E.D.N.Y.: Schafer et al. v.... | Special Education Law

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------X WILLIAM SCHAFER, JR., ET AL.,

Plaintiffs, MEMORANDUM & ORDER 06-CV-2531(JS)(ARL) B against B

HICKSVILLE UNION FREE SCHOOL DISTRICT, ET AL.,

Defendants.

-------------------------------------X APPEARANCES: For Plaintiff: Frederick K. Brewington, Esq. 556 Peninsula Blvd. Hempstead, New York 11550

For Defendants:

Hicksville Union Brian S. Sokoloff, Esq. Free School Jennifer E. Sherven, Esq. District, Sokoloff Stern LLP Hicksville Board 355 Post Avenue, Suite 201 of Education, Westbury, NY 11501 Dr. Alan Orenstein, Dr. Joseph Hayward, Dr. Joseph Marino, Maureen Bright (“Hicksville Defendants”)

The Board of Vincent A. Nagler, Esq. Cooperative Callan, Regenstreich, Koster & Brady Educational One Whitehall Street Services of Nassau New York, NY 10004 County (Nassau BOCES), Rosemary Kennedy School (“Nassau BOCES”)

John Piccarello, Christine Gasser, Esq. Flora Cohen, Francis X. Schroeder, Esq. Dr. Mark Curci, Congdon, Flaherty, O'Callaghan, Reid, Eric Rauser, and Donlon, Travis & Fishlinger

Paul Schaefer 333 Earle Ovington Blvd., Stes. 502/505 (“BOCES Uniondale, NY 11553 Individuals”)

John Doe(s) No appearances.

SEYBERT, District Judge:

Plaintiff William Schafer, Jr. (“Billy”) is a student

with disabilities. Billy, appearing by and through Plaintiffs

William Schafer, Sr. and Janet Schafer (the “Parents” or

“Plaintiffs”) sued for damages related to how educators

addressed Billy’s special education needs. There are three

groups of defendants. First is the Hicksville School District

(the “School District”; Maureen K. Bright; Dr. Allen Orenstein;

Dr. Joseph Hayward; and Dr. Joseph Moreno (collectively, with

the School District, the “Hicksville Defendants”). Second is

Nassau BOCES.1 Third is John Piccarello; Flora Cohen; Dr. Mark

Curci; Eric Rauscher; and Paul Schaefer (collectively, the

“BOCES Individuals”).2

1 Plaintiffs also sued the Rosemary Kennedy School (the “Kennedy School”). The Kennedy School is a building, not a legal entity. The real party in interest is Defendant Nassau BOCES. 2 Plaintiffs have named the individual defendants in both their official and individual capacities. As Plaintiffs have also sued the individual defendants’ employers, the official-capacity claims against the individual defendants are dismissed as duplicative. See Anemone v. Metropolitan Tranps. Auth., 410 F. Supp. 2d 255, 264 n. 2 (S.D.N.Y. 2006).

All Defendants have moved for summary judgment. For

the reasons that follow, the Hicksville Defendants’ and the

BOCES Individuals’ motions for summary judgment are GRANTED.

Nassau BOCES’ motion for summary judgment is GRANTED IN PART.

Nassau BOCES and Plaintiffs are directed to appear before this

Court for a pre-trial conference on April 29, 2011 at 9:30 a.m.

BACKGROUND

This case has two distinct themes. First, Plaintiffs

allege federal and state law violations arising out of Billy’s

alleged confinement in the “timeout room” at the Rosemary

Kennedy School (the “Kennedy School”), a Nassau BOCES

institution. Second, Plaintiffs allege that Billy was wrongly

denied a Free Appropriate Public Education (“FAPE”).

I. The Parties

Plaintiff Billy is a developmentally disabled male who

resides within the defendant Hicksville, New York, Union Free

School District. (Proposed Joint Pretrial Order, Stipulated

Facts (“JPTO”) ¶ 2.) Plaintiffs William Schafer, Sr. and Janet

Schafer are Billy’s parents (the “Parents”).

The Hicksville School District is a defendant in this

action, as is its superintendent, Maureen K. Bright, and three

of its employees: Dr. Allen Orenstein, at relevant times the

Interim Director of Pupil Personnel Services and Special

Education; Dr. Joseph Hayward, the Special Education

Superintendent; and Dr. Joseph Moreno, a school psychologist.

(JPTO ¶¶ 3-6.)

The Kennedy School is a Wantagh, New York, Nassau

BOCES school for children with developmental disabilities.

(JPTP ¶ 7.) Defendant John Piccarello is the Kennedy School’s

principal, defendant Flora Cohen was its assistant principal,

defendant Dr. Mark Curci is a Kennedy School psychologist,

defendant Eric Rauscher was a Kennedy School teacher, and

defendant Paul Schaefer is a Kennedy School employee. (JPTO ¶¶

8-11.)

II. Billy’s Background and Placement at the Kennedy School

Billy has extensive neuro-developmental deficits and

global impairments, and he functions between a three- and five-

year old level. (BOCES 56.1 Stmt. ¶¶ 6-7.)3 He has impaired

language and communication skills. (Id. ¶ 8.) According to his

Parents, Billy is also claustrophobic. (Pl. BOCES Cntr-Stmt. ¶

3 Although there are three summary judgment motions pending, there were only two sets of Local Rule 56.1 Statements and Counterstatements. Nassau BOCES and the BOCES Individuals’ Rule 56.1 Statement will be cited as “BOCES 56.1 Stmt.” and Plaintiffs’ counter-statement will be cited as “Pl. BOCES Cntr- Stmt.” The Hicksville Defendants’ Rule 56.1 Statement will be cited as “Hicksville 56.1 Stmt.” and Plaintiffs’ counter- statement as “Pl. Hicksville Cntr-Stmt.”

103.) As a result of his disabilities, Billy has received

special education services since he was two years old.

Beginning in Spring 2004, Billy received home services in speech

therapy, occupational therapy, and academic instruction. (See

Hicksville 56.1 Stmt. ¶ 3.)

On June 2, 2004, Billy’s Committee on Special

Education (the “CSE”) met to discuss Billy’s academic placement

for the upcoming 2004-05 school year. The Individualized

Education Plan (“IEP”) that arose out of that meeting provided

that Billy would enroll at the Kennedy School in September.

(BOCES 56.1 Stmt. ¶ 39.) The IEP also provided for continued

homebound instruction. (Pl. BOCES 56.1 Cntr-Stmt. ¶ 39.)

Billy began classes at the Kennedy School in September

2004. (JPTO ¶ 14.) He was fourteen years old at the time.

(Id. ¶ 18.) The Kennedy School’s assistant principal, Defendant

Flora Cohen, screened Billy prior to his enrollment to determine

what level of services suited Billy’s needs. (JPTO ¶ 19.) Upon

enrollment, Billy was assigned to a school psychologist,

Defendant Dr. Curci. (BOCES 56.1 Stmt. ¶ 25.) According to

Plaintiffs, Billy’s Parents only saw the Kennedy School once

before Billy began classes there. (Pl. BOCES Cntr-Stmt. ¶ 12.)

III. May 23, 2005 CSE Meeting

Toward the end of Billy’s first year at the Kennedy

School, his CSE met to discuss his IEP and academic placement

for the upcoming 2005-2006 school year. (JPTO ¶ 15.) The

meeting was held at the Kennedy School, and it was attended by

Billy’s Parents and Defendants Curci, Rauscher, Konk and, from

the School District, Drs. Orenstein and Moreno. The CSE decided

that Billy would return to the Kennedy School in the fall of

2005. (JPTO ¶¶ 28-29.) According to Plaintiffs, the CSE also

resolved to provide Billy with home academic instruction for the

upcoming year, but the home instruction was inadvertently

omitted from the new IEP. (Pl. Hicksville 56.1 Ctr-Stmt. ¶ 15.)

Mr. Schafer asked Dr. Orenstein about the omission, and Dr.

Orenstein reassured him that Billy would continue to receive

home academic instruction. Mr. Schafer made a handwritten note

on the IEP to that effect, (id.), and Dr. Curci initialed the

note. (See Hicksville 56.1 Stmt. Ex. X at 5.) It is unclear

from the parties’ briefs and 56.1 statements whether and for how

long Billy’s home academic instruction was interrupted. As best

as the Court can tell from the papers, it appears that there was

a break in Billy’s home tutoring but that the home instruction

resumed approximately a week after the May 23, 2005 CSE meeting.

See infra at 12.

