out of school entirely for the past year. In any event, it does not appear that Defendants
reinstated their request for a due process hearing during this time, although they
initially reserved the right to do so. Plaintiffs themselves never requested a due process
hearing. Rather, they filed this action on February 28, 2001, seeking an independent
education evaluation, compensatory damages, accessibility and related services for
Lorina, and an injunction preventing her transfer to another school. Defendants have
moved to dismiss the complaint, arguing that Plaintiffs failed to exhaust their
administrative remedies before filing suit.
LEGAL STANDARD

A motion to dismiss pursuant to Rule 12(b)(6)! of the Federal Rules of Civil

Procedure tests whether the plaintiff has properly stated a claim for which relief may

be granted. Pickrel v. City of Springfield, IIL, 45 F.3d 1115, 1118 (7th Cir. 1995). The

purpose of a Rule 12(b)(6) motion to dismiss is to test the sufficiency of the complaint,

not to decide the merits of the case. Triad Associates, Inc. v. Chicago Hous. Auth., 892

F.2d 583, 586 (7th Cir. 1989). In ruling on a motion to dismiss, the court must

construe the complaint’s allegations in the light most favorable to the plaintiff, and all

‘Although the conclusory paragraph of Defendants’ motion references Rule 12(b)(1), that
section is inapposite. Failure to exhaust administrative remedies is not a jurisdictional flaw. Gibson
yv. West, 201 F.3d 990, 993 (7th Cir. 2000); Charlie F. v. Board of Educ. of Skokie Schl. Dist. 68,
98 F.3d 989, 991 (7th Cir. 1996). We therefore treat Defendants’ motion as a motion to dismiss for
failure to state a claim pursuant to Rule 12(b)(6).

-4-


to implement it without first obtaining an independent finding that the IEP was
adequate to meet Lorina’s needs. This argument finds no support in the law.

The case cited by Plaintiffs, Grymes v. Madden, 672 F.2d 321, 322 (3d Cir.
1982), does not support their position. The court in Grymes merely upheld the district
court’s finding that the school district in question had failed to sustain its burden of
proof at trial that an appropriate public program existed. It did not hold that the school
district was under any obligation to initiate administrative due process proceedings
prior to implementing an IEP. No case of which the Court is aware establishes such
an obligation.

Similarly unfounded is Plaintiffs’ contention that, pursuant to 20 U.S.C. § 1415,
Defendants were required to keep Lorina at Ray Elementary until they obtained state-
level administrative authorization to move her. Section 1415 (j) provides that students
must not be moved from their current educational placement “during the pendency of
any proceedings conducted pursuant to [§ 1415].” As discussed above, Plaintiffs failed
to institute such proceedings, and the Chicago Board withdrew its due process request
after the Mediation Agreement was signed. There is no evidence or allegation that
Lorina was removed from Ray Elementary prior to this time.

Accordingly, we find that Plaintiffs have failed to exhaust their administrative
remedies with respect to their IDEA claim. We also find that this case does not fall

-9-


response brief so long as they are consistent with the allegations in the complaint.

Hentosh v. Herman M. Finch Univ., 167 F.3d 1170, 1173 n.3 (7th Cir. 1999),

DISCUSSION
I. Plaintiffs’ IDEA Claim

Pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400
et seq., states can receive federal financial assistance as long as they provide disabled
children with “a free appropriate public education that emphasizes special education
and related services designed to meet their unique needs . . . [and] ensure[s] that the
rights of children with disabilities and parents of such children are protected.” 20
U.S.C. § 1400(d); Honig v. Doe, 484 U.S. 305, 309 (1988). To achieve these
objectives, the IDEA’s extensive system of procedural safeguards provides parents
with the opportunity both to fully participate in all decisions concerning their child’s
education and to obtain administrative and judicial review of any decision with which
they do not agree. Honig, 484 U.S. at 308.

Specifically, section 1415(b)(6) of the statute initially guarantees parents “an
opportunity to present complaints with respect to any matter relating to the
identification, evaluation, or educational placement of the child, or the provision of a
free appropriate public education to such child.” Once parents have filed a complaint,
they are entitled to an “impartial due process hearing” conducted by a local or state

-6-


well-pleaded facts and allegations in the complaint must be accepted as true.

Bontkowski v. First Nat’] Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993).

The allegations of a complaint should not be dismissed for failure to state a
claim “unless it appears beyond a doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S.
41, 45-46 (1957). Nonetheless, in order to withstand a motion to dismiss, a complaint
must allege facts sufficiently setting forth the essential elements of the cause of action.
Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). However, a pro se complaint
is held to “less stringent standards than formal pleadings drafted by lawyers.”
Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999).

