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

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

No 08-CV-847 (JFB) (AKT)

ZANADA GARDNER, AN INFANT UNDER THE AGE OF FOURTEEN (14) YEARS, BY HER MOTHER AND NATURAL GUARDIAN SABRINA GARDNER AND SABRINA GARDNER, INDIVIDUALLY,

Plaintiffs,

VERSUS

UNIONDALE PUBLIC SCHOOL DISTRICT, ET AL.,

Defendants.

MEMORANDUM AND ORDER October 21, 2008

JOSEPH F. BIANCO, District Judge: February 5, 2007 when Zanada, who suffers from Type I Diabetes, was allegedly denied Plaintiff Sabrina Gardner (“Gardner”) immediate access to a bathroom by a brings this action against the Uniondale Public substitute teacher, in contravention of her School District, Turtle Hook Middle School Section 504 Plan. According to plaintiffs, (hereinafter, the “school” or the “District”), after being told by the substitute teacher that and two of the school’s employees, “Jane” she could not use the bathroom at that time, Titus (“Titus”) and “Jane” Boreum Zanada went to the bathroom without the (“Boreum”) (collectively, “defendants”), on substitute teacher’s permission and was then behalf of her infant daughter, Zanada Gardner not allowed by the teacher to return to the (“Zanada”), and herself. The complaint in classroom. Plaintiff also alleges that Zanada this action alleges violations of the was yelled at by a teacher on February 16, Individuals with Disabilities Education Act 2007 and that, following the February 5th (“IDEA”) and Section 504 of the incident, she was frequently sent to the Rehabilitation Act of 1973 (“Section 504” or nurse’s office because of her diabetic the “Rehabilitation Act”), as well as asserts condition, thereby missing time in the state law claims of negligence and loss of classroom. Defendants assert that the services, arising out of Zanada’s education in substitute teacher simply was unaware of the sixth grade as a disabled child. Zanada’s condition on February 5th or her special bathroom privileges and that, The lawsuit focuses on an incident on following this incident, the District was

willing to meet with plaintiffs to rectify this Second Circuit has made clear can potentially problem (and plaintiffs’ other concerns) be addressed and rectified by a school through through the administrative process, but the administrative process. Second, although plaintiffs refused and, at the end of the school plaintiffs argue that exhaustion is futile year, moved out of the District. because they have left the school district, it is axiomatic that plaintiffs cannot thwart the Defendants now move to dismiss the administrative process and create futility by claims brought by Gardner and Zanada removing their child from the school and/or (collectively, “plaintiffs”), pursuant to Fed. R. leaving the school district. In short, plaintiffs Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). did not seek to correct the situation by For the reasons set forth below, defendants’ utilizing the administrative process; rather, motion to dismiss the federal claims without they want to recover monetary damages, prejudice under Rule 12(b)(1) for failure to primarily for the incident on February 5, exhaust is granted. In particular, it is 2007, as well as the alleged verbal scolding by undisputed that plaintiffs failed to exhaust a teacher on February 16, 2007, without their IDEA and Rehabilitation Act claims. giving the defendants an opportunity to Although plaintiffs attempt to argue that the analyze and rectify the problem through the exhaustion requirement should not apply to administrative process. Such is not the this lawsuit and/or it would have been futile purpose of the IDEA or related claims under because their claims are for past injuries for other statutes pertaining to a student’s which they seek only monetary damages (that educational services, and plaintiffs’ desire to are unavailable under the IDEA), that only recover monetary damages does not contention fails as a matter of law under the change the analysis and allow them to by-pass circumstances of this case. Plaintiffs have the IDEA exhaustion requirement. To hold asserted an IDEA claim in this case and they otherwise would allow plaintiffs to run to clearly are alleging, as further articulated in federal court to obtain money damages their opposition papers, that Zanada was without satisfying the exhaustion requirement denied a free and appropriate education any time, on any given day, a school allegedly because of this alleged conduct. Moreover, fails to meet the requirements of a student’s although plaintiffs argue in a conclusory individualized plan, even though the fashion that there was a “failure to administrative process could address such implement” Zanada’s 504 Plan by the school problems with the expertise of administrators which demonstrates futility, it is undisputed who are familiar with issues related to the that the Plan was, in fact, implemented and education of disabled students. Thus, the that the incident in early February 2007 was exhaustion requirement applies to plaintiffs’ the first time that the school allegedly failed to IDEA claim and related claim under the comply with the provisions of the Plan. There Rehabilitation Act, and no grounds for futility is no question that these types of issues – have been demonstrated. Accordingly, the involving a substitute teacher’s failure on one federal claims must be dismissed without day to allow Zanada special access to the prejudice for failure to exhaust. Of course, bathroom pursuant to her 504 Plan and the plaintiffs may attempt to pursue monetary other issues raised by plaintiffs regarding damages (without satisfying the exhaustion Zanada’s educational environment – are requirements) for these two alleged incidents precisely the types of problems that the under causes of action that potentially exist

under state law, such as negligence, although school’s bathroom during school hours in this Court expresses no view as to the contravention of her 504 Plan. (Id.) At that existence and/or merits of such claims under time, Zanada was “sent into the school state law in this context. However, given the hallway unsupervised by a member of the dismissal of the federal claims without Defendants’ teaching staff.” (Id.) The denial prejudice for failure to exhaust, the Court of access to the bathroom allegedly caused declines to exercise supplemental jurisdiction Zanada to sustain “severe and permanent over the state law claims contained in the personal injuries.” (Id.) complaint. Plaintiffs allegedly complained to I. BACKGROUND defendants about this incident. (Id. ¶ 14.) The complaint allegedly resulted in “a pattern A. The Complaint of assault, harassment, discrimination and negligent retaliatory behavior” towards The following facts are taken from the Zanada by “the Defendants, its employees, complaint and are not findings of fact by the servants or agents, including school faculty Court. and administrators.” (Id.)

According to the complaint, Zanada, an An instance of this behavior allegedly infant under the age of fourteen, was enrolled occurred on February 16, 2007, when a as a student at Turtle Hook Middle School in member of Turtle Hook Middle School’s Uniondale, New York for the school year teaching staff allegedly “verbally 2006-2007. (Compl. ¶ 8.) During that period, assaulted/berated” Zanada “without Zanada suffered from Type I Diabetes and justification, causing her to sustain severe and was, therefore, a disabled individual within permanent personal injuries.” (Id. ¶ 15.) the meaning of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, As a result of the above-described and the Individuals with Disabilities behavior, plaintiffs allege that Zanada Education Act (“IDEA”), Public Law 94-142, sustained a serious personal injury, requiring 20 U.S.C. §§ 1400-1490. (Id. ¶ 9.) medical attention and incapacitating her. (Id. ¶ 19.) Plaintiffs allege that, on or about November 21, 2006, representatives of the B. Additional Facts Uniondale Public School District and Turtle Hook Middle School, in conjunction with In their opposition papers, plaintiffs Gardner, created an Individualized 504 Plan provided some additional details regarding the (the “504 Plan” or the “Plan”) for Zanada for alleged incidents that are referenced in the the 2006-2007 school year. (Id. ¶ 10.) The complaint. With respect to the February 5, Plan allowed Zanada, among other things, 2007 incident with the substitute teacher, access to the bathroom upon request. (Id. ¶ plaintiffs recount the following: 13.) On February 5, 2007, the According to the complaint, on February 5, Plaintiff [i.e., Zanada] entered 2007, Zanada was denied access to the the reading class being taught

