E.D.N.Y.: B.D.S et al. v. Southold...

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK _______________________________X

DONNA DZUGAS-SMITH,

Plaintiffs, CV-08-1319 (SJF)(WDW)

-against- OPINION & ORDER SOUTHOLD UNION FREE SCHOOL DISTRICT, DR. CHRISTOPHER GALLAGHER, VIRGINIA FILED IN CLERK'S OFFICE THOMPSON, RICHARD CAGGIANO, PAULETTE Us DISTRICT COURT E 0 N y OFRAIS, JUDI FOUCHET, DR. ROBERT WALSH, JEANANNE DEMPSEY, PATRICIA MELLAS, DAVID RIDDELL, ELAINE WHITE, SCOTT DESIMONE, * MAY 09 lOll * SUSAN NOBILE, GAIL ANDREWS BUTTA, MARY LONG ISlAND OFFICE FITZPATRICK, MARY LOU CAHILL and BRUCE KOLLMAR,

Defendants. _____________________________________X

FEUERSTEIN, J.

On April 1, 2008, pro se plaintiff Donna Dzugas-Smith ("plaintiff') commenced an

action ("Action No. 1"),individually and on behalf of her child "B.D.S.," against defendants

Southold Union Free School District ("the UFSD"), Dr. Christopher Gallagher, Virginia

Thompson, Richard Caggiano, Paulette Ofrias, Judi Fouchet, Dr. Robert Walsh, Jeananne

Dempsey, Patricia Mellas, Lori Cariello, David Riddell, Elaine White and Scott Desimone,

(collectively, the "UFSD defendants"), State Review Officer Paul F. Kelly ("Kelly") and

Ingerman and Smith L.L.P. ("Ingerman Smith"). On June 26, 2008, plaintiff filed an amended

complaint in Action No. I alleging violations of, inter alia, the Individuals with Disabilities

Education Act ("IDEA"), 20 U.S.C. § 1400, et seq.; the Rehabilitation Act of 1973 ("the

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Rehabilitation Act"), 29 U.S.C. § 792, et seq.; the Civil Rights Act of 1871,42 U.S.C. §§ 1983

("Section 1983") and 1985 ("Section 1985"); Title II of the Americans with Disabilities Act

("ADA"), 42 U.S.C. § 12131, et seq.; New York Education Law§§ 4401, et seq. ("New York

Education Law"); and the New York State Constitution Article XI, § 1 ("New York

Constitution").

On May 8, 2008,pro se plaintiff commenced a separate action ("Action No.2"),

individually and on behalf ofB.D.S., against all of the same defendants as named in Action No.

I, as well as against Susan Nobile, Gail Andrews Butta, Mary Fitzpatrick, Mary Lou Cahill and

Bruce Kollmar (collectively, "the additional UFSD defendants") and the New York State

Education Department ("NYSED"). On September 4, 2008, plaintiff filed an amended complaint

in Action No. 2 alleging violations of, inter alia, the IDEA, the Rehabilitation Act, Section 1983,

42 U.S.C. § 1988 ("Section 1988"), the ADA, the New York Education Law and the New York

Constitution.

Thereafter, Ingerman Smith and Kelly moved, inter alia, pursuant to Rule 12 of the

Federal Rules of Civil Procedure to dismiss the amended complaints in both actions as against

them. By order entered June 26, 2009, this Court, inter alia: (1) consolidated Actions No. 1 and

2; (2) dismissed plaintiff's Section 1983, Section 1985 and state law claims as against Ingerman

Smith without prejudice and sua sponte dismissed plaintiff's Section 1985 claims as against all

defendants without prejudice; (2) dismissed plaintiff's ADA and Rehabilitation Law claims as

against Ingerman Smith, Kelly and all individual defendants with prejudice; (3) dismissed

plaintiff's claims as against Kelly with prejudice, with the exception that plaintiff was granted

leave to amend the pleadings to assert a claim seeking a declaratory judgment based upon any

ongoing violation of federal law by Kelly; (4) sua sponte dismissed plaintiff's ADA claims in

both actions, and her Rehabilitation Act claims in Action No. 2, as against the UFSD and

NYSED without prejudice; and (5) directed plaintiff to retain counsel, or move for the

appointment of counsel, on behalf of B.D.S. within thirty (30) days or all claims asserted on

behalfofB.D.S. would be dismissed without prejudice.'

On September 21,2009, plaintiff, individually and on behalf ofB.D.S., filed an amended

complaint, which became the operative pleading in the consolidated action, against all

defendants2 and moved for the appointment of counsel on behalf ofB.D.S. By order entered

October 2, 2009, plaintiff's motion to appoint counsel on behalfofB.D.S. was denied with leave

to renew within thirty (30) days upon submission of an appropriate financial affidavit and

plaintiff was advised that her failure to timely renew the motion, to secure pro bono counsel or to

retain counsel on behalf of B.D.S. would result in all claims asserted on behalf ofB.D.S. in this

action being dismissed without prejudice.

Kelly and the NY SED subsequently moved pursuant to Rules 12(b)(I) and (5) of the

Federal Rules of Civil Procedure to dismiss the amended complaint against Kelly as barred by

the doctrine of absolute immunity and against Kelly and the NYSED for improper service of

process, respectively; and Ingerman Smith moved pursuant to Rules 12(b) and (c) of the Federal

Rules of Civil Procedure to dismiss the amended complaint as against it and for judgment on the

1 On July 22, 2009, Ingerman Smith filed a notice of appeal of the June 26, 2009 order. By mandate entered December 28, 2010, the United States Court of Appeals for the Second Circuit dismissed Ingerman Smith's appeal as not ripe for review. 2 Although not named in the caption of the amended complaint filed in the consolidated action, the body of the amended complaint refers to Laurie Cariello as a defendant and contains factual allegations against her.

pleadings, respectively. By order dated April26, 2011, inter alia: (1) the branches oflngerman

Smith's motion seeking judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of

Civil Procedure was granted and plaintiff's claims were dismissed in their entirety with prejudice

as against Ingerman Smith; (2) the branch of Kelly's and the NYSED's motion seeking dismissal

of plaintiffs claims against Kelly as barred by the doctrine of absolute immunity was granted and

plaintiff's claims were dismissed in their entirety with prejudice as against Kelly; (3) the branch

of Kelly's and the NYSED's motion seeking dismissal of the amended complaint against the

NY SED pursuant to Rule 12(b)( 5) for insufficient service of process was granted and the

amended complaint was dismissed in its entirety without prejudice as against the NYSED; (4)

plaintiffs Section 1985 claims were dismissed in their entirety with prejudice; and (5) all claims

asserted on behalf of B.D.S. were dismissed in their entirety without prejudice. Accordingly,

only the following claims remain in this action: (1) the Section 1983 and 1988 claims asserted by

plaintiff, individually, against the UFSD defendants and additional UFSD defendants

(collectively, "defendants"); (2) the IDEA, Rehabilitation Act and ADA claims asserted by

plaintiff, individually, against the UFSD; and (3) Ingerman Smith's counterclaim against

plaintiff. Defendants now move pursuant to Rule 56 of the Federal Rules of Civil Procedure for

summary judgment dismissing plaintiffs remaining claims in their entirety. 3

3 Defendants served plaintiff with their motion for summary judgment on or about September 15,2011, in accordance with a briefing schedule set by this Court, as amended during a July 25,2011 status conference. When plaintiff failed to timely serve any opposition to the motion in accordance with the amended briefing schedule, i.e., by October 12, 2011, or to seek an extension of time to do so, defendants twice moved for leave to file their motion as unopposed. Plaintiff did not respond to either of those motions, filed October 24,2011 and November 16,2011, respectively. Accordingly, by order dated November 18,2011, defendants were granted leave to file their summary judgment motion as unopposed. Defendants filed their unopposed motion on November 28, 2011. Only thereafter did plaintiff belatedly seek an

I. Background

A. Factual Background4

I. The Parties

Plaintiff is the mother and natural guardian ofB.D.S., a child with a history of

developmental and learning problems who received a public education in the UFSD through and

including the 2005-2006 academic year (her sixth grade year). (56.1 Stat., ~ 1).

The following defendants were employed by the UFSD in the following capacities at all

relevant times: ( 1) Virginia Thompson ("Thompson"), as the director of special education, the

chairperson of the Committee of Special Education ("CSE") and the administrator of pupil

personnel services; (2) Dr. Christopher Gallagher ("Gallagher"), as superintendent; (3) David

Riddell ("Riddell"), as the special education teacher designated on the individualized education

program ("IEP") developed for B.D.S.; (4) Laurie Cariello ("Cariello"), as the English language

arts teacher of the sixth (6'h) grade "teaching team" for B.D.S.; (5) Jeananne Dempsey, alk/a

Jeanne Dempsey ("Dempsey"), as the science and math teacher of the sixth (6'h) grade "teaching

team" for B.D.S.; (6) Patricia Mellas, alk/a Patti Mellas ("Mellas"), as the social studies teacher

of the sixth (6'h) grade "teaching team" for B.D.S.; (7) Elaine White ("White"), as the school

extension of time to oppose the motion, more than six (6) weeks after the deadline to serve her opposition set forth in the amended briefing schedule had expired. In light of plaintiff's unreasonable failure to timely oppose the motion or to seek an extension of time to do so, her request for an extension of time to oppose the motion was denied by order dated January 26, 2012. 4 The facts are taken from defendants' Statement of Undisputed Facts pursuant to Rule 56.1 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Local Rule 56.1 "),to the extent supported by the administrative record, as well as from the administrative record itself.

psychologist at Southold Elementary School within the UFSD; (8) Susan Nobile ("Nobile"), as a

reading specialist; (9) Mary Fitzpatrick ("Fitzpatrick"), as the principal and building

administrator of the Junior/Senior High School within the UFSD; (I O) Gail Andrews Butta

("Butta"), as the head of special education in the Junior/Senior High School within the UFSD;

and (II) Mary Lou Cahill ("Cahill"), as the special education teacher assigned to B.D.S. by the

UFSD. In addition, at all relevant times, the Board of Education of the UFSD was comprised of

the following defendants: Richard Caggiano ("Caggiano") as President, and Paulette Ofrias

("Ofrias"), Judi Fouche! ("Fouche!"), Dr. Robert Walsh ("Walsh") and Scott DeSimone

("DeSimone"), as members (collectively, the "BOE defendants"). Moreover, defendant Bruce

Kollmar ("Kollmar") was, at all relevant times, the "Out of District CSE Chairperson" under

contract with the UFSD.

2. B.D.S.'s Performance in Fifth Grade

An "Evaluation Review" completed by Nobile in September 2004, at the beginning of

B.D.S.'s fifth grade year, indicates that B.D.S. "demonstrated average regression over the

summer, meaning her levels [were] consistent with those normally demonstrated over a long

vacation," and, therefore, that extended year ("EY") services' for B.D.S. were not warranted. In

5 New York Education Law provides, in relevant part, that "[t]he board of education** * shall be required to furnish suitable educational opportunities for children with [disabilities] by one of the special services or programs listed [in that statute]. The need of the individual child shall determine which of such services shall be rendered. Each district shall provide to the maximum extent appropriate such services in a manner which enables children with [disabilities] to participate in regular education services when appropriate. Such services or programs shall be furnished between the months ofSeptember and June of each year, except that* * * with respect to the students whose [disabilities] are severe enough to exhibit the need for a structured learning environment of twelve months duration to maintain developmental levels, the board of education

an October 2004 progress report, Nobile further indicated, inter alia: (1) that B.D.S.

demonstrated consistent growth in sight word development skills over time; (2) that although test

scores revealed a "slight regression" in B.D.S.'s decoding skills over the summer, B.D.S. was

able to "retrieve[] and surpass[] her 4/01/04 level of performance, indicating consistent growth in

[those) skills over time;" and (3) that B.D.S. 'sword reading efficiency was within normal limits

for her age. By November 2004, Nobile reported, inter alia, that B.D.S. no longer demonstrated

any summer regression. Furthermore, in December 2004, Nobile, inter alia: (1) reported that

B.D.S.'s sight word and decoding skills were "firmly within the average range;" and (2)

recommended that the CSE discontinue the reading services previously provided by the UFSD

for B.D.S. in order to allow her more time to apply her reading skills within the classroom

setting.

