Civ. P. 12(b)(6) 

The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain 

statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 

defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Bell Atl. Corp. 

v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, (1957). 

Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion to 

dismiss, to provide the “grounds” of “entitle[ment] to relief,” a plaintiff must furnish “more than 

labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id. at 

1964-65; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). A complaint must contain 

sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” 

Twombly, 550 U.S. at 570. 

In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must 

construe the complaint in a light most favorable to the plaintiff and must accept as true all 

reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine 

Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994). However, as 

the Supreme Court recently made clear, a plaintiff must provide more than just “a sheer 

possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662 (2009). Where 

the well-pleaded facts set forth in the complaint do not permit a court, drawing on its judicial 

experience and common sense, to infer more than the “mere possibility of misconduct,” the 

complaint has not shown that the pleader is entitled to relief. Id. at 671. 
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I. DISCUSSION 

 A. Defendants’ Motion to Dismiss Jackson I

 Ms. Jackson characterizes Jackson I as both an appeal of the May 18, 2009 HOD and an 

action seeking “injunctive stay put relief.” Jackson I, Dkt. No. 8 at 2. The Amended Complaint 

includes two claims: (1) that the May 18, 2009 HOD violated the IDEIA because “the relief 

granted was not adequate or appropriate and is not consistent with the facts and law,” and (2) 

because the May 18, 2009 HOD did not “award appropriate relief,” she has been “denied federal 

statutory rights in violation of law and 42 U.S.C. § 1983.” Id. at 5-6. As relief, Ms. Jackson seeks 

an order that: (1) DCPS maintain AJP in his current educational placement, which would include 

paying his service providers and transportation costs; (2) DCPS provide a “lump sum of four 

years of compensatory education to AJP or provide compensatory tutorial and related services to 

compensate AJP for the educational services that he was deprived as a result of Defendants’ 

violation of his stay put rights;” (3) DCPS place AJR in private school at the school district’s 

expense; and (4) DCPS convene an IEP meeting. Id. at 6-7. Defendants counter that the 

Amended Complaint must be dismissed because (1) to the extent that it is based on a “stay put” 

claim, it is barred by the doctrine of res judicata; (2) to the extent that it is based upon a Section 

1983 or Section 504 claim, it fails to state a claim upon which relief may be granted; and (3) the 

remaining IDEA claims are moot. 

 1. Plaintiff’s “Stay Put” Claim Is Barred by the Doctrine of Res Judicata 

 Under the doctrine of res judicata “a judgment on the merits in a prior suit bars a second 

suit involving the same parties or their privies based on the same cause of action.” Taylor v. 

Blakey, 490 F.3d 965 (D.C.Cir. 2007) rev’d on other grounds, 553 U.S. 880 (2008) (citing 

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5 (1979)). Res judicata bars re-litigation 
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both of “issues that were” and of issues that “could have been raised” in the prior action. 

Defendants argue that plaintiff has already received a final judgment on the merits of her “stay 

put” claim—Judge Urbina’s January 22, 2009 Order in which he set aside the September 30, 

2005 Order—thus, the claim is barred by res judicata. 

 The court agrees. Ms. Jackson describes the Amended Complaint as an action “seeking 

injunctive stay put relief,” so that AJP may remain in his “current educational placement.” 

Jackson I, Dkt. No. at 2, 7. By “current educational placement,” Ms. Jackson is referring to the 

placement and accompanying services set in place by Judge Urbina’s September 30, 2005 Order. 

However, Judge Urbina has already rejected Ms. Jackson’s effort to continue this placement. See 

Laster, 05-1875 (RMU), Dkt. No. 69 at 7 (setting aside the September 30, 2005 Order because 

“post-judgment changes, including the fact that AJP is now 7 years old and the 2004 IEP is out 

of day, weigh in favor of setting aside the [order]”). This is a final judgment on the merits. 

Accordingly, the claim is barred by the doctrine of res judicata. 

