D. Conn.: Mk, et al. v. Education,...

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

M.K., by and through his Mother : and Next Friend, MRS. K.,

Plaintiffs,

vs. No. 3:96cv00482(WIG)

THEODORE SERGI, et al.,

Defendants.

-----------------------------------X

RULING ON THE DCF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [# 230]

Mrs. K., on behalf of and as next friend of her son, M.K.,

(collectively “plaintiffs”), has brought this action alleging

that defendants violated the Individuals with Disabilities

Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the Americans

With Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et

seq.; § 504 of the Rehabilitation Act of 1973, as amended, 29

U.S.C. § 794; and plaintiffs’ rights under the Due Process Clause

of the Fourteenth Amendment to United States Constitution, made

actionable by 42 U.S.C. § 1983. Named as defendants are Theodore

Sergi, the former Commissioner of the Department of Education

(“DOE”); Darlene Dunbar, the Commissioner of the Connecticut

Department of Children and Families (“DCF”), who is sued in her

official capacity; Karl Kemper, the Regional Administrator of the

Eastern Region of DCF,1 who is sued in his individual capacity;

Carissa Lebrun,2 Kemper’s subordinate, who is also sued in her

individual capacity;3 the Putnam Board of Education (“Putnam”);

John Shea, the former Director of Student Services for Putnam;

and Patricia Kline, his successor as Putnam’s Director of Student

Services.

Plaintiffs’ consolidated complaint4 sets forth seven counts,

five of which contain claims against one or more of the DCF

defendants. Count I is a claim for “costs, attorney’s fees, and

expert fees” based on plaintiffs’ alleged status as prevailing

parties at the due process hearings, Case Nos. 95-353 and 03-087.

Count II alleges that the Hearing Officer’s decisions in these

cases were erroneous in certain respects. Count III claims that

DCF’s alleged policy and practice of placing “arbitrary time

1 Karl Kemper states in his affidavit that he was Regional Administrator of the Eastern Region of DCF from May 1, 1998, to February 2002. 2 Carissa LeBrun states in her affidavit that she was the social worker assigned to M.K.’s case between June 1995 and March 1996. Between April 1998 and June 1998, she was the social work supervisor on M.K.’s case. 3 The Department of Children and Families, Dunbar, Kemper, and LeBrun are referred to herein collectively as the “DCF defendants.” 4 Plaintiffs’ complaint has been amended four times since 1996, culminating in the last complaint filed November 18, 2003, which is referred to by the parties as the “consolidated complaint.” It encompasses plaintiffs’ claims in Case No. 3:96cv00482(WIG) and Case No. 3:03cv1505(WIG).

limits” on certain home-based services as compared to

institutional services violates 28 C.F.R. § 38.130(b) and the

principles articulated in Olmstead v. L.C., 527 U.S. 581 (1999),

and Jackson v. Fort Stanton Hospital & Training School, 757 F.

Supp. 1243 (D.N.M. 1990), rev’d in part, 964 F.2d 980 (10th Cir.

1992), and that DCF’s placement of arbitrary time limits on the

provision of services designed to prevent the breakdown of the

family unit violates 28 C.F.R. § 35.130(b)(3)(ii). Both

practices, they claim, discriminate against children based on the

severity of their disabilities. Count IV alleges that defendants

Kemper and LeBrun violated plaintiffs’ rights secured by the ADA,

§ 504 of the Rehabilitation Act, and § 1983 by acting

intentionally and/or in reckless disregard of plaintiffs’ federal

rights with respect to the following actions: (a) threatening to

terminate DCF support if Mrs. K. did not surrender her right to

mandatory Protective Services and apply for Voluntary Services;

(b) by threatening to terminate DCF support if Mrs. K. did not

authorize the DCF treatment team to use restraints and seclusion

on M.K. while he was hospitalized; (c) by contacting her

employer, Quinebaug Valley Youth and Family Services, and

suggesting that she was unfit to work on DCF-funded cases because

she had filed a lawsuit against DCF, and by refusing to take

action to remediate the harm to Mrs. K. after she complained to

defendant Kemper about these retaliatory acts; (d) by refusing to

release information to a potential employer because of the

lawsuit; (e) by designating M.K. a “voluntary” DCF case in the

face of Mrs. K.’s opposition; and (f) by threatening to terminate

DCF funding if Mrs. K. continued to challenge the separate

services provided to the family. Count IV further challenges the

following alleged actions of defendants Dunbar and Kemper as

violating the ADA and § 504 of the Rehabilitation Act: (a) by

establishing and implementing policies and practices which permit

nearly unlimited funding for institutional placements for M.K.

but only time-limited services that were limited in for home-

based children; (b) by establishing and implementing arbitrary

time limitations on the length of time support services would be

provided to the K. family when it was clear that Mrs. K. could

not keep M.K. at home without substantial in-home and community-

based programs and/or residential support; (c) by terminating

and/or threatening to terminate DCF-funded supports that were

necessary to enable M.K. to receive an appropriate education; and

(d) by failing and/or refusing to cooperate with Putnam to

develop and implement a transition plan for M.K. The fifth count

is addressed to the Putnam defendants. The sixth count is

addressed to the Commissioner of the Department of Education.

The last count, Count VII, is brought pursuant to § 1983 for

defendant Kemper and LeBrun’s alleged violation of plaintiffs’

due process rights by virtue of their alleged intentional and/or

reckless acts of intimidation and retaliation set forth above, as

well as (a) by forcing Mrs. K. to surrender her parental rights

or her entitlement to mandatory DCF services in order to obtain

necessary services for M.K.; (b) by failing to provide written

notice prior to the termination of DCF services; (c) by failing

to provide plaintiffs with a reasonable opportunity to

participate in the decision-making as to what services would be

funded by DCF; and (d) by subjecting M.K. to restraints and

seclusion without informed consent.

Additionally, as to the DCF defendants, plaintiffs allege

that defendant Dunbar, as Commissioner of DCF, was aware of

M.K.’s need for residential, therapeutic, and other professional

support services to maintain him in his home community but failed

to take action to put those services in place so that M.K. could

live and receive education other than in segregated residential

institutions. (Consol. Compl. ¶ 8.) As to defendant Kemper, the

Regional Administrator for the Eastern Region of DCF, plaintiffs

allege that he, too, was aware of M.K.’s needs but, rather than

providing the necessary services, he authorized the maintenance

of M.K.’s out-of-state placement for so long that M.K. lost the

chance to develop a healthy relationship with his family. (Id.

at ¶ 9.) Plaintiffs also claim that he took specific actions in

retaliation for Mrs. K.’s attempts to enforce her federal rights,

including having his subordinates contact Mrs. K.’s employer to

suggest that she was an unfit employee to work on DCF-funded

programs. (Id.) As to defendant LeBrun, plaintiffs allege that

she was Kemper’s subordinate and participated in the decision to

force plaintiff to switch from mandatory Protective Services to

Voluntary Services and maintain M.K. as a “voluntary” client of

DCF. (Id.)

As relief, plaintiffs seek an order, inter alia, requiring

defendants to fully and faithfully implement the Hearing

Officer’s decisions; requiring them to pay attorney’s fees,

costs, and expert witness fees; finding that defendants are

responsible for the costs of all of the residential and support

services provided to M.K., which were necessary for him to

benefit from his education; ordering defendants to maintain

funding for M.K.’s therapeutic foster placement until transition

planning is completed; ordering defendants to provide an

appropriate array of support services in the community and school

so that M.K. can continue to live in the community and attend

public school; reversing the Hearing Officer’s decision to the

extent that she concluded she did not have jurisdiction over DCF,

that funding for M.K.’s therapeutic placement is not required by

the IDEA and ADA, and that she did not have jurisdiction to hold

Mrs. K. and M.K. harmless from claims for reimbursement of

amounts paid by DCF for educational services; permanently

enjoining DCF from reducing or terminating services to M.K.

without prior notice and an opportunity to be heard; and awarding

plaintiffs compensatory and punitive damages. (Consol. Compl. §

V.)

SUMMARY JUDGMENT STANDARD

The standard governing motions for summary judgment is well-

settled. A motion for summary judgment may not be granted unless

the court determines that there is no genuine issue of material

fact and that the moving party is entitled to judgment as a

matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986). The court must resolve

all ambiguities and draw all inferences in favor of the

non-moving party. Id. at 255. If there is any evidence in the

record from which a reasonable inference could be drawn in favor

of the non-moving party on a material issue of fact, summary

judgment is improper. See Chambers v. TRM Copy Centers Corp., 43

F.3d 29, 37 (2d Cir. 1994).

