UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------X JENN-CHING LUO,
Plaintiff,
-against- MEMORANDUM AND ORDER 10-CV-1985 (JS)(AKT) BALDWIN UNION FREE SCHOOL DISTRICT, MICHELLE GALLO, SHERRISSE MARTIN, SUSAN M. GIBSON and JOHN M. SUOZZI,
Defendants. --------------------------------------X Appearances: For Plaintiff: Jenn-Ching Luo, pro se 830 Hastings Street Baldwin, NY 11510
For Defendants Jeltje DeJong, Esq. Baldwin UFSD, Kelly E. Wright, Esq. Michelle Gallo, Devitt Spellman Barrett, LLP and Sherrisse 50 Route 111 Martin: Smithtown, NY 11787
Susan M. Gibson: Ralph A. Catalano, Esq. Catalano, Gallardo & Petropoulos, LLP 1565 Franklin Avenue Mineola, NY 11501
John M. Suozzi: Jonathan R. Hammerman, Esq. Kaufman, Borgeest & Ryan LLP 1305 Franklin Avenue Garden City, NY 11530
Dennis John Dozis, Esq. Kaufman, Borgeest & Ryan LLP 120 Broadway, 14th Floor New York, NY 10271
SEYBERT, District Judge:
Pro se Plaintiff Jenn-Ching Luo brought this action to
redress perceived infirmities in the way Defendant Baldwin Union
Free School District (the “District”) and several individual
defendants addressed the educational needs of Plaintiff’s
disabled child, B.L. The Defendants are the District, Michelle
Gallo, Sherrisse Martin, Susan Gibson and John Suozzi, Ph.D;
Plaintiff asserts violations of the Individuals with
Disabilities Education Act (“IDEA”) and Section 1983 of Title 42
of the United States Code (“Section 1983”), as well as several
state law claims.
Pending before the Court are Gibson’s and Suozzi’s
motions to dismiss the Complaint pursuant to Federal Rule of
Civil Procedure 12(b).1 Also pending before the Court is
Plaintiff’s letter motion to amend the caption of this
litigation.
For the reasons that follow, Plaintiff’s motion to
amend the caption is GRANTED insofar as the Court will construe
the Complaint as asserting only Plaintiff’s own claims, not
claims on behalf of B.L. Gibson’s motion to dismiss the
Complaint is GRANTED. Suozzi’s motion to dismiss is GRANTED IN
PART AND DENIED IN PART.
1 Gibson has also moved for judgment on the pleadings pursuant to Rule 12(c). As Gibson has not yet answered, that motion is DENIED as premature. See Taylor v. City of New York, 953 F. Supp. 95, 97 (S.D.N.Y. 1997).
2
BACKGROUND
The following facts are taken from the Complaint and
are presumed to be true for the purpose of this Memorandum and
Order.
I. The Parties
Plaintiff is the parent of B.L., an autistic child
residing in the District. (Compl. ¶ 13.)
Defendant Michelle Gallo was the District’s director
of pupil services. (Compl. ¶ 15.) Defendant Sherrisse Martin
was the assistant director of pupil services. (Compl. ¶ 16.)
Defendant Susan Gibson is an attorney who represented
the District at a due process hearing concerning B.L.’s
Individualized Education Plan (“IEP”). Gibson also served as a
counselor to the District, providing legal advice in connection
with Plaintiff’s dispute over B.L.’s education. (Compl. ¶ 17.)
Defendant John M. Suozzi, Ph.D, is a licensed
psychologist. He maintains a private practice, and he was hired
as a consultant to evaluate B.L. (Compl. ¶ 18.) As the Court
will explain, this psychological evaluation, and Suozzi’s report
thereof, allegedly loomed large in the development of B.L.’s
IEP.
II. Plaintiff’s Dispute with the District
B.L. has received home instruction as part of his IEP
3
since he was in pre-school. (Compl. ¶ 65.) As near as the
Court can determine, this lawsuit stems from the District’s
attempt to modify B.L.’s IEP by removing or limiting the home
instruction component and replacing or supplementing it with
“parent skills” classes whereby Plaintiff can learn certain
techniques that he could use at home to accelerate B.L.’s
development. (See Compl. ¶¶ 67-68, 72.)