 2. Plaintiff Has Failed to State a Claim for Relief under Section 1983 

 “IDEA violations can be the predicate for a § 1983 claim based on those statutory 

violations.” Johnson v. District of Columbia, 190 F.Supp.2d 34, 46-47 (D.D.C. 2002). In order to 

maintain such a claim, a plaintiff must show: (1) that the defendant violated IDEA; (2) that 

“exceptional circumstances” exist, such that the conduct of the defendant causing the IDEA 

violation was “persistently egregious and prevented or frustrated [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 “normal remedies offered 

under the IDEA—specifically, compensatory education—are inadequate to compensate 

[plaintiff] for the harm that he [or she] alleged has suffered.” Walker v. District of Columbia, 157 
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F.Supp.2d 11, 30 (D.D.C. 2001); see also, Shelton v. Maya Angelou Public Charter School, 656 

F.Supp.2d 82 (D.D.C. 2009), R.S. v. District of Columbia, 292 F.Supp.2d 23, 29 (D.D.C. 2003); 

Daskalea v. District of Columbia, 227 F.3d 433, 441 (D.C.Cir. 2000).10 

 Plaintiff does not meet this burden. The Amended Complaint is comprised of twelve 

factual allegations, numbered 6-17. Jackson I, Dkt. No. 8 at 4-5. Paragraph 7 provides residential 

information for AJP. Paragraphs 8-10 describe administrative procedures, and paragraphs 11-16 

reiterate the actions that the May 18, 2009 HOD ordered the parties to take. Paragraph 17 reaches 

a sweeping conclusion that the May 18, 2009 HOD “did not fully address factually or legally all 

relief sought by plaintiffs in their due process complaint, such as compensatory education, 

reimbursement costs and expenses and transportation and stay put.” Id. at 5. Paragraph 6 of the 

Amended Complaint “re-alleges the allegations contained in the complaint.” Id. at 4. However, 

the Complaint is equally bereft of any factual allegations supporting a Section 1983 claim. 

 In short, the Complaint and Amended Complaint are devoid of any factual allegations 

that would support a Section 1983 claim. Ms. Jackson does not allege facts from which the court 

can infer that DCPS has a custom or practice that was the “moving force behind the alleged 

IDEA violation,” that “exceptional circumstances” exist, or that the “normal remedies offered 

under the IDEA” are “inadequate to compensate” AJP for the harm that he has allegedly 

suffered. Although the threshold to survive a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6) is relatively low, Ms. Jackson’s failure to allege any facts that would tend to 

support a claim under Section 1983 renders dismissal of this claim appropriate. See Twombly, 

127 S. Ct. 1955, 1960 (2007). 

 

 

10 Some district court decisions consider only the first and third factors of this test. See, e.g., Johnson, 190 

F.Supp.2d at 46-47; Zearley v. Ackerman, 116 F.Supp.2d 109, 114 (D.D.C. 2000). 
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 3. Plaintiff Has Failed to State a Claim under Section 504 

 To state a claim under Section 504 “a plaintiff must show that he or she was 

discriminated against solely by reason of his [or her] handicap.” Walker v. District of Columbia, 

969 F.Supp. 794, 797 (D.D.C. 1997) (internal quotations omitted). The D.C. Circuit has noted 

that “something more than a mere failure to provide the ‘free appropriate education’ required by 

[IDEA] must be shown.” Lunceford v. D.C. Bd. of Educ., 745 F.2d 1577, 1580 (D.C.Cir. 1984) 

quoting Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th Cir. 1982). Instead, a plaintiff must 

show bad faith or gross misjudgment on the part of a defendant. Walker, 969 F.Supp. at 797; see 

also, R.S., 292 F.Supp.2d at 28. 

 Once again, the Complaint and Amended Complaint are devoid of any factual allegations 

to support a Section 504 claim.11 Ms. Jackson did not allege that AJP was treated differently 

from non-disabled students solely because of his disabilities. Nor did she allege anything 

actionable that would tend to demonstrate gross misconduct or bad faith by DCPS. Accordingly, 

dismissal of the Section 504 claim is warranted. 

 4. The May 18, 2009 HOD 

 Next Ms. Jackson asks the court to enter an order declaring “that the relief ordered by the 

hearing officer was inadequate and inappropriate as a matter of law.” Jackson I, Dkt. No. 8 at 6. 

She states that the May 18, 2009 HOD is “not in line with the facts of the case” (id. at 2), and 

that the hearing officer “did not fully address factually or legally all relief sought by Plaintiffs.” 