The IDEA provides that “[a]ny party aggrieved by the

findings and decision” made by a hearing officer “shall have the

right to bring a civil action with respect to the complaint

presented . . . in a district court of the United States.” 20

U.S.C. § 1415(i)(2)(A). The district court “(i) shall receive

the records of the administrative proceedings; (ii) shall hear

additional evidence at the request of a party; and (iii) bas[e]

its decision on the preponderance of the evidence.” 20 U.S.C. §

1415(i)(2)(B); see 34 C.F.R. § 300.512. Thus, “[f]ederal courts

assess IDEA petitions based on the ‘preponderance of the evidence

developed at the administrative proceedings and any further

evidence presented by the parties.’” M.S. v. Board of Educ. of

Yonkers, 231 F.3d 96, 102 (2d Cir. 2000) (quoting Walczak v.

Florida Union Free School Dist., 142 F.3d 119, 122-23 (2d Cir.

1998)), cert. denied, 532 U.S. 942 (2001). The district court

must give “due weight” to the findings and decision of the

hearing officer. See Hendrick Hudson Dist. Bd. of Educ. v.

Rowley, 458 U.S. 176, 206 (1982). This deference seeks to ensure

that district courts do not “substitute their own notions of

sound educational policy for those of the school authorities

which they review.” Id.; see also Mrs. B. v. Milford Bd. of

Educ., 103 F.3d 1114, 1120 (2d Cir. 1997). The court’s “inquiry,

however, is not directed to discerning whether there are disputed

issues of fact, but rather, whether the administrative record,

together with any additional evidence, establishes that there has

been compliance with the IDEA’s processes and that the child’s

educational needs have been appropriately addressed.” A.S. v.

Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 539 (D. Conn. 2002).

Summary judgment has been described by this Court as the “most

pragmatic procedural mechanism in the Federal Rules for resolving

IDEA actions.” Id. (internal quotation marks and citations

omitted).

While the court must afford deference and due weight to a

hearing officer’s findings of fact, the court reviews de novo

legal issues regarding the IDEA, other federal and state

statutes, and due process issues under the United States or State

constitutions, the rationale being that hearing officers do not

have greater experience or expertise than the courts on such

matters. See Lillbask v. Sergi, 193 F. Supp. 2d 503, 508 (D.

Conn. 2002); see also Mrs. B. v. Milford Bd. of Educ., 103 F.3d

at 1122.

DISCUSSION

The DCF defendants have moved for summary judgment as to all

counts of plaintiffs’ consolidated complaint against them on the

following grounds:

1. Sovereign immunity bars all official capacity claims;

2. The DCF defendants are entitled to qualified immunity as

to plaintiffs’ claims for money damages under § 1983;

3. The DCF defendants did not violate plaintiffs’ rights by

admitting M.K. to the Voluntary Services program;

4. Except when DCF is acting as the LEA, DCF has no

responsibility for services to M.K. under the IDEA;

5. The DCF defendants did not retaliate against Mrs. K. or

M.K. at any time;

6. Plaintiffs have failed to state a claim under the ADA or

§ 504 of the Rehabilitation Act;

7. There is no requirement that DCF contact a parent prior

to using restraints on a child who has been hospitalized for

psychiatric reasons;

8. Certain of plaintiffs’ claims are moot; and

9. The Court cannot enjoin the State from collecting a

debt.

Plaintiffs respond that this Court lacks jurisdiction over

DCF’s lawsuit against Mrs. K. and M.K. because DCF failed to

exhaust administrative remedies, and DCF is precluded by the

doctrines of res judicata and collateral estoppel from

relitigating any matter than was raised or could have been raised

in administrative case No. 03-087.

The procedural history of this case and facts relevant to

this motion are set forth in the Court’s decisions on defendant

Sergi’s Motion for Summary Judgment [Doc. # 231] and the Motion

for Summary Judgment [Doc. # 275] filed by Mrs. K. and M.K., as

defendants, in Commissioner of Department of Children and

Families v. M.K. and Mrs. K., Case No. 3:03cv1658, and are

incorporated herein. Any additional facts necessary to the

resolution of the issues raised by this particular summary

judgment motion are set forth below.

At the outset, this Court will address plaintiffs’ challenge

to this Court’s subject matter jurisdiction over any claims

asserted by DCF based on DCF’s failure to exhaust administrative

remedies. See 20 U.S.C. § 1415(i)(2)(A). This same argument was

raised by Mrs. K. and M.K., as defendants, in their Motion for

Summary Judgment [Doc. # 275] filed in Case No. 3:03cv1658,

Commissioner of Department of Children and Families v. M.K. and

Mrs. K. For the reasons set forth in this Court’s ruling on

their motion for summary judgment [Doc. # 275], the Court rejects

their challenge to this Court’s subject matter jurisdiction over

DCF’s claims. Additionally, for the reasons set forth in that

ruling, the Court likewise holds that DCF’s claims are not barred

by the doctrines of res judicata and collateral estoppel.

I. Sovereign Immunity

DCF argues that the doctrine of sovereign immunity bars any

recovery by plaintiffs of money damages against Darlene Dunbar,

the Commissioner of DCF, who has been sued only in her official

capacity. Plaintiffs respond that they are not seeking money

damages from defendant Dunbar, who is not named in Counts IV and

VII, the only counts against any of the DCF defendants in which

money damages are sought (other than their claim for attorney’s

fees and costs). Further, to the extent that DCF is arguing that

sovereign immunity bars an award of attorney’s fees and costs,

that argument was rejected in Maher v. Gagne, 448 U.S. 122, 127

n.9 & 132-33 (1980).

The Court agrees that the doctrine of sovereign immunity

bars any claims for money damages by plaintiffs against Darlene

Dunbar, the Commissioner of DCF, who has been sued only in her

official capacity. See Alden v. Maine, 527 U.S. 706, 750 (1999).

That, however, does not preclude plaintiffs’ seeking an award of

attorney’s fees and costs based on their status as “prevailing

parties,” nor does it preclude plaintiffs’ seeking prospective

injunctive relief. See Henrietta D. v. Bloomberg, 331 F.3d 261,

287 (2d Cir. 2003), cert. denied, 541 U.S. 936 (2004).

II. Qualified Immunity

Defendants Kemper and LeBrun, who have been sued in their

individual capacities, assert that they are entitled to qualified

immunity from an award of money damages for claims brought under

§ 1983. Qualified immunity shields government officials, sued in

their individual capacities, from liability under § 1983 “insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, a

government actor performing discretionary tasks is entitled to

qualified immunity from suit if either (1) his actions did not

violate clearly established law; or (2) it was objectively

reasonable for him to believe that his actions did not violate

such law. Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996). The

protection afforded by qualified immunity provides “an immunity

from suit rather than a mere defense to liability.” Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985). The Supreme Court and Second

Circuit have encouraged the use of summary judgment when

qualified immunity is raised as a defense. See Hunter v. Bryant,

502 U.S. 224, 227-28 (1991); Ying Jing Gan v. City of New York,

996 F.2d 522, 532 (2d Cir. 1993).

Defendants argue that defendant Kemper is entitled to

qualified immunity because he was not personally involved in any

of the actions taken in this case, and plaintiffs have not

established the violation of any statutory or constitutional

right by him. As to defendant LeBrun, defendants assert that the

only claim against her was her participation in the decision to

force M.K. to switch from mandatory Protective Services to

Voluntary Services, and plaintiffs have failed to show how this

constituted a violation of any constitutional right.

Plaintiffs respond that it was clear from the Hearing

Officer’s decision in 1996 that she considered some of the

services that DCF was providing to be special education or

related services under the IDEA. Thus, they argue that DCF’s

failure to provide these services and/or threatening to

discontinue these services clearly violated federal law, as did

their acts of retaliation against plaintiffs for exercising her

right to bring suit under the IDEA.5 See Weixel v. Board of

5 Plaintiffs cite Greenwich Citizens Committee, Inc. v. Counties of Warren, 77 F.3d 26 (2d Cir. 1996), in support of this proposition. The Greenwich Citizens case is distinguishable. That case addressed the requisite state-of-mind requirement for a § 1983 claim against a government official alleged to have

Education of City of New York, 287 F.3d 138, 148-49 (2d Cir.

2002) (setting forth the elements of a retaliation claim under

the ADA and § 504 of the Rehabilitation Act).

