UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------x ELIZABETH REKOWICZ on behalf of her son, STEVEN CONGEMI,
Plaintiff, MEMORANDUM & ORDER 11-CV-1561(JS)(ETB) -against-
SACHEM CENTRAL SCHOOL DISTRICT,
Defendant. ---------------------------------x APPEARANCES For Plaintiff: Scott M. Mishkin, Esq. One Suffolk Square, Suite 240 Islandia, NY 11749.
For Defendant: Joseph E. Madsen, Esq. Susan E. Fine, Esq. Ingerman Smith, L.L.P. 150 Motor Parkway, Suite 400 Hauppauge, NY 11788
SEYBERT, District Judge:
Pending before the Court are Plaintiff Elizabeth
Rekowicz’s Objections to Magistrate Judge E. Thomas Boyle’s
Report and Recommendation (“R&R”) recommending that the Court
grant in part and deny in part Plaintiff’s motion to amend her
Complaint. Defendant Sachem Central School District opposes
Plaintiff’s motion to amend. For the following reasons, Judge
Boyle’s R&R is ADOPTED IN PART in accordance with the following
discussion.
BACKGROUND
The R&R provides a discussion of the allegations in
Plaintiff’s Proposed Amended Complaint (the “PAC”). Briefly,
Plaintiff proposes to add (1) Plaintiff’s son, Steven Congemi,
as a plaintiff in the case; (2) claims under the IDEA, the ADA,
the Rehabilitation Act, and Section 1983 against eleven
individual defendants in their official and individual
capacities (see R&R 5), and (3) a Section 1983 claim against the
District. In addition to addressing these proposed additions,
Judge Boyle considered the futility vel non of Plaintiff’s IDEA,
ADA, and Rehabilitation Act claims against the District. Judge
Boyle concluded that all but two of Plaintiff’s proposed
amendments would be futile and he recommended that the motion to
amend be denied except insofar as Plaintiff seeks to add (1) her
son as a named plaintiff and (2) a Section 1983 claim against
James Nolan. (R&R 18.)
DISCUSSION
Plaintiff challenges the R&R on the following grounds:
she argues that (1) she pled the personal involvement of the
individual defendants with sufficient plausibility to state
Section 1983 claims against them (Pl. Br. 4); (2) Judge Boyle
erred in rejecting her Section 1983 claim against the District
(id. at 8-9); (3) her official-capacity claims against the
proposed individual defendants were improperly rejected (id. at
2
10-11); and (4) she sufficiently stated ADA and Rehabilitation
Act claims against all proposed defendants. She also (5)
clarifies that is seeking damages for IDEA violations under
Section 1983, not the IDEA itself.
A magistrate judge’s recommendations on nondispositive
issues may be set aside only to the extent that they are
“clearly erroneous” or “contrary to law.” Fed. R. Civ. P.
72(a).1
I. Personal Involvement
The Court agrees with Judge Boyle that, except for
proposed defendant James Nolan, Plaintiff has not provided
anything beyond conclusory allegations of the individuals’
personal involvement in any Section 1983 violations. (See R&R
8-10.) In her Objections, Plaintiff simply cites to the
paragraphs in the PAC that Judge Boyle already concluded were
insufficiently detailed without offering any argument (beyond
restating the Iqbal/Twombly pleading standard) why Judge Boyle
reached the wrong conclusion. (Pl. Br. 5-7.)
As to James Nolan, it appears that Plaintiff’s Section
1983 claim is predicated on his decision to truncate Plaintiff’s
son’s daily school schedule. This allegation goes to whether
school officials deprived Plaintiff’s son of a free appropriate
1 The Second Circuit has suggested that motions to amend are nondispositive. See Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir. 2007).
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public education (“FAPE”)--i.e., whether the District violated
the IDEA. Because plaintiffs cannot use Section 1983 to obtain
damages for IDEA violations absent allegations that they were
denied IDEA’s “procedural safeguards or administrative
remedies,” Streck v. Bd. of Educ. of E. Greenbush Sch. Dist.,
280 F. App’x 66, 68 (2d Cir. 2008); Schafer v. Hicksville Union
Free Sch. Dist., No. 06–CV–2531, 2011 WL 1322903, at *18
(E.D.N.Y. Mar. 31, 2011); French v. N.Y.S. Dep’t of Educ.
[“French I”], No. 04-CV-0434, 2010 WL 3909163, at *11 (N.D.N.Y.
Sept. 30, 2010) aff’d, --- F. App’x ----, 2011 WL 5222856 (2d
Cir. Nov 3, 2011) [“French II”], Plaintiff’s Section 1983 claim
against Nolan is futile.
Accordingly, the Court adopts in part the R&R as it
relates to Plaintiff’s proposed Section 1983 claims against the
proposed individual defendants. The Court agrees that Plaintiff
has not stated Section 1983 claims against ten of the eleven
individuals, and it further concludes that she has not stated a
Section 1983 claim against Nolan either.