On her final report card for the 2004-2005 academic year, B.D.S. received grades of"3,"

with the highest grade attainable being a "4," in all areas of the four (4) academic subjects, i.e.,

* * * upon the recommendation of the [CSE) * * * shall also provide* * * for the provision of special services and programs * * * during the months of July and August as contained in the [IEP) for each eligible child***." N.Y. Educ. Law§ 4402(2)(a) and (b) (emphasis added). In addition, regulations promulgated by the New York State Commissioner of Education ("the Commissioner") provide, in relevant part, that "[s]tudents shall be considered for twelve month special services and/or programs in accordance with their need to prevent substantial regression, if they are: * * * students who * * *because of their disabilities, exhibit the need for a twelve month special service and/or program provided in a structured learning environment of up to twelve months duration in order to prevent substantial regression as determined by the [CSE). * * * All [EY services) programs * * * offered during July and August shall have been approved by the commissioner [of EducationJ in the first year in which the program is offered and periodically thereafter." 8 N.Y.C.R.R. § 200.6(k) (emphasis added). "Substantial regression" is defined in the regulations as "a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year." 8 N.Y.C.R.R. § 200.I(aaa).

English language arts, mathematics, science and social studies, indicating that her performance in

those subjects met grade level expectations, with the exception that she received a grade of "2" in

the area of reading, indicating that she displayed difficulty meeting grade level expectations in

that one (I) area.

3. The 2005-2006 Academic Year

On May II, 2005, the CSE met to conduct its annual review. The IEP developed for

B.D.S. for the 2005-2006 academic year (her sixth grade year) included: (I) resource room

services for three (3) days out of the six (6)-day cycle, individual remedial reading services for

one (I) hour twice a week and individual speech therapy services for two (2) days out of the six

(6)-day cycle; (2) support services, including use of a graphic organizer with Inspiration software,

use of an auditory enhancer and testing accommodations; and (3) academic intervention ("AI")

services6 during the summer of2005, including speech therapy twice a week for six (6) weeks

6 Regulations promulgated by the Commissioner authorize school districts to provide AI services to students within their district who score below the state designated performance level on state elementary assessments in English language arts, mathematics, science and/or social studies or who "are determined, through a district-developed or district adopted procedure * * * to be at risk of not achieving State standards in English language arts, mathematics, social studies and/or science. See 8 N.Y.C.R.R. § 100.2(ee) (2). School districts are responsible for "develop[ing] a description of [AI] instructional and/or student support services to be provided in schools to students in need of such services***." 8 N.Y.C.R.R. § 100.2(ee)(4)(1)(i). The description of available AI services "shall specifically describe: (a) the district-wide procedure(s) used to determine the need for [AI] services; (b) [AI] instructional and/or student support services to be provided pursuant to paragraph (5) of this subdivision; (c) whether instructional services and/or student support services are offered during the regular school day or during an extended school day or year; and (d) the criteria for ending services, • * *." ld. School districts may: (i) "use time available for [AI] instructional and/or student support services during the regular school day[,] [and] (ii) • • • provide students with extended academic time beyond the regular school day and school year." 8 N.Y.C.R.R. § 100.2(ee)(5).

and one-to-one reading services twice a week for eight (8) weeks. (56.! Stat,'\['\[ 6-7). B.D.S. 's

parents agreed with the CSE's recommendations for the 2005-2006 academic year and for the

summer of2005 and B.D.S. received the AI services during the summer 2005 in accordance with

the IEP.

In October 2005, near the beginning ofB.D.S.'s sixth grade year, Deborah Kinahan

("Kinahan"), B.D.S.'s reading teacher, conducted an educational evaluation ofB.D.S. and

reported, inter alia, that B.D.S.'s developmental level on basic reading skills and reading

comprehension was within the average range of scores obtained by others at her grade level.

In November 2005, White conducted a cognitive and educational evaluation of B.D.S.

and reported, inter alia:(!) that B.D.S.'s working memory capacity was limited, but within the

low average range; (2) that B.D.S.'s academic achievement in broad written language and written

expression was within the average range and her overall reading ability was limited; (3) that

B.D.S.'s fluency (a) in mathematics problems and writing was average and (b) with reading tasks

was limited; (4) that B.D.S.'s nonverbal reasoning abilities were within the high average range

and were much better developed that her verbal reasoning abilities, which were within the

average range; (5) that B.D.S. 's abilities to sustain attention, concentrate and exert mental control

were in the low average range and were a weakness relative to her nonverbal and verbal

reasoning abilities; and (6) that B.D.S.'s ability to process simple or routine visual material

without making errors was in the average range.

In December 2005, an independent auditory and language processing re-evaluation of

B.D.S. was conducted by Donna Geffner ("Geffner"), who reported, inter alia: (I) that B.D.S.

had a borderline deficit in auditory processing, with difficulties in reading accuracy,

comprehension, short-term memory, distractability, figure-ground listening, receptive and

expressive language and attentional issues, similar to those presented during Geffner's initial

evaluation ofB.D.S. in September 2004; (2) that B.D.S.'s test scores had improved in the areas

of (a) phonemic synthesis, which was above the criterion for her age, and (b) auditory

conceptualization, which continued to be below the criterion for her grade level, but only by one

(1) year as opposed to her previous test score which was below the criterion in that area by two

(2) grade levels; (3) that B.D.S.'s temporal integration was not completely developed, her

working memory was impaired and her short-term memory, word retrieval ability, auditory

comprehension and receptive language skills remained compromised; (4) that B.D.S. displayed

difficulty in the area of rapid naming; (5) that there was (a) "a significant improvement" in

B.D.S.'s expressive language, which was within the average range upon reevaluation, (b) "a

small improvement" in B.D.S.'s receptive language, (c) improvement in B.D.S.'s core language,

language content, Word Classes, semantic relationships and all expressive language tasks, i.e.,

word definitions, formulated sentences and sentence assembly, (d) "a slight decrease" in B.D.S.'s

language memory, which was still within the low average range, and (e) no improvement in

B.D.S.'s ability to understand concepts and spoken paragraphs and to follow directions; (6) that

B.D.S. had made progress and improvement through accommodations, "appropriate

intervention" and reading instruction, but continued to present with an auditory processing

disorder and receptive language disorder that contributed to her language-based learning

disability and dyslexia; (7) that B.D.S.'s scores on the Clinical Evaluation of Language

Fundamentals-Fourth Edition ("CELF-4") test placed her in the average range of functioning in

the areas of core language, receptive language, expressive language, language content and

language memory; and (8) that "[w]ith continued parental support, school accommodations, and

specific intervention programs, prognosis for continued growth [was] positive." Geffner

recommended, inter alia: (I) that B.D.S.'s classification be changed from "Learning Disabled" to

"Speech-language impaired;" (2) that the UFSD continue to provide B.D.S. with classroom and

testing accommodations and with reading instruction; (3) that B.D.S. be permitted to use a laptop

with Inspiration software in class; (4) that B.D.S. be provided (a) a personal FM ear level unit,

i.e., an auditory enhancer, (b) speech-language therapy twice a week, (c) EY services with a

reading specialist and speech-language services, (d) support services for writing and a graphic

organizer and (e) a Fast ForWord computer program; (5) that B.D.S. be permitted to take a

foreign language on a pass-fail basis; and (6) that B.D.S. 's attention in the classroom be

monitored.

Progress reports for B.D.S. during the 2005-2006 academic year indicate: (a) that as of

March 2006, B.D.S. achieved scores of seventy-two (72), eighty-eight (88) and eighty-three (83)

in English language arts subjects, seventy-three (73) in mathematics, seventy-nine (79) in social

studies and eighty-one (81) in science; and (2) that as of June 2006, B.D.S. achieved scores of

sixty-five (65), ninety (90) and ninety (90) in English language arts subjects, eighty-one (81) in

mathematics, seventy-nine (79) in social studies and seventy-eight (78) in science. In addition:

(I) Dempsey indicated that B.D.S.'s academic performance fell within the average band; and (2)

Kinahan reported that although B.D.S. was progressing in the area of reading, her decoding and

fluency skills continued to be weak and she had difficulty with comprehension and organization.

On her final report card for the 2005-2006 academic year, B.D.S. received a grade of"3"

in all areas of all subjects, indicating that her performance in all subjects met grade level

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expectations.

3. Development of B.D.S. 's IEP for the 2006-2007 Academic Year

The CSE met on March 9, 2006 to review the evaluations of Geffner and White, as well

as an assistive technology evaluation that had been completed by Tom Rosati. The meeting was

attended by B.D.S.; her parents; three (3) of plaintiffs friends, as "family support" members;

Thompson; White; Dempsey; Riddell; Mellas; Carriello; the principal of the elementary school;

and a parent member. During the meeting: (I) Dempsey reported that B.D.S. 's science skills

development and math skills testing scores were within the average range; (2) Mellas reported

that B.D.S. actively participated in social studies classes and attained average grades, although

she occasionally needed assistance to organize her thought processing and to remind her of the

techniques or compensatory skills she was learning; (3) Cariello commended B.D.S. for her

persistence of effort in reading and writing skills development; (4) White reported that B.D.S.'s

verbal abilities were within the average range, her ability to work with visual perception was

above average, her processing speed was "very good," her full scale IQ was in the average band,

her working memory was an area of weakness and her fluency and proficiency of computing

tasks was delayed; and (5) Geffner recommended that the UFSD provide B.D.S. with EY

services in a six (6)-week program at the Landmark School ("Landmark"f. The CSE approved

the following additional services for B.D.S.: (a) a personal laptop with Microsoft Office for

students including One Note; (b) an auditory enhancer, i.e., a Lightspeed Sound System in

7 Landmark is a private, not-for-profit school, located in Prides Crossing, Massachusetts, for students with average to above average IQ who have a specific language-based learning disability.

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B.D.S.'s classroom; and (c) one-to-one tutoring three (3) hours a week, to be provided as an AI

service during the summer of2006. B.D.S.'s parents did not agree with the summer AI services

being offered, as opposed to B.D.S.'s placement at Landmark for the summer, but consented to

the other additional services for B.D.S.

On April24, 2006, Kinahan reported that she did not see any regression in B.D.S. 's skills

after long school breaks; that she did not observe B.D.S. as performing significantly below grade

level; that she observed B.D.S. to be an average student; that B.D.S.'s decoding skills were "a

little weak," but she compensated well for that weakness and her comprehension was good; and

that she did not believe B.D.S. was a good candidate for Landmark because it was too restrictive

for her.

On April 26, 2006, the CSE met to discuss summer services for B.D.S following her

interview and assessment by Landmark. The meeting was attended by B.D.S., plaintiff, three (3)

of plaintiffs friends, Thompson, White, Dempsey, Riddell, Mellas, B.D.S.'s speech therapist, the

principal and a parent member. During the meeting, Mr. Hicks, who tested B.D.S. for purposes

of setting up a program for her at Landmark, reported, inter alia: (1) that B.D.S. had attained

"some very high scores," particularly on the Linda Mood auditory conceptualization test and

word attack skills test, but that her word identification was "significantly lower," and her

accuracy and fluency on oral directions was "even lower" yet; (2) that B.D.S. displayed "some

difficulty" in raw auditory memory; (3) that B.D.S. 's scores on block design and matrix

reasoning were "very strong;" and (4) that B.D.S.'s vocabulary and long term learning were

good. Thompson and White indicated that B.D.S. did not legally fit the criteria for EY services

and, thus, that any summer program at Landmark for the summer of 2006 could only be approved

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as an AI service, and Thompson also indicated that Landmark did not qualify as a legitimate

summer program for EY services under state regulations. Nonetheless, the CSE agreed to allow

S.O.S. to attend a summer program at Landmark as an AI service during the summer of2006.

(56.1 Stat.,~ 9). Plaintiff consented to the summer services being provided as an AI service,

(56.1 Stat.,~ 13), although she alleges that she and Thompson "agree[d] to disagree about the

service being delivered through the AIS budget*** [and] about [S.O.S.'s] classification, so

long a [sic] [S.O.S.] [received] the service that [met] her needs as decided at the CSE." (Amend.

Compl., ~ 6.56).