A. The District’s “Hitman Practice”
Plaintiff alleges that the District follows what he
calls “hitman practice” when determining the appropriate level
of services it must provide to disabled students. Pursuant to
this practice, school districts attempt to end-around the IEP
development process by paying an ostensibly disinterested
consultant to write a “recommendation” for a child’s educational
program that is nothing more than a dressed-up version of what
type of program best suits the school. (Compl. ¶¶ 64-76.) The
“hitman” has little or no knowledge of a particular student’s
circumstances, and instead recites the school’s desired outcome,
couched as a recommendation. (See Compl. ¶¶ 78-79.) Plaintiff
does not say so explicitly, but the school district’s motive for
such a tactic appears to be financial; the district can save
money if its consultants “recommend” the least expensive IEP.
Plaintiff alleges that he and B.L. were victims of
4
this “hitman” practice on at least two occasions. On the first,
the District asked a woman named Andretta to write a report that
recommended replacing B.L.’s home instructional program with
“parent lessons.” (Compl. ¶¶ 77, 80.) Andretta did so, despite
having no personal knowledge about B.L.’s educational progress,
because the District promised her a job in exchange for her
report. (Compl. ¶¶ 83-86.)
On the second, the District’s psychologist suggested
that she perform a psychological re-evaluation of B.L (the “Re-
evaluation”). (See Compl. ¶ 94.) Wary that the Re-evaluation
would be conducted by a “hitman,” Plaintiff insisted that it be
performed by someone unaffiliated with the District. (Id. ¶¶
95-97.) The District hired Defendant Suozzi, a psychologist in
private practice, to perform the Re-evaluation and sent him a
letter authorizing him to proceed. (Id. ¶ 103.) Suozzi
conducted the Re-evaluation on February 2, 2009. (Id. ¶ 111.)
Notwithstanding Plaintiff’s precautions, Suozzi turned out to be
a District “hitman,” too. The Re-evaluation and Suozzi’s report
are discussed in detail, below.
B. B.L.’s Re-evaluation
Suozzi’s report of the Re-evaluation listed several
recommendations for B.L.’s development, two of which Plaintiff
cites in the Complaint. In Recommendation 6, Suozzi opined that
5
B.L. was not ready to learn some of the skills in his then-
current educational program. (Compl. ¶ 234.) In Recommendation
7, Suozzi suggested that “home-based instruction” would help
Plaintiff learn skills he needed to maximize B.L.’s development.
(Compl. ¶ 245.)
Plaintiff disagrees with the substance of these
Recommendations, and he objects to three procedural aspects of
the Re-evaluation and Suozzi’s report. First, the Re-evaluation
was conducted without the required parental consent. (See
generally id. ¶¶ 137-170.) More specifically, Plaintiff
returned a consent form with four conditions and the District
accepted Plaintiff’s “conditional consent” before the Re-
evaluation began. (Id. ¶¶ 137-139.) The District failed to
satisfy Plaintiff’s conditions after-the-fact, rendering, in
Plaintiff’s view, the consent retroactively void. (See
generally id. ¶¶ 137-170.) Second, Plaintiff received Suozzi’s
report only two days before he was supposed to meet with the
District to discuss B.L.’s IEP. (Id. ¶ 118.) Plaintiff thus
had little time to prepare his response. (Id. ¶ 119.) Third,
Suozzi’s report did not provide sufficient information to
support its conclusions. (See generally id. ¶¶ 231-280.) Among
other shortcomings, the Recommendations were “too vague” and
cited no peer-reviewed publications for support. (Id. ¶¶ 235,
6
237.)
C. The February 26, 2009 Meeting
The District used Suozzi’s report, which was tainted
by the District’s “hitman practice” and rife with substantive
and procedural defects, as the start- and end-point to
discussions concerning B.L.’s educational needs, thereby cutting
Plaintiff out of the process of determining what was best for
B.L. (See generally Compl. ¶¶ 207-230.) According to
Plaintiff, “Suozzi determined [B.L.’s] educational needs
(Recommendations 6 and 7) by himself.” (Id. ¶ 210.) And,
although Suozzi took time to “emotionally explain” his
conclusions to Plaintiff, Plaintiff suggests that he was not
given a meaningful opportunity to voice his own thoughts about
B.L.’s educational needs. (Id. ¶ 121.) Further, although his
Complaint does not allege that B.L.’s home instruction was
terminated or that Plaintiff actually attended the “parent
skills” classes, it is apparent that Plaintiff feels the
District’s strong-arm tactics denied B.L. a free and appropriate
public education (“FAPE”). (See id. ¶ 286(e); see also Pl.
