govinfo:USCOURTS-kywd-1_25-cv-00156-0

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UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF KENTUCKY 
BOWLING GREEN DIVISION 
CIVIL ACTION NO. 1:25-CV-00156-GNS 
 
MELISSA WARSITZ Individually and as 
Custodian and Next Best Friend of K.B., a minor PLAINTIFF 
 
v. 
 
 
METCALFE COUNTY 
BOARD OF EDUCATION et al. DEFENDANTS 
 
 
MEMORANDUM OPINION AND ORDER 
 This matter is before the Court on Defendants’ Motion to Dismiss (DN 4). The motion is 
ripe for adjudication. 
I. STATEMENT OF FACTS AND CLAIMS 
Plaintiff Melissa Warsitz (“Warsitz”) brings this action against Defendants —Metcalfe 
County Board of Education, 1 Joseph Eaton , the principal of Metcalfe County High School 
(“Eaton”), Dwayne Hadley, a teacher at Metcalfe County High School (“Hadley”), and unknown 
employees of Metcalfe County School District—individually and on behalf of her granddaughter 
K.B., a seventeen-year-old disabled student who attended Metcalfe County Schools . (Compl. 1-
2, DN 1-1).2 
Warsitz alleges that she and K.B. have been subject to discrimination, mistreatment, and 
harassment by Defendants since 2020. (Compl. ¶ ¶ 4). Warsitz assert s that Defendants were 
 