4. S.O.S.'s IEP for the 2006-2007 Academic Year

On May 26, 2006, the CSE conducted its annual review to develop S.O.S.'s IEP for the

2006-2007 academic year (her seventh grade year). (56.1 Stat.,~ 14). The meeting was attended

by S.O.S., her parents, Thompson, the UFSD psychologist, a special education teacher, Riddell,

Mellas, Dempsey, Cariello, and two (2) of plaintiff's friends. During the meeting: (I) S.O.S.

requested that she be provided with the previously-approved laptop; (2) S.O.S.'s parents reported

that the Lightspeed Sound System was not being used in S.O.S.'s classroom; (3) Kinahan

reported that S.O.S.'s comprehension and organization were improving and that S.O.S. did not

present with weakness in decoding; (4) S.O.S.'s speech therapist reported that S.O.S. continued

to present with weakness in auditory word, auditory memory, sentence memory and

interpretation of directions, but also presented in the high average range in auditory ability to use

thinking and reasoning skills to solve verbal problems and in discrimination of auditory words;

and (5) Riddell reported that S.O.S. had not had to use the extended-time testing

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accommodation. The IEP developed for B.D.S. during the annual review meeting provided for:

(I) resource room services to be increased from three (3) days in every six (6)-day cycle to daily,

commencing on September 6, 2006 until June 13, 2007; (2) use of a graphic organizer with

Inspiration software, an individual auditory enhancer and a laptop in all classes from September

6, 2006 to June 21, 2007; (3) testing accommodations; and (4) textbooks and literature books to

be provided on CD. Plaintiff agreed with the CSE's recommendations for B.D.S.'s 2006-2007

IEP, including the placement ofB.D.S. in the program at Landmark for the summer of2006 as an

AI service, and signed a consent form indicating such agreement. (56.! Stat.,~ 15).

B.D.S. attended the summer program at Landmark during the summer of 2006, which

was provided by the UFSD as an AI service. (56.! Stat., ~ I 0). At all relevant times, Landmark

was not approved by the Commissioner as a school with which the UFSD may contract to

instruct students with disabilities. (56.1 Stat.,~ 12).

On July 31, 2006, the CSE sub-committee met in order to get feedback from Landmark

regarding B.D.S.'s performance in its summer program and to ascertain "what more [the CSE]

can do for [B.D.S.] on [its] end." The meeting was attended by Thompson, White, a special

education teacher, a regular education teacher, B.D.S., B.D.S.'s parents, three (3) of plaintiffs

friends, a liaison for Landmark, the academic dean for Landmark and a case manager from

Landmark. During the meeting, Thompson, inter alia, advised: (I) that she had made it a priority

to get the previously-approved laptop to B.D.S.; that B.D.S. 's books had been ordered on CD;

and that the individual listening device would be ordered as soon as B.D.S. picked out the one

that she wanted; (2) that B.D.S. had made progress in the public school setting, had demonstrated

success on the New York State benchmark exams without having any testing modifications and

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had improved in her ability to read, although her fluency was still delayed; (3) that B.D.S. had

had a lead role in a school play and was able to memorize her lines and to speak them with "great

articulation;" and (4) that there was no indication that the more restrictive Landmark program

could be approved by the CSE or UFSD under state regulations. The CSE sub-committee

recommended continued placement in the least restrictive environment of UFSD mainstream

classes; again offered B.D.S. daily resource room services and accommodations, such as, inter

alia, use of a graphic organizer with Inspiration software program, a personal auditory enhancer,

a laptop in all regular classes, books on CD in English, science and social studies classes,

modified homework assignments and preferential seating; and additionally offered B.D.S. a daily

one-to-one tutorial period with a special education teacher and individual reading remediation

services twice a week. (56.1 Stat., '1['1[16-18, 54-56). B.D.S.'s parents did not agree with the

CSE sub-committee's recommendations and requested that B.D.S. be placed in Landmark for the

2006-2007 academic year and that the full CSE meet prior to the beginning of that school year.

(56.1 Stat., '1['1[19-20). After meeting with plaintiff, Gallagher denied her request for a full CSE

meeting to be held during the summer and advised her that he had instead instructed that a CSE

meeting be scheduled during the beginning of the academic year. (56.1 Stat., '1['1[21-22).

On August 18,2006, plaintiff requested an impartial hearing, (56.1 Stat., '1[23), alleging,

inter alia, that B.D.S. was being denied an FAPE for the 2006-2007 academic year and seeking

pendency placement for B.D.S. at Landmark and reimbursement for B.D.S. 's tuition at

Landmark. (56.1 Stat., '1['1[28-29). By letter dated August 25,2006, plaintiff was notified that a

full CSE meeting had been scheduled, in accordance with Gallagher's instructions, for

September 11,2006. (56.1 Stat., '1[24). By letter dated September 8, 2006, plaintiff requested

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that the CSE meeting be cancelled because she had filed a request for an impartial hearing. (56.1

Stat., ~ 25).

B.D.S. attended Landmark during the 2006-2007 academic year (her seventh grade year)

and her parents paid the tuition therefor. (56.1 Stat.,~~ 26-27).

An eight (8) day hearing was conducted before IHO Michael Lazan ("IHO Lazan")

between October 23, 2006 and April27, 2007, during which, inter alia: (1) Dempsey testified

that B.D.S. "fell within the average range," performed in the average band, i.e., in the mid-

seventies to low eighties, in her mainstream science and math classes, and was an average

student academically, (56.1 Stat.,~~ 30-32); (2) Mellas testified that B.D.S. was "fairly

proficient," performed as well as most of the other students and was an average performer in

social studies class, i.e., averaging test scores in the high seventies to low eighties range, (56.1

Stat.,~~ 34-35); (3) Cariello testified that B.D.S. was in the average band in reading and in the

low average band for written language and overall language skills as compared to her peers in the

class, that B.D.S. had accomplished all of the sixth grade material and demonstrated growth

during her sixth grade year and that B.D.S. had played a lead role in the school play in 2005,

(56.1 Stat.,~~ 37-40); and (4) Riddell testified that he focused on the skills with which B.D.S.

displayed difficulty and tried to improve her study and work habits during resource room

instruction, that B.D.S. 's November 2005 cognitive and educational evaluations were

"acceptable," with the exception that her grade equivalent scores for working memory, broad

reading and reading fluency were low compared to her performance in the resource room, and

that B.D.S.'s level of effort was on line with most sixth graders. (56.1 Stat.,~~ 41-44). In

addition, evidence was presented during the hearing that B.D.S. was liked by her peers; did not

exhibit any behavioral problems; was active with extracurricular activities, including skiing and

drama; achieved an average level on the New York State English Language Arts assessment

without IEP accommodations; and performed within acceptable grade level expectations during

the 2005-2006 academic year (her sixth grade year). (56.1 Stat.,,, 45-49).

By decision dated January 19, 2007, IHO Lazan, inter alia, effectively denied plaintiffs

request for pendency at Landmark by deeming pendency to be "the resource room 5: 1 program

agreed to and implemented from the May II, 2005 IEP." IHO Lazan found, inter alia, that

B.D.S.'s placement at Landmark was "clearly temporary for the summer of2006." IHO Lazan's

January 19, 2007 decision was never appealed.

By decision dated September 5, 2007, IHO Lazan, inter alia, denied plaintiffs request for

reimbursement of B.D.S. 's tuition at Landmark for the 2006-2007 academic year, finding, inter

alia: (I) that B.D.S. had attained passing grades in all of her subjects and had largely performed

in the average band during the 2005-2006 academic year at the UFSD; (2) that test results

showed that B.D.S. had achieved "significant progress" in certain areas, including semantic

relationships, word definitions, formulated sentences, sentence assembly, Word Classes I and 2,

Word Classes receptive ability and Word Classes expressive ability; (3) that the special education

program and services offered by the UFSD for B.D.S. for the 2006-2007 academic year were

very similar to the program and services she had during the 2005-2006 academic year, with

which she had progressed, and, thus, "would have been likely to produce progress for 2006-

2007;" and (4) that although the UFSD had committed certain procedural violations, B.D.S.'s

parents had failed to show how those violations significantly impacted B.D.S.'s FAPE. (56.1

Stat.,,, 57-59).

On October 13, 2007, plaintiff petitioned for review ofiHO Lazan's September 5, 2007

decision by the NYSED State Review Office pursuant to 20 U.S.C. § 1415(g). By decision dated

January 2, 2008, state review officer ("SRO") Kelly dismissed the appeal ofiHO Lazan's

September 5, 2007 decision, finding, inter alia: (I) that the hearing record supported IHO

Lazan's determinations (a) that B.D.S.'s parents had failed to show how the procedural violations

by the UFSD had significantly impacted B.D.S.'s FAPE and (b) that the UFSD had offered

B.D.S. a FAPE for the 2006-2007 academic year; and (2) that since there was no basis in the

record to conclude that B.D.S. required a full-time special education program in order to meet

her needs, placement at Landmark would have been overly restrictive for B.D.S. (56.1 Stat., 11

60-62).

5. Facts Pertaining to Services for the Summer of2007

On June 15, 2007, the CSE met via teleconference to conduct B.D.S.'s annual review and

to prepare her IEP for the 2007-2008 academic year (her eighth grade year). (56.1 Stat., 11 67,

71). The meeting was attended by Thompson, White, Butta, Cahill, a parent member, three (3)

of plaintiffs friends, plaintiff, B.D.S., the school liaison for Landmark, a case manager for

Landmark, and five (5) teachers from Landmark. Before the meeting, Landmark had provided

the CSE with a student report, dated January 12, 2007, which included progress reports prepared

by B.D.S. 's teachers at Landmark during the 2006-2007 academic year, a draft IEP prepared by

Landmark staff, results of tests that had been administered by Landmark and samples of work

that had been completed by B.D.S. while attending Landmark. (56.1 Stat., 1 68). During the

meeting: (I) the CSE reviewed Landmark's draft IEP; (2) Landmark staff advised the CSE that

B.D.s's test scores had improved in the areas of word attack, word identification, reading rate,

reading accuracy and reading fluency when compared to her test scores in 2006; (3) the CSE

reviewed B.D.S.'s test scores, which reflected improvement in the areas of reading vocabulary,

reading comprehension, math problem solving, math procedures and spelling; and (4) the liaison

for Landmark recommended that B.D.S. (a) receive EY services at Landmark for the summer of

2007 and (b) attend Landmark during the 2007-2008 academic year. (56.1 Stat.,~~ 73, 74, 77).

Both plaintiff and B.D.S. contributed significantly to the information provided during the

meeting. (56.1 Stat.,~ 76). Thompson: (I) advised the CSE that based upon the information

presented during the meeting, B.D.S. 's needs could be met within the UFSD and, therefore, the

recommendation was for B.D.S. to return to the UFSD; and (2) explained that B.D.S. 's test

scores (a) did not support an out-of-state placement, (b) supported a public school placement as

B.D.S.'s least restrictive environment and (c) did not support EY services during the summer of

2007 because there was no evidence of regression. (56.1 Stat.,~ 78-81, 91). The CSE

recommended that B.D.S.: (1) be placed in the UFSD's inclusion classes with accommodations,

including Kurtzweil software on her laptop, use of a graphic organizer with Inspiration software

and use of an individual auditory enhancer; and (2) receive (a) daily one-on-one tutoring with a

certified reading teacher and daily resource room support during the 2007-2008 academic year'

and (b) reading remediation as an AI service for three (3) hours a week for eight (8) weeks during

the summer of2007. (56.1 Stat.,~~ 75, 82, 91).

On July 16, 2007, B.D.S., plaintiff, three (3) of plaintiffs friends and Thompson attended

8 The IEP for B.D.S. for the 2007-2008 academic year (eighth grade) is not at issue in this case.

a resolution meeting regarding the summer services being offered by the UFSD for B.D.S. At the

meeting, Thompson indicated, inter alia: (1) that B.D.S. had been approved to receive reading

remedial services three (3) times a week for eight (8) weeks with a qualified reading instructor

over the summer of 2007, but did not qualifY for EY services because there was no history of

regression; (2) that the IEP developed during the June 15, 2007 meeting transposed all of the

goals from Landmark's draft IEP but was for services to be provided within the UFSD from

September 5, 2007 to June 17, 2008; (3) that the UFSD would approve a neuropsychological

evaluation ofB.D.S., following which plaintiff could request an independent neuropsychological

evaluation if she did not agree with the results; and (4) that the UFSD would approve an

independent evaluation ofB.D.S. for auditory processing disorder and speech by Dr. Geffner.