b[y] a substitute teacher, Ms. security guard escorted Titus. The Plaintiff was Zanada to the nurse’s office. reprimanded for being late to class and the teacher took her (Plaintiffs’ Opposition Memorandum, at 1-2) name down. The Plaintiff then (citations to exhibits omitted).1 Other than the requested to use the bathroom. February 5, 2007 incident with the substitute Ms. Titus refused to allow the teacher, plaintiffs do not allege that Zanada Plaintiff to use the bathroom was even temporarily denied access to the use despite the clear language of the bathroom on any other occasions. found in her 504 Plan. The Plaintiff then proceeded to With respect to the incident on February approach the teacher’s desk to 16, 2007, plaintiffs provided the following ask whether she could use the additional details regarding their version of bathroom and once again she the events: was told no. The Plaintiff then explained to Ms. Titus that she Another example of such had diabetes but the teacher conduct occurred on February refused to allow her to use the 16, 2007, while the infant bathroom. The Plaintiff, Plaintiff attended Ms. having been refused her Boreum’s reading class. The bathroom privileges, then infant Plaintiff was unable to indicated to Ms. Titus that she log onto the website because was going to leave to use the she had forgotten her bathroom. Ms. Titus then password. The teacher stated that if the Plaintiff proceeded to scold the infant walked out, she was not to for not listening to instructions return to the classroom. The and spit on the infant Plaintiff Plaintiff then went to the in the process. The teacher bathroom and returned to the then advised the infant classroom and took her seat. Plaintiff to go to the nurse’s A discussion ensued wherein office. Zanada stayed in the Ms. Titus stated that she did nurse’s office for the not have to agree to the remainder of the period and Plaintiff’s request and the Plaintiff mentioned that she did. The Plaintiff was then 1 According to defendants, “the [s]ubstitute told to exit the classroom and initially asked Zanada to wait five minutes before remain in the hallway by Ms. using the bathroom because she was late and Titus. While waiting in the because she was not yet aware there was a student hallway, a security guard in the class with a disability based on what she had approached Zanada and read in the substitute folder. At all other times inquired as to why she was in during which she was a student at Turtle Hook the hallway. Upon hearing the Middle School, Zanada was allowed to use the bathroom upon request.” (Defendants’ Reply facts of the incident, the Memorandum, at 2) (citations to exhibits omitted).

started feeling the effects of On May 2, 2008, defendants moved to said confrontation in the form dismiss the complaint in its entirety, pursuant of a headache, stomach ache to Federal Rules of Civil Procedure 12(b)(1) and nausea two class periods and (6). Plaintiffs responded on June 16, later. Zanada was seen by the 2008. Defendants replied on June 30, 2008. school nurse and upon arriving Oral argument was heard on October 3, 2008. at home, Zanada felt dizzy and vomited, and her mother II. STANDARD OF REVIEW called an ambulance to transport her to Nassau The defendants have moved to dismiss University Hospital. The both under Rule 12(b)(1) and Rule 12(b)(6) of Plaintiff, Sabrina Gardner, was the Federal Rules of Civil Procedure. advised by the doctors who treated Zanada that she was In reviewing a motion to dismiss under experiencing hyperglycemia Rule 12(b)(1), the court “must accept as true caused by duress. all material factual allegations in the complaint, but we are not to draw inferences (Id. at 4.) (citations to exhibits omitted). from the complaint favorable to plaintiffs.” J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d Plaintiffs assert that the incident on 107, 110 (2d Cir. 2004) (citation omitted). February 16, 2007 was just one illustration of Moreover, the court “may consider affidavits a practice by teachers beginning in February and other materials beyond the pleadings to 2007 of Zanada “constantly being sent to the resolve the jurisdictional issue, but we may nurse’s office and missing her education.” not rely on conclusory or hearsay statements (Id. at 13.) According to plaintiffs, this contained in the affidavits.” Id. (citations conduct by teachers in addressing Zanada’s omitted). “The plaintiff bears the burden of diabetic condition in February 2007, which proving subject matter jurisdiction by a allegedly caused plaintiff to miss instruction preponderance of the evidence.” Aurecchione and adversely affected her grades, “resulted in v. Schoolman Transp. Sys., Inc., 426 F.3d 635, the denial of a free and appropriate education 638 (2d Cir. 2005). to the infant Plaintiff.” (Id. at 14.) At the conclusion of the 2007 school year, plaintiffs In reviewing a motion to dismiss under left the school district and Zanada is now Rule 12(b)(6), a court must accept the factual enrolled in a different district. (Id. at 10.) allegations set forth in the complaint as true, and draw all reasonable inferences in favor of C. Procedural History the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); Plaintiffs filed a complaint in this action on Nechis v. Oxford Health Plans, Inc., 421 F.3d February 1, 2008 in the Supreme Court of the 96, 100 (2d Cir. 2005). The plaintiff must State of New York, County of Nassau. On satisfy “a flexible ‘plausibility standard,’ February 29, 2008, defendants removed this which obliges a pleader to amplify a claim case to the United States District Court for the with some factual allegations in those contexts Eastern District of New York, pursuant to 28 where such amplification is needed to render U.S.C. §§ 1331 and 1441(b). the claim plausible.” Iqbal v. Hasty, 490 F.3d

143, 157-58 (2d Cir. 2007). “[O]nce a claim also Rhulen Agency, Inc. v. Ala. Ins. Guar. has been stated adequately, it may be Ass’n, 896 F.2d 674, 678 (2d Cir. 1990) supported by showing any set of facts (noting that a motion to dismiss for failure to consistent with the allegations in the state a claim may be decided only after complaint.” Bell Atlantic Corp. v. Twombly, finding subject matter jurisdiction). 127 S. Ct. 1955, 1969 (2007). The Court does not, therefore, require “heightened fact III. DISCUSSION pleading of specifics, but only enough facts to state a claim for relief that is plausible on its Defendants move to dismiss plaintiffs’ face.” Id. at 1974. Further, in reviewing a federal claims pursuant to Fed. R. Civ. P. motion to dismiss under Rule 12(b)(6), “the 12(b)(1). Specifically, defendants argue that district court is normally required to look only this Court lacks subject-matter jurisdiction to the allegations on the face of the over plaintiffs’ claim under the IDEA and the complaint.” Roth v. Jennings, 489 F.3d 499, Rehabilitation Act, both of which are subject 509 (2d Cir. 2007). The Court may only to the exhaustion requirement of IDEA under consider a document not appended to the the circumstances of this case where the complaint if the document is “incorporated in claims relate to Zanada’s education as a [the complaint] by reference” or is a document disabled child. The IDEA requires plaintiffs “upon which [the complaint] solely relies and who assert claims relating to the education of . . . is integral to the complaint.” Id. (quoting disabled children to exhaust all available Cortec Indus., Inc. v. Sum Holding L.P., 949 administrative remedies prior to bringing suit F.2d 42, 47 (2d Cir. 1991) (emphases in in federal court. 20 U.S.C. § 1415(l). In the original)). Courts also “‘routinely take absence of exhaustion, a federal court may not judicial notice of documents filed in other exercise subject-matter jurisdiction over the courts . . . not for the truth of the matters action. asserted in other litigation, but rather to establish the fact of such litigation and related As set forth below, the Court agrees and filings.’” Crews v. County of Nassau, No. 06- concludes that plaintiffs’ IDEA and Section CV-2610 (JFB), 2007 U.S. Dist. LEXIS 6572, 504 claims must be dismissed for failure to at *5 n.2 (E.D.N.Y. Jan. 30, 2007) (quoting exhaust. Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991)). A. Applicable Federal Law

“A court presented with a motion to 1. The IDEA Statute dismiss under both Fed. R. Civ. P. 12(b)(1) and 12(b)(6) must decide the ‘jurisdictional The purpose of the IDEA is to provide question first because a disposition of a Rule children with disabilities access to a “free 12(b)(6) motion is a decision on the merits, appropriate public education.” 20 U.S.C. §§ and therefore, an exercise of jurisdiction.’” 1400(c), (d). In passing IDEA, “Congress Coveal v. Consumer Home Mortgage, Inc., sought primarily to identify and evaluate No. 04-CV-4755 (ILG), 2005 U.S. Dist. handicapped children, and to provide them LEXIS 25346, at *7 (E.D.N.Y. Oct. 21, 2005) with access to a free public education.” Bd. of (quoting Magee v. Nassau County Med. Ctr., Educ. of the Hendrick Hudson Cent. Sch. 27 F. Supp. 2d 154, 158 (E.D.N.Y. 1998)); see Dist., Westchester Cty. v. Rowley, 458 U.S.

