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
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 shortcomings in the way Defendant Baldwin
Union Free School District (the “District”) and several
individual defendants addressed the educational needs of B.L.,
Plaintiff’s disabled child. Plaintiff sued the District,
Michelle Gallo, Sherrisse Martin, Susan Gibson and John Suozzi,
Ph.D; he asserts violations of the Individuals with Disabilities
Education Act (the “IDEA”) and Section 1983 of Title 42 of the
United States Code (“Section 1983”). He also asserts several
state law claims.
In its March 15, 2011 Memorandum and Order (the “March
Order”), the Court dismissed all of Plaintiff’s claims against
Gibson and all but one against Suozzi. (Docket Entry 74.)
Pending before the Court is the District, Gallo, and Martin’s
motion for judgment on the pleadings and for summary judgment.
(Docket Entry 79.) For the following reasons, this motion is
GRANTED. Further, because the Court has reviewed the
administrative record and concludes that there was no IDEA
violation here, the remaining claim against Suozzi (a Section
1983 claim predicated on the IDEA) is also dismissed.
BACKGROUND
The allegations in Plaintiff’s Complaint are detailed
in the March Order, with which the reader’s familiarity is
presumed. In this section, the Court will provide a brief
synopsis of the underlying allegations in order to give context
to the discussion that follows. To the extent appropriate, it
will cite specific evidence from the administrative record in
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the analysis section below.1
Very briefly, in advance of a meeting to review B.L.’s
individualized education plan (the “IEP”), the District had
B.L.’s educational needs evaluated by a woman named Andretta.
Plaintiff was concerned that Andretta’s report may have been
tainted because she was allegedly not a disinterested evaluator
and her report was skewed to “recommend” the educational program
that best suited the District. The District arranged a second
evaluation (the “Reevaluation”), which Suozzi conducted and
which resulted in a number of recommendations for B.L.’s
development. Plaintiff vehemently disagreed with two of these
recommendations: Recommendation 6 (which stated that B.L. was
not ready to learn some of the skills being taught under his
then-current IEP) and Recommendation 7 (which suggested that
Plaintiff learn skills to foster B.L.’s development at home).
(See generally March Order 3-6.)
Plaintiff received a copy of Suozzi’s report two days
before February 26, 2009, the date on which B.L.’s committee on
1 The Court notes that Plaintiff used virtually the entirety of his briefs--an opposition brief and a sur-reply that was filed without permission--to disparage opposing counsel’s intelligence and to rehash the allegations in his Complaint without citing to evidence in the administrative record. The latter strategy stems from an apparent misunderstanding about what evidence the Court may consider when evaluating a motion for summary judgment in an IDEA case. The proper standard of review is addressed below.
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special education (the “CSE”) met to discuss possible changes to
B.L.’s then-current IEP (the “February CSE Meeting”). At that
meeting, Plaintiff presented a written response to the report
and he and Suozzi discussed Suozzi’s recommendations in detail.
Ultimately, Suozzi’s recommendations were not incorporated into
B.L.’s IEP, which remained essentially unchanged. (See
generally March Order 7.)2
Apparently still upset with the Reevaluation and the
recommendations it yielded, Plaintiff filed a due process
complaint with the school. A hearing was held, and an
independent hearing officer (the “IHO”) determined that there
had been no IDEA violation. (IHO Decision, R. 1036-1090.) A
state review officer (“SRO”) affirmed the IHO’s decision. (SRO
Decision R. 1182-1200.)
DISCUSSION
As the Court explained in the March Order, Plaintiff’s
Complaint, liberally construed, purports to raise four federal
claims: first, a claim that all Defendants violated the IDEA by
(a) subjecting B.L. to the Reevaluation without valid parental
consent, (b) failing to gather the relevant information in
2 This last point is notable because beyond Plaintiff’s criticisms of Suozzi’s report, Plaintiff does not explain whether or how B.L.’s IEP was inadequately tailored to guarantee B.L.’s FAPE.
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support of Recommendations 6 and 7, and (c) cutting Plaintiff
out of meaningful discussions concerning B.L.’s IEP by
presenting Suozzi’s Reevaluation of B.L.’s educational needs to
Plaintiff at the February CSE Meeting as a fait accompli;
second, a Section 1983 claim that all Defendants deprived
Plaintiff of his rights under IDEA for the same reasons; third,
a Section 1983 claim that all Defendants deprived Plaintiff of a
Fourteenth Amendment property right to B.L.’s free appropriate
public education (“FAPE”); and 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 IEP. (March Order 10-11 (citing Compl. ¶¶
301-317).)