As for plaintiffs’ argument that these defendants’ actions

violated the IDEA, as discussed above, this Court has found that

DCF was not subject to the jurisdiction of the Hearing Officer in

the IDEA due process hearing, except to the extent that it was

acting as the LEA for M.K. while M.K. resided at Riverview

Hospital from September 14, 1995, to April 12, 1996, and again

from March 27, 1998, to June 1, 1998. During those periods, M.K.

attended U.S.D. #2, and DCF was his LEA. Because the Hearing

Officer lacked jurisdiction over DCF in all other respects, her

findings cannot constitute clearly established law that would put

defendants on notice that their conduct in not providing certain

services was violating clearly established law. See also Fetto

v. Sergi, 181 F. Supp. 2d 53, 80 (D. Conn. 2001) (holding that

DCF was not the proper party against whom the plaintiff’s claims

involving his IEPs could be asserted. “Permitting such claims

against non-LEAs would render the IDEA scheme meaningless, as it

would permit any outside agency or group to be held responsible

for the plaintiff’s right to an IEP under the IDEA through use of

§ 1983 as an alternative to the IDEA.”)

chilled a litigant’s freedom of speech by filing a counterclaim in response to a complaint. Greenwich Citizens, 77 F.3d at 30. No such claim is asserted in this case.

Additionally, the Court notes that shortly after the Hearing

Officer issued her decision, on July 31, 1996, Magistrate Judge

Smith issued a lengthy ruling on plaintiffs’ request for a

preliminary injunction finding that it was unlikely that

plaintiffs were going to be successful in their claim that the

individual support services they were seeking from DCF would be

considered “related services” under the IDEA. On the contrary,

he held, “it is the defendants who appear likely to be successful

in establishing that the extravagant array of support services

that plaintiffs demand would merely enhance an educational

program which has been adequate thus far, judging from M.’s

satisfactory academic performance.” (Ruling on Motion for

Preliminary Injunction dtd. 7/31/96 at 39.)

Certainly the services that are sought for M and his family are not “related” in the sense that they are “required to assist . . . [M] to benefit from special education. . . .” 20 U.S.C. § 1401(17). M has already benefitted remarkably from his special education without such services. That the requested services would undeniably ease Mrs. K.’s burden in raising M, or even assist M to derive the maximum from his education, is not enough to mandate those services being provided under the IDEA or any other federal law which plaintiffs rely upon.

Id. (emphasis in original). Thus, the Court finds that it was

not “clearly established law” that these services constituted

“related services” under the IDEA.

As to plaintiffs’ allegations that defendants Kemper and

LeBrun violated § 1983 when they engaged in acts of retaliation

after Mrs. K. filed this lawsuit, assuming the evidence supports

these claims, defendants would not be entitled to qualified

immunity, for plaintiffs’ right to access to the courts is

clearly established. However, as discussed below, even when the

evidence is viewed in the light most favorable to plaintiffs,

plaintiffs have failed to show any adverse decision, act, or

course of conduct taken by either defendant Kemper or LeBrun or a

causal connection between any such acts by these particular

defendants and plaintiffs’ filing of the initial lawsuit to

support a claim of retaliation. See Weixel, 287 F.3d at 148.

With respect to plaintiffs’ § 1983 claim against defendant

Kemper, the law is well-settled in the Second Circuit that

“personal involvement of defendants is a prerequisite to an award

of damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d

Cir. 1994); see also DiStiso v. Town of Wolcott, No. 3:05cv01910,

2006 WL 3355174, at *6 (D. Conn. Nov. 17, 2006). The personal

involvement of a supervisor may be shown by evidence that he or

she (1) participated directly in the alleged constitutional

violation; (2) failed to remedy the wrong after being informed of

the violation; (3) created a policy or custom under which

unconstitutional practices occurred, or allowed such policy or

custom to continue; (4) was grossly negligent in supervising

subordinates who committed the wrongful acts; or (5) exhibited

deliberate indifference to the rights of the plaintiffs by

failing to act on information that their constitutional rights

were being violated. Colon v. Coughlin, 58 F.3d 865, 873 (2d

Cir. 1995). Other than the acts of alleged retaliation discussed

below, the only alleged personal involvement of Kemper, who was

Regional Administrator of DCF from May 1, 1998, to April 5, 2002,

set forth in plaintiffs’ complaint, was that he was aware of

M.K.’s needs and authorized an out-of-state placement for so long

that M.K. lost the chance to develop a healthy relationship with

his family. A plaintiff asserting a procedural due process claim

must first show that he had a property right. Board of Regents

v. Roth, 408 U.S. 564, 577 (1972). Plaintiffs have failed to

establish any property interest implicated by this alleged

misconduct. See generally Leocata v. Wilson-Coker, 343 F. Supp.

2d 144, 154 (D. Conn. 2004), aff’d, 148 Fed. Appx. 64 (2d Cir.

2005). Thus, the Court finds that plaintiffs have failed to show

any personal involvement by defendant Kemper in a violation of

their constitutional rights for which he could be liable under §

1983.

As for defendant LeBrun, who was the social work supervisor

for M.K.’s case for three months in 1998 from April to June, and

who was the social worker assigned to M.K.’s case from June 1995

to March 1996, the only acts alleged by plaintiffs concern her

involvement in switching M.K. to a voluntary Protective Services

case, which is discussed at length below. The Court finds no

violation of any constitutional or statutory right in this

regard.

Accordingly, the Court finds that defendants Kemper and

LeBrun are entitled to qualified immunity or have no personal

liability as to plaintiffs’ § 1983 claims against them.

III. Failure to State a Claim with Respect to M.K.’s Admission to the Voluntary Services Program

Throughout their consolidated complaint, plaintiffs raise a

variety of allegations concerning DCF’s forcing Mrs. K. to

surrender her “entitlement” to its mandatory Protective Services

Program and moving M.K. to its Voluntary Services Program,

previously known as the Non-Committed Treatment Program. In Count

IV, plaintiffs allege that defendants Kemper and LeBrun violated

the ADA, § 504 of the Rehabilitation Act, and the Due Process

Clause of the United States Constitution by, inter alia,

threatening to terminate DCF support if Mrs. K. did not surrender

her right to mandatory Protective Services and apply for

Voluntary Services and by designating M.K. as a “voluntary” DCF

case even though they knew that Mrs. K. opposed surrendering

M.K.’s entitlement to state-funded DCF services. In Count IV,

plaintiffs also claim that defendants Dunbar and Kemper

discriminated against M.K. in violation of the ADA and § 504 of

the Rehabilitation Act by establishing arbitrary time limits for

the provision of DCF services, which presumably refers at least

in part to the mandatory Protective Services program. In Count

VII, they allege that defendants Kemper and LeBrun violated

plaintiffs’ due process rights by, inter alia, forcing Mrs. K. to

surrender her parental rights and her entitlement to mandatory

DCF services to obtain necessary services for M.K., and by

requiring her to surrender entitlement to Protective Services and

become a “voluntary” DCF case.

The premise underlying these claims is plaintiffs’

perception that DCF’s mandatory Protective Services program is

more desirable or beneficial than its Voluntary Services program.

The DCF defendants argue that this premise is fallacious.

Section 17a-93(k), Conn. Gen. Stat., defines “Protective

Services” as “public welfare services provided after complaints

of abuse, neglect or abandonment, but in the absence of an

adjudication or assumption of jurisdiction by a court.” DCF’s

Policy Manual describes “Protective Services” as “a specialized

twenty-four (24) hours, seven (7) days a week program intended to

protect children from birth to eighteen (18) years of age who

have been abused or neglected.” (Policy Manual § 30-4 at 2.)

Protective Services are different from other DCF services in that

they are involuntary in the sense that the child’s parents or

guardians have not asked for help, and it is not up to them to

decide whether they want help. (Id.) “The child is the client.

Protective Services continue until the Department is satisfied

that the child is receiving adequate care in their own home or in

out-of-home care, if necessary.” (Id.)(emphasis and bold in

original). The primary focus is the safety of the child. “When

either the risk or the incidence of abuse or neglect are

determined to warrant removal from the home, the Child Protective

worker shall initiate court action.” (Id.)

