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Robinson v. Colorado Department of Education

United States District Court, D. Colorado

November 5, 2018

Samuel Collin Robinson, Plaintiff,
v.
Colorado Department of Education, Exceptional Student Services Unit, Defendant.

          RECOMENDATION REGARDING DEFENDANT'S MOTION TO DISMISS

          GORDON P. GALLAGHER, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Defendant's motion to dismiss (ECF # 8), [1]Plaintiff's pro se[2] response (ECF# 10) and Defendant's reply (ECF #11). The motion has been referred to this Magistrate Judge for recommendation (ECF #9).[3] The Court has reviewed the pending motion, response, reply and all attachments. The Court has also considered the entire case file, the applicable law, and is sufficiently advised in the premises. On October 3, 2018, the Court held a hearing on the matter to determine whether Plaintiff wished to amend his complaint to instead proceed against the Mesa County Valley School District 51 (Dist. 51) (ECF #13). Plaintiff was afforded the opportunity to consult with the pro se law clinic housed at the Arraj Courthouse in Denver. Plaintiff states that he maintains “that the Colorado Department of Education is the proper defendant to name in this case” (ECF #14). This Magistrate Judge respectfully recommends that the motion be GRANTED.

         Factual and Procedural Background

         Plaintiff, the divorced father of a 2nd grade student having trouble with pronunciation of “R”, brings suit (complaint, ECF #1, p. 3). The father did not suspect that that child had a disability and the mother did. Id. The mother consented to an evaluation to determine if the child is disabled and the father did not. Id. The parents share equally in educational decision making of the child. Id. Plaintiff, the father, requested mediation pursuant to 34 C.F.R. §300.506 regarding whether the child should be evaluated. Id. On March 26, 2018, Dist. 51 staff informed Plaintiff that consent of the mother was sufficient for the evaluation to be conducted without mediation. Id. This was by way of an email from the Principal of Nisley Elementary to Plaintiff (ECF #1, pp. 8-9). Plaintiff filed a due process complaint with the Colorado Department of Education Exceptional Services Unit (CDE) opposing the Dist. 51 determination denying mediation. Id. The School District moved to dismiss and the Plaintiff replied. Id. The matter was referred to the Office of Administrative Courts. Id.

         The agency decision, attached to Plaintiff's complaint as exhibit B (ECF #1, pp. 10-13) was issued by Administrative Law Judge (ALJ) Norcross. The agency decision is captioned Robinson v. Mesa County Valley School District No. 51 and addresses that the “District” moved to dismiss Plaintiff's complaint on the basis that the District needed only one parent's consent in a circumstance where there was joint custody. Id. passim. Ultimately, the ALJ upheld the decision of the District on the basis that the District correctly determined that only one parent with the right to consent need consent in order to deprive the non-consenting parent of the opportunity for mediation. Id. The ALJ advised Plaintiff of his right to appeal. Id. at p. 4 (ECF #1, p. 13). Plaintiff now brings suit against the Colorado Department of Education, Exceptional Student Services Unit (ECF #1).

         Defendant's Argument for Dismissal

         Defendant, the CDE, moves to dismiss pursuant to Rules 12(b)(1) (jurisdiction) and 12(b)(6) (failure to state a claim) (ECF #8, p. 3). According to the CDE, it (the CDE) is not the proper Defendant in this action, rather, that should instead be Mesa County/District 51. Id. at pp. 4-5. The CDE argues that: (1) all actions below were undertaken by the District (ECF #8, p. 5); and (2) the CDE's role as the State Education Authority (SEA) is to provide an impartial forum-which does not place the CDE in an adversary role to the Plaintiff, Id.

         Plaintiff's Response Plaintiff responds, arguing that the CDE is the correct Defendant because “the complaint offers an opportunity to correct precedent that is governing decisions in case after case” (ECF #10, p. 1). Essentially, Plaintiff's theory as to why the CDE is the correct Defendant is that: (1) the local school district relied on legal precedent from another CDE decision and not on specific language of the IDEA [Individuals with Disabilities Education Act]; (2) the CDE decision relied on one or more other decisions from other jurisdictions; and (3) the manner of correcting what Plaintiff perceives to be an incorrect reading of the law is to pursue suit against the CDE. Id. passim.[4]

         Standard of Review

         Where, as here, a defendant seeks dismissal under Rule 12(b)(1) and Rule 12(b)(6) in the alternative, “the court must decide first the 12(b)(1) motion for the 12(b)(6) challenge would be moot if the court lacked subject matter jurisdiction.” Mounkes v. Conklin, 922 F.Supp. 1501, 1506 (D. Kan. 1996) (citing Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990)).

         Rule 12(b)(1)

         Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of subject matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Pueblo of Jemez v. United States, 790 F.3d 1143, 1151 (10th Cir. 2015) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Id. (citing Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013)). A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of fact in the complaint, without regard to mere [conclusory] allegations of jurisdiction.” Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Pueblo of Jemez, 790 F.3d at 1151. Generally, a court does not have jurisdiction over a party not named as a respondent in an administrative action. See Rubidoux v. Johnston, 954 F.Supp. 1477, 1480 (D. Colo. 1997) (dismissing a party not named in an EEOC matter as a respondent for lack of subject matter jurisdiction).

         Rule 12(b)(6)

         The Court may dismiss a complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Dismissal under Rule 12(b)(6) may also be based on the lack of a cognizable legal theory. See Golan v. Ashcroft, 310 F.Supp.2d 1215, 1217 (D. Colo. 2004). To withstand a Rule 12(b)(6) motion to dismiss, a complaint must contain enough allegations of fact, which, taken as true, “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012). Although allegations of fact are accepted as true, legal conclusions are not. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Mere “labels and conclusions” and “a formulaic recitation of the elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. Accordingly, the Court disregards conclusory statements and looks only to whether the remaining factual allegations plausibly suggest the defendant is liable. Khalik, 671 F.3d at 1190-91. “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts ...


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