UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

EBONY HOLMES-RAMSEY, as mother and next friend of A.B., a minor child,

Plaintiff,

v. Civil Action No. 10–1283 (CKK) DISTRICT OF COLUMBIA, et al.,

Defendants.

MEMORANDUM OPINION (November 2, 2010)

Plaintiff Ebony Holmes-Ramsey (“Plaintiff”) brings this action behalf of her minor

daughter, A.B., pursuant to the Individuals with Disabilities Education Act (“IDEA”),

et seq.,1 Section 504 of the Rehabilitation Act of 1973 (“Section 504”),

,

the McKinney-Vento Homelessness Assistance Act (“McKinney Act”),

et

seq., and

(“Section 1983”). Compl. at 2, Docket No. [1]. Plaintiff names as

Defendants to this action the District of Columbia, District of Columbia Mayor Adrian Fenty in

his official capacity, and District of Columbia Chancellor of Public Schools Michelle Rhee2 in

her official capacity (collectively “Defendants”). This case comes to the Court on appeal from a

1 The IDEA was reauthorized and recodified pursuant to the Individuals with Disabilities Education Improvement Act in 2004,

Stat. 2647 (2004). The amendments provide that the short title of the reauthorized and amended provisions remains the Individuals with Disabilities Education Act. See Pub. L. No 108-446, § 101; 118 Stat. at 2647;

(2006) (“This chapter may be cited as the ‘Individuals with Disabilities Education Act’”). Accordingly, the Court refers to the amended Act herein as the IDEA. 2 Michelle Rhee has been replaced by Interim Chancellor Kaya Henderson. Pursuant to Federal Rule of Civil Procedure 25(d), Henderson shall be substituted as defendant. May 1, 2010 Hearing Officer Determination (“HOD”) regarding Plaintiff’s due process

complaint against the District of Columbia Public Schools (“DCPS”). Compl. Facts ¶¶ 20, 49.3

Currently before the Court is Defendants’ [6] Motion for Partial Dismissal of Complaint,

in which Defendants argue that the Complaint fails to state a claim under Section 504 and

Section 1983 and fails to state a claim against Mayor Fenty and Interim Chancellor Henderson.

After reviewing the Complaint, the parties’ filings regarding the pending motion, as well as the

relevant statutes, regulations, and case law, the Court shall GRANT-IN-PART and DENY-IN-

PART Defendants’ Motion for Partial Dismissal of Complaint. Specifically, the Court shall

GRANT Defendants’ motion to dismiss Plaintiff’s Section 504 claim and Defendants’ motion to

dismiss Mayor Fenty and Interim Chancellor Henderson as defendants. In regard to Plaintiff’s

Section 1983 claim, the Court shall GRANT Defendants’ motion to dismiss insofar as the claim

alleges that the hearing officer erred in concluding that he did not have jurisdiction over

Plaintiff’s McKinney Act claim. The Court shall DENY, however, Defendants’ motion to

dismiss Plaintiff’s Section 1983 claim insofar as the Complaint states a McKinney Act violation

independent of the hearing officer’s jurisdictional decision.

I. BACKGROUND

A. The IDEA Statutory and Regulatory Framework

Although Plaintiff asserts claims under multiple statutes, the IDEA is of particular

importance in this case. The purpose of the IDEA is “to ensure that all children with disabilities

have available to them a free appropriate public education [“FAPE”] that emphasizes special

3 In setting forth the Complaint’s allegations, Plaintiff has numbered each paragraph that begins a new section of the Complaint––e.g., “Facts”––starting at 1, such that the Complaint contains several paragraphs that are numbered “1.” To avoid confusion, the Court shall refer to paragraphs in regard to both their number and Complaint section. 2 education and related services designed to meet their unique needs . . . . ”

(d)(1)(A). “Implicit” in the IDEA’s guarantee “is the requirement that the education to

which access is provided be sufficient to confer some educational benefit upon the handicapped

child.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley,

(1982).