Defendant LeBrun elaborated in her sworn affidavit that

Protective Services are for children and families who come to

DCF’s attention through a report that a child is being abused or

neglected by the parent(s) or who is at risk of being abused or

neglected. (LeBrun Aff. ¶ 7.) The primary goal is to ensure the

child’s safety and to assist the child and family so that the

child is no longer at risk of being abused on neglected. (Id. at

¶ 9.) Once a report is made, DCF investigates the report and, if

it is substantiated, a Protective Services case is opened. (Id.

at ¶ 8.) Protective Services are “mandatory” in the sense that

the parent(s) must accept these services from DCF, or DCF will

initiate proceedings to have custody of the child committed to

DCF. (Id. at ¶ 9.) Once DCF determines that a child is no longer

at risk, the Protective Services case is closed. (Id.) There is

no fixed time limit on how long a child can be a protective

services case. (Id. at ¶ 10.) However, if after a reasonable

time period, the risk to the child does not abate and the family

situation is not stabilized, DCF may file a neglect petition

asking the court to legally commit the child to the custody of

DCF. (Id.)

The Voluntary Services program, on the other hand, is

designed for families with a child who has complex behavioral

health needs. (Kemper Aff. at 2.) The program is called

“voluntary” because to be accepted into the Voluntary Services

Program, the parents must voluntarily co-operate with DCF. (Id.

at 3; LeBrun Aff. at ¶ 11.) It is a program for families who

need and want help to resolve the child’s problems. A child

cannot be a Protective Services case and a Voluntary Services

case at the same time. (Id.) According to DCF’s Policy Manual,

in the Voluntary Services Program, DCF may provide casework,

community referrals, and treatment services to children who are

not committed to DCF and do not require Protective Service

intervention, but who, due to emotional or behavioral

difficulties, may require any of the services offered,

administered by, under contract with, or otherwise available to

DCF. (Policy Manual § 37-2 at 1.) There is no requirement that

DCF seek custody or protective supervision of a child receiving

Voluntary Services. (Id.) The program is designed to encourage

the preservation or enhancement of the family relationship and

continuing responsibility of the child by the parent or guardian.

(Id.) The criteria for admission to the Voluntary Services

Program require the cooperation between the child, the parent or

guardian, and DCF. The role of the parent or guardian is defined

as being an active participant in the treatment plan with

maintenance of the child in the home or reunification of the

family as the anticipated goal; meeting regularly with DCF and

social providers to monitor the child’s progress toward social

goals; attending therapy or other treatment sessions with the

child, as appropriate; attending court hearings and treatment

planning meetings on the child’s behalf; providing transportation

for the child, as needed; and if determined capable by the Bureau

of Collection Services, making financial contributions toward the

cost of care for the child, based upon annual review. (Id. at 1-

2.) The role of DCF is to complete an assessment to determine

eligibility and identify treatment needs of the child and family;

develop a treatment plan with time-limited, measurable goals and

roles and responsibilities of each party; assist the family to

secure treatment needs; provide casework services to the family;

coordinate, if necessary, out-of-home placement materials;

provide information and referral services and coordinate with

community services, as needed; evaluate progress and planning for

termination of DCF’s services; and provide interpreter services,

where necessary. (Id. at 2-3.) There is no time limit on

Voluntary Services. When DCF decides to discontinue Voluntary

Services, the parent is given notice and an opportunity to be

heard. (Kemper Aff. at 3.)

In this case, M.K. was considered a neglected or abused

child, in part, because of reports that he was being subjected to

physical abuse at home. On September 14, 1994, M.K. was made a

“Protective Services” case by DCF, and a neglect petition was

filed in State Superior Court for Juvenile Matters, which sought

commitment of M.K. to the custody of DCF. Initially, DCF

provided case management services and, at the request of Mrs. K.,

placed M.K. in a local foster home. On January 27, 1995, upon

M.K.’s discharge from Natchaug Hospital, DCF agreed to provide a

mentor to work with M.K. approximately 20 hours per week, helping

him each morning during his most troublesome, temper-prone time

of the day, to prepare him for school; behavior management

services to M.K. and his family several afternoons a week; weekly

family team meetings; weekly counseling for M.K., Mrs. K., and

the family, to be paid for by the family; respite care one night

a week for approximately two hours; and an on-call crisis worker

from 9:00 p.m. to 6:00 a.m. week nights and on weekends. Mrs. K.

was not satisfied with these services, which she felt were not

adequately coordinated with M.K.’s program at school, which were

limited due to the family’s insurance, which did not include

adequate respite services, mentoring services while M.K. was in

day care, and which provided inadequate case management services

and little or no “hands on” crisis intervention.

In August 1995, all DCF services were terminated other than

the four hours per week of mentoring. Mrs. K. requested an in-

patient evaluation of M.K., which was ordered by the court.

M.K. was admitted to Mt. Sinai Hospital and then Riverview

Hospital where he remained for seven months and was then

transferred to Harmony Hills, a residential school. On June 17,

1997, M.K. was discharged from Harmony Hills and returned home.

Approximately three weeks later, DCF withdrew the neglect

petition and M.K. entered Putnam public schools. In November

1997, DCF discontinued its services.

Between January 1998 and March 1998, Mrs. K. called the

police twice because of behavioral incidents with M.K. On both

occasions M.K. was arrested. In March 1998, DCF again designated

M.K. a “Protective Services” case, and M.K. was admitted to

Riverview a second time for evaluation. On June 1, 1998,

Riverview was ready to discharge M.K. to Connecticut Children’s

Place, and DCF asked Mrs. K. to sign papers to admit M.K. to the

Voluntary Services program, which enabled DCF to provide services

to M.K. without seeking legal custody of him. In her deposition,

Mrs. K. testified that she did not understand what Voluntary

Services meant and that she was told by a DCF social worker6

that, if she did not sign the papers, she would either have to

take M.K. home or DCF would have to obtain an order of temporary

6 She said that defendant LeBrun, who was the DCF social worker’s supervisor, came in and said “You need to do what you need to do” (id. at 240). She then signed the papers.

custody. (Mrs. K.’s depo. dtd. 2/26/2004 at 238-39.) She

testified that she did not know what to do and eventually signed

the papers under pressure and against the advice of her attorney.

(Id. at 239-40.)

DCF emphasizes that the reason M.K. needed to be admitted to

the Voluntary Services program was so that it could provide

services to him without seeking legal custody of him. (Kemper

Aff. at 3.) There was no time limit on how long M.K. could

remain in Protective Services,7 but because of the nature of

Protective Services, he would not remain there indefinitely. If

he continued to be in danger of abuse or neglect, DCF would seek

to obtain legal custody over him.

Defendant LeBrun testified that there were two reasons it

was necessary to transfer M.K. to the Voluntary Services Program.

First, the program was “really flourishing” and they had a better

understanding of how to work with families like his. “It seemed

like a really good thing for the family, and a good thing for

[M.K.]” (Pls.’ Ex. 1, LeBrun depo. dtd. 1/7/03 at 50.) Second,

he needed to be discharged from Riverview and his mother was

clear that she could not take care of him at home for reasons

7 To the extent that plaintiffs claim that Exceptional Non- Categorical Services were time-limited, Kemper explained that this is not a program but a payment mechanism. It provides a mechanism for DCF to pay for services for a child when those services are not normally provided by a facility or an agency with which DCF has a continuing contract. (Kemper Aff. at 3.)

that Ms. LeBrun understood. (Id.). LeBrun testified that Mrs.

K. needed a break and had come to agree that residential

treatment was best for M.K. (Id.)

Kemper testified that the change from Protective Services to

Voluntary Services was favorable for both M.K. and his family

because it permitted DCF to provide services to M.K. without any

allegations that his parents were neglecting or abusing him and

without DCF’s having to obtain legal custody over him. (Kemper

Aff. at 3.)

Additionally, the DCF defendants point out that plaintiffs

have failed to cite to a single service that M.K. did not receive

in the Voluntary Services program that he would have received as

part of Protective Services. Moreover, to the extent that

plaintiffs argue that the Voluntary Services Program was time-

limited, DCF responds that these services were not discontinued,

even when M.K. reached the age of eighteen. Based on

supplemental evidence submitted by the Putnam defendants, it

appears that M.K. was not discharged from DCF’s Voluntary

Services until December 9, 2004, at which time, he was 19 years

of age and had been in the Voluntary Services program since June

of 1998. (Ltr. from M. Allegro to J. Messina dtd. 12/2/04.) He

was living on his own in an apartment in Springfield,

Massachusetts and was employed full-time. Id.

