Professional Documents
Culture Documents
v. No. ______________
COMES THE PLAINTIFFS, P.G., through his parents, A.G., and R.G.,
I. PARTIES
1. Plaintiff, P.G., is a minor child residing in Murfreesboro, Rutherford
County, Tennessee with his parents, A.G. and R.G. Due to autism, he is substantially
limited in the major life activities of learning, cognitive function, communication, and
Learning Centers does not provide private tuition services to individual students, instead
students at one of Genesis Learning Centers’ schools. One such school, Genesis Academy,
funds.
II. JURISDICTION
the Individuals with Disabilities Education Act. 20 U.S.C. § 1415(i)(2); 34 C.F.R. 300.516.
This court also has jurisdiction over appeals taken under the ADA and Section 504 where
Rule of construction. Nothing in this title [20 USCS §§ 1400 et seq.] shall be
construed to restrict or limit the rights, procedures, and remedies available
under the Constitution, the Americans with Disabilities Act of 1990, title V
of the Rehabilitation Act of 1973 [29 USCS §§ 790et seq.], or other Federal
laws protecting the rights of children with disabilities, except that before the
filing of a civil action under such laws seeking relief that is also available
under this part [20 USCS §§ 1411 et seq.], the procedures under subsections
(f) and (g) shall be exhausted to the same extent as would be required had
the action been brought under this part [20 USCS §§ 1411 et seq.].
6. P.G. brought a due process case against both Genesis Learning Centers
d/b/a Genesis Academy (hereafter “Genesis Academy”) and his school district,
Rutherford County Schools. (Due Process Complaint No. 07.03-154047J). The complaint
sought relief under the IDEA, ADA and Section 504 against both Genesis Academy and
Academy, 1 Genesis Academy is liable under the IDEA for its own actions too. Genesis
Academy is an important party to effectuate direct change and injunctive relief inside the
doors of Genesis Academy. This is particularly true because Rutherford County does not
8. The Administrative Law Judge (ALJ) in the underlying due process hearing
dismissed Genesis Academy, but not Rutherford County, from the due process
purely private party, failing to make any distinction that it is actually a publicly funded
private school that accepts only students who are publicly placed by school districts with
public monies. Additionally, the ALJ also did not address the effect under IDEA of
10. The ALJ then dismissed the ADA and Section 504 claims against Genesis
Academy for lack of jurisdiction too. Again, the ALJ retained jurisdiction under the ADA
and Section 504 with respect to Rutherford County. Initially, at least, the ALJ stated that
a binding administrative record could be created in due process against Genesis Academy,
1
See 34 C.F.R. 300.325(c) (“Even if a private school or facility implements a child’s
IEP, responsibility for compliance ... remains with the public agency and the [state
educational agency].”); see also id. at § 300.2(c)(1) (providing that “each public agency in
the State” is responsible for ensuring that the IDEA's rights and protections are given to
children “referred to or placed in private schools and facilities by that public agency”); id.
at § 300.146 (providing that the state educational agency “must ensure” that a child with
a disability placed in a private school by a public agency is provided the special education
and related services in conformance with an IEP that meets IDEA standards).
3
2019, the ALJ denied the motion for reconsideration or stay. However, the ALJ found
that, if the ALJ’s ruling about jurisdiction over Genesis Academy is mistaken, in order
prevent “a return to the administrative level for a ‘second trial,’ the Petitioners are now
positioned to address this concern by filing an appeal.” Accordingly, this Appeal over
12. Pleading in the alternative, if the ALJ does lack jurisdiction over Genesis
Academy, then this Court has original jurisdiction over the Complaint under 28 U.S.C.
1331, the Individuals with Disabilities Education Act (IDEA), Section 504 of the
Rehabilitation Act, and Title III of the Americans with Disabilities Act.
§104.3(k)(3)(i), that indirectly receive funds through the IDEA, making them “recipients”
C. Venue
15. Venue is proper under 28 U.S.C. 1391 because the acts complained of
16. Rutherford County Schools entered into a publicly funded contract with
Genesis Academy to provide special education services. Genesis Academy has its own
building and educators, apart from Rutherford County Schools. Genesis assisted
17. P.G. is a now eight-year-old child with autism, eligible for special education
under the Individuals with Disabilities Act (IDEA) by his local education agency,
Rutherford County Schools. P.G. was educated for preschool (2015-2016) and
18. However, for the end of his Kindergarten year (2016-2017) and his entire
first grade school year (2017-2018), Rutherford County contracted with Genesis Academy
for placement of P.G. at Genesis Academy, making P.G. a third-party beneficiary of this
contract. Pursuant to this contract between Rutherford County and Genesis Academy,
P.G. was publicly placed by Rutherford County with public monies, not parentally placed,
at Genesis Academy.
19. While at Genesis Academy, and under the supervision and control of
Genesis Academy, P.G., then just five and six years old, was placed with children twice his
young age (on the grounds that children of different ages can be grouped because they
negative behaviors, witnessing behaviors and language that were not age-appropriate at
all.
20. Additionally, from August 2017 through November 2017, P.G. suffered
numerous repeated and unnecessary restraints and isolations by Genesis Academy staff
that violate IDEA (and the incorporated Special Education Behavior Supports Act),
21. During this time, Genesis Academy excessively used these tactics of
restraint and seclusion as a substitute for modifying the behavioral supports or using
positive reinforcements as an accommodation. The restraints and isolations did not teach
P.G. replacement behaviors, but were simply a reaction by Genesis Academy to P.G.’s
22. Genesis Academy thus failed to provide P.G. appropriate and needed
isolations. For example, Genesis Academy failed to provide (or allow P.G’s private BCBA
to provide) direct behavioral support from a highly trained behavioral therapist (BCBA)
persons like him, that they were entitled to receive through Rutherford County schools.
accommodations caused P.G. to lose critical educational services and time, and thus,
denied P.G. a free appropriate public education. It also caused P.G. trauma, fear, and
24. The foregoing paragraphs are incorporated. Plaintiffs seek the following
relief.
25. First, reversal of the ALJ’s rulings that it lacks jurisdiction under IDEA,
Section 504, and the ADA as to Genesis Academy, with a remand to the administrative
tribunal.
26. Second, in the alternative, Plaintiffs bring these direct claims against
Defendant was in violation of the specific requirements of the IDEA, Section 504, and the
ADA described above, and the relevant implementing regulations of the ADA;
to bring its educational facility and/or place of public accommodation into full
compliance with the requirements set forth in the IDEA, Section 504, and ADA, including
unnecessary and illegal restraints and isolations, along with appropriate training of
private placement to the extent necessary and reasonable, due to past trauma and fear of
future harm;
d. An award of monetary damages to P.G. under Section 504 for trauma and
fear caused;
f. The provision of whatever other relief the Court deems just, equitable and
appropriate.
Respectfully submitted,
s/Justin S. Gilbert
Justin S. Gilbert (TN Bar No. 017079)
100 W. Martin Luther King Blvd, Suite 502
Chattanooga, TN 37402
Telephone: 423-499-3044
Facsimile: 731-664-1540
jgilbert@gilbertfirm.com
&
(b) County of Residence of First Listed Plaintiff Rutherford County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Gilbert McWherter Scott Bobbitt PLC
100 W. Martin Luther King Blvd., Suite 501 Chattanooga, TN 37402
423-499-3044
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
u 1 U S Government u 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State u 1 u 1 Incorporated or Principal Place u 4 u 4
of Business In This State
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than
one nature of suit, select the most definitive.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
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