IV. The Timeout Room

When the May 23 CSE meeting was finished, Billy’s

Parents asked to see their son. (JPTO ¶ 30.) They were

escorted to Billy’s classroom, but when they got there they were

told that Billy had been taken to the timeout room. (JPTO ¶

31.) The Parents asked to be taken to see Billy, and Dr. Curci

escorted them to the timeout room area. When they arrived, Dr.

Curci asked Defendant Paul Schaefer, the timeout room monitor,

to open the door of a closet-like cubicle. Schaefer did so, and

the Parents found Billy crying inside the small space. (See Pl.

BOCES Cntr-Stmt. ¶¶ 123-125.) The Parents, shocked and furious

at finding their son confined to the cubicle, took Billy home.

Billy never returned to the Kennedy School. (BOCES 56.1 Stmt. ¶

132; JPTO ¶ 33.)

A. The Timeout Room’s Physical Space

Classroom 506 of the Kennedy School was the designated

“timeout area.” According to Plaintiffs, the timeout room was a

small, dark room, approximately four feet by five feet, with

little or no lighting, (Pl. BOCES Cntr-Stmt. ¶¶ 90-92), and with

blue gym matting on the walls and floor. (See William Schafer

Dep. at 240, Pl. Ex. C.) It was one of two small rooms within a

larger classroom-type area. (Pl. BOCES Cntr-Stmt. ¶ 95.) The

classroom windows were covered with cardboard. (Id. ¶ 96) The

door to the timeout room where Mr. Schafer found Billy might

have had a window--Mr. Schafer cannot recall--but if it did the

window was blocked. (See Id. ¶ 97.) Further, Plaintiffs infer

that the timeout room was locked.4 (See id. ¶ 98.) It is

undisputed that Defendant Paul Schaefer was assigned to monitor

the timeout room during the time Billy was enrolled at the

Kennedy School. (BOCES 56.1 ¶ 92.)

B. Use of the Timeout Room

According to Plaintiffs, Defendants put Billy in the

timeout room between twenty-seven and forty times between

September 2004 and May 2005. (Pl. BOCES Cntr-Stmt. ¶ 73.)

There are twenty-seven reported confinement incidents in Billy’s

timeout log, (see Pl. BOCES 56.1 Cntr-Stmt. ¶ 100; id., Ex. H)

but Defendant Cohen told Mr. Schafer that she thought Billy had

been sent to the timeout room forty times. (Pl. Ex. B at 55.)

4 Plaintiffs urge the Court to infer that Billy’s cubicle was locked based on the Parents’ observation that (a) Dr. Curci had to ask the timeout room monitor to open the cubicle door rather than open it himself, and (b) the timeout room door only swung out, suggesting--in Plaintiffs’ view--that it could not be opened from the inside. (See Pl. BOCES Cntr-Stmt. ¶ 98.) Because whether or not the cubicle was locked does not bear on the Court’s analysis, it does not decide here whether Plaintiffs’ inference is reasonable.

According to the log, Billy was sent to the timeout room for

behavior such as “hitting” or “kicking” and also for infractions

such as “refusing to work” and “cursing.” (Pl. Ex. H.)

Defendants claim that they prepared a Behavioral

Intervention Plan (“BIP”) for Billy and discussed it with his

Parents. (see BOCES 56.1 Stmt. ¶¶ 55-65.) Billy’s Parents

sharply dispute that they ever had any knowledge of the BIP or

the strategies it described. (See, e.g., Pl. BOCES Cntr-Stmt. ¶

57.) In any event, the BIP appears to permit use of the timeout

room only when “Billy is physically aggressive toward others.”

(Pl. Ex. K at 4.)

C. Were the Parents Aware of Use of Timeout Room?

Billy’s Parents maintain that they were completely

unaware that the Kennedy School had a timeout room. It was

never shown to them when they toured the school, and no one from

either the School District or BOCES ever told Plaintiffs about

the room. (Pl. BOCES Cntr-Stmt. ¶ 13.) The timeout procedure

at the Kennedy School was never explained or described to

Plaintiffs, and Billy’s Parents were always under the impression

that a “timeout” consisted of telling Billy to sit quietly with

his hands in his lap. (Pl. BOCES Cntr-Stmt. ¶ 22.) This is

consistent with how Billy’s Parents described Billy’s timeouts

at home. (See Pl. BOCES 56.1 Cntr-Stmt. ¶ 44.) On the one

occasion that Mr. Schafer asked Dr. Curci where the Kennedy

School timeouts took place, Dr. Curci responded that timeouts

were conducted in his office. (Id.)

Students at the Kennedy School maintained a notebook

in which their teachers would provide short notes intended to

keep parents apprised of their child’s progress. Several

entries in Billy’s notebook mentioned that he had been sent to

“timeout” or “TO.” According to Plaintiffs, they understood

these entries to mean that references to “timeout” meant that

Billy had been told to sit quietly, either in the classroom or

in Dr. Curci’s office. (Pl. BOCES Cntr-Stmt. ¶¶ 71-72.)

Defendants also claim that Dr. Curci called Mr.

Schafer to advise him every time Billy was placed in the timeout

room. (BOCES 56.1 Stmt. ¶ 73.) Plaintiffs dispute this; they

claim that Dr. Curci only spoke with Mr. Schafer on the phone

between twelve and fifteen times, far fewer than the

approximately forty times Billy was placed in the timeout room.

(Pl. 56.1 Stmt. ¶ 73.) Further, Plaintiffs claim that, to the

extent Dr. Curci may have mentioned that Billy had a “timeout,”

Mr. Schafer assumed that to mean that Billy was told to sit

quietly, not that Billy was locked in a closet. (Pl. 56.1 BOCES

Counter-Stmt. ¶ 73.)

Defendants also claim that they reviewed their

strategies and procedures for keeping Billy on task--which

included timeouts and physical re-direction--during at least two

meetings (March 17, 2005 and May 9, 2005). (BOCES 56.1 Stmt. ¶¶

74, 88) Billy’s Parents disagree that they were told about the

timeout room at these meetings and that they consented to

physical contact as a method of redirecting their son. (Pl.

BOCES 56.1 Counter Stmt. ¶¶ 83, 88.)

V. Billy’s Response to the Timeout Room

According to Plaintiffs, Billy was traumatized by the

timeout room. Among other things, Plaintiffs claim that Billy

would become agitated and yell “no blue room” when he heard the

work “mark.” (Pl. Hicksville 56.1 Cntr-Stmt. ¶ 20.) Billy’s

therapist characterized Billy’s timeout-room experience as

traumatizing and opined that returning Billy to the Kennedy

School would “exacerbate the present stress reaction to trauma.”

(Id. ¶ 24.) Plaintiffs also point to Billy’s historical

transitioning problem. According to Plaintiffs, these

transitioning problems were magnified when Billy attended the

Kennedy School, and Billy would say “no bus, no school, no blue

room” when he refused to board the bus. (Pl. BOCES 56.1 Stmt. ¶

29.) “Blue room” was apparently a reference to the timeout

room’s blue-padded walls.

VI. Events Following the May 23, 2005 CSE Meeting

After Billy’s Parents discovered the timeout room at

the May 23 CSE meeting, they refused to send Billy back to the

Kennedy School. In the days that followed, Dr. Orenstein

apologized to Mr. Schafer for the timeout room, (Pl. Hicksville

Cntr-Stmt. ¶ 17), and Mr. Schafer asked Dr. Orenstein to explore

other placements. (Hicksville 56.1 Stmt. ¶ 18.) Dr. Orenstein

agreed to look at other placements, but cautioned Mr. Schafer

that finding something suitable would take some time. (Id. ¶

19.)

In the meantime, Defendants arranged for home academic

instruction.5 Defendants maintain that they reinstated home

instruction to compensate for the instruction Billy was missing

as a result of his being pulled from the Kennedy School.

Plaintiffs maintain, however, that Defendants were obligated to

continue home academic instruction based on the IEP that was

approved and initialed at the May 23 CSE meeting. See supra at

6; Pl. Hicksville Cntr-Stmt. ¶ 23. In any event, Plaintiffs

5 Again, it is not entirely clear at what point Billy’s home tutoring was interrupted, see supra at 6, but apparently there was a break in home services around the time of the May 23 CSE meeting.

allege that, in an August 4, 2005 meeting, Defendants proposed

to withdraw home instruction. (Pl. Hicksville Opp. at 3.)