Gibson Opp. at 6 (suggesting that, had it entertained
Plaintiff’s views on B.L.’s education, the District would have
7
added services to B.L.’s program).)2
III. Plaintiff’s Due Process Complaint and Hearing
Plaintiff aired these grievances in a due process
complaint against the District that he filed on March 10, 2009.
(Compl. ¶ 19.) Thereafter, the District appointed an
independent hearing officer (“IHO”) and a hearing was held.
(Id. ¶ 20.) The IHO apparently ruled in the District’s favor,
(id. ¶ 61), and that decision was upheld on appeal by the state
review board. (Id. ¶ 62.) The Complaint contains a host of
allegations charging the IHO with misconduct (see id. ¶¶ 19-62).
Inasmuch as the IHO is not a defendant in this case, these
allegations--which include claims that the IHO had improper ex
parte contact with the District and scheduled the hearing at a
time inconvenient to Plaintiff--are relevant only to show that
Plaintiff was allegedly not provided with an impartial hearing.
Plaintiff also asserts that the state review officer upheld the
IHO’s decision with “nothing more than a rewritten version” of
the IHO’s opinion. (Id. ¶ 62.)
IV. Defendant Gibson’s Role
Gibson, a private attorney, represented the District
at the due process hearing and counseled the District throughout
2 Plaintiff’s opposition to Gibson’s motion to dismiss is cited as “Pl. Gibson Opp.” and his opposition to Suozzi’s motion is cited as “Pl. Suozzi Opp.”
8
its dispute with Plaintiff. (See, e.g., Compl. ¶¶ 126, 241.)
According to Plaintiff, Gibson advised the District that it was
not bound by the conditional nature of Plaintiff’s consent to
the Reevaluation, (Compl. ¶ 124), provided case law to Defendant
Martin concerning the Family Educational Rights and Privacy Act,
(id. ¶ 125), and once, after Plaintiff had a dispute with the
IHO over whether Plaintiff was entitled to receive digital
transcripts of the proceeding, “chased Plaintiff out of the
conference room where the hearing was conducted, and closed the
door.” (Id. ¶ 47.) Plaintiff also complains that Gibson did
not know the proper evaluation procedures mandated by IDEA. (Id.
¶¶ 188-189.)
DISCUSSION
The Court first clarifies the scope of Plaintiff’s
Complaint and then addresses the pending motions.
I. The Scope of Plaintiff’s Complaint
It is axiomatic that district courts have a duty to
construe pro se pleadings to raise the strongest arguments they
suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995).
Consistent with this duty, the Court reads Plaintiff’s Complaint
liberally. Id. As an initial matter, however, the Court notes
Plaintiff has clarified that he does not assert any claims on
behalf of B.L. Plaintiff had originally captioned his Complaint
9
“Jenn-Ching Lou on behalf of himself and B.L.” But because pro
se litigants may not appear in federal court on someone else’s
behalf, Berrios v. New York City Housing Authority, 564 F.3d
130, 133-34 (2d Cir. 2009), the Court ordered Plaintiff either
to retain counsel for B.L. or have B.L.’s claims dismissed from
the case. (August 2, 2010 Minute Order.) B.L. has not appeared
in this action through counsel, and Plaintiff’s September 27,
2010 letter stated unequivocally that “BL has no claim in the
complaint” and “no one cause of action is asserted in BL’s
right.” (Docket Entry 60 at 2.) Accordingly, Plaintiff’s
Complaint is limited to claims that Plaintiff may assert on his
own behalf.
In this case, though, whether Plaintiff is suing in
his own right or on behalf of B.L. is a distinction without much
of a difference. The Supreme Court has recognized that parents
have rights to their children’s FAPE and that they may sue on
their own to enforce those rights. See Winkleman v. Parma City
Sch. Dist., 550 U.S. 516, 531, 127 S. Ct. 1994, 2004 (2007).