Id. at ¶ 17. However, the Complaint and Amended Complaint are devoid of any factual 

 

11 The only mention of Section 504 in the Amended Complaint is a jurisdictional claim. See Jackson I, Dkt. 

No. 8 at ¶ 1. Count Three of the Complaint does claim a Section 504 violation, stating “Defendants discriminated 

against Plaintiff in violation of Section 504.” However, there are no facts alleged in the Complaint to support this 

allegation. In her opposition to the motion to dismiss, Ms. Jackson alleges that DCPS demonstrated bad faith and 

gross misconduct by having her physically removed from an IEP meeting in 2006. She also implies that DCPS 

abused AJP in 2004 and is responsible for his seizures. See Jackson I, Dkt. No. 11 at 21-22. Again, none of these 

allegations were pled in the Complaint or Amended Complaint. 
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allegations supporting this claim. Accordingly, this claim must be dismissed. See, Twombly, 127 

S.Ct. at 1974 (a plaintiff is required to plead enough facts to state a claim for relief that is 

plausible on its face); Bergen v. Rothchild, 648 F.Supp. 582, 586 (D.D.C. 1982) (“The complaint 

must contain sufficient information for the court to determine whether or not a valid claim for 

relief has been stated and to enable the opposing party to prepare an adequate pleading”). 

 B. Defendants’ Motion to Dismiss, in Part, Jackson II 

 On April 19, 2010, while Jackson I was still pending, Ms. Jackson filed her second 

lawsuit with this court, Jackson v. Rhee, et al., 1:10-cv-00604 (BJR) (“Jackson II”). Ms. Jackson 

characterizes Jackson II as an appeal of the January 13, 2010 HOD. Notwithstanding this 

characterization, the Complaint also seeks redress pursuant to Section 1983, the ABA, and 

Section 504.12 Defendants move to dismiss all but Count I of the Complaint.13 Defendants 

contend that Counts II-VI are barred by the statute of limitations and/or the doctrine of res 

judicata, or that they fail to state a claim upon which relief may be granted. In addition, 

defendants move to dismiss Defendant Michelle Rhee from the action because the District of 

Columbia is the proper party Defendant. 

 1. Dismissal of Defendant Rhee Is Warranted 

 The court agrees that Ms. Rhee is not a proper party defendant to this action. Ms. Jackson 

brought suit against Ms. Rhee “in her official capacity as Chancellor of [DCPS]”. See Jackson II, 

Dkt. No. at 1. Government officials sued in their official capacities are not personally liable for 

damages. Instead, a plaintiff must look to the municipality. See Atchinson v. District of 

 

12 Ms. Jackson seeks the following relief: (1) compensatory damages in the amount of twenty million dollars; 

(2) compensatory education in the amount of $275,000; (3) private placement with a one-time lump sum payment of 

twelve million dollars for tuition; and (4) declaratory relief. Jackson II, Dkt. No. 1 at 27-28. 

13 Count I is the appeal of the administrative due process hearing, which Defendants concede is properly 

before this court. 
ORDER-20 

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Columbia, 73 F.3d 418, 424 (D.C.Cir. 1996) citing Kentucky v. Graham, 473 U.S. 159, 166 

(1985). Courts routinely dismiss corresponding claims against individuals in their official 

capacity as “redundant and an inefficient use of judicial resources.” Robinson v. District of 

Columbia, 403 F.Supp.2d 39, 49 (D.D.C. 2003); see also, Jenkins v. Jackson, 538 F.Supp.2d 31, 

33-34 (D.D.C. 2008). 

 Ms. Jackson does not allege that Ms. Rhee was directly involved in any of the incidents 

listed in the Complaint, nor does she allege that Ms. Rhee directed, approved or encouraged the 

actions of those who allegedly harmed AJP. In fact, there are no allegations whatsoever against 

Ms. Rhee in the Complaint. Ms. Rhee’s presence in this action is duplicative and an ineffective 

use of judicial resources. Accordingly, dismissal of this case against Ms. Rhee is appropriate. 