The Complaint also purports to raise four state law
claims: first, a claim that Gallo and Martin breached a contract
by not honoring the conditional nature of Plaintiff’s consent to
the Reevaluation; second, a claim that all Defendants “harassed”
Plaintiff, which the Court construed as an intentional
infliction of emotional distress claim; third, a claim that all
Defendants committed a prima facie tort; and fourth, a claim
that Suozzi defamed Plaintiff. (March Order 11 (citing Compl.
¶¶ 309, 318-331).)
The Moving Defendants have asked for a summary
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determination that Plaintiff cannot prevail on his IDEA claim
and for judgment on the pleadings as to the remainder of
Plaintiff’s case. The Court will address the Moving Defendants’
arguments below, but it first considers the impact the March
Order had on Plaintiff’s case.
I. The Current State of Plaintiff’s Case
Strictly speaking, the March Order did not address
Plaintiff’s claims as against the Moving Defendants, but the
rationale in dismissing many of Plaintiff’s claims against
Gibson and Suozzi applies with equal force to the pending
motion. The Court notes the following carry-over points from
the March Order.
First, as there is no individual liability under IDEA,
Plaintiff’s IDEA claims against Gallo and Martin are dismissed.
(See March Order 13.) To the extent that Plaintiff asserts IDEA
claims against Gallo and Martin in their official capacities,
these claims are dismissed as redundant of his IDEA claim
against the District. See Anemone v. Metro. Tranps. Auth., 410
F. Supp. 2d 255, 264 n.2 (S.D.N.Y. 2006).
Second, Plaintiff’s Section 1983 claims that the
Moving Defendants violated his rights under the Fourteenth
Amendment are dismissed because Plaintiff has not alleged a
cognizable deprivation of a constitutional right apart from what
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is already covered by the Section 1983 claim that uses IDEA as
its foundation. (See March Order 20-21.)
Third, Plaintiff’s prima facie tort claims against the
Moving Defendants are dismissed for failure to allege special
damages. (See March Order 23.)
Fourth, the Court construes Plaintiff’s defamation
claim as against Suozzi only. (See March Order 23-26.)
Accordingly, the Moving Defendants face only the
following claims: first, an IDEA claim that the District (a)
subjected B.L. to the Reevaluation without valid parental
consent, (b) failed to gather the relevant information in
support of Recommendations 6 and 7, and (c) cut Plaintiff out of
meaningful discussions concerning B.L.’s IEP by presenting
Suozzi’s Reevaluation as a fait accompli; second, a Section 1983
claim that the Moving Defendants deprived Plaintiff of his
rights under the IDEA; third, a state law breach of contract
claim against Gallo and Martin; and fourth, a state law
intentional infliction of emotional distress claim against the
Moving Defendants.
II. The Moving Defendants’ Motion
As mentioned already, the Moving Defendants seek a
summary determination that Plaintiff cannot prevail on his IDEA
claims and judgment on the pleadings as to the remainder of
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Plaintiff’s case.
A. There Was No IDEA Violation in this Case
The Court first tackles Plaintiff’s IDEA claim.
1. Standard of Review for IDEA Claims
It is well-settled that a federal court’s role in
“reviewing state educational decisions is circumscribed.” T.Y.
v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 417 (2d Cir. 2009)
(quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105,
112 (2d Cir. 2007)). In making its own decision on the
preponderance of the evidence, the Court “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.” Id. (quoting A.C. ex rel. M.C. v. Bd. of
Educ., 553 F.3d 165, 171 (2d Cir. 2009)). “Therefore, as the
Supreme Court has concluded, courts may not ‘substitute their
own notions of sound educational policy for those of the school
authorities which they review.’” Id. (quoting Bd. of Educ. v.
Rowley, 458 U.S. 176, 206, 102 S. Ct. 3034, 73 L. Ed. 2d 690
(1982)).
