UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAWANZAH CROCKETT, Plaintiff ,

v. MAYOR OF THE DISTRICT OF COLUMBIA, et al

. Defendants. Civil Action No. 16-1357 (RDM)

MEMORANDOM OPINION AND ORDER Plaintiff Jawanzah Crockett, proceeding pro se , brings this action again st the District of Columbia Public Schools (“DCPS” ); various school administrators , managers, and teachers; and the Mayor of the District of Col umbia. The case focuses on a s eries of events occurring over the course of Crockett’s tenure as a student at Wilson Senior High School (“Wilson H.S.”). DCPS determined that Crockett was ent itled to special education serv ices under the Individuals with Disabilities Education A ct (“IDEA”), 20 U.S.C. § 1400 et seq ., and he eventually received an Individualized Education Plan (“I EP”). Crockett alleges, howev er, that Defendants failed to accommodate his disability; that Wilson H.S. did not properly i mplement the IEP; that he was otherwise denied the Free Appr opriate Public Education (“FAPE”) to which he was entitled; that DCPS unlawfully disclosed portions of his protected educational records; and that Defendants inaccurately reported his attendance and grades. Based on thes e factual allega tions, he asserts claims under Title II of the Ame ricans with Disabilities Act (“ ADA”), 42 U.S.C. § 12131 et seq .; the IDEA; the D.C. Student Gri evance Procedures, D.C Mun. Regs. tit. 5B, § 2405; the Family2 Educational Rights and Privac y Act (“FERPA”), 20 U.S.C. § 1232g ; the D.C. Human Rights Act (“DCHRA”), D.C. Code § 2-1401.01 et seq .; and an array of c ommon law torts. In an equally multifaceted response, Defendants move to dismiss or, in the alternative, for summary judgment, raising a host of defenses. Their central ar gument is that Crockett brought a similar action in D.C. Superior Court in June 2015; that he was unsuccessful there; and that he is now barred by the doctrines of cla im and issue preclusion from litigating his case before this Court. In addition to that argumen t, Defendants contend that C rockett’s current lawsuit should be dismissed for failure to exha ust administrative remedies und er the IDEA; that his complaint fails to state a claim of neglig ence or neglect of duty; that h is remaining tort claims are barred by a one-year statute of lim itations; that DCPS is non sui juris and thus not subject to suit; and that the complaint fails to include a ny factual allegations directed at the Mayor. For the reasons explaine d below, the Court will GRANT in part and DENY in part Defendants’ motion. I. BACKGROUND Crockett began attending Wils on H.S. in the fall of 2011. Dkt. 1 at 3 (Compl. ¶ 15). He struggled during that first year, and his mother asked that he be tested to determine eligibility for special education services. Id . (Compl. ¶¶ 15–16). An accommodations plan drafted under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, led to improved performance in his sophomore year. Id . Still, miscommunications and disagreements about the plan hampered its implementation, and Crockett’s mother continued to push for further evaluation of her son. Id

. (Compl. ¶¶ 17–24). Eventually, DCPS conceded that Crockett was entitled to an IEP under the IDEA. Id . (Compl. ¶¶ 21–22). On April 7, 2014, during the spring of Cr ockett’s junior year,3 Wilson H.S. finally produced the IEP, id . (Compl. ¶ 22), but, according to Crockett, the school almost immediately fell into noncompliance, id. (Compl. ¶ 27). Before challenging that noncomp liance, however, Crockett’s moth er filed a different due process complaint with the D.C . Office of the State Superintend ent of Education (“OSSE”), challenging DCPS’s failure to offe r Crockett an IEP earlier in his time at Wilson H.S. See Dkt. 12-8 (First OSSE Hearing Report) . The OSSE hearing officer con cluded in December 2014 that DCPS had failed to provide Croc kett a FAPE from October 11, 201 2, to April 7, 2014—that is, for much of his high school career. Id . at 3, 8–11. As compensator y education, the OSSE hearing officer ordered DCPS t o provide Crockett 200 hours of i ndependent tutoring, 20 hours of behavior counseling, and reimbur sement for prior tutoring expen ses. Id . at 10. Crockett has not called into question DCPS’s co mpliance with that award. During the 2014–2015 school year, Crockett was initially placed into a self-contained classroom (one containing only stude nts receiving special educa tion services) for math, as contemplated by his IEP. Dkt. 12- 7 at 5 (Second OSSE Hearing R eport). Because he was substantially more advanced than o ther students in the self-con tained classroom, Crockett’s special education teacher recommen ded that he be returned to th e general education classroom for math. Id . At his mother’s request, that switch was made. Id . Crockett then passed both math classes he took his senior year. Id

. By contrast, Crockett struggled i n Spanish. Despite his mother ’s repeated efforts to coordinate with his teachers to m ake sure all of his assignment s were turned in, he ultimately failed that class. Id

