UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -X
MATILDE MARTDSHEZ, as the Mother and Natural Guardian of J.C., an infant.
Plaintiff, MEMORANDUM & ORDER
-against- 17-CV-3152(NGG)(CLP)
NEW YORK CITY DEPARTMENT OF EDUCATION,THE CITY OF NEW YORK,and PRINCIPAL MAGALY MONCAYO,
Defendants, -X NICHOLAS G. GARAUFIS,United States District Judge.
Plaintiff Matilde Martinez("Martinez" or "Plaintiff") brings this action on behalf of her
minor daughter, J.C., against the New York City Department ofEducation (the "DOE"),the City
ofNew York (the "City"), and Magaly Moncayo,the principal of J.C.'s elementary school,
alleging various common law, statutory, and constitutional violations. (Am. Compl.(Dkt. 11).)
Plaintiff maintains that Defendants' actions taken in response both to an injury suffered by J.C.
and to her ongoing, severe nut allergies have deprived J.C. ofher constitutionally and statutorily
protected right to a free appropriate public education and constitute negligence by all
Defendants. (Id.I
Before the court is Defendants' motion to dismiss. (Defs. Mot. to Dismiss("Mot")
(Dkt. 16); Defs. Mem.in Supp. of Mot.("Mem.")(Dkt. 17).) For the following reasons, the
motion is GRANTED.
I. BACKGROUND
A. Facts
The court takes the following statement offacts largely from Plaintiff's amended
complaint, the well-pleaded allegations of which the court generally accepts as true for purposes 1
of Defendants' motion to dismiss. N.Y.Pet Welfare Ass'n v. City ofNew York. 850 F.3d 79,86
(2d Cir. 2017).
Plaintiff Matilde Martinez is the mother of J.C., a student at Public School 106("P.S.
106")in Brooklyn. (Am. Compl.) On September 29, 2016, while playing in the school gym,
J.C.—^then eight years old—^fell and broke her foot. (Id. HIS.) The gym does not have mats on
the floor. (Id.) J.C. went to her gym teacher, Mr. Pagan,to inform him of her injury. (Jd.f 14.)
He told her that she was "ok," and that she should "keep playing." (Id) The teacher in J.C.'s
next class noticed her limping and took her to Martinez, who is the coordinator ofthe P.S. 106
parent-teacher association. (Id ^ 16.) Martinez observed that J.C.'s foot was discolored and
disfigured. (Id.^ 17.)
Later that day, Martinez confronted Mr. Pagan and asked why he had not taken J.C. to the
nurse. (Id 118.) Mr. Pagan responded that he had not done so because the injury was
"nothing." (Id.) Martinez then took J.C. to the hospital where she was diagnosed with a broken
foot, placed in a cast, and ordered by the doctor to stay home and off her foot until November 3,
2016. (Jd H 19.) In the time that J.C. stayed at home, Martinez repeatedly requested home
instruction from the school, but it was never provided. (Id ^ 20.)
After returning to school in November, Martinez requested that the school provide J.C.
with a para-assistant "to help her with her personal needs including [by] assisting her in the
restroom." (Id1[23.) The school assigned J.C. a male para-assistant, Albert. (Id) Martinez
found this inappropriate and, after the first day, prohibited Albert from assisting J.C. further. (Id.
124.)
In addition to the foot injury, J.C. has a nut allergy that causes hives, throat swelling, and
potential death if she does not receive immediate treatment after exposure. (Jd % 25.) Plaintiff
states that such a "potentially debilitating and serious" nut allergy requires J.C, to be closely
monitored, (Id f 26.) Plaintiff complains that, rather than "accommodate J.C.'s disability," the
school has continued to serve food with nuts and requested that J.C. begin class half an hour later
than the other students, supposedly so as not to expose her to food containing nuts. (Jd K 27.)
Plaintifffurther states that, upon information and belief, the school does not have any policies or
procedures in place to prevent students or staff from bringing nuts to school. (Id K 28.) She also
alleges that the school does not have any trained personnel or medication in the lunchroom to
assist students with nut allergies in case they are exposed to nuts. (Id ^ 29.) Other alleged
problems pertaining to the school's treatment of nut allergies include:
(a)[S]erving foods containing nuts on school premises;(b)allowing students and staff to bring and consume foods containing nuts on school grounds;(c) no required training, or repeat training for staff at least every six months, on how to treat children with nut allergies who are exposed to nuts;(d)no medication stored in a secured area that is quickly accessible by trained staff; (e) no identification of students with nut allergies and having at least one trained staff with them at all times; and (f) no posting of warning signs in the school kitchen, classrooms, monthly menu, and attendance sheets alerting staffto students with nut allergies.
(Id. H 51.) Plaintiff states that the requirement that J.C. start class later than the rest ofthe
students "puts her at a terrible disadvantage academically and psychologically," and that J.C.'s
grades and self-esteem have suffered as a result. (Id. ^ 30.)