Plaintiffs had served notices of claim on the School District

and Nassau BOCES in July of 2005, (Pl. Exs. LL, JJ) and, in

Plaintiffs’ view, removing home instruction was in retaliation

for Plaintiffs’ anticipated lawsuit. (See Pl. Hicksville Opp. at

3). Plaintiffs contend that they were presented with a stark

“Hobson’s Choice”: return Billy to the Kennedy School, or lose

home academic services. (Pl. Hicksville 56.1 Cntr-Stmt. ¶ 41.)

VII. Plaintiffs’ Legal and Administrative Remedies

Plaintiffs filed this suit on May 23, 2006. Five

months later, they filed a due process complaint with the School

District. The due process complaint challenged Billy’s IEPs for

the 2006-07 school year and, after a due process hearing, the

hearing officer found for the School District. The hearing

officer also noted that he could not discern whether Plaintiffs

also intended their due process complaint to challenge IEPs from

2005. Plaintiffs appealed the hearing officer’s decision to a

State Education Department state review officer (the “SRO”).

The SRO found that there were procedural defects at the August

2005 CSE meeting (where Plaintiffs learned that school officials

intended to terminate Billy’s home instruction), and he awarded

Plaintiffs ten months’ of compensatory home services. (See

Hicksville 56.1 Stmt. ¶¶ 45-49.)

VIII. This Lawsuit

In this action, Plaintiffs assert the following

nineteen causes of action: (1) on behalf of Billy, a Section

1983 claim that all Defendants violated Billy’s constitutional

rights secured by the Fourth, Fifth and Fourteenth Amendments;

(2) on behalf of the Parents, a Section 1983 Claim that all

Defendants violated the Parents’ right to a “free and

‘appropriate public education’” secured by the Fifth and

Fourteenth Amendments; (3) on behalf of Billy and the Parents, a

Section 1983 claim that all Defendants conspired to deprive

Billy of his rights in violation of the Fourteenth Amendment;

(4) on behalf of Billy and his Parents, a claim under IDEA that

Nassau BOCES and the Hicksville Defendants failed to provide

Billy with a FAPE; (5) on behalf of Billy, a claim under the ADA

that Nassau BOCES and the Hicksville Defendants discriminated

against Billy on the basis of his disability and retaliated

against Billy for his Parents’ opposing the Defendants’ actions;

(6) on behalf of Billy, a claim under New York State

Constitution Article XI, Section 1 that all Defendants deprived

Billy of a “meaningful, appropriate or . . . fitting education”;

(7) on behalf of Billy, a claim under state law against John

Doe(s) for battery; (8) on behalf of Billy, a claim under state

law against the Hicksville School District and Nassau BOCES

asserting vicarious liability for battery; (9) on behalf of

Billy, a claim under state law against John Doe(s) for assault;

(10) on behalf of Billy, a claim under state law against the

Hicksville School District and Nassau BOCES asserting vicarious

liability for assault; (11) on behalf of Billy, a claim under

state law against John Doe(s), the Hicksville School District,

and Nassau BOCES for false imprisonment; (12) on behalf of

Billy, a claim under state law against all Defendants (except

Dr. Orenstein) for negligence; (13) on behalf of Billy, a claim

under state law against the Hicksville School District and

Nassau BOCES for negligent hiring and supervision; (14) on

behalf of Billy and his Parents, a claim under state law against

all Defendants for breach of contract; (15) on behalf of Billy

and his Parents, a claim under state law against all Defendants

for intentional infliction of emotional distress arising out of

Defendants’ confining Billy in the time-out room; (16) on behalf

of the Parents, a claim under state law against all Defendants

for intentional infliction of emotional distress arising out of

the Parents’ discovery of Billy’s placement in the time-out

room; (17) on behalf of Billy, a claim under state law against

all Defendants for negligent infliction of emotional distress;

(18) on behalf of the Parents, a claim under state law against

all Defendants for negligent infliction of emotional distress;

and (19) on behalf of Billy and his Parents, a claim against all

Defendants for punitive damages.

For the reasons that follow, the Hicksville

Defendants’ and the BOCES Individuals’ motions for summary

judgment are GRANTED. Nassau BOCES’ motion for summary judgment

is GRANTED IN PART.

DISCUSSION

As discussed above, this case has two distinct parts.

For ease of discussion, the Court first addresses Plaintiffs’

claims arising out of Billy’s confinement and then it considers

the claims related to Billy’s FAPE.

I. Standard of Review under Federal Rule of Civil Procedure 56

Summary judgment is only appropriate “if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548,

2552, 91 L. Ed. 2d 265, 273 (1986); see Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250-51, 106 S. Ct. 2505, 2511, 91 L.

Ed. 2d 202, 213 (1986); McLee v. Chrysler Corp., 109 F.3d 130,

134 (2d Cir. 1997); see also FED. R. CIV. P. 56(c). “In assessing

the record to determine whether there is a genuine issue to be

tried . . . the court is required to resolve all ambiguities and

draw all permissible factual inferences in favor of the party

against whom summary judgment is sought.” McLee, 109 F.3d at

134. The burden of proving that there is no genuine issue of

material fact rests with the moving party. Gallo v. Prudential

Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994)

(citing Heyman v. Com. & Indus. Ins. Co., 524 F.2d 1317, 1320

(2d Cir. 1975)). Once that burden is met, the non-moving party

must “come forward with specific facts,” LaBounty v. Coughlin,

137 F.3d 68, 73 (2d Cir. 1998), to demonstrate that “the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party,” Anderson, 477 U.S. at 257, 106 S. Ct.

at 2514-15, 91 L. Ed. 2d at 218. “Mere conclusory allegations

or denials will not suffice.” Williams v. Smith, 781 F.2d 319,

323 (2d Cir. 1986). And “unsupported allegations do not create

a material issue of fact.” Weinstock v. Columbia Univ., 224

F.3d 33, 41 (2d Cir. 2000).

II. Timeout Room Claims

Plaintiffs assert both federal and state law claims

arising from Billy’s confinement.

A. Federal Timeout Room Claims

Plaintiffs’ Section 1983 claims allege that all

Defendants violated Billy’s constitutional rights by confining

him in a dark, closet-sized timeout room without, among other

things, adequate supervision and adequate safety measures for

monitoring his physical and emotional health. (Compl. ¶ 100.)

1. Section 1983

Section 1983 provides, in relevant part, that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.

42 U.S.C. § 1983. To prevail on a claim under this statute, a

plaintiff must establish: (1) that the defendant acted under

color of state law; and (2) that as a result of the defendant's

actions, the plaintiff suffered a deprivation of his or her

rights or privileges as secured by the Constitution or laws of

the United States. See Am. Mfr. Mut. Ins. Co. v. Sullivan, 526

U.S. 40, 49-50, 119 S. Ct. 977, 985, 143 L. Ed. 2d 130, 143

(1999). “It is well-settled that [Section] 1983 does not create

a federal right or benefit; it simply provides a mechanism for

enforcing a right or benefit established elsewhere.” Morris-

Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423

F.3d 153, 159 (2d Cir. 2005).

Before considering the merits of Plaintiffs’ Section

1983 claims, the Court must clarify the underlying federal

statutes or constitutional provisions at issue. Plaintiffs

assert that Defendants violated Billy’s Fourth Amendment right

to be free from unreasonable seizures and his Fourteenth

Amendment rights to substantive and procedural due process.6 As

an initial matter, under Graham v. Connor, Plaintiffs’ Fourth

Amendment and substantive due process claims are mutually

exclusive. 490 U.S. 386, 394-95, 109 S. Ct. 1865, 1870-71, 104

L. Ed. 2d 443 (1989). Under Graham, the substantive due process

analysis is inapplicable where the challenged governmental

conduct is regulated by another, more specific constitutional

6 The Fifth Amendment’s Due Process Clause applies only to federal actors and is thus inapplicable to this case. To the extent, then, that Plaintiffs base their claims on the Fifth Amendment, those claims are dismissed. See Dusenbery v. United States, 534 U.S. 161, 167, 22 S. Ct. 694, 151 L. Ed. 2d 597 (2002).

amendment--in this case, the Fourth. Id. Thus, the Court must

first determine whether a Fourth Amendment or substantive due

process analysis applies to Billy’s federal timeout room claims.

The Court’s research has unearthed conflicting views. Compare

Rasmus v. Arizona, 939 F. Supp. 709, 717 (D. Ariz. 1996)

(explaining that substantive due process could not be basis for

a timeout room claim); with Doe v. S & S Consol. I.S.D., 149 F.

Supp. 2d 274, 287 (E.D. Tex. 2001) (noting that substantive due

process, not Fourth Amendment, formed basis for timeout room

claims).