As a condition of receiving funding under the IDEA, school districts are required to adopt

procedures to ensure appropriate educational placement of disabled students. See

. A student’s eligibility for a FAPE is determined by the results of testing and evaluating

the student, and the findings of a “multidisciplinary team” or “individualized education program”

(“IEP”) team.

§ 1414. An IEP team consists of the parents and teachers of the disabled

student, as well as other educational specialists, who meet and confer in a collaborative process

to determine how best to accommodate the needs of the student and provide a FAPE. See id. §

1414(d)(1)(B).

An IEP is created to meet the special educational needs of each disabled student. See id.

§ 1414(d)(2)(A). The IEP must be formulated in accordance with the terms of the IDEA and

“should be reasonably calculated to enable the child to achieve passing marks and advance from

grade to grade.” Rowley,

. The IDEA requires IEPs to include statements of

present functional performance, measurable annual goals, how the goals will be measured, and

“the special education and related services and supplementary aids and services . . . to be

provided to the child, or on behalf of the child, and a statement of the program modifications or

supports for school personnel that will be provided for the child.”

(d)(1)(A)(I).

“If no suitable public school is available, the school system must pay the costs of sending the

child to an appropriate private school.” Reid v. District of Columbia,

(D.C.

3 Cir. 2005) (citation and alterations omitted).

The IDEA guarantees parents of disabled children the opportunity to participate in the

evaluation and placement process. See

(f), 1415(b)(1). Parents who object to

their child’s “identification, evaluation, or educational placement” are entitled to an impartial due

process hearing, see

§§ 1415(b)(6), (f)(1), at which they have a “right to be accompanied and

advised by counsel” and a “right to present evidence and confront, cross-examine, and compel

the attendance of witnesses,” id. § 1415(h). In the District of Columbia, a qualified impartial

hearing officer conducts the due process hearing in accordance with the Act. D.C. Mun. Regs.

tit. 5-E, § 3030.

B. Factual and Procedural Background 4

As of the filing of the Complaint, A.B., a four-year-old, had been diagnosed with, inter

alia, Attention Deficit Disorder Hyperactivity Disorder, Borderline Intellectual Functioning, and

Receptive/Expressive Language Disorder. Compl. Facts ¶ 1. Plaintiff alleges that DCPS

violated its obligation under the IDEA to “locate, identify, evaluate and develop an IEP for all

students eligible for special education by their third birthday” because DCPS failed to screen

A.B. for special education services until nearly one year after A.B.’s third birthday. Id. ¶ 4; see

also id. ¶¶ 3, 7. Consequently, A.B. attended Edward C. Mazique Parent and Child Center, a

facility that did not provide special education services, during the 2008-2009 school year. Id. ¶ 5.

A.B. was first evaluated by DCPS on September 21, 2009. Id. ¶ 8. As a result of this

evaluation, DCPS found that A.B. was not eligible for speech and language services. See id.

Subsequently, on October 7, 2009, DCPS convened an IEP meeting for A.B. and drafted an IEP

4 The facts set forth below are those most relevant to the pending motion to dismiss. 4 that specified A.B. was to receive ten hours of special education per week at Raymond

Elementary School, A.B.’s neighborhood school at that time. See id. ¶¶ 10-11. At the IEP

meeting, Plaintiff expressed concerns with A.B.’s placement in Raymond Elementary. Id. ¶ 11.

Specifically, Plaintiff informed DCPS that she and A.B. were currently living in transitional

housing, that they would have to vacate this housing near the middle of the school year, and that

Plaintiff was concerned that after they moved, A.B. would have endure the disruption of being

transferred to a different school in the middle of the school year. Id. ¶¶ 11-12. In response to

these concerns, Plaintiff alleges that “DCPS did not offer to provide [Plaintiff] with

transportation, or a different placement, nor did DCPS offer [Plaintiff] any of the services

[Plaintiff] was entitled to under the McKinney-Vento Act. DCPS only told [Plaintiff] to contact

DCPS if [Plaintiff] moved.” Id. ¶ 12.