With that in mind, the Court liberally construes
Plaintiff’s Complaint to assert the following four federal
claims: first, a claim that all Defendants violated IDEA by (a)
subjecting B.L. to the Reevaluation without valid parental
consent; (b) failing to gather the relevant information in
10
support of Recommendations 6 and 7, and (c) cutting Plaintiff
out of meaningful discussions concerning B.L.’s IEP by
presenting Suozzi’s “hitman” evaluation of B.L.’s educational
needs to Plaintiff as a fait accompli; second, a Section 1983
claim that all Defendants deprived Plaintiff of his rights under
IDEA for the same reasons (Compl. ¶¶ 287-300.); third, a Section
1983 Claim that all Defendants deprived Plaintiff of a
Fourteenth Amendment property right to B.L.’s FAPE; fourth, a
Section 1983 claim that all Defendants deprived Plaintiff of a
Fourteenth Amendment liberty right by suggesting that Plaintiff
learn “parent skills” as part of B.L.’s new IEP (Compl. ¶¶ 301-
317).
In addition to his federal claims, Plaintiff also
appears to assert four state law claims: first, the District,
Gallo and Martin breached a contract by not honoring the
conditional consent to the Reevaluation, (Compl. ¶¶ 318-326);
second, all Defendants used the IEP determination process to
harass Plaintiff (Compl. ¶¶ 327-331); third, all Defendants
committed a prima facie tort; and fourth, Suozzi defamed
Plaintiff by writing that Plaintiff needed to learn additional
skills (Compl. ¶ 309).
II. Gibson’s and Suozzi’s Motions
Gibson’s motion to dismiss the Complaint is GRANTED,
11
and Plaintiff’s claims against her are dismissed in their
entirety. Suozzi’s motion to dismiss is GRANTED IN PART AND
DENIED IN PART. Plaintiff’s Section 1983 claim that Suozzi
deprived Plaintiff of his right to participate in the
determination of B.L.’s IEP may go forward. The remainder of
Plaintiff’s claims against Suozzi are DISMISSED.
A. Legal Standard for Rule 12 Motions
To survive a Rule 12(b)(6) motion, a plaintiff must
plead sufficient factual allegations in the complaint to “state
a claim [for] relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929, 949 (2007). The complaint does not
need “detailed factual allegations[,]” but it demands “more than
labels and conclusions, an a formulaic recitation of the
elements of a cause of action will not do.” Id. at 555. In
addition, the facts pleaded in the complaint “must be enough to
raise a right to relief above the speculative level.” Id.
Determining whether a plaintiff has met his burden is “a
context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Harris v. Mills,
572 F.3d 66, 72 (2d Cir. 2009). However, “[t]hreadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, __
12
U.S. __, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).
B. Plaintiff’s IDEA Claims
Plaintiff may not maintain his IDEA claims against
Gibson and Suozzi because IDEA does not provide for individual
liability. See B.I. v. Montgomery County Bd. of Educ., __ F.
Supp. 2d __, 2010 WL 4595518, at *2 (M.D. Ala. Nov. 12, 2010)
(“IDEA does not provide for individual liability.”); see also
Parenteau v. Prescott Unified School Dist., No. 07-CV-8072, 2008
WL 5214997, at *8 (D. Ariz. Dec. 11, 2008); S.W. v. Warren, 528
F. Supp. 2d 282, 298 (S.D.N.Y. 2007). Accordingly, Plaintiff’s
IDEA claims against Gibson and Suozzi are DISMISSED.
C. Section 1983 Claims
Section 1983 provides, in relevant part, that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.
42 U.S.C. § 1983. To state a claim under this law, a plaintiff
must allege: (1) that the defendant acted under color of state
law; and (2) that as a result of the defendant's actions, the
plaintiff suffered a deprivation of his or her rights or
13
privileges as secured by the Constitution or laws of the United
States. See Am. Mfr. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
49-50, 119 S. Ct. 977, 985, 143 L. Ed. 2d 130, 143 (1999).
1. Under Color of State Law
As initial matter, Plaintiff has alleged that Suozzi,
but not Gibson, was acting under color of state law. The Court
addresses the allegations against Gibson and then those against
Suozzi.
a. Gibson was not Acting Under Color of State Law
Even construing his Complaint liberally and affording
him every favorable inference, Plaintiff has not alleged that
Gibson was acting under color of state law. Plaintiff’s
allegations as to Gibson center on her role as a counselor and
advocate for the District. (See Compl. ¶¶ 124-128 (providing
legal advice and precedent); ¶ 241 (cross-examining witnesses at
due process hearing); ¶¶ 254, 257 (voicing objections at due
process hearing); see also id. at ¶¶ 189-194 (alleging that
Gibson did not know IDEA’s evaluation procedure).) Plaintiff
himself characterizes Gibson’s role as providing the legal
advice that precipitated the District’s allegedly wrongful acts.