Plaintiff agreed with the additional evaluations but not with the summer services being offered

and requested that another CSE meeting be scheduled to discuss the issue of whether B.D.S.

qualified for EY services.

On June 22, 2007, plaintiff filed a due process complaint relating to the services to be

provided to B.D.S. during the summer of2007 and seeking pendency placement for B.D.S. at

Landmark. On August 13, 2007, plaintiff amended her due process complaint to seek

reimbursement for ninety (90) hours of compensatory services in lieu of pendency placement at

Landmark, since B.D.S. had not attended a summer program at either the UFSD or Landmark

during the summer 2007. (56.1 Stat.,~~ 63-66).

On June 28, 2007, IHO Susan Lushing ("IHO Lushing") denied plaintiff's request for

pendency at Landmark during the summer of 2007, which plaintiff appealed to the NY SED. By

decision dated September 19, 2007, SRO Kelly dismissed plaintiff's appeal.

Between August 22, 2007 and September 27, 2007, a four (4) day hearing was held

before IHO Lushing relating to the services offered to B.D.S. for the summer of2007. (56.1

Stat.,~ 84). During the hearing, inter alia, Riddell, Mellas and Dempsey all testified that they

saw little or no regression in B.D.S.'s skills after she returned from long school breaks; Nobile

explained that her testing ofB.D.S. in 2004, near the beginning of the academic year, presented a

student whose regression was within normal limits; and evidence was presented of testing

performed by Landmark in September 2007 which did not support Landmark's expectation of

regression in B.D.S.'s skills. (56.1 Stat.,~~ 85-89).

By decision dated November 11,2007, IHO Lushing: (1) found, inter alia: (a) that the

UFSD correctly determined that B.D.S. did not meet the definition to qualify for EY services,

and (b) that even though B.D.S. had not attended swnmer services at the UFSD, her parents had

established that such services would have been "uncertain at best and possibly unavailable" and,

therefore, had plaintiff placed B.D.S. in the Landmark program during the summer of2007, IHO

Lushing would have ordered the UFSD to reimburse her tuition therefor; and (2) awarded B.D.S.

twenty-four (24) hours of supplementary one-to-one remedial tutoring at Landmark, not to

exceed two thousand four hundred dollars ($2,400.00), as compensatory services. (56.1 Stat.,~~

92-94).

In or about December 2007 or January 2008, the UFSD petitioned the NYSED for review

of so much ofiHO Lushing's November 11,2007 decision as awarded plaintiff compensatory

services. (56.1 Stat.,~ 95). By decision dated February 8, 2008, SRO Kelly sustained the appeal

and annulled IHO Lushing's decision, finding, inter alia: (1) that plaintiff had not sustained her

burden of establishing that the AI services offered by the UFSD for the swnmer of 2007 were not

appropriate; (2) that the record showed that the UFSD had historically offered and provided

summer services to both its regular education and special education students, including B.D.S.;

(3) that the UFSD had offered the AI services referred to in B.D.S.'s IEP during the summer of

2007 but B.D.S. had not availed herself of those services; and (4) that the IHO had improperly

awarded compensatory services absent any determination that B.D.S. had been denied an FAPE

by the UFSD. (56.1 Stat.,~~ 96-99).

B. Procedural History

On April 1, 2008, plaintiff, individually and on behalf of B.D.S., commenced an action

against the UFSD defendants, Kelly and Ingerman Smith, alleging, inter alia, violations of the

IDEA, the Rehabilitation Act, Sections 1983 and 1985, the ADA, the New York Education Law

and the New York Constitution. On May 8, 2008, plaintiff, individually and on behalf of B.D.S.,

commenced a second action against the same defendants, the additional UFSD defendants and

the NYSED. Thereafter, lngerman Smith and Kelly moved, inter alia, pursuant to Rule 12 of the

Federal Rules of Civil Procedure to dismiss the amended complaints filed in both actions as

against them.

By order entered June 26, 2009, this Court, inter alia: (a) consolidated Actions No. 1 and

2; (b) denied, inter alia, the branches oflngerman Smith's motion seeking dismissal of the

amended complaints pursuant to Rule 12(b)(l) of the Federal Rules of Civil Procedure; (c)

dismissed plaintiffs Section 1983, Section 1985 and state law claims as against Ingerman Smith

without prejudice pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to

state a claim, and sua sponte dismissed plaintiffs Section 1985 claims as against all other

defendants without prejudice for failure to state a claim; (d) dismissed plaintiffs ADA and

Rehabilitation Law claims as against Ingerman Smith, Kelly and all individual defendants with

prejudice for failure to state a claim; (e) dismissed plaintiff's claims as against Kelly with

prejudice, but granted her leave to amend the pleadings to assert a claim seeking a declaratory

judgment based upon any ongoing violation of federal law by Kelly; (f) sua sponte dismissed

plaintiffs ADA claims in both actions, and her Rehabilitation Act claim in Action No. 2, as

against the UFSD and NYSED without prejudice; and (g) directed plaintiff to retain counsel or

move for the appointment of counsel on behalf of B.D.S. within thirty (30) days or all claims

asserted on behalfofB.D.S. would be dismissed in their entirety without prejudice.

On July 22, 2009, Ingerman Smith filed a notice of appeal of so much of the June 26,

2009 order as denied the branches of its motion seeking dismissal of plaintiffs claims against it

with prejudice as barred by the doctrines of absolute or qualified immunity. By mandate entered

December 28, 2010, the United States Court of Appeals for the Second Circuit dismissed

Ingerman Smith's appeal as not ripe for review in light of this Court's finding, undisputed by

Ingerman Smith on the appeal, that the amended complaints in both actions did not adequately

allege any conduct by Ingerman Smith sufficient to state a claim for a violation of plaintiffs

rights. B.D.S. v. Ingerman Smith L.L.P., No. 09-3177-cv (2d Cir. Oct. 22, 2010) (summary

order).

On September 21, 2009, plaintiff filed an amended complaint, which became the

operative pleading in the consolidated action, and moved for the appointment of counsel on

behalf ofB.D.S. By order entered October 2, 2009, plaintiffs motion for the appointment of

counsel was denied with leave to renew within thirty (30) days upon submission of an

24 PageID #: • <pageID>

appropriate financial affidavit and plaintiff was advised that her failure to timely renew the

motion, to secure pro bono counsel or to retain counsel on behalf of B.D.S. would result in

dismissal of the claims asserted on behalf of B.D.S. in their entirety without prejudice.

Kelly and the NYSED subsequently moved pursuant to Rules 12(b)(l) and (5) of the

Federal Rules of Civil Procedure to dismiss the amended complaint against Kelly as barred by

the doctrine of absolute immunity and against Kelly and the NYSED for improper service of

process, respectively; and Ingerman Smith moved pursuant to Rules 12(b) and (c) of the Federal

Rules of Civil Procedure to dismiss the amended complaint as against it and for judgment on the

pleadings, respectively. By order dated April26, 2011, inter alia: (1) the branches oflngerman

Smith's motion seeking judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of

Civil Procedure were granted and plaintiffs claims were dismissed in their entirety with

prejudice as against Ingerman Smith; (2) the branch of Kelly's and the NYSED's motion seeking

dismissal of plaintiffs claims against Kelly as barred by the doctrine of absolute immunity was

granted and plaintiffs claims were dismissed in their entirety with prejudice as against Kelly; (3)

the branch of Kelly's and the NYSED's motion seeking dismissal of the amended complaint

against the NY SED pursuant to Rule 12(b)( 5) for insufficient service of process was granted and

the amended complaint was dismissed in its entirety without prejudice as against the NYSED; (4)

plaintiff's Section 1985 claims were dismissed in their entirety with prejudice; and (5) all claims

asserted on behalf of B.D.S. were dismissed in their entirety without prejudice. Accordingly,

only the following claims remain in this action: (1) the Section 1983 and 1988 claims asserted by

plaintiff, individually, against the UFSD defendants and additional UFSD defendants; (2) the

IDEA, Rehabilitation Act and ADA claims asserted by plaintiff, individually, against the UFSD;

25 PageID #: • <pageID> •

and (3) Ingerman Smith's counterclaim against plaintiff.

I. The Amended Complaint in the Consolidated Action

With respect to the remaining Section 1983 claims, the amended complaint filed in the

consolidated action alleges, inter alia: (I) that Thompson, White, Butta, Cahill, Me lias, Riddell

and Dempsey denied B.D.S. her right to a FAPE by "deliberately misconstru[ing] special

education services awarded to [B.D.S.] as general education services," (first Section 1983 causes

of action9 ) (Amend. Compl., '1['1[7 .4, 8.4); (2) that the BOE defendants and Gallagher denied

B.D.S. her right to a FAPE by refusing to enact a "policy on providing AIS services to their

students," as required by the New York State Education Law, (Amend. Compl., '1['1[7.5, 8.7)

(second Section 1983 causes of action); (3) that Gallagher denied B.D.S. her right to a FAPE by

"misusing his authority" to recommend that the BOE defendants approve her "special education

services as AIS services in addition to the hiring of outside providers for [B.D.S.'s] so called

[sic] 'AIS' services," (third Section 1983 causes of action) (Amend. Compl., '1['1[7.6, 8.9); and (4)

that the UFSD's attempt "to strip [B.D.S.] of her right to special education services by disguising

them*** [as] AIS Services, is illegal." (fourth Section 1983 cause of action (Lushing))

9 Plaintiff designates two (2) causes of action as "First Cause of Action Under 42 USC § 1983," one pertaining to IHO's Lazan decision, (Amend. Compl., '1[7.4), and one pertaining to IHO Lushing's decision, (Amend. Compl., '1[8.4). The two (2) causes of action are essentially identical, with the exception that the one pertaining to IHO Lazan's decision is asserted against Thompson, White and Dempsey only, whereas the cause of action pertaining to IHO Lushing's decision is asserted against Butta, Cahill, Mellas and Riddell as well. Similarly, plaintiff asserts two (2) Section 1983 causes of action designated as "Second," "Third," "Fifth" and "Sixth," respectively, (Amend. Compl., '1['1[7.5-7.6, 7.11-7.16, 8.7-8.8, 8.14-8.20), but those duplicate causes of action are virtually identical, in relevant part. Accordingly, there is no need to distinguish between those causes of action.

(Amend. Compl. ~ 8.12). In addition, plaintiff alleges, inter alia: (1) that the UFSD violated the

IDEA by, inter alia: (a) failing to properly evaluate B.D.S. or to develop an appropriate IEP; and

(b) denying to fund the private school educational services B.D.S. needed at Landmark, (Amend.

Compl., ~~ 11.06-11.14; 12.6-12.14); and (2) that the UFSD retaliated against plaintiff in

violation of the Rehabilitation Act and the ADA, inter alia: (a) by rejecting, "for the first time

ever," a CSE's recommendation, i.e., placement at Landmark for the 2008-2009 academic year

and EY services for B.D.S.'s sibling; (b) by hiring Kollmar, an outside contractor, to conduct

B.D.S.'s CSE meetings; and (c) as a result of public comments made by Gallagher about plaintiff

and her family, (Amend. Compl., ~~ 13.2-14.1).

Plaintiff seeks: (1) judgment declaring (a) that the UFSD denied B.D.S. a FAPE for the

2006-2007 academic year and the summer of2007, (b) that B.D.S. "is entitled to educational

services to compensate for her loss of educational opportunity caused by the [UFSD' s] failure to

provide her appropriate programming and services from September 2006" through August 30,

2007, and (c) that B.D.S. "has derived meaningful educational benefit from the special education

services she has received at Landmark School;" (2) reimbursement (a) "for all costs of[B.D.S.'s]

lost [sic] of Educational services, educational opportunity and documented regression" and (b)

"for all costs of[B.D.S.'s] placement at Landmark School,***," for the academic years***

2006-2007, and the summer of2007; and (3) costs and attorney's fees on this action and the

administrative proceedings pursuant to 20 U.S.C. § 1415(i)(3)(B). (Amend. Compl., pp. 79-80).