To avoid transferring A.B. from Raymond Elementary in the middle of the 2009-2010

school year, Plaintiff decided to keep A.B. enrolled at Edward C. Mazique Parent and Child

Center for another year. Id. ¶ 15. Thus, similar to the year before, A.B. did not receive special

education services during the 2009-2010 school year. Id.

On March 19, 2010, Plaintiff filed a due process complaint, alleging that DCPS (1) failed

to timely identify, evaluate, and locate A.B.; (2) failed to identify all of A.B.’s disabilities; (3)

failed to develop an appropriate IEP for A.B. for the 2009-2010 school year; and (4) failed to

provide A.B. proper placement for the 2009-2010 school year, including failing to meet its

obligations under the McKinney Act. Id. ¶ 20. With respect to relief, Plaintiff requested that the

hearing officer find that DCPS denied A.B. a FAPE and order DCPS to provide compensatory

education, as well as place and fund A.B.’s placement at a full-time non-public therapeutic

5 special education program. Id.

Before the due process hearing began on April 21, 2010, the hearing officer requested

briefing as to whether he had jurisdiction over Plaintiff’s McKinney Act claim. Id. ¶¶ 21-22. At

the due process hearing, DCPS stipulated that it violated the IDEA by failing to locate, identify,

and evaluate A.B. by her third birthday, as well as by failing to develop an IEP for A.B. until

fourteen months after her third birthday. See id. ¶ 50. On May 1, 2010, the hearing officer

issued the HOD, in which he found that DCPS’ delay in developing an IEP for A.B. denied her a

FAPE. See id. ¶¶ 49-50. For relief, the HOD ordered that DCPS fund pre-academic tutoring for

A.B., as well as A.B.’s attendance at a therapeutic summer camp. See id. ¶¶ 49-50. The HOD

denied, however, Plaintiff’s remaining allegations, finding that the hearing officer did not have

jurisdiction over Plaintiff’s McKinney Act claim and that Plaintiff had not met her burden of

proof on the remaining IDEA claims. See id. ¶¶ 50-51.

On July 30, 2010, Plaintiff filed the Complaint in this case. Count I of the Complaint

alleges that “Section 504 requires substantial procedural compliance with all procedural and

substantive rights under the [IDEA],” id. ¶ 75, and that Defendants violated IDEA and Section

504 by failing to provide A.B. with a FAPE, failing to “evaluate A.B. in all areas of her

disability, and failing to provide an appropriate IEP and educational placement to A.B.,” id. ¶ 76;

see also id. ¶ 77. Count II alleges that “[b]y failing to award appropriate relief, and by failing to

rule on DCPS’ violation of the [McKinney Act], Plaintiffs have been denied federal statutory

rights under color of law in violation of

.”

.

Instead of filing an answer, Defendants filed a [6] Motion for Partial Dismissal of

Complaint (“Defs.’ Mot.”) on August 19, 2010. Plaintiff then filed her [7] Opposition to

6 Defendants’ Motion for Partial Dismissal of Complaint (“Pl.’s Opp’n”) on September 2, 2010.5

The time for Defendants to file a reply has long since expired, see LCvR 7(d) (providing that the

moving party may file a reply within seven days of service of the memorandum in opposition),

and therefore the matter is now ripe for the Court’s review and resolution.

II. LEGAL STANDARD

Under the Federal Rules of Civil Procedure, a complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. (8)(a), “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,

(2007) (quoting Conley v. Gibson,

(1957)). Although “detailed factual allegations” are not necessary to withstand a

Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must furnish “more than

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

“Nor

does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Ashcroft v. Iqbal,

(2009) (quoting Twombly,

). Rather, a complaint must contain sufficient factual allegations that if accepted as true,

“state a claim to relief that is plausible on its face.” Twombly,

. “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

(citing Twombly,

).