The Court finds that plaintiffs have failed to state a

cognizable federal cause of action, whether under the ADA, § 504

of the Rehabilitation Act, or § 1983, for the DCF defendants’

discontinuation of Protective Services for M.K. Additionally,

plaintiffs have failed to establish that they were harmed in any

way when M.K. was transferred from Protective Services to

Voluntary Services. While Mrs. K. may not have understood why

this change was being made, plaintiffs have failed to produce any

evidence as to how they were harmed by this change or how this

change violated any federal statute or constitutional right. The

Court finds that plaintiffs have failed to set forth any

cognizable federal claim with respect to M.K.’s transfer from

Protective Services to Voluntary Services.

IV. Plaintiffs’ Claims for Relief Under the IDEA

The DCF defendants next argue that they are entitled to

summary judgment on Counts I and II of plaintiffs’ complaint and

to a reversal of the Hearing Officer’s ruling as it pertains to

them because she lacked jurisdiction over DCF and had no

authority to enter orders against it. As discussed at length in

the Court’s ruling on the Motion for Summary Judgment of Mrs. K.

and M.K. in Case No. 3:03cv1658, the Court has found no authority

for the Hearing Officer’s assertion of jurisdiction over DCF,

except to the extent that it was acting as the LEA,8 which is not

8 Except where a special school district, called a Unified School District, has been created by statute, Conn. Gen. Stat. § 10-15d, the LEA is the school system in the town in which the

at issue in this case. Accordingly, because the services

provided by DCF that were challenged by plaintiffs in the due

process hearings were not services provided in its capacity as an

LEA, DCF should not have been joined as a party and, therefore,

cannot be responsible for attorney’s fees and costs in connection

with those hearings. For the reasons set forth in its other

decision, the Court finds that DCF was not a proper party to the

due process hearings, that the Hearing Officer lacked authority

to enter orders against it except to the limited extent that it

was acting as the LEA, and that no attorney’s fees may be imposed

against DCF. Therefore, summary judgment should enter in favor

of the DCF defendants on all claims in Counts I and II of

plaintiffs’ consolidated complaint. Additionally, DCF is

entitled to summary judgment in its favor on its complaint,

Commissioner, Department of Children and Families v. M.K., No.

child resides. The statutorily created Unified School Districts, which are the LEAs for purposes of the IDEA, are schools operated by state agencies. Unified School District #2 consists of four schools operated by DCF, each of which is located on the grounds of a DCF-operated facility: Connecticut Children’s Place, Riverview Hospital, High Meadows, and Long Lane. If a child eligible for special education and related services under the IDEA resides at one of these four DCF facilities, then DCF is responsible for providing educational services. (The only exception is a “no-nexus” situation, which occurs when a child is in the custody of DCF and an LEA cannot be identified, either because a child does not have a parent living in the state or because parental rights have been terminated.) M.K. resided at Riverview from September 14, 1995 to April 12, 1996, and again from March 27, 1998, to June 1, 1998. During those periods, he attended U.S.D. #2 and DCF acted as his LEA. None of the claims asserted by plaintiffs pertain to these time periods.

3:03cv1658(WIG).

V. Plaintiffs’ Claims for Retaliation

Plaintiffs allege that defendants Kemper and LeBrun

retaliated against Mrs. K. after she filed this lawsuit in

violation of the ADA, § 504 of the Rehabilitation Act, and §

1983. The acts of retaliation involve three specific alleged

incidents: (1) in 1998, defendants Kemper and LeBrun required

Mrs. K. to switch M.K. from Protective Services to Voluntary

Services; (2) a DCF employee contacted Mrs. K.’s employer in 1998

about her fitness as an employee; and (3) DCF refused to release

Under the ADA and/or § 504, it is unlawful to coerce,

intimidate, threaten or interfere with any person in the exercise

or enjoyment of any right granted or protected under the ADA

and/or § 504. 29 U.S.C. § 791(g); 42 U.S.C. § 12203(b). To

establish a prima facie claim of retaliation under the ADA or §

504, a plaintiff must prove (1) that he or she engaged in a

protected activity; (2) that the defendant had knowledge of the

protected activity; (3) that the defendant subjected the

plaintiff to adverse action following the activity; and (4) that

a causal connection exists between the adverse action and the

protected activity. See Weissman v. Dawn Joy Fashions, Inc., 214

F.3d 224, 234 (2d Cir. 2000); Sarno v. Douglas Elliman-Gibbons &

Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999); Sands v. Runyon, 28

F.3d 1323, 1331 (2d Cir. 1994). At issue here are the third and

fourth elements.

With respect to the change from the mandatory Protective

Services Program to the Voluntary Services Program, as discussed

above, plaintiffs have failed to establish that this constituted

an adverse action. See Mount Healthy Bd. of Educ. v. Doyle, 429

U.S. 274, 287 (1977). Additionally, there is insufficient

evidence of a causal connection between plaintiff’s protected

activity, filing the instant lawsuit in 1996, and these actions

by defendants two years later, to create a genuine issue of

material fact. The mere fact that some actions were taken by DCF

that were not to plaintiffs’ liking after plaintiffs filed a

lawsuit does not establish a retaliatory motive, especially in a

situation such as this where there was an ongoing relationship

between the parties. The only involvement of defendant LeBrun

was, as set forth above, when she told Mrs. K. to do what she

needed to do. (Mrs. K.’s depo. at 240.) Finally, this

retaliation claim addressing the alleged actions of defendants

Kemper and LeBrun in 1998 was first asserted in the Fourth

Amended Complaint, filed on January 6, 2003, more than four years

after the alleged acts of retaliation took place.9

9 As plaintiffs correctly point out, the Second Amended Complaint does address these allegations but only as to defendant DCF. (2d Am. Compl. ¶ 126.) Neither defendant LeBrun nor defendant Kemper was a party to that complaint. They were both added as defendants in the Fourth Amended Complaint. It is as to

Connecticut’s three-year statute of limitations, Conn. Gen. Stat.

§ 52-577, applies to claims under § 1983, the ADA, and § 504 of

the Rehabilitation Act. See M.D. v. Southington Bd. of Educ.,

334 F.3d 217, 224 (2d Cir. 2003) (holding that Conn. Gen. Stat. §

52-577’s three-year limitations period applies to § 504 claims);

Lounsbury v. Jeffries, 25 F.3d 131, 134 (2d Cir. 1994) (applying

Connecticut's three-year statute of limitations, Conn. Gen. Stat.

§ 52-577, to a civil rights action under § 1983); Duprey v.

Connecticut Dept. of Motor Vehicles, 191 F.R.D. 329, 341 (D.

Conn. 2000) (applying three-year state limitations period to

actions under Title II of the ADA). Thus, this claim of

retaliation is time-barred.

As to plaintiffs’ retaliation claims against defendants

Kemper and LeBrun for contacting her employer in 1998, again the

Court finds that this claim, first asserted in the Consolidated

Complaint filed on November 18, 2003, is barred by the three-year

statute of limitations.10 Additionally, plaintiffs have produced

these defendants that plaintiffs seek money damages for the alleged retaliation. 10 Plaintiffs attempt to get around the statute of limitations bar by arguing that these three incidents represented a continuing course of conduct constituting a breach of duty, such that the limitations period does not begin to run, or is tolled, until that conduct terminates. The Court disagrees. Each of these incidents was a discrete allegedly retaliatory incident, involving different participants. Plaintiffs themselves characterize these as a “series of specific discriminatory acts.” (Pls.’ Mem. at 30.) “A discrete retaliatory or discriminatory act ‘occurred’ on the day that it

no evidence that either Kemper or LeBrun was involved in making

this contact or that either of them even knew about it until

after the fact. Defendant LeBrun testified that this “had

something to do with the contract office. It was not within

[her] direction of command.” (LeBrun depo. dtd. 1/7/3 at 48-49.)

Mrs. K.’s own deposition and exhibits establish that this contact

was made by someone other than defendant Kemper or LeBrun. Mrs.

K. worked for the Young Parent Program through Quinebaug Valley

Youth and Family Services, which received DCF funding. On or

about May 6, 1998, the executive director of the agency, Pam

Brown, received a phone call from Bev Burke with DCF stating that

an employee of the Young Parents Program had a pending case

against DCF. Ms. Burke inquired as to whether the employee would

be able to remain professional in her dealings with DCF if the

result of the case was not in the employee’s favor. (Mrs. K.’s

depo. dtd. 2/26/04 at 242.) Ms. Brown indicated that the

employee had made the agency aware of the lawsuit and that she

felt comfortable with the employee’s ability to continue to

maintain her professionalism and that she was competent to

provide Youth Parent Program services. (Letter from Mrs. K. to

‘happened.’” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002). “Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment practice.’” Id. at 114. "[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. at 112.