(See, e.g., Pl. Gibson Opp. at 14 (“This action alleged that
Gibson was paid to review legal issues, but Gibson gave wrong
legal advice, and also advised school district not to remedy the
14
dispute.”).) Attorneys representing the state do not act under
color of state law when they perform their traditional functions
as counsel. See Polk County v. Dodson, 454 U.S. 312, 325 102 S.
Ct. 445, 453 (1981) (public defender does not act under color of
state law when representing indigent client). To the extent
Plaintiff attempts to evade this rule by suggesting, however
obliquely, that Gibson conspired with others to deny Plaintiff
his rights, (see Compl. ¶ 286), such conclusory allegations do
not suffice to plead a Section 1983 claim against a private
actor. See Browdy v. Karpe, 131 F. App’x 751, 753 (2d Cir.
2005). Accordingly, Plaintiff’s Section 1983 claims against
Gibson are DISMISSED.
b. Suozzi was Allegedly Acting Under Color of State Law
Plaintiff has sufficiently alleged that Suozzi
violated Plaintiff’s rights under color of state law. “[A]
private actor acts under color of state law when the private
actor is a willful participant in joint activity with the State
or its agents.” Ciambriello v. County of Nassau, 292 F.3d 307,
324 (2d Cir. 2002) (quotations and citations omitted). Here,
Plaintiff claims that Suozzi jointly engaged in the so-called
“hitman practice” whereby he revised his report to reflect the
District’s desired outcome before presenting it to Plaintiff as
15
fait accompli. (See Compl. 203 (“The [Re-evaluation] was under
the cloud of hitman practice. School district and Suozzi might
revise the report to plant Recommendations several times until
school district satisfied, but they covered it up.”).)
2. Deprivation of Federal Rights
Plaintiff alleges that Suozzi deprived him of his
federal rights under IDEA and the Fourteenth Amendment. The
Court addresses each in turn.
a. IDEA Violations
Plaintiff alleges that Suozzi violated IDEA by (1)
excluding Plaintiff from meaningful discussions concerning
B.L.’s education, see 20 U.S.C. § 1414(b)(4); (2) conducting the
Reevaluation without parental consent, see 20 U.S.C. §
1414(c)(3); and (3) failing to gather sufficient factual support
for certain recommendations he included in his report (Compl.
231-280). Neither Suozzi nor Gibson argues that Plaintiff
cannot use Section 1983 to redress violations of IDEA. (See
Gibson Br. at 7; Suozzi Br. at 21) (“Nor can Dr. Suozzi be
individually liable for alleged violations of IDEA outside of
[Section 1983]”) (emphasis added). The rule in this Circuit is
more nuanced than the defendants make it seem. Unlike many
Circuits, which do not permit plaintiffs to use Section 1983 to
redress IDEA violations, see, e.g., D.A. ex rel. Latasha A. v.
16
Houston Independent School Dist., 629 F.3d 450, 456 (5th Cir.
2010); A.W. v. Jersey City Public Schs., 486 F.3d 791, 803 (3d
Cir. 2007) (en banc); Diaz-Fonseca v. Puerto Rico, 451 F.3d 13,
28 (1st Cir. 2006), the Second Circuit permits IDEA-based
Section 1983 claims, but only where the plaintiff was denied the
procedural or administrative remedies that IDEA provides. See
Streck v. Board of Educ. of East Greenbush Sch. Dist., 280 F.
App’x 66, 68 (2d Cir. 2008); see also Quackenbush v. Johnson
City Sch. Dist., 716 F.2d 141, 148 (2d Cir. 1983); K.M. ex rel.
A.M. v. Manhasset Union Free Sch. Dist., No. 04-CV-1031, 2006 WL
1071568, at *7 (E.D.N.Y. 2006). Here, Plaintiff essentially
alleges that the IHO’s misconduct prevented him from pursuing
his grievances at an impartial due process hearing, and that the
state review process was a sham. See 20 U.S.C. § 1415(f)
(providing for impartial due process hearing); Compl. ¶ 62.
Consequently, Plaintiff may use Section 1983 to redress the
alleged IDEA violations. Cf. Streck, 280 F. App’x at 68
(“Plaintiffs fail to allege a denial of procedural safeguards or
administrative remedies: they were afforded a hearing before an
impartial hearing officer and review by a state review officer
(‘SRO’). Therefore, plaintiffs may not rely on § 1983 to pursue
monetary damages for violations of the IDEA.”).