5 Plaintiff attached an October 1, 2009 DCPS press release as an exhibit to her Opposition. See Pl.’s Opp’n, Ex. A. The Court may not consider materials outside the pleadings in a motion to dismiss without converting it to a motion for summary judgment. See Fed. R. Civ. 12(d). The Court declines to do so here and therefore excludes the exhibit and does not consider it. 7 When considering a 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.,

(D.D.C. 1994); see also Schuler v.

United States,

(D.C. Cir. 1979) (“The complaint must be liberally construed in

favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from

the facts alleged”) (internal quotation omitted). However, a plaintiff must provide more than just

“a sheer possibility that a defendant has acted unlawfully.” Iqbal,

. When a

complaint’s well-pleaded facts do not enable a court, “draw[ing] 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.

III. DISCUSSION

A. Plaintiff Fails to State a Claim Pursuant to Section 504

Section 504 provides, in pertinent part, that “no otherwise qualified individual with a

disability in the United States . . . 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 . . . .”

(a). To state a

claim under Section 504, a plaintiff must at least demonstrate “that he or she was discriminated

against ‘solely by reason of his or her handicap.’” Walker v. District of Columbia,

(D.D.C. 2001) (quoting

(a)). In IDEA cases, however, the D.C. Circuit

has noted that “‘in order to show a violation of [Section 504], something more than a mere

failure to provide the [FAPE] required by the [IDEA] must be shown.’” Lunceford v. Dist. of

8 Columbia Bd. of Educ.,

, 1580 (D.C. Cir. 1984) (quoting Monahan v. Nebraska,

, 1170 (8th Cir. 1982)). Accordingly, plaintiffs must show that defendants acted in

bad faith or with gross misjudgment to assert a Section 504 claim in an IDEA case. E.g.,

Henneghan v. Dist. of Columbia Pub. Schs.,

(D.D.C. 2009); R.S. v.

District of Columbia,

(D.D.C. 2003).

In this case, Defendants argue that Plaintiff has failed to state a Section 504 claim

because the Complaint does not allege that A.B. was discriminated against solely because of her

disability or that Defendants exhibited bad faith or gross misjudgment in doing so. Defs.’ Mot.

at 6-7. In response, Plaintiff argues that (1) the Complaint alleges sufficient facts for the Court to

infer that A.B. was treated differently because of her disability; (2) because this is not a case for

damages, Plaintiff does not need to allege bad faith or gross misjudgment; (3) even if Plaintiff

does have to allege bad faith or gross misjudgment, the Complaint contains sufficient allegations

of such; and (4) Defendants have already been found to be acting in bad faith or with gross

misjudgment in the pending class action suit before Chief Judge Royce C. Lamberth, DL v.

District of Columbia, No. 05-CV-1437. See Pl.’s Opp’n at 15-17. In this case, the Court agrees

with Defendants that the Complaint does not allege that they acted in bad faith or with gross

misjudgment. Therefore, the Court shall grant Defendants’ motion to dismiss Plaintiff’s Section

504 claim.

As a threshold matter, the Court rejects Plaintiff’s argument that she does not need to

allege facts to support that Defendants acted in bad faith or with gross misjudgment because she

is not seeking damages. See Pl.’s Opp’n at 15-16. Plaintiff’s obligation to allege a factual

predicate to support an allegation of bad faith or gross misconduct is not dependent on the type of

9 relief sought, but on the fact that her Section 504 claim is asserted in the context of an IDEA

case. See, e.g., Lunceford, 745 F.2d at 1580 (holding that “in order to show a violation of

[Section 504], something more than a mere failure to provide the [FAPE] required by the [IDEA]

must be shown’”) (quoting Monahan, 687 F.2d at 1170) (emphasis added); see also Monahan,

687 F.2d at 1171 (“So long as the state officials involved have exercised professional judgment,

in such a way as not to depart grossly from accepted standards among educational professionals,

we cannot believe that Congress intended to create liability under [Section] 504.”). Thus, the

Court concludes that Plaintiff must allege a factual predicate to support an allegation that

Defendants acted in bad faith or with gross misjudgment in order to assert a Section 504 claim.