B. Procedural History
Plaintiff filed her complaint on May 24,2017. (Compl.(Dkt. 1).) On July 20,2017,
Defendants requested a pre-motion conference in anticipation oftheir motion to dismiss the case.
(See Defs. July 20,2017, Letter(Dkt. 9).) Two weeks later. Plaintiff notified the court of her
intention to amend the complaint, and Defendants' consent thereto. (See PI. Aug. 7,2017, Letter
(Dkt. 10).) On August 21,2017,Plaintifffiled her amended complaint. (Am. Compl.)
Following Plaintiffs filing ofthe amended complaint. Defendants again requested a pre-
motion conference in anticipation oftheir motion to dismiss the case. (See Defs. Sept. 5,2017,
Letter(Dkt. 12).) The court granted Defendants leave to move to dismiss the amended
complaint. (Oct. 23,2017, Min. Entry.) The fully briefed motion was filed on January 11,2018,
though Plaintiff filed her memorandum in opposition on December 29,2017. fSee Mot.; Mem.;
Defs. Reply(Dkt. 18); see also PI. Mem.in Opp'n to Mot.("PI. Opp'n")(Dkt. 15).)
n. LEGAL STANDARD
The purpose of a motion to dismiss for failure to state a claim under Rule 12(b)(6) is to
test the legal sufficiency ofa plaintiff's claims for relief. Patane v. Clark. 508 F.3d 106,112-13
(2d Cir. 2007). A complaint will survive a motion to dismiss if it contains "sufficient factual
matter, accepted as true, to 'state a claim to reUefthat is plausible on its face.'" Ashcroft v.
iQbal. 556 U.S. 662,678(2009)rouoting Bell Atl. Com, v. Twomblv. 550 U.S. 544,570(2007)).
"Threadbare recitals ofthe elements of a cause of action, supported by mere conclusory
statements, do not suffice." Id.
When considering a motion to dismiss for failure to state a claim, the court must accept
as true all allegations offact in the complaint and draw all reasonable inferences in favor ofthe
plaintiff. ATST Commc'ns.Inc. v. Shaar Fund. Ltd.. 493 F.3d 87, 98(2d Cir. 2007). "In
determining the adequacy ofthe complaint, the court may consider any written instrument
attached to the complaint as an exhibit or incorporated in the complaint by reference, as well as
documents upon which the complaint relies and which are integral to the complaint." Subaru
Distribs. Corp. v. Subaru of Am.. Inc.. 425 F.3d 119,122(2d Cir. 2005).
in. DISCUSSION
Plaintiff claims that Defendants denied J.C. access to a free appropriate public education
("FAPE"), a right guaranteed by the Individuals with Disabilities Education Act("IDEA"),20
U.S.C. § 1400 et seq.("Count Seven"). (Am. Compl. 67-69.) She also brings claims imder
Section 504 ofthe Rehabilitation Act of 1983 (the "Rehabilitation Act"),29 U.S.C. § 794, and
the Americans with Disabilities Act("ADA"),42 U.S.C. § 12101 et seq.. alleging that
Defendants denied J.C. a reasonable accommodation for her claimed disabilities("Count Eight"
and "Count Nine," respectively). (Am.Compl. 70-76.) She further asserts three claims under
42 U.S.C. § 1983: one arguing that Defendants are municipally liable xmder Monell v.
Department of Social Services. 436 U.S. 658 (1978),for "fail[ing] to institute the proper policies
and procedures to address any accidental exposure to foods containing nuts"("Count Four"); one
arguing that J.C.'s FAPE denial deprived her of her due process rights under the Fourteenth
Amendment to the United States Constitution("Count Five"); and one arguing that J.C.'s due
process was denied by Defendants' failure to address her serious medical needs in the context of
her broken foot("Count Six"). (Am. Compl. 47-66.) Finally, she brings a variety of
common-law claims, including negligent supervision, negligent performance of a governmental
function, and negligent hiring and retention("Count One,""Count Two," and "Count Three,"
respectively). (Id 31-46.)
For the following reasons, the court grants Defendants' motion to dismiss all counts in
the amended complaint.
A. Statutory Background
"The IDEA requires States receiving federal funds to provide 'all children with
disabilities' with a FAPE." Mr.P v. W.Hartford Bd. ofEduc.. 885 F.3d 735,741 (2d Cir. 2018)
(quoting 20 U.S.C. § 1412(a)(1)(A)), petition for cert, filed. No. 17-1699(U.S. June 21,2018).
"A FAPE must provide 'special education and related services tailored to meet the unique needs
ofa particular child, and be reasonably calculated to enable the child to receive educational
benefits.'" Id.(intemal citations and quotation marks omitted)(quoting Walczak v. Fla. Union
Free Sch. Dist.. 142 F.3d 119,122(2d Cir. 1998)). "A State covered by the IDEA must provide
a disabled child with such special education and related services 'in conformity with the [child's]
individualized education program,' or lEP." Endrew F. ex rel. Joseph F. v. Douglas Ctv. Sch.