In reviewing a Rule 12(6)(6) motion to dismiss for failure to state a claim, the
court is limited to the allegations contained in the pleadings themselves. Documents
incorporated by reference into the pleadings and documents attached to the pleading
as exhibits are considered part of the pleadings for all purposes. See Fed. R. Civ.
P. 10(c). “Documents that a defendant attaches to a motion to dismiss are considered
a part of the pleadings if they are referred to in the plaintiffs complaint and are central

to her claim.” Venture Associates Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431

(7th Cir. 1993). We may also consider documents and facts included in a plaintiff's


McKart v. United States, 395 U.S. 185, 194 (1969)); Ezratty v. Commonwealth of
Puerto Rico, 648 F.2d 770, 774 (Ist Cir. 1981)).

It is undisputed that Plaintiffs never filed a formal complaint or requested the
impartial due process hearing to which they were entitled under § 1415 of the IDEA.
They have therefore not met the exhaustion precondition to filing suit for violations of
that statute. Moreover, as discussed below, the case does not fall under one of the
recognized exceptions to the IDEA’s exhaustion rule.

The exhaustion doctrine “is not to be applied inflexibly,” and there are certain
circumstances under which exhaustion may not be required. Christopher W., 877 F.2d
at 1094 (quoting McGee v. United States, 402 U.S. 479, 483 (1971)). In particular, the
Supreme Court has carved out an exception to the general rule where a plaintiff can
show that the pursuit of administrative remedies would be futile or inadequate. See

Honig y. Doe, 484 U.S. 305, 327, 108 S. Ct. 592 (1988); see also Heldman on Behalf

of T.H. v. Sobol, 962 F.2d 148, 158 (2d Cir. 1992). Plaintiffs do not contend that
exhaustion would be futile or inadequate. Rather, they argue that it is Defendants, not
Plaintiffs, who should be held accountable for the failure to pursue administrative
remedies. Specifically, Plaintiffs contend that, because Defendants were on notice of

their opposition to the November 24, 1999, IEP, Defendants should not have proceeded


‘Minute Order Form (06/97)

S\o

United States District Court, Northern District of Mlinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Charles P. Kocoras than Assigned Judge
CASE NUMBER O1C 1422 DATE 6/20/2001
CASE Deveaux et al vs. Vallas et al
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented. }
DOCKET ENTRY:
(1) o Filed motion of [ use listing in “Motion” box above.]
(2) aq Brief in support of motion due
(3) QO Answer brief to motion due . Reply to answer brief due
(4) oO Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to] [set for/re-set for} on set for at
(6) 0 Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) ao Trial[set for/re-set for] on at
(8) O (Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QOFRCP4(m) OGeneral Rule21 CIFRCP41(a)(1) Ol FRCP41(a)(2).

ao) i (Other docket entry] Ruling held. ENTER MEMORANDUM OPINION: Defendants’ motion

(Doc 4-1) to dismiss is granted. The complaint is dismissed in its entirety. All other pending motions

are moot.
dl ff (For further detail see order attached to the original minute order.}

No notices required.

No notices required, advised in open court.

Document”
Number

umber of notices

Notices mailed by judge's staff.

Notified counsel by telephone.

oS | Docketing to mail notices.

J | Mail AO 450 form

Copy to iNge/magisyate judge.

scT \

J initials

\ courtroom ut
deputy’s

iv .

“agezo PR 58

2 --date docketed

Date/time received in
central Clerk's Office

JUN 21 200f

\5

docketing deputy initials

date mailed notice

muaiting depety initials



before litigating their other claims. As stated above, Plaintiffs have failed to exhaust
their IDEA administrative remedies and cannot invoke an exception to the exhaustion
requirement. As such, their ADA and Illinois School Code claims must be dismissed
for failure to state a claim.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is granted. The

complaint is dismissed in its entirety.

CR Daa flere a

Charles P. Kocoras
United States District Judge

Dated: June 20, 2001

-ll-


under a recognized exception to the exhaustion rule. Accordingly, the motion to
dismiss Plaintiffs’ IDEA claim is granted.
II. Plaintiffs’ Remaining Claims

In addition to their IDEA claim, Plaintiffs allege that Defendants violated their
rights under the Americans with Disabilities Act and Illinois School Code to obtain an
appropriate education for Lorina. See 42 U.S.C. § 12101 et seq. Defendants contend
that a party seeking relief available under the IDEA must use the Act’s administrative
remedy scheme, even if another statute is invoked. We agree.

In 1986, Congress added section 1415(1) to the IDEA:

Nothing in this chapter shall be construed to restrict or limit the
rights, procedures, and remedies available under the Constitution, the
Americans with Disabilities Act of 1990, title V of the Rehabilitation Act
of 1973, or other Federal laws protecting the rights of children with
disabilities, except that before the filing of a civil action under such laws
seeking relief that is also available under this subchapter, the procedures
under subsections (f) and (g) of this section shall be exhausted to the
same extent as would be required had the action been brought under this
subchapter.