Anticipating this conclusion, Plaintiff relies on several of the Complaint’s allegations to

argue that the Complaint in fact alleges gross misjudgment. See Pl.’s Opp’n at 17.6 For

example, Plaintiff cites to allegations that A.B. was screened almost a year later than required

under the IDEA, Compl. Facts ¶ 7, and that Defendants did not provide A.B. with the speech and

language services she needed, id. ¶¶ 5, 8. These allegations, though serious, amount to garden

variety IDEA violations, and the Complaint contains no indication that these alleged violations

occurred due to gross misjudgment. See R.S.,

(dismissing a Section 504

claim when “nothing in the complaint suggests an allegation of bad faith or gross misjudgment”);

cf. Henneghan,

(denying defendants’ motion to dismiss a Section 504

claim because the complaint “expressly allege[d] ‘gross negligence’ . . . and the nature of the

facts alleged yield a reasonable inference of bad faith and gross misjudgment . . . .”). Moreover,

as Plaintiff does not claim that Defendants instituted a policy that systematically excluded A.B.

6 The Court notes that Plaintiff does not contend that she has alleged facts from which bad faith on the part of Defendants may be inferred. See Pl.’s Opp’n at 17. 10 from receiving a FAPE, the Complaint’s allegations do not warrant the inference that Plaintiff

alleged gross misjudgment. See Douglass v. District of Columbia,

(D.D.C. 2009) (holding that plaintiff alleged sufficient facts to infer a claim of gross

misjudgment when the complaint alleged that DCPS “provided only regular education student

[with] the opportunity to earn [credits toward graduation] and work towards a regular high school

diploma, but did not provide the same opportunity to special education students”) (internal

quotation marks omitted and first alteration in the original). Although the Complaint’s

allegations may be sufficient to allege that Defendants failed to provide A.B. a FAPE, to assert a

Section 504 claim “something more than a mere failure to provide [a FAPE] must be shown.”

Lunceford, 745 F.2d at 1580 (quoting Monahan, 687 F.2d at 1170). Finally, the fact that some

Defendants were found in a different case to have acted in bad faith or gross misjudgment, does

not change the fact that the Complaint in this case fails to allege bad faith or gross misjudgment.

Therefore, despite Rule 12(b)(6)’s low threshold, the Court concludes that the Complaint

does not allege sufficient facts that, if accepted as true, state a claim under Section 504 in the

context of an IDEA case. Accordingly, the Court shall grant Defendants’ motion to dismiss

Plaintiff’s Section 504 claim.

B. Plaintiff’s Section 1983 Claim

In Count II, Plaintiff alleges that “by failing to award appropriate relief, and by failing to

rule on DCPS’ violation of the [McKinney Act], Plaintiffs have been denied federal statutory

rights under color of law in violation of

.” Compl. Facts ¶ 79. The McKinney

Act provides, in pertinent part:

Each State educational agency shall ensure that each child of a homeless individual and each homeless youth has equal access to the same free, approriate public

11 education [FAPE], including a public preschool education, as provided to other children and youths.

(1). Those seeking to enforce their rights under the McKinney Act must do so

by invoking Section 1983.7 Lampkin v. District of Columbia,

(D.C. Cir. 1994).

Defendants have moved to dismiss Count II, arguing that hearing officer correctly

concluded that he did not have jurisdiction over Plaintiff’s McKinney Act claim because the

McKinney Act is enforceable only in federal court. Defs.’ Mot. at 7 (citing Lampkin,

). In response, Plaintiff argues that she has stated a Section 1983 claim based on a violation

of the McKinney Act, for two reasons. First, Plaintiff insists that the hearing officer had

jurisdiction over her claim that DCPS violated the McKinney Act, such that his decision not to

exercise jurisdiction over this claim deprived A.B. of her rights under the McKinney Act. See

Pl.’s Opp’n at 18-19. Alternatively, Plaintiff argues that, even if the hearing officer did not have

jurisdiction to entertain her McKinney Act claim, this Court has jurisdiction over her Section

1983 claim that Defendants violated A.B.’s McKinney Act rights. Id. at 18. The Court shall

address each argument in turn.