Dist. RE-1. 137 S. Ct. 988,994(2017)(alteration in original)(quoting 20 U.S.C. § 1401(9)(D)).
The "reach and requirements" of both the Rehabilitation Act and Title II ofthe ADA "are
precisely the same." Weixel v. Bd. ofEduc.. 287 F.3d 138,146 n.6(2d Cir. 2002). To establish
a violation of either law, a plaintiff must demonstrate:"(1)that she is a qualified individual with
a disability;(2)that the defendants are subject to one ofthe Acts; and (3)that she was denied the
opportunity to participate in or benefit from defendants' services, programs, or activities, or was
otherwise discriminated against by defendants, by reason of her disability." Dean v. Univ. at
Buffalo Sch. of Med.& Biomedical Scis.. 804 F.3d 178, 187(2d Cir. 2015)(intemal quotation
marks omitted). "Under both statutes, schools are required to provide 'a free appropriate public
education' through special education and related services." Scaggs v. N.Y. Dep't ofEduc.. No.
06-CV-799(JFB),2007 WL 1456221, at *15(E.D.N.Y. May 15,2007)(citing 28 C.F.R.
§ 35.103, and 34 C.F.R. § 104.33).
B. The IDEA'S Exhaustion Requirement
1. Overview
Under the IDEA,parents of disabled children are guaranteed "a variety ofprocedural
safeguards," Mr.P. 885 F.3d at 741,including the right "to request a due process hearing in
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order to present complaints as 'to any matter relating to the identification, evaluation, or
educational placement ofthe child, or the provision ofa free appropriate public education.'"
Cave V. E. Meadow Union Free Sch. Dist.. 514 F.3d 240,245(2d Cir. 2008)(quoting 20 U.S.C.
§ 1415(b)(6)(A)). These administrative proceedings are determined by and conducted pursuant
to the laws ofeach state. § 1415(f)(1)(A),(g). "New York has opted for a two-tier
administrative system" for review oflEPs:
First, an impartial hearing officer is selected from a list of certified officers and appointed by the local board of education or the competent state agency to conduct the initial hearing and issue a written decision. That decision can then be appealed to a state review officer ofthe New York Education Department.
Cave. 514 F.3d at 245. "Only after exhaustion ofthese procedures has an aggrieved party the
right to file a suit in a federal or state court." Id (citing § 1415(0(2)(A)).^
The exhaustion requirement applies to all suits that "seek relief for the denial of a FAPE,"
regardless of whether the suit was brought under the IDEA or "similar laws," including the
ADA,the Rehabilitation Act, and 42 U.S.C. § 1983. Fry v. Napoleon Cmtv. Schs.. 137 S. Ct.
743,752(2017);^20 U.S.C. § 1415(/)("Nothing in this chapter shall be construed to restrict
or limit the rights, procedures, and remedies available under ... other Federal laws protecting the
rights of children with disabilities, except that before the filing of a civil action under such laws
seeking reliefthat is also available under this subchapter, the procedures under subsections (f)
'Over the past decade, there has been some discussion in this circuit as to whether the exhaustion requirement is a jurisdictional prerequisite, as the Second Circuit has long held; or whether it is a waivable claims-processing rule. See Coleman v. Newbursh Enlarged Citv Sch. Dist.. 503 F.Sd 198, 203-04(2d Cir. 2007)(citing Eberhart v. United States. 546 U.S. 12,16(2005)(per curiam), and Kontrick v. Rvan. 540 U.S. 443,455 (2004)). Despite the uncertainty on this topic, the Second Circuit has refused to upset its precedent classifying the exhaustion requirement as an element ofthe court's subject-matter jurisdiction. Baldessarre ex rel. Baldessarre v. Monroe- Woodburv Cent. Sch. Dist.. 496 F. App'x 131, 133 n.3(2d Cir. 2012)(summary order). "In any event, where, as here, there is no question that [DJefendants have properly raised the exhaustion argument, the distinction is immaterial." M.A. v. N.Y. Dep't ofEduc.. 1 F. Supp. 3d 125,143 n.lO (S.D.N.Y. 2014)(citing Baldessarre. 496 F. App'x at 133 n.3, and Coleman. 503 F.3d at 204).
and (g)shall be exhausted to the same extent as would be required had the action been brought
under [the IDEA]."). "[I]n determining whether a suit indeed 'seeks' relieffor such a denial, a
court should look to the substance, or gravamen, ofthe plaintiffs complaint," Fry, 137 S. Ct. at
752. "[I]f, in a suit brought under a different statute, the remedy sought is not for the denial of a
FAPE,then exhaustion ofthe IDEA'S procedures is not required." Id at 754;^L.K. v.
Sewanhaka Cent. High Sch. Dist.. 641 F. App'x 56,57(2d Cir. 2016)(summary order)("[I]fthe
'theory' behind a claim relates to the 'education of disabled children,' IDEA exhaustion is
required ...." rouoting Polera v. Bd. ofEduc.. 288 F.Sd 478,481,487-88(2d Cir. 2002))).
