UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
C.G. ) ) Plaintiff, ) ) Vv. ) Civil Action No. 23-468-SRF ) (Consolidated) ADULT AND PRISON EDUCATION ) RESOURCES WORKSHOP ) ) Defendant. ) ) DELAWARE DEPARTMENT OF ) EDUCATION, ADULT AND PRISON ) EDUCATION RESOURCES WORKSHOP ) ) Plaintiff, ) ) V. ) ) C.G. ) ) Defendant. )
MEMORANDUM ORDER!
At Wilmington this 24th day of June, 2025, the court having considered the Delaware
Department of Education’s (“DDOE”) pending motion to dismiss Counts II and IV of C.G.’s
counterclaims, (D.I. 27),? IT IS ORDERED that the motion to dismiss is DENIED for the
following reasons.
1. Background. The following facts are taken from C.G.’s counterclaims. (D.I. 23 at
36-69) In January of 2019, C.G. was a pretrial detainee at the Howard R. Young Correctional
' On July 14, 2024, the parties consented to the jurisdiction of the Magistrate Judge to conduct all proceedings in this case including trial, the entry of final judgment, and all post-trial proceedings. (D.I. 17) * The briefing associated with the pending motion to dismiss is found at D.I. 29 and D.I. 30.
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Institution (“Young”). (/d. at ¥3) At that time, he was eligible for special education and related
services under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et
seg., and he had a right to receive a free and appropriate public education (“FAPE”) while he was incarcerated. (/d.) C.G. was enrolled in the Adult and Prison Education Resources
Workgroup’s (‘APER”) education program from March of 2019 through February of 2020 and
from March of 2021 through June of 2023. Ud. at § 12)
2. On October 24, 2022, C.G. filed a special education due process complaint against
APER, seeking compensatory education and injunctive relief in response to violations of his
right toa FAPE. (Ud. at § 13) C.G. subsequently served APER with subpoenas duces tecum and
ad testificandum issued by the Delaware Secretary of Education, Dr. Mark Holodick. (/d. at {f
73-74) On January 9, 2023, APER confirmed it had produced all existing documents responsive
to the subpoena duces tecum except for email correspondence. (/d. at | 77)
3. The next day, C.G. filed a motion to compel compliance with the subpoena, and
APER responded on January 13, 2023 with a motion to quash the subpoena. (/d. at § 78) In the
motion to quash, APER argued that Dr. Holodick lacked the authority to issue subpoenas for
documents and, in the alternative, the request was unduly burdensome. (Jd. at | 79) The hearing
panel denied C.G.’s motion to compel and granted APER’s motion to quash the subpoena duces
tecum on January 17, 2023, finding that the Delaware regulations do not “specifically allow for a
records subpoena, only a subpoena for a witness,” and there is “no prehearing discovery in IDEA
or in Delaware regulation.” (Jd. at § 84)
4. After conducting an evidentiary hearing, the hearing panel issued a decision and
order on March 31, 2023 finding that APER violated C.G.’s right toa FAPE. Ud. at § 14) C.G.
initiated the instant litigation in this court on April 28, 2023 by filing a petition for attorney’s SPERee Eoey |Py AL pi a fete Rage Re wee BR TE ofl OE oh 7 Banal me a ie
“ie < Bo RANA RS ke Pr aah. PO RALARL Dae tt ws
fees as the prevailing party at the administrative hearing. Ud. at 9 15) On June 28, 2023, APER
filed a complaint against C.G. seeking a reversal of the administrative hearing panel’s decision.
(Id. at § 16) The two matters were then consolidated. (/d. at | 18)
5. On July 21, 2023, the court ordered the parties’ joint stipulation to extend the
deadline for C.G. to answer APER’s complaint to January 2, 2024. Ud. at 919) C.G. filed its
answer and counterclaims in accordance with the stipulated extension, asserting counterclaims
against APER and the DDOE for violations of the retaliation and anti-discrimination provisions
of Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation
Act. (id. at ff 107-62) C.G.’s retaliation claims against APER and the DDOE allege that the
agencies interfered in C.G’s special education due process proceedings by changing the
longstanding practice of issuing subpoenas duces tecum and allowing the hearing panels to
determine the scope of discovery. (/d. at [{ 136, 159)
6. Legal standard. Rule 12(b)(6) permits a party to seek dismissal of a complaint for
failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To state a
claim upon which relief can be granted pursuant to Rule 12(b)(6), a complaint must contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). Although detailed factual allegations are not required, the complaint must set
forth sufficient factual matter, accepted as true in the light most favorable to the plaintiff, to
“state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). A claim is facially plausible
when the factual allegations allow the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged. Jgbal, 556 U.S. at 663; Twombly, 550 U.S. at 555-56. 2 Sey ANAGR Qk ers poles rref) ya ‘ aN Be SNP
‘e Ch a oe ee Cie Od
7. When considering a Rule 12(b)(6) motion to dismiss, the court must accept as true
all factual allegations in the complaint and view them in the light most favorable to the plaintiffs.
