E.D.N.Y.: Rafano v.... | Special Education Law

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

N o 06-CV-5367 (JFB) (ARL)

CHRISTOPHER RAFANO,

Plaintiff,

VERSUS

PATCHOGUE-MEDFORD SCHOOL DISTRICT, PATCHOGUE-MEDFORD SCHOOL BOARD AND MICHAEL MOSTOW, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT,

Defendants.

M EM ORANDUM AND ORDER March 20, 2009

JOSEPH F. BIANCO , District Judge: plaintiff’s rejection from all colleges of his choice. Plaintiff brings this action under 42 Plaintiff, Christopher Rafano (“plaintiff” or U.S.C. § 1983 (“Section 1983”), the Equal “Rafano”) brings the present civil rights action Protection Clause of the Fourteenth against the Patchogue-Medford School Amendment to the United States Constitution, District (the “District”), the Patchogue- the Americans with Disabilities Act (“ADA”), Medford School Board (the “School Board”) 42 U.S.C. § 12132, the Individuals With and Michael Mostow (“Mostow”), Disabilities Education Act (“IDEA”), 20 individually and in his official capacity as U.S.C. §§ 1400-1490, and state law. Superintendent, (collectively, “defendants”), alleging that (1) plaintiff’s academic Defendants move for summary judgment transcripts issued by defendants reflected on all claims. For the reasons set forth below, incorrect grades, (2) defendants interfered defendants’ motion is granted on all federal with plaintiff’s ability to take the SAT claims, and the Court declines to exercise Examination, and (3) these actions, in supplemental jurisdiction over the state conjunction with defendants’ refusal to release claims. plaintiff’s medical records, resulted in

I. BACKGROUND Plaintiff suffers from ADHD and bipolar disorder. (Defendants’ Affirmation in A. Facts Support, Ex. X.) On November 12, 2002, plaintiff’s mother requested that plaintiff be The Court has taken the facts described evaluated by the District’s Committee on below from the parties’ affidavits, exhibits and Special Education (“CSE”). (Defs’ 56.1 ¶ 2.) defendants’ Local Rule 56.1 Statement of Facts A CSE meeting was held on January 10, (“Defs’ 56.1”).1 In ruling on a motion for 2003, and resulted in plaintiff’s classification summary judgment, the Court shall construe as “Other Health Impairment.” (Id. ¶ 3.) the facts in the light most favorable to the Between February 2003 and March 2003, non-moving party. See Capobianco v. City of plaintiff was suspended from school on New York, 422 F.3d 47, 50 (2d Cir. 2005). several occasions for “cutting classes, walking out of classes without permission, Plaintiff attended the Patchogue-Medford and displaying insubordinate behavior, School District for part of the school years including use of profanities to teachers and between 2001 and 2004. (Defs’ 56.1 ¶ 1.) other school staff.” (Id. ¶¶ 4-5.) A meeting was held on April 2, 2003, at which the CSE determined that plaintiff “would benefit from 1 The Court notes that plaintiff failed to file and a smaller structured learning environment.” serve a response to defendants’ Local Rule 56.1 (Id. ¶ 6.) The CSE recommended a BOCES Statement of Facts in violation of Local Civil Rule screening, to which plaintiff’s mother 56.1. Generally, a “plaintiff[’s] failure to respond consented. (Id. ¶ 6.) At a meeting held on or contest the facts set forth by the defendants in June 11, 2003, the CSE and plaintiff’s their Rule 56.1 statement as being undisputed parents approved plaintiff’s placement at the constitutes an admission of those facts, and those Eastern Suffolk BOCES. (Id. ¶ 7.) facts are accepted as being undisputed.” Jessamy v. City of New Rochelle, 292 F. Supp. 2d 498, Plaintiff attended Eastern Suffolk BOCES 504-05 (S.D.N.Y. 2003) (quoting NAS Elecs., Inc. v. Transtech Elecs. PTE Ltd., 262 F. Supp. 2d 134, from May 2003 through November 2003. 139 (S.D.N.Y. 2003)). However, “[a] district court (Id. ¶ 8.) In August of 2003, plaintiff’s has broad discretion to determine whether to mother requested a CSE meeting because she overlook a party’s failure to comply with local no longer approved of plaintiff’s placement. court rules.” Holtz v. Rockefeller & Co., 258 F.3d (Id. ¶ 9.) Such meeting was held on 62, 73 (2d Cir. 2001) (citations omitted); see also September 10, 2003, and CSE and plaintiff’s Gilani v. GNOC Corp., No. 04 Civ. 2935 (ILG), mother agreed that plaintiff would continue 2006 U.S. Dist. LEXIS 23397, at *4-*5 (E.D.N.Y. to attend BOCES. (Id. ¶ 9.) Apr. 26, 2006) (exercising court’s discretion to overlook the parties’ failure to submit statements In December of 2003, at the request of pursuant to Local Civil Rule 56.1). Accordingly, plaintiff’s mother, the CSE agreed to place in the exercise of its broad discretion, the Court will overlook this defect and will deem admitted plaintiff back into the Patchogue-Medford only those facts in defendants’ Rule 56.1 statement High School. (Id. ¶ 10.) At a meeting on that are supported by admissible evidence and not January 23, 2004, however, the CSE controverted by other admissible evidence in the determined that plaintiff’s needs were not record. See Jessamy, 292 F. Supp. 2d at 504. being met at the high school and plaintiff