. Crockett contends that this failing grade was the product of ahost of missteps by Defendants, includi ng failing to provide adequate s upport and accommodations, “denying [his] parent access to t eachers to assist in organizin g . . . and keeping track of [his]4 assignments,” Dkt. 1 at 13 (Comp l. ¶ 87), misrepresenting the number of assignments that had yet to be completed, id . at 8–9 (Compl. ¶¶ 48–57); id . at 15–16 (Compl. ¶ 103), and falsifying attendance records, id . at 17–18 (Compl. ¶¶ 112, 118–25). Because he failed Spanish, Crockett was unable to graduate with his cl ass, and was required to repe at the course over the summer. Dkt. 12-7 at 5. After receiving notice of his f ailing grade in Spanish, Crockett took two actions. First, he lodged another due process complaint with OSSE. See Dkt. 12-7. The complaint alleged that his mother had not been timely provid ed with his most recent IEP an d that the school’s decision to return him to the math general e ducation classroom at his mothe r’s request had not relieved the school of its obligation to provide him with additional educati onal services in math. See id . at 4– 5. Although those claims had nothing to do with his Spanish gr ade, Crockett sought compensatory education in the f orm of Spanish tutoring, funding for the Spanish summer school course he was taking to graduate , and enrollment in a college p reparatory course. Id . at 9. A due process hearing was held on July 23, 2015. Id . at 2. On August 7, 2015, the OSSE hearing officer rejected Crockett’s firs t claim, but ruled that Wilson H.S.’s failure to provide Crockett with the additional math support contemplated by his IEP violat ed the IDEA. Id . at 6–8. The hearing officer found the proposed r elief inappropriate, howeve r, because it did not “correlate[]” with that omission. Id . at 9. As a result, the heari ng officer instead ordered that Crockett receive “20 hours of independent be havior counseling.” Id . at 10. Second, Crockett brought suit against DCPS, Wilson H.S., and va rious school administrators and teachers in D .C. Superior Court, seeking a t emporary restraining order and preliminary injunction to compel Wilson H.S. to allow him to “p ick up [his] cap and gown, participate in graduation reh earsal and graduate on June 13 with [his] class.” Dkt. 12-2 at 15 (Superior Court Complaint). Cro ckett’s complaint did not ident ify a particular cause of action, but it did allege that the defenda nts in that action had failed to provide him with “accommodations” and had failed to act in a timely manner on “g rade disputes” that he had raised. Id . The complaint left little doubt , moreover, that Crockett’s a llegations were focused— at least in large part—on his failing grade in Spanish. Id. A hearing on Crockett’s motion f or a temporary restraining orde r was convened the day prior to the Wilson H.S. gradua tion, and that motion was denied . The Superior Court held: [P]laintiff has not established that he would be irreparably da maged by not being permitted to participate in the graduation ceremony on June 13, 2015, nor that he would likely prevail at trial, no r that he would be more damage d than would be defendant, nor that the public good would be injured by withhol ding injunctive relief. Dkt. 12-3. Three days later, the Superior Court denied Crocket t’s motion for a preliminary injunction for those same reasons. See Dkt. 12-4. The defendants in that case the n filed a motion to dismiss, whi ch the Superior Court granted on August 25, 2015. See Dkt. 12-5. Although the complaint had not expressly identifie d a cause of action, the Superior C ourt construed it to “arise[]” under 20 U.S.C. § 1415(b)(6)(A), the provision of the IDEA that pr ovides for administrative due process hearings like those Crockett won in December 2014 and August 2015. Id . at 4. As the Superior Court explained, the IDEA sets forth “carefully tailored administrative and judi cial mechanism[s]” to challenge the failure of a school system t o provide a child with a FAPE. Id . at 6 (quoting Bonar v. Ambach , 771 F.2d 14, 18 (2d Cir. 1985)). In particular, the child’s parents must first pursue a due process hearing conducted by eit her the state educational a gency or by the local educational
agency. See 20 U.S.C. § 1415(f); see also Dkt. 12-5 at 5. Under D.C . law, the initial due6 process hearing is conducted by t he state educational agency, 1 Dkt. 12-5 at 5, and its decision is treated as final agency action for purposes of the IDEA, see 20 U.S.C. § 1415(i)(1)(A ). It is only after obtaining such a final a gency decision, however, that the IDEA authorizes an aggrieved party to bring a civil action i n state or federal court. Id. § 1415(i)(2)(A); see also Dkt. 12-5 at 5. In light of this regulatory struc ture, the Superior Court held that Crockett had failed to exhaust his administrative remedies under the IDEA because neither he n or a parent pursued a due process hearing respecting the claims he sought to raise in the Superior Court action. Dkt. 12-5 at 5–6. As a result, the court lack ed “subject matter jurisdic tion.” Id

. Crockett then appealed the Supe rior Court’s decision to the D.C . Court of Appeals. Nine months later, the Court of Appeal s dismissed the appeal as moot . Dkt. 13-1 at 1–2. In a summary order, the court explai ned that Crockett sought only in junctive relief—that is, an order requiring that he be allowed to grad uate with his class—and bec ause the graduation ceremony had already taken place, there was “no relief that [the] court [could] provide.” Id. at 1. Crockett did not request that the D.C. Court of Appeals vacate the Super ior Court’s decision, and the Court of Appeals did not order vacatur sua sponte

