United States District Court, N.D. Ohio, Eastern Division
CHRISTOPHER A. BOYKO JUDGE
REPORT & RECOMMENDATION
M. Parker United States Magistrate Judge
Loper's son, C.D. is a student in the Cleveland
Metropolitan School District. He was first enrolled in the
Cleveland Schools in December 2014. Since then, Ms. Loper has
filed several requests for due process hearings because she
has been concerned with how her son's education was being
handled. In this instance, Ms. Loper's complaint was that
her son was not receiving a free and appropriate public
education (“FAPE”) as required by law.
Specifically, she complains that the Cleveland Schools failed
to timely evaluate C.D., failed to implement his
individualized educational program (“IEP”) and
failed to properly identify him on the report of the
“evaluation team.” (“ETR”) A state
hearing officer heard Ms. Loper's complaint in December
2015, but decided in favor of the Cleveland Schools. Ms.
Loper appealed that ruling to a state level review officer.
On March 7, 2016 the SLRO upheld the initial ruling and
entered a decision in favor of the Cleveland Schools. This
case, presenting an appeal of the administrative rulings,
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.
Cleveland Metropolitan School District has moved the case
under Fed.R.Civ.P. 12(b)(6) because it was filed beyond the
90 day deadline allowed by law after the administrative
decision was issued. The undersigned recommends that the
motion to dismiss be GRANTED and the action be DISMISSED.
Standard of Review
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”).
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
(internal citations omitted) Ashcroft v. Iqbal, 556
U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
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).
Background Information and Facts Accepted as True
Loper requested a due process hearing on behalf of C.D.
before the Ohio Department of Education (“ODE”)
on October 13, 2015. In her request, numbered SE-3191-2015E,
Ms. Loper asserted various grounds to support her contention
that defendant had failed to provide C.D. a free and
appropriate public education ...