“continued to ‘openly defy authority figures “Defendants incorporated zeroes into his and use inappropriate language.’” (Id. ¶ 11.) grades for quizzes he missed on days he was Plaintiff’s mother agreed to another BOCES absent from school during grades nine screening, with home tutoring as the interim through twelve, while he attended the placement until an appropriate placement could Patchogue-Medford High School.” (Id. ¶ be arranged. (Id. ¶11.) On January 26, 2004, 22;Defendants’ Affirmation in Support, Ex. plaintiff’s mother wrote to the District, W, at 40-41, explaining that plaintiff received informing it that she disagreed with the CSE’s zeros for tests missed due to absence caused determination and she had decided to send by suspension from school; but see plaintiff to a private school, the Sappo School. Defendants’ Affirmation in Support, Ex. Y, (Id. ¶ 12.) In or about February of 2004, the at 37 and 63, in which plaintiff confirmed he District agreed to pay for plaintiff to attend the had no proof that the grades reflected in the Sappo School. (Id. ¶ 13.) Plaintiff finished transcript were not correct.) Plaintiff’s high school at the Sappo School, receiving a mother does not dispute the accuracy of Regents diploma in August of 2004. (Id. ¶ 14.) plaintiff’s ninth grade grades. (Defendants’ Affirmation in Support, Ex. X, at 35.) Nor 1. Plaintiff’s Transcript does plaintiff’s mother dispute the tenth grade Regents exam scores, which included On October 22, 2004, plaintiff’s mother a 65 in U.S. history, a 56 in math and a 56 in requested a copy of plaintiff’s transcript from living environment. (Id. at 42.) Plaintiff’s the defendant school district. (Id. ¶ 15.) That mother contends, however, that plaintiff same day, the school district provided would have received straight A’s that year if plaintiff’s mother a transcript containing the school had not improperly incorporated plaintiff’s grades from the Patchogue-Medford zeros into his grades for the tests he missed School District. (Id. ¶ 16.) Plaintiff’s mother due to absence. (Id. at 81.) then requested a new transcript, including the grades plaintiff received at the Sappo School. 2. The SAT Examination (Id. ¶ 17.) The Sappo School provided the District with plaintiff’s grades received from Plaintiff took the SAT Examination the Sappo School on October 26, 2004. (Id. ¶ without accommodations in May of 2003 and 17.) On December 10, 2004, the District sent scored a 710. (Defs’ 56.1 ¶¶ 24-25.) plaintiff’s mother a copy of plaintiff’s Plaintiff alleges that he took the test at that transcript, incorporating the grades provided by time as practice and intended to take it again. the Sappo School. (Id. ¶ 19.) Plaintiff alleges that defendants removed his name from the list of those eligible for Plaintiff claims that plaintiff’s grades from accommodations to take the SAT the Sappo School are not accurately reflected in Examination and/or prevented him from the transcript the District sent . (Id. ¶ 20; but sitting for the examination when he see Defendants’ Affirmation in Support, Ex. C, attempted to take the test again in November at 76, in which plaintiff admits that the of 2004. (Id. ¶ 24.) Plaintiff concedes he transcript accurately reflected his grades from never attempted to take it after that, despite the Sappo School.) Plaintiff’s mother alleges there being no barrier to his doing so. that the transcript is also inaccurate in that

On February 24, 2004, the College Board – refused to attend because they required him the body responsible for providing test to take remedial classes, (Id. ¶ 36; accommodations for the SAT Examination – Defendants’ Affirmation in Support, Ex. G, approved plaintiff’s request for testing at 50, 52 (plaintiff testifying that Palm Beach accommodations and advised plaintiff that such Community College “send[s] [plaintiff] mail accommodations would expire on August 31, all the time . . . offering [him] to go to school 2004. (Id. ¶¶ 27-29.) Plaintiff applied and was . . . [and he] can’t wait to go”)) but plaintiff scheduled to take the SAT Examination on denies that contention. (See Defendants’ November 6, 2004, after the testing Affirmation in Support, Ex. Y, at 13.) accommodations were set to expire. (Id. ¶ 29.) Plaintiff was accepted to Dowling College, On or about November 1, 2004, the College which he attended for two months in the Board advised the Director of the Sappo Spring of 2007. (Defs’ 56.1 ¶ 37.) Plaintiff School that plaintiff was not approved for withdrew, however, before completing the accommodations for the November 2004 first semester. (Id. ¶ 37; see Defendants’ examination. (Id. ¶ 30.) On November 4, Affirmation in Support, Ex. Y, at 18.) 2004, the defendant District’s Assistant Superintendent for Pupil Personnel wrote to the B. Procedural History College Board, requesting that plaintiff be allowed testing accommodations for the Plaintiff filed the complaint in this action November 2004 examination. (Id. ¶ 31.) The on October 2, 2006. Defendants filed their College Board agreed to provide such answer on December 1, 2006. Defendants accommodations, but plaintiff did not take the filed this motion for summary judgment on examination at the scheduled time. (Id. ¶ 32.) August 25, 2008. Plaintiff filed his response Plaintiff alleges that the District called the in opposition to defendants’ motion for College Board and told them to cancel summary judgment on February 16, 2009.2 plaintiff’s examination. (Defendants’ Affirmation in Support, Ex. Y, at 76; Ex. X, at 45.) 2 The plaintiff’s opposition to the motion for summary judgment was due by September 25, 3. College Admission 2008. However, no opposition was filed by that date or for over 30 days following that date. Plaintiff alleges that defendants prevented Instead, by motion filed October 31, 2008, him from attending college by refusing to counsel for plaintiff sought to withdraw because provide colleges with his medical of various difficulties with plaintiff and immunization records. The District, however, plaintiff’s mother. In a written letter to the is “not authorized to release medical records of Court, dated November 13, 2008, plaintiff (and plaintiff’s mother) opposed that motion and, its students.” (Defs’ 56.1 ¶ 34.) Plaintiff also despite the differences between counsel and alleges that inaccuracies in his transcript and plaintiff regarding various matters, plaintiff (and denial of accommodations for and/or entrance plaintiff’s mother) wished current counsel to to the SAT Examination have caused his continue as plaintiff’s attorney. During the rejection from the colleges of his choice. course of this motion to withdraw, plaintiff’s Defendants contend that plaintiff was accepted counsel represented to the Court that he could to Palm Beach Community College, but not ethically and in good faith oppose the summary judgment motion generally given the

Defendants filed their reply on February 27, 2004); Anderson v. Liberty Lobby, Inc., 477 2009. The Court has considered all of the U.S. 242, 248 (1986) (holding that summary parties’ submissions. judgment is unwarranted if “the evidence is such that a reasonable jury could return a II. STANDARD OF REVIEW verdict for the nonmoving party”).