Defendants now move pursuant to Rule 56 of the Federal Rules of Civil Procedure for

summary judgment dismissing plaintiff's remaining claims in their entirety. Plaintiff has failed

to timely oppose the motion.

II. Discussion

A. Rehabilitation Act, ADA and Section 1983 Claims

1. Standard of Review

Summary judgment should not be granted unless "the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(c).

In ruling on a summary judgment motion, the district court must first "determine whether

there is a genuine dispute as to a material fact, raising an issue for trial." McCarthy v. Dun &

Bradstreet Com., 482 F .3d 184, 202 (2d Cir. 2007) (internal quotations and citations omitted);

see Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009) (holding

that"[o]n a motion for summary judgment, facts must be viewed in the light most favorable to the

nonmoving party only if there is a 'genuine' dispute as to those facts." (Emphasis added)

(internal quotations and citation omitted)). "A fact is material if it 'might affect the outcome of

the suit under governing law."' Spinelli v. City ofNew York, 579 F.3d 160, 166 (2d Cir. 2009)

(quoting Anderson v. Libertv Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202

(1986)); see also Rojas v. Roman Catholic Diocese ofRochester, 660 F.3d 98, 104 (2d Cir.

2011), cert. denied, 132 S. Ct. 1744 (2012) (accord). "Where the undisputed facts reveal that

there is an absence of sufficient proof as to one essential element of a claim, any factual disputes

with respect to other elements become immaterial and cannot defeat a motion for summary

judgment." Chandok v. Klessig, 632 F.3d 803, 812 (2d Cir. 2011); see also Celotex Com. v.

Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986) (holding that summary

judgment is appropriate when the non-moving party has no evidentiary support for an essential

element for which it bears the burden of proof).

If the district court determines that there is a genuine dispute as to a material fact, the

court must then "resolve all ambiguities, and credit all factual inferences that could rationally be

drawn, in favor of the party opposing summary judgment," Spinelli, 579 F.3d at 166 (internal

quotations and citation omitted), to determine whether there is a genuine issue for trial. See

Ricci, 557 U.S. 557, 129 S.Ct. at 2677. "An issue is 'genuine' if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party." Rojas, 660 F .3d at I 04 (quoting

Anderson, 477 U.S. at 248, 106 S. Ct. 2505); see also Beyer v. Countv of Nassau, 524 F.3d 160,

163 (2d Cir. 2008) (holding that a genuine issue exists for summary judgment purposes "where

the evidence is such that a reasonable jury could decide in the non-movant's favor." (citation

omitted)). "Where the record taken as a whole could not lead a rational trier of fact to find for

the nonmoving party, there is no genuine issue for trial." Ricci, 557 U.S. 557, 129 S.Ct. at 2677

(quoting Matsushita Elec. Industrial Co .. Ltd. v. Zenith Radio Com., 475 U.S. 574,587, 106

S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

"The moving party bears the initial burden of demonstrating the absence of a genuine

issue of material fact," F.D.I.C. v. Great American Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010)

(quotations and citation omitted); see also Vivenzio v. Citv ofSvracuse, 611 F.3d 98, 106 (2d

Cir. 2010) (accord), after which the burden shifts to the nonmoving party to "come forward with

specific evidence demonstrating the existence of a genuine dispute of material fact." Brown v.

Eli Lilly & Co., 654 F.3d 347,358 (2d Cir. 2011); see also Spinelli, 579 F.3d at 166. Once the

moving party meets its burden, the nonmoving party can only defeat summary judgment "by

coming forward with evidence that would be sufficient, if all reasonable inferences were drawn in

[its] favor, to establish the existence of" a factual question that must be resolved at trial. Spinelli,

579 F.3d at 166 (internal quotations and citations omitted); see also Celotex Corp., 477 U.S. at

323, 106 S.Ct. 2548. "The mere existence of a scintilla of evidence in support of the [non-

movant's] position will be insufficient; there must be evidence on which the jury could

reasonably find for the [non-movant]." Havut v. State Univ. ofN.Y., 352 F.3d 733, 743 (2d Cir.

2003) (alterations in original). "A non-moving party cannot avoid summary judgment simply by

asserting a 'metaphysical doubt as to the material facts."' Woodman v. WWOR-TV. Inc., 411

F.3d 69, 75 (2d Cir. 2005) (quoting Matsushita Elec., 475 U.S. at 586, 106 S. Ct. 1348).

Rule 56(c)(!) of the Federal Rules of Civil Procedure provides, in relevant part, that "[a]

party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A)

citing to particular parts of materials in the record * * *; or (B) showing that the materials cited

do not establish the absence or presence of a genuine dispute, or that an adverse party cannot

produce admissible evidence to support the fact." Rule 56(e) provides, in relevant part, that "[i]f

a party fails to properly support an assertion of fact or fails to properly address another party's

assertion of fact as required by Rule 56(c), the court may:*** (2) consider the fact undisputed

for purposes of the motion; [or] (3) grant summary judgment if the motion and supporting

materials- including the facts considered undisputed- show that the movant is entitled to it; * *

*." Fed. R. Civ. P. 56( e). "Rule 56(e)*** requires the nonmoving party to go beyond the

pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and

admissions on file [as well as documents, electronically stored information, stipulations and other

materials, see Fed. R. Civ. P. 56(c)(l)(A)],' designate 'specific facts showing that there is a

genuine issue for trial." Celotex Com., 477 U.S. at 324, 106 S. Ct. 2548 (emphasis added).

"Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of

evidentiary materials listed in Rule 56(c), except the mere pleadings themselves * * *," Id.

(emphasis added);~ also Fitzgerald v. Henderson, 251 F.3d 345, 360-61 (2d Cir. 2001) ("In

general, a party opposing a properly supported motion for summary judgment is not entitled to

rely solely on the allegations of her pleading, but must show that there is admissible evidence

sufficient to support a finding in her favor on the issue that is the basis for the motion."), unless

the pleadings are verified in a manner "equivalent of the oath that would be given with respect to

an affidavit," Fitzgerald, 251 F.3d at 361, and assert factual matters other than upon "information

and belief" Id. "In ruling on a motion for sununary judgment, the district court may rely on any

material that would be admissible or usable at trial." Major League Baseball Properties. Inc. v.

Salvino. Inc., 542 F .3d 290, 309 (2d Cir. 2008) (internal quotations and citations omitted). "A

party opposing summary judgment does not show the existence of a genuine issue of fact to be

tried merely by making assertions that are conclusory * * * or based on speculation." ld. at 310;

~also Brown, 654 F .3d at 358 (holding that the nonmoving party "may not rely on conclusory

allegations or unsubstantiated speculation" to defeat summary judgment).

"Rule 56.1 of the Local Civil Rules of the United States District Courts for the Southern

and Eastern Districts of New York ("Local Rule 56.1 ") requires a party moving for summary

judgment to submit a statement of the allegedly undisputed facts on which the moving party

relies, together with citation to the admissible evidence of record supporting each such fact. * * *

If the opposing party then fails to controvert a fact so set forth in the moving party's Rule 56.1

statement, that fact will be deemed admitted." Giannullo v. City ofNew York, 322 F.3d 139, 140

(2d Cir. 2003); see also Holtz v. Rockefeller & Co .. Inc., 258 F.3d 62, 73 (2d Cir. 2001) ("A

party opposing summary judgment must respond with a statement of facts as to which a triable

issue remains. See Local Rule 56.1(b). The facts set forth in a moving party's statement 'will be

deemed to be admitted unless controverted' by the opposing party's statement. Local Rule

56.l(c)."); Local Civ. R. 56.1(a)-(c). Local Civil Rule 56.1(d) requires that "[e]ach [56.1]

statement by the movant or opponent * * *, including each statement controverting any statement

of material fact, [] be followed by citation to evidence which would be admissible, set forth as

required by Fed. R. Civ. P. 56(c)." Courts may decline to "consider as disputed any statement [in

the movants' Local Rule 56.1 statement] supported by admissible evidence to which [the non-

movant] objects, but does not support with evidence, * * *, in perfect accordance with Local Rule

56.l(d), * * *." Feis v. United States, 394 Fed. Appx. 797,799 (2d Cir. Oct. 1, 2010) (summary

order) (quotations and emphasis omitted). "[A] Local Rule 56.1 statement is not itself a vehicle

for making factual assertions that are otherwise unsupported in the record." Holtz, 258 F.3d at

74. "[A]llegations ***cannot be deemed true simply by virtue of their assertion in a Local Rule

56.1 statement." Id. at 73. "[W]here there are no[] citations or where the cited materials do not

support the factual assertions in the [56.1] Statements, the Court is free to disregard the

assertion," Id. at 73-4 (quotations and citations omitted), and review the record independently.

Id. at 74.

2. Rehabilitation Act and ADA Claims

Defendants allege that the Rehabilitation Act and ADA claims set forth in plaintiffs

amended complaint must be dismissed because plaintiff failed to correct the pleading

deficiencies upon which those claims, as set forth in the original complaints, had previously been

dismissed.

In the June 26, 2009 order, plaintiffs Rehabilitation Act and ADA claims were dismissed

without prejudice on the basis that plaintiff only conclusorily referred to those statutes in the

original complaints and did not assert any specific cause of action under those statutes. See, ~

Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) ("Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do not

suffice. * * *While legal conclusions can provide the framework of a complaint, they must be

supported by factual allegations."). In order to state a claim under either statute, a plaintiff must

allege: (I) that he or she is a qualified individual with a disability; (2) that the defendants are

subject to the relevant statute; and (3) that he or she was denied the opportunity to participate in

or benefit from the defendants' services, programs or activities, or was otherwise discriminated

against by defendants, by reason of his or her disability. See Shomo v. City of New York, 579

F.3d 176, 185 (2d Cir. 2009); Harris v. Mills, 572 F.3d 66,73-74 (2d Cir. 2009).

"Under the ADA and the Rehabilitation Act, a demand for 'reasonable accommodations

to assure access to an existing program' is cognizable; but a demand for 'additional or different

substantive benefits' is not." Streck v. Board of Education of East Greenbush School District,

280 Fed. Appx. 66, 68 (2d Cir. May 30, 2008) (summary order) (quoting Wright v. Giuliani, 230

F.3d 543, 548 (2d Cir. 2000) (per curiam)); see also J.D. ex rei. J.D. v. Pawlet School District,

224 F.3d 60, 70 (2d Cir. 2000) ("[U]nder [Rehabilitation Act] regulations, a student may have a

viable discrimination claim * * * provided [he or she] establishes that he or she does not enjoy

equal access to the school's programs. * * * [T]he duty to provide a [FAPE] is not without limits.

* * * [T]he Rehabilitation Act distinguishes 'between the evenhanded treatment of qualified

handicapped persons and affirmative efforts to overcome the disabilities caused by handicaps.'

Southeastern Communitv College v. Davis, 442 U.S. 397,410,99 S. Ct. 2361,60 L.Ed.2d 980

(1979). While a federal funds recipient must offer 'reasonable' accommodations to individuals

with disabilities to ensure meaningful access to its federally funded program, § 504 [of the

Rehabilitation Act] does not mandate 'substantial' changes to its program.")