The Court addresses in turn each of Plaintiff’s three
17
IDEA-based Section 1983 claims.
i. Participation in Development of B.L.’s IEP
Plaintiff has also sufficiently alleged that, as a
result of the Suozzi’s conduct, he was deprived of his federal
right to participate in meaningful discussions concerning B.L.’s
education. 20 U.S.C. § 1414(b)(4). IDEA “requires school
districts to develop an IEP for each child with a disability,
with parents playing a significant role in the process.”
Winkelman, 550 U.S. at 524, 127 S. Ct. at 2000 (citations and
quotations omitted). IDEA’s Section 1414 provides that “the
determination of . . . the educational needs of the child shall
be made by a team of qualified professionals and the parent of
the child. . . .” 20 U.S.C. § 1414(b)(4) (emphasis added).
Plaintiff has alleged that Suozzi drafted a sham, “hitman”
report and determined B.L.’s educational needs without any input
from Plaintiff. Suozzi’s conclusions were presented and
explained to Plaintiff at the February 26 meeting with school
officials but, construing his allegations liberally, Plaintiff
was not given a meaningful opportunity to discuss his objections
to Suozzi’s “recommendations.” (See Compl. ¶ 121 (“Suozzi spent
lots of time to emotionally explain how he performed the
evaluation, but did not provide any specific information to
answer the disputes [Plaintiff] raised.”).) Further, it is
18
apparent that Plaintiff claims the District, by cutting
Plaintiff out of the IEP development process, has cost B.L. his
FAPE. (See Compl. ¶ 286(e); see also Pl. Gibson Opp. at 6.)
ii. Consent to the Re-evaluation
Plaintiff’s claim that Suozzi violated Section
1414(c)(3) by conducting the Re-evaluation without parental
consent fails. Setting aside whether the District’s alleged
after-the-fact breach of Plaintiff’s conditions retroactively
invalidated his consent, the District authorized Suozzi to
proceed with the Re-evaluation, and there is no suggestion that
Suozzi was aware of the conditional nature of Plaintiff’s
consent. In fact, Plaintiff specifically alleges that
Defendants Gallo and Marin knew of the conditional consent but
makes no similar allegations against Suozzi. (Compl. ¶¶ 318-
319.)
iii. Failure to Gather Supporting Information
Plaintiff claims that Suozzi failed to gather
sufficient factual support for certain recommendations he
included in his report. (Compl. ¶¶ 231-280.) These allegations
do not state a claim under Section 1983 because IDEA does not
confer on parents a procedural right to the format of an
evaluator’s assessment. For example, IDEA does not require that
an evaluator’s report contain citations to peer-reviewed
19
publications. (See Compl. ¶¶ 31-32.) Plaintiff may have a
claim against the District if the IEP that arose out of Suozzi’s
evaluation denied B.L. a free and appropriate education, but a
Section 1983 claim premised on conclusory allegations that a
psychological report was inadequately sourced cannot go forward.
b. Fourteenth Amendment Claims
Plaintiff also asserts what appear to be Section 1983
claims based on the Fourteenth Amendment’s due process clause,
specifically that Defendants deprived Plaintiff of (1) a
property right in B.L.’s FAPE by failing to develop an IEP in
cooperation with both professionals and parents, (Compl. ¶¶ 287-
296); and (2) his right to chart his own education by
prescribing “parent skills” classes as part of B.L.’s IEP,
(Compl. ¶¶ 301-17). The first claim fails because it “is well
settled . . . that a plaintiff asserting a constitutionally
based [Section 1983] claim for procedural violations of the IDEA
must establish a constitutional violation ‘outside the scope of
the IDEA.’” Engwiller v. Pine Plains Cent. Sch. Dist., 110 F.
Supp. 2d 236, 250 (S.D.N.Y. 2000). “In other words, a plaintiff
cannot prevail on a [Section 1983] claim for violation[s] of
procedural due process under the Fourteenth Amendment if the
violations for which she seeks redress are actionable under the
IDEA.” Id. at 250-251. Here, Plaintiff essentially charges
20
that school officials failed to comply with the provisions of
IDEA governing how his son’s IEP was formulated. Plaintiff may
have a successful IDEA claim against the District if the IEP
that arose out of these alleged deficiencies denied B.L. a free
and appropriate education--and that appears to be the gravamen
of Plaintiff’s case against the District--but Plaintiff may not
maintain a procedural due process claim against Suozzi based on
a failure to comply with IDEA’s strictures. The second claim
fails because Plaintiff has not alleged any deprivation of
rights. He simply alleged that Suozzi included “parent skills”
classes in the recommendation, not that Plaintiff ever received
this instruction.
