S.s., a Minor, by and through his Parents and Next Friends, James and Carol Stutts v. Eastern Kentucky University

* The Honorable Gregory W. Carman, Judge for the United States Court of International
Trade, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0179n.06
Filed: March 9, 2005
No. 04-5262
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
S.S., a Minor, by and through his Parents and
Next Friends, James and Carol Stutts,
Plaintiff-Appellant,
v.
EASTERN KENTUCKY UNIVERSITY;
JACQUELINE VANCE, Individually and in
her Official Capacity as Director of The Model
Laboratory Middle School of Eastern
Kentucky University; and ELLEN RINI,
Individually and in her Official Capacity as
School Psychologist of The Model Laboratory
Middle School of Eastern Kentucky
University.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF KENTUCKY
Before: MOORE and SUTTON, Circuit Judges; and CARMAN, Judge.*
PER CURIAM. The plaintiff in this case, S.S., began attending Eastern Kentucky
University’s Model Laboratory School (Model) as a sixth grader in the fall of 2000. The plaintiff
suffers from cerebral palsy, dyslexia and severe anxiety-related disorders. As a student with special
needs under the Individuals with Disabilities Education Act (IDEA), the plaintiff had an
individualized education program (IEP) developed for him by Model, which lays out specific steps

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No. 04-5262
S.S. v. Eastern Kentucky Univ., et al.
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that the school will take to improve a disabled student’s behavior and learning. Shortly after
beginning and throughout his time at Model (ending only with his voluntary departure from the
school in 2003), plaintiff claims that he was subjected to physical and emotional abuse by his peers
on a near daily basis and was also the subject of discrimination by Model’s administrators and
faculty. Over the course of his enrollment at Model, plaintiff further alleges, his parents had many
meetings about the abuse with Jacqueline Vance (Model’s director), Ellen Rini (Model’s
psychologist) and other faculty but were unable to persuade Model to take affirmative steps to
protect him.
On January 16, 2003, plaintiff (through his parents) brought suit against Model, Vance and
Rini. The defendants, plaintiff claimed, had collectively failed to protect him from harassment,
physical abuse and discrimination by peers, teachers and school administrators. He alleged
violations of the Americans with Disabilities Act (ADA), § 504 of the Rehabilitation Act, § 1983
(claiming violations of the equal protection clause and the IDEA) and state tort law. Plaintiff’s ADA
claim, for example, alleged that he “ha[d] been the subject of constant and pervasive harassment,
physical abuse, and discrimination as a result of his numerous psychological and physical
disabilities.” JA 22. Plaintiff’s equal protection claim alleged that the defendants’ “reckless
inactions ha[d] deprived [him] of his Fourteenth Amendment right to equal protection of the laws
by treating him differently from other, non-disabled students, and by discriminating against him by
reason of his disabilities.” JA 34.

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No. 04-5262
S.S. v. Eastern Kentucky Univ., et al.
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After an initial period of discovery, the defendants moved for summary judgment, claiming
that the IDEA required plaintiff to exhaust administrative procedures before filing suit. The district
court accepted the defendants’ argument on January 23, 2004, dismissing the federal claims without
prejudice pending exhaustion of plaintiff’s administrative remedies and declining for the time being
to exercise supplemental jurisdiction over the state law claims.
After dismissal of the suit and during the pendency of this appeal, plaintiff filed a request
for a due process hearing with the Kentucky Department of Education, thus beginning to exhaust
his administrative procedures. A week before oral argument, this court received a Rule 28(j) citation
of supplemental authorities from the plaintiff. That letter indicated that Kentucky’s Exceptional
Children Appeals Board issued a decision on February 9, 2005, addressing all of the plaintiff’s
claims. In accordance with the district court’s order, plaintiff thus has now exhausted his claims.
In light of these developments, we dismiss this appeal as moot, vacate the decision of the
district court, reinstate plaintiff’s claims and remand for a merits determination on each of plaintiff’s
claims. See, e.g., U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 23 (1994);
United States v. Munsingwear, Inc., 340 U.S. 36 (1950).

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