Although plaintiff was afforded the opportunity to re-plead the Rehabilitation Act and

ADA claims, she has not corrected the pleading deficiencies with respect to those claims, i.e., she

only conclusorily refers to those statutes and fails to allege, inter alia, any discrimination by

reason of disability beyond a purported failure to provide B.D.S. with an F APE, which is

insufficient to state a claim under either statute. See,~ French v. New York State Department

of Education, No. 10-4298-cv, 2011 WL 5222856, at* 4 (2d Cir. Nov. 3, 2011) (summary order)

(affirming dismissal of the plaintiff's ADA and Rehabilitation Act claims on the basis that a

violation of the IDEA, without more, is insufficient to support a claim of disability-based

discrimination under the ADA or Section 504 of the Rehabilitation Act); E.H. v. Board of

Education ofShenendehowa Central School District, 361 Fed. Appx. !56, 161 (2d Cir. Oct. 16,

2009) (summary order) (accord). Moreover, the record establishes, inter alia, that defendants

identified B.D.S. as a student with a disability and created and implemented an IEP for B.D.S.

with which she had previously shown significant progress and, therefore, that B.D.S. had been

afforded access to an existing program. See,~ Streck, 280 Fed. Appx. at 68 (finding that the

plaintiff had been afforded access to an existing program by virtue of his classification as a

student with a disability and the creation and implementation of an IEP); J.D. ex rei. J.D., 224

F.3d at 71 (finding that the School District's refusal to fund the infant plaintiff's enrollment in a

private school, without more, did not amount to discrimination where the School District had

proposed a multi-component IEP that responded to the major recommendations of the infant

plaintiff's psychologist, particularly since the Rehabilitation Act's "regulatory scheme expresses

a preference for mainstreaming students with disabilities in a school district's regular school

environment, unless that objective cannot be achieved even with the aid of supplementary

services.") Plaintiff's challenges to the contents and sufficiency of the IEP developed for B.D.S.

for the 2006-2007 academic year and summer of2007 demand "additional or different

substantive benefits" not cognizable under the Rehabilitation Act or ADA. See, lU\, Streck, 280

Fed. Appx. at 68 (affirming dismissal of the plaintiff's ADA and Rehabilitation Act claims since

he challenged only the content and sufficiency of the IEP created and implemented for him and,

thus, demanded "additional or different substantive benefits.") Neither stature "require[s] a

public school district to provide students with disabilities with potential-maximizing education,

only reasonable accommodations that give those students the same access to the benefits of a

public education as all other students." J.D. ex rel. J.D., 224 F.3d at 71. Since the record

establishes that defendants offered B.D.S. a specific program designed to address her needs

within the UFSD and that her attendance at Landmark was not necessary in order to provide her

with an FAPE, the branch of defendants' motion seeking dismissal of plaintiffs Rehabilitation

Act and ADA claims is granted and those claims are dismissed in their entirety with prejudice.

3. Section 1983 Claims

Although monetary damages are available in claims brought pursuant to Section 1983 for

the denial of procedural safeguards or access to administrative remedies under the IDEA, see

Polera v. Board of Education ofNewburgh Enlarged City School District, 288 F.3d 478,483 n. 5

(2d Cir. 2002); Quackenbush v. Johnson Citv School District, 716 F.2d 141, 148 (2d Cir. 1983),

the record does not establish that plaintiff was denied such procedural safeguards or

administrative remedies in violation of the IDEA. The IDEA provides, in relevant part, that

"[a]ny State educational agency, State agency, or local educational agency that receives

assistance under this subchapter shall establish and maintain procedures in accordance with this

section to ensure that children with disabilities and their parents are guaranteed procedural

safeguards with respect to the provision of a [FAPE] by such agencies." 20 U.S.C. § 1415(a).

The relevant procedures required by the IDEA include: (1) "[a]n opportunity for the parents of a

child with a disability to examine all records relating to such child and to participate in meetings

with respect to the identification, evaluation, and educational placement of the child, and the

provision of a [FAPE] to such child, and to obtain an independent educational evaluation of the

child;" (2) "[w]ritten prior notice to the parents of the child** *whenever the local educational

agency- (A) proposes to initiate or change; or (B) refuses to initiate or change, the identification,

evaluation, or educational placement of the child, or the provision of a [F APE] to the child;" and

(3) "[a]n opportunity for any party to present a complaint- (A) with respect to any matter relating

to the identification, evaluation, or educational placement of the child, or the provision of a

[FAPE] to such child;***." 20 U.S. C.§ 1415(b)(l), (3) and (6).

The IDEA further provides that"[w]henever a complaint has been received under

subsection (b )(6) * * *, the parents or the local educational agency involved in such complaint

shall have an opportunity for an impartial due process hearing***." 20 U.S.C. § 1415(f)(l)(A).

The IDEA requires the hearing officer to render a decision "on substantive grounds based on a

determination of whether the child received a [FAPE]," 20 U.S.C. § !415(f)(3)(E)(i), and, where

procedural violations are alleged, allows a hearing officer to "find that a child did not receive a

[FAPE] only if the procedural inadequacies- (I) impeded the child's right to a [FAPE]; (II)

significantly impeded the parents' opportunity to participate in the decisionmaking process

regarding the provision of a [F APE] to the parents' child; or (III) caused a deprivation of

educational benefits," 20 U.S.C. § 1415(f)(3)(E)(ii). "A decision made in a [due process] hearing

* * * shall be final, except that any party involved in such hearing may appeal such decision under the provisions of subsection (g) and paragraph (2)." 20 U.S.C. § 14!5(i)(l)(A).

Subsection (g) provides that "any party aggrieved by the findings and decision rendered in

[an impartial due process] hearing may appeal such findings and decision to the State educational

agency * * * [which] shall conduct an impartial review of the [hearing officer's] findings and

decision • * *." 20 U.S.C. § 1415(g). The statute requires the state review officer to "make an

independent decision upon completion of such review," 20 U.S. C. § 1415(g)(2), which "shall be

final, except that any party may bring an action under paragraph (2) [of the statute]," 20 U.S.C. §

1415(i)(l )(B).

In addition, regulations promulgated by the Commissioner provide the following

procedural due process requirements: (I) that prior written notice be given to the parents of a

student with a disability within "a reasonable time before the school district proposes to or

refuses to initiate or change the * * * educational placement of the student or the provision of a

[FAPE] to the student;" (2) that "reasonable efforts" be made to obtain the written informed

consent of the parent whenever required; (3) that written notification be provided of all CSE

meetings at least five (5) days prior to the meeting; (4) that reasonable steps be taken "to ensure

that one or both of the student's parents are present at each [CSE] meeting or are afforded the

opportunity to participate * * *;" (5) that the confidentiality of personally identifiable data,

notice prescribed by the Commissioner be used; (7) that an independent educational evaluation

be made available at public expense each time the school district conducts an evaluation with

which the parent disagrees; (8) that procedures be implemented to allow resolution of any

disputes through a voluntary mediation program; and (9) that opportunities be provided (a) to file

a due process complaint "with respect to any matter relating to the * * * educational placement of

a student with a disability, * * * or the provision of a [F APE] to such student," (b) to request an

impartial due process hearing and (c) to appeal the findings of fact and decisions of the

independent hearing officer to a state review officer of the NYSED. 8 N.Y.C.R.R. § 200.5.

Since plaintiff was afforded, inter alia: (I) meaningful opportunities (a) to discuss the

educational placement of B.D.S. and the provision of an FAPE to her, including the designation

of the services provided to B.D.S. as AI services, as opposed to EY services, and (b) to present

due process complaints relating to the educational placement of B.D.S. and the provision of an

FAPE to her; (2) impartial due process hearings, at which she raised, inter alia, the designation

of the services provided to B.D.S. as AI services; and (3) impartial review of the findings and

decisions of the IHOs by a state review officer, she was afforded substantially all of the

procedural safeguards of the IDEA and all of the process due her. Accordingly, the branch of

defendants' motion seeking dismissal of plaintiffs Section 1983 claims is granted and those

claims are dismissed in their entirety with prejudice. See,~ French, 2011 WL 5222856, at *4

(affirming dismissal of Section 1983 claim which lacked any factual basis other than the alleged

IDEA violations and the related allegation of discrimination); Streck, 280 Fed. Appx. at 68

(holding that the plaintiffs may not rely on Section 1983 to pursue monetary damages for

violations of the IDEA where they had been afforded a hearing by an IHO and review by an

SRO).

a. Monell Claim

Plaintiff has also not established a claim against the UFSD pursuant to Monell v.

Department of Social Services of City ofNew York, 436 U.S. 658, 690-1, 98 S.Ct. 2018, 56

L.Ed.2d 611 (1978).

A municipality or municipal entity cannot be held liable under Section 1983 on a

respondeat superior theory. See Monell, 436 U.S. at 691, 98 S.Ct. 2018; see also Connick v.

Thompson, 131 S.Ct. 1350, 1359, 179 L. Ed. 2d 417 (2011) (5-4 decision)(holding that under

Section 1983, governmental bodies are not vicariously liable for their employees' actions); Los

Angeles County, California v. Humphries, 131 S.Ct. 447, 452, 178 L.Ed.2d 460 (20 1O)("[A]

municipality cannot be held liable solely for the acts of others,><&, solely because it employs a

tortfeasor." (emphasis in original) (quotations and citation omitted)). Rather, "a plaintiff must

demonstrate that, through its deliberate conduct, the municipal[] [entity] was the 'moving force'

behind the alleged injury." Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008) (quoting

Board of County Commissioners ofBrvan County, Okl. v. Brown, 520 U.S. 397,404, 117 S.Ct.

1382, 137 L.Ed.2d 626 (1997)); see also Amnesty America v. Town of West Hartford, 361 F.3d

113, 125 (2d Cir. 2004) ("Demonstrating that the municipality itself caused or is implicated in

the constitutional violation is the touchstone of establishing that a municipality can be held liable

for unconstitutional actions taken by [its] employees.")

"For purposes of§ 1983, school districts are considered to be local governments and are

subject to similar liability as local governments under Monell." Kantrowitz v. Uniondale Union

Free School District, 822 F.Supp.2d 196, 217 (E.D.N.Y. 2011) (quoting Booker v. Board of

Education. Baldwinsville Central School District, 238 F.Supp.2d 469,475 (N.D.N.Y. 2002)); see

also Schreiber v. East Ramapo Central School District, 700 F.Supp.2d 529, 560 (S.D.N.Y. 2010);

Rafano v. Patchogue-Medford School District, No. 06-CV-5367, 2009 WL 789440, at* 8

(E.D.N.Y. Mar. 20, 2009). Thus, to prevail on a Section 1983 claim against a school district, a

plaintiff must show: "(1) actions taken under color oflaw; (2) deprivation of a constitutional or

statutory right; (3) causation; (4) damages; and (5) that an official policy of the [school district]

caused the constitutional injury." Roe, 542 F.3d at 36; see also Connick, 131 S.Ct. at 1359

("Plaintiffs who seek to impose liability on local governments under Section 1983 must prove

that 'action pursuant to official municipal policy' caused their injury." (quoting Monell, 436 U.S.

at 691, 98 S.Ct. 2018)); Humphries, 131 S.Ct. at 452 ("[A] municipality may be held liable when

execution of a government's policy or custom ... inflicts the injury." (emphasis in original)

(quotations and citation omitted)).

"A municipal policy may be pronounced or tacit and reflected in either action or

inaction." Cash v. County of Erie, 654 F.3d 324, 334 (2d Cir. 2011), cert. denied, 132 S. Ct.

1741 (2012). "In the latter respect, a '[school district's] policy of inaction in light of notice that

its program will cause constitutional [or statutory] violations is the functional equivalent of a

decision by the [school district] itself to violate the Constitution [or federal law]."' !d. (quoting

Connick, 131 S. Ct. at 1360).

"Official municipal policy includes the decisions of a government's lawmakers, the acts

of its policymaking officials, and practices so persistent and widespread as to practically have the

force of law." Connick, 131 S.Ct. at 1359; see also Hurdle v. Board of Education of Citv of New

York, 113 Fed. Appx. 423,424-25 (2d Cir. 2004) (summary order) ("A school district's liability

under Monell may be premised on any of three theories: (I) that a district employee was acting

pursuant to an expressly adopted official policy; (2) that a district employee was acting pursuant

to a longstanding practice or custom; or (3) that a district employee was acting as a 'final

policymaker."' (quoting Lytle v. Carl, 382 FJd 978,982 (9'h Cir. 2004) (quotations and citations

omitted))). In addition, "[i]n limited circumstances, a* * * decision not to train certain

employees about their legal duty to avoid violating citizens' rights may rise to the level of an

official government policy for purposes of Section 1983." Connick, 131 S.Ct. at 1359.