In the Court’s view, the Fourth Amendment regulates

the Defendants’ alleged conduct vis-à-vis the timeout room and

thus it, not substantive due process, applies to this case. It

is well-settled that the Fourth Amendment limits the

circumstances under which school officials may search students.

See New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L.

Ed. 2d 720 (1985). Case law addressing whether the Fourth

Amendment similarly limits seizures in the schoolhouse context

is relatively limited, however, especially in this Circuit. The

Court is persuaded by the district courts in this Circuit that

have analyzed school seizure claims under the framework set

forth in TLO. See DeFelice ex rel. Defelice v. Warner, 511 F.

Supp. 2d 241, 247 (D. Conn. 2007) (plaintiff’s claim that she

was confined to principal’s office for 20-30 minutes by school

employee who kept his hand on the doorknob for the duration of

the meeting should be analyzed under Fourth Amendment

reasonableness standard); Bisignano v. Harrison Central School

Dist., 113 F. Supp. 2d 591, 596 (S.D.N.Y. 2000) (Fourth

Amendment applies to claim that teacher forcibly detained

student in a closet).

a. Fourth Amendment Claim

In this case, the relevant Fourth Amendment inquiry is

whether there was a seizure and, if so, whether that seizure was

reasonable. In the schoolhouse, a seizure is reasonable if it

was (1) “justified at its inception” and (2) “reasonably related

in scope to the circumstances which justified” the seizure in

the first place.” Bisignano, 113 F. Supp. 2d at 597 (quoting

T.L.O., 469 U.S. at 341). In evaluating a challenged seizure,

the Court reviews the totality of the circumstances. See

Phaneuf v. Fraikin, 448 F.3d 591, 597 (2d Cir. 2006); Vassallo

v. Lando, 591 F. Supp. 2d 172, 195 (E.D.N.Y. 2008). Based on

the evidence in the summary judgment record, a jury could

reasonably conclude that Billy was the victim of an unreasonable

seizure.

Generally speaking, a Fourth Amendment seizure occurs

when a subject’s freedom of movement is restrained or terminated

by the intentional conduct of a government official. See

Brendlin v. California, 551 U.S. 249, 254, 127 S. Ct. 2400, 168

L. Ed. 2d 132 (2007). Here, the jury could conclude that

Kennedy School employees intentionally restrained Billy’s

movement by confining him in the timeout room. Among the

evidence supporting an inference that Billy was not free to

leave is his father’s testimony that Billy was crying in the

timeout room when he was discovered. (See Pl. BOCES Cntr-Stmt.

¶¶ 123-25.)

With respect to whether Billy’s confinement was

reasonable, the Defendants have not met their burden of

demonstrating that there exists no material issue of fact left

for trial. A schoolhouse seizure is reasonable when it is

justified at its inception and reasonably related to the

incident that prompted the seizure in the first place. Here,

the evidence is inconclusive as to how many times Billy was put

in the timeout room, let alone the circumstances that prompted

the confinement in each case. Compare, for example, Billy’s

BIP, which provided for the timeout room when he exhibited

aggressive behavior, with the timeout log, which indicates that

he was confined for refusing to do his schoolwork. (See Pl. Ex.

K (BIP); Ex. H (timeout log).)

b. Procedural Due Process Claim

Plaintiffs also assert a Section 1983 claim that

Billy’s confinement violated his Fourteenth Amendment procedural

due process rights. Under certain circumstances, a due process

violation may lie where a student has been excluded from the

classroom without an opportunity to be heard. See, e.g.,

Couture v. Bd. of Educ. of Albuquerque Pub. Sch., 535 F.3d 1243,

1256 (10th Cir. 2008). De minimus exclusions from the

classroom, however, do not trigger due process protections. See

id. Precisely where to draw the line between meaningful and de

minimus deprivations is not entirely clear, but the Court is

persuaded by Couture v. Board of Education of Albuquerque Public

Schools, a recent timeout room case. 535 F.3d 1243 (10th Cir.

2008). In Couture, the plaintiff was confined 21 times over two

and a half months for a total of approximately 12 hours. Id. at

1257. The court held these incidents did not amount to the

level of deprivation that triggers due process protections. Id.

The Court reaches the same conclusion in this case.

Billy was sent to the timeout room between 27 and 40 times over

the course of nine months (September to May), each time for a

period ranging from five minutes to, on one occasion, an hour.

(See Pl. Ex. H.) The Court finds that this does not rise to the

level of a procedural due process violation. Cf. Goss v. Lopez,

419 U.S. 565, 576, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975) (a

ten-day suspension from school is not de minimus). Accordingly,

Defendants are entitled to summary judgment on Plaintiffs’

timeout room procedural due process claim.

2. Liability for Plaintiffs’ Section 1983 Claims

Although Billy has raised triable issues of fact

concerning his Fourth Amendment confinement claim, that claim

survives summary judgment as to Nassau BOCES, only. The

following discussion addresses both Plaintiffs’ principal claim

and their conspiracy claim.

a. Hicksville Defendants

Billy’s claim must be dismissed against the Hicksville

Defendants because there is no evidence that the School District

or the Hicksville individual defendants were responsible for

Billy’s confinement. Plaintiffs argue that the Hicksville

Defendants had a duty to investigate use of the timeout room

once they had seen Plaintiffs’ notice of claim. (Pl. Hicksville

Opp. at 18.) But Plaintiffs only served their notice of claim

after they learned of the timeout room themselves and after they

pulled Billy from the Kennedy School. Thus, even assuming that

the Hicksville Defendants had a duty to investigate the timeout

room once they received notice of its use, they cannot be held

responsible for events that pre-dated that notice.

Similarly, there is no evidence that the Hicksville

Defendants participated in a conspiracy to deprive Billy of his

Fourth Amendment rights. “To prove a [Section 1983] conspiracy,

a plaintiff must show: (1) an agreement between two or more

state actors or between a state actor and a private entity; (2)

to act in concert to inflict an unconstitutional injury; and (3)

an overt act done in furtherance of that goal causing damages.”

Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). Again,

Plaintiffs rely on the Hicksville Defendants’ alleged failure to

investigate the timeout room after they received Plaintiffs’

notice of claim. (Pl. Hicksville Opp. at 19.) Clearly, this is

not evidence that the Hicksville Defendants conspired to confine

Billy in the timeout room in the first place.

Accordingly, Billy claims that his confinement in the

timeout room violated his Fourth Amendment right--both his

substantive and conspiracy claims--are dismissed as against the

Hicksville Defendants.

b. The BOCES Individuals are Qualifiedly Immune

The BOCES Individuals are entitled to qualified

immunity from Plaintiffs’ Fourth Amendment claim because, at the

time of the alleged violation, there was no clearly established

federal law such that the defendants had fair warning that their

conduct amounted to a constitutional violation. “Government

agents enjoy qualified immunity when they perform discretionary

functions if either (1) their conduct did not violate clearly

established rights of which a reasonable person would have

known, or (2) it was objectively reasonable to believe that

[their] acts did not violate these clearly established rights.”

Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998)

(quotations omitted). To be “clearly established” for the

purposes of qualified immunity, the right alleged to have been

violated must have been “‘clearly established’ in a more

particularized, and hence more relevant, sense: The contours of

the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L.

Ed. 2d 523 (1987). “This is not to say that an official action

is protected by qualified immunity unless the very action in

question has previously been held unlawful, but it is to say

that in the light of pre-existing law the unlawfulness must be

apparent.” Id.

Having reviewed the parties’ briefs and conducted its

own research, the Court cannot say that the BOCES Individuals

should have reasonably understood that their alleged conduct

violated Billy’s Fourth Amendment right to be free from

unreasonable seizures. In other words, even if the worst of

Plaintiffs’ allegations are true, the Defendants could not have

had fair warning that this conduct was unreasonable in a

constitutional sense. See id. (relevant qualified immunity

analysis in Fourth Amendment context may be whether the

defendant “reasonably acted unreasonably”); see also Safford

Unified School Dist. No. 1 v. Redding, __ U.S. __, 129 S. Ct.

