Katie Moore, as Next Friend on behalf of D.S., a minor, Plaintiff-Appellant
Kansas City Public Schools, also known as Kansas City Public School District; Southwest Early College Campus, also known as Southwest High School; Dr. R. Stephen Green, individually and as Superintendent of Kansas City Public Schools; Dr. Edwin Richardson, individually and as Principal of Southwest Early College Campus; Cecil Annette Billups, individually and as a Special Education Teacher at Southwest Early College Campus; Alice Coody, individually and as a Special Education Teacher at Southwest Early College Campus, Defendants-Appellees
Submitted: February 10, 2016
from United States District Court for the Western District of
RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.
behalf of D.S., a minor student with intellectual
disabilities, Katie Moore sued Kansas City Public Schools
(school district), Southwest Early College Campus
(Southwest), the superintendent of the school district, the
principal of Southwest, a special education teacher, and a
para-professional at Southwest (collectively, defendants) in
Missouri state court. The petition sought damages for
premises liability and negligent supervision because D.S. was
raped by another student in an unsupervised area of Southwest
during the school day, and because D.S. was repeatedly
bullied and sexually harassed by her classmates and peers.
The school district and Southwest removed the lawsuit to the
Western District of Missouri, see 28 U.S.C. §
1441(a), claiming Moore's causes of action arose under
the Individuals with Disabilities Education Act (IDEA), 20
U.S.C. § 1400 et seq., and then moved to
dismiss under Federal Rule of Civil Procedure 12(b)(1) and
(6). The district court denied Moore's motion to remand
and then dismissed the lawsuit for failure to exhaust IDEA
administrative remedies. We now reverse.
was a special education student at Southwest during the
2013-14 school year. Due to her intellectual and learning
disabilities at the time relevant to the complaint, D.S.
sometimes had trouble communicating and spoke in "baby
talk." D.S. also had difficulty perceiving danger and
was "susceptible to suggestion due to her significant
intellectual and learning disabilities." When D.S.
became frustrated, she tended to wander away. To accommodate
her disability, D.S. had an "individualized education
program" (IEP) under the IDEA put into place by the
school district. See 20 U.S.C. §§
1401(14), 1414(d)(1)(A)(i). D.S.'s IEP stated her
attendance required improvement.
Southwest is equipped for up to 2, 500 students, only about
600 attended the school during the 2013-14 school year.
Because attendance was so below capacity, not all areas of
the school were in use. Unused areas were unsupervised and
supposed to be locked, and students were forbidden to enter.
In August 2013, two students gained access to a locked area
and allegedly raped a female student, leading the Kansas City
Police Department to investigate the incident.
school, D.S. was relentlessly bullied and harassed by her
peers. Some of the harassment included "yelling at D.S.
and telling her she was ugly"; "putting their hands
under D.S.'s shirt, touching her 'boobs'";
and "slapping D.S. in the face." D.S. told her
teachers about the harassment, but the defendants
"failed to take sufficient measures to correct the
issues." In March 2014, D.S. was sexually assaulted on
at least three occasions by the same student, "under the
same or similar circumstances as the August 2013 rape, "
in one of the locked areas at Southwest. D.S. did not report
these specific instances because her assailant threatened to
kill her if she told anyone.
April 1, 2014, around 10:44 a.m., a para-professional
assigned to D.S.'s classroom watched D.S. leave the
lunchroom and enter a hallway before the end of the period.
Sometime between then and 2 p.m. that day, two students led
D.S. through a set of unsecured doors, where a male student
raped her while another female student acted as a
"look-out." The para-professional reported to a
special education coordinator that D.S. was missing. D.S.
never returned to class that day, and the Southwest security
staff never made a record she was missing.
2:00 a.m. the next morning, D.S. told her parents she was
experiencing vaginal and anal pain. D.S. was taken to
Children's Mercy Hospital, where it was confirmed D.S.
had been vaginally and anally raped. Since the assaults,
"D.S. has been diagnosed with numerous serious physical,
social, mental, and emotional disorders that have further
decreased D.S.'s ability to function independently and
brought this petition for damages in the Circuit Court of
Jackson County, Missouri. Moore's petition set out two
causes of action under Missouri law. Count I charged the
school district and Southwest with premises liability,
alleging the school district and Southwest "exposed
their students to dangerous physical defects and conditions
on the [Southwest] premises." See Mo. Rev.
Stat. § 537.600.1(2) (waiving sovereign immunity).
According to the petition, Southwest was "kept in an
unsafe and dangerous condition, including but not limited to
the physical defects with missing or broken locks on doors
providing ingress and egress to 'secure' areas,
including the areas where D.S. was sexually assaulted."
Count II asserted liability for negligent supervision against
all defendants. Moore alleged the defendants "knew or
should have known that a culture of bullying, discrimination,
sexual assault, and sexual harassment existed at
[Southwest]" and defendants "breached their
ministerial duty to D.S." by failing to report and
properly address physical and sexual abuse at Southwest.
See Mo. Rev. Stat. § 210.115.1 (requiring
teachers and school officials to report abuse).
Moore's causes of action arose under the IDEA, the school
district and Southwest timely filed a notice of removal to
federal court, see 28 U.S.C. §§
1441(a), 1446(a), and subsequently moved to dismiss,
see Fed.R.Civ.P. 12(b)(1), (6). Asserting the
district court should consider "'the substance of
the complaint, not the labels used in it'" (quoting
In re Carter, 618 F.2d 1093, 1101 (5th Cir. 1980)),
the defendants argued that while Moore's petition
"style[d] her causes of action on theories of premises
liability and negligence pursuant to Missouri common law, her
Petition substantively state[d] a claim under the
[IDEA]." Pointing to the petition's references to
D.S.'s IEP, the defendants claimed Moore "repackaged
a federal IDEA claim . . . in an attempt to avoid the
federally mandated IDEA requirements and procedure."
Moore moved for remand to Missouri state court. The district
court denied remand and granted the defendants' motion to
dismiss. Moore appeals. She also requests that we award her
attorney fees. See 28 U.S.C. § 1447(c).
district court accepted the defendants' argument in favor
of removal, characterizing Moore's state law claims as
"not 'wholly unrelated' to the IEP process"
(quoting M.P. ex rel. K. & D.P. v. Indep. Sch. Dist.
No. 721, 439 F.3d 865, 868 (8th Cir. 2006)). See
also J.B. ex rel. Bailey v. Avilla R-XIII Sch. Dist.,
721 F.3d 588, 593 (8th Cir. 2013). The district court also
emphasized that some of D.S.'s injuries that may require
psychological treatment or counseling "could potentially
be redressed under the IDEA." The district court decided
it had "original federal question jurisdiction"
over the action because the petition "directly
implicates, and seeks redress available under, the
IDEA." Moore maintains she did not plead a cause of
action under the IDEA. We review ...