The standards for summary judgment are Once the moving party has met its burden, well settled. Pursuant to Federal Rule of Civil the opposing party “must do more than Procedure 56(c), a court may not grant a simply show that there is some metaphysical motion for summary judgment unless “the doubt as to the material facts . . . . [T]he pleadings, depositions, answers to nonmoving party must come forward with interrogatories, and admissions on file, together specific facts showing that there is a genuine with affidavits, if any, show that there is no issue for trial.” Caldarola v. Calabrese, 298 genuine issue as to any material fact and that F.3d 156, 160 (2d Cir. 2002) (quoting the moving party is entitled to judgment as a Matsushita Elec. Indus. Co. v. Zenith Radio matter of law.” Fed. R. Civ. P. 56(c); Corp., 475 U.S. 574, 586-87 (1986)). As the Globecon Group, LLC v. Hartford Fire Ins. Supreme Court stated in Anderson, “[i]f the Co., 434 F.3d 165, 170 (2d Cir. 2006). The evidence is merely colorable, or is not moving party bears the burden of showing that significantly probative, summary judgment he or she is entitled to summary judgment. See may be granted.” Anderson, 477 U.S. at Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 249-50 (citations omitted). Indeed, “the mere 2005). The court “is not to weigh the evidence existence of some alleged factual dispute but is instead required to view the evidence in between the parties will not defeat an the light most favorable to the party opposing otherwise properly supported motion for summary judgment, to draw all reasonable summary judgment; the requirement is that inferences in favor of that party, and to eschew there be no genuine issue of material fact.” credibility assessments.” Amnesty Am. v. Town Id. at 247-48. Thus, the nonmoving party of W. Hartford, 361 F.3d 113, 122 (2d Cir. may not rest upon mere conclusory allegations or denials, but must set forth “concrete particulars” showing that a trial is record in this case, but believed there was a narrow needed. R.G. Group, Inc. v. Horn & Hardart ground he could assert in opposition on his client’s Co., 751 F.2d 69, 77 (2d Cir. 1984) (internal behalf in good faith and consistent with his ethical quotations omitted). Accordingly, it is obligations. As seen from the opposition papers, insufficient for a party opposing summary that narrow argument relates to the purported lack judgment “merely to assert a conclusion of certain discovery. Before counsel for plaintiff without supplying supporting arguments or filed his opposition papers, the Court held an on- facts.” BellSouth Telecomms., Inc. v. W.R. the-record conference with plaintiff (and plaintiff’s Grace & Co., 77 F.3d 603, 615 (2d Cir. mother) to ensure that he understood that his counsel was only going to defend the motion on 1996) (internal quotations omitted). that narrow procedural ground and that he wanted to continue nevertheless with current counsel. Plaintiff indicated that he understood and wanted to proceed with that counsel, rather than proceed with new counsel or proceed pro se.

III. DISCUSSION nevertheless prevail on an equal protection claim provided he shows that (1) “[he] has A. Federal Claims been intentionally treated differently from others similarly situated” and (2) “there is no Defendants argue that plaintiff has not (and rational basis for the difference in treatment.” cannot) establish a prima facie case against Village of Willowbrook v. Olech, 528 U.S. defendants under any cause of action asserted 562, 564 (2000); see also Giordano v. City of in the complaint. Counsel for plaintiff does not New York, 274 F.3d 740, 743 (2d Cir. 2000). appear to challenge this contention, but rather Such a claim “requires a showing that the argues that any absence of evidence is due to level of similarity between the plaintiff and the Magistrate Judge’s refusal to allow plaintiff the person(s) with whom she compares to extend or reopen discovery to conduct herself is extremely high - so high (1) that no additional depositions. For the reasons set rational person could regard the forth below, this Court finds that plaintiff has circumstances of the plaintiff to differ from not put forth sufficient evidence upon which a those of a comparator to a degree that would reasonable juror could find in his favor on any justify the differential treatment on the basis of his federal claims. Further, the Court finds of a legitimate government policy, and (2) that plaintiff’s request for review of the that the similarity in circumstances and Magistrate Judge’s discovery ruling is untimely difference in treatment are sufficient to and would be unsuccessful in any event. exclude the possibility that the defendant Similarly, to the extent that plaintiff is acted on the basis of a mistake. The plaintiff attempting to make a Rule 56(f) motion must also show that the defendant because of the failure to obtain certain intentionally treated her differently, with no discovery, the Court finds plaintiff’s arguments rational basis.” Prestopnik v. Whelan, No. completely unpersuasive. 06-3186-cv, 2007 U.S. App. LEXIS 19612, at *4-*5 (2d Cir. Aug. 16, 2007) (internal 1. Equal Protection citations and quotations omitted); see also Price v. City of New York, No. 06-3481-cv, Plaintiff asserts violations of his rights 264 Fed. Appx. 66, 68, 2008 U.S. App. under the Equal Protection Clause of the LEXIS 3133 (2d Cir. Feb. 13, 2008); Fourteenth Amendment, which provides that Clubside, Inc. v. Valentin, 468 F.3d 144, 159 “no State shall . . . deny to any person within (2d Cir. 2006); Neilson v. D’Angelis, 409 its jurisdiction the equal protection of the F.3d 100, 104 (2d Cir. 2005) (“the level of laws.” U.S. Const. amend. XIV, § 1. The similarity between [such] plaintiffs and the Equal Protection Clause of the Fourteenth persons with whom they compare themselves Amendment is “essentially a direction that all must be extremely high.”).3 persons similarly situated be treated alike.” Latrieste Rest. v. Village of Port Chester, 188 F.3d 65, 69 (2d Cir. 1999) (quoting City of 3 The Second Circuit has not yet decided Cleburne v. Cleburne Living Ctr., Inc., 473 whether such a claim also requires “the plaintiff U.S. 432, 439 (1985)). An individual not to demonstrate the differential treatment was alleging invidious discrimination on the basis based on impermissible considerations such as of membership in some group may race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or

