interpretation. In such cases, courts hold that the futility exception
does not apply and the plaintiff must pursue further administrative
remedies prior to instituting an action. See Polera 288 F.3d at 489.
Here, as in Polera, the decision alleged to involved implementation
only speaks in generalities — it says nothing about any particular
placement for Robert. It merely requires that the District address certain
areas (such as identifying strengths and weaknesses) before moving
forward with a new IEP for Robert. Such a decision is far from one
involving implementation only. On the contrary, the decision specifically
contemplates further action at the local level.
Even Plaintiffs' complaint belies the argument that "implementation" of
the October 17 Decision is all that remains. It is clear that Plaintiffs
continue to request a specific placement for Robert. No decision
regarding that placement has been made. The parties are still very much
at odds with respect to the proper placement for Robert.*fn4 Under these
circumstances, the issue is more one of interpretation and less of
implementation. Such cases require further administrative action prior to
judicial review. Thus, it cannot be said that there is nothing more to be
done at the administrative level.
Finally, it has come to the attention of the court that Plaintiffs have
requested and taken part in a due process hearing. The participation in
this procedure makes it particularly inappropriate to entertain a civil
action a: this time. The administrative procedure is going forward. Those
with greater expertise in the area of education than this court must be
allowed to complete their assessment of what is appropriate for Robert.
Accordingly, the court dismisses the claims pursuant to the IDEA and the
Rehabilitation Act for failure to exhaust administrative remedies.
iii. Retaliation Claims: Section 504 and Section 1983
Plaintiffs' remaining claims pursuant to Section 1983 and Section 504
are premised on the argument that Robert was re-classified in retaliation
for his parents' exercise of their statutory and First Amendment rights.
In light of the disposition of the remainder of Plaintiffs' claims, and
the fact that the administrative process may yield a different
classification for Robert, the court will dismiss the retaliation claims
at this time. At the conclusion of the administrative proceedings
herein, Plaintiffs shall have the right to re-open this matter and
litigate these and any other claims that are properly before the court.
IV. Plaintiffs Motion to Amend the Complaint
Because the court is dismissing Plaintiffs' complaint at this time, it
is unnecessary to pass upon the motion to amend the complaint. If, upon
the conclusion of administrative proceedings, this action is reopened,
the Magistrate Judge assigned to this case can consider the propriety of
amending the complaint.
Defendants' motion to dismiss Plaintiffs' claim for attorneys' fees is
granted. The motion to dismiss the claims pursuant to the IDEA and the
Rehabilitation Act are dismissed for failure to exhaust administrative
remedies. The remainder of the complaint is dismissed with the right to
upon the completion of administrative proceedings. Plaintiffs' motion to
amend the complaint is denied at this time with the right to renew if the
case is re-opened.
The Clerk of the Court is directed to terminate all motions in this
matter and to close this case.