176, 200 (1982). “Under the educational 2. The IDEA’s Exhaustion Requirement scheme of the IDEA (previously known as the Education of the Handicapped Act), parents of It is well-settled that, prior to bringing a students with disabling conditions are suit in federal court under the IDEA, plaintiffs guaranteed both an opportunity for must exhaust all available administrative meaningful input into all decisions affecting procedures. 20 U.S.C. § 1415(l). In the State their child’s education and the right to seek of New York, these include an impartial review of any decisions they think hearing and an appeal of the hearing officer’s inappropriate. Parents are specifically entitled decision to a state review officer. 20 U.S.C. to request a due process hearing in order to §§ 1415(f), (g); 8 N.Y.C.R.R. § 200.5. present complaints as to any matter relating to Parents may request a hearing to present the identification, evaluation, or educational complaints relating to the “identification, placement of the child, or the provision of a evaluation, or educational placement of the free appropriate public education.” Cave v. E. child, or the provision of a free appropriate Meadow Union Free Sch. Dist., 514 F.3d 240, public education to the child.” 20 U.S.C. § 245 (2d Cir. 2008) (citation and quotations 1415(b)(6). “[F]ailure to exhaust omitted). The primary mechanism of the administrative remedies under the IDEA statute is the design and implementation of an deprives a court of subject matter Individualized Education Plan (“IEP”) to jurisdiction.” Polera v. Bd. of Educ. of the address each student’s particular disabilities. Newburgh Enlarged City Sch. Dist., 288 F.3d 20 U.S.C. § 1414. The IEP sets forth (1) a 478, 483 (2d Cir. 2002) (citing Hope v. statement of the child’s present levels of Cortines, 69 F.3d 687, 688 (2d Cir. 1995)). academic achievement and functional performance; (2) a statement of measurable Furthermore, the IDEA statute requires annual goals; (3) a description of how the plaintiffs with any claims related to the child’s progress toward meeting the annual education of disabled children, whether goals will be measured; (4) a statement of the brought under IDEA or another statute (i.e., educational services to be provided; (5) an the Rehabilitation Act), to exhaust the explanation of the extent, if any, to which the administrative remedies available under IDEA child will not participate with nondisabled prior to initiating a federal lawsuit. 20 U.S.C. children in the regular class; (6) a statement of § 1415(l) (“Nothing in this title shall be any individual accommodations necessary to construed to restrict or limit the rights, measure the child’s performance on procedures, and remedies available under the standardized assessments (or an explanation Constitution, the Americans with Disabilities of why the child cannot participate in the Act of 1990, title V of the Rehabilitation Act assessments); (7) the projected date for the of 1973, or other Federal laws protecting the implementation of services, as well as the rights of children with disabilities, except that anticipated frequency, location, and duration before the filing of a civil action under such of the services; and (8) a plan for achieving laws seeking relief that is also available under post-secondary school goals and provisions this part, the procedures under subsections (f) for transitional services. 20 U.S.C. § and (g) shall be exhausted to the same extent 1414(d)(1)(A). as would be required had the action been brought under this part.”) (citations omitted); Polera, 288 F.3d at 481 (“[P]otential plaintiffs

with grievances related to the education of avoid administrative procedures merely by disabled children generally must exhaust their asking for relief that administrative authorities administrative remedies before filing suit in could not grant.”); see also B.D. v. DeBuono, federal court, even if their claims are 130 F. Supp. 2d 401, 428 (S.D.N.Y. 2000) formulated under a statute other than the (“[P]laintiffs should not be allowed to avoid IDEA (such as the ADA or the Rehabilitation the administrative requirements of IDEA by Act).”); accord J.S. v. Attica Cent. Schs., 386 claiming only monetary damages or other F.3d 107, 112 (2d Cir. 2004); see also Cave v. relief not available under IDEA.”). E. Meadow Union Free Sch. Dist., 514 F.3d 240, 248 (2d Cir. 2008) (“The language of In determining whether plaintiffs should be Section 1415(l) of the IDEA is sufficiently subject to the exhaustion requirement, the broad and encompasses complaints asserted Second Circuit instructs courts “to consider under any federal statute, as long as they seek whether administrative review would further relief available under the IDEA.”); Marc V. v. the goals of developing facts, making use of North East Independent School District, 455 available expertise, and promoting F. Supp. 2d 577, 592 (W.D. Tex. 2006) (“The efficiency.” J.S., 386 F.3d at 113 (citing IDEA bars Plaintiffs from circumventing the Hoeft v. Tucson Unified Sch. Dist., 967 F.2d IDEA’s administrative exhaustion 1298, 1303 (9th Cir. 1992)). requirement by taking claims that could have been brought under the IDEA and B. Applicability of Exhaustion repackaging them as claims under some other Requirement to the Instant Case statute.”); Hope v. Cortines, 872 F. Supp. 14, 17 (E.D.N.Y), aff’d, 69 F.3d 687 (2d Cir. To the extent that plaintiffs argue that the 1995) (holding that ADA, Section 1983 and exhaustion requirement is inapplicable Section 2000d claims are subject to IDEA’s because they are only seeking monetary exhaustion requirement). damages, the Court disagrees.

Similarly, IDEA’s exhaustion requirement First, as discussed in detail above, the fact can apply despite plaintiffs’ claim for that plaintiff is only seeking monetary damages, which are not available under the damages, which are not available under the statute. Polera, 288 F.3d at 487 (“Courts in IDEA, does not necessarily mean that they the Second Circuit have required exhaustion avoid application of the IDEA’s exhaustion of administrative remedies even where requirement. As the Second Circuit recently damages were held to be unavailable through emphasized: the administrative process. In such cases, plaintiffs were not permitted to evade the [I]n Polera, we held that a IDEA’s exhaustion requirement merely by disabled student who claims tacking on a request for money damages.”); deficiencies in her educational Buffolino v. Bd. of Educ. of Sachem Cent. Sch. program may not bypass the Dist. at Holbrook, 729 F. Supp. 240, 247 I D E A ’ s a d mi n i s t r a t i v e (E.D.N.Y. 1990) (“[I]f the Court were to hold exhaustion rule merely by that plaintiffs in this case are excused from claiming monetary damages . exhausting their remedies because adequate . . We thus decline to excuse relief could not be obtained, plaintiffs could appellants from the exhaustion