Plaintiff has put forth no evidence that immunities secured by the Constitution others, similarly situated, were treated including the 14th Amendment in violation differently from plaintiff. Plaintiff simply of 42 U.S.C. § 1983.” (Compl. ¶ 45.) In states that he “has the right to accurate response to an interrogatory from defendants academic transcripts just as those other asking plaintiff to “[d]escribe with specificity disabled students who are similarly situated in the manner in which Defendants have a public school setting.” (Defendants’ deprived Plaintiff of federally- and state- Affirmation in Support, Ex. FF, at 7.) He does protected Constitutional rights,” plaintiff not identify a single such “similarly situated” stated that “[t]he Plaintiff has the right to person, nor does he provide any other accurate academic transcripts just as those evidentiary support to his conclusory statement. other disabled students who are similarly No reasonable juror could find that plaintiff’s situated in a public school setting.” burden was met based on such a showing. (Defendants’ Affirmation in Support, Ex. FF, Such an omission is fatal to plaintiff’s equal at 7.) Defendants now move for summary protection claim and, therefore, it cannot judgment on plaintiff’s claim pursuant to survive summary judgment. See Prestopnik Section 1983 on grounds that (1) plaintiff has U.S. App. LEXIS 19612, at *4; see also King offered no evidence to support a finding that v. New York State Div. of Parole, No. 05-1860- he has been deprived of any right secured by pr, 260 Fed. Appx. 375, 380, U.S. App. LEXIS federal statute or the United States 875 (2d Cir. Jan. 16, 2008) (dismissing claim Constitution, and (2) plaintiff has provided for failure “to identify a single individual with no support for a finding that the alleged whom he can be compared for Equal Protection constitutional violations occurred as a result purposes”). of a government policy or custom as required by Monell v. Dep’t of Social Servs. of City of 2. Section 1983 Claim New York, 436 U.S. 658, 691 (1978). (Defendants’ Memorandum of Law, at 10- To prevail on a claim under 42 U.S.C. § 13.) 1983, a plaintiff must show: (1) the deprivation of any rights, privileges, or immunities secured First, this Court agrees with defendants by the Constitution and laws; (2) by a person that plaintiff has not put forth any evidence to acting under the color of state law. 42 U.S.C. support a finding of a violation of his § 1983. “Section 1983 itself creates no federally-protected rights by defendants. It substantive rights; it provides only a procedure appears that plaintiff means to assert that the for redress for the deprivation of rights alleged violation of his equal protection established elsewhere.” Sykes v. James, 13 rights provides support for his Section 1983 F.3d 515, 519 (2d Cir. 1993). Plaintiff alleges claim. For the reasons stated supra, that defendants’ actions have deprived plaintiff however, plaintiff has not sufficiently made “of his rights, equal protection, privileges and out an equal protection claim and, for that reason, plaintiff’s Section 1983 claim on the same grounds must also fail. To the extent bad faith intent to injure a person.” See Price v. that plaintiff alleges violation of his due City of New York, 264 Fed. Appx. 66, 68 (2d Cir. process rights under the Fourteenth 2008). This Court need not address this question Amendment, such a claim also fails as a as plaintiff’s claim is deficient for other reasons.

matter of law. legitimate claim to a college education. While New York law does provide that there To make out a substantive due process may be a basis for a student to assert such a claim, plaintiff must demonstrate a violation of property interest where the student is already a liberty or property interest protected by the enrolled in a college and is then discontinued, Due Process Clause. It is well-settled, Branum v. Clark, 927 F.2d 698, 705 (2d Cir. however, that education is “‘not among the 1991) (“in stating that [plaintiff] had no rights afforded explicit protection under our property interest in continuing his education, Federal Constitution,’ [and t]hus, ‘the the court did not mention New York law’s Fourteenth Amendment does not protect a recognition of an ‘implied contract’ between public education as a substantive fundamental [a college or university] and its students, right.’” Smith v. Guilford Bd. of Educ., No. 06- requiring the academic institution [to] act in 1094-cv, 2007 U.S. App. LEXIS 14132, at *5 good faith in its dealing with its students. (2d Cir. June 14, 2007) (quoting San Antonio Such an implied contract, recognized under Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 state law, provides the basis for a property (1973) and Handberry v. Thompson, 436 F.3d interest that would be entitled to 52, 70 (2d Cir. 2006)). Therefore, no constitutional protection.”) (internal citations substantive due process claim exists on the and quotations omitted), there is no case law facts alleged. to support a finding that a plaintiff has a property interest in a college education To determine whether a procedural due program to which the plaintiff has not been process claim can survive summary judgment, accepted. See, e.g., Brands v. Sheldon the Court must first determine whether plaintiff Community School, 671 F. Supp. 627, 631 has plausibly alleged a “legitimate claim of (N.D. Iowa 1987) (“Once awarded, a college entitlement to the benefit [at issue], rather than scholarship may give rise to a property a mere unilateral expectation of it.” Smith, interest in its continuation. But there is not 2007 U.S. App. LEXIS 14132, at *7 (citations automatic entitlement to a college education. and quotations omitted). If plaintiff was not When scholarships are awarded at the deprived of a liberty or property interest, then discretion of a college coach, and such no due process is owed. Board of Regents v. discretion has not yet been exercised, no Roth, 408 U.S. 564 (1972). Plaintiff’s claim property interest in the receipt of a here would be that defendants’ actions scholarship can exist, and the plaintiff cannot deprived him of his property interest in higher invoke his expectation that he would earn a education. New York’s Constitution and scholarship at the state tournament in order to education laws do provide a right to elementary claim a property interest in wrestling there.”) and secondary education for children up to the (internal citations and quotations omitted). age of eighteen. N.Y. Const. Art. 8 § 1 and N.Y. Educ. L. § 3202 (1). They do not, To the extent that plaintiff is asserting a however, provide a right to higher education, right to an accurate transcript, plaintiff has such as college. Therefore, plaintiff has no pointed to no case law finding such a right. right to higher education pursuant to state law. Further, even if the Court found such a right Nor does plaintiff provide any other basis upon to exist, there is no indication that plaintiff which it can be found that plaintiff had a was deprived of due process regarding the