The Seventh Circuit has interpreted this section to mean that “any pupil who wants
‘relief that is available under’ the IDEA must use the IDEA’s administrative system,
even if he invokes a different statute.” Charlie F., 98 F.3d at 991. Because Plaintiffs’

ADA and Illinois Schools Code claims are identical to their claim under the IDEA, this

tule clearly requires them to pursue the administrative relief set forth in the IDEA

-10-


educational agency. § 1415(f). If they are dissatisfied with the decision rendered at
the hearing, section 1415(g) provides them an opportunity to appeal to a state
educational agency if the original hearing took place at the local or regional level.
Finally, section 1415(i)(2) provides for a civil action, allowing “any party aggrieved
by the findings and decision” of the state administrative hearing to bring such an action
in “any State court of competent jurisdiction or in a district court of the United States
without regard to the amount in controversy.”
A. Plaintiffs Failed to Exhaust Administrative Remedies Required by the IDEA
In general, a plaintiff may not bring a federal lawsuit under the IDEA unless she
first exhausts her state administrative remedies. 20 U.S.C. § 1415(i)(2); Family &
Children’s Center, Inc. v. School City of Mishawaka, 13 F.3d 1052, 1056 (7th Cir.
1994). The exhaustion doctrine allows the educational agency to apply its expertise,
provides for the development of a complete factual record, and gives the agency the
first opportunity to address problems in its educational programs for disabled students.

See Learning Disabilities Ass’n of Maryland, Inc. v. Bd. of Educ. of Baltimore County,

837 F. Supp. 717, 722 (D. Md. 1993). Ultimately, the exhaustion requirement
“promot[es] accuracy, efficiency, agency autonomy, and judicial economy.”

Christopher W. v. Portsmouth Sch. Comm., 877 F.2d 1089, 1094 (Ist Cir. 1989) (citing


Board’s due process request. Included with the letter was a copy of a document
entitled “Explanation of Procedural Safeguards Available to Parents of Children with
Disabilities.” The letter indicated that Lorina’s placement would not be changed
pending the administrative proceedings unless both school officials and Lorina’s
parents agreed otherwise.

On March 29, 2000, Deveaux and school officials entered into a Mediation
Agreement (the “Agreement”) pursuant to which Lorina was permitted to remain at
Ray Elementary for a trial period of two weeks. During this time, Chicago School
District #299 warranted that it would attempt to arrange bus transportation for Lorina.
If during the trial period Lorina succeeded at moving around the school with her
walker, the Agreement provided that the IEP team would meet to determine which
related services were necessary for Lorina at Ray Elementary. If Lorina did not use the
walker, Deveaux would consent to the provision of special education services, pursuant
to the December 8, 1999, IEP, at another school. Since the parties were able to reach
the Mediation Agreement, on June 14, 2000, the Chicago Board withdrew its request
for a due process hearing.

It is unclear whether the terms of the Agreement were satisfied by either party
and whether Lorina ultimately remained at Ray Elementary or was moved to the

alternative school. Deveaux suggested at an early status hearing that Lorina had been

-3-


Defendant Paul Vallas is the Chief Executive Officer of the Chicago Public Schools.
Plaintiffs allege in their complaint that Defendants have failed to reasonably
accommodate Lorina’s physical disability in violation of the Americans with
Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., and have denied Lorina
a free appropriate public education as guaranteed to her by the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1401 et seq. and Article 14 of the
Illinois School Code, 105 ILCS 5 § 14-8.02.

Sometime in or around January 1999, Plaintiffs allege, Lorina developed an
ankle impairment and as a result had difficulty walking without assistance. In response
to Lorina’s special needs, Deveaux met with representatives from Ray Elementary
September 29, 1999 to create an Individualized Education Program (“IEP”) which
recommended interventions to increase Lorina’s mobility. On November 24, 1999, the
team reconvened, determined that Lorina was “learning disabled,” and recommended
that she attend another school where she would be able to receive special education
services. Accordingly, a second IEP, to be implemented at the other location, was
created on December 8, 1999.

When Deveaux refused to consent to placing Lorina at the other school, the
Chicago Board filed a request for a due process hearing before the Illinois State Board
of Education. By letter of December 20, 1999, Defendants notified Deveaux of the

-2-


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
LORRAINE DEVEAUX and ) AUN 2 1 2001
LORINA DEVEAUX SMITH, )
)
Plaintiffs, )
)
vs. ) No. 01 C 1422
)
PAUL G. VALLAS and CHICAGO )
BOARD OF EDUCATION, )
)
Defendants. )
MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

This matter comes before the Court on the motion of Defendants Board of
Education of the City of Chicago (“Chicago Board”) and Schools Superintendent Paul
G. Vallas (collectively “Defendants”) to dismiss the complaint of pro se Plaintiffs
Lorraine Deveaux (“Deveaux”) and her daughter Lorina Deveaux Smith (“Lorina”).
For the reasons set forth below, Defendants’ motion is granted.

BACKGROUND

Lorraine Deveaux is the mother of Lorina Deveaux Smith, a student at Ray

Elementary School (“Ray Elementary”) in Chicago, Illinois. Ray Elementary is a

public school operated by Defendant Board of Education of the City of Chicago.