Umland v. Planco Fin., 342 F.3d 59, 64 (3d Cir. 2008). The court may consider only the
allegations in the complaint, documents incorporated by reference into the complaint, and
matters of which the court may take judicial notice. Tellabs, Inc. v. Makor Issues & Rts., Ltd.,
551 U.S. 308, 322 (2007); see also Barrier I Sys., Inc. v. RSA Protective Techs., LLC, C.A. No.
20-340-MN, 2021 WL 4622545, at *1 (D. Del. Oct. 7, 2021) (applying the Rule 12(b)(6)
standard to a motion to dismiss counterclaims).
8. Analysis. The DDOE argues that Counts II] and IV of C.G.’s counterclaims for
retaliation under the Rehabilitation Act and the ADA should be dismissed for two reasons. First,
the DDOE contends that it was not properly joined as a party to the counterclaims. (D.I. 27 at 1-
3) Next, the DDOE alleges that Counts II and IV of the counterclaims fail to state a claim upon
which relief can be granted. (/d. at 3-9) The court addresses each argument in turn.
9. Joinder of the DDOE. The DDOE argues that Counts II and IV of C.G.’s retaliation
counterclaims should be dismissed because it was not properly joined as a party to the
counterclaims. (D.I. 27 at 1-2) In its reply brief, the DDOE acknowledges that a party may be
joined to a counterclaim under Federal Rules of Civil Procedure 13(h) and 20(a) if the relief
sought against the joined party arises out of the same transaction or occurrence and involves
common questions of law or fact. (D.I. 30 at 1) However, the DDOE contends that C.G.’s
counterclaims against it remain deficient because they focus on the conduct of the deputy
attorneys general representing the DDOE and APER, as opposed to the entities themselves. (/d.
at 2) 10. As a threshold matter, the court finds it difficult to reconcile the DDOE’s argument
that it is not a party, with the caption and averments in the complaint filed in Civil Action No.
23-702-SRF. The DDOE and APER are effectively blended as the singular “Plaintiff” in the
action and aver as follows in the first paragraph:
Plaintiff is the Adult and Prison Education Resources workgroup of the Delaware Department of Education (“DDOE”) within the Executive Branch of the State of Delaware. 14 Del. C. § 101. Plaintiff and the Delaware Department of Correction (“DDOC’”) jointly administer the Prison Education Program. 11 Del. C. § 6531A(a).
(C.A. No. 23-702-SRF, D.I. 1 at § 1) Despite these averments in its own pleading, the DDOE
now asserts, without reference to the record, that it is an entity separate from APER and is a non-
party for purposes of C.G.’s counterclaim. To the extent that such a position is not consistent
with its own pleading, it is rejected.
11. Regardless of whether the DDOE is considered a “party,” there is an additional basis
for denying its motion to dismiss for improper joinder because C.G.’s counterclaims against the
DDOE and APER arise from the same transaction or occurrence as the underlying due process
hearing. C.G.’s retaliation counterclaims are based on the DDOE and APER’s alleged
interference in the special education due process proceedings. (D.I. 23 at FJ 124-39, 153-62)
For example, the counterclaims allege that APER and the DDOE interfered with C.G.’s request
for records by changing the DDOE’s longstanding interpretation of the law to avoid the
production of documents in response to C.G.’s subpoena requests. (Jd. at [9 126, 134-36)
12. In its reply brief, the DDOE does not meaningfully challenge C.G.’s assertion that
his retaliation counterclaims arise out of the same transaction or occurrence. (D.I. 30 at 1)
Instead, the DDOE contends that the retaliation counterclaims are directed at the conduct of the
Deputy Attorneys General who represented APER and the DDOE, instead of the entities PQ end Ley AN ABS Se SNoarcrimeant 4G Milam Oe PO Ass ers poles rref) ya ‘e Le AOS RR LE het LA ch Ek wl poogak PX, S
themselves. (/d. at 2) The DDOE’s position is not supported by the pleaded allegations, which
state that “APER and DDOE retaliated against C.G. by using their influence and authority to
interfere in the special education due process hearings and change DDOE’s own interpretation of
the law and decades-old practice of issuing subpoenas duces tecum and allowing Hearing Panels
to determine the scope of discovery.” (D.I. 23 at Jf 136, 159) The counterclaims expressly state
that “[t]his is not an attorney zealously advocating for the position of their client[,]” but instead
represents the actions of “several arms of DDOE collectively making changes to diminish a
student’s rights upon filing a complaint.” (/d. at J 137) (emphasis added). The pleaded
averments plausibly allege that the retaliation counterclaims are directed to the actions of APER
and the DDOE, as opposed to the Deputy Attorneys General. Consequently, the DDOE’s motion
to dismiss Counts II and IV of C.G.’s counterclaims based on improper joinder is DENIED.?
