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Loper v. Cleveland Metropolitan School District

United States District Court, N.D. Ohio, Eastern Division

February 6, 2017

LATASHA LOPER, Plaintiff,
v.
CLEVELAND METROPOLITAN SCHOOL DISTRICT, Defendant.

          CHRISTOPHER A. BOYKO JUDGE

          REPORT & RECOMMENDATION

          Thomas M. Parker United States Magistrate Judge

         I. Introduction

         Latasha Loper's minor son, C.D. is a student in the Cleveland Metropolitan School District. After an incident for which the police were called to the school on October 22, 2015, C.D. was suspended. Ms. Loper disagreed with the decision to suspend her son and requested an administrative review. After the initial review, some of Ms. Loper's concerns were found valid and a remedy was prescribed by an administrative hearing officer. Among other things, C.D. was to undergo a Functional Behavioral Analysis (FBA), which would determine whether he had any behavioral disabilities. If any were found, then a Behavioral Intervention Plan (BIP) would be created. But Ms. Loper didn't want that part of the remedy; she is convinced her son has no behavioral component among his limitations, but only intellectual ones. By agreement with school officials, that portion of the remedy was abandoned. What Ms. Loper really wanted was the removal of the suspensions from her son's school records. After further administrative review, a state review officer denied Ms. Loper's request to remove the suspensions. Ms. Loper brought this pro se case to challenge that decision.

         Judge Christopher Boyko, to whom this case is assigned, referred the case to the undersigned for general pretrial management. The undersigned must review any case-dispositive motions and issue a report and recommendation to Judge Boyko on each. The undersigned appointed pro-bono counsel to represent Ms. Loper in this action.

         Defendant Cleveland Metropolitan School District has moved to dismiss the case under Fed.R.Civ.P. 12(b)(6) because it was filed beyond the 90 deadline allowed by law after the administrative decision was issued. Plaintiff filed a response and supplemental response in opposition. The undersigned recommends that the motion to dismiss be GRANTED and the action be DISMISSED.

         II. Standard of Review

         Fed. R. Civ. P. 12(b)(6) provides, in part, that “a party may assert the following defenses by motion: * * * (6) failure to state a claim upon which relief can be granted.” Although a complaint attacked by a Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations, Bell Atlantic Corp. v. Twombly, 550 U.S.544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (C.A.7 1994), a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Twombly, 550 U.S. at 555; See also Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”).

         The Supreme Court further explained the pleading requirements in Ashcroft v. Iqbal, 566 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

[T]he pleading standard Rule 8 announces does not require “detailed factual allegations, ” but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when the plaintiff alleges factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement” but it asks more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'

         (internal citations omitted) Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).

         In ruling on a motion to dismiss, a district court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” DirecTV, Inc., v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). The court may consider: (1) any documents attached to, incorporated by, or referred to in the pleadings; (2) documents attached to the motion to dismiss that are referred to in the complaint and are central to the plaintiff's allegations, even if not explicitly incorporated by reference; (3) public records; and (4) matters of which the court may take judicial notice. Whittiker v. Deutsche Bank Nat'l Trust Co., 605 F.Supp.2d 914, 924-925 (N.D. Ohio 2009). The defendant has the burden of showing that the plaintiff has failed to state a claim for relief, DirecTV, Inc., 487 F.3d at 476 (citing Carver v. Bunch, 946 F.2d 451, 454, 455 (6th Cir. 1991)), and dismissal on this basis is reviewed de novo. Golden v. City of Columbus, 404 F.3d 950, 958 (6th Cir. 2005).

         III. Background Information and Facts Accepted as True

         Ms. Loper requested an expedited due process hearing on behalf of C.D. before the Ohio Department of Education (“ODE”) on November 3, 2015. Ms. Loper's request (No. SE-3200-2015E) contested the October 30, 2015 Manifestation Determination Review (“MDR”)[1]conducted by the Cleveland ...


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