1. Plaintiff Has Failed to State a McKinney Act Violation Based on the Hearing Officer’s Jurisdictional Decision

Plaintiff contends that she has stated a claim under Section 1983 because the hearing

officer erroneously declined to exercise jurisdiction over her McKinney Act claim. The parties’

briefing focuses solely on this issue. See Defs.’ Mot. at 7-8; Pl.’s Opp’n at 17-21. Defendants do

7 Section 1983 provides, in pertinent part, that: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .”

. 12 not question whether a hearing officer’s legal ruling can form the basis of a Section 1983 claim

or whether Plaintiff can assert such a claim when the hearing officer is not named as a party

defendant, and therefore the Court does not address these issues. Rather, the Court shall restrict

its analysis to the issue of whether the hearing officer erred in declining to exercise jurisdiction

over Plaintiff’s McKinney Act claim.

Neither party has cited any case law that explicitly addresses whether a hearing officer

has jurisdiction over McKinney Act claims. Nevertheless, Plaintiff insists that the IDEA and the

McKinney Act’s similar purposes demonstrate Congress’ intent that the two statutory schemes

work together to provide FAPE to homeless children. See Pl.’s Opp’n at 18-19. From this

conclusion, Plaintiff asserts that the hearing officer must have had jurisdiction over her

McKinney Act claim, just as he did over her IDEA claims, to ensure the delivery of A.B.’s

FAPE. See

. Defendants, relying on the D.C. Circuit’s decision in Lampkin v. District of

Columbia,

(D.C. Cir. 1994), argue that the hearing officer did not have jurisdiction

over Plaintiff’s McKinney Act claim because the McKinney Act is only enforceable through a

Section 1983 claim asserted in a federal court. See Defs.’ Mot. at 7-8. The Court agrees with

Defendants and shall grant their motion to dismiss Plaintiff’s Section 1983 claim based on the

hearing officer’s jurisdictional decision.

In Lampkin, the D.C. Circuit held that the McKinney Act “confers enforceable rights on

its beneficiaries” that may be enforced under Section 1983.

. In reaching this

conclusion, the D.C. Circuit noted that “the McKinney Act contains no statutory mechanisms for

the administrative enforcement of the beneficiaries’ rights . . . .”

(emphasis added). As

the McKinney Act is not enforceable at the administrative level, the Court holds that, regardless

13 of whether the IDEA and McKinney Act have similar purposes, the hearing officer did not err in

concluding that he lacked jurisdiction over Plaintiff’s McKinney Act claim. Accordingly, the

Court concludes that Plaintiff has failed to state a Section 1983 claim with respect to the hearing

officer’s jurisdictional decision.

2. The Court Cannot Conclude that Plaintiff Has Failed to State a Section 1983 Claim for a McKinney Act Violation Independent of the Hearing Officer’s Jurisdictional Decision

Plaintiff also claims that her Complaint contains sufficient factual allegations to state a

McKinney Act violation independent of the hearing officer’s jurisdictional decision. Pl.’s Opp’n

at 18, 21. Defendants do not rebut this argument, as they neglected to file a reply and their

motion to dismiss focuses exclusively on how McKinney Act violations are only enforceable in

federal court. See Defs.’ Mot. at 7-8. Without an argument to the contrary, the Court cannot

conclude that the Complaint does not contain sufficient factual allegations to state a McKinney

Act violation independent of the hearing officer’s decision.