1 Defendants state that the correct legal entity is the Board of Education of Metcalfe County, 
Kentucky. (Defs.’ Mot. Dismiss 1 n.1, DN 4). 
2 All paragraph numbers in citations to the Complaint refer to the numbered paragraphs under the 
heading “Factual Background.” (Compl. 4). Because the paragraph numbering restarts in each 
section, citations to paragraphs outside of this section will be referred to by the Bates page number. PageID #:
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“reluctant” to provide a special education classroom and transportation to K.B. (Compl. ¶ 5). 
Warsitz also states that K.B. has been bullied by her peers and teachers: Hadley “forced” K.B. to 
explain why she needed access to feminine hygiene products in front of two classrooms; the school 
continued to display K.B.’s school photo after it was defaced; after Warsitz reported that K.B. 
heard students talking about “raping girls,” Eaton “brushed it off as ‘things boys say’”; and after 
Warsitz reported that a student told K.B. to “go kill herself,” Eaton told Warsitz that he had 
instructed his staff to “keep a better look out.” (Compl. ¶¶ 6-9). 
Following these incidents, Warsitz told Eaton she wanted copies of all reports in K.B.’s 
file. (Compl. ¶ 9). When Warsitz arrived at the school to pick up those copies, she was arrested 
for terroristic threatening, based on Eaton’s sworn statement that she had threatened to blow up 
the school . (CITE). The grand jury , however, returned a no true bill and the charges were 
dismissed. (Compl. ¶¶ 10 -12). Warsitz was told there was no file and has never received any 
reports. (Compl. ¶ 10). 
Warsitz brings claims for intentional infliction of emotional distress (“IIED”), outrage, 
negligence, malicious prosecution, and violations of several statues: the Individuals with 
Disabilities Education Act (“IDEA”) and analogous state law, the Kentucky Civil Rights Act 
(“KCRA”), the Americans with Disabilities Act (“ADA”), and the Rehabilitation Act. (Compl. ¶¶ 
13-61). Defendants move to dismiss the Complaint because they assert that it is barred by the 
administrative exhaustion requirement in the IDEA. (Defs.’ Mot. Dismiss 1). 
II. JURISDICTION 
This Court has subject -matter jurisdiction of this matter based upon federal question 
jurisdiction. See 28 U.S.C. § 1331. In addition, the Court has supplemental jurisdiction over the 
state law claims. See id. § 1367(a). PageID #:
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III. STANDARD OF REVIEW 
Defendants seek dismissal under Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction and Fed. 
R. Civ. P. (12)(b)(6) for failure to state a claim. The Sixth Circuit has not determined whether the 
IDEA’s administrative exhaustion requirement is a jurisdictional issue but has twice implied that 
it is not. See Li v. Revere Loc. Sch. Dist., No. 21-3422, 2023 WL 3302062, at *10 (6th Cir. May 
8, 2023) (citations omitted). The Court will therefore analyze Defendants’ motion under Fed. R. 
Civ. P. 12(b)(6) rather tha n Fed. R. Civ. P. 12(b)(1). See J.A. by & through S.A. v. Williamson 
Cnty. Bd. of Educ., 731 F. Supp. 3d 938, 950 (M.D. Tenn. 2024). 
To survive dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6), “a complaint 
must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible 
on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (internal quotation marks omitted) 
(citation omitted). A claim is facially plausible “when the plaintiff pleads factual content that 
allows the court to draw the reasonable inference that the defendant is liable for the misconduct 
alleged.” Id. When considering a defendant ’s motion to dismiss, the Court will “accept all the 
[plaintiff’s] factual allegations as true and construe the complaint in the light most favorable to the 
[plaintiff].” Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 716 (6th Cir. 2005). 
IV. DISCUSSION 
The purpose of the IDEA is to ensure that “[a] free appropriate public education ”—
commonly referred to as a FAPE—“is available to all children with disabilities . . . .” 20 U.S.C. § 
1412(a)(1)(A). “Under the IDEA, an ‘individualized education program,’ called an IEP for short, 
serves as the ‘primary vehicle ’ for providing each child with the promised FAPE. ” Fry v. 
Napoleon Cmty. Schs., 580 U.S. 154, 158 (2017) (citing Honig v. Doe, 484 U.S. 305, 311 (1988); 
20 U.S.C. § 1414(d)). An IEP is a “personalized plan to meet all of the child’s ‘educational needs’” PageID #:
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that “ documents the child ’s current ‘levels of academic achievement, ’ specifies ‘measurable 
annual goals’ for how she can ‘make progress in the general education curriculum, ’ and lists the 
‘special education and related services ’ to be provided so that she can ‘advance appropriately 
toward [those] goals.’” Id. at 158-59 (citing 20 U.S.C. § 1414(d)(1)(A)(i)(I), (II), (IV)(aa)). 
The IDEA outlines a procedure for resolving disputes regarding whether a FAPE has been 
denied to a student. See id. at 159. F irst, a parent may file a complaint with the local or state 
educational agency. Id. (citing 20 U.S.C. § 1415(b)(6)). The parties may then have a preliminary 
meeting; they may also pursue mediation instead of, or in addition to, the meeting . Id. (citing 20 
U.S.C. §§ 1415(e), (f)(1)(B)(i)). If the parties cannot resolve the issue, a due process hearing is 
held. Id. (citing 20 U.S.C. § 1415(f)(1)(A), (f)(3)(A)(i)). The hearing officer’s decision may be 
appealed to the state agency, after which a parent may seek judicial review. Id. (citing 20 U.S.C. 
§ 1415(g), (i)(2)(A)). 
 The IDEA is not the only federal statute protecting the rights of disabled students. For 
example, Title II of the American with Disabilities Act (ADA) and Section 504 of the 
Rehabilitation Act “ cover both adults and children with disabilities, in both public schools and 
other settings.” Id. The ADA forbids public entities from discriminating based on disability, and 
the Rehabilitation Act “applies the same prohibition to any federally funded ‘program or activity.’” 
Id. (citing 42 U.S.C. §§ 12131-12132; 29 U.S.C. § 794(a)). “[B]oth statutes authorize individuals 
to seek redress for violations of their substantive guarantees by bringing suits for injunctive relief 
or money damages.” Id. at 160 (citing 29 U.S.C. § 794a(a)(2); 42 U.S.C. § 12133). 
 Before a plaintiff may pursue these avenues, however, a plaintiff must exhaust the IDEA’s 
procedures when the suit “‘ seek[s] relief that is also available ’ under the IDEA .” Id. at 165 PageID #:
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(alteration in original). Thus, the exhaustion requirement does not apply if the relief is not for the 
denial of a FAPE or consists of compensatory or punitive damages. 
First, a complaint seeking relief for any harms other than the denial of a FAPE is not subject 
to this exhaustion requirement. Id. at 169. “[I]n determining whether a suit indeed ‘seeks’ relief 
for such a denial, a court should look to the substance, or gravamen, of the plaintiff’s complaint.” 
Id. at 165. As the Supreme Court explained: 
One clue to whether the gravamen of a complaint against a school concerns the 
denial of a FAPE, or instead addresses disability -based discrimination, can come 
from asking a pair of hypothetical questions. First, could the plaintiff have brought 
essentially the same claim if the alleged conduct had occurred at a public facility 
that was not a school—say, a public theater or library? And second, could an adult 
at the school —say, an employee or visitor —have pressed essentially the same 
grievance? When the answer to those questions is yes, a complaint that does not 
expressly allege the denial of a FAPE is also unlikely to be truly about that subject; 
after all, in those other situations there is no FAPE obligation and yet the same basic 
suit could go forward. But when the answer is no, then the complaint probably 
does concern a FAPE, even if it does not explicitly say so; for the FAPE 
requirement is all that explains why only a child in the school setting (not an adult 
in that setting or a child in some other ) has a viable claim. 
 