transcript. The lowered grades were a result of Rochester, 93 F.3d 38, 44 (2d Cir. 1996) suspensions due to behavioral problems that (citing Sorlucco v. New York City Police plaintiff does not deny, such as using Dep’t, 971 F.2d 864, 870 (2d Cir. 1992)). A profanities with teachers. Plaintiff does not policy, custom, or practice of the municipal allege that any further process was owed and/or entity may be inferred where “‘the denied. municipality so failed to train its employees as to display a deliberate indifference to the Second, even assuming arguendo that constitutional rights of those within its plaintiff were able to support his equal jurisdiction.’” Patterson v. County of protection claim or due process claims, Oneida, 375 F.3d 206, 226 (2d Cir. 2004) plaintiff’s claim under Section 1983 must still (quoting Kern, 93 F.3d at 44). “A be dismissed for failure to allege a practice or municipality’s failure to train or supervise its policy of the School District and/or School officers can rise to the level of an actionable Board as an underlying cause of the alleged policy or custom where it amounts to violation. ‘deliberate indifference’ to the constitutional rights of its citizens.” Hall v. Marshall, 479 Under Monell, a municipal entity may only F. Supp. 2d 304, 315-16 (E.D.N.Y. 2007) be held liable where the entity itself commits a (citing City of Canton v. Harris, 489 U.S. wrong; “a municipality cannot be held liable 378, 388 (1989) and Thomas v. Roach, 165 under § 1983 on a respondeat superior theory.” F.3d 137, 145 (2d Cir. 1999) (“A Monell, 436 U.S. at 691. It is well established municipality may be liable under § 1983 . . . that “[a] plaintiff stating a . . . claim via § 1983 where the City’s failure to supervise or for violation of the Equal Protection Clause by discipline its officers amounts to a policy of a school district or other municipal entity must deliberate indifference.”)). “For purposes of show that the [violation] was the result of § 1983, school districts are considered to be municipal custom, policy, or practice.” local governments and are subject to similar Fitzgerald v. Barnstable Sch. Comm., 129 S. liability as local governments under Monell.” Ct. 788, 797 (2009) (citing Monell, 436 U.S. at Booker v. Bd. of Educ., 238 F. Supp. 2d 469, 694); see also Monell, 426 U.S. at 692-96 475 (N.D.N.Y. 2002) (citing Monell, 436 (finding the same for a school board); Beattie U.S. at 696-97); see also Irene P. v. Phila. v. Madison County Sch. Dist., 254 F.3d 595, Acad. Charter Sch., No. 02-1716, 2003 U.S. 600 (5th Cir. 2001) (“Under § 1983, [plaintiff] Dist. LEXIS 3020, at *30-*32 (E.D. Pa. Jan. may sue a local governing body, such as the 29, 2003) (treating charter school as school district, or the school board as municipal entity for Monell purposes). policymaker for the district, for monetary, Plaintiff does not allege, or have any declaratory, or injunctive relief if the evidence of, a custom or policy of the School challenged action implements or executes a District or School Board responsible for the policy officially adopted by that body’s alleged violations of plaintiff’s rights. officers. Neither the school board nor the school district can be liable for the actions . . . As to the allegations that plaintiff’s under a respondeat superior theory.”). “The transcript included inaccurate grades from the policy or custom need not be memorialized in Sappo School, plaintiff has put forth no a specific rule or regulation.” Kern v. City of evidence to counter defendants’ evidence that

