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C.Z. v. Plainfield Community Unit School District No. 202

January 26, 2010

C.Z., BY AND THROUGH HIS PARENTS CHRIS AND ROSE ZIEMBA, PLAINTIFF,
v.
PLAINFIELD COMMUNITY UNIT SCHOOL DISTRICT NO. 202, DEFENDANT.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

Minor child C.Z., by and through his parents Chris and Rose Ziemba (collectively "Ziembas"), filed this action for attorneys' fees against Plainfield School District ("District") pursuant to the Individuals with Disabilities Education Act ("Act," 20 U.S.C. §§1400-1482)*fn1 and Article 14 of the Illinois School Code ("Code," 105 ILCS 5/14-1 to 5/14-16). This action follows an administrative due process proceeding, initiated by Ziembas on behalf of C.Z. under Code §8.02a(f), that charged District with having failed to provide C.Z. a free and appropriate public education ("FAPE").*fn2 That due process proceeding concluded with the entry of a final Administrative Order by the Independent Hearing Officer ("Hearing Officer").

District has now filed a Motion To Dismiss under Fed. R. Civ. P. ("Rule") 12(b)(6). For the reasons stated below, this Court denies District's motion.

Rule 12(b)(6) Standard

Under Rule 12(b)(6) a party may move for dismissal of a complaint on grounds of "failure to state a claim upon which relief can be granted." District's motion contends that the dismissal is warranted because C.Z. cannot prevail as a matter of law and because the Complaint's allegations are not plausible.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562-63 (2007) did away with the more generous Rule 12(b)(6) formulation first announced in Conley v. Gibson, 355 U.S. 41, 45-46 (1957) "that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 550 U.S. at 570 held that to survive a Rule 12(b)(6) motion a complaint must provide "only enough facts to state a claim to relief that is plausible on its face." To the same effect, "[f]actual allegations must be enough to raise a right of relief above the speculative level" (id. at 555).

Erickson v. Pardus, 551 U.S. 89 (2007)(per curiam) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) then provided a further understanding of the Twombly pronouncement--the first of those within a few weeks and the second nearly two years later. In between those follow-up cases, our Court of Appeals' opinion in Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007) described Twombly and Erickson as establishing "only that at some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8." Then post-Iqbal, Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) has reconfirmed that the Airborne Beepers reading of federal pleading law continues to be accurate. Brooks, id. describes Iqbal as admonishing that plaintiffs must not "merely parrot the statutory language of the claims that they are pleading (something that anyone could do, regardless of what may be prompting the lawsuit), rather than providing some specific facts to ground those legal claims."

Against that backdrop, familiar Rule 12(b)(6) principles continue to require the district court to accept as true all of plaintiff's well-pleaded factual allegations, drawing all reasonable inferences in plaintiff's favor (Christensen v. County of Boone, 483 F.3d 454, 457 (7th Cir. 2007)(per curiam)). What follows, then, is an appropriate summary of the facts as stated in the Complaint.

Factual Background

C.Z. is a 6-year old child with autism, developmental delays and severe speech delays (Compl. ¶3). In May 2006 District found him eligible for special education services because of his autism and created an Individualized Education Program ("IEP") that placed him in the District's autism program and established goals for him to achieve by May 2007 (Compl. ¶8). Over the next two years C.Z. achieved only one of his IEP goals (Compl. ¶9). District's IEP team then terminated or lowered C.Z.'s IEP goals and recommended continuation of the same services (Compl. ¶10).

In 2008 Ziembas hired an independent agency called Growing Minds to assess C.Z. and recommend appropriate programming for him (Compl. ¶¶11-13). At an emergency IEP meeting convened on May 30, 2008 at Ziembas' request, they requested an alternative placement (at a therapeutic day school or at home) based on the Growing Minds recommendation, but the IEP team did not agree (Compl. ¶15). District promised to convene another IEP meeting before the beginning of the 2008-09 school year, but it did not do so despite C.Z.'s requests (Compl. ¶¶16-17).

At an informal IEP meeting at the beginning of the 2008-09 school year, Ziembas requested that District consult with a verbal behavioral analyst on C.Z.'s program, but the IEP team did not agree (Compl. ¶18). So in the fall of 2008 Ziembas hired Dr. Daniel Moran to conduct an independent evaluation of C.Z., and he concluded that C.Z.'s placement did not meet the child's needs (Compl. ¶20). At an IEP meeting on February 17, 2009,*fn3 the IEP team acknowledged problems with C.Z.'s IEP goals and with C.Z.'s inability to achieve those objectives (Compl. ¶21). At the meeting the IEP team considered Dr. Moran's recommendations but did not agree to a change in placement (Compl. ¶21).

On March 5 Ziembas filed a request for due process on behalf of C.Z., charging that District had denied C.Z. FAPE (Compl. ¶22). On or about March 9 Ziembas sent a 10-day notice to District, stating their intention to enroll C.Z. unilaterally in an alternative placement, the Chicago Education Project ("Project")(Compl. ¶23). At an April 2 IEP meeting the IEP team decided to maintain C.Z.'s then-current placement. So on that date Ziembas removed C.Z. from the District and enrolled him in the Project, paying the tuition themselves (Compl. ¶25). Since that enrollment C.Z. has experienced significant progress (Compl. ¶¶41-43).

On May 11 the Hearing Officer presiding over C.Z.'s due process proceeding conducted a pre-hearing conference (Compl. ΒΆ28). That conference resulted in a report that listed C.Z.'s requested relief, including (1) retroactive reimbursement for tuition at the Project, (2) prospective placement at the Project and (3) compensatory education for the period when District ...


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