Id. at 171. The Supreme Court also stated that “[a] further sign that the gravamen of a suit is the 
denial of a FAPE can emerge from the history of the proceedings.” Id. at 173. If a plaintiff starts 
by filing a complaint under the IDEA but shifts to judicial proceedings prior to completing the 
IDEA’s procedures, this “may suggest that she is indeed seeking relief for the denial of a FAPE—
with the shift to judicial proceedings prior to full exhaustion reflecting only strategic calculations 
about how to maximize the prospects of such a remedy.” Id. “Whether that is so depends on the 
facts; a court may conclude, for example, that the move to a courtroom came from a late-acquired 
awareness that the school had fulfilled its FAPE obligation and that the grievance involves 
something else entirely.” Id. PageID #:
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 Second, the exhaustion requirement only applies when a plaintiff requests a remedy that 
the IDEA can provide. Perez v. Sturgis Pub. Schs., 598 U.S. 142, 147 -48 (2023). The IDEA 
provides “a relatively flexible remedial framework”—compensatory and punitive damages are not 
available under the IDEA. W.A. v. Clarksville/Montgomery Cnty. Sch. Sys., No. 3:23-CV-00912, 
2024 WL 2702436, at *12 (M.D. Tenn. May 24, 2024), aff’d sub nom. William A. by & through 
E.A. v. Clarksville-Montgomery Cnty. Sch. Sys., 127 F.4th 656 (6th Cir. 2025); W.R. v. Ohio Health 
Dep’t, 651 F. App’x 514, 519 (6th Cir. 2016); Perez, 598 U.S. at 147-48 (2023). 
 In this instance, Defendants assert that Warsitz “has not even initiated any of these 
prerequisite administrative procedures or remedies” under the IDEA. (Defs.’ Mot. Dismiss 1). 
Warsitz does not contradict this assertion. (See Pl.’s Resp. Defs.’ Mot. Dismiss, DN 8). Because 
Warsitz has not met IDEA’s exhaustion requirement, any of Warsitz’s claims that seeks the same 
relief as provided by the IDEA will be barred. 
Defendants argue that all of Warsitz’s claims should be dismissed, citing Fry. (See Defs.’ 
Mot. Dismiss 5). Plaintiff, relying on the Supreme Court’s decision in Perez, argues in her 
response that because she seeks compensatory and punitive damages, the IDEA exhaustion 
requirement does not apply. (Pl.’s Resp. Defs.’ Mot. Dismiss 4). Defendants fail to address this 
issue in their reply. (See Defs.’ Reply Mot. Dismiss, DN 9). 
In this instance, Count One is brought under the IDEA and Count Four is brought under 
Kentucky law enacted to implement the requirement s of the IDEA. See Horton, 2013 WL 
4875025, at *2-3 (citing Fayette Cnty. Bd. of Educ. v. M.R.D. ex rel. K.D., 158 S.W.3d 195, 199 
(Ky. 2005)). Warsitz fails to state a claim under the IDEA or Kentucky’s state law analogue 
because she has not exhausted her administrative remedies; Count s One and Four of Warsitz’s PageID #:
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complaint are therefore dismissed. See id. (requiring exhaustion where the plaintiff asserted a 
claim under Title 707 of the Kentucky Administrative Regulations). 
The remaining claims—violations of the KRCA and retaliation, violations of Title II of the 
ADA, violations of Section 504 of the Rehabilitation Act, 3 IIED or outrage, malicious 
prosecution,4 and negligence 5—provide for compensatory or punitive damages, or both. 
Defendants’ motion to dismiss the remaining claims will therefore be denied.
V. CONCLUSION
For the foregoing reasons, IT IS HERE BY ORDERED that Defendants’ Motion to 
Dismiss (DN 4) is GRANTED IN PART and DENIED IN PART . Count s One and Four are
DISMISSED WITHOUT PREJUDICE. 
cc: counsel of record
3 The KCRA, ADA, and Rehabilitation Act authorize compensatory, but not punitive , damages. 
See KRS 344.450; Bragdon v. Faneuil, Inc. , No. 5:21 -323-DCR, 2022 WL 507430, at *3 (E.D. 
Ky. Feb. 18, 2022); A. J. T. by & through A. T. v. Osseo Area Schs., Indep. Sch. Dist. No. 279, 605 
U.S. 335, 339 (2025); Barnes v. Gorman, 536 U.S. 181, 189 (2002); Fry, 580 U.S., at 160; see 29 
U.S.C. § 794a(a)(2); 42 U.S.C. § 12133.
4 Compensatory and punitive damages are available for IIED, or outrage, and malicious 
prosecution. Burgess v. Taylor, 44 S.W.3d 806, 814 (Ky. App. 2001); Raine v. Drasin, 621 S.W.2d 
895, 902 (Ky. 1981), abrogated by Martin v. O’Daniel, 507 S.W.3d 1 (Ky. 2016).
5 Compensatory, but not punitive damages, are available for simple negligence. Henderson City 
Ry. Co. v. Lockett, 98 S.W. 303, 304 (Ky. 1906). Punitive damages are only recoverable in actions 
for gross negligence. Id.
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