IDEA claims can often be resolved on summary judgment
because, although the Court is empowered to hear new evidence if
necessary, it has the benefit of the administrative record and
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it must afford a certain degree of deference to the
administrative findings. See id. Plaintiff devotes a
significant portion of his opposition papers to arguing that the
Court may not award the Moving Defendants summary judgment at
this stage because it is bound to accept his allegations as true
and may not look outside his pleadings. (Pl. Opp. 1-2.) This
is incorrect. “Unlike with an ordinary summary judgment motion,
the existence of a disputed issue of material fact will not
necessarily defeat a motion for summary judgment in the IDEA
context.” J.S. v. Scarsdale Union Free Sch. Dist., __ F. Supp.
2d __, 2011 WL 5925309, at *21 (S.D.N.Y. Nov. 18, 2011).
“Instead, summary judgment in IDEA cases such as this is ‘in
substance an appeal from an administrative determination, not a
summary judgment.’” Id. (quoting Lillbask ex rel. Mauclaire v.
Conn. Dep't of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005)). The
Court has reviewed the record in this case and finds that
Plaintiff’s case is without merit.
2. Plaintiff Asserts Procedural Violations
As explained above, Plaintiff’s Complaint asserts that
Defendants violated the IDEA by (1) violating the terms of his
conditional consent; (2) failing to gather the adequate,
relevant information; and (3) cutting Plaintiff out of the
decision-making process concerning B.L.’s education. These are
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alleged procedural violations. See P.K. ex rel. S.K. v. N.Y.C.
Dep’t of Educ. (Region 4), __ F. Supp. 2d __, 2011 WL 3625317,
at *10 (E.D.N.Y. Aug. 15, 2011) (“A procedural violation
generally concerns the process by which the IEP and placement
offer was developed and conveyed.”). Procedural violations
amount to a denial of a FAPE in three situations:
[I]f the procedural inadequacies--
(I) impeded the child's right to a free appropriate public education;
(II) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents' child; or
(III) caused a deprivation of educational benefits.
20 U.S.C. § 1415(f)(3)(E)(ii); accord P.K. ex rel. S.K., 2011 WL
3625317, at *10. The Court’s analysis begins and ends with the
uncontroverted evidence that Suozzi’s Reevaluation, to which
Plaintiff vehemently objected on procedural and substantive
grounds, was never the basis for any change to B.L.’s IEP. (See
SHO Decision 12.) See also, e.g., Scruggs v. Meriden Bd. of
Educ., No. 03-CV-2224, 2007 WL 2318851, at *10 (D. Conn. Aug.
10, 2007) (“A FAPE denial has occurred where procedural
irregularities result in the loss of educational opportunity or
seriously infringe upon the parent’s opportunity to participate
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in the development or formulation of the IEP.”). For the sake
of explanation, the Court will briefly address Plaintiff’s three
alleged procedural deficiencies below.
a. Plaintiff’s Consent
Plaintiff maintains that Suozzi evaluated B.L. without
Plaintiff’s consent. More precisely, Plaintiff alleges that he
consented to Suozzi’s Reevaluation but that his consent was
given with four conditions. (March Order at 6 (citing Compl. ¶¶
137-170).) And, arguing that the District failed to satisfy
Plaintiff’s conditions after-the-fact, Plaintiff contends that
his consent was retroactively void. (See March Order 6.) The
IHO considered this theory in detail and concluded that the
District substantially complied with all four of Plaintiff’s
conditions (IHO Decision 48-49), and, in any event, that there
was no IDEA violation because this was a procedural violation
that did not impede B.L.’s right to a FAPE, impede Plaintiff’s
right to be part of the decision-making process, or deprive B.L.
of educational benefits (id. at 50). Similarly, the SRO,
although noting that the District did not strictly comply with
Plaintiff’s second condition, found that B.L. had not been
denied a FAPE. (SRO Decision 13-14.)
Plaintiff has not provided a persuasive case that the
District’s shortcomings in obtaining Plaintiff’s consent to the
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Reevaluation resulted in an IDEA violation. The record in this
case supports the IHO’s and SRO’s findings that, even if the
District’s failure to comply with Plaintiff’s second condition
constituted a procedural violation, the District’s missteps in
this area did not impede B.L.’s right to a FAPE, impede
Plaintiff’s participation in the decision-making process, or
deprive B.L. of educational benefits. With respect to B.L.’s
right to a FAPE or the deprivation of his educational benefits,
the Court reiterates that the Suozzi Reevaluation was not the
basis for any change in B.L.’s IEP. With respect to blocking
Plaintiff’s participation in the decision-making process, the
record shows that Plaintiff was involved in discussions about
B.L.’s education. (See Suozzi Report, R. 543-54; Plaintiff’s
Responses to Suozzi Report, R. 816-818.) The latter point is
discussed again in Section II.A.2.c, below.
b. Failure to Gather Information
Plaintiff also argues that Defendants violated IDEA
because Suozzi’s recommendations were insufficiently supported
by relevant evidence. (See March Order 6; Compl. ¶¶ 231-280.)