 2. Count II Is Duplicative of Count I 

 Next, defendants argue that Count II must be dismissed because it fails to state a claim 

upon which relief may be granted. The court agrees. Count II is titled “Defendants by Custom or 

Practice have [Violated Plaintiff’s] Rights Pursuant to IDEA.” Jackson II, Dkt. No. 1 at 22. It 

contains two paragraphs—paragraph 126 and paragraph 127. Id. Paragraph 126 re-allege the 

introduction and proceeding paragraphs in the Complaint. Id.

14 Paragraph 127 summarily 

concludes that “[p]ursuant to IDEA, Defendants violated Plaintiffs’ [sic] rights.” Id. Ms. Jackson 

has already asserted the alleged violations of IDEIA set forth in the preceding 125 paragraphs of 

the complaint in Count I. Accordingly, Count II is duplicative and will be dismissed. 

 3. Count III Fails to State a Claim upon Which Relief May Be Granted 

 Count III of the Complaint is the Section 1983 claim. Defendants submit that this claim 

 

14 Throughout the Complaint there are references to the incorporation of “Plaintiff’s Complaint, first 

Amended Complaint and facts contained in their [sic] Opposition to Defendants’ Motion to Dismiss.” See, e.g., 

Jackson II, Dkt. No. 1 at ¶ 126, 128 and 130. Such pleadings do not exist. Accordingly, the court will disregard 

these statements. 
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must be dismissed because it fails to state a claim upon which relief may be granted. The court 

agrees. As stated previously, in order to maintain a Section 1983 claim against a municipality 

such as the District of Columbia, the burden is on the plaintiff to establish that: (1) that the 

defendant violated IDEA; (2) that “exceptional circumstances” exist, such that the conduct of the 

defendant causing the IDEA violation was “persistently egregious and prevented or frustrated 

[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 

“normal remedies offered under the IDEA—specifically, compensatory education—are 

inadequate to compensate [plaintiff] for the harm that he [or she] alleged has suffered.” Walker v. 

District of Columbia, 157 F.Supp.2d 11, 30 (D.D.C. 2001); see also, R.S. v. District of Columbia, 

292 F.Supp.2d 23, 29 (D.D.C. 2003); Daskalea v. District of Columbia, 227 F.3d 433, 441 

(D.C.Cir. 2000). 

 Once again, Ms. Jackson has not met her burden. The Complaint is predicated on two 

alleged failures by DCPS—the failure to comply with the 2004 IEP and the failure to develop an 

appropriate new IEP and placement. This, without more, is insufficient to support a Section 1983 

claim. Ms. Jackson must also set forth some factual basis to support an allegation that a 

municipal policy or custom caused DCPS to violate AJP’s rights under the IDEIA. See, e.g. 

Shelton, 656 F.Supp.2d at 87 (dismissing Section 1983 claim because it did not set forth any 

factual allegations that could support a reasonable inference that the District of Columbia had a 

policy or practice of refusing to comply with HODs); Trimble v. District of Columbia, 779 

F.Supp.2d 54, 59 (D.D.C. 2011) (dismissing Section 1983 claim because plaintiff failed to name 

or identify any policy, practice, or custom, or identify other incidents showing that the policy 

department had gender discriminatory policies); Ekwen v. Fenty, 666 F.Supp.2d 71, 79 (D.D.C. 
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2009) (noting that plaintiff did not state a claim under Section 1983 because he did not pled any 

facts supporting the existence of a discriminatory policy or practice). Indeed, Ms. Jackson has 

not alleged that DCPS’ alleged failures were somehow caused by a municipal custom or practice, 

nor has she set forth in her Complaint any factual allegations that would support a reasonable 

inference that the District or DCPS has or had a custom or policy of refusing to comply with or 

adequately develop IEPs. Accordingly, Count III must be dismissed. 

 4. Count IV Fails to State a Claim upon Which Relief May Be Granted 

 Count IV of the Complaint includes the Section 504 and ADA claims. As previously 

discussed, Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified 

individual with a disability...shall, solely by reason of her or his disability, be excluded from the 

participation in, be denied the benefits of, or be subjected to discrimination under any program or 

activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). To state a Section 504 claim 

based on alleged IDEA violations, a plaintiff must allege that: (1) the disabled student was 

treated differently from non-disabled students solely because of his or her disabilities, and (2) 

school officials acted in bad faith or demonstrated gross misconduct. Walker, 157 F.Supp.2d at 

797 citing Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th Cir. 1982) (liability will not be 

imposed as long as the “state officials have exercised professional judgment, in such a way as 

not to depart grossly from accepted standards among educational professionals.”); see also, R.S. 