Karl Kemper, dtd. 5/19/98.) Mrs. K. stated that at the time she

was one of only three employees and the only employee with a

child under eighteen, so that it was obvious to whom Ms. Burke

was referring. (Id.) Mrs. K. complained to Mr. Kemper that she

believed her confidentiality rights were violated by this

communication and that disciplinary action should have been taken

against Ms. Burke. (Id.; Mrs. K. depo. dtd. 2/26/2004 at 243,

252-53.) Mrs. K. testified that she was very angry that her

employer had been contacted, but her employer was already aware

of the lawsuit, and no adverse action was taken as a result of

this contact. To the extent that Mrs. K. now complains that

defendant Kemper refused to take any remedial actions after she

complained to him about these alleged retaliatory acts and breach

of confidentiality (Consol. Compl. ¶ 131 (c)), she has failed to

show any harm caused by this contact. The Court finds no basis

for a claim of unlawful retaliation by defendant LeBrun or

Kemper.

The third alleged act of retaliation concerned Mrs. K.’s

application for a new job. In late 2002, Mrs. K. had applied for

a job with United Services, which had a policy of doing a

protective services check. She signed a release giving United

Services the right to obtain any and all information from her DCF

records. DCF, however, would not release this information to

this potential employer without a letter from Mrs. K.’s attorney.

Mrs. K. testified that she was not sure what DCF was looking for

and never provided DCF with the requested letter. Thus, DCF did

not release the requested information, and she claims that she

lost this employment opportunity, which paid higher wages than

her then current employment. (Mrs. K.’s depo. dtd. 2/26/04 at

244-45; Mrs. K.’s Decl. dtd. 10/29/04 at 6.)

Plaintiffs have failed to produce any evidence that either

defendant Kemper or LeBrun were involved with this incident.

Defendant LeBrun’s involvement with M.K.’s case had ceased four

years earlier. Moreover, given the pending litigation by Mrs. K.

against DCF, its request for a letter of authorization from her

attorney was not only understandable but prudent under the

circumstances. And, Mrs. K. admits that she never provided DCF

with the requested letter of authorization from her attorney.

There is simply no basis from which the Court can infer a

retaliatory motive on the part of the DCF defendants in failing

to release this information to Mrs. K.’s prospective employer.

Accordingly, the Court finds that the DCF defendants are

entitled to summary judgment as a matter of law on plaintiffs’

retaliation claims under the ADA and § 504 of the Rehabilitation

Act.

VI. Plaintiffs’ Discrimination Claims Under the ADA and § 504

Next, the DCF defendants argue that, to the extent

plaintiffs are asserting any other discrimination claims under

the ADA or § 504 of the Rehabilitation Act with respect to DCF’s

failure to provide certain services to M.K., they have failed to

allege any act by any DCF defendant which could constitute

discrimination against M.K. because of his disability.11

Title II of the ADA provides, in relevant part, that no

qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the

benefits of the services, programs, or activities of a public

entity, or be subjected to discrimination by any such entity. 42

U.S.C. § 12132. To prove a violation of Title II, a party must

11 Although this issue was not raised by the DCF defendants and has not been briefed, the Court notes that there is substantial authority in this Circuit supporting the proposition that there is no individual liability under Section 504 of the Rehabilitation Act or Title II of the ADA. See S.W. v. Warren, 528 F. Supp. 2d 282, 297 (S.D.N.Y. 2007) (dismissing all § 504 and IDEA claims against individual defendant); Atkins v. County of Orange, 251 F. Supp. 2d 1225, 1233 (S.D.N.Y. 2003) (holding that individuals may not be sued for violations of Title II of the ADA); Harnett v. Fielding Graduate Institute, 400 F. Supp. 2d 570, 575 (S.D.N.Y. 2005) (holding that individuals may not be held personally liable for violations of the ADA or Rehabilitation Act), aff’d, 198 Fed. Appx. 89 (2d Cir. 2006); Menes v. CUNY Univ. of N.Y., 92 F. Supp. 2d 294, 306 (S.D.N.Y. 2000)(holding that ADA and Rehabilitation Act claims may not be asserted against individuals either in their personal or official capacity); Harris v. Mills, 478 F. Supp. 2d 544, 547-48 (S.D.N.Y. 2007) (holding that ADA and Rehabilitation Act claims may not be asserted against individuals); but see Johnson v. New York Hospital, 897 F. Supp. 83, 85-86 (S.D.N.Y. 1995) (allowing § 504 claim against individuals who were responsible for the discriminatory decisions), aff’d on other grounds, 96 F.3d 33 (2d Cir. 1996); Scruggs v. Meriden Bd. of Educ., No. 3:03cv2224, 2005 WL 2072312, at *10 (D. Conn. Aug. 26, 2005) (allowing Rehabilitation Act claim against a defendant with authority to accept federal funding), vacated in part on reconsideration, 2006 WL 2715388 (D. Conn. Sept. 22, 2006).

therefore establish: (1) that he is a qualified individual with a

disability; (2) that he was excluded from participation in a

public entity's services, programs or activities or was otherwise

discriminated against by a public entity; and (3) that such

exclusion or discrimination was due to his disability. Fetto v.

Sergi, 181 F. Supp. 2d 53, 75 (D. Conn. 2001). These

requirements apply with equal force to plaintiffs' Rehabilitation

Act claims. See Rodriguez v. City of New York, 197 F.3d 611, 618

(2d Cir. 1999) (“Because Section 504 of the Rehabilitation Act

and the ADA impose identical requirements, we consider these

claims in tandem.”) (citing Lincoln Cercpac v. Health & Hosps.

Corp., 147 F.3d 165, 167 (2d Cir. 1998)), cert. denied, 531 U.S.

864 (2000). “Whereas the IDEA focuses on the content of a

student’s educational program, Section 504 [and Title II of the

ADA] combats discrimination and safeguards equal access to the

school’s programs.” A.S. v. Trumbull Bd. of Educ., 414 F. Supp.

2d 152, 182 (D. Conn. 2006). “In the special education context,

the courts have imposed an additional requirement: to prove a

violation of the ADA, a plaintiff must demonstrate more than an

incorrect evaluation or substantively faulty IEP – he must show

that defendants acted with bad faith or gross misjudgment.”

Fetto, 181 F. Supp. 2d at 75-76; A.S., 414 F. Supp. 2d at 184;

B.L. v. New Britain Bd. of Educ., 394 F. Supp. 2d 522, 540 (D.

Conn. 2005).

The DCF defendants focus on the third prong and assert that

M.K. was never denied any opportunities or services because of

his disability. Relying on Doe v. Pfrommer, 148 F.3d 73 (2d Cir.

1998), they argue that neither the ADA nor § 504 was intended to

ensure that handicapped individuals receive specific services.

Rather the intent of the ADA and § 504 was to ensure that

handicapped individuals were not denied opportunities because of

their handicaps that were afforded to non-handicapped

individuals. See also Fetto, 181 F. Supp. 2d at 76 (holding that

the purpose of the ADA and Rehabilitation Act was to eliminate

discrimination on the basis of disability and to ensure

evenhanded treatment between the disabled and non-disabled).

In Doe, the plaintiff sued the Director of the New York

State Vocational Educational Services for Individuals with

Disabilities (“VESID”) under the Title II of the ADA and § 504 of

the Rehabilitation Act, claiming that VESID discriminated against

him on the basis of his disability when it failed to provide him

with certain services, including a “job coach” and in terminating

his benefits and conditioning his re-entry into the VESID program

on his receipt of psychiatric therapy. The Second Circuit

affirmed the district court’s grant of summary judgment in favor

of the defendants stating, “[i]n the case before us, it is clear

that the plaintiff is in essence challenging the adequacy of his

VESID services, not illegal disability discrimination.” Id. at

82. The Court noted that his claims were not based on any

alleged discriminatory animus against the disabled.

Such an argument would be beyond tenuous given VESID’s sole purpose in assisting the disabled. Rather, his challenge derives from VESID’s failure to provide him with tailored vocational services, which he terms as “reasonable accommodations,” because of the particular needs of his disability. While such particularized treatment among the many services provided by VESID to the disabled may be required under Title I, it is not necessarily required under the anti- discrimination provisions of the Rehabilitation Act, or by implication, the ADA. In reviewing Doe’s discrimination claims, therefore, it is important to bear in mind that the purposes of such statutes are to eliminate discrimination on the basis of disability and to ensure evenhanded treatment between the disabled and the able-bodied.