In the March Order, the Court ruled that this theory failed to
state a claim because IDEA does not provide a right to an
evaluation that is supported by citations to peer-reviewed
academic literature, as Plaintiff’s Complaint suggested. (March
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Order 19.) In an abundance of caution, the Court explains in
more detail why Plaintiff’s claim under IDEA Section 1414(b)(2)
is unavailing. This Section provides in relevant part:
In conducting the evaluation, the local educational agency shall--
(A) use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in determining--
(i) whether the child is a child with a disability; and
(ii) the content of the child's individualized education program, including information related to enabling the child to be involved in and progress in the general education curriculum, or, for preschool children, to participate in appropriate activities;
(B) not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program for the child; and
(C) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.
20 U.S.C. § 1414(b)(2). The IHO considered Suozzi’s
Reevaluation and found that Suozzi complied with these
requirements. (IHO Decision 51-52.) Having reviewed Suozzi’s
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report, the Court agrees that Suozzi gathered adequate, relevant
Even if Suozzi’s report was insufficiently supported,
there would still be no IDEA violation because it did not deny
B.L. a FAPE or deprive him of educational benefits. Plaintiff’s
Complaint focuses on Suozzi’s sixth and seventh recommendations,
which note that “some of the skills that are a part of [B.L.’s]
current instructional program are skills that he is not yet
‘ready’ to learn” (Recommendation 6) and that home-based
instruction would maximize B.L.’s development (Recommendation
7). (Compl. ¶¶ 231-80.) But no changes were made to B.L.’s
academic program as a result of the Reevaluation (see SRO
Decision 12), and thus a deficiency in the Reevaluation process
as to these recommendations could not have hampered B.L.’s
education. Of course, a procedurally-deficient evaluation that
does not prompt a change in a student’s IEP could nevertheless
support an IDEA violation--for example, if the deficient
evaluation prevented needed educational benefits from being
added to an IEP. But such is not the case with Recommendations
6 and 7. In Recommendation 6, Suozzi voiced his concern that
B.L. was receiving lessons that he was not ready to learn. In
Recommendation 7, Suozzi recommended that Plaintiff learn skills
to help foster B.L.’s development at home. Plaintiff forcefully
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disagreed with both recommendations, and neither resulted in a
change to B.L.’s IEP. In other words, Plaintiff disagreed that
B.L.’s IEP should be changed, and no changes were made.
c. Plaintiff’s Participation in the Decision- Making Process
Plaintiff also maintains that the District failed to
have a team of professionals and parents determine B.L.’s
educational needs, as required by Section 1414(b)(4). There is
no evidence to support this claim. Section 1414(b)(4) provides:
Upon completion of the administration of assessments and other evaluation measures--
(A) the determination of whether the child is a child with a disability as defined in section 1401(3) of this title and the educational needs of the child shall be made by a team of qualified professionals and the parent of the child in accordance with paragraph (5); and
(B) a copy of the evaluation report and the documentation of determination of eligibility shall be given to the parent.
20 U.S.C. § 1414(b)(4). The IHO concluded that Plaintiff had an
opportunity to participate in decisions affecting B.L.’s
education. (IHO Decision 52-53.) The evidence in the record is
in accord with this finding. The Court notes the following:
first, Suozzi solicited Plaintiff’s perspective as part of the
Reevaluation process (Suozzi Report, R. 544); second, Plaintiff
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prepared written responses to the portions of Suozzi’s report to
which Plaintiff objected (see Indep. Hrg. Tr., R. 148-50; Pl.
Responses to Suozzi Report, R. 816-18); and third, Plaintiff was
an active participant in the February 26, 2009 CSE meeting,
which lasted twice the normal length and during which Plaintiff
and Suozzi discussed Suozzi’s recommendations (Indep. Hrg. Tr.,
R. 150). To the extent Plaintiff suggests that he did not have
enough time to respond to Suozzi’s recommendations (see Compl. ¶
119), this allegation is belied by Plaintiff’s written
objections (R. 816-18).