"[T]he exhaustion requirement does not apply 'in situations in which exhaustion would
be futile.'" Coleman v. Newburgh Enlarged City Sch. Dist.. 503 F.3d 198,205(2d Cir. 2007)
(quoting Polera. 288 F.3d at 488). "To show futility, a plaintiff must demonstrate that adequate
remedies are not reasonably available or that the wrongs alleged could not or would not have
been corrected by resort to the administrative hearing process." Id.(internal quotation marks
omitted). Futility may exist where the case involves "systemic violations that could not be
remedied by local or administrative agencies." Baldessarre ex rel. Baldessarre v. Monroe-
Woodburv Cent. Sch. Dist.. 496 F. App'x 131,134(2d Cir. 2012)(summary order)(quoting
Cave. 514 F.3d at 249): accord J.S. ex rel. N.S. v. Attica Cent. Schs.. 386 F.3d 107,113(2d Cir.
2004). "The rationale behind this exception is that while the administrative hearing officers have
the authority to enforce established regulations, policies[,] and procedures,they generally do not
have the authority to set new policies or to alter existing ones." King v. Pine Plains Cent. Sch.
Dist.. 918 F. Supp. 772, 781 (S.D.N.Y. 1996). While claims of systemic violations are often
asserted as part of a class action, they "can be made at the individual level, provided 'a systeirdc
pohcy is at stake' and 'the administrative officer has no power to correct the violation.'" J.Z. v.
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N.Y.C. Dep't ofEduc.. 281 F. Supp. 3d 352, 362(S.D.N.Y. 2017)(quoting F.C. v. N.Y.C. Dep't
ofEduc.. No. 15-CV-6045(PAE),2016 WL 8716232, at *8(S.D.N.Y. Aug. 5, 2016)). "The
burden of demonstrating futility rests with the party seeking to avoid the exhaustion
requirement." Coleman. 503 F.3d at 205.
Exhaustion may also be excused where "the parents have not been notified that
[administrative] remedies were available to them." Weixel. 287 F.3d at 149: see Dervishi ex rel.
T.D. V. Stamford Bd. of Educ.. 691 F. App'x 651,652(2d Cir. 2016)(summary order)
("[Ejxhaustion is excused ifthe defendant failed to notify the plaintiff of her procedural rights
under the IDEA.").
2. Application
Defendants argue that all ofPlaintiffs federal claims should be dismissed because of
Plaintiffs failure to exhaust the IDEA'S administrative procedures. (Mem.at 12.) In response.
Plaintiff does not claim that she has exhausted her administrative remedies. Instead, she states
that her failure to exhaust should be excused because "her claims stem from Defendants'
systemic flaws[,] including ...lack of stafftraining, lack of accessible medication, no policy for
student[s] and staff on consuming foods containing nuts on school grounds,[and] lack of
procedures to identify, locate, and evaluate children with her disability." (PI. Opp'n at 10-11.)
She also says that the exhaustion requirement should be waived because of Defendants' alleged
failure to comply with the notice requirement. (Id at 11.) The court holds that all ofPlaintiff's
federal claims—except for Count Six—^are barred by the exhaustion requirement.
a. Applicability ofthe Exhaustion Requirement
As set forth above, Plaintiff claims that Defendants have violated the IDEA by failing to
provide J.C. with a FAPE. (Am. Compl.^ 68.) This assertion also explicitly forms the basis of
Counts Four and Five (see id. 49, 58), as well as her Rehabilitation Act and ADA claims (see
id Ht 71, 75). All ofthese claims clearly fall within the exhaustion requirement.
By their text, these claims seek redress for denial ofa FAPE to J.C. This factor, while
not dispositive, is important in determining whether a complaint seeks relieffor denial of a
FAPE. Frv. 137 S. Ct. at 754("[The] exhaustion rule hinges on whether a lawsuit seeks
relieffor the denial of a free appropriate public education."); see also A.P. ex rel. Porco v. Lewis
Palmer Sch. Dist. No. 38. 728 F. App'x 835, 839 n.l (10th Cir. 2018)(citing Fry, 137 S. Ct.
at 750-51)(applying the exhaustion requirement to allegations that the defendant school district
denied the plaintiff a FAPE and "denied [the plaintiff] the benefits of[the School District's]
educational services solely because of[the plaintiffs] disability").
Even beyond the text, though, it is clear that these claims tum on whether J.C. was denied
a FAPE,thereby subjecting them to the exhaustion requirement. Fry suggests that courts ask a
pair of questions in order to determine whether the "gravamen" of a plaintiffs complaint
concems the denial of a FAPE:
First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say,a public theater or library? And second,could an adult at the school—say,an employee or visitor—^have pressed essentially the same grievance?