the grades on his transcript accurately reflect his federally-protected rights to support his the grades sent to defendants by the Sappo claim under Section 1983. Further, even if School. (See Defendants’ Affirmation in plaintiff had sufficiently alleged a violation Support, Ex. GG.) Therefore, there is no of his federally-protected rights, he has not evidence to support a finding that any alleged identified a School District or School Board error was made by defendants. Rather, any custom or policy responsible for the alleged error would have been the fault of the private violations, and, therefore, neither the School Sappo School, which is not a party to this District nor the School Board can be held action. To the extent that plaintiff alleges that liable.4 defendants were somehow responsible for this error, plaintiff has put forward no evidence to 4 support such a claim, nor has plaintiff As for the claims against Mostow, in his identified any custom or policy of defendants official capacity, “[t]he Supreme Court has responsible for such an error. explained that in an official-capacity suit, however, the real party in interest is not the named official but rather the governmental entity As for the grades from Patchogue-Medford, itself. Monell, 436 U.S. at 691. As such, in an plaintiff has not alleged that it was a School official-capacity suit we require ‘the entity’s District or School Board custom or policy to ‘policy or custom’ [to have] played a part in the lower grades for tests missed due to absence. violation of federal law.’ Kentucky v. Graham, In fact, plaintiff alleges that some teachers did 473 U.S. 159, 166, 87 L. Ed. 2d 114, 105 S. Ct. not do this. 3099 (quoting Monell, 436 U.S. at 694).” Douglas v. Beaver County Sch. Dist. Bd., No. 03- Next, plaintiff’s claims about the SAT 4004, 82 Fed. Appx. 200, 203, 2003 U.S. App. Examination do not assert that the alleged LEXIS 24537, at *3 (10th Cir. Dec. 5, 2003). violation was a result of a School District or Therefore, as no policy or custom has been School Board custom or policy either. The alleged, as discussed supra, the claim against Mostow in his official capacity cannot stand. College Board – not defendants – is responsible for administering the SAT Moreover, this Court finds that the Section Examination and for providing 1983 claim against Mostow in his individual accommodations to students during the capacity also fails to survive summary judgment examination. Plaintiff has offered no evidence because, as is the case with the District and to counter the evidence put forward by School Board, there is no evidence of a violation defendants indicating that defendants in no way of a federally-protected right that could form the barred plaintiff from taking the SAT basis for a Section 1983 violation. In any event, Examination or limited plaintiff’s testing even if plaintiff had sufficiently alleged or accommodations in any way. (See Defendants’ provided evidence of a violation of a federally- protected right, there is no allegation (or Affirmation in Support, Ex. Z, Ex. AA, Ex. Y, evidence) of any personal involvement by Ex. CC and Ex. GG.) Further, plaintiff has not Mostow in the District’s decisions being identified any municipal custom or policy challenged to support individual liability. See, under which any such action was conducted. e.g., Loret v. Selsky, No. 07-CV-6392L, 2009 WL 204814, at *4 (W.D.N.Y. Jan. 27, 2009) In sum, plaintiff has failed to sufficiently (granting summary judgment on Section 1983 allege, or provide evidence of, a violation of claim against superintendent of correctional facility in his individual capacity because of lack

in federal court under IDEA, plaintiffs must 3. The IDEA and the ADA Claims exhaust all available administrative procedures. 20 U.S.C. § 1415(l) (2006). In The purpose of IDEA is to provide children the State of New York, these include an with disabilities with access to a “free impartial hearing and an appeal of the appropriate public education.” 20 U.S.C. §§ hearing officer’s decision to a state review 1400(c), (d). In passing IDEA, “Congress officer. 20 U.S.C. §§ 1415(f), (g); 8 sought primarily to identify and evaluate N.Y.C.R.R. § 200.5. Parents may request a handicapped children, and to provide them hearing to present complaints relating to the with access to a free public education.” Bd. of “identification, evaluation, or educational Educ. of the Hendrick Hudson Cent. Sch. Dist., placement of the child, or the provision of a Westchester County v. Rowley, 458 U.S. 176, free appropriate public education to such 200 (1982). The primary mechanism of the child.” 20 U.S.C. § 1415(b)(6). “Failure to statute is the design and implementation of an exhaust administrative remedies under the Individualized Education Plan (“IEP”) to IDEA deprives a court of subject matter address each student’s particular disabilities. jurisdiction.” Polera v. Bd. of Educ. of the 20 U.S.C. § 1414. The IEP sets forth (1) a Newburgh Enlarged City Sch. Dist., 288 F.3d statement of the child’s present levels of 478, 483 (2d Cir. 2002) (citing Hope v. academic achievement and functional Cortines, 69 F.3d 687, 688 (2d Cir. 1995)). performance; (2) a statement of measurable annual goals; (3) a description of how the Furthermore, the IDEA statute requires child’s progress toward meeting the annual plaintiffs with any claims related to the goals will be measured; (4) a statement of the education of disabled children, whether educational services to be provided; (5) an brought under IDEA or another statute (i.e., explanation of the extent, if any, to which the the ADA), to exhaust the administrative child will not participate with nondisabled remedies available under IDEA prior to children in the regular class; (6) a statement of initiating a federal lawsuit. 20 U.S.C. § any individual accommodations necessary to 1415(l) (2006) (“Nothing in this title shall be measure the child’s performance on construed to restrict or limit the rights, standardized assessments (or an explanation of procedures, and remedies available under the why the child cannot participate in the Constitution, the Americans with Disabilities assessments); (7) the projected date for the Act of 1990, title V of the Rehabilitation Act implementation of services, as well as the of 1973, or other Federal laws protecting the anticipated frequency, location, and duration of rights of children with disabilities, except the services; and (8) a plan for achieving post- that before the filing of a civil action under secondary school goals and provisions for such laws seeking relief that is also available transitional services. 20 U.S.C. § under this part, the procedures under 1414(d)(1)(A). subsections (f) and (g) shall be exhausted to the same extent as would be required had the It is well-settled that, prior to bringing a suit action been brought under this part.”) (citations omitted); Polera, 288 F.3d at 481 (“[P]otential plaintiffs with grievances of any evidence of personal involvement in the related to the education of disabled children relevant events).

