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Donahue v. Kansas Board of Education

United States District Court, D. Kansas

June 20, 2018

TONI R. DONAHUE, Plaintiff,
v.
KANSAS BOARD OF EDUCATION, et al., Defendants.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA United States District Judge

         Plaintiff Toni R. Donahue filed this action pro se, for judicial review of a due process hearing and subsequent administrative review involving her child's school district, both of which were conducted pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(f), and Kansas law. Plaintiff states that she brings the action pursuant to 34 C.F.R. § 300.516 (which is a regulation relating to the IDEA), 5 U.S.C. § 702, and “5 U.S. Code section 7 in its entirety, with regards to 42 U.S. Code § 1983 and 1985.” (Doc. 48 at 2.)

The case is now before the court on a number of motions:
•Plaintiff s Motion to Review Magistrate Order (Doc. 32);
•Plaintiffs Motion for Entry of Default (Doc. 55);
•Defendant Elena Lincoln's Motion to Dismiss (Doc. 33);
•State of Kansas Defendants' Motion to Dismiss (Doc. 49);
•Defendants John Allison and Deborah Chappell's Motion to Dismiss (Doc. 66);
•Defendant Olathe School District USD No. 233's Motion to Dismiss (Doc. 64);
•Plaintiffs Motion for Preliminary Injunction and Permanent Order of Protection (Doc. 62); and
•Defendant Elena Lincoln's Motion to Stay (Doc. 36).

         I. Factual Background

         The full factual background of this case is not yet before the court, as plaintiffs operative complaint does not contain many allegations. The court has also considered the limited facts it has before it from the underlying administrative proceedings. The court may take judicial notice of the documents presented by defendants from the administrative record without converting defendants' motions to summary judgment motions. See Van Woudenberg ex rel. Foor v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000) (“We note, however, that the court is permitted to take judicial notice of its own files and records, as well as facts which are a matter of public record.”), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946 (10th Cir. 2001) (en banc).

         Plaintiff believed that a “local education agency” (here, defendant Olathe School District USD No. 233) did not meet its obligations under the IDEA with respect to her minor child. She therefore filed a Due Process Complaint under 34 C.F.R. § 300.507. Plaintiff then had a due process hearing conducted by an impartial hearing officer (defendant Lloyd Schwartz), per § 300.511(c). The hearing officer decided against plaintiff.

         Plaintiff appealed pursuant to § 300.514 and Kan. Stat. Ann. § 72-3418(b), and the state review officer (defendant Elena Lincoln) dismissed the appeal as untimely on January 2, 2018. The IDEA allows plaintiff to ask this court to review those decisions. See 20 U.S.C. § 1415(i)(2)(A); 30 C.F.R. § 300.516. Alternatively, plaintiff could have sought review in state court. Id. On January 9, 2017, plaintiff initiated this action by filing her Petition for Administrative Review. Plaintiff did not name defendant Olathe School District USD No. 233 until March 20, 2018, in her Second Amended Petition.

         It is unclear whether plaintiff seeks to proceed only on her own behalf, or also on behalf of her minor child. To the extent that plaintiff is attempting to bring this suit on behalf of her child, she may not do so. Plaintiff proceeds pro se. A pro se plaintiff may not represent another party-even her own child. Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986) (“[U]nder Fed.R.Civ.P. 17(c) and 28 U.S.C. § 1654, a minor child cannot bring suit through a parent acting as a next friend if the parent is not represented by an attorney.”); Zhu v. Countrywide Realty Co., 160 F.Supp.2d 1210, 1225-26 (D. Kan. 2001) (denying motion by pro se plaintiff to amend, add daughter, and bring claims on daughter's behalf). Any claims on behalf of plaintiff's minor child are dismissed and are not further considered.

         II. Legal Standards

         Several of the motions addressed in this order are motions to dismiss. For ease of reference, the court sets out the standards for dismissal here and identifies the standards for other types of motions within the discussion of each motion.

         The court will grant a 12(b)(6) motion to dismiss only when the factual allegations fail to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although the factual allegations need not be detailed, the claims must set forth entitlement to relief “through more than labels, conclusions and a formulaic recitation of the elements of a cause of action.” In re Motor Fuel Temperature Sales Practices Litig., 534 F.Supp.2d 1214, 1216 (D. Kan. 2008). The allegations must contain facts sufficient to state a claim that is plausible, rather than merely conceivable. Id. “All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true.” Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court construes any reasonable inferences from these facts in favor of the plaintiff. Tal, 453 F.3d at 1252.

         Where, as here, the plaintiff proceeds pro se, the court construes the pro se filings liberally. Hall v. Doering, 997 F.Supp. 1445, 1451 (D. Kan. 1998) (citing Hughes v. Rowe, 449 U.S. 5, 9-10 (1980)). On the other hand, a plaintiff's pro se status does not relieve her from complying with this court's procedural requirements. Barnes v. United States, 173 Fed.Appx. 695, 697 (10th Cir. 2006) (citations omitted); see also Santistevan v. Colo. Sch. of Mines, 150 ...


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