2
Rehabilitation Act,=20
and various state laws. We have jurisdiction under 28 U.S.C.
=C2=A7 1291. =
We review de=20
novo, Leong v. Potter, 347 F.3d 1117, 1121 (9th Cir. 2003),
and we =
affirm in part,=20
vacate in part, and remand.
The district =
court=20
properly dismissed appellants=E2=80=99 claims under the IDEA and
the =
Rehabilitation Act=20
because they failed to exhaust administrative due process
procedures =
or=20
substantiate their claims that exhaustion was futile. See 20 =
U.S.C.
=C2=A7 =
1415(f), (i)(2)(A),=20
(l) (requiring exhaustion); Kutasi v. Las Virgenes Unified =
Sch.
Dist., 494 F.3d=20
1162, 1167 (9th Cir. 2007) (explaining that plaintiff who alleges =
a
violation of =
Title V=20
of the Rehabilitation Act must exhaust the IDEA=E2=80=99s due =
process
hearing =
procedure if=20
the action =E2=80=9Cseek[s] relief that is also available under=E2=80=9D =
the
IDEA); =
Robb v.=20
Bethel Sch. Dist. # 403, 308 F.3d 1047, 1050 n.2 (9th Cir. =
2002)
(noting that =
plaintiff=20
bears the burden of proving that exhaustion of the IDEA=E2=80=99s
procedures =
would be=20
futile or inadequate). The district court, however, should
have =
dismissed Claudia=20
Houston=E2=80=99s federal claims without prejudice. See =
O=E2=80=99Guinn
v. =
Lovelock Corr.=20
Ctr., 502 F.3d 1056, 1063 (9th Cir. 2007) (explaining that the
district =
court=20
correctly dismissed the lawsuit without prejudice because =
plaintiff
failed to =
exhaust=20
administrative remedies); Kutasi, 494 F.3d at 1163-64, 1170
(affirming =
dismissal=20
of complaint without prejudice when plaintiffs failed to
exhaust =
administrative=20
remedies in action seeking relief for injuries that could =
be
3
redressed to =
some=20
degree by the IDEA=E2=80=99s procedures). Accordingly, we vacate =
the
district =
court=E2=80=99s=20
judgment to the extent it dismissed Claudia Houston=E2=80=99s =
federal
claims with =
prejudice,=20
and remand for entry of judgment dismissing the entire
action =
without=20
prejudice.
Because the =
district=20
court properly dismissed appellants=E2=80=99 federal claims, the
court did =
not err by=20
dismissing the state law claims. See Scott v. Pasadena =
Unified
Sch. =
Dist., 306=20
F.3d 646, 664 (9th Cir. 2002) (holding that a federal court has no
discretion =
to retain=20
supplemental jurisdiction over state law claims if the court
dismisses =
for lack of=20
subject matter jurisdiction).
We do not =
consider any=20
of the arguments raised for the first time on reply.
See =
Cedano-Viera v.=20
Ashcroft, 324 F.3d 1062, 1066 n.5 (9th Cir. 2003).
Appellants=E2=80=99 request=20
for judicial notice and their motion for leave to file a
supplemental =
brief and=20
to enlarge the district court record are denied.
Appellants =
shall bear=20
the costs on appeal.
AFFIRMED =
in part,=20
VACATED in part, and =
REMANDED.