requirement merely because in educational and social their suit they seek, inter alia, development. Zanada was pecuniary damages, a remedy reluctant to go to classes unavailable under the IDEA. where she would be afraid of the teachers, she was Cave, 514 F.3d at 247 (citation omitted). In embarassed and made to feel the instant case, the complaint clearly alleges like an outcast and the end a separate cause of action for violation of the result was Zanada’s social IDEA. Moreover, as set forth in plaintiffs’ regression. opposition papers, plaintiffs are unquestionably alleging that the school (Plaintiffs’ Memorandum in Opposition, at deprived Zanada of a free and appropriate 14) (citations to record omitted). Based upon education. For example, plaintiffs describe in these allegations, plaintiffs contend that “it is great detail how the defendants deprived clear that the Defendants’ conduct has Zanada of educational services in violation of resulted in the denial of a free and appropriate the Section 504 Plan: education to the infant Plaintiff.” Id.; see also id. at 12 (“Based on the continued harassment The teachers were clearly of the infant Plaintiff during the 2006-7 frustrated with Zanada’s school year she was denied a free and condition and with having a appropriate public education.”) diabetic child in their classroom. In fact, Mrs. Therefore, it is abundantly clear that, even Boerum repeatedly told though plaintiffs are seeking monetary Zanada that “I know your damages, they are alleging a deprivation of mother will blame the educational services that is within the diabetes.” A direct indication province of the IDEA. Moreover, their that the defendants were aware Section 504 claim arises from the same of Zanada’s disease and alleged incidents in the school that form the discriminating against her basis of the IDEA claim and, thus, is also because of her disability. subject to the exhaustion requirement. Academically she was caused Finally, the fact that plaintiffs are also to miss a lot of instruction alleging that the situation in the school had because of the events which certain consequences outside the school, in transpired during the 2006-07 terms of counseling and treatment (for which school year at Uniondale they also seek damages) does not relieve them Public Schools and her grades from the exhaustion requirement. suffered accordingly. She experienced a very stressful This is precisely the type of situation that and fractured educational the Second Circuit confronted in Polera and experience at the Turtle Hook the Court made clear that, where the issues Middle School and this raised in the litigation are those the IDEA is experience left both Plaintiff’s intended to remedy, the exhaustion [sic] frustrated with the requirement applies regardless of the remedy academic process and her sought by plaintiff or the additional causes of

actions asserted under other federal statutes: monetary damages, the court refused to stop its analysis at that point and, instead, still The IDEA is intended to applied the IDEA exhaustion requirements to remedy precisely the sort of the other federal claims: claim made by Polera: that a school district failed to Charlie asks us to stop here: he provide her with appropriate wants compensatory money educational services. The fact damages, the IDEA does not that Polera seeks damages, in provide this form of relief, and addition to relief that is that is that. Things are not so available under the IDEA, clear, however. The statute does not enable her to sidestep speaks of available relief, and the exhaustion requirements of what relief is “available” does the IDEA. Where, as here, a not necessarily depend on full remedy is available at the what the aggrieved party time of injury, a disabled wants. Certainly not in student claiming deficiencies litigation. . . . The nature of in his or her education may not the claim and governing law ignore the administrative determine the relief no matter process, then later sue for what the plaintiff demands. damages. Therefore, we hold that, absent an applicable 98 F.3d at 992. The Seventh Circuit then exception, Polera was required provided a hypothetical to illustrate the point: to exhaust her administrative remedies. Suppose a school fails to provide a reader for a blind Polera, 288 F.3d at 488; see also Cave, 514 pupil, who as a result falls F.3d at 246 (noting that, in Polera, “[w]e behind. The IDEA provides emphasized that the theory behind the relief: the school can assign a grievance may activate the IDEA process, reader to the pupil for the even if the plaintiff wants a form of relief that future and can provide tutors the IDEA does not supply”) (quotations and and other special instruction citation omitted). until the pupil catches up. If disgruntled parents spurn this In Charlie F. v. Board of Education of solution and demand Skokie School District, 98 F.3d 989 (7th Cir. compensation, the response 1996), which the Second Circuit cited with should be that they cannot approval in Polera, the Seventh Circuit ignore remedies available reached the same conclusion. In Charlie F., under the IDEA and insist on the plaintiff did not bring an IDEA claim, but those of their devising; under rather sought damages under the ADA, the the IDEA, educational Rehabilitation Act, Section 1983, and state professionals are supposed to tort law. Although the Seventh Circuit have at least the first crack at recognized that the IDEA did not authorize formulating a plan to

overcome the consequences of Dist., No. 02-61070, 2003 WL 21356070, at educational shortfalls. That *1 (5th Cir. May 30, 2003) (unpublished the educational problem has opinion) (affirming dismissal of IDEA claim consequences outside school for failure to exhaust where plaintiffs claimed (for example, the child’s self- that student “who is severely and profoundly esteem and ability to get along disabled, mentally and physically with his peers might suffer handicapped, fell out of a chair at a table in when he lags behind in class) the special education classroom to which she can’t be enough to avoid the was assigned by defendants”). statutory system. . . . By making an unreasonable or “[T]he primary reason for an exhaustion unattainable demand parents requirement is to utilize the expertise of cannot opt out of the IDEA. administrators” who are familiar with resolving issues relating to the education of 98 F.3d at 992; accord Babicz v. School Bd. of disabled students. SJB v. N.Y. City Dep’t of Broward County, 135 F.3d 1420, 1422 (11th Educ., No. 03-CV-6653 (NRB), 2004 U.S. Cir. 1998) (claims regarding the denial of Dist. LEXIS 13227, at *14 (S.D.N.Y. Jul. 14, publicly financed special education under 2004) (citing Polera, 288 F.3d at 487); Section 504 of Rehabilitation Act and the Polera, 288 F.3d at 487 (“The IDEA’s ADA are subject to the IDEA’s exhaustion exhaustion requirement was intended to requirement); Frazier v. Fairhaven School channel disputes related to the education of Committee, 276 F.3d 52, 59-63 (1st Cir. 2002) disabled children into an administrative (plaintiff bringing an IDEA-based claim under process that could apply administrators’ Section 1983, in which they sought only expertise in the area and promptly resolve monetary damages, must exhaust the grievances.”); Taylor v. Vt. Dep’t of Educ., administrative process). 313 F.3d 768, 791 (2d Cir. 2002)). Even in instances where an administrative hearing and Therefore, despite plaintiffs’ claims for appeal are unsuccessful in resolving a dispute, damages pursuant to the Rehabilitation Act such procedures “will at least have produced and state law, plaintiffs must comport with the a helpful record because administrators versed requirements of IDEA, which is intended to in the relevant issues were able to probe and remedy precisely the type of claim presented illuminate those issues for the federal court.” here – namely, that local school authorities J.S., 386 F.3d at 112-13 (citing Riley v. failed to adequately provide a disabled student Ambach, 668 F.2d 635, 640 (2d Cir. 1981)). with appropriate educational services and educational environment. Polera, 288 F.3d at In short, the IDEA is intended to remedy 488. As the gravamen of plaintiffs’ action the claims made by plaintiffs: “that a school here relates to the deprivation of free and district failed to provide her with appropriate appropriate educational services, which is educational services.” Polera at 488. Here, clearly within the ambit of the IDEA, their plaintiffs assert that Zanada is a disabled child request for damages pursuant to other federal within the meaning of the IDEA and the statutes and state tort law does not allow them alleged claims clearly concern the sufficiency to evade the statute’s exhaustion requirement. of her education under the IDEA. However, See, e.g., White v. McComb Separate School plaintiffs make no allegation that they have