Id. (internal citations omitted). The Court concluded that what

the plaintiff was ultimately challenging was not illegal

discrimination against the disabled but the substance of the

service provided to him by VESID. Id. at 84. “To provide the

modifications he seeks would not serve the purpose of leveling

the playing field with respect to the benefits under VESID

available to the non-handicapped.” Id. Therefore, the Court

affirmed the grant of summary judgment in favor of defendants on

the plaintiff’s discrimination claims. See also Flight v.

Gloeckler, 68 F.3d 61, 64 (2d Cir. 1995) (“challenges to the

allocation of resources among the disabled under the

Rehabilitation Act are disfavored.”); Rodriguez v. City of New

York, 197 F.3d at 618 (holding that the ADA only requires that a

particular service provided to some not be denied to the disabled

and, thus, dismissing plaintiffs’ claim that challenged the

City’s failure to provide a particular service to the disabled,

which was not provided to anyone); Fetto, 181 F. Supp. 2d at 76

(holding that plaintiff’s claim that he received benefits

different than those provided to children in residential

facilities would not support a cause of action under the ADA).

Plaintiffs, on the other hand, relying on the Supreme

Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999), and

Jackson v. Fort Stanton Hospital & Training School, 757 F. Supp.

1243, 1299 (D.N.M. 1990), rev’d in part and remanded by 964 F.2d

980 (10th Cir. 1992), maintain that DCF discriminated against

M.K. by failing to make, and/or refusing to make a professional

judgment as to whether M.K. could live and be educated in his own

home or in his home community if the necessary support services

were provided. Specifically, plaintiffs claim that DCF refused

to make such professional judgments when M.K. was admitted to

Riverview, and before or during M.K.’s residential placements in

Harmony Hill and Brightside. Instead, they argue, the record

shows that DCF repeatedly provided inadequate services to the

family and then reduced or terminated those services, making

institutionalization a virtual certainty.

Additionally, in Count III, plaintiffs claim that DCF’s

policy of allowing virtually unlimited state funding for

institutional placements as opposed to time-limited, home-based

services violates 28 C.F.R. § 35.130(b)(8).12 (Consol. Compl. ¶

128.) They further claim that DCF’s alleged policy of placing

time limits on the provision of services designed to prevent the

breakdown of the family unit or reunite the family violates 28

C.F.R. § 35.130(b)(3)(ii)13 by using criteria and methods of

administration which undermine the principal goal of the

Protective Services program of preserving the family unit.

12 28 C.F.R. § 35.130(b)(8) provides:

(8) A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered. 13 28 C.F.R. § 35.130(b)(3)(ii) provides:

(3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration:

(ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity's program with respect to individuals with disabilities.

(Consol. Compl. ¶ 129.) These practices, they contend,

discriminate against children based on the severity of their

disabilities. (Consol. Compl. ¶ 130.)14

In Olmstead, the Supreme Court considered whether the

State’s refusal to provide services to mentally disabled persons

in community settings, as opposed to institutions, violated the

anti-discrimination provision of Title II of the ADA, 42 U.S.C. §

12132. The Supreme Court held that “unjustified institutional

isolation of persons with disabilities is a form of

discrimination,” because, inter alia, “[i]n order to receive

needed medical services, persons with mental disabilities must,

because of those disabilities, relinquish participation in

community life they could enjoy given reasonable accommodations,

while persons without mental disabilities can receive the medical

services they need without similar sacrifice.” 527 U.S. at 601.

The Court, however, specifically noted that it was not holding

“that the ADA imposes on the States a ‘standard of care’ for

whatever medical services they render, or that the ADA requires

14 It is not clear whether plaintiffs in Count III are bringing this claim under § 1983 or the ADA or the Rehabilitation Act. The Court notes initially that the Second Circuit has not yet determined whether a federal regulation standing alone can create a right enforceable via § 1983. See D.D. v. New York City Bd. of Educ., 465 F.3d 503, 513 (2d Cir. 2006) (citing cases and the split of the circuits on this issue), amended on other grounds on denial of reh’g by 480 F.3d 138 (2d Cir. 2007). The Court need not resolve that issue here because it finds that plaintiffs’ claims in Count III must fail for other reasons.

the States to ‘provide a certain level of benefits to individuals

with disabilities.’” Id. at 603 n.14. However, with regard to

the services that the States do provide, the Court held that they

must adhere to the ADA’s nondiscrimination requirements. Id.

The Court concluded, “[u]nder Title II of the ADA, States are

required to provide community-based treatment for persons with

mental disabilities when the State’s treatment professionals

determine that such placement is appropriate, the affected

persons do not oppose such treatment, and the placement can be

reasonably accommodated, taking into account the resources

available to the State and the needs of others with mental

disabilities.” Id. at 607.15

The Second Circuit has had the opportunity to construe

Olmstead on several occasions. In Rodriguez, 197 F.3d at 619,

the Court held that Olmstead did not stand for the proposition

that States must provide disabled individuals with the

opportunity to remain out of institutions. “Instead, it holds

15 In Jackson v. Fort Stanton Hospital & Training School, 757 F. Supp. at 1299, the other case relied upon by plaintiffs, the District Court of New Mexico held that recipients of federal assistance are prohibited under § 504 of the Rehabilitation Act from discriminating against handicapped individuals on the basis of the severity of their disability by excluding them from facilities provided to their less severely disabled peers. “Where reasonable accommodations in community programs can be made, defendants’ failure to integrate severely handicapped residents into community programs which presently serve less severely handicapped residents violates § 504.” Id.

only that ‘States must adhere to the ADA’s nondiscrimination

requirement with regard to the services they in fact provide.’”

Rodriguez, 197 F.3d at 619 (quoting Olmstead, 527 U.S. at 604).

In a subsequent case, Henrietta D. v. Bloomberg, 331 F.3d 261 (2d

Cir. 2003), the Second Circuit held that the basic analytical

framework of the ADA requires a comparative component, in other

words, “there must be something different about the way the

plaintiff is treated ‘by reason of . . . disability.’” Id. at 276

(quoting 42 U.S.C. § 12132 and citing Rodriguez, 197 F.3d at 618,

Doe, 148 F.3d at 83-84, Flight, 68 F.3d at 63-64, and Olmstead,

527 U.S. at 600-01).

The Court has carefully reviewed plaintiffs’ discrimination

claims and has considered all of the evidence presented in

support of these claims in the light most favorable to

plaintiffs. Nevertheless, the Court finds no evidence to support

a claim of discrimination under the ADA or § 504. Like the

plaintiffs in Doe, plaintiffs here are attempting to invoke the

anti-discrimination provisions of the ADA and the Rehabilitation

Act to challenge the adequacy of the services provided by DCF,

not illegal disability discrimination. As the Supreme Court

specifically noted in Olmstead, the ADA does not impose on the

States a standard of care for whatever services they provide to

the disabled nor does it require the States to “provide a certain

level of benefits to individuals with disabilities.” 527 U.S. at

603 n.14. Yet, this is precisely what plaintiffs are challenging

in this case - the level of benefits provided by DCF to M.K.

Such a claim is not cognizable under the anti-discrimination

provisions of either the ADA or § 504. As the Second Circuit

held in Henrietta D. v. Bloomberg, 331 F.3d at 276, there must be

something different about the way M.K. was treated because of his

disability. It is this comparative component that is wholly

lacking from plaintiffs’ discrimination claims.

Plaintiffs also seek to invoke the integration regulation

promulgated under the ADA, 28 C.F.R. § 35.130(d), which provides

that “[a] public entity shall administer services, programs, and

activities in the most integrated setting appropriate to the

needs of qualified individuals with disabilities.” Plaintiffs

maintain that DCF has repeatedly failed or refused to make a

professional judgment as to whether M.K. could live and be

educated in his home or his home community when he was admitted

to Riverview and before or during his residential placements at

Harmony Hill and Brightside. The DCF defendants counter that

M.K. was placed at Riverview in 1995 at the request of Mrs. K.

and by order of the Probate Court. After he completed his stay

at Riverview, he was placed at a residential facility, Harmony

Hills, because the treating professionals at Riverview believed

it was not safe for him to return home. As soon as possible,

they state, he was discharged to his home. In 1998, he was again

placed at Riverview at the request of his mother and based upon

an order of the Probate Court. Upon his discharge, he was again

placed for a short time at the Children’s Home and then at a

residential facility, Brightside in Massachusetts, again upon the

recommendation of treating professionals. As soon as it was

therapeutically indicated, he was moved to a group home and began

attending public school in the community and was later placed in

a foster home. Thus, the record shows that defendants’ placement

of M.K. at Riverside was done pursuant to court orders and/or at

the request of Mrs. K. The Court finds no violation of the

integration regulation under these circumstances.

