Payne
Payne v. Peninsula School District
Opinion
Lead Opinion
Hall, J.
Opinion by Judge HALL; Dissent by Judge NOONAN.
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 *1125 We have jurisdiction pursuant to 28 U.S.C. § 1291 and agree.
I.
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 Cir.2004).
D.P. suffers from moderate autism, which has delayed his academic progress and caused his resistance to work, his difficulties staying on task, and his impulsive, “inappropriate or aggressive” responses to his environment. In September 2003, as is required under the IDEA, see 20 U.S.C. § 1414 (2006), an Individualized Education…
Dissenting Opinion
Noonan, J.
dissenting:
My colleagues, struggling to find a way between Robb and Witte, find at least “an attempt at an educational program” in a teacher repeatedly locking D.P., a seven-year-old autistic child, into an unventilated, dark space the size of a closet for indeterminate amounts of time, causing D.P. to become so fearful that he routinely urinated and defecated on himself. I disagree with the majority’s characterization of Coy’s conduct as part of an “educational strategy,” the resolution of which would require exhaustion under the IDEA. I respectfully dissent.
Viewing the facts as we must, in the light most favorable to the Paynes, it is clear that Ms. Coy’s misuse of the isolation room serves no legitimate educational purpose, is prohibited by state administrative regulations, and was imposed as punishment. The facts in this case are closer to those in Witte v. Clark County School District, 197 F.3d 1271 (9th Cir.1999), than in Robb v. Bethel School District, 308 F.3d 1047 (9th Cir.2002). As in Witte , D.P. was subjected to mistreatment that was part of no IEP and “served no legitimate edu *1129 cational purpose.” 197 F.3d at 1273 . While D.P.’s proposed “behavior intervention…