exhausted their administrative remedies under (citing Honig, 484 U.S. at 327). IDEA. Therefore, plaintiffs’ claims are barred for failure to exhaust available administrative Plaintiffs, although conceding that they remedies unless they fall within the narrow have not exhausted the administrative exemption outlined below. remedies, argue that the futility exception to the exhaustion requirement should apply for C. “Futility” Exception to IDEA’s two separate reasons: (1) there was a failure to Exhaustion Requirement implement Zanada’s Section 504 Plan (Plaintiffs’ Memorandum of Law, at 5-8); and The exhaustion requirement does not apply (2) Zanada “suffered injuries in past, is in situations in which “exhaustion would be seeking monetary damages and has moved” futile because administrative procedures do (Id. at 9). The Court will analyze these not provide adequate remedies.” Heldman v. grounds separately and, as discussed below, Sobol, 962 F.2d 148, 158 (2d Cir. 1992) finds that such grounds do not exist in this (citing Honig v. Doe, 484 U.S. 305, 326-27 case, and there is no basis for finding futility. (1988) (stating that “parents may bypass the administrative process where exhaustion (1) Failure to Implement would be futile or inadequate”) and Smith v. Robinson, 468 U.S. 992, 1014 n.17, 104 S. Ct. Plaintiffs claim that defendants’ alleged 3457, 82 L. Ed. 2d 746 (1984)). Such futility failure to adhere to a provision of Zanada’s has been found where: (1) the plaintiff would Plan on at least one occasion – when a be seeking administrative relief from the same substitute teacher erroneously told her she entity that failed to implement specific could not immediately use the bathroom and provisions of the student’s individualized Zanada was not allowed by the teacher back education program; (2) the problems alleged into the classroom after she went to the are “systemic violations” that cannot be bathroom over the teacher’s objection – addressed by the available administrative constitutes a “failure to implement” her procedures; or (3) the agency would have individualized 504 Plan. On that basis, been unable to remedy the alleged injury at plaintiffs argue that their IDEA-related claims the time it occurred. Polera, 288 F.3d at 488- should be exempted from the exhaustion 89; J.S., 386 F.3d at 113; see also Michaels v. requirement. Polera, 288 F.3d at 489; see Mills, 2004 U.S. Dist. LEXIS 6155 also SJB, 2004 U.S. Dist. LEXIS 13227, at (W.D.N.Y. Feb. 14, 2004) (“[T]here are *16 (“[W]here an IEP-related claim is based several exceptions to the IDEA’s exhaustion on a district’s failure to implement services requirement, including, inter alia, (1) futility, already spelled out in an IEP, exhaustion is (2) ‘an agency has failed to provide services excused.”) (citing Polera, 288 F.3d at 489, specified in the child’s individualized and Heldman, 962 F.2d at 158 n.11); Michaels education program [IEP]’ and (3) ‘an agency v. Mills, 02-CV-0555E(F), 2004 U.S. Dist. has adopted a policy or pursued a practice of LEXIS 6155, at *13 (W.D.N.Y. Feb. 14, general applicability that is contrary to law.’”) 2004) (“[T]he ‘legislative history of the IDEA (citing Taylor v. Vt. Dep’t of Educ., 313 F.3d suggests an exhaustion exception for 768, 789 (2d Cir. 2002)). The party seeking situations concerning the implementation of to avoid exhaustion bears the burden of an IEP, as opposed to the contents of an showing futility. Polera, 288 F.3d at 488 n.8 IEP.’”) (emphases in original) (quoting

Joseph M. v. S.E. Delco Sch. Dist., No. 99- administrative remedies before CV-4645, 2001 U.S. Dist. LEXIS 2994, at filing a civil law suit. These *25 (E.D. Pa. Mar. 19, 2001)). The Court include complaints that. . . an disagrees for two main reasons: (1) a singular agency has failed to provide failure to comply with a provision of an services specified in the child’s individualized plan is not a failure to individualized education implement within the meaning of the futility program. exception; and (2) assuming arguendo that the plaintiffs’ allegations did constitute a failure 131 Cong. Rec. § 10396-01 (1985). However, to implement within the meaning of the that statement cannot form the basis for a exception, they do not solely relate to a failure broad exception to the exhaustion requirement of implementation, as is required for futility to that does not exist in the IDEA’s statutory exist, but rather also include potential language and would completely undermine deficiencies in the contents of the Plan, the exhaustion requirement that Congress including a lack of specificity as to how to clearly included in the statute. See, e.g., U.S. ensure compliance with the provisions of the ex rel. Fullington v. Parkway Hosp., Inc., 351 Plan. B.R. 280, 286 n.4 (E.D.N.Y. 2006) (“The Supreme Court has emphasized the dangers in As is clear from the complaint, and courts interpreting statutes by relying on confirmed by counsel at oral argument, remarks from floor debates or similar plaintiffs do not allege that the District wholly comments by lawmakers to discern legislative failed to implement Zanada’s Plan. In fact, intent.”) (citations omitted). In fact, the there is no allegation that any failure to Second Circuit has explicitly examined comply with the Plan took place until Senator Simon’s statement and found that February 2007 – more than two months after the plan was created. What is alleged is that, [w]ere [the Second Circuit] to on at least one occasion, defendants failed to accept Senator Simon’s broad adhere to one accommodation provided for in language without qualification, a Zanada’s 504 Plan. Specifically, plaintiffs plaintiff could plausibly frame allege that a substitute teacher, who had never any IEP-related claim as one of taught Zanada before, knowingly or “implementation” and thereby inadvertently denied Zanada access to the sidestep the IDEA’s exhaustion bathroom in violation of her 504 Plan. (50-h requirement. Under such an hearing of Zanada, at 13.) Plaintiffs point to interpretation, the futility the statement of Senator Paul Simon, a co- exception would swallow the sponsor of the two acts that formed the exhaustion requirement. foundation of the IDEA, to support their Moreover, the exhaustion argument that this incident should exempt requirement is predicated on their claims from the exhaustion requirement. Congress’s belief, expressed through the statutory scheme, that It is important to note that there administrative agencies can “get are certain situations in which it it right”: that the agencies is not appropriate to require the themselves are in the optimal exhaustion of [IDEA] position to identify and correct

their errors and to fine-tune the is well-equipped to address and resolve.3 design of their programs. Sweeping exceptions to the Further, plaintiffs do not solely allege a exhaustion requirement are at failure to implement; their allegations clearly odds with this belief. challenge the clarity and sufficiency of the Plan as well. In evaluating claims of futility Polera, at 489. Allowing exemption from the on the basis of a “failure to implement,” the exhaustion requirement for the case at hand Second Circuit has advised that “a court must would indeed allow the exception to swallow closely examine a plaintiff’s claims before the requirement. As the Court noted in oral concluding that they involve nothing more argument, the logic of plaintiffs’ position than ‘implementation’ of services already would allow parents to bypass administrative spelled out in an IEP . . . [A plaintiff’s] process and immediately seek redress in assertion that her claim relates solely to federal court for all types of similar situations, implementation does not make it so.” Polera, including if their child’s tutor missed one 288 F.3d at 489. In Polera, the court found session due to illness.2 These are precisely the that the plaintiff’s claim “unavoidably sort of claims that the administrative process encompasse[d] both a failure to provide services and a significant underlying failure to specify what services were to be provided.” Polera, 288 F.3d at 489.

Although plaintiffs argue that the school 2 At oral argument, counsel for plaintiffs simply failed to implement services provided attempted to distinguish the case at hand from for in the 504 Plan, upon closer examination such an example on the basis that Zanada’s it is clear that this alleged failure could be due injuries are irreparable, whereas a child whose in part to a lack of clarity in the Plan as to, tutor misses a session may seek a substitute among other things, what was required to session. This distinction does not explain why plaintiffs’ claims meet the “failure to implement” ensure compliance with the provisions of the exemption, while the example given does not. In Plan. The Plan merely states that Zanada was any event, the issue regarding whether Zanada’s “to be allowed to use the bathroom or water attempt to recover damages is a proper distinction fountain upon request” without providing any is addressed elsewhere in this Memorandum and mechanism by which Zanada would exercise Order in response to plaintiffs’ argument that their this privilege. The Plan does not specify (1) claims fall within the exemption for injuries that whether the provision overrides the school cannot be remedied through the administrative policy that students were not to use the process. Moreover, the Court also noted at oral bathroom during the first five minutes of argument that the logic of plaintiffs’ position class; (2) how the provision interacts with the would allow parents to go immediately to federal court to recover monetary damages, without exhaustion, if a class parent on a school- 3 sanctioned trip was unaware of Zanada’s 504 Plan In fact, counsel for plaintiffs acknowledged and failed to provide her with immediate access to during oral argument that the use of the a bathroom upon her request on one occasion. administrative process could have potentially Such a result, like the instant case, is entirely prevented similar types of incidents, which inconsistent with the IDEA exhaustion allegedly disrupted Zanada’s learning experience, requirement. from recurring in the future.