D. State Law Claims
Plaintiff does not assert his breach of contract claim
against either Gibson or Suozzi. (See Compl. ¶¶ 318-326.)
Hence, that claim is not considered here. Below, the Court
considers Plaintiff’s “harassment” claim and, out of an
abundance of caution, considers whether Plaintiff has
sufficiently alleged a prima facie tort claim against either
Gibson or Suozzi or a defamation claim against Suozzi.
1. Harassment
New York does not recognize an independent tort for
“harassment,” Ralin v. City of New York, 44 A.D.3d 838, 839, 844
21
N.Y.S.2d 83, 84 (N.Y. App. Div. 2007), so the Court will analyze
Plaintiff’s harassment allegations as a claim for intentional
infliction of emotional distress. To state his claim, Plaintiff
must demonstrate that Defendants (1) by extreme and outrageous
conduct; (2) intentionally or recklessly; (3) caused Plaintiff
severe emotional distress. See Sawicka v. Catena, __ N.Y.S.2d
__, 2010 WL 5094399, at *1 (N.Y. App. Div. 2010). Plaintiff
cannot make such a showing against Gibson or Suozzi. The Court
finds that Gibson’s and Suozzi’s alleged conduct--which can be
generally summarized as representing a client (Gibson) and
conspiring to shortchange B.L.’s IEP (Suozzi)--was not
sufficiently extreme or outrageous to merit recovery under this
tort. See Alam v. HSBC Bank USA, N.A., No. 07-CV-3540, 2009 WL
3096293, at *13 n.7 (S.D.N.Y. Sept. 28, 2009) (collecting
examples of behavior that is neither extreme nor outrageous);
cf. Sawicka, 2010 WL 5094399, at *1 (installing video camera in
women’s restroom was sufficiently outrageous to support a jury
verdict for plaintiff).
2. Prima Facie Tort
Though Plaintiff has not specifically alleged a prima
facie tort claim against either Gibson or Suozzi, the Court has
a duty to construe a pro se complaint to raise the strongest
possible arguments. To establish a prima facie tort claim, a
22
plaintiff must demonstrate “(1) the intentional infliction of
harm, (2) which results in special damages, (3) without any
excuse or justification, (4) by an act or series of acts which
would otherwise be lawful.” Morrison v. Woolley, 45 A.D.3d 953,
954, 845 N.Y.S.2d 508, 509 (N.Y. App. Div. 2007) (citations
omitted). This claim fails because, although he included
damages of one million dollars against each defendant in his
prayer for relief on his harassment claim, Plaintiff has not
alleged special damages. “[D]amages in round numbers which
amount to mere general allegations” are “insufficient
allegation[s] of damages to support a cause of action for prima
facie tort.” Vigoda v. DCA Prods. Plus, Inc., 293 A.D.2d 265,
266, 741 N.Y.S.2d 20 (N.Y. App. Div. 2002).
3. Defamation
Plaintiff also appears to assert a defamation claim
against Suozzi based on Suozzi’s “viciously” including
Recommendation 7 in his report. Recommendation 7 reads:
Home-based instruction represents a unique opportunity to extend the programming throughout BL’s day, and can give Mr. and Mrs. Luo the skills needed to maximize their [child’s] growth. Home-based programing should emphasize activities of daily living (ADL), leisure (play) skills, and communication skills.
(Compl. ¶¶ 244-245.) Under a liberal reading of his Complaint,
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Plaintiff alleges that this passage falsely states that he is an
unskilled parent, (see Compl. ¶¶ 250-252), and that the passage
damaged Plaintiff’s good reputation. (Compl. ¶¶ 308-309.)
Although none of the parties address this issue, the
Court finds that Plaintiff cannot state a defamation claim. The
elements of defamation in New York are “a false statement,
published without privilege or authorization to a third party,
constituting fault as judged by, at a minimum, a negligence
standard, and it must either cause special harm or constitute
defamation per se.” Finkel v. Dauber, 29 Misc. 3d 325, 328, 906
N.Y.S.2d 697, 701-02 (N.Y. Sup. Ct. 2010) (citations and
quotations omitted).