2633, 2644, 174 L. Ed. 2d 354 (2009) (in context of strip

searches, finding that the Fourth Amendment’s scope in schools

was too unsettled to be “clearly established” for qualified

immunity purposes).

c. Plaintiffs’ Claim Survives as to Nassau BOCES

Billy’s Fourth Amendment confinement claim survives as

against Nassau BOCES. Although a school district cannot be held

liable under Section 1983 based solely on the conduct of one of

its employees, it may be liable when “its policy or custom,

whether made by its lawmakers or by those whose edicts or acts

may fairly be said to represent official policy, inflicts the

injury.” Back v. Hastings on Hudson Union Free School Dist.,

365 F.3d 107, 128 (2d Cir. 2004) (citing Monell v. Dep't of Soc.

Servs., 436 U.S. 658, 689, 98 S. Ct. 2018, 56 L. Ed. 2d 611

(1978)) (quotations omitted); see also BD v. De Buono, 130 F.

Supp. 2d 401, 438 (S.D.N.Y. 2008). Viewing the evidence in

Plaintiffs’ favor, Defendant Flora Cohen was arguably a Nassau

BOCES decision-maker with authority over Billy’s timeout room

confinement. She was the Kennedy School’s assistant principal,

and she at was familiar with Billy’s timeout room experience.

(See Pl. Ex. B at 55 (Cohen told Mr. Schafer that Billy had been

sent to the timeout room forty times).) The Court, therefore,

cannot award Nassau BOCES summary judgment on Plaintiffs’ Fourth

Amendment claim.

B. State Law Timeout Room Claims

Plaintiffs assert the following state law causes of

action arising out of Billy’s timeout room confinement: (i) on

behalf of Billy, a battery claim against John Doe(s); (ii) on

behalf of Billy, a claim against the School District and Nassau

BOCES asserting vicarious liability for battery; (iii) on behalf

of Billy, a claim against John Doe(s) for assault; (iv) on

behalf of Billy, a claim against the School District and Nassau

BOCES asserting vicarious liability for assault; (v) on behalf

of Billy, a claim against John Doe(s), the Hicksville School

District and Nassau BOCES for false imprisonment; (vi) on behalf

of Billy, a claim against all Defendants except Dr. Orenstein

for negligence; (vii) on behalf of Billy, a claim against the

School District and Nassau BOCES for negligent hiring and

supervision; (viii) on behalf of both Billy and his Parents, a

claim against all Defendants for intentional infliction of

emotional distress arising out of Billy’s confinement; (ix) on

behalf of the Parents, a claim against all Defendants for

intentional infliction of emotional distress arising out of the

Parents’ discovery of Billy in the timeout room; (x) on behalf

of Billy, a claim against all Defendants for negligent

infliction of emotional distress; and (xi) on behalf of Billy

and his Parents, a claim for punitive damages.7

1. Plaintiffs’ State Law Timeout Room Claims are Dismissed Against the Hicksville Defendants and the BOCES Individuals

Plaintiffs’ state law timeout room claims are

dismissed against the Hicksville Defendants and the BOCES

7 A prayer for punitive damages is not a separate cause of action. See Rocanova v. Equitable Life Assur. Soc., 83 N.Y.2d 603, 616-17, 612 N.Y.S.2d 339 (N.Y. 1994).

Individuals. As to the BOCES Individuals and the individual

Hicksville Defendants, Plaintiffs did not comply with New York’s

notice of claim requirements. (Pl. Ex. LL.) In New York,

General Municipal Law Section 50-e (“Section 50-e”) requires

plaintiffs to name their defendants in their notice of claim

prior to commencing a lawsuit. See Tannenbaum v. City of New

York, 30 A.D.3d 357, 358, 819 N.Y.S.2d 4, 5 (1st Dep’t 2006);

White v. Averill Park Cent. School Dist., 195 Misc. 2d 409, 410,

759 N.Y.S.2d 641, 643 (N.Y. Sup. Ct. Rensselaer Cty. 2003).

Here, Plaintiffs only named the School District, (Pl. Ex. JJ),

and Nassau BOCES (Pl. Ex. LL). Plaintiffs may not “file a

notice of claim naming a municipal entity and then commence an

action against a roster of individual municipal employees.”

White, 759 N.Y.S.2d at 643.

As to the School District, Plaintiffs’ state law

timeout room claims are dismissed because there is no theory on

which they can maintain either their intentional tort claims or

their negligence claims. There is no evidence that any

Hicksville employee was involved whatsoever in confining Billy

to the timeout room. This precludes Plaintiff’s attempts to

hold the School District vicariously liable for the intentional

torts. Plaintiffs’ negligence-based claims also fail because

the School District did not owe Billy a duty of care while he

was attending classes at the Kennedy School. See Ferraro v.

North Babylon Union Free School Dist., 69 A.D.3d 559, 560, 892

N.Y.S.2d 507, 509 (2d Dep’t 2010).

Accordingly, Plaintiffs’ state law claims are

dismissed against the Hicksville Defendants and the BOCES

Individuals.

2. State Law Timeout Room Claims Against Nassau BOCES

Below, the Court considers Plaintiffs’ state law

timeout room claims against Nassau BOCES.

a. Vicarious Liability: Battery and Assault

Plaintiffs’ vicarious liability claims for assault and

battery are dismissed because they have adduced no evidence that

any Nassau BOCES employee committed an underlying assault or

battery. “A school district, like any other employer, may be

held vicariously liable under the doctrine of respondeat

superior for a tort committed by an employee in the course of

the performance of the employee's duties.” Mary KK v. Jack LL,

203 A.D.2d 840, 611 N.Y.S.2d 347 (3d Dep’t 1994); see generally

Giambruno v. Crazy Donkey Bar and Grill, 65 A.D.3d 1190, 885

N.Y.S.2d 724, 728 (2d Dep’t 2009) (“An employer may be held

liable, under the doctrine of respondeat superior, for a tort

committed by an employee acting within the scope of his or her

employment.”). Here, Plaintiffs assert that Nassau BOCES is

vicariously liable for battery and assault committed on Billy

while he was attending the Kennedy School. Under New York law,

plaintiffs alleging battery must establish intentional,

offensive bodily contact. Cerilli v. Kezis, 16 A.D.3d 363,

364, 790 N.Y.S.2d 714, 715 (2d Dep’t 2005). To prove assault,

plaintiffs must establish physical conduct that placed them in

“imminent apprehension of harmful contact.” Marilyn S. v.

Independent Group Home Living Program, Inc., 73 A.D.3d 892, 894,

903 N.Y.S.2d 403, 406 (2d Dep’t 2010) (quotations and citation

omitted).

Here, even viewing Plaintiffs’ evidence in the most

favorable light, there is nothing to show that any of Nassau

BOCES’ employees committed an assault or battery. And there can

be no vicarious liability without an underlying substantive

violation. See Trivedi v. Golub, 46 A.D.3d 542, 847 N.Y.S.2d

211, 212 (2d Dep’t 2007). Plaintiffs have not amended the

Complaint to identify any of the John Does they think are

responsible for the assault and battery, and they barely mention

who they think are responsible in their brief. In their

opposition, Plaintiffs claim that “individual defendants”

committed the assaults and batteries, but “individual

defendants” is not a defined term. In the section on vicarious

liability, they suggest that Defendants Rauscher, Curci and

Schaefer battered Billy when they physically escorted him to the

timeout room. But Plaintiffs are simply speculating at what

happened; there is no evidence that these men assaulted or

battered Billy. Plaintiffs argue that the bruises that Billy’s

father observed are proof that Nassau BOCES employees used force

when they escorted Billy to the timeout room. (Pl. BOCES Opp.

41.) These bruises could have been caused by anything,

anywhere, and they are insufficient to raise a genuine issue of

fact for trial. Similarly, Plaintiffs point to Billy’s cries of

“no blue room, Mark” as proof that Billy was physically forced

into the timeout room. (See id. at 42.) Viewing all the

evidence in Plaintiffs’ favor, it is clear that Billy disliked

the timeout room and that he may have expressed that dislike to

his assigned school psychologist, Defendant Mark Curci. It does

not follow, however, that “no blue room, Mark” shows that Billy

was physically assaulted or battered. Accordingly, Nassau

BOCES is entitled to summary judgment on Plaintiffs’ assault and

battery vicarious liability claims.

b. False Imprisonment

Billy’s false imprisonment claim against Nassau BOCES

survives summary judgment. To prove false imprisonment under

New York law, a plaintiff must show that “the defendant intended

to confine the plaintiff, that the plaintiff was conscious of

the confinement and did not consent to the confinement, and that

the confinement was not otherwise privileged.” Burgio v. Ince,

79 A.D.3d 1733, 913 N.Y.S.2d 864, 865, (4th Dep’t 2010). Viewed

in the light most favorable to Plaintiffs, the record shows that

Billy was confined in the timeout room, he was aware of the

confinement and neither he nor his Parents consented to the

confinement. And although Defendants suggest that the

confinement was privileged, the circumstances under which Billy

confined are disputed, and thus it is unclear whether the

confinement was reasonably necessary to advance legitimate

educational goals. See Matter of Ronald B., 61 A.D.2d 204, 207,

401 N.Y.S.2d 544 (2d Dep’t 1978) (explaining that privilege only

extends to conduct “to facilitate the educational functions of a

school”).

