Payne
Payne v. Peninsula School Dist.
Opinion
Opinion
Thomas B. Vertetis, Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim LLP, Tacoma, WA, for the appellant.
Michael A. Patterson and Donald F. Austin, Patterson Buchanan Fobes Leitch & Kalzer P.S., Seattle, WA, for the appellees.
Before: HARRY PREGERSON, CYNTHIA HOLCOMB HALL and JOHN T. NOONAN, Circuit Judges.
Opinion by Judge HALL; Dissent by Judge NOONAN.
HALL, Senior Circuit Judge:
Windy Payne ("Payne"), the mother of D.P., an autistic student, appeals from the district court's dismissal without prejudice of the suit she brought on D.P.'s behalf for negligence, outrage, and § 1983 violations. [1] Her claims were predicated on D.P.'s constitutional rights and statutory rights under the Individuals with Disabilities Education Act ("IDEA"). The district court found that it lacked subject matter jurisdiction over Payne's federal claims because Payne failed to exhaust her administrative remedies before coming into federal court. [2] We have jurisdiction pursuant to 28 U.S.C. § 1291 and agree.
Because this appeal arises from a grant of summary judgment, we present the facts in the light most favorable to Payne. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916 , 922 (9th…