II. Municipal Liability
Judge Boyle also rejected Plaintiff’s attempt to add a
Section 1983 claim against the District, finding that Plaintiff
had not adequately alleged an unlawful custom or policy. (R&R
11.) In doing so, Judge Boyle recognized that (a) Nolan,
Plaintiff’s son’s principal, is alleged to have authorized
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Plaintiff’s son’s truncated schedule and (b) school principals
have been considered policymakers for the purposes of
establishing municipal liability under Section 1983. (R&R 12-13
& 12 n.11.) He reasoned, however, that allegations of a single,
isolated decision from a policymaker are insufficient to state a
claim against the District. (Id. at 13.) This rationale
conflates the ways that a plaintiff can establish liability
under Monell v. Department of Social Services, 436 U.S. 658, 98
S. Ct. 2018, 56 L. Ed. 2d 611 (1978); a single decision from
someone with policymaking authority can be enough to state a
Monell claim.2 See generally, e.g., Jones v. Town of E. Haven, -
-- F.3d ----, 2012 WL 3104523, at *6 (2d Cir. Aug. 1, 2012).
In any event, however, Plaintiff’s proposed Section
1983 claim against the District fails for reasons already
discussed in Section I. The decision to truncate Plaintiff’s
son’s school day goes to merits of whether Plaintiff’s son
received a FAPE and not whether there were defects in the
procedural or administrative remedies under IDEA. French I,
2010 WL 3909163, at *11.
III. Claims against Individuals in their Official Capacities
Plaintiff argues that, because she has plausibly
alleged a Section 1983 claim against the District, her claims
2 The Court agrees with Judge Boyle that Plaintiff has not plausibly alleged an unlawful custom, pattern, or practice. (See R&R 11-12.)
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against the individual defendants in their official capacities
should not have been rejected as futile. (Pl. Br. 10.) Having
concluded above that Plaintiff has not, in fact, stated a
Section 1983 claim against the District, the Court agrees with
Judge Boyle that Plaintiff’s proposed claims against the
individual defendants in their official capacities are futile.
IV. Plaintiff’s ADA and Rehabilitation Act Claims
Judge Boyle also recommended that Plaintiff’s proposed
ADA and Rehabilitation Act claims be rejected as futile. As far
as the claims against the proposed individual defendants,
Plaintiff has not offered any authority or persuasive argument
that Judge Boyle’s recommendation was incorrect.
As to the claims against the District, Judge Boyle
found that Plaintiff’s allegations were futile because they did
not allege anything more than an IDEA violation and, without
more, IDEA violations cannot form the basis for ADA or
Rehabilitation Act claims. (R&R 17.) Rather, a plaintiff needs
to show that a defendant acted with bad faith or gross
misjudgment. See French II, 2011 WL 5222856, at *4. The Court
concludes that Plaintiff, in asserting that District employees
manipulated her son’s test scores to accelerate his progress
(PAC ¶ 135), has alleged that the District acted with bad faith
sufficient to support a claim under the ADA or the
Rehabilitation Act. See French II, 2011 WL 5222856, at *4
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(listing elements). Accordingly, Plaintiff will be permitted to
proceed with claims that the District violated the ADA and the
Rehabilitation Act.3
V. Plaintiff’s IDEA Claims
Judge Boyle noted that because damages are not
available under the IDEA, Plaintiff’s proposed IDEA claims
against the proposed individual defendants were futile. (R&R
18.) He noted, however, that Plaintiff may be entitled to seek
damages for IDEA violations under Section 1983 (id.), and
Plaintiff clarified that this is her intent (Pl. Br. 13). For
reasons already discussed, Plaintiff may seek damages under
Section 1983 for IDEA violations only under limited
circumstances which are not alleged to be present here.
[Remainder of Page Intentionally Blank]
3 It is not wholly clear whether the District understood Plaintiff’s motion to amend as seeking to add ADA and Rehabilitation Act claims against the District (see Docket Entry 29 at 4 n.2), perhaps because Plaintiff’s pro se Complaint, liberally construed, arguably asserted these claims already. In any event, the Court’s decision today is without prejudice to the District’s ability to move to dismiss any Amended Complaint.
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CONCLUSION
For the foregoing reasons, the Court adopts the R&R in
part. Plaintiff may amend her Complaint to add her son as a
plaintiff. She may also include IDEA, ADA, and Rehabilitation
Act claims against the District. Her remaining proposed
amendments are denied as futile. Plaintiff’s request for leave
to file a further amended complaint to address the significant
deficiencies that Judge Boyle identified in her PAC is denied.
She may move for leave to amend her complaint in the normal
course.
Separately, the Court notes that earlier in this case,
Judge Boyle received a stack of documents from Plaintiff while
she was proceeding pro se. There is no indication that these
materials were ever served on Defendant, and the Court has not
considered them. The Court will forward these documents to
Plaintiff’s counsel.
SO ORDERED.
/s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J.
Dated: September 17, 2012 Central Islip, New York
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