Additionally, there is at least an issue of fact

whether Nassau BOCES is vicariously liable for the BOCES

Individuals’ conduct. As discussed above, employers may be

liable for their employees’ intentional torts “if the employee

was acting within the scope of the employment” at the time of

the tort if the employee’s conduct was foreseeable. Ramos v.

Jake Realty Co., 21 A.D.3d 744, 745, 801 N.Y.S.2d 566 (1st Dep’t

2005). “[T]he employer need not have foreseen the precise act

or manner of the injury as long as the general type of conduct

may have been reasonably expected.” Id. This is a fact-

specific analysis, and thus typically one for the jury. See

Young Bai Choi v. D & D Novelties, Inc., 157 A.D.2d 777, 778,

550 N.Y.S.2d 376 (2d Dep’t 1990) (“Because the determination of

whether a particular act was within the scope of the servant's

employment is so heavily dependent on factual considerations,

the question is ordinarily one for the jury.”).

c. Negligence

Billy’s claim against Nassau BOCES for negligence also

survives summary judgment. “In order to prevail in any action

premised upon negligence, it must be established that defendant

owed plaintiff a duty, that defendant, by act or omission,

breached such duty, that such breach was the proximate cause of

plaintiff's injuries, and that plaintiff sustained damages.”

Salvador v. New York Botanical Garden, 71 A.D.3d 422, 422, 895

N.Y.S.2d 410, 422 (1st Dep’t 2010). Nassau BOCES owed Billy a

duty of care while he was attending the Kennedy School, see,

e.g., Logan v. City of New York, 148 A.D.2d 167, 168, 543

N.Y.S.2d 661 (1st Dep’t 1989), and the evidence--viewed in

Plaintiffs’ favor--establishes that Nassau BOCES’ employees,

acting within the scope of their employment, breached that duty

by confining Billy in the timeout room, causing Billy’s

suffering. Put differently, a jury could find that confining a

disabled, claustrophobic student in a small room whose only

window was blocked was unreasonable, and that the confinement

harmed Billy.

Relying on Mazzaferro v. Albany Motel Enterprises,

Inc., 515 N.Y.S.2d 631, 632-33 (3d Dep’t 1987), Defendants

principally argue that Plaintiffs' negligence claim fails

because they cannot move forward with claims for both

intentional torts and negligence that arise out of the same

conduct. (See BOCES Br. at 24.) The Court is not persuaded

that Plaintiffs' theories are mutually exclusive. A jury could

find, for example, that Nassau BOCES is not liable for false

imprisonment because in each instance its employees’ conduct was

reasonably necessary and thus privileged. Notwithstanding that

finding that each period of confinement was reasonably

necessary, a jury might also find that repeated use of the

timeout room over the course of the school year was not

reasonable, and that Nassau BOCES’ employees breached their duty

of care by confining Billy after they reasonably should have

recognized the severe effects it had on his development.

d. Negligent Hiring and Supervision

The Complaint’s thirteenth count asserts causes of

action for both negligent hiring and negligent supervision.

Nassau BOCES is entitled to summary judgment on both claims,

each of which is addressed in turn below.

i. Negligent Hiring

Nassau BOCES is entitled to summary judgment on

Plaintiffs’ negligent hiring claim because municipal defendants

and their employees have governmental immunity for claims

premised their discretionary actions, a point that Plaintiffs do

not contest in their opposition. See Tango v. Tulevech, 61

N.Y.2d 34, 40, 471 N.Y.S.2d 73 (N.Y. 1983) (“[W]hen official

action involves the exercise of discretion, the officer is not

liable for the injurious consequences of that action even if

resulting from negligence or malice.”) This immunity precludes

suits against municipalities for negligent hiring. See Mon v.

City of New York, 78 N.Y.2d 309, 574 N.Y.S.2d 529 (N.Y. 1991).

ii. Negligent Supervision

Nassau BOCES is also entitled to summary judgment on

Plaintiffs’ negligent supervision claim, (see Compl. ¶¶ 164-69),

which is premised on Nassau BOCES’ assigning Defendant Schaefer,

a bus driver, to monitor the timeout room. Plaintiffs assert

that Schaefer was not qualified for the monitor role, that he

was not able to see Billy inside the timeout room, and that his

desk was not in a position to view the timeout room. (See Pl.

BOCES Opp. 38.) While “[s]chools are under a duty to supervise

students in their charge and will be held liable for foreseeable

injuries proximately related to the absence of adequate

supervision,” there can be no liability “absent a showing that

the negligent supervision was a proximate cause of the injury

sustained.” Tanenbaum v. Minnesauke Elementary Sch., 73 A.D.3d

743, 744, 901 N.Y.S.2d 102 (2d Dep’t 2010) (citation omitted).

Here, Plaintiffs have not shown that Billy was injured

because the timeout room monitor shirked his duties. Rather,

their theory is that Billy was injured by the confinement

itself. Elsewhere in their papers, Plaintiffs suggest that

Billy could have suffered a seizure and stopped breathing while

confined. In that event, Plaintiffs argue, school officials

would not have realized Billy’s distress due to inadequate

supervision. Billy did not stop breathing, however, and there

is no evidence that he suffered any injuries that would have

been prevented by closer supervision. Accordingly, Nassau BOCES

is entitled to summary judgment on Plaintiffs’ negligent

supervision claim.

e. Intentional Infliction of Emotional Distress

Plaintiffs assert two distinct intentional infliction

of emotional distress (“IIED”) claims against all Defendants.

First, Billy and his Parents assert a claim arising out of the

timeout room confinement itself (the “IIED Confinement claim”).

Second, Billy’s Parents assert a claim arising out of their

discovery of Billy in the timeout room (the “IIED Discovery

claim”). Under New York law, intentional infliction of

emotional distress “has four elements: (i) extreme and

outrageous conduct; (ii) intent to cause, or disregard of a

substantial probability of causing, severe emotional distress;

(iii) a causal connection between the conduct and injury; and

(iv) severe emotional distress.” Howell v. New York Post Co.,

Inc., 81 N.Y.2d 115, 121, 612 N.E.2d 699 (N.Y. 1993);

Sawicka v. Catena, 912 N.Y.S.2d 666, 667 (2d Dep’t 2010). “The

first element--outrageous conduct--serves the dual function of

filtering out petty and trivial complaints that do not belong in

court, and assuring that plaintiff's claim of severe emotional

distress is genuine.” Howell, 81 N.Y.2d at 121 (citations

omitted). Of the four, this element is “the one most

susceptible to determination as a matter of law.” Id.

i. IIED Confinement Claim

Billy’s IIED claim may go forward against Nassau

BOCES. The Plaintiffs’ evidence, viewed in its most favorable

light, is that the BOCES Individuals confined Billy, a disabled

child with a seizure disorder and claustrophobia, in a small

room whose only window was blocked. Although there appears to

be very little in the summary judgment record suggesting that

Defendants’ conduct was intended to cause Billy emotional harm,

whether to infer intent from Defendants’ conduct should be left

to a jury. See generally Press v. Chemical Investment Services

Corp., 166 F.3d 529, 538 (2d Cir. 1999) (“Whether a given intent

existed is generally a question of fact, appropriate for

resolution by the trier of fact.”) (citation and internal

quotation omitted). Similarly, whether the Defendants’ conduct

was extreme and outrageous and whether it caused Billy to suffer

severe emotional distress are also issues for the jury.

Additionally, as with the false imprisonment discussion supra,

there is at least an issue of fact whether Nassau BOCES is

vicariously liable for the BOCES Individuals’ conduct. See

Young Bai Choi v. D & D Novelties, Inc., 157 A.D.2d 777, 778,

550 N.Y.S.2d 376 (2d Dep’t 1990).

ii. IIED Discovery Claim

The Parents’ claim for intentional infliction of

emotional distress, which allegedly arises out of their

discovering Billy in the timeout room, fails because there is no

evidence that the Parents’ suffered severe emotional distress as

a result of Defendants’ actions. See Howell, 81 N.Y.2d at 121

(listing elements). Plaintiffs refer the Court to deposition

testimony and a report from a psychologist that purportedly

shows that the Parents were traumatized by what happened at the

Kennedy School. (See Pl. BOCES Opp. at 45.) In fact, this

evidence tends to show only that Billy was traumatized.