13. Failure to state a claim. The DDOE contends that C.G.’s counterclaims contain
insufficient facts to support a claim for retaliation under either the Rehabilitation Act or the
ADA. (D.I. 27 at 4) The parties agree that the elements of a cause of action for retaliation under
both the Rehabilitation Act and the ADA are similar. (/d.; D.I. 29 at 5) To state a claim for
retaliation under Section 504 of the Rehabilitation Act, a plaintiff must allege that: (1) he
engaged in a protected activity; (2) the retaliatory action was sufficient to deter a person of
ordinary firmness from exercising his rights; and (3) there was a causal connection between the
two. See Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). The
elements of a cause of action for retaliation under the ADA likewise require a showing that:
3 Having determined that the DDOE was properly joined to C.G.’s counterclaims under Rule 13, the court need not reach APER’s alternative argument that the counterclaims should be treated as a third-party complaint under Rule 14. (D.I. 27 at 2-3) APER did not pursue its argument under Rule 14 in its reply brief. (D.I. 30) cS ew ms set Pa saa - RSoaF ye “es a ewercieysem? gates EOS BN te AEN eeBi OF f o¢ os a 2 ho amayeadl ra ae es we Set rea ren ap PEAS Pte oe ee SN RCRD to
(1) the plaintiff engaged in protected activity; (2) the plaintiff was subject to an adverse action
either after or contemporaneous with the protected activity; and (3) a causal connection existed
between the protected activity and the adverse action. See Stouch v. Twp. of Irvington, 354 F.
App’x 660, 667 (3d Cir. 2009).
14. The parties do not dispute the first element pertaining to C.G.’s engagement in a
protected activity. Regarding the second element, the DDOE contends that the counterclaims do
not identify acts that could be considered adverse actions or actions sufficient to deter a person of
ordinary firmness from exercising his rights. (D.I. 27 at 5) A review of Counterclaims I] and IV
in the light most favorable to C.G. as the nonmoving party does not support the DDOE’s
position.
15. C.G.’s counterclaims plausibly allege that the Delaware Secretary of Education has a
long history of issuing subpoenas duces tecum in proceedings under the IDEA, and Dr. Holodick
issued a subpoena duces tecum in response to C.G.’s request consistent with this longstanding
practice. (D.I. 23 at J] 73, 136, 159) The pleading avers that APER largely complied with
C.G.’s subpoena duces tecum by producing all responsive documents except for emails. (/d. at
{ 77) These allegations, taken as true, support C.G.’s position that service of and compliance
with subpoenas duces tecum in special education due process proceedings was a standard
procedure.
16. The counterclaims further allege that C.G. filed a motion to compel compliance with the subpoena and APER responded with a motion to quash, arguing that Dr. Holodick lacked the
authority to issue subpoenas duces tecum. (Id. at {] 78-79) The hearing panel contacted the
DDOE’s Exceptional Children Resources Workgroup (“ECR”) for guidance on how to resolve
the pending discovery motions and, consistent with APER’s position, the ECR opined that Dr. Holodick lacked the authority to issue subpoenas duces tecum. (Id. at J§ 82-83) Following this
exchange, the hearing panel denied C.G.’s motion to compel and granted APER’s motion to
quash based on the guidance it received from the ECR. (/d. at J 84) C.G.’s counterclaims allege
that this sequence of events illustrates how “APER and DDOE retaliated against C.G. by using
their influence and authority to interfere in the special education due process hearings and
change DDOE’s own interpretation of the law and decades-old practice of issuing subpoenas
duces tecum and allowing Hearing Panels to determine the scope of discovery.” (/d. at { 136;
see also id. at § 159)
17. Viewing these allegations in the light most favorable to C.G., it is plausible to infer
that the DDOE’s course of conduct during the due process proceedings amounts to an adverse
action designed to prevent C.G. from obtaining standard discovery. See Jgbal, 556 U.S. at 663
(“A claim has facial plausibility when the pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”). It is also plausible
to infer that the DDOE sought to deter students from engaging in a protected activity by
changing its longstanding discovery practices in response to C.G.’s effort to enforce his
subpoena and proceed with his special education due process hearing. See id. Consequently,
C.G.’s retaliation counterclaims allege plausible facts supporting the second element of
retaliation claims under Section 504 of the Rehabilitation Act and the ADA.