137 S. Ct. at 756. Ifthe answer to both ofthese questions is no,the complaint is likely about the
denial of a FAPE. Id. In the instant case,the answer to both questions is indeed no. As to the
first question, the right that Defendants are said to have violated is specifically based on J.C.'s
status as a student to whom special-education services are owed. As to the second question, the
DOE does not have an obligation to provide special-education services to adult employees or
visitors—just students. Based on these factors, it is clear that "[t]he act at the center of
Plaintiffs complaint is the denial of educational services to a student with a claimed disability."
10
See A.M. ex rel. Mixon v. Fresno Unified Sch. Dist.. No. 16-CV-725,2017 WL 6209389, at *9
(E.D. Cal. Dec. 8,2Q\1)}
Because ail ofPlaintiffs federal-law claims except for Count Six "seekQ redress for [the]
school's failure to provide a FAPE,"the court must dismiss these claims unless Plaintiffcan
show that the exhaustion requirement is, for some reason, excused. S^ Fry. 137 S. Ct. at 755.
b. Exceptions to the Exhaustion Requirement
Plaintiff contends that her failure to exhaust administrative remedies should be excused
because her complaint alleges various "systemic" flaws such that exhaustion would have been
futile. She also claims that Defendants did not send her mandatory notice of her administrative
remedies. The court rejects both ofthese arguments.
i. Futility
As set forth above, complaints alleging "systemic violations" are exempt from the
exhaustion requirement under the futility exception. J.S.. 386 F.3d at 113. "The systemic
violations exception applies where a plaintiff challenges the framework and procedures for
assessing and placing students in appropriate educational programs or where the nature and
volume ofcomplaints are incapable of correction by the administrative hearing process."
Kalliope R. ex rel. Irene D. v. N.Y. State Den't of Educ.. 827 F. Supp. 2d 130,138(E.D.N.Y.
2010)(alterations adopted)(internal quotation marks omitted)(citing J.S.. 386 F.3d at 114).
Exhaustion may also be excused under the "same rationale where an agency has adopted a policy
or pursued a practice of general applicability that is contrary to the law." M.G. v. N.Y.C. Dep't
^ The inclusion of monetary damages among Plaintiffs requested relief does not alter the calculus. See Polera. 288 F.3d at 487("Courts in the Second Circuit have ... not permitted [plaintiffs] to evade the IDEA'S exhaustion requirement merely by tackiug on a request for money damages."); see also Frv. 137 S. Ct. at 752 n.4("[W]e leave for another day a further question about the meaning of§ 1415(/): Is exhaustion required when die plaintiff complains ofthe denial ofa FAPE,but the specific remedy she requests—^here, money damages for emotional distress—^is not one that an IDEA hearing officer may award?").
11
ofEduc.. 15 F. Supp. 3d 296, 303(S.D.N.Y. 2014)(internal quotation marks omitted); see
WeixeL 287 F.3d at 149. In any case,"the conduct alleged to have violated [the] IDEA [must
have] affected all students in a given program." Kallonie R.. 827 F. Supp. 2d at 139.^
In Count Five, Plaintiff alleges that Defendants failed to remedy several "systemic flaws"
that constitute a "pattern and practice of serving food containing nuts throughout the school
system." (Am. Compl.^ 49;^id. 49-52.) Plaintiff submits that, through these actions,
Defendants have "exhibit[ed] a reckless indifference to J.C.'s rights under the law, and children
like her," and prevented J.C. and children with nut allergies "from benefitting equally from a
FAPE." (Id 49, 52.) These alleged systemic flaws are, she claims,"policy deficiencies" that
an individual hearing officer would have no authority to address, and so she argues that^of her
claims against Defendants should be exempt from the exhaustion requirement. (See PI. Opp'n
at 10-11.)
Plaintiff has not sufficiently alleged that Defendants' complained-of behavior amounts to
a policy or practice of general applicability which a hearing officer would be unable to address.
For this inquiry, an analogy to liability under Monell.436 U.S. 658, is instructive. Under
Monell. a municipality—including a municipal agency—^may be held Uable for an official policy
that causes the plaintiffto be subjected to the denial ofa constitutional right. Wrav v. Citv of
New York. 490 F.3d 189,195(2d Cir. 2007). A plaintiff may plead the existence of an official
policy by alleging(1)a formal policy;(2)actions taken by final municipal policymakers;(3)a
practice so persistent and widespread that it implies the constructive knowledge of policymakers;
or(4)a failure to train or supervise municipal employees amounting to deliberate indifference to
'Futility may also be shown where "defendants 'failed to implement services that were specified or otherwise stated in an IE?.'" Kalliope R.. 827 F. Supp. 2d at 138 (quoting Polera. 288 F.3d at 489). Because Plaintiff does not argue that her claim meets this basis for futility, the court deals only with the systemic-violations exception,
12
the rights ofthose whom the employees will come into contact. E.g.. Moray v. City of Yonkers.