generally must exhaust their administrative plaintiff’s transcript. Plaintiff’s counsel remedies before filing suit in federal court, states that he would have deposed these two even if their claims are formulated under a individuals, but his “motion to extend the statute other than the IDEA (such as the ADA discovery period in order to obtain these or the Rehabilitation Act).”); Hope v. Cortines, depositions was denied in an order dated 872 F. Supp. 14, 17 (E.D.N.Y), aff’d, 69 F.3d March 28, 2008.” (Id. ¶ 7.) The referenced 687 (2d Cir. 1995) (holding that ADA, Section letter states, in relevant part, the following: 1983 and Section 2000d claims are subject to IDEA’s exhaustion requirement). I have reviewed your son Christopher’s transcript and Plaintiff does not allege that he has folder. I have found three (3) exhausted his claims or that such claims should instances where there appears be exempt from the exhaustion requirements. to be a discrepancy in the In any event, no evidence has been presented grades sent to us by the Sappo indicating that there is factual support for either School and those listed on the of those claims. Accordingly, the IDEA and Patchogue-Medford School the ADA claims cannot survive summary transcript. There is also a judgment. letter dated May 8, 2005, in your son’s file from Ms. B. Plaintiff’s Discovery Arguments Joanne Sappo. This letter, which I am sure you have In his opposition to defendants’ motion for read, indicates that there were summary judgment, plaintiff’s counsel does not two (2) changes in the grades. contest that plaintiff lacks sufficient evidence It goes on to say that to support his claims on the merits. Instead, Christopher was given a plaintiff’s counsel argues that “(1) summary deadline date to complete judgment should not be granted where there assignments in English and [sic] the moving party is in sole possession of Astronomy. The letter states, facts which are in dispute, and (2) that “when the work was summary judgment should not be granted completed it was applied to where the opposing party has been denied his grades.” However, I relevant discovery.” (Plaintiff’s Affirmation in cannot determine from this Opposition ¶ 1.) Specifically, plaintiff’s letter whether his grades were counsel alleges that he “did not have the increased or decreased and I opportunity to depose defendant Michael am going to attempt to Mostow, superintendent of the Patchogue- contact Ms. Sappo to Medford School district [or Joseph LoSchiavo, determine what, in fact, a school board member] about the facts happened. In addition, I have surrounding a letter he wrote to Plaintiff’s a copy of your son’s high mother on July 12, 2006 which is at the heart school diploma dated August of this case.” (Id. ¶ 3.) Plaintiff’s counsel 21, 2004. This graduation argues that this letter supports plaintiff’s date is during the 2004-2005 argument that there were discrepancies in school year. Your son’s

transcript indicates that he in the case must consider timely objections graduated in June 2005. [to non-dispositive pretrial matters determined by a Magistrate Judge] and (Id., Ex. 1.) modify or set aside any part of the order that is clearly erroneous or is contrary to law.” To the extent that plaintiff is seeking review “Matters concerning discovery generally are of Magistrate Judge Lindsay’s refusal to re- considered ‘nondispositive’ of the litigation.” open discovery, the Court finds that contention Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 to be without merit. As a threshold matter, F.2d 522, 525 (2d Cir. 1990); see also plaintiff never appealed Judge Lindsay’s order Federal Ins. Co. v. Kingsbury Properties, denying plaintiff’s request to reopen or extend Ltd., Nos. 90 Civ. 6211 (JMC), 90 Civ. 6357 discovery to allow for these additional (JMC), 1992 WL 380980, at *2 (S.D.N.Y. depositions. The District Court need not Dec. 7, 1992). “In deciding discovery reconsider a motion that has been ruled upon disputes, a magistrate judge is entitled to by a Magistrate Judge, but not appealed. See, broad discretion, which will be overruled e.g., Maslanka v. Johnson & Johnson, Inc., No. only if abused. Magistrate judges receive 08-2329, 2008 U.S. App. LEXIS 26269, at *14 substantial deference, particularly where they (3d Cir. Dec. 23, 2008) (affirming a district have been deeply involved in discovery court’s grant of summary judgment where the matters in the case for years.” Grand River non-moving party “did not seek timely District Enters. Six Nations, Ltd. v. King, No. 02 Civ. Court review of the Magistrate Judge’s 5068 (JFK), 2009 U.S. Dist. LEXIS 11504, at decisions to deny the motion to compel or to *25 (S.D.N.Y. Jan. 30, 2009) (internal reopen discovery. Instead, in his sur-reply to quotations and citations omitted). the defendants’ summary judgment motion, . . . [the party] renewed his request to reopen “Under Rule 72(a), ‘[a] finding is ‘clearly discovery, long after discovery had closed and erroneous’ when, although there is evidence well into the summary judgment to support it, the reviewing court on the proceedings.”); see also Fed. R. Civ. P. 72(a) entire evidence is left with the definite and (“A party may serve and file objections to the firm conviction that a mistake has been order within 10 days after being served with a committed.’” Burgie v. Euro Brokers, Inc., copy. A party may not assign as error a defect No. 05 Civ. 0968 (CPS) (KAM), 2008 U.S. in the order not timely objected to. The district Dist. LEXIS 71386, *18 (E.D.N.Y. Sept. 5, judge in the case must consider timely 2008) (quoting Concrete Pipe and Products objections and modify or set aside any part of of Cal., Inc. v. Constr. Laborers Pension the order that is clearly erroneous or is contrary Trust for South. Cal., 508 U.S. 602, 622 to law.”) (1993)). “An order is contrary to law when it fails to apply or misapplies relevant statutes, In any event, even assuming arguendo there case law or rules of procedure.” Id. was a timely appeal of Judge Lindsay’s ruling on the motion to reopen discovery, this Court After a careful review of the record, there find that there is no basis for reversing such is no indication that Magistrate Judge decision. Under Rule 72(a) of the Federal Lindsay’s ruling was based on clearly Rules of Civil Procedure, “[t]he district judge erroneous findings of fact or was contrary to