Although the psychologist’s report contains a passing

observation that the Parents were “excitable, anxious and highly

reactive when describing their ordeal with Billy’s school

discipline,” there is nothing to suggest they suffered severe

emotional distress. (Pl. Ex. M.) Further, the Court notes that

Plaintiffs’ theory that Defendants intentionally meant to

traumatize Billy’s Parents by confining their son is at odds

with Plaintiffs’ insistence that the Defendants hid use of the

timeout room from them. Nassau BOCES are granted summary

judgment on this claim.

f. Negligent Infliction of Emotional Distress

Plaintiffs assert two causes of action for negligent

infliction of emotional distress, one on Billy’s behalf and one

on his Parents’ behalf. To recover for negligent infliction of

emotional distress in New York, plaintiffs must show (1) that

the defendant “unreasonably endangered the physical safety of

plaintiffs or caused them to fear for their safety” (2)

causation, and (3) emotional injuries. Nicholson v. A.

Anastasio & Sons Trucking Co., Inc., 77 A.D.3d 1330, 1331, 909

N.Y.S.2d 244, 245 (4th Dep’t 2010); see also Vieira v. Honeoye

Cent. School Dist., __ F. Supp. 2d __, 2010 WL 4642922, at *7

(W.D.N.Y. 2010). As with intentional infliction of emotional

distress, plaintiffs suing for negligent infliction of emotional

distress must establish extreme and outrageous conduct. See

Hernandez v. Central Parking System of New York, Inc., 63 A.D.3d

411, 879 N.Y.S.2d 461, 462 (1st Dep’t 2009).

i. The Parents’ Claim

The Parents’ claim for negligent infliction of

emotional distress is dismissed. As discussed above, there is

no evidence that the Parents suffered severe emotional distress.

Further, there is no evidence that the Defendants’ conduct

endangered the Parents or caused them to fear for their safety.

See Bernstein v. East 51st Street Development Co., LLC, 78

A.D.3d 590, 591, 914 N.Y.S.2d 3, 4 (1st Dep’t 2010) (“[A] cause

of action for negligent infliction of emotional distress, which

no longer requires physical injury as a necessary element,

generally must be premised upon the breach of a duty owed to

plaintiff which either unreasonably endangers the plaintiff's

physical safety, or causes the plaintiff to fear for his or her

own safety.”) (citations and quotations omitted).

ii. Billy’s Claim

Billy’s negligent infliction of emotional distress

claim may go forward against Nassau BOCES. Nassau BOCES owed

Billy a duty, and there is a genuine dispute whether they

negligently caused Billy to suffer emotional injuries by extreme

and outrageous conduct that put Billy in fear of physical harm.

As was discussed above in the context of intentional infliction

of emotional distress, Plaintiffs’ evidence suggests that these

Defendants confined Billy, a disabled child with a seizure

disorder and claustrophobia, in a small room where he could not

be seen by the school’s assigned monitor. In short, whether the

Defendants were negligent in confining Billy to the timeout

room, whether that conduct was extreme and outrageous, whether

Billy feared he would have a seizure and stop breathing while

the monitor remained oblivious to his distress, and whether that

fear caused Billy to suffer emotional trauma are all questions

of fact for the jury. And, as with Plaintiffs’ false

imprisonment and intentional infliction of emotional distress,

there are issues of fact as to whether Nassau BOCES may be

vicariously liable for its employees’ actions. Accordingly,

summary judgment as to Billy’s claim of negligent infliction of

emotional distress against Nassau BOCES is denied.

III. Education/Home Services Claims

The second major component of this case concerns

Plaintiffs’ allegations that all Defendants deprived Billy of a

free and appropriate education (“FAPE”). As best as the Court

can discern, Plaintiffs allege that the Defendants violated

their rights by withdrawing home instruction from Billy’s IEP,

denying Billy home occupational and speech therapy, and

conditioning the re-instatement of Billy’s home academic

instruction on his return to the Kennedy School. Plaintiffs

appear to assert (1) Section 1983 claims (including conspiracy)

that Defendants violated Plaintiffs’ substantive due process,

procedural due process and equal protection rights; (2) claims

under IDEA, the ADA and the New York State Constitution that the

Defendants deprived Billy of his FAPE; and (3) a claim for

breach of contract. The Court addresses these claims in turn,

but it first briefly addresses Defendants’ exhaustion argument.

A. Exhaustion of Administrative Remedies

“It is well settled” that the IDEA generally “requires

an aggrieved party to exhaust all administrative remedies before

bringing a civil action in federal or state court.” J.S. ex

rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 112 (2d Cir.

2004). The exhaustion requirement applies not only to IDEA

claims, but also to claims under any federal statute where the

relief sought is also available under IDEA. Id. As noted

above, Plaintiffs filed this lawsuit on May 23, 2006, several

months before they filed their administrative due process

complaint with the District in October 2006. Although their

suit was filed prematurely, Plaintiffs eventually did exhaust

their administrative remedies: A hearing was held, and

Plaintiffs appealed the hearing officer’s decision to the State

Review Officer, who awarded Plaintiffs ten months of

compensatory home services. In the interest of judicial

efficiency, the Court elects not to untangle the exhaustion

issues because it finds that Plaintiffs’ FAPE-related claims

fail on other grounds.

The Court is troubled, however, that Plaintiffs make

no effort whatsoever to address whether and how the State Review

Officer’s decision awarding them ten months of services bears on

their FAPE claims. It appears that certain aspects of

Plaintiffs’ Complaint are obsolete, or at least warrant some

explanation of why the Plaintiffs believe they are entitled to

more relief than has already been awarded. Despite extensive

briefing in this case, Plaintiffs utterly fail to provide that

explanation. Plaintiffs’ shortcoming in this regard is the

backdrop against which the following discussion rests.

B. Section 1983 Claims

Plaintiffs assert Section 1983 claims based on the

Fourteenth Amendment. The Court also addresses whether

Plaintiffs may attempt to redress IDEA violations through

Section 1983.

1. Procedural Due Process

Plaintiffs’ FAPE-related procedural due process

claims, which Plaintiffs clarify as stemming from Defendants’

“summarily remov[ing] Plaintiff Billy’s home based program

without any in-put or notice to Plaintiffs,” (Pl. Hicksville

Opp. at 17), cannot survive summary judgment. “Analysis of a

procedural due process claim is composed of two prongs. First,

the court must discern ‘whether the plaintiff has a property or

liberty interest protected by the Constitution.’ If such an

interest exists, ‘[the] court must then consider whether the

government deprived the plaintiff of that interest without due

process.’ Thus, under this second step of the analysis, the

court must ask “what process was due to the plaintiff, and . . .

whether that constitutional minimum was provided in the case

under review.” Alleyne v. New York State Educ. Dept., 691 F.

Supp. 2d 322. 336-37 (N.D.N.Y. 2010) (quoting Narumanchi v. Bd.

of Trs. of Conn. State Univ., 850 F.2d 70, 72 (2d Cir. 1988)).

Here, assuming for argument’s sake that Plaintiffs

were deprived of a constitutionally-protected interest in having

an opportunity to discuss the removal of Billy’s home-based

academic instruction, Plaintiffs cannot satisfy the second prong

of the analysis because they cannot show--in fact, they do not

even try--that the post-deprivation remedy under IDEA was

inadequate. The IDEA hearing procedure satisfies procedural due

process requirements, see Does v. Mills, 2005 WL 900620, at *9

(S.D.N.Y. 2005), and there is no suggestion that Plaintiff’s

hearing was procedurally deficient or even that it failed to

provide Plaintiffs adequate relief. Accordingly, Defendants are

entitled to summary judgment on Plaintiffs’ FAPE-related

procedural due process claim.

2. Substantive Due Process

Plaintiffs also appear to claim that Defendants

violated their substantive due process rights to Billy’s FAPE

by, among other things, withdrawing home academic services and

then conditioning their reinstatement upon the Parents’ decision

to return Billy to the Kennedy School. Plaintiffs have not

shown that the Defendants deprived them of a constitutionally-

protected interest. “‘Education, of course, is not among the

rights afforded explicit protection under our Federal

Constitution.’ Thus, ‘[t]he Fourteenth Amendment does not

protect a public education as a substantive fundamental right.’”