924 F. Supp. 8,12(S.D.N.Y. 1996).
Plaintiff has not alleged the existence of a municipal policy that a hearing officer would
be without authority to alter. First, while she seems to be alleging the existence of a formal
policy, neither her complaint nor her opposition briefpoints to statutory or regulatory authority
pursuant to which the City and the DOE instituted the challenged "flaws." See, e.g.. Heldman ex
rel. T.H. y. Sobol. 962 F.2d 148,159(2d Cir. 1992)(holding that an administratiye hearing
officer lacks authority to grant a plaintiffs requested relief where the plaintiff essentially seeks
modification of a statute or its implementing regulations); Engwiller y. Pine Plains Cent. Sch.
Dist.. 110 F. Supp. 2d 236,245(S.D.N.Y. 2000)(same). Plaintiff also has not alleged that final
municipal policymakers instituted these "flaws" or that the DOE or the City failed to train its
employees such that the municipality was deliberately indifferent to J.C.'s rights. Finally, the
policies alleged iu PlaintifiPs complaint are limited to P.S. 106.; there is no allegation that these
"flaws" extended to other DOE schools or that they persisted across a number of years or iu the
face ofcomplaints. In short. Plaintiff's briefing on whether these "systemic flaws" constitute an
official policy boils down to an ipse dixit statement that because she has alleged the existence of
these "systemic flaws," she has properly alleged a municipal policy. CSee PI. Opp'n at 6.) This
is insufficient. Without more concrete allegations as to the existence of an official policy
instituted by Defendants regarding treatment of nut allergies. Plaintiff cannot claim that an
indiyidual hearing officer would haye been unable to remedy her alleged harms.
Eyen ifa plaintiff cannot show that the student's depriyation of rights was imdertaken
pursuant to an official policy, the exhaustion requirement may still be excused where the totality
ofthe complaints is so yoluminous that administratiye remedies would be futile. See Kalliope
13
R,827 F. Supp. 2d at 138. Where the adequacy of multiple plaintiffs' lEPs is at issue,
exhaustion is futile because the relevant government decisionmaker may not be able to process
all possible claims with sufficient speed or adequacy. Jose P. v. Ambach.669 F.2d 865,869
(2d Cir. 1982). Where, however, the adequacy ofonly one plaintiffs DEP is at issue, these
concerns dissipate."* So while a plaintiff need not bring this type ofclaim as part of a class
action,^J.Z.. 281 F. Supp. 3d at 362,she must still allege systemic harm that is "inherent in
the program for the education of[disabled] children ... and is not directed against any specific
child." J.G. ex rel. Mrs. G. v. Bd. ofEduc.. 830 F.2d 444,446(2d Cir. 1987). For example,in
Scaggs. the district court found that exhaustion would be futile because ofthe class plaintiffs'
"broad allegations offailure on the part of[the] defendants to evaluate, implement, and monitor
necessary services for disabled students." 2007 WL 1456221, at *7. The plaiatiffs did not claim
that student's lEP was not being followed; rather, they alleged that the school was not
complying with the lEPs for a class of disabled students or "provid[ing] such plans to students
who needed them." Id Similar "[d]istrict-wide systemic failures in identifying and evaluating
students with disabilities and in delivering special education and related services to those
students" have been found to fall within the futility exception in other cases. See M.H. ex rel.
K.H. V. Mount Vemon Citv Sch. Dist.. No. 13-CV-3596(VB),2014 WL 901578, at *6
(S.D.N.Y. Mar. 3, 2014); see also J.S.. 386 F.3d at 115 (affirming denial of motion to dismiss
where "the complaint [did] not challenge the content of[lEPs], but rather the School District's
total failure to prepare and implement [lEPs]"); Kallione R.827 F. Supp. 2d at 139 ("In this
case, plaintiffs are not challenging the adequacy ofa particular lEP or lEPs. Instead, they allege
'* An individual allegation of"systemic violations ofthe procedural rights accorded by IDEA" may also trigger the futility exception. See Heldman. 962 F.2d at 158-59(emphasis added). In this case, however,Plaintiff alleges that systemic harms amounted to a violation of J.C.'s substantive rights under the IDEA, not that the procedure for remedying such harms was systemically infirm.
14
that [the New York State Department of Education] has adopted a policy that violates IDEA by
circumventing the development process.").
Plaintiff's complaint does not allege systemic harms sufficient to overcome the
exhaustion requirement. This conclusion follows clearly from her claims under the IDEA,the
ADA,and the Rehabilitation Act, as well as her § 1983 claim alleging a violation of J.C.'s due-
process entitlement to receive a FAPE,all of which allege that Defendants "have denied and
continue to deny a FAPE to [J.C.]." (Am. Compl.^ 68;^id 55,71, 75; see also PI. Opp'n
at 8-10 (discussing how the denial of a FAPE to J.C. supports liability under the IDEA).) These
claims allege harm particular to J.C., not to disabled children in general, and so they cannot
survive the exhaustion requirement. The same analysis applies to Plaintiffs claim of municipal
liability, even though she alleges, as discussed above,"systemic flaws" that allegedly affect J.C.
and "children with nut allergies." (See Am. Compl.^ 49.) That Plaintiff mentions other
"children with nut allergies" in her cause of action is immaterial because, as she is not asserting
claims on behalf ofthose children, her case does not at all depend on whether thev were denied a
FAPE. For example,ifthe court were to find that Defendants' behavior did serve to deny other
children a FAPE,but that J.C. herself was not denied a FAPE,Plaintiff would have no case. See
Schultz V. Incorporated Village of Bellnort. 479 F. App'x 358, 360(2d Cir. 2012)(summary
order)("Because [the plaintiff] was unable to establish an underlying violation of his
constitutional rights ...,his ... Monell claim necessarily fail[s] as well."(footnote omitted)).
