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Donahue v. Kansas Board of Education

United States District Court, D. Kansas

August 20, 2019

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


          CARLOS MURGUIA United States District Judge.

         Pro se plaintiff Toni Donahue requests administrative review under the Individuals with Disabilities Education Act (“IDEA”) and Kansas statutes. (Doc. 1.) Plaintiff asks the court for reversal of orders by both the Hearing Officer and Appeal Review Officer.


         Plaintiff is the mother of a child covered by the IDEA. Defendant Olathe School District USD No. 233 (“District”) is the district where plaintiff's child previously attended school. Plaintiff filed a due process complaint with defendant District between October 23, 2017 and October 30, 2017. The effective filing date is disputed.

         Defendant began procedures for a due process hearing under the IDEA on October 30, 2017. A Hearing Officer was appointed on November 7, 2017. Defendant responded to plaintiff's due process complaint that same day and filed both a Notice of Insufficiency and an amended response on November 9, 2017. Defendant's Notice of Insufficiency argued that plaintiff's due process complaint was missing information required by statute, and that plaintiff's complaint should be dismissed due to the insufficiency.

         The Hearing Officer dismissed plaintiff's due process complaint as insufficient on November 14, 2017. Plaintiff filed an appeal on December 18, 2017, and the Appeal Review Officer dismissed plaintiff's case on January 2, 2018. The Appeal Review Officer concluded that plaintiff's appeal was untimely and that plaintiff had not shown good cause for filing an appeal outside the deadlines required by statute.

         Plaintiff now asks the court to reverse, arguing that the Hearing Officer applied an incorrect procedural timeline and that the proceedings below were tainted by partiality. Defendant argues that the proceedings below were valid, that plaintiff's untimely appeal resulted in a failure to exhaust administrative remedies, and that this court accordingly lacks subject matter jurisdiction.


         When a plaintiff proceeds pro se, the court construes his or her filings liberally, but does not assume the role of an advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).


         Defendant asks the court to dismiss for lack of subject matter jurisdiction due to insufficient exhaustion of administrative remedies, and to award attorneys' fees for plaintiff's allegedly unreasonable litigation. Plaintiff argues that the court already found that she had exhausted her administrative remedies, and alternatively states that exhaustion should be excused as futile.

         A. Exhaustion

         The court follows the Tenth Circuit's treatment of administrative exhaustion as a jurisdictional requirement.[1] Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1063 (10th Cir. 2002) (“As this court must always satisfy itself of jurisdiction before addressing the merits of a claim, we turn to the exhaustion issue first.”); Urban v. Jefferson Cty. Sch. Dist. R-1, 89 F.3d 720, 724 (10th Cir. 1996) (treating exhaustion as prerequisite for subject matter jurisdiction); Hayes v. Unified Sch. Dist. No. 377, 877 F.2d 809, 810 (10th Cir. 1989) (noting exhaustion as jurisdictional under predecessor statute). The court's prior order did not address exhaustion, and noted that full consideration of the case was generally impeded by an underdeveloped factual background, in part because plaintiff's complaint contained few factual allegations. (Doc. 79, at 1.) The parties have since supplemented the administrative record and provided briefing. (Docs. 87; 112; 119; 120; 121-1).

         Under the IDEA, a due process complaint is first heard by “the State educational agency or by the local educational agency.” 20 U.S.C. § 1415(f). An aggrieved party may appeal that decision to “the State educational agency” for a final decision. Id. § 1415(g), (i)(1). Any party aggrieved by that final decision “shall have the right to bring a civil action.” Id. § 1415(i)(2)(A). Additional state review measures are not required to exhaust administrative remedies. See M.M. ex rel. Moore v. Unified Sch. Dist. No. 368, No. 07-2291-JTM, 2008 WL 4950987, at *12 (D. Kan. Nov. 18, 2008). Exhaustion of administrative remedies is not required if exhaustion “would be futile or fail to provide adequate relief.” Chavez ex rel. M.C. v. N.M. Pub. Educ. Dep't, 621 F.3d 1275, 1280-81 (10th Cir. 2010) (citing Ass'n for Cmty. Living in Colo. v. Romer, 992 F.2d 1040, 1044 (10th Cir. 1993)). ...

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