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

 Here, Ms. Jackson fails to state a claim under Section 504 because she has not alleged 

that AJP was treated differently from non-disabled students solely because of his disabilities, nor 

has she alleged anything in the Complaint that would tend to demonstrate gross misconduct or 

bad faith by DCPS. In her Opposition, Ms. Jackson argues that DCPS’ placement of AJP in 
ORDER-23 

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Tyler Elementary School was inappropriate because the school could not accommodate his 

disabilities. See Jackson II, Dkt. No. 5 at 19-20. She also states that AJP “has not been timely 

evaluated and has not had a proper IEP developed since 2004.” Id. at 21. These arguments are 

nothing more than allegations of IDEIA violations, which are appropriately remedied by 

appealing an administrative due process hearing, in other words, Count I of this Complaint. 

 Similarly, Ms. Jackson has failed to plead an ADA claim. The ADA prohibits public 

entities from excluding qualified individuals with disabilities from participating in or receiving 

the benefits of “the services, programs, or activities” of that entity. 42 U.S.C. § 12132. As a local 

government, the District of Columbia is a public entity. Id. at § 12131(1)(a) (defining “public 

entity” as “any state or local government”). The elements of an ADA discrimination claim are: 

(1) that the plaintiff is a qualified individual with a disability; (2) that the public entity denied 

him the benefits of or prohibited him from participating in the entity's services, programs or 

activities; and (3) that denial or prohibition was “by reason of” his disability. 42 U.S.C. § 12132. 

While the IDEIA addresses incorrect or erroneous special education treatment, the ADA 

addresses discrimination against the disabled student. Thus, something more than a mere 

violation of the IDEIA is necessary in order to show a violation of the ADA. Alston v. District of 

Columbia, 770 F.Supp.2d 289, 298 (D.D.C. 2011). 

 Here, Ms. Jackson makes no allegation that DCPS discriminated against AJP based on 

his disability. In fact, there are no allegations in the complaint that AJP was discriminated 

against at all. Rather, Ms. Jackson argues that DCPS failed to develop a proper IEP and 

placement for AJP. In other words, she challenges the appropriateness of the special education 

program offered to AJP (an IDEIA claim), and not that DCPS deprived AJP access to the 

program based on his disability (an ADA claim). Accordingly, Count IV must be dismissed. 
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 5. Count V Fails to State a Claim upon Which Relief May Be Granted

 In Count V, Ms. Jackson alleges that DCPS “retaliated” against her, but does not plead 

the legal basis for her claim. The court assumes that she is brings the claim pursuant to Section 

504 and the ADA. Once again, the claim must be dismissed. Ms. Jackson alleges that DCPS 

retaliated against her in the following two ways: (1) on October 27, 2008, Natalia Houston 

allegedly reported to Child and Family Services that Ms. Jackson was neglecting AJP, and (2) in 

October 2006, a DCPS employee allegedly had a security guard escort Ms. Jackson from school 

premises because she wanted to tape record a meeting. Jackson II, Dkt. No. 1 at ¶¶ 133, 134. 

These allegations contain no reference to AJP’s disabilities and certainly do not suggest that he 

was treated differently on the basis of his disabilities. In fact, the allegations do not reference 

AJP at all. Both the ADA and Section 504 address discrimination “by reason of” a disability and 

Ms. Jackson’s Complaint is devoid of any allegations that AJP was discriminated against 

because of his disability. Accordingly, Count V fails to state a claim under the ADA or Section 

504 and must be dismissed. See, e.g., Cummings v. Woodson Senior High School, 563 F.Supp.2d 

256, 259 (D.D.C. 2008) (dismissing ADA and Section 504 claims on defendant’s Rule 12(b)(6) 

motion because plaintiff asserted only a denial of FAPE and related services—claims cognizable 

under the IDEA); Hinson v. Merritt Educational Center, 521 F.Supp.2d 22, 31 (D.D.C. 2007) 

(dismissing ADA and Section 504 claims because plaintiff failed to allege that school treated son 

differently on the basis of his disability). 