18. The DDOE contends that there is no plausible adverse action because C.G. admits
that the hearing panel intended to grant APER’s motion to quash as “overbroad and unduly
burdensome” regardless of the DDOE’s assessment regarding the authority to issue subpoenas
duces tecum. (D.1. 30 at 3) This is a mischaracterization of C.G.’s counterclaim, which states
that APER’s motion to quash “argu[ed] that the Secretary lacked the authority to issue subpoenas a) ter ie ier poy#,ed
for documents and, in the alternative, if the Secretary did have the authority, the request is an
undue burden.” (D.I. 23 at § 79) There is no indication in the counterclaims that the hearing
panel considered the merits of APER’s alternative argument of undue burden. Instead, C.G.’s
pleading states that the hearing panel granted APER’s motion to quash based on a “finding that
the Delaware regulations do not ‘specifically allow for a records subpoena, only a subpoena for a
witness’ and that there is ‘no prehearing discovery in IDEA or in Delaware regulation.’” (Ud. at J
84)
19. The DDOE makes a cursory argument that C.G.’s counterclaims fail to establish a
causal connection between his protected activity and the DDOE’s allegedly retaliatory actions in
accordance with the third element of retaliation claims under Section 504 of the Rehabilitation
Act and the ADA. (D.I. 27 at 9) C.G. responds that an unusually suggestive temporal proximity
between the protected activity and the retaliation can be inferred from the DDOE’s assertion of
its influence to change an established discovery practice relating to subpoenas duces tecum when
C.G. exercised his rights. (D.I. 29 at 7-8) The DDOE does not counter C.G.’s argument in its
reply brief. (D.I. 30)
20. C.G.’s counterclaims plausibly allege a causal connection between his protected
activity and the DDOE’s retaliatory conduct, stating that the case involves “several arms of
DDOE collectively making changes to diminish a student’s rights upon filing a complaint.” (D.I.
23 at ¢ 137) C.G.’s pleading alleges that APER historically entertained subpoenas duces tecum
and largely complied with C.G.’s subpoena before APER challenged Dr. Holodick’s authority to
issue subpoenas duces tecum once C.G. moved to compel the production of emails and the
DDOE supported APER’s position. (/d. at { 73-84) These allegations are “sufficient to raise
the inference that [C.G.’s] engagement in a protected activity was the likely reason” for the adverse action. Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 253 (3d Cir. 2017)
(emphasis in original).
21. The counterclaims also allude to the fact that Delaware Deputy Attorneys General
represented both Dr. Holodick and the DDOE’s ECR Workgroup. (D.I. 23 at ff] 79-80) Citing
case authority, the DDOE argues that this does not present a conflict of interest. (D.I. 27 at 6)
C.G. suggests that these appearances bolster his position that the DDOE’s actions in his due
process proceeding were not neutral. (D.I. 29 at 9-10) However, C.G. acknowledges that this
potential conflict is not the basis of his challenge to the hearing panel’s decision as a violation of
his right to due process. (/d. at 9) Regardless of any association between the representatives of
Dr. Holodick and the DDOE’s ECR Workgroup, C.G.’s counterclaim plausibly avers that the
DDOE and APER interfered in his special education due process hearing by changing a
longstanding discovery practice in retaliation for C.G.’s engagement in protected activity. (D.I.
23 at Jf 136, 159)
22. For the first time in its reply brief, the DDOE challenges the viability of C.G.’s
retaliation counterclaims based on the injunctive relief sought against the DDOE. (D.I. 30 at 3)
“Arguments raised for the first time before a district court in a reply brief are deemed forfeited.”
In re Niaspan Antitrust Litig., 67 F.4th 118, 135 (3d Cir. 2023); see also D. Del. LR 7.1.3(c)(2)
(“The party filing the opening brief shall not reserve material for the reply brief which should
have been included in a full and fair opening brief.”). The DDOE forfeited its arguments based
on C.G’s request for injunctive relief.
23. Conclusion. For the foregoing reasons, IT IS ORDERED that the DDOE’s motion
to dismiss Counts II and IV of C.G.’s counterclaims is DENIED. (D.I. 27)
A Lin\\We he. ) Sherry R. Falton \ United States Magistrate Judge
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