school policy requiring teachers to sign each nothing in her Plan to indicate how staff student’s agenda book before they go to the should respond to incidents short of a bathroom;4 (3) how the provision was to be “medical crisis.” Plaintiffs even point out that communicated to full-time or substitute behavior “which ha[s] been categorized by the teachers; or (4) how Zanada was to staff of the Turtle Hook School as communicate her need to use the restroom for ‘disruptive’, ‘isolated’, or warranting medical reasons to her teachers. In fact, ‘admonishment’ are all behaviors normal for plaintiffs state that they specifically requested diabetic children to display and to a trained that the school “brief substitutes/ professional more appropriately categorized paraprofessionals on students with a disability as ‘irritability’, ‘hunger’, ‘headache’, ‘lack of in the classroom setting.” (Gardner’s Aff. ¶¶ concentration’, ‘increased or excessive thirst’, 7-8.) However, this was never included in ‘fatigue’, ‘weakness’. . .” (Gardner’s Aff. ¶ Zanada’s 504 Plan, an alleged deficiency of 46.) Therefore, it may be that sending Zanada content that plaintiffs could have challenged to the nurse’s office when she was acting in a through the administrative procedures way that the teachers interpreted as disruptive available.5 may have been the proper course of action, but this is a question of sufficiency of the Further, there was nothing in Zanada’s content of Zanada’s individualized plan, not Plan to indicate how a teacher was to respond implementation of it. Plaintiffs’ claim clearly to a change in behavior that may be the result is not one solely about implementation of an of Zanada’s medical condition. Plaintiffs individualized plan.7 allege that Zanada was denied academic instruction because she was “run out of the Where the obligations of the school are not classroom to the nurse’s office for menial clear, and the administrative process could things that could be handled in a different have provided appropriate relief, the claims way”6 (Gardner’s Aff. ¶ 34.), yet there was will not fall within the “failure to implement” exception. Exhaustion under such circumstances serves many important aims: 4 50-h hearing of Zanada Gardner, p. 15. (1) permitting the exercise of agency 5 discretion and expertise on issues requiring Plaintiffs assert without explanation that the these characteristics; (2) allowing the full school was responsible for conducting such briefing and that they requested this “through the use of administrative protocol.” During Gardner’s 50-h hearing testimony, she explained that, during of Zanada, at 26-27.) As the teacher was yelling, a meeting with the school principal and dean of she was allegedly spitting on Zanada. Id. at 27. students after the February 5, 2007 incident, she The teacher then sent Zanada to the nurse’s office, suggested that the school “get [its] staff together, where she called her mother who told her to train [its] staff, educate [its] staff on disability.” remain there for the rest of the class period. Id. at (Gardner’s 50-h hearing testimony, at 28.) 30-31. 6 7 The only specific example provided in the In fact, even if these issues regarding sending complaint is an incident in which “Jane” Boreum Zanada to the nurse on too many occasions could allegedly yelled at Zanada, claiming that she was be construed as relating solely to implementation, “not following her directions correctly,” because it is not a wholesale failure to implement that is she forgot her password and was unable to log into being alleged, but rather, in essence, over- the website that the class was using. (50-h hearing implementation of the Plan.

development of technical issues and a factual factual issues that would be best addressed, at record prior to court review; (3) preventing least in the first instance, with the input and deliberate disregard and circumvention of expertise of school administrators. As such, agency procedures established by Congress; bringing suit in federal court is premature and and (4) avoiding unnecessary judicial in contravention of the aims of the decisions by giving the agency the first administrative exhaustion requirement. opportunity to correct any error. See Polera, 288 F.3d at 487; accord Hope v. Cortines, 872 For these reasons, plaintiffs’ federal claims F. Supp. 14, 19 (E.D.N.Y. 1995). As the are not exempted from the IDEA’s exhaustion Sixth Circuit has noted, “States are given the requirements under the “failure to implement” power to place themselves in compliance with exception. the law . . . Federal Courts – generalists with no expertise in the educational needs of (2) Unable to Remedy Alleged handicapped students – are given the benefit Injury of expert factfinding by a state agency devoted to this very purpose.” Crocker v. Plaintiffs also argue that, because Zanada Tenn. Secondary Sch. Athletic Ass’n, 873 F.2d is seeking monetary damages for past injury 933, 935 (6th Cir. 1989); accord Polera, 288 and has left the school district, the futility F.3d at 487 (citing Crocker). exception should apply. As a threshold matter, as discussed in detail supra, the mere These goals would be served by exhaustion fact that only monetary damages are being of administrative remedies in a case such as sought does not provide a basis for avoiding that before this Court. After the incidents the exhaustion requirement and the Court will complained about in this case, the school not repeat that analysis here. To the extent allegedly attempted to propose various that plaintiffs, relying on Covington v. Knox amendments to the 504 Plan that would fill County School System, 205 F.3d 912 (6th Cir. these gaps, such as giving Zanada a card that 2000), argue that the fact that monetary relief she could show to teachers when she needed is being sought for past injury (combined with to be excused from class.8 In addition, after plaintiffs having moved out of the district) the February 16, 2007 incident, Zanada was satisfies the futility exception, the Court finds moved “immediately” from Boreum’s reading that argument entirely unpersuasive. class into a class with another teacher at Gardner’s request. (50-h hearing testimony of First, the fact that plaintiffs switched Gardner, at 69-70.) These are just the sort of school districts without availing themselves of the administrative process does not provide a basis for futility. The Second Circuit and 8 other courts have emphasized that giving Gardner said that she met with the school principal and the dean of students after the plaintiffs control over whether their claims are February 5, 2007 incident and that the principal subject to the exhaustion requirement defeats “tried to come up with different case scenarios of the requirement’s purpose. See Polera, 288 what she could do to give Zanada a pass or give F.3d at 490 (“[W]e reiterate our holding that her a card to show and wave in the class that she disabled-student plaintiffs, like Polera, should needs to go to the bathroom or come to her and get not be permitted to ‘sit on’ live claims and a pass if she needs to go to the bathroom.” spurn the administrative process that could (Gardner’s 50-h hearing testimony, at 26-27).

provide the educational services they seek, 1996), the Eleventh Circuit rejected plaintiff’s then later sue for damages. Were we to argument that exhaustion was not required condone such conduct, we would frustrate the because she no longer attended any of the IDEA’s carefully crafted process for the defendant schools. In particular, the court prompt resolution of grievances through explained: interaction between parents of disabled children and the agencies responsible for If parents can bypass the educating those children. The fact that the exhaustion requirement of the administrative process could not provide IDEA by merely moving their damages does not render Polera’s claim futile child out of the defendant . . . .”); see also Frazier v. Fairhaven Sch. school district, the whole Comm., 276 F.3d 52, 63 (1st Cir. 2002) administrative scheme (finding that “even after graduation, established by the IDEA compensatory education is an available would be rendered nugatory. remedy” and that “the entire matter of timing Permitting parents to avoid the is largely within a plaintiff’s control. . . . It requirements of the IDEA would be a hollow gesture to say that through such a “back door” exhaustion is required – and then to say that would not be consistent with plaintiffs, by holding back until the affected the legislative intent of the child graduates, can evade the requirement.”) IDEA. (citation omitted); Charlie F. by Neil F. v. Board of Educ., 98 F.3d 989, 992 (7th Cir. Id.;9 see also Doe By and Through Doe v. 1996) (“[b]y making an unreasonable or Smith, 879 F.2d 1340, 1343 (6th Cir. 1989) unattainable demand parents cannot opt out of (“parents’ unilateral act of removing their the IDEA”); Doe v. Smith, 879 F.2d 1340 (6th child from a public school . . . does not mean Cir. 1989) (parents may not avoid the state that the procedures in the [IDEA] may be by- administrative process through the “unilateral act of removing their child from a public school”); Ruecker v. Sommer, 567 F. Supp. 2d 9 The Eleventh Circuit also rejected the argument, 1276, 1297 (D. Or. 2008) (graduation does not as this Court does in the instant case, that the render exhaustion futile) (collecting cases); district’s lack of authority under the IDEA to grant Amidon v. Michigan, No. 04-75003, 2008 WL the relief sought – namely, money damages – 723536, at *12-13 (E.D. Mich. March 17, constitutes futility. Id. (“The plaintiff argues there 2008) (student’s withdrawal from the school is no point pursuing administrative remedies does not render exhaustion futile). because the defendant school districts lack authority to grant the relief requested, namely money damages. Again, if the plaintiff’s Thus, consistent with Polera and the case argument is to be accepted, then future litigants authority from other circuits, courts have could avoid the exhaustion requirement simply by rejected arguments regarding futility where asking for relief that administrative authorities the parents made the unilateral decision to could not grant. This goes against the very reason move out of the school district before we have the exhaustion requirement, which is [to exhausting the administrative process. For prevent] deliberate disregard and circumvention of example, in N.B. by D.G. v. Alachua County agency procedures established by Congress.... In School Bd., 84 F.3d 1376, 1379 (11th Cir. fact, courts that considered this argument have all rejected it.”) (citations and quotations omitted).