Moreover, "where a policymaking official exhibits deliberate indifference to

constitutional [or statutory] deprivations caused by subordinates, such that the official's inaction

constitutes a deliberate choice, that acquiescence may be properly thought of as a [municipal]

policy or custom that is actionable under§ 1983." Amnestv America, 361 F.3d at 126. The

deliberate indifference standard is "a stringent standard of fault," Cash, 654 F.3d at 334 (quoting

Connick, 131 S. Ct. at 1360), with "[t]he operative inquiry [being] whether th[e] facts

demonstrate that the policymaker's inaction was the result of 'conscious choice' and not 'mere

negligence.'" Id. (quoting Connick, 131 S. Ct. at 1360). "Thus, deliberate indifference may be

inferred where the need for more or better supervision to protect against constitutional [or

statutory] violations was obvious, * * * but the policymaker failed to make meaningful efforts to

address the risk of harm to plaintiffs * * *." Id. (quotations, alterations and citations omitted).

41 PageID #: • <pageID>

The basis of plaintiffs Monell claim against the UFSD is that it, acting through its

officials, "illegal[ly]" attempted "to strip [B.D.S.] of her right to special education services by

disguising them * * * [as] AIS services * * *," as opposed to EY services. (Amend. Compl., §

8.12). Plaintiff does not allege that any of the individual defendants acted pursuant to an official

policy or longstanding practice or custom or challenge the UFSD's supervision or training ofthe

individual defendants, nor does the record contain any evidence from which a reasonable jury

could find that any policymaking official of the UFSD exhibited deliberate indifference to a

known or obvious constitutional or statutory deprivation caused by a subordinate.

To the extent plaintiffs Monell claim is based upon the acts of the UFSD's final

policymakers, i.e., the BOE defendants, that claim is merely a reiteration of her IDEA claim,

insofar as she challenges only the BOE defendants' noncompliance with the IDEA, i.e., its

purported failure to enact a policy on providing AI services to its students. As noted above,

plaintiff has not established that she was denied any procedural safeguards or administrative

remedies under the IDEA with respect to such a claim. See, ~French v. New York State

Department of Education, No. 5:04-CV-434, 2010 WL 3909163, at* 11 (N.D.N.Y. Sept. 30,

2010), affd,- Fed. Appx. - , 2011 WL 5222856 (2d Cir. Nov. 3, 2011). Nor is there any basis

in the record from which a reasonable fact finder may infer: (1) that the Board of Education in

fact failed to enact a policy on providing AI services to the students within the UFSD; or (2) that

the Landmark program could have been provided to B.D.S. as anything other than AI services

absent any determination that B.D.S. qualified for EY services or that the Commissioner had ever

approved the Landmark program as an EY services program. Accordingly, the branch of

defendants' motion seeking summary judgment dismissing plaintiffs Section 1983 Monell claim

42 PageID #: • • <pageID>

is granted and plaintiffs Section 1983 Monell claim is dismissed in its entirety with prejudice.

B. IDEA Claim

1. Standard of Review

"A summary judgment approach to IDEA cases * * * is different" than in other cases.

T.Y. v. New York City Department of Education, 584 F.3d 412,418 (2d Cir. 2009), cert. denied,

130 S. Ct. 3277, 176 L. Ed.2d 1183 (2010). "Instead of dispute resolution, a motion for

summary judgment can serve as an aid to the court within a statutory scheme whose purpose is to

ensure that children with disabilities receive the educational benefits to which they are entitled."

Id.; see also T.P. ex rei. S.P. v. Mamaroneck Union Free School District, 554 F.3d 247, 252 (2d

Cir. 2009) ("Summary judgment in th[e] context [of an IDEA case] involves more than looking

into disputed issues of fact; rather it is a pragmatic procedural mechanism for reviewing

administrative decisions." (quotations and citation omitted)). "Though the court must show

deference to administrative board findings, the court is also empowered to conduct an

independent review of the record as a whole and even hear additional evidence." T.Y., 584 F.3d

at 418. With regard to the role of Rule 56.1 statements on a motion for summary judgment in an

IDEA case, the Second Circuit has held that "[a] rule 56.1 statement, while not required, may

assist the court's inquiry into whether IDEA procedures were followed and whether the result

was reasonably designed to confer educational benefits. But while a Rule 56.1 statement may

assist the court in reviewing particular issues, it is not in and of itself dispositive." T.Y., 584

F.3d at 418. 'The court's inquiry [on a motion for summary judgment] is a results-based

standard in many respects, concerned more with a just outcome for a disabled student than with

judicial efficiency." !d.

The IDEA provides, in relevant part, that"*** [a]ny party aggrieved by the findings and

decision made [by the state review officer on appeal of the findings of fact and decision of an

IHO], shall have the right to bring a civil action with respect to the [due process] complaint

presented pursuant to this section, which action may be brought * * * in a district court of the

United States, without regard to the amount in controversy." 20 U.S.C. § 1415(i)(2)(A). "In any

action brought under th[e] [IDEA], the court- (i) shall receive the records of the administrative

proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its

decision on the preponderance of the evidence, shall grant such relief as the court determines is

appropriate." 20 U.S.C. § 1415(i)(2)(C).

Nonetheless, "the role of the federal courts in reviewing state educational decisions under

the IDEA is circumscribed." Gagliardo v. Arlington Central School District, 489 F.3d 105, 112

(2d Cir. 2007) (quotations and citation omitted); ~also P. ex rei. Mr. and Mrs. P. v. Newington

Board of Education, 546 F.3d Ill, 118 (2d Cir. 2008); D.F. ex rei. N.F. v. Ramapo Central

School District, 430 F.3d 595, 598 (2d Cir. 2005) (holding that judicial review of state

administrative decisions under the IDEA is "strictly limit[ ed].") "While the district court must

base its decision on the preponderance of the evidence, it must give due weight to the

administrative proceedings, mindful that the judiciary generally lacks the specialized knowledge

and experience necessary to resolve persistent and difficult questions of educational policy."

A. C. ex rei. M.C. v. Board of Education of Chappaqua Central School District, 553 F.3d 165,

171 (2d Cir. 2009) (quotations, alterations and citations omitted); see also Board of Education of

Hendrick Hudson Central School District. Westchester County v. Rowley, 458 U.S. 176, 206,

I 02 S. Ct. 3034, 73 L. Ed. 2d 690 (1982) ("[T]he provision that a reviewing court base its

decision on the 'preponderance of the evidence' is by no means an invitation to the courts to

substitute their own notions of sound educational policy for those of the school authorities which

they review.* * *The fact that [the IDEA] requires that the reviewing court 'receive the records

of the [state] administrative proceedings' carries with it the implied requirement that due weight

shall be given to these proceedings."); P. ex rei. Mr. and Mrs. P., 546 F.3d at 118 ("Although

school officials' decisions are subject to 'independent' judicial review, the responsibility for

determining whether a challenged IEP will provide a child with an appropriate public education

rests in the first instance with administrative hearing and review officers. * * * [W]hile federal

courts do not simply rubber stamp administrative decisions, they are expected to give 'due

weight' to these proceedings* * *."(quotations and citation omitted)). "[C]ourts must be careful

to avoid imposing their view of preferable educational methods upon the States." Rowley, at

207, 102 S. Ct. 3034. "In reviewing the administrative proceedings, it is critical to recall that

IDEA's statutory scheme requires substantial deference to state administrative bodies on matters

of educational policy." Cerra v. Pawling Central School District, 427 F.3d 186, 191 (2d Cir.

2005).

The Supreme Court has held that in suits brought under the IDEA, the appropriate inquiry

is two-fold: (1) whether the State complied with the procedures set forth in the IDEA; and (2)

whether the IEP developed through the IDEA's procedures was "reasonably calculated to enable

the child to receive educational benefits." Rowley, at 206-07, I 02 S. Ct. 3034. If both of those

requirements are met, "the State has complied with the obligations imposed by Congress and the

courts can require no more." Id. at 207, 102 S. Ct. 3034.

Moreover, "[i]f a state fails in its obligation to provide a [F APE] to a handicapped child,

the parents may enroll the child in a private school and seek retroactive reimbursement for the

cost ofthe private school from the state." Frank G. v. Board of Education of Hyde Park, 459

F.3d 356, 363 (2d Cir. 2006); see also Forest Grove School District v. T.A., 557 U.S. 230, 129 S.

Ct. 2484, 2496, 174 L. Ed.2d 168 (2009) (holding that the IDEA "authorizes reimbursement for

the cost of private special-education services when a school district fails to provide a FAPE and

the private-school placement is appropriate* * * .") When a plaintiff seeks tuition

reimbursement and either the procedural requirements of the IDEA have not been met or the

school district has failed to provide the child with an FAPE, a court must also inquire into

"whether the private schooling obtained by the parents [was] appropriate to the child's needs."

T.Y., 584 F.3d at 417 (quoting Cerra, 427 F.3d at 192); see also T.P. ex rei. S.P., 554 F.3d at

252; Frank G., 459 F.3d at 363. The party commencing the administrative review bears the

burden of persuasion as to the appropriateness of the child's IEP and the private services for

which the parent is seeking reimbursement. See T.P. ex rei. S.P., 554 F.3d at 252; A.C. ex rei.

M.C., 553 F.3d at 171-72; Gagliardo, 489 F.3d at 112.

2. Substantive Violations

"By passing the [IDEA], Congress sought primarily to make public education available to

handicapped children. But in seeking to provide such access to public education, Congress did

not impose upon the States any greater substantive educational standard than would be necessary

to make such access meaningful." Rowley, 458 U.S. at 192, 102 S. Ct. 3034. The IDEA

"imposes no clear obligation upon recipient States beyond the requirement that handicapped

children receive some form of specialized education • • •." Id. at 195, I 02 S. Ct. 3034. "[T]he

requirement that a State provide specialized educational services to handicapped children

generates no additional requirement that the services so provided be sufficient to maximize each

child's potential commensurate with the opportunity provided other children." Id. at 198, 102 S.

Ct. 3034 (quotations omitted); see also Cerra, 427 F.3d at 195 ("A school district is not***

required to furnish every special service necessary to maximize each handicapped child's

potential." (quotations and citation omitted)). "Rather, Congress sought primarily to identifY and

evaluate handicapped children, and to provide them with access to a free public education."

Rowley. 458 U.S. at 200, 102 S. Ct. 3034.

Under the IDEA, an FAPE "consists of educational instruction specially designed to meet

the unique needs of the handicapped child, supported by such services as are necessary to permit

the child 'to benefit' from the instruction." Rowley, 458 U.S. at 188-89, 102 S. Ct. 3034; see

also Frank G., 459 F.3d at 363 ("A free appropriate public education must include special

education and related services tailored to meet the unique needs of a particular child, and be

reasonably calculated to enable the child to receive educational benefits." (quotations and

citations omitted)). "[S]uch instruction and services [must] be provided at public expense and

under public supervision, meet the State's educational standards, approximate the grade levels

used in the State's regular education, and comport with the child's IEP." Rowley, 458 U.S. at

189, 102 S. Ct. 3034. A child receives an FAPE "if personalized instruction is being provided

with sufficient supportive services to permit the child to benefit from the instruction, and the

other items on the definitional checklist are satisfied* * *." !d. "In addition, the IEP, and

therefore the personalized instruction, should be formulated in accordance with the requirements

of the [IDEA] and, if the child is being educated in the regular classrooms of the public education

system, should be reasonably calculated to enable the child to achieve passing marks and advance

from grade to grade." Id. at 203-04, 102 S. Ct. 3034.

The Second Circuit has held that "a school district fulfills its substantive obligations

under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the

IEP affords the student with an opportunity greater than mere trivial advancement." Cerra, 427

F.3d at 195 (quotations and citation omitted); see alsoP. ex rei. Mr. and Mrs. P., 546 F.3d at 119

("Under th[e] second 'substantive' prong of the Rowley test,* * *the door of public education

must be opened in a 'meaningful way,' and the IEP must provide the opportunity for more than

only 'trivial advancement."' (internal quotations and citations omitted)); D.F. ex rei. N.F., 430

F.3d at 598 ("A valid IEP should provide for the opportunity for more than trivial advancement*

* *, such that the door of public education is opened for a disabled child in a meaningful way."

(quotations and citations omitted)). Courts "must examine the record for objective evidence that

indicates whether the child is likely to make progress or regress under the proposed plan."

Gagliardo, 489 F.3d at 113 (quotations and citation omitted); see also Cerra, 427 F.3d at 195.