It is true that the Complaint repeatedly alleges that the hearing officer erred in declining

jurisdiction. See, e.g., Compl. Facts ¶ 67 (“The [hearing officer] erred by finding [he] did not

have jurisdiction to rule as to whether or not DCPS violated the [McKinney Act]”); id. ¶ 79

(Count II: “By failing to award appropriate relief, and by failing to rule on DCPS’ violation of the

[McKinney Act], Plaintiffs have been denied federal statutory rights under color of law in

violation of

.”). However, the Complaint also alleges that: (1) Plaintiff and

A.B. met the McKinney Act’s definition of homelessness and lived in transitional housing during

“all times relevant to this action prior to February 2010,”

Parties ¶ 4; (2) Plaintiff informed

DCPS that she and A.B. lived in transitional housing,

Facts ¶ 11; and (3) “DCPS did not offer

14 to provide [Plaintiff] with transportation, or a different placement, nor did DCPS offer [Plaintiff]

any of the services [Plaintiff] was entitled to under the McKinney-Vento Act,”

.

Construing these allegations in the light most favorable to Plaintiff, the Court finds that Plaintiff

may have asserted a McKinney Act violation arising out of Defendants’ decision not to offer

A.B. transportation or a different placement. Although it is somewhat unclear as to whether

Plaintiff has met her burden of pleading to establish municipal liability against the District of

Columbia under Section 1983, the Court declines to make a ruling on this issue because

Defendants have not briefed it.

Therefore, the Court shall grant Defendants’ motion to dismiss Plaintiff’s Section 1983

claim insofar as the claim is based on the hearing officer’s refusal to exercise jurisdiction over

Plaintiff’s McKinney Act claim. However, the Court shall deny Defendants’ motion to dismiss

Plaintiff’s Section 1983 claim to the extent the Complaint states a McKinney Act violation

independent of the hearing officer’s jurisdictional decision.

C. The Court Shall Dismiss Mayor Fenty and Interim Chancellor Henderson as Defendants

Finally, Defendants have moved to dismiss Mayor Fenty and Interim Chancellor

Henderson (collectively “the Officials”) as defendants. Defendants contend that because the

Officials were sued in their official capacities, Plaintiff’s suit is effectively against the District of

Columbia and the Officials’ inclusion is “redundant and an inefficient use of judicial resources.”

See Defs.’ Mot. at 5 (quoting Robinson v. District of Columbia,

(D.D.C.

2005)). Defendants also contend that Plaintiff’s failure to mention the Officials in the

Complaint, other than listing them in the Complaint’s caption, further supports dismissing the

Officials as defendants. See

Plaintiff opposes dismissing the Officials and counters that: (1)

15 the cases relied upon by Defendants are distinguishable; (2) other courts have allowed

individuals named in their official capacities to be named defendants; (3) the Officials created

and supervised DCPS, the agency responsible for the alleged denial of A.B.’s FAPE; and (4) the

Officials had notice of DCPS’ alleged failures due to the pending class action before Chief Judge

Lamberth. See Pl.’s Opp’n at 10-13. For the reasons set forth below, the Court shall grant

Defendants’ motion to dismiss the Officials as defendants.

Plaintiff’s claims against the Officials in their official capacities are effectively claims

against the District of Columbia. See Kentucky v. Graham,

(1985)

(“Official capacity suits . . . ‘generally represent only another way of pleading an action against

an entity of which the an officer is an agent.’” (quoting Monell v. Dep’t of Soc. Servs.,

, 690 n.55 (1978))). “[C]ourts have routinely dismissed claims against individuals named in

their official capacity as ‘redundant and an inefficient use of judicial resources.’” Robinson,

(quoting Cooke-Seals v. District of Columbia,

(D.D.C.

1997)); see also Price v. District of Columbia,

(D.D.C. 2008)

(“[W]hile neither the Supreme Court nor the District of Columbia Circuit have held that a

municipal defendant sued in his or her official capacity in conjunction with the District of

Columbia must be dismissed, summary dismissal is the norm in this jurisdiction . . . .”)

(collecting cases).

The Court finds no reason to deviate from this general principle in this case.

Significantly, the Complaint’s omission of any factual allegations regarding the Officials

indicates that the Officials were named as defendants simply as another means of asserting

claims against the District of Columbia. Plaintiff’s perfunctory inclusion of the Officials as

defendants is therefore “redundant and an inefficient use of judicial resources.” Robinson,

Supp. 2d at 49 (quoting Cooke-Seals,

).

