United States District Court, D. Kansas
TONI R. DONAHUE, Plaintiff,
KANSAS BOARD OF EDUCATION, et al., Defendants.
MEMORANDUM AND ORDER
MURGUIA United States District Judge
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.
•Plaintiffs Motion for Entry of Default (Doc. 55);
•Defendant Elena Lincoln's Motion to Dismiss (Doc.
•State of Kansas Defendants' Motion to Dismiss (Doc.
•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).
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).
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.
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.
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
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.
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.
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 ...