law. Fed. R. Civ. P. 26(b)(2)(C)(ii) requires not available when summary judgment that a “court must limit the frequency or extent motions are made after the close of of discovery otherwise allowed by these rules discovery, as in the instant case.” Espada v. if it determines that . . . the party seeking Schneider, 522 F. Supp. 2d 544, 549 discovery has had ample opportunity to obtain (S.D.N.Y. 2007). Third, even if such relief the information by discovery in the action.” Id. were timely sought, such application would Plaintiff had over a year to conduct discovery, still be denied because plaintiff clearly had including multiple extensions of the discovery ample opportunity to pursue the discovery it period. Plaintiff’s counsel concedes in his now contends was necessary to gather opposition that he always intended to depose sufficient evidence to survive summary Mostow and LoSchiavo, but that he simply judgment. See Burlington Coat Factory “did not depose either Mostow or LoSchiavo Warehouse Corp. v. Esprit De Corp., 769 by the time the discovery period terminated in F.2d 919, 927-28 (2d Cir. 1985) (denying this case.” He does not provide any 56(f) motion where party had “ample time to explanation for this failure. Nor did he offer pursue the discovery that it now claims is any such explanation to Magistrate Judge essential” and holding that “[a] party who Lindsay. On these facts, this Court cannot both fails to use the time available and takes conclude that Magistrate Judge Lindsay’s order no steps to seek more time until after a was clearly erroneous or contrary to law. summary judgment motion has been filed need not be allowed more time for discovery Finally, to the extent that plaintiff’s absent a strong showing of need”). As opposition to the summary judgment motion discussed above, there is no question that also could be construed as an application under plaintiff had sufficient time for discovery, Rule 56(f) of the Federal Rules of Civil took insufficient steps to seek more time, and Procedure, that application is without merit for has failed to show a need for further several reasons. First, plaintiff has failed to discovery. See, e.g., Vargas v. Midtown Air comply with the requirements set forth in Rule Condition and Ventilation, Ltd., No. 07 Civ. 56(f) of the Federal Rules of Civil Procedure. 3343 (RMB), 2008 WL 5062611, at *8 The Second Circuit has held that “Rule 56(f) (S.D.N.Y. Nov. 24, 2008); Espada v. requires the opponent of a motion for summary Schneider, 522 F. Supp. 2d at 550. judgment who seeks discovery to file an affidavit explaining: (1) the information sought In sum, plaintiff has not pointed to and how it is to be obtained; (2) how a genuine sufficient evidence for a reasonable jury to issue of material fact will be raised by that find in its favor on any of the federal claims.

made to obtain the information; and (4) why explain such failure, plaintiff offers no those efforts were unsuccessful.” Sage Realty explanation for his failure to obtain this Corp. v. Ins. Co. of N. Am., 34 F.3d 124, 128 information before the close of discovery or (2d Cir. 1994). Where these requirements are his failure to seek review of any discovery not met, a request pursuant to Rule 56(f) may orders issued by the Magistrate Judge. be denied. Id. Plaintiff has filed no such Moreover, the contention that the additional affidavit here and denial, therefore, is discovery would have produced evidence to appropriate. Second, relief under Rule 56(f) “is overcome the summary judgment motion is

completely speculative and easily refuted by jurisdiction.”); Karmel v. Liz Claiborne, Inc., the other fundamental defects in the federal No. 99 Civ. 3608 (WK), 2002 U.S. Dist. claims identified in this Memorandum and LEXIS 12842, 2002 WL 1561126, at *4 Order. Thus, any purported application under (S.D.N.Y. July 12, 2002) (“Where a court is Rule 56(f) is entirely without merit. reluctant to exercise supplemental Accordingly, summary judgment on all federal jurisdiction because of one of the reasons put claims is warranted. forth by § 1367(c), or when the interests of judicial economy, convenience, comity and C. State Law Claims fairness to litigants are not violated by refusing to entertain matters of state law, it Having determined that none of plaintiff’s should decline supplemental jurisdiction and federal claims survive summary judgment, the allow the plaintiff to decide whether or not to Court concludes that retaining jurisdiction over pursue the matter in state court.”). the state law claims is unwarranted. 28 U.S.C. § 1367(c)(3); United Mine Workers of Am. v. Accordingly, pursuant to 42 U.S.C. § Gibbs, 383 U.S. 715, 726 (1966). “In the 1367(c)(3), the Court declines to retain interest of comity, the Second Circuit instructs jurisdiction over the remaining state law that ‘absent exceptional circumstances,’ where claims given the absence of any federal federal claims can be disposed of pursuant to claims that survive dismissal, and dismisses Rule 12(b)(6) or summary judgment grounds, such state claims without prejudice. courts should ‘abstain from exercising pendent jurisdiction.’” Birch v. Pioneer Credit IV. CONCLUSION Recovery, Inc., No. 06-CV-6497T, 2007 U.S. Dist. LEXIS 41834, 2007 WL 1703914, at *15 For the foregoing reasons, defendants’ (W.D.N.Y. June 8, 2007) (quoting Walker v. motion for summary judgment is granted Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir. granted on all federal claims. The Court 1986)). declines to retain jurisdiction over plaintiff’s remaining state law claims and dismisses Therefore, in the instant case, the Court, in such claims without prejudice. The Clerk of its discretion, “‘decline[s] to exercise the Court shall enter judgment accordingly supplemental jurisdiction’” over plaintiff’s and close this case. state law claims because “it ‘has dismissed all claims over which it has original jurisdiction.’” Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting 28 U.S.C. § SO ORDERED. 1367(c)(3)); see also Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008) (“We have already found that the ______________________ district court lacks subject matter jurisdiction JOSEPH F. BIANCO over appellants’ federal claims. It would thus United States District Judge be clearly inappropriate for the district court to retain jurisdiction over the state law claims Dated: March 20, 2009 when there is no basis for supplemental Central Islip, New York

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The attorney for plaintiff is David Gordon, Esq., 300 Rabro Drive, Suite 138, Hauppauge, New York 11788. The attorneys for defendants are Rondiene Erin Novitz, Esq., Gary Edward Dvoskin, Esq. and Keith V. Tola, Esq., of Cruser Mitchell & Novitz, LLP, 175 Pinelawn Road, Suite 301, Melville, New York 11747.

Rafano v. Patchogue-Medford School District et al.