passed. Absent a showing that exhaustion of Covington are substantially different from the the administrative process would be futile or case before this Court in several ways, inadequate, . . . parents and guardians [must] including: (1) there was no available remedy use the state process which the act specifies in Covington under the administrative process shall be provided to them.”) (citation and at the time of the injury because the gravamen quotations omitted); Torrie By and Through of the plaintiff’s complaint was not about the Torrie v. Cwayna, 841 F. Supp. 1434, 1441- sufficiency of the education available to the 42 (W.D. Mich. 1994) (dismissing claims for disabled child; and (2) the fact that there were alleged violations of IDEA, Rehabilitation no available remedies under the Act, as well as false arrest/false imprisonment, administrative process was not the result of a because of failure to exhaust and rejecting unilateral act on the part of plaintiff. argument that exhaustion was not required because plaintiffs had left the school district). The Second Circuit in Polera distinguished Similarly, in the instant case, this Court cases like the one before this Court from the concludes that the unilateral decision by facts in Covington: plaintiffs in the instant case to transfer out of the Uniondale School District at the end of the Despite certain similarities school year without exhausting their between Covington and the administrative remedies does not allow this instant case – both Polera and the case to fall within the futility exception. plaintiff in Covington had already graduated and complain of past, Second, although plaintiffs rely on the not ongoing, conduct – Polera’s Sixth Circuit’s decision in Covington v. Knox claim is distinguishable from the County School System, that non-binding case “unique circumstances” of is clearly distinguishable from the instant Covington, which in any case is case. In Covington, the plaintiff brought suit not binding on this Court. under 42 U.S.C. § 1983, alleging Although the Sixth Circuit constitutional violations of a disabled focused on the fact that the student’s rights, but not raising IDEA claims. plaintiff student had graduated, Specifically, the plaintiff in Covington damages would have been the asserted that school officials disciplined the only adequate remedy even had student by locking him in a small, dark, he sought immediate relief at the unventilated room for long periods of time. In time of the wrongdoing. Nothing considering the applicability of the IDEA could “undo” the harm that he exhaustion requirement, the court held “that in had suffered. In contrast, had the unique circumstances of this case – in Polera pursued administrative which the injured child has already graduated procedures at the time of the from the special education school, his injuries alleged wrongdoing, she could are wholly in the past, and therefore money have obtained the materials she damages are the only remedy that can make needed and, perhaps, remedial him whole – proceeding through the state’s tutoring or schedule adjustments administrative process would be futile and is to undo the effects of the wrong. not required before the plaintiff can file suit in For Polera, unlike the plaintiff in federal court.” 205 F.3d at 917. The facts in Covington, a fully effective

remedy was available at the time; plaintiffs at the time of the alleged injury. For she simply chose not to pursue it. example, plaintiffs claim that Zanada “missed a lot of instruction” as a result of being sent Polera v. Bd. of Educ., 288 F.3d 478, 490 (2d out of the classroom on a few occasions, “and Cir. 2002). The Court in Polera made clear that her grades have suffered accordingly.” that “[w]hether the administrative process is (Gardner’s Aff. ¶ 34.) The administrative able to remedy the injury must be viewed at process could have provided tutoring to help the time of the injury, not when the suit was Zanada cover any material she missed on filed.” M. v. Stamford Bd. of Educ., 3:05-cv- those occasions. Additionally, plaintiffs claim 0177, 2008 U.S. Dist. LEXIS 67988, at *6 (D. that Zanada’s individualized plan was violated Conn. Sept. 9, 2008) (citing Polera, 288 F.3d by a substitute teacher. The administrative at 490) (distinguishing Covington, on the process could have added procedures to the grounds that administrative remedies were Plan to ensure that such violations did not available at time of injury); accord Eads ex occur again. The injuries suffered by Zanada rel. Eads v. Unified School Dist. No. 289, are precisely the kind for which the Franklin County, Kan., 184 F. Supp. 2d 1122, administrative process would be most 1135 (D. Kan. 2002) (rejecting argument that beneficial. In fact, the school offered plaintiff seeking monetary damages need not potential solutions to fix the problem going exhaust and noting that unique circumstances forward but plaintiffs refused them without of Covington were inapplicable). In availing themselves of the administrative Covington, the gravamen of the claim was for options available to challenge the situation. past injuries after the student had graduated, The fact that Zanada allegedly also suffered that even at the time of injury would not have injuries that could not be remedied through been considered claims relating primarily to the administrative process does not, without the education of the disabled. That is not true more, exempt plaintiffs from the exhaustion of the case at hand. The gravamen of requirements of the IDEA. See Booth v. plaintiffs’ claims here relate to the educational Churner, 532 U.S. 731, 738 149 L. Ed. 2d services provided to a disabled child by the 958, 121 S. Ct. 1819 (2001) (“The word alleged mishandling of her disability, claims ‘exhausted’ has a decidedly procedural that could have been resolved by emphasis. It makes sense only in referring to administrative proceedings at the time of the procedural means, not the particular relief injury. In fact, as noted supra, counsel for ordered. . . . It makes no sense to demand that plaintiffs conceded at oral argument that it someone exhaust ‘such administrative was not impossible for the District at the time [redress]’ as is available; one ‘exhausts’ of the alleged injury to make modifications to processes, not forms of relief, and the statute Zanada’s Plan that could potentially have provides that one must.”). In short, Covington rectified the situation going forward and has no application to the alleged facts in the alleviated the alleged deprivation of instant case and there are no grounds for educational services that was allegedly concluding that exhaustion of the resulting from the school’s mishandling of administrative remedies would have been Zanada’s disability. futile in this case.