Accordingly, for the reasons discussed above, the
Court concludes that there was no IDEA violation in this case
and that the District is entitled to summary judgment on
Plaintiff’s IDEA claim.3
B. The Moving Defendants are Entitled to Judgment on the Pleadings as to Plaintiff’s Remaining Claims
The Moving Defendants are entitled to judgment on the
pleadings as to Plaintiff’s remaining claims.
1. Legal Standard
3 To the extent that Plaintiff alleges flaws in the due process procedure (see, e.g., Compl. ¶¶ 28, 31), these allegations are rebutted generally by the thoroughness of the administrative record and the IHO’s and SRO’s decisions and, in any event, are irrelevant in the absence of any indication that B.L. was denied a FAPE or that his parents were prevented from participating in the decision-making process.
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The standard for a motion for judgment on the
pleadings is the same standard applicable to motions to dismiss
under Rule 12(b)(6). L-7 Designs, Inc. v. Old Navy, LLC, 647
F.3d 419, 429 (2d Cir. 2011). To survive the 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, and 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, 556
U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).
Because Plaintiff is litigating pro se, the Court
reads his Complaint liberally, see, e.g., Mancuso v. Hynes, 379
F. App’x 60, 61 (2d Cir. 2010), and interprets his papers to
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“raise the strongest arguments that they suggest,” Corcoran v.
N.Y. Power Auth., 202 F.3d 530, 536 (2d Cir. 1999) (citing
McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)).
2. Application
Plaintiff’s remaining claims fail as a matter of law.
His Section 1983 claim for IDEA violations fail because he
cannot establish an underlying IDEA violation. See, e.g.,
Daniels v. Williams, 474 U.S. 327, 330, 106 S. Ct. 662, 664, 88
L. Ed. 2d 662 (1986) (“But in any given § 1983 suit, the
plaintiff must still prove a violation of the underlying . . .
right . . . .”). The state law claims against the Moving
Defendants also fail to state a claim. For reasons similar to
the ones cited in the March Order, Plaintiff’s allegations
against the District, Martin, and Gallo do not rise to the level
of outrageousness required to state a claim for intentional
infliction of emotional distress. (March Order 22.) See also,
e.g., Cunningham v. Sec. Mut. Ins. Co., 260 A.D.2d 983, 984,
689 N.Y.S.2d 290, 291 (3d Dep’t 1999) (allegations that
insurance company failed to compensate plaintiff for fire damage
to her home--leaving her without a home, possessions, or living
expenses for a year--coupled with allegation that it accused her
of arson and perjury did not state a prima facie case for
intentional infliction of emotional distress). And, Plaintiff’s
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claim against Martin and Gallo for breach of contract, which
arises out of Martin and Gallo’s failure to honor Plaintiff’s
conditional consent, fails because Plaintiff has not identified
his damages (setting aside whether Plaintiff could establish a
binding contract in these circumstances). Plaintiff alleges
that Martin and Gallo’s conduct caused him “mental stress.”
(Compl. ¶ 325.) But absent special circumstances not present
here, mental suffering may not form the basis of a breach of
contract action in New York. See Cianciotto v. Hospice Care
Network, 32 Misc. 3d 916, 923, 927 N.Y.S.2d 779, 785 (Dist. Ct.
Nassau Cnty. 2011); N.Y. JUR. DAMAGES § 103.
CONCLUSION
For the foregoing reasons, the Moving Defendants’
motion (Docket Entry 79) is GRANTED. The Moving Defendants are
entitled to a summary determination that there was no IDEA
violation and to judgment on the pleadings as to Plaintiff’s
remaining claims. Additionally, because the Court has concluded
that there was no IDEA violation in this case, Plaintiff’s
remaining claim against Suozzi (a Section 1983 claim predicated
on IDEA) is also dismissed.
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The Clerk of the Court is respectfully directed to
terminate all pending motions, enter judgment for Defendants,
mark this case CLOSED, and mail Plaintiff a copy of this
Memorandum and Order.
SO ORDERED.
/s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J.
Dated: March 5 , 2012 Central Islip, New York
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