. Less than three weeks after the D.C. Court of Appeals dismissed his appeal, Crockett filed the present a ction. Dkt. 1. Five of the defendants in t his case were also named in the earlier suit: DCPS, Wilson H.S.’s assistant principal for spec ial education, the school’s acting principal, Crockett’s Spanish t eacher, and his special educatio n case manager. Compare Dkt. 12-1 at 1, with Dkt. 1 at 2–3. To this list, the p resent suit adds six new de fendants: the DCPS

1 The Court notes that despite s ome confusion in the briefing r egarding the Superior Court’s holding, the decision indicates tha t Crockett’s Superior Court claims were distinct from the earlier claims that he had pur sued through the OSSE process. Compare Dkt. 12-5 at 4–5, with Dkt. 15 at 9, and Dkt. 16 at 2–4.7 “Instructional Superintendent m anaging Cluster VIII schools,” asecond Spanish instructor at Wilson H.S., Wilson H.S.’s “assist ant principal for 2015 summer school and attendance supervisor,” an attendance c ounselor at Wilson H.S., an AP Engl ish teacher at the school, and the Mayor of the District of Columbia. 2 Dkt. 1 at 1–3. Unlike his pr ior suit, which sought only injunctive relief, thi s case seeks only damages. Dkt. 1 at 21– 22. II. LEGAL STANDARD “To survive a motion to dismiss, acomplaint must contain suffi cient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). A claim is plausible if “the plaintiff plead s factual content that allows the court to drawthe reasonable inference that the defendant i s liable for the misconduct alleg ed.” Id. Although “detailed factual allegations” are not required, the complaint must contain “more than labels and conclusions, [or] a formulaic recitation of the ele ments of a cause of action.” Twombly , 550 U.S. at 555. The Court must “assume [the] veraci ty” of “well-pleaded factual all egations,” Iqbal , 556 U.S. at 679, and must “grant [the] plaintiff the benefit of all inferences that can be derived from the facts alleged,” Sparrow v. United Air Lines, Inc. , 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal quotation marks omitted). The Court, however, need not accept “a legal conclusion couched as a factual allegation.” Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 555). In addition to challenging the ade quacy of Crockett’s allegatio ns, Defendants raise two affirmative defenses: (1) that claim and issue preclusion bar all of Crockett’s claims; and (2) that

2 Crockett concedes the Mayor of the District of Columbia shoul d not be a defendant in this action, and he explains that he w as only attempting to serve th e Mayor’s office in compliance with D.C. Rules of Civil Proce dure. Dkt. 15 at 14. The Court will therefore grant Defendants’ motion to dismiss all claims again st the Mayor of the District of Columbia.8 his intentional tort claims are time barred. See Fed. R. Civ. P. 8(c). “[A ]n affirmative defense may be raised by pre-answer moti on under Rule 12(b) when the fa cts that give rise to the defense are clear from the face of the complaint.” Smith-Haynie v. District of Columbia , 155 F.3d 575, 578 (D.C. Cir. 1998). Dismissal is improper, however, “as long as a plaintiff’s potential rejoinder to the affirmative de fense [is not] foreclosed by the allegations in the complaint.” de Csepel v. Republic of Hungary , 714 F.3d 591, 608 (D.C. Cir. 2013) (alte ration in original) (internal quotation marks omitted). Defendants also move for summary judgment, and that motion is g overned by yet a third standard. Summary judgment is av ailable “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48 (1986); Holcomb v. Powell , 433 F.3d 889, 895–96 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the outcome of the litigation. Holcomb , 433 F.3d at 895; Liberty Lobby , 477 U.S. at 248. A dispute is “genuine” if the evidence is such that a reasonable jury cou ld return a verdict for the nonmoving party. See Scott v. Harris , 550 U.S. 372, 380 (2007); Liberty Lobby , 477 U.S. at 248; Holcomb , 433 F.3d at 895. “A party asserti ng that a fact cannot be or is genuinely disputed must support the asserti on by . . . citing to partic ular parts of ma terials in the record . . . .” Fed. R. Civ. P. 56(c)(1)(A). The party seeking summary judgm ent “bears the heavy burden of e stablishing that the merits of his case are so clear t hat expedited action is justif ied.” See Taxpayers Watchdog, Inc. v. Stanley , 819 F.2d 294, 297 (D.C. Cir. 1987). Whe n a motion for summar y judgment is under consideration, “[t]he evidence of the non-movant is to be belie ved, and all justifiable inferences are to be drawn in his favor.” Liberty Lobby , 477 U.S. at 255; see also Mastro v. Potomac Elec.9 Power Co. , 447 F.3d 843, 850 (D.C. Cir. 2006). The non-movant’s opposit ion, however, must consist of more than unsupported a llegations or denials and mus t be supported by affidavits, declarations, or other competent evidence, setting forth specif ic facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986). The non-movant must provide evidence that would permit a reason able jury to find in its favor. See Laningham v. United States Navy , 813 F.2d 1236, 1241 (D.C. Cir. 1987). If its evidence is “merely colorable” or “not signi ficantly probative,” summary ju dgment may be granted. Liberty Lobby , 477 U.S. at 249–50. III. ANALYSIS A. Claim and Issue Preclusion Defendants devote much of their m otion to the contention that C rockett’s entire lawsuit “is barred by . . . res judicata ,” Dkt. 12 at 9, a term that enc ompasses both claim preclusion and issue preclusion, see Taylor v. Sturgell , 553 U.S. 880, 892 (2008). In their view, a court of competent jurisdiction has already issued a final judgment dism issing a claim based on the same “nucleus of facts” and involving the same parties (or their pri vies). That disposition, according to Defendants, precludes Crockett from seeking to relitigate—or to litigate—claims that he raised—or could have raised—in the earlier act ion. As explaine d below, the relevant inquiry is more complex than this and tur ns, instead, on the nature of the Superior Court’s decision and the scope of the IDEA’s exhaustion requirement. Ultimately, claim preclusion is unavailable to the Defendants, and only a limited for m of issue preclusion can be employed. The Court will, accordingly, grant in part and deny in part Defendants’ motion for summary judgment based on res judicata