Plaintiff’s arguments against dismissing the Officials are unpersuasive. First, although

Plaintiff is correct that the cases cited in Defendants’ motion to dismiss are not IDEA cases,

Plaintiff fails to explain how this is a meaningful distinction that requires this Court to find that

the Officials’ inclusion is not redundant and unnecessary. See Pl.’s Opp’n at 10; cf. Robinson,

(noting that courts in this Circuit have applied this general principle in

cases involving various claims, including Section 1983 and tort claims). In fact, other courts

have found official capacity defendants redundant and unnecessary in cases involving IDEA

claims. See, e.g., Va. Office of Prot. & Advocacy v. Va. Dep’t of Educ.,

(E.D. Va. 2003); McCachren v. Blacklick Valley Sch. Dist.,

(W.D. Pa.

2002). Second, most of the cases cited by Plaintiff are inapposite to the issue currently under

consideration because these cases do not discuss whether including the official as a defendant

was appropriate. See Pl.’s Opp’n at 11; see, e.g., Walker,

n.1 (noting that

plaintiffs also named the DCPS’s superintendent in his official capacity, but not analyzing

whether the superintendent was appropriately named as a defendant). Third, Plaintiff’s

allegations relating to the Officials’ involvement with DCPS are made for the first time in her

opposition brief. However, “[i]t is axiomatic that a complaint may not be amended by the briefs

in opposition to a motion to dismiss.” Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal

Serv.,

(D.D.C. 2003) (citation omitted). Moreover, these allegations

pertain specifically to Mayor Fenty and former Chancellor Rhee and are therefore inappropriate

in an official-capacity action.

Finally, the Court disagrees with Plaintiff that Chief Judge Lamberth’s opinion in DL v.

District of Columbia,

(D.D.C. 2006), requires the Court to deny Defendants’

17 motion to dismiss. Although Chief Judge Lamberth did state that “government officials . . . are

not shielded from suit simply because the District of Columbia is also named,” he relied on Best

v. District of Columbia,

(D.D.C. 1990), in reaching this conclusion. See DL,

. In Best, plaintiffs asserted claims against the District of Columbia and two of

its employees pursuant to Section 1983 and the common law for violating plaintiffs’ privacy

rights by videotaping them without their consent. See Best,

. The portion

of Best that Chief Judge Lamberth cites to in DL discusses the Best court’s denial of the

defendant-employees’ qualified immunity defense. See

. In essence, then, Best was an

individual-capacity action, whereas here, Plaintiff has not alleged that the Officials themselves

violated Plaintiff or A.B.’s rights, and the Complaint only mentions the Officials in its caption.

See generally Compl. Therefore, the Court finds Best, and consequently DL, distinguishable

from the case at bar.

In conclusion, the Court finds Plaintiff’s perfunctory inclusion of the Officials “redundant

and an inefficient use of judicial resources.” Robinson,

(quoting Cooke-

Seals,

). The Court shall therefore grant Defendants’ motion to dismiss the

Officials as defendants.

IV. CONCLUSION

For the reasons set forth above, the Court shall GRANT-IN-PART and DENY-IN-PART

Defendants’ [6] Motion for Partial Dismissal of Complaint. The Court shall GRANT

Defendants’ motion to dismiss Plaintiff’s Section 504 claim, as well as Defendants’ motion to

dismiss Mayor Fenty and Interim Chancellor Henderson as defendants in this action. In regard to

Plaintiff’s Section 1983 claim, the Court shall GRANT Defendants’ motion to dismiss insofar as

the claim alleges that the hearing officer erred in concluding that he did not have jurisdiction

18 over McKinney Act violations. The Court shall DENY, however, Defendants’ motion to dismiss

Plaintiff’s Section 1983 claim to the extent the Complaint states a McKinney Act violation

independent of the hearing officer’s jurisdictional decision. An appropriate Order accompanies

this Memorandum Opinion.

Date: November 2, 2010.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

19