Without multiple students' lEPs at issue. Plaintiffs complaint still alleges harm essentially
"directed at [one] individual child," J.S.. 386 F.3d at 113, and her failure to exhaust
administrative remedies cannot be excused.
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Because Plaintiff argues only that J.C. was denied a FAPE,and does not allege
wrongdoing extending beyond Defendants' obligations to J.C., it would not have been futile for
Plaintiff to exhaust her administrative remedies before bringing these claims. Cf J.S., 386 F.3d
at 113 (finding that allegations of systemic violations will entitle a plaintiffto exemption from
the exhaustion requirement where the complaint alleges "wrongdoing that is inherent in the
program itself and not directed at any individual child"); O.M. ex rel. D.M. v. Bd. of Educ.,
No. 14-CV-6487,2015 WL 3952601, at *6(W.D.N.Y. June 29,2015)(rejecting a claim of
futility where "the complaint's substantive allegations illustrate that [the plaintiffs'] claims are
focused on the District's alleged failures in regard to [a student] individually as opposed to
systemic failures affecting other disabled students in the District").
ii. Notice
Additionally,the court does not agree that Plaintiff's failure to adhere to the exhaustion
requirement should be excused because of any alleged failure to provide her with notice.
Specifically, Plaintifffaults Defendants for failing to provide her with notice "in her native
language, Spanish." (PI. Opp'n at 11.) Defendants, in response, note that Plaintifffs amended
complaint is devoid of any such allegation. CSee Defs. Reply at 8.) Ordinarily, a plaintiff who
fails to plead facts—even if asserted in response to a motion to dismiss—^relevant to excusal
from the exhaustion requirement cannot subsequently claim that her failure to exhaust should be
excused. See Trvon v. E. Islin Union Free Sch. Dist. No. 15-CV-1534(JS), 2015 WL 7312910,
at *7(E.D.N.Y. Nov. 19, 2015); see also Keittv. New York Citv. 882 F. Supp. 2d 412,424 n.2
(S.D.N.Y. 2011)(considering "factual allegations made in the plaintiffs opposition
memorandum" only because the plaintiff was pro sel. That is the case here. Without sufficient
pleading, the court is unable to address whether Defendants' alleged failure to provide Plaintiff
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with notice in Spanish of her administrative remedies is grounds for finding that the exhaustion
requirement should be excused.
* * *
Because Plaintiff did not exhaust her administrative remedies, and because no exception
to the exhaustion requirement applies, the court dismisses Counts Four, Five, Seven, Eight, and
Nine without prejudice,
C. Failure to Address Serious Medical Needs
Plaintiffs remaining federal claim relates not to J.C.'s nut allergy, but to her foot injury.
Here,Plaintiffseems to be claiming that Defendants should be held liable for Mr.Pagan's failure
to take J.C. to the nurse or call an ambulance immediately after the injury. (See PI. Opp'n at 7.)
Plaintiff alleges that Defendants' liability attaches because ofthe "special custodial relationship"
they share with J.C., and that their accordant deliberate indifference to her medical needs
violated her rights under the Fourteenth Amendment. (See Am. Compl.^62-65.) This claim is
not subject to the exhaustion requirement, as it does not seek redress for the denial ofrights owed
to J.C. pursuant to the IDEA. Nevertheless, the court grants Defendants' motion to dismiss this
claim.
Courts recognize that individuals have a "substantive due process right to bodily
integrity." Chambers v. N. Rockland Cent. Sch. Dist.. 815 F. Supp. 2d 753,762(S.D.N.Y. 2011)
(citing, inter alia. Lombardi v. Whitman.485 F.3d 73,78-79(2d Cir. 2007)). "That right,
however, is intended to prevent the government 'from abusing [its] power, or employing it as an
instrument of oppression.'" Campbell v. Brentwood Union Free Sch. Dist. 904 F. Supp. 2d 275,
280(E.D.N.Y. 2012)(alteration in original)(quoting Deshanev v. Winnebaeo Ctv. Dep't of Soc.
Servs.. 489 U.S. 189,196(1989)). So while the general rule is that "nothing in the Constitution
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requires the State 'to protect the life, liberty, and property ofits citizens against invasion by
private actors,'" id (quoting Deshanev.489 U.S. at 195), there are "two narrow exceptions."