.10 1. Claim Preclusion “Claim preclusion generally refer s to the effect of a prior jud gment in foreclosing successive litigation of the very same claim, whether or not re litigation of the claim raises the same issues as the earlier suit.” New Hampshire v. Maine , 532 U.S. 742, 748 (2001). In other words, “a final judgment on the merits bars further claims by p arties or their privies based on the same cause of action.” Montana v. United States , 440 U.S. 147, 153 (1979). Claim preclusion serves “to promote the finalit y of judicial determinations, to foster reliance on judicial decisions by minimizing the possibility of i nconsistent decisions, to con serve judicial resources, and to spare adversaries the vexation and expense of redundant litigat ion.” Ramey v. Potomac Elec. Power Co. , 580 F. Supp. 2d 48, 51 (D.D.C. 2008) (citing Montana, 440 U.S. at 153). Whether a new claim is barred as a matter of claim preclusion hinges on afour-part test. A lawsuit is barred if a prior case was litigated “ (1) involving the same claims or cause of action, (2) between the same parties or their privies, a nd (3) there has been a final, valid judgment on the merits, (4) by a court of competent jurisdiction.” Smalls v. United States , 471 F.3d 186, 192 (D.C. Cir. 2006) (citing Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found. , 402 U.S. 313, 323–24 (1971); Comm’r of Internal Revenue v. Sunnen , 333 U.S. 591, 597 (1948)). A discussion of only the third pr ong is necessary for present purposes. Defendants contend that the Supe rior Court’s decision was “a fi nal, valid judgment on the merits” for purposes of claim preclusion because Crockett was a ble to appeal it, and after the dismissal of his appeal as moot , he “never moved to reconsider” the decision of the Superior Court. Dkt. 12 at 14. As Defendant s explain, “[t]raditionally , finality [is] identified for purposes of preclusion in much the same way as it [i]s identified for pu rposes of appeal,” id. (quoting 18A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4432 (2d ed. 2005)),11 and, thus, the fact that the Supe rior Court’s decision was “rip e for appeal” leaves little doubt that the decision was also final f or purposes of claim preclusion, id . Defendants conclude that, given the subsequent dismissal of Cro ckett’s appeal, “there [is] no m aterial dispute of fact regarding whether the Superior Cou rt case . . . was final.” Id

. Defendants’ observation, however, elides the question of what was finally resolved. The answe r to that question is importan t because not all dismissals are “on the mer its” for purposes of claim preclu sion. “It is now settled that a federa l court must give to a state-c ourt judgment the same preclusive effect as would be gi ven that judgment under the lawof the State in which the judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ ., 465 U.S. 75, 81 (1984). To determine whether the dismissa l here was “on the merits,” th e operative provision of state law is Rule 41(b) of the D.C. Rules of Civil Procedure. For presen t purposes, however, D.C. and federal law are in lockstep. See Dorchester House Assocs. Ltd. P’ ship v. D.C. Rental Hous. Comm’n , 913 A.2d 1260, 1265 (D.C. 2006) (because “Rule 41 is ‘substan tially identical’ to the corresponding federal rule [it] i s ‘to be construed in light of the meaning of that federal rule.’”). Both D.C. Rule of Civil Procedur e 41(b) and Federal Rule of Civ il Procedure 41(b) address the types of dismissals that are tr eated as adjudications “on the m erits,” as opposed to those that are “without prejudice” to “refiling of the same claim” in the same court. See Semtek Int’l Inc. v. Lockheed Martin Corp ., 531 U.S. 497, 505–06 (2001). And both rules expressly provi de that a dismissal “for lack of jurisdict ion” does not operate “as an ad judication on the merits.” Fed. R. Civ. P. 41(b); D.C. R. Civ. P. 41(b). As discussed above, the Superior Court dismissed Crockett’s ID EA claim on the ground that Crockett failed to exhaust his administrativ e remedies and that, as a result, the court lacked subject matter jurisdictio n. Dkt. 12-5 at 5–6. This reasoning would seem to require rejection of12 Defendants’ claim preclusion a rgument. Although not raised, th e Court can imagine two possible retorts to t his conclusion, neither of which has merit