Plaintiffs cite to the expert report of Dr. Mark Schaefer in

December 1998, who opined that M.K. should not have remained in

Brightside. While there may have been a disagreement between

professionals as to how long M.K. should have stayed at

Brightside, DCF acted pursuant to the advice of its treatment

professionals in placing M.K. there until it was determined that

he could be moved to a group home. The Court finds no basis for

a claim of discrimination under these facts.

With respect to plaintiffs’ claims that DCF violated 28

C.F.R. § 35.130(b)(8), plaintiffs have failed to identify any

eligibility criteria not necessary for the provision of the

service or program being offered that was employed by DCF to

screen out M.K. from fully and equally enjoying such service or

program. With respect to plaintiffs’ claims that DCF violated 28

C.F.R. § 35.130(b)(3)(ii), they have not produced any evidence

that DCF employed “criteria or methods of administration” that

had the purpose or effect of substantially impairing

accomplishment of the objectives of its program. To the extent

this claim is addressed to what plaintiffs perceived to be the

differences in DCF’s mandatory Protective Services Program and

the Voluntary Services Program, that issue has been addressed

above.

Based on the reasoning of Doe, the Court finds that

plaintiffs have failed to set forth a claim of discrimination

under either the ADA or the Rehabilitation Act and grants summary

judgment in favor of the DCF defendants on these particular

claims.

VII. Use of Restraints and Seclusion by DCF

Plaintiffs also assert various claims relating to DCF’s use

of restraints and seclusion during M.K.’s hospitalization at

Riverview between September 1995 and April 1996. Plaintiffs

state that during M.K.’s stay at Riverview, M.K. was restrained

on a papoose board on at least three occasions and was placed in

a locked “time-out” room approximately 57 times. Despite Mrs.

K.’s advising hospital staff that she objected to the use of

these measures, the staff at Riverview refused to honor her

request that these measures not be used and refused to obtain her

permission prior to implementing such restraints.

Although plaintiffs allege in their complaint that their

rights were violated by virtue of DCF’s failure to obtain Mrs.

K.’s permission every time there was a need to use restraints or

a “time-out” room while M.K. was at Riverview, they have not

cited to any statute, regulation, or even case law to support

this claim. When this issue was raised at the first due process

hearing, the Hearing Officer found that the decision to use such

form of behavior management was a medical decision and held that

she did not have jurisdiction over such decision-making in a

psychiatric hospital. (Concl. of Law ¶ 26.) The administrative

record indicates that the use of seclusion and restraints was

part of a continuum of disciplinary measures, including cueing,

praising, redirecting, time out in the classroom, time out in a

locked time-out room staffed by childcare workers, and the

returning the child to his unit. (Hearing Officer’s Findings of

Fact ¶ 62.) A clinical nurse testified that seclusion and

restraint were always done with supervision and were only ordered

by a doctor. (Id. at ¶ 63.)

The Court agrees with the Hearing Officer that the use of

seclusion and restraints at a psychiatric hospital was a medical

decision, which is not subject to review under the IDEA. The

Court further finds that plaintiffs have failed to set forth any

legally cognizable claim with respect to the DCF defendants’

failing to obtain parental consent prior to the use of restraints

or seclusion and grants summary judgment in favor of the DCF

defendants as to these claims.

VIII. Section 1983 Claims

Plaintiffs also assert in the Seventh Count that defendants

Kemper and LeBrun violated plaintiffs’ rights secured by the Due

Process Clause of the Fourteenth Amendment by virtue of twelve

acts taken by them which were done intentionally and in reckless

disregard of plaintiffs’ rights. Four of these claims (Consol.

Comp. ¶ 138a, e, f, and l) concern the transfer of M.K. from

mandatory Protective Services to Voluntary Services, which has

been discussed at length, supra. Two of the claims (Consol.

Comp. ¶ 138g and h) concern the alleged acts of retaliation,

which have been decided. Several others (Consol. Comp. ¶ 138j

and k) involve the use of restraints and seclusion, which again

have been resolved. Four of the claims have not been

specifically addressed above: that defendants LeBrun and Kemper

(b) failed to provide plaintiffs with written notice prior to the

termination of DCF services; (c) failed to provide plaintiffs

with a reasonable opportunity to participate in decision-making

as to what services would be funded by DCF; (d) terminated

services before plaintiffs had an opportunity to challenge the

government’s decision through a hearing; and (i) indicating that

DCF services would be terminated if Mrs. K. continued to complain

that DCF policies and practices were necessarily segregating her

son.

To set forth a claim under § 1983, plaintiffs must satisfy a

two-pronged test: (1) that defendants are persons acting under

color of state law; and (2) that plaintiffs have been deprived of

a constitutional or federally protected right. Lugar v.

Edmondson Oil Co., 457 U.S. 922, 930 (1982). Only the second

prong is at issue. As discussed above, plaintiffs have failed to

establish any personal involvement of either Kemper or LeBrun

with any of the alleged deprivations. Therefore, they are

entitled to summary judgment on plaintiffs’ § 1983 claims.

IX. Mootness

The DCF defendants argue that some of plaintiffs’ claims

cannot be granted because of mootness. The Court agrees.

Plaintiffs’ request that DCF maintain funding for M.K.’s

therapeutic foster care placement is moot because M.K. is no

longer in foster care.

Plaintiffs’ request that DCF provide certain support

services so that M.K. can continue to attend public school is

also moot, since M.K. has completed all of the academic

requirements for graduation from public school and is no longer

enrolled in a public school.

Plaintiffs have also asked the Court to enter an order

requiring DCF to make Mrs. K. and M.K. full members of the DCF

treatment team. Again, this claim is moot in that M.K., who is

now 22 years old, has graduated from high school, has been exited

from special education, and all DCF services have been

terminated. There is no DCF treatment team for Mrs. K. or M.K.,

who is no longer a minor, to participate in as full members. See

generally Fetto v. Sergi, 181 F. Supp. 2d at 66-67.

X. State’s Lien Against Mrs. K. and M.K.

As part of their prayer for relief, plaintiffs ask this

Court to enjoin DCF from imposing a lien on plaintiffs’ assets,

including any recovery in this lawsuit, to reimburse itself for

the cost of the educational services provided to M.K. Plaintiffs

argue that, under Andree v. County of Nassau, 311 F. Supp. 2d 325

(E.D.N.Y. 2004) (holding that DSS's placement of a lien on

settlement or personal injury awards received by a disabled

student to pay for services that are mandated to be provided free

of charge to such students violated the IDEA), this Court

possesses the authority under the IDEA to impose such an

injunction.

DCF states that there is no lien against any assets of Mrs.

K. or M.K., but that under Conn. Gen. Stat. § 46b-130, it is

entitled to seek reimbursement from plaintiffs. Section 46b-130,

“Reimbursement for expense of care and maintenance. Assignment

of right of support to Commissioner of Children and Families,”

provides in relevant part:

The parents of a minor child for whom care or support of any kind has been provided under the provisions of this chapter shall be liable to reimburse the state for such care or support to the same extent, and under the same terms and conditions, as are the parents of recipients of public assistance.

Here, unlike DSS’s situation in Andree, DCF has not asserted

a lien against the proceeds of this lawsuit or any other assets

of plaintiffs. Moreover, in Andree, the Court held only that DSS

could not assert a lien for educational or related services

provided under the IDEA. This ruling did not affect DSS’s

ability to assert a lien against plaintiff’s recovery in a

medical malpractice suit for Medicaid expenditures.

Because DCF has yet not asserted a lien against any assets

of plaintiffs, this controversy is not ripe for adjudication.

The Court declines to provide an advisory ruling on something

that has not yet happened or may never happen.

CONCLUSION

Accordingly, for the reasons set forth above, the Motion for

Summary Judgment [Doc. # 230] of the DCF defendants is GRANTED.

SO ORDERED, this 12th day of May, 2008, at Bridgeport,

Connecticut.

/s/ William I. Garfinkel WILLIAM I. GARFINKEL United States Magistrate Judge

Mk, et al. v. Education, et al.