Urbina v. Citv ofNew York.672 F. App'x 52, 55(2d Cir. 2016)(summary order). "First, the
state or its agents may owe a constitutional obligation to the victim of private violence ifthe state
had a 'special relationship' with the victim." Matican v. Citv of New York. 524 F.3d 151,155
(2d Cir. 2008). And "[sjecond, the state may owe such an obligation if its agents 'in some way
had assisted m creating or increasing the danger to the victim.'" Id (quoting Dwares v. Citv of
New York. 985 F.2d 94,99(2d Cir. 1993)).^
Accordingly,in order to hold the City,the DOE,and the principal of J.C.'s school liable
for Mr. Pagan's failure to seek immediate medical attention for J.C.'s foot injury, the court must
hold that these defendants were in a special relationship with J.C. As Defendants point out,
however,"numerous courts have held that the special relationship doctrine is inapplicable in the
context ofpublic school students." (Mem. at 7.) Campbell. 904 F. Supp. 2d at 280
("[CJourts are generally in agreement that the 'special relationship' doctrine does not apply to a
school setting."): see also Chambers. 815 F. Supp. 2d at 764 n.lO (collecting cases). Instead, the
special relationship doctrine is reserved for situations in which the victim can be said to have
been within the involuntary custody ofthe supposed state actor. Matican. 524 F.3d at 156
(stating that "involuntary custody" is "the linchpin of any special relationship exception").
Plaintiff clumsily attempts to analogize J.C.'s situation to that of"a prisoner, or disabled patient"
in that J.C. is "totally controlled and dependent on Defendants while she is in school"(PI. Opp'n
at 7), but this comparison is inapt and its conclusion imtrue. As one court has explained:
[W]hile school attendance is compulsory, the parent ultimately determines the type of education his or her child will receive (private, public, home school), and while schools impose certain
^ Plaintiff does not claim that this basis for due-process liability is relevant to this case. (See PI. Opp'n at 6-8.) 18
rules and restrictions on students, they do not limit an individual's freedom to act in the same manner as involuntary confinement by the state in a state prison or mental institution.
P.W. V. Fairport Cent. Sch. Dist.. 927 F. Supp. 2d 76,82(W.D.N.Y. 2013). J.C. is not being
held in school "against [her] will" to the degree necessary to support Fourteenth Amendment
liability, no matter how little she actually wants to be at school. Matican. 524 F.3d at 156
(quoting Deshanev.489 U.S. at 200). Unlike incarcerated prisoners or involxmtarily committed
mental patients, J.C. has the right to return to her home at the end ofthe school day, as well as a
good deal of additional freedoms while she is at school. Compare, e.g., SafFord Unified Sch.
Dist. No. 1 V. Redding. 557 U.S. 364, 374-75(2009)(recognizing that public-school students
generally have a reasonable expectation of privacy in their own bodies), with Covino v. Patrissi.
967 F.2d 73,78(2d Cir. 1992)("[IJmnates do retain a limited right to bodily privacy.").
Plaintiff's citation to the doctrine ofin loco parentis is likewise inapposite; the fact that teachers
and school administrators are responsible for a student during the school day does not create a
special relationship between them and the student. S^ Doe v. Orange-Ulster Bd. of Coop. Educ.
Servs.. No. 96-CV-695(MDF), 1999 WL 34807339, at *6 n.7(S.D.N.Y. Mar. 26,1999). That
this doctrine exists at common law is not relevant to the question of whether J.C.'s substantive
rights under the Due Process Clause ofthe Fourteenth Amendment were violated.
Because Plaintiffcannot show that Defendants were in a special relationship with J.C.
such that substantive due process liability can attach, the court dismisses Count Six with
prejudice, as leave to amend would be futile.
D. Supplemental Jurisdiction
Where a court dismisses all claims over which it has original jurisdiction, it may,in its
discretion, decline to exercise supplementaljurisdiction over remaining claims. 28 U.S.C.
§ 1367(c)(3). "[W]here, as here, the federal claims are eliminated in the early stages of
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litigation, courts should generally decline to exercise pendent jurisdiction over remaining state
law claims." Klein & Co. Futures, Inc. v. Bd. of Trade.464 F.3d 255, 262(2d Cir. 2006).
Because the court has dismissed all federal-law claims asserted by Plaintiff, it declines to
exercise supplemental jurisdiction over any potential state-law neghgence claims, including
Counts One, Two,and Three. fSee Am. Compl. 31-46.)
IV. CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss(Dkt. 16)is GRANTED.
Counts One,Two,Three, Four, Five, Seven, Eight, and Nine are DISMISSED WITHOUT
PREJUDICE. Count Six is DISMISSED WITH PREJUDICE. The Clerk of Court is
respectfully DIRECTED to enter judgment for Defendants and close the case.
SO ORDERED.
s/Nicholas G. Garaufis Dated: Brooklyn, New York NICHOLAS G. GARAUBJS August 2018 Jnited States District Judge
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