. First, one might reasonably questi on whether the Superior Court’s dismissal really was for lack of jurisdiction. As the Supreme Court has stressed inrecent years, “[j]urisdiction . . . is a word of many, too many, meanings.” Arbaugh v. Y & H Corp ., 546 U.S. 500, 510 (2006) (citation and internal quotati on marks omitted). In other cont exts, the Supreme Court and D.C. Circuit have clarified that certa in exhaustion requirements are not jurisdictional in the sense of depriving the court of adjudicative power. See, e.g. , Reed Elsevier, Inc. v. Muchnick , 559 U.S. 154, 166 (2010); NetCoalition v. S.E.C. , 715 F.3d 342, 353 (D.C. Cir. 2013). Neither the Supreme Court nor the D.C. Circu it has resolved whether exhaust ion under the IDEA is jurisdictional in this sense. Compare T.H. v. District of Columbia , --- F. Supp. 3d ---, No. 17-0196, 2017 WL 2533354, at *3 (D.D.C. June 9, 2017) (noti ng that “the D.C. Circuit has not ruled on whether th e IDEA’s exhaustion re quirement is juris dictional”), and id . at *4 (“[T]his Court concludes that [the] IDEA’ s administrative-exhaustion req uirement is not jur isdictional.”), with Douglass v. District of Columbia , 750 F. Supp. 2d 54, 59 (D.D.C. 2010) (“A court has no subject matter jurisdiction over an IDEA claim that has not fir st been pursued through administrative channels.” (quoting Massey v. District of Columbia , 400 F. Supp. 2d 66, 70 (D.D.C. 2005)). Nor must this C ourt do so here. The relevant question is not whether the Superior Court was without power to act, but whether its dismis sal of Crockett’s complaint constituted “an adjudication on the merits” as claim preclusionrequires. The Supreme Court has answered that question in the negative.
In Costello v. United States , 365 U.S. 265 (1961), the Court cons idered whether the prior dismissal of an immigration proc eeding for failure to file the requisite “affidavit of good cause”13 barred a subsequent proceeding whe n the earlier dismissal did n ot specify whether it was with or without prejudice under Rule 41(b). Id . at 284–88. Interpreting the sam e language in the rule at issue here, the Court held that the dismissal was “‘for lack of jurisdiction’ within the meaning of the exception under Rule 41(b).” Id. at 285. The Court wrote: “It is too narrow a reading of the exception to relate the concept of jurisdiction embodied there to the fundamental jurisdictional defects which render a judg ment void . . . , such as lack of jurisdiction over the person or subject matter.” Id. And, of particular relevance, the Court explained that the “f or lack of jurisdiction” provision of Rule 41(b) was cap acious enough to reach “a plaint iff’s failure to comply with a precondition” to bringing suit. Id. That is precisely what happene d here, regardless of whether the failure to exhaust divested the Superior Court of power to adjudicate the case or merely provided a threshold defense to the action. Second, the Court recognizes tha t some have questioned whether the “on the merits” determination under Rule 41(b) is invariably dispositive of an assertion of claim preclusion. For that reason, the drafters of th e Restatement (Second) of Judgme nts declined to use the phrase in the pivotal provision of the Restatement, see Restatement (Second) of Judgments § 19 cmt. a (1980), and the Supreme Court ha s opined that “it is no longer true that a judgment ‘on the merits’ is necessarily a judgment entitled to claim-preclusive effect,” Semtek , 531 U.S. at 503. But both the Restatement and the S upreme Court have left little doubt that a claim that is dismissed for failure to satisf y a precondition to suit, as was Crockett’s claim, is not barred by virtue of the claim preclusion doc trine. The Restatement provi des that “[a] valid and final personal judgment . . . , which res ts on the prematurity of the action or on the plai ntiff’s failure to satisfy a precondition to suit, doe s not bar another action by the plaintiff instituted after the claim has matured, or the precondition has been satisfied.” Restatem ent (Second) of Judgments14 § 20(2); see also id . cmt. k; Murthy v. Vilsack , 609 F.3d 460, 466 (D.C. Cir. 2010) (quoting Restatement (Second) of Judgments § 20(2)). The Supreme Court, moreover, has held that the fact that an earlier claim was subject to dismissal with prejud ice under Rule 41(b) may not be a sufficient