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Dorsey ex rel. J.D. v. Pueblo Sch. Dist. 60 - 215 F. Supp. 3d 1082 (D. Colo. 2016)


Under Rule 12(b)(6), a party may move to dismiss a claim in a complaint for failure to state a claim upon which relief can be granted. The 12(b)(6) standard requires the court to assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff. In ruling on such a motion, the dispositive inquiry is whether the complaint contains enough facts to state a claim to relief that is plausible on its face. Thus, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.


Plaintiff Lisa Dorsey, on behalf of her minor daughter, J.D., filed a discrimination action in federal district court against defendants Pueblo School District 60 ("District"), the Board of Education of Pueblo School District 60, and John Doe, an unknown teacher in the District. J.D. suffered from progressive muscular/skeletal weakness. The complaint alleged violations of § 504 of the Rehabilitation Act of 1973. 29 U.S.C.S.§ 701 et seq., and the Americans with Disabilities Act of 1990, 42 U.S.C.S.§ 12101 et seq. The district court previously dismissed all of J.D.'s claims, but allowed J.D. to amend her § 504 claim. The amended § 504 claim alleged that other students at her school bullied her verbally and physically; she was prevented from having snacks during school hours and other students were stealing her lunches, and; J.D.'s physical education class did not comply with her § 504 Plan. Defendants filed a motion to dismiss the amended claim pursuant to F.R.C.P. 12(b)(6).


Did the school district and others violate J.D.'s rights pursuant to the Rehabilitation Act of 1973 when it failed to comply with their agreed upon § 504 accommodation plan?




The court denied defendants' motion to dismiss. The court ruled that J.D. made a prima facie case under § 504 by presenting proof that: (1) she was handicapped under the Rehabilitation Act; (2) she was "otherwise qualified" to participate in the program; (3) the program received federal financial assistance; and (4) the program discriminated against her. As to the contentious fourth prong, the court ruled, among other things, that J.D. adequately pleaded factual matter showing: (1) harassment based on her disability, (2) that it was severe or pervasive enough to alter the conditions of her education and create an abusive environment, (3) that school officials knew of the harassment, and (4) that school officials were deliberately indifferent to the harassment.

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