In this case, Plaintiff cannot establish an actionable
false statement, let alone state a valid claim. Only statements
of fact, capable of being proven false, are actionable and
whether a statement is one of fact is for courts to determine.
Id. Context is key to that evaluation, and courts are guided by
four factors: “(1) an assessment of whether the specific
language in issue has a precise meaning which is readily
understood or whether it is indefinite and ambiguous; (2) a
determination of whether the statement is capable of being
objectively characterized as true or false; (3) an examination
of the full context of the communication in which the statement
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appears; and (4) a consideration of the broader social context
or setting surrounding the communication including the existence
of any applicable customs or conventions which might signal to
readers or listeners that what is being read or heard is likely
to be opinion, not fact.” Id. (quotations and citations
omitted); see also Gross v. New York Times Co., 82 N.Y.2d 146,
623 N.E.2d 1163 (1993). All of these factors illustrate that
Suozzi’s statement cannot reasonably be interpreted as
defamatory.
Read from Plaintiff’s perspective in the harshest
light, Suozzi’s recommendation suggests that Plaintiff lacked
the full complement of skills necessary, in Suozzi’s opinion, to
maximize B.L.’s development. What constitutes a “maximization”
of B.L.’s development is indefinite and ambiguous (factor one),
and thus Recommendation 7 cannot be objectively characterized as
true or false (factor two). Further, Recommendation 7 was made
in the context of providing a professional evaluation about how
best to meet B.L.’s educational needs; the limited readership of
Suozzi’s report would have understood that his recommendation
constituted his independent opinion, not a statement of fact
(factors three and four). (Compl. ¶ 309.) Accordingly, the
Court finds that Recommendation 7 cannot be construed as an
actionable false statement, and thus Plaintiff cannot state a
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defamation claim.
E. Suozzi is not Entitled to Immunity
Suozzi claims that he is entitled to immunity under
the doctrine of witness immunity. (Suozzi Br. at 29). He is
not. Suozzi is being sued for his alleged role in drafting sham
“recommendations” for B.L.’s educational program and presenting
them to Plaintiff as the final version of B.L.’s IEP, not simply
for his participation in the School District’s due process
hearing. Absolute witness immunity:
[S]hields witnesses from civil rights claims. This immunity extends to all persons, whether governmental, expert, or lay witnesses, integral to the trial process. The rationale for absolute witness immunity lies in the concern that witnesses fearing civil liability for their testimony might not be willing to come forward to testify or might give distorted testimony. Protecting witnesses from liability encourages witnesses to testify and furthers the fact-finding and truth-seeking process of the courts.
Elmasri v. England, 111 F. Supp. 2d 212, 221 (E.D.N.Y. 2000).
This rationale is simply inapplicable to Plaintiff’s Section
1983 claim against Suozzi. Suozzi’s citation to a case
extending immunity to psychiatrists who conduct competency
hearings, see Moses v. Parwatikar, 813 F.2d 891, does not help
his defense because the Court rejects the idea that Suozzi’s
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alleged role was “analogous to that of a witness in a judicial
proceeding.” Id. at 892.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion to amend
the caption (Docket Entry 60) is GRANTED to the extent that the
Court construes Plaintiff’s Complaint to assert his own claims,
not those of B.L. Gibson’s motion to dismiss the Complaint
(Docket Entry 24) is GRANTED, and Plaintiff’s case against her
is DISMISSED in its entirety. Suozzi’s motion to dismiss
(Docket Entry 51) is GRANTED IN PART AND DENIED IN PART.
Plaintiff’s sole surviving claim against Suozzi is his Section
1983 claim that Suozzi deprived him of his right to participate
in determining the educational needs of his child, thereby
depriving B.L. of a free appropriate public education.
Plaintiff’s remaining claims against Suozzi are DISMISSED.
Suozzi’s request for oral argument (Docket Entry 52)
is DENIED. The Court is also in receipt of a flurry of letters
between the parties concerning the state of discovery. These
discovery issues are moot as to Gibson, and the Court will
address these issues as to the remaining Defendants at the
upcoming pre-motion conference.
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The Clerk of the Court is directed to mail Plaintiff a copy
of this Order.
SO ORDERED.
/s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J.
Dated: March 15 , 2011 Central Islip, New York
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