condition for a lat er assertion of preclusion, but i t “is undoubtedly a necessary condition.” Semtek , 531 U.S. at 506; cf. Whole Woman’s Health v. Hellerstedt , 136 S. Ct. 2292, 2305 (2016) (approvingly citing § 20 (2) for the proposition tha t the “development of new material facts,” analogous to t he fulfillment of a precondition , “can mean that a new case and an otherwise similar previous cas e do not present the same claim” for the purposes of claim preclusion). The Court, accordingly, conclude s that the Superior Court’s de cision dismissing Crockett’s claim for failure to e xhaust administrative remedies does not support Defendants’ assertion of claim preclusion. 2. Issue Preclusion That, however, does not end the inqu iry about the effect of the Superior Court’s decision. The Court must also consider how the doctrine of issue preclusi on applies in this context. The fact that the Superior Court m erely decided that Crockett had f ailed to satisfy aprecondition to suit does not foreclose applic ation of issue preclusion. To th e contrary, both the Restatement and existing precedent sensibly rec ognize that a plaintiff who has failed to satisfy aprecondition to suit may not return to court without satisfying that preconditi on. In the words of the Restatement, a “plaintiff’s failure to satisfy a precondition t o suit . . . does not bar another action by the plaintiff instituted after . . . the precondition has been satisfied .” Restatement (Second) of Judgments § 20(2) (emphasis adde d). Or, in the words of the Co urt of Appeals for the Seventh Circuit, where a court has dism issed a claim for failure to exh aust, that decision is “preclusive15 with respect to an attempt by [th e same plaintiff] to relitigat e the question whether he had exhausted his administrative remedies.” Hill v. Potter , 352 F.3d 1142, 1147 (7th Cir. 2003); see also Sandy Lake Band of Miss. Chippewa v. United States , 714 F.3d 1098, 1103–04 (8th Cir. 2013); Park Lake Res. Ltd. Liab. Co. v. U.S. Dep’t of Agric. , 378 F.3d 1132, 1136–37 (10th Cir. 2004); D’Amico v. CBS Corp. , 297 F.3d 287, 294 (3d Cir. 2002); Segal v. Am. Tel. & Tel. Co.,
Inc. , 606 F.2d 842, 845 (9th Cir. 1979). Here, Crockett does not contend that he took any steps “betweenthe dismissal of the first suit and the filing of the second” that “satisfied the precondi tion” to bringing suit, and therefore the Superior Court’s decision has “preclusive effect” with resp ect to that issue. In re Sonus Networks, Inc., S’holder Derivative Litig. , 499 F.3d 47, 62 (1st Cir. 2007). The Court must, accordingly, decide the scope of that preclusion. That questio n is less straightforward. “Issue preclusion bars successive litigation of ‘an issue of fa ct or law’ that ‘is actually litigated and determined by a valid and final judgment, and . . . is essential to the judgment.’” Bobby v. Bies , 556 U.S. 825, 834 (2009) (quoting Restatement (Second) of Jud gments § 27). For issue preclusion to apply, “[1] the same issue now being raised must have been contested by the parties and submitted for judici al determination in the prior c ase[; 2] the issue must have been actually and necessarily determi ned by a court of competent jur isdiction in that prior case[; and] [3] preclusion in the second cas e must not work a basic unfairn ess to the party bound by the first determination.” Martin v. Dep’t of Justice , 488 F.3d 446, 454 (D.C. Cir. 2007) (quoting Yamaha Corp. of Am. v. United States , 961 F.2d 245, 254 (D.C. Cir. 1992)). The first of these elements rais es the question whether the pre clusive effect of the Superior Court’s non-exhausti on holding applies to all of the d efendants in this action, or only to those who were also parties to the Superior Court action. Alth ough there was a time when courts16 drew distinctions of this type , “[i]nvocation of the doctrine i s no longer restricted to those who were parties to the first litig ation or their privies, for it h as come to be widely accepted that usually little good and much harm can come from allowing a dete rmined plaintiff to retry the same issues in exhausting fashion against successive defendants .” McLaughlin v. Bradlee , 803 F.2d 1197, 1204–05 (D.C. Cir. 1986). Some exceptions exist to this general rule that issue preclusion may be employed defe nsively by parties that were notinvolved in the initial action,