"[I]n the regular classrooms of a public school system, the achievement of passing marks and

regular advancement from grade to grade will be one important factor in determining educational

benefit." Frank G., 459 F.3d at 364 (quoting Rowley, 458 U.S. at 207 n. 28, 102 S. Ct. 3034);

see also Cerra, 427 F .3d at 196 ("[W]hen a learning-disabled child is in a mainstream class, the

attainment of passing grades and regular advancement from grade to grade will generally

constitute evidence of satisfactory progress." (quotations and citation omitted)).

"Moreover, there is a strong preference for children with disabilities to be educated, to the

maximum extent appropriate, together with their non-disabled peers." A. C. ex rei. M.C., 553

F.3d at 173 (quotations and citation omitted); see also Rowley, 458 U.S. at 202, 102 S. Ct. 30304

(holding that the IDEA "requires participating States to educate handicapped children with

nonhandicapped children whenever possible."); 8 N.Y.C.R.R. § 200.2(b) ("Each board of

education * * * shall adopt written policy that establishes administrative practices and

procedures: ( 1) to ensure that students with disabilities residing in the district have the

opportunity to participate in school district programs to the maximum extent appropriate to the

needs of the student * * * [and] (4) to provide special services or programs, to the extent

appropriate to the needs of the student, to enable the student to be involved in and progress in the

general education curriculum.") "Educating a handicapped child in a regular education

classroom ... is familiarly known as 'mainstreaming' ." P. ex rei. Mr. and Mrs. P., 546 F.3d at

119 (quotations and citation omitted). Mainstreaming is inappropriate, however, "where the

nature or severity of the handicap is such that education in regular classes cannot be achieved

satisfactorily." Id. (quotations and citation omitted). In determining whether an IEP places a

student in the least restrictive enviromnent, courts should consider: (1) "whether education in the

regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily

for a given child, and, [2] if not, then whether the school has mainstreamed the child to the

maximum extent appropriate." Id. (quotations and citations omitted). With respect to the first

prong, the following factors are relevant: "(1) whether the school district has made reasonable

efforts to accommodate the child in a regular classroom; (2) the educational benefits available to

the child in a regular class, with appropriate supplementary aids and services, as compared to the

benefits provided in a special education class; and (3) the possible negative effects of the

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inclusion of the child on the education of the other students in the class." Id. at 120.

Nonetheless, "this list of factors is not exhaustive; [and] courts * * • must engage in an

individualized and fact-specific inquiry into the nature of the student's condition and the school's

particular efforts to accommodate it, ever mindful of the IDEA's purpose of educating children

with disabilities 'to the maximum extent appropriate' together with their non-disabled peers." Id.

(quotations and citation omitted).

"Because administrative agencies have special expertise in making judgments concerning

student progress, deference is particularly important when assessing an IEP's substantive

adequacy." Cerra, 427 F.3d at 195; see also Frank G., 459 F.3d at 367 ("[A]n assessment of

educational progress is a type of judgment for which the district court should defer to the SRO' s

educational experience, particularly where ... the district court's decision was based solely on the

record that was before the SRO." (quotations and citation omitted)). "If the SRO's decision

conflicts with the earlier decision of the IHO, the IHO's decision 'may be afforded diminished

weight."' A. C. ex rei. M.C., 553 F.3d at 171 (quoting Gagliardo, 489 F.3d at 113 n. 2). Courts

must '"defer to the final decision of the state authorities,' even where 'the reviewing authority

disagrees with the hearing officer."' Id. (quoting Karl ex rei. Karl v. Board of Education of

Geneseo Central School District, 736 F.2d 873, 877 (1984)).

IHO Lazan's and SRO Kelly's findings of fact and decisions were well-reasoned and

thorough and, therefore, deserve deference. 10 See, SWk T.P. ex rei. S.P., 554 F.3d at 254; P., 546

F.3d at 118 ("Deference is particularly appropriate when ... the state hearing officers' review has

10 Since IHO Lushing's decision conflicts with SRO Kelly's decision, IHO Lushing's decision is afforded diminished weight. See A.C. ex rei. M.C., 553 F.3d at 171.

50 PageID #: .. ,.; .. <pageID>

been thorough and careful." (quotations and citation omitted)); Cerra, 427 F.3d at 196 (accord).

Moreover, there is objective evidence in the record indicating: (I) that B.D.S. was likely to

progress with the programs and services being offered within the UFSD by the CSE during the

2006-2007 academic year; (2) that the UFSD's recommendations were in accordance with the

strong policy preference to educate students in the least restrictive enviromnent appropriate to the

student's needs and abilities; and (3) that B.D.S. did not qualify for EY services during the

surmner of 2007. The IEP for B.D.S. for the 2006-2007 academic year included daily resource

room services, a daily one-to-one tutorial period with a special education teacher, individual

reading remediation services twice a week and assistive technology and testing accommodations,

such as a graphic organizer, Inspiration software program, preferential seating, a personal

auditory enhancer and a laptop. Those special education services and supports being offered to

B.D.S. within the UFSD were tailored to meet B.D.S.'s specific needs and were essentially

similar, or more, than the services that had been provided to her during the previous academic

year and from which B.D.S. had received significant educational benefit. Specifically, B.D.S.

had performed at or above grade level in almost every area tested and had met grade level

standards, advancing a grade each academic year, with the special education programs and

services previously provided to her. Accordingly, the services and programs being offered to

B.D.S., which increased the services previously provided to B.D.S. by increasing the frequency

of the resource room component and adding one daily period of individual tutoring by a special

education teacher, were likely to produce continued non-trivial progress during the 2006-2007

academic year and, thus, did not deprive B.D.S. of an FAPE. See,~ S.H. ex rei. W.H. v.

Eastchester Union Free School District, 10-cv-3927, 2011 WL 6108523, at • 10 (S.D.N.Y. Dec.

51 '" .. <pageID>

8, 2011) ("Although past progress is not dispositive, it does strongly suggest that an IEP modeled

on a prior one that generated some progress was reasonably calculated to continue that trend."

(quotations and citations omitted)).

With respect to summer of2007, B.D.S. did not qualifY for EY services, insofar as there

is nothing in the record indicating that she experienced any substantial regression during

extended school breaks. In any event, plaintiffs failure to appeal IHO Lazan's January 19, 2007

decision finding that B.D.S. was not entitled to EY services and that her placement at Landmark

during the summer of 2006 was "clearly temporary" precludes judicial review of that issue,

absent any indication that pursuing an appeal before the SRO would have been futile. See, ~

Coleman v. Newburgh Enlarged Citv School District, 503 F.3d 198,204-05 (2d Cir. 2007); J.S.

ex. rei. N.S. v. Attica Central Schools, 386 F. 3d 107, 112 (2d Cir. 2004).

In sum, there is no apparent reason to second guess the reasonable determinations ofiHO

Lazan and the SRO: (I) that the UFSD had provided B.D.S. with an FAPE for the 2006-2007

academic year; and (2) that B.D.S. was not entitled to EY services at Landmark during the

summer of2007.

3. Procedural Violations

Not "every procedural error in the development of an IEP renders that IEP legally

inadequate under the IDEA." A. C. ex rei. M.C., 553 F.3d at 172. "Rather, a procedural flaw

necessitates a finding that a child was denied his or her right to a [FAPE] only if it results in the

loss of an educational opportunity or seriously infringes the parents' opportunity to participate in

formulating the IEP." J.G. ex rei. N.G. v. Kiryas Joel Union Free School District, 777 F.Supp.2d

52 PageID #: - .. . <pageID>

606, 638 (S.D.N.Y. 2011); see also Matrejek v. Brewster Central School District, 471 F.Supp.2d

415,419 (S.D.N.Y. 2007), affd, 293 Fed. Appx. 20 (2d Cir. 2008) ("Only procedural

irregularities that cause substantive hann-meaning that they individually or cumulatively result in

the loss of educational opportunity or seriously infringe on a parent's participation in the creation

or formulation of the IEP-constitute a denial of a FAPE. "). In considering whether a school

district satisfied the procedural requirements of the IDEA, courts must "focus on whether the

[parents] had an adequate opportunity to participate in the development of[the] IEP." T.P. ex

rei. S.P., 554 F.3d at 253 (alterations in original) (quoting Cerra, 427 F.3d at 192). "Parental

participation requires an opportunity to examine records, participate in meetings, and to obtain an

independent evaluation." T.L. ex rei. B.L. v. Department of Education ofCitv of New York, No.

10-CV-3125, 2012 WL 1107652, at* 14 (E.D.N.Y. Mar. 30, 2012) (quoting Z.D. v. Niskavuna

Central School District, No, 06-CV -1190, 2009 WL 1748794, at* 3 (N.D.N.Y. June 19, 2009)).

Plaintiff actively and meaningfully participated in the IEP process, had considerable input

into the services and programs to be provided to B.D.S. for the 2006-2007 academic year and

summer of 2007, obtained independent evaluations and was afforded the opportunity to examine

all relevant records. The IEP from the May 26, 2006 annual CSE meeting, to which B.D.S.'s

parents had consented, was provided to plaintiff in advance of the July 31, 2006 meeting, which

was held to determine whether any adjustments should be made to the programs provided in the

IEP following B.D.S. 's attendance at Landmark's summer program during the summer of2006.

Thus, plaintiff was afforded meaningful opportunity to review B.D.S. 's IEP for the 2006-2007

academic year, including the goals and objectives contained therein, and to raise objections and

questions to the IEP. Notwithstanding that defendants offered to provide B.D.S. with the same,

53 - -----------

or more, services and programs during the 2006-2007 academic year from which she had

previously received educational benefit, plaintiff enrolled B.D.S. in Landmark. Plaintiff's

"actions suggest that [she] seek[s] a 'veto' over school choice, rather than 'input'- a power the

IDEA clearly does not grant [her]." T.Y., 584 F.3d at 420.

Moreover, services for B.D.S. for the summer of 2007 were discussed during the annual

CSE meeting held on June 15,2007, at which plaintiff actively participated, and B.D.S. was

offered reading remediation three (3) hours per week for eight (8) weeks as an AI service during

the summer of2007, of which she failed to avail herself. Accordingly, any procedural

irregularities during the development of the IEP or summer program were not significant enough

to have rendered them legally inadequate. See,~ R.R. ex rei. M.R. v. Scarsdale Union Free

School District, 615 F.Supp.2d 283,292 (S.D.N.Y. 2009), aff'd, 366 Fed. Appx. 239 (2d Cir.

2010); T.L. ex rei. B.L., 2012 WL 1107652, at* 14; S.H. ex rei. W.H., 2011 WL 6108523, at*

Since B.D.S. 's IEP for the 2006-2007 academic year was not procedurally flawed or

substantively deficient, and she did not qualify for EY services during the summer of2007, the

branch of defendants' motion seeking summary judgment dismissing plaintiff's IDEA claims

against the UFSD is granted and plaintiff's IDEA claims are dismissed in their entirety with

prejudice."

11 In light of this determination, it is not necessary to consider the appropriateness of plaintiff's unilateral placement ofB.D.S. at Landmark. See,~ T.P. ex rei. S.P., 554 FJd at 254; A.C. ex rei. M.C., 553 FJd at 173.

III. Conclusion

For the reasons stated herein, defendants' motion for summary judgment pursuant to Rule

56 of the Federal Rules of Civil Procedure is granted and all of plaintiff's remaining claims in

this action are dismissed with prejudice. The Clerk of the Court is directed to enter judgment in

favor of defendants and against plaintiff on all of the claims in the amended complaint.

Ingerman Smith is directed to advise the Court in writing, on or before May 23, 2012,

whether it intends to prosecute its counterclaim against plaintiff, which is the only unresolved

claim in this action, or its counterclaim will be dismissed with prejudice for failure to prosecute

pursuant to Rule 41 (b) of the Federal Rules of Civil Procedure.

The Clerk of the Court is directed to service notice of entry of this Order on all parties in

accordance with Rule 77( d)(!) of the Federal Rules of Civil Procedure, including mailing a copy

of the Order to the prose plaintiff at her last known address, see Fed. R. Civ. P. 5(b)(2)(C).

SO ORDERED. s/ Sandra J. Feuerstein SANDRA J. FEUERSTEIN United States District Judge

Dated: May 9, 2012 Central Islip, N.Y.

B.D.S et al. v. Southold Union Free School District et al.