Thus, in the instant case, an administrative remedy was available to

(3) “Good Faith” Effort to Exhaust demonstrate any undue delay by the defendants in initiating the administrative Plaintiffs also argue, without citing any process. Specifically, plaintiffs allege that case authority, that they made “good faith Gardner attended a meeting with the school efforts to exhaust their administrative principal and dean of students after the remedies” (Pl. Mem. P. 11) and, therefore, February 5, 2007 incident. (50-h hearing their claims should be exempted from the testimony of Gardner, at 25-27.) Gardner exhaustion requirement. As set forth below, rejected the proposals put forth by the school plaintiffs have failed to allege any conduct by to improve the situation going forward. (Id. at the defendants in terms of extraordinary delay 25-27.) On February 13, 2007, Ms. Gardner that would warrant a determination of futility was scheduled to meet with Mary Klein, the in the case based on such delay. District’s 504 Coordinator. When Gardner arrived with an attorney, Klein asked to This Court recognizes that, in rare cases, adjourn the meeting to another time. Gardner extraordinary delay by a school district could refused and said, “‘No. That’s it. I’m tired of be a basis for finding futility. Specifically, in playing games. That’s it.’” (50-h hearing Frutiger v. Hamilton, 928 F.2d 68 (2d Cir. testimony of Gardner, at 78.) Plaintiffs also 1991), the Second Circuit dismissed an appeal concede that, after the alleged February 16, by parents of a disabled child in which they 2007 incident, Gardner contacted the (1) claimed that the administrative process Superintendent, who suggested that a meeting was taking too long, and (2) contended that be scheduled to discuss the incident, but “Ms. the district court should hold an evidentiary Gardner refused to attend such a meeting due hearing on that issue. In reaching that to the fact that the previous meeting had been decision, however, the Second Circuit stated, canceled and the events affecting her daughter “We do not doubt that the frustration caused had failed to cease.” (Plaintiffs’ by this experience induced plaintiffs to bypass Memorandum in Opposition, at 12.) Gardner the administrative process in challenging the never filed a written appeal or complained to CSE’s recommended IEP for 1990-91 and to the Uniondale Board of Education, nor did she seek immediate review in the district court.” ever request a hearing. (50-h hearing Id. at 73. Thus, although finding lack of testimony of Gardner, at 79.) appellate jurisdiction, the Court suggested that futility could be found in the extraordinary Given these allegations by plaintiffs, any case: “[I]f state administrative bodies contention that the defendants’ undue delay in persistently fail to render expeditious the administrative process warrants a finding decisions as to a child’s educational of futility is clearly without merit. The placement, district courts have the power postponement of one meeting by defendants under § 1415(e)(2) to assume jurisdiction over does not constitute extraordinary delay. In the review process on the grounds that fact, it is abundantly clear from plaintiffs’ exhaustion would be futile or inadequate and own allegations that they abandoned any thereafter make a final determination as to a dialogue with the District within weeks of the child’s program and placement.” Id. at 74. alleged incidents, despite the District’s willingness to meet, and plaintiffs never In the instant case, plaintiffs’ allegations sought to pursue the administrative process. of delay by the defendants utterly fail to In short, the inconvenience involved in

postponing a meeting does not rise to the level D. State Law Claims of thwarting plaintiffs’ attempts to exhaust. Accordingly, any claim by plaintiffs of undue Having determined that this Court lacks delay is rejected. See Schlude v. Northeast subject matter jurisdiction over plaintiffs’ Central School District, 892 F. Supp. 560 federal claims, the Court concludes that (S.D.N.Y. July 24, 1995) (“We see no reason retaining jurisdiction over the state law claims to conclude in this case that the state officials is unwarranted. 28 U.S.C. § 1367(c)(3); have persistently failed to render expeditious United Mine Workers of Am. v. Gibbs, 383 decisions on pendency placement issues. U.S. 715, 726 (1966). “In the interest of Therefore, the Frutiger Court’s observation is comity, the Second Circuit instructs that inapplicable to this case.”). ‘absent exceptional circumstances,’ where federal claims can be disposed of pursuant to In sum, plaintiffs’ claims under the IDEA Rule 12(b)(6) or summary judgment grounds, and the Rehabilitation Act are not exempted courts should ‘abstain from exercising from the exhaustion requirement of the IDEA pendent jurisdiction.’” Birch v. Pioneer Credit under the futility exception, and this Court Recovery, Inc., No. 06-CV-6497T, 2007 WL may not exercise subject matter jurisdiction 1703914, at *5 (W.D.N.Y. June 8, 2007) over them. Accordingly, the federal claims (quoting Walker v. Time Life Films, Inc., 784 are dismissed without prejudice for failure to F.2d 44, 53 (2d Cir. 1986)). exhaust.10 Therefore, in the instant case, the Court, in its discretion, “‘decline[s] to exercise 10 Defendants alternatively move to dismiss under supplemental jurisdiction’” over plaintiffs’ Fed. R. Civ. P. 12(b)(6), arguing that the state law claims because “it ‘has dismissed all allegations set forth in the complaint, viewed in claims over which it has original the light most favorable to the plaintiffs, fail to jurisdiction.’” Kolari v. N.Y.-Presbyterian establish a claim under IDEA or Section 504. Hosp., 455 F.3d 118, 122 (2d Cir. 2006) They argue that plaintiffs do not allege sufficient details in the complaint to support a plausible (quoting 28 U.S.C. § 1367(c)(3)); see also claim that Zanada was denied a free and Cave v. E. Meadow Union Free Sch. Dist., appropriate public education as required by IDEA. 514 F.3d 240, 250 (2d Cir. 2008) (“We have See e.g., Van Duyn v Baker Sch. Dist., 502 F.3d already found that the district court lacks 811, 815 (9th Cir. 2007) (finding “that when a subject matter jurisdiction over appellants’ school district does not perform exactly as called federal claims. It would thus be clearly for by the IEP, the district does not violate the inappropriate for the district court to retain IDEA unless it is shown to have materially failed jurisdiction over the state law claims when to implement the child’s IEP. A material failure there is no basis for supplemental occurs when the services provided to a disabled child fall significantly short of those required by the IEP”). Similarly, with respect to the Section 504 claim, defendants argue that plaintiffs have [rather,] a plaintiff must demonstrate that a school not alleged the “gross negligence” or “bad faith” district acted with bad faith or gross required to make out such a claim. See, e.g., misjudgment’”) (quoting Wenger v. Canastota Scaggs v. New York State Dept. of Educ., No. 06- Cent. Sch. Dist., 979 F. Supp. 147, 152 (N.D.N.Y. CV-0799 (JFB) (VVP), 2007 WL 1456221, at *54 1997)). The Court will not address the Rule (E.D.N.Y. May 16, 2007) (“‘something more than 12(b)(6) motion given plaintiffs’ failure to a mere violation of the IDEA is necessary. . . exhaust.

jurisdiction.”); Karmel v. Liz Claiborne, Inc., No. 99 Civ. 3608 (WK), 2002 WL 1561126, The attorney for plaintiffs Zanada and Sabrina at *4 (S.D.N.Y. July 15, 2002) (“Where a Gardner is John A. Ardito, Esq. of Ardito & court is reluctant to exercise supplemental Ardito, LLP, 659 Franklin Avenue, Franklin jurisdiction because of one of the reasons put Square, New York, 11010. The attorney for forth by § 1367(c), or when the interests of the defendants Uniondale Public School judicial economy, convenience, comity and District, Turtle Hook Middle School, “Jane” fairness to litigants are not violated by Titus and “Jane” Boreum is Lewis R. refusing to entertain matters of state law, it Silverman, of Rutherford & Christie, LLP, should decline supplemental jurisdiction and 369 Lexington Avenue, 8th Floor, New York, allow the plaintiff to decide whether or not to New York 10017. pursue the matter in state court.”).

Accordingly, pursuant to 42 U.S.C. § 1367(c)(3), the Court declines to retain jurisdiction over the remaining state law claims given the absence of any federal claims that survive dismissal, and dismisses such state claims without prejudice.

IV. CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss the federal claims is granted without prejudice, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, for failure to exhaust. The Court declines to retain jurisdiction over plaintiffs’ remaining state law claims and dismisses such claims without prejudice. The Clerk of the Court shall enter judgment accordingly and close this case.

SO ORDERED.

JOSEPH F. BIANCO United States District Judge

Dated: October 21, 2008 Central Islip, New York

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Gardner et al. v. Uniondale Public School District et al.