see , e.g ., Pharm. Care Mgmt. Ass’n v. District of Columbia , 522 F.3d 443, 447 (D.C. Cir. 2008) (declining to apply nonmutual defe nsive issue preclusion when question was one of law rather than a mixed question of law and fact), but none applies here. Thus, all the defendants meet the first element required for issue preclusion. Nor is there any doubt that the s econd and third elements of th e test are satisfied here. With respect to the second ele ment, the Superior Court was unqu estionably a court of “competent jurisdiction,” and i ts finding that Crockett had fai led to exhaust his administrative remedies was determinative. And the third element, which asks whether “preclusion in the second case . . . [will] work a basic unfairness to the party b ound by the first determination,” Yamaha , 961 F.2d at 254, rarely applies wh en “[t]he party to be bound . . . is the plaintiff,” McLaughlin , 803 F.2d at 1202 n.1. Accordingly, all of the defendants are entitled to rely on issue preclusion as to at least Crockett’s IDEA claim, and the Court will therefore grant Defendants summary judgment on Count II. A further question is presente d, however, that could affect the extent to which Crockett is entitled to pursue some or all of his remaining claims. A plai ntiff’s failure to exhaust IDEA remedies will, at times, preclude the plaintiff from pursuing o ther, related claims, including claims brought under the ADA and S ection 504 of the Rehabilitat ion Act. The Supreme Court17 recently addressed this issue in Fry v. Napoleon Community Schools , 137 S. Ct. 743 (2017). As explained in that decision, the “ [Supreme] Court first consider ed the interaction between such laws and the IDEA in Smith v. Robinson , 468 U.S. 992 [(1984)],” which held that the IDEA established a comprehensive sche me that foreclosed related clai ms brought under other laws. Fry , 137 S. Ct. at 750. Congress responded to the Robinson decision by amending the IDEA to add “a carefully defined exhaustion requirement.” Id. That new provision, codified at 20 U.S.C. § 1415(l), provides: Nothing in [the IDEA] shall be c onstrued to restrict or limit the rights, procedures, and remedies available under the Constitution, the [ADA], title V of the Rehabilitation Act [including Section 504], or other Federal laws protecting the rights of children with disabilities, except that before the fi ling of a civil action under such laws seeking relief t hat is also available under [th e IDEA], the [IDEA’s administrative procedures] shall be exhausted to the same exten t as would be required had the action bee n brought under [the IDEA]. Section 1415(l) thus “requires that a plaintiff exhaust the IDE A’s procedures before filing an action under the ADA, the Rehabil itation Act, or similar laws w hen (but only when) her suit seek[s] relief that is also a vailable under the IDEA.” Fry , 137 S. Ct. at 752 (internal quotation marks omitted). This standard poses three quest ions here. First, do all or so me of Crockett’s non-IDEA claims “seek redress for [Defe ndants’] failure to provide [Croc kett with] a FAPE, even if not phrased or framed in precisely that way[?]” Id. at 755. If so, those claims may be foreclosed by the Superior Court’s holding tha t Crockett failed to exhaust un der the IDEA, depending on the resolution of the second question: Does the fact that Crockett is seeking only money damages bring his current claims outsi de the IDEA and the § 1415(l) exh austion requirement? The Supreme Court left this precise issue “for another day,” althou gh it noted that the Solicitor General took the view that e xhaustion is not required under tho se circumstances. Id. at 752 n.4;18 Brief for the United States as Amicus Curiae at 15–25, Fry , 137 S. Ct. 743 (No. 15-497). The view articulated by the Solicitor General, moreover, finds supp ort in the language of the IDEA, which limits the exhaustion requi rement for non-IDEA claims to those that seek “relief that is also available under” the IDE A, 20 U.S.C. § 1415(l), and in cas e law holding that damages are not available under the IDEA, Fitzgerald v. Barnstable Sch. Comm. , 555 U.S. 246, 254 n.1 (2009). And third, does the IDEA foreclose state law claims seeking redress for a school system’s failure to provide a student with a FAPE? See 20 U.S.C. § 1415(l) (“Nothing in [the IDEA] shall be construed to res trict or limit the rights, proce dures, and remedies available under