Smith v. Guilford Bd. of Educ., 226 F. App’x 58, 61 (2d Cir.

2007) (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411

U.S. 1, 35, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973) and Handberry

v. Thompson, 436 F.3d 52, 70 (2d Cir. 2006)); Rafano v.

Patchogue-Medford School Dist., No. 06-CV-5367, 2009 WL 789440,

at *7 (E.D.N.Y. Mar. 20, 2009). Accordingly, Defendants are

entitled to summary judgment on Plaintiff’s FAPE-based

substantive due process claims.

3. Equal Protection

Defendants are also entitled to summary judgment on

Plaintiffs’ Equal Protection claims because Plaintiffs have not

identified “any official action that distinguished between

disabled students and others.” Pape v. Board of Educ. of the

Wappingers Cent. Sch. Dist., No. 07-CV-8828, 2009 WL 3151200, at

*6 (S.D.N.Y. 2009). Further, to the extent Billy was denied a

FAPE because of his disability, this is the type of violation

that should be redressed through IDEA. See id. “Indeed, courts

have held that the denial of equal access to public education

for disabled students is precisely the type of alleged

discrimination protected by statutory authority under the IDEA,

Section 504, and the ADA.” Id. To the extent Plaintiffs claim

that Billy was a “class of one”--“where the plaintiff alleges

that [he] has been intentionally treated differently from others

similarly situated and that there is no rational basis for the

difference in treatment”--this claim fails because Plaintiffs

have not identified anyone similarly situated. Id. at *6-7.

4. Asserting IDEA through Section 1983

To the extent that Plaintiffs attempt to enforce IDEA

through Section 1983--and again, the Complaint is not a model of

clarity--Plaintiffs’ claims fail because they have not shown

that they were unable to use the IDEA’s administrative remedies

to obtain the relief to which they were entitled under the

statute. Unlike many Circuits, which do not permit plaintiffs

to use Section 1983 to redress IDEA violations, see, e.g., D.A.

ex rel. Latasha A. v. Houston Independent School Dist., 629 F.3d

450, 456 (5th Cir. 2010); A.W. v. Jersey City Public Schs., 486

F.3d 791, 803 (3d Cir.2007) (en banc); Diaz-Fonseca v. Puerto

Rico, 451 F.3d 13, 28 (1st Cir. 2006), the Second Circuit

permits IDEA-based Section 1983 claims, but only where the

plaintiff was denied the procedural or administrative remedies

that IDEA provides. See Streck v. Board of Educ. of East

Greenbush Sch. Dist., 280 F. App’x 66, 68 (2d Cir. 2008); see

also Quackenbush v. Johnson City Sch. Dist., 716 F.2d 141, 148

(2d Cir. 1983); K.M. ex rel. A.M. v. Manhasset Union Free Sch.

Dist., No. 04-CV-1031, 2006 WL 1071568, at *7 (E.D.N.Y. 2006).

Here, Plaintiffs availed themselves of IDEA’s corrective

procedures and were awarded relief under the statute.

Consequently, they may not now use Section 1983 to sue for

damages under IDEA. See, Streck, 280 F. App’x at 68

(“Plaintiffs fail to allege a denial of procedural safeguards or

administrative remedies: they were afforded a hearing before an

impartial hearing officer and review by a state review officer .

. . . . Therefore, plaintiffs may not rely on § 1983 to pursue

monetary damages for violations of the IDEA.”).

C. Federal Statutory Claims

Plaintiffs also assert claims under IDEA itself and

under the Americans with Disabilities Act (the “ADA”). The

Court addresses each in turn.

1. IDEA

Plaintiffs’ fourth count asserts a claim under IDEA

for compensatory damages plus legal fees and costs. (Compl. ¶

121.) Defendants are entitled to summary judgment on this claim

because compensatory damages are not recoverable under IDEA.

Polera v. Board of Educ. of Newburgh Enlarged City Sch. Dist.,

288 F.3d 478, 486 (2d Cir. 2002). As the Second Circuit

explained, “[t]he purpose of the IDEA is to provide educational

services, not compensation for personal injury, and a damages

remedy . . . is fundamentally inconsistent with this goal.” Id.

at 286. Plaintiffs may, in some cases, be reimbursed for

educational expenses they incurred as a result of an IDEA

violation. Id. Here, however, Plaintiffs’ Count Four seeks

$10 million in compensatory damages. Even if the Court were to

treat this as a request to be reimbursed for Plaintiffs’

educational expenditures, Plaintiffs point to no evidence that

they actually incurred these costs.

2. ADA

Plaintiffs’ ADA claim fails because there is no

evidence that Billy was treated unequally because of his

disability. “In order to establish a violation under the ADA,

the plaintiffs must demonstrate that (1) they are “qualified

individuals” with a disability; (2) that the defendants are

subject to the ADA; and (3) that plaintiffs were denied the

opportunity to participate in or benefit from defendants'

services, programs, or activities, or were otherwise

discriminated against by defendants, by reason of plaintiffs'

disabilities.” Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d

Cir. 2003). Here, there is no evidence that Billy was

discriminated against because of his disability. To the extent

Plaintiffs assert that they were victims of retaliation, their

claim fails because they point to no evidence that any decision-

makers were aware that Plaintiffs had filed the notices of claim

at the time when Defendants allegedly conditioned the

reinstatement of Billy’s service upon the Parents’ returning

Billy to the Kennedy School. (See Hicksville Br. 16; Hicksville

Reply at 10 n. 7 (noting Plaintiffs’ failure to oppose their

arguments concerning the retaliation claims).) That a defendant

be aware of a plaintiff’s protected activity is a required

component of retaliation claims under both the ADA and the First

Amendment. See, e.g., Treglia v. Town of Manlius, 313 F.3d 713,

719 (2d Cir. 2002) (stating elements of ADA retaliation claim);

Wood v. Town of East Hampton, No. 08-CV-4197, 2010, WL 3924847,

at *7 (E.D.N.Y. Sept. 30, 2010 (in First Amendment retaliation

case, requiring plaintiff to show that defendant’s action was

motivated by plaintiff’s actions). Accordingly, Defendants are

entitled to summary judgment on Plaintiffs’ ADA claim.

D. New York State Constitution

Plaintiffs’ claim that Defendants violated Billy’s

right to an education secured by Article XI, Section 1 of the

New York State Constitution fails because Article XI, Section 1

does not create a private right of action. See K.M. ex rel.

D.G. v. Hyde Park Cent. Sch. Dist., 381 F. Supp. 2d 343, 353

(S.D.N.Y. 2005). In their opposition, Plaintiffs argue that

this provision of the New York State Constitution largely tracks

IDEA. (Pl. Hicksville Opp. 22-23.) As discussed above,

Plaintiffs’ IDEA claims do not survive summary judgment, either.

E. Breach of Contract

Plaintiffs also claim that Defendants breached a

contract with Plaintiffs by withdrawing home instruction from

Billy’s IEP. (Compl. 173.) Defendants are entitled to summary

judgment on this claim, too. Setting aside the dubious notion

that a breach of contract action can arise out of an IEP

dispute--a proposition for which Plaintiffs have offered no

meaningful authority--there is no evidence that Plaintiffs are

entitled to any compensatory damages beyond the compensatory

home instruction awarded by the State Review Officer. See,

e.g., Harris v. Seward Park Housing Corp., 79 A.D.3d 425, 913

N.Y.S.2d 161, 162 (1st Dep’t 2010) (noting that elements of

breach of contract claim under New York law “include the

existence of a contract, the plaintiff's performance thereunder,

the defendant's breach thereof, and resulting damages”).

Accordingly, the Court awards summary judgment to Defendants on

Plaintiffs’ breach of contract claim.

CONCLUSION

The Hicksville Defendants’ and the BOCES Individuals’

motions for summary judgment are GRANTED. (Docket Entries 79 and

77, respectively.) Nassau BOCES’ motion for summary judgment is

GRANTED IN PART. (Docket Entry 78) Plaintiffs’ Fourth

Amendment, false imprisonment, negligence, intentional

infliction of emotional distress and negligent infliction of

emotional distress claims may go forward against Nassau BOCES.

Plaintiffs’ remaining claims are DISMISSED. Plaintiffs and

Nassau BOCES are directed to appear before this Court on April

29, 2011 at 9:30 a.m. for a pre-trial conference.

SO ORDERED.

/s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J.

Dated: March 31 , 2011 Central Islip, New York

Schafer et al. v. Hicksville Union Free School District et al.