 6. Count VI Is Duplicative and Fails to State a Claim upon Which Relief 

 May Be Granted 

 In Count VI of the Complaint, Ms. Jackson alleges “[r]eckless or negligent [spoliation] of 

evidence and further retaliation.” Jackson II, Dkt. No. 1 at 23. She re-alleges many of the factual 

allegations pertaining to her appeal of the January 13, 2010 HOD, but she also alleges that 
ORDER-25 

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“[d]efendants intentionally or negligently destroyed [the audio recording of the due process 

hearing] that is required to be kept and provided to the Plaintiffs pursuant to IDEA.” Id. at 25. It 

is not clear from the face of the pleading what Ms. Jackson alleges is the legal basis for relief 

under this claim. 

 In her Opposition to the motion to dismiss, Ms. Jackson attempts to clarify Count VI by 

asserting that the “further retaliation” of which she alleged in the claim referred to “defendants 

deliberately contacting DC Child and Family Services alleging educational neglect when the 

parties were involved in administrative proceedings,” and to the fact that she was physically 

removed from the IEP meeting in October 2008. Jackson II, Dkt. 5 at 23-24. This clarification 

does not salvage Count VI. These claims are duplicative of the retaliation claims that Ms. 

Jackson asserted in Count V, and as discussed supra, are insufficient to state a claim under 

Section 504 or the ADA. 

 Therefore, to the extent that Count VI alleges that defendants destroyed evidence, the 

claim rules afoul of Federal Rule of Civil Procedure 8 and must be dismissed. See Bell Atl. Corp. 

v. Twombly, 550 U.S. 544, 555 (2007) (a complaint must contain sufficient factual matter, 

accepted as true, to “state a claim for relief that is plausible on its face”). To the extent the Count 

alleges retaliation, for the reasons set forth supra, the claim runs afoul of Federal Rule 12(b)(6). 

Finally, to the extent that the claim alleges that Ms. Jackson was denied an impartial due process 

hearing, the allegations are duplicative of the allegations in Count I. As such, the court will treat 

these allegations as further factual support for Count I and dismiss them from Count VI. 

Accordingly, Count VI must be dismissed. 15 

 

15 Defendants also argue that to the extent Ms. Jackson seeks to re-litigate the issue of whether AJP is entitled 

to “stay put” pursuant to Judge Urbina’s September 30, 2005 order and whether DCPS must continue to pay for the 

services provided consistent with the 2004 IEP, the claim is barred by the doctrine of res judicata. The court agrees. 

For the reasons previously stated herein, any such claims must be dismissed. 
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IV. CONCLUSION

For the foregoing reasons, the court hereby: 

1. GRANTS Defendants’ Motion to Dismiss the Amended Complaint in Jackson I

(dkt. no. 9). The Amended Complaint is HEREBY DISMISSED with prejudice and the case is 

closed; 

2. GRANTS Defendants’ Motion for Partial Dismissal of Complaint in Jackson II

(dkt. no. 3). Counts II, III, IV, V and VI are HEREBY DISMISSED; 

3. Defendants are instructed to file an answer or other responsive pleading within 

thirty days of the date of this order; 

4. Defendants are further instructed to file the administrative record for this matter, 

including a transcript of the January 13, 2010 due process hearing, within sixty days of the date 

of this order. If defendants are unable to obtain a copy of the hearing transcript, they are 

instructed to submit an affidavit setting forth their efforts to obtain the transcript and why they 

were unable to obtain it. Defendants shall inform the court whether standard procedure was 

employed with respect to recording and preserving the audio recording and/or transcript of the 

hearing; 

5. In addition, the parties are instructed to file a joint status report within thirty days 

of the date of this order, up-dating the court on the status of AJP’s current educational placement, 

any relevant changes in AJP’s condition, and whether the parties are interested in mediating this 
ORDER-27 

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Barbara Jacobs Rothstein 

U.S. District Court Judge 

dispute. 

DATED this 28th day of November, 2011. 

 A