. . . Federal laws protecting the rights of childre n with disabilities.” (emphasi s added)). Because Fry was decided after the briefing i n this case was complete, and because neither party has addresse d the effect of Fry or the application of § 1415(l) to s tate law claims, the Court will refrain from deciding those issues at this time. Instead, with the exception of dismissing Crockett’s IDEA claim, the Court will deny Defendants’ motion w ithout prejudice. If appropriate, Defendants may ren ew their issue preclusion defens e at a later time.
B. Remaining Defenses 1. Negligence and Neglect of Duty Defendants argue that Counts IX a nd X of the complaint do “noth ing more than recast, in conclusory terms, [Crockett’s] intentional tort[]” and federal statutory causes of action and thus fail to state claims soundi ng in negligence. Dkt. 12 at 19. N othing, however, precludes a plaintiff from pleading in the a lternative, and, viewed in ligh t of the “less stringent standards” applicable to pro se pleadings, Erickson v. Pardus , 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble , 429 U.S. 97, 106 (1976)), Crockett’s complaint adequately all eges that Defendants engaged in negligent conduct. C ount IX, for example, alleges t hat three of t he individual defendants had “a duty to provide accurate records of assignmen ts turned in” that was “breached19 . . . when they did not do so.” Dkt. 1 at 19 (Compl. ¶ 139). Lik ewise, Count X alleges that “DCPS was negl[igent] in its duty to ensure that each teacher a nd provider was informed of his or [her] specific responsibilitie s related to implementing [Cro ckett’s] IEP . . . and the specific accommodations, modifications, and supports that” were required , id. at 20 (Compl. ¶ 150), and that one of the individual defenda nts “neglected her duty as a case manager responsible for informing [Crockett] of missing assignment[s],” id . at 21 (Compl. ¶ 152). It is far from clear that thes e claims pass muster, but, if the y are flawed, it is not for the reason posited in Defendants’ motion. The Court will, accordin gly, deny Defendants’ motion to dismiss Counts IX and X. 2. Intentional Torts Defendants also argue that Crocke tt’s intentional tort claims are barred by the statute of limitations. The section of the D .C. Code that they cite for this proposition, D.C. Code § 12-301, provides that a one-year statute of limitations applies to acti ons “for libel, slander, assault, battery, mayhem, wounding, malic ious prosecution, false arrest or false imprisonment.” Defendants, however, read too much into the provision when theyassert categorically that “the last day to challenge any in tentional act [was] June 14, 2016.” Dkt. 12 at 20. Count V, which asserts a claim for intentiona l infliction of emotional distres s, is subject to a thr ee-year statute of limitations. See Nyambal v. Alliedbarton Sec. Servs., LLC , 153 F. Supp. 3d 309, 314 (D.D.C. 2016). Count VI, which alleges fr aud, is also subject to a thr ee-year statute of limitations. See Drake v. McNair , 993 A.2d 607, 617 (D.C. 2010). Finally, the claim for harass ment asserted in Count VIII is not among the enumerat ed intentional torts in D.C . Code § 12-301, and must therefore be presumed to have athree-year statute of limitatio ns. See D.C. Code § 12-301(8). Defendants’ motion will therefore be denied as to these claims, because Crockett filed the present complaint on June 28, 2016, w ell within three years of the conduct at issue. See Dkt. 1.20 Count VII, which asserts a claim for defamation, is subject to a one-year statute of limitations. See Maupin v. Haylock , 931 A.2d 1039, 1041 (D.C. 2007). It is unclear from the complaint, however, when the alleg edly defamatory assertions we re made. Much of Crockett’s complaint focuses on his inability to participate in the gradua tion ceremony with his class on June 13, 2015. See, e.g. , Dkt. 1 at 11 (Compl. ¶¶ 65–70); id . at 17 (Compl. ¶ 118); id . at 18 (Compl. ¶ 131). He did not bring this suit, however, until Jun e 28, 2016—more than a year after many of the relevant events occurred. But Crockett’s defamatio n claim points to misstatements contained in “his report card” a nd made to the “Office of the S tate Superintendent, to [the] Metropolitan Police, t o attorneys, and to any agency requesting [his] attendance” records. Dkt. 1 at 18 (Compl. ¶ 127). Without knowi ng when these alleged misst atements were made, the Court cannot dismiss Crockett’s defa mation claim on statute of limitation grounds. 3. Claims Against District of Columb ia Public Schools “[S]ubordinate agencies within the District of Columbia governm ent are not subject to suit, unless” such an action is “s pecifically [provided for] bystatute.” Dkt. 12 at 21 (citing Blackmar v. Guerre , 342 U.S. 512 (1952); Cmty. Hous. Tr. v. Dep’t of Consumer & Regulatory Affairs , 257 F. Supp. 2d 208 (D.D.C. 2003)) . Relying on this principl e, Defendants contend that the complaint improperly names DCPS, and they request that the Court dismiss all claims against the school district. The Court ag rees with Defendants about th e ailment, but not the cure. “Where a plaintiff, through unknowi ng mistake, names an imprope r defendant in her complaint, many courts in this district have sua sponte ordered substitution of the proper defendant.” Cooper v. Henderson , 174 F. Supp. 3d 193, 200 (D.D.C. 2016) (citing, among other cases, Henneghan v. District of Columbia Pub. Sch. , 597 F. Supp. 2d 34, 37 (D.D.C. 2008), for the proposition that a court may “ sua sponte order[] substitution of the District of Columbia where [a] pro se plaintiff . . . name[s] DCPS” a s a defendant). Because21 Crockett is proceeding pro se , because designation of the prope r party defendants does not a ffect the substance of his claims, a nd because the District would not be unfairly prejudiced by substitution, the Court concludes substitution is the proper co urse here. The Court will, accordingly, order that the Distr ict of Columbia be substituted for DCPS as a de fendant in this action. CONCLUSION For these reasons, the Court will GRANT in part and DENY in part Defendants’ motion to dismiss, or, alternatively, for summary judgment. Defendant s’ motion to dismiss all claims against the Mayor of the Distr ict of Columbia is hereby GRANTED . It is further ORDERED that the District of Columbia be substituted as a defendant for DCPS. With respect to the remaining defendants, Defendant s’ motion as to Counts I, III, I V, V, VI, VII, VIII, IX, X, and XI is hereby DENIED . Defendants’ motion for summa ry judgment on Count II is hereb y GRANTED

. SO ORDERED

.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: September 25, 2017