UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------X JENN-CHING LUO,
Plaintiff,
-against- MEMORANDUM & ORDER 12-CV-3073(JS)(AKT) BALDWIN UNION FREE SCHOOL DISTRICT, MICHELLE GALLO, SUSAN M. GIBSON and ROBERT BRIGLIO,
Defendants. ------------------------------------X APPEARANCES For Plaintiff: Jenn-Ching Luo, pro se 830 Hastings Street Baldwin, NY 11510
For Defendants District and Gallo: Jeltje DeJong, Esq. Kelly E. Wright, Esq. Devitt Spellman Barrett, L.L.P. 50 Route 111 Smithtown, NY 11787
For Defendant Gibson: Ralph A. Catalano, Esq. Catalano, Gallardo & Petropoulous, L.L.P. 1565 Franklin Avenue Mineola, NY 11501
Jennifer B. Ettenger, Esq. Catalano, Gallardo & Petropoulous, L.L.P. 100 Jericho Quadrangle, Suite 326 Jericho, NY 11753
For Defendant Briglio: Martin J. Coleman, Esq. Law Offices of Martin J. Coleman 100 Crossways Park Drive West, Suite 412 Woodbury, NY 11797
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 (“Gallo”), Susan M. Gibson (“Gibson”), and Robert
Briglio (“Briglio,” and collectively “Defendants”); he asserts
violations of the Individuals with Disabilities Education Act
(“IDEA”), Section 1983 of Title 42 of the United States Code
(“Section 1983”), and Section 1985 of Title 42 of the United
States Code (“Section 1985”). Currently pending before the
Court are two motions to dismiss Plaintiff’s Complaint filed by
Gibson and Briglio, respectively, and a partial motion to
dismiss on behalf of the District and Gallo. Also pending
before the Court is Plaintiff’s motion to dismiss Briglio’s
counterclaim. For the following reasons, Gibson and Briglio’s
motions to dismiss are GRANTED; the District and Gallo’s partial
motion to dismiss is GRANTED IN PART and DENIED IN PART; and
Plaintiff’s motion to dismiss Briglio’s counterclaim is DENIED.
BACKGROUND
Plaintiff’s autistic child, B.L., is a student in
Defendant District. (Compl. ¶ 5.) Defendant Gallo is the
director of pupil services for the District (id. ¶ 7), and
2
Defendant Gibson is a legal consultant to the District (id.
¶ 8).
Plaintiff’s claims primarily center around a July 2011
Committee on Special Education (“CSE”) meeting and a subsequent
due process hearing in which Plaintiff and Defendants discussed
educational placement programs and placement recommendations for
B.L. Prior to the CSE meeting, teachers had reported B.L.’s
“lack of motivation.” (Id. ¶ 17.) In an attempt to find a
solution, Plaintiff visited “Camphill special school in
Pennsylvania.” (Id. ¶ 20.) Plaintiff believed that Camphill
presented the kind of “natural-setting environment” that would
motivate B.L. (Id. ¶ 21.) As such, Plaintiff requested a
meeting with the District to discuss B.L.’s possible placement
at Camphill or a similar school. (Id. ¶ 22.)
Plaintiff alleges that, although he shared information
about Camphill with Defendant Gallo, Gallo failed to prepare or
present any information about Camphill or a similar school at
the CSE meeting. (Id. ¶¶ 24-26.) Instead, Gallo presented a
flawed evaluation report from 2009 regarding B.L. (Id. ¶¶ 32-
34.) Furthermore, Plaintiff alleges that Defendant Gibson
advised Gallo to continue distributing the flawed 2009
evaluation report. (Id. ¶ 38.)
Plaintiff was apparently unsatisfied with the results
of the CSE meeting and thus filed a due process complaint. The
3
District held an administrative hearing and appointed Defendant
Robert Briglio as an independent hearing officer (“IHO”).
Plaintiff claims that at the hearing, Briglio erroneously placed
the burden on Plaintiff of demonstrating that Camphill is an
appropriate placement for B.L. (Id. ¶ 51.) In addition,
Briglio accepted the “fabricated” and “baseless” arguments of
Gibson and erroneously ruled in the District’s favor. (Id.
¶¶ 54-57.)1
In addition to the foregoing allegations, Plaintiff
asserts that the District generally has failed to provide B.L.
with a free appropriate public education (“FAPE”). (Id. ¶ 10.)
In support, Plaintiff alleges that various test results reveal
that B.L. has not progressed in certain developmental areas, at
times receiving test results that demonstrate “negative
development.” (Id. ¶¶ 12-13.) According to Plaintiff, the
District has failed to help B.L. develop skills that would allow
him to participate in school activities with other students.
(Id. ¶ 14.) It has also failed to consider B.L.’s educational
needs for the development of an educational program. (Id.
¶ 15.)
1 Plaintiff appealed Briglio’s decision to State Review Officer (“SRO”) Deyoe. (Catalano Decl. 24.) On February 22, 2012, SRO Deyoe upheld Briglio’s decision and dismissed Plaintiff’s appeal. (Catalano Decl. Ex. I.)
4
DISCUSSION
Consistent with the Court’s duty to liberally construe
pro se pleadings, Soto v. Walker, 44 F.3d 169, 173 (2d Cir.
1995), the Court reads Plaintiff’s Complaint to assert the
following federal claims: first, a claim that all Defendants
violated IDEA by (a) failing to consider information regarding
B.L.’s placement at Camphill or a similar setting; (b) failing
to improve B.L.’s language and social skills; and (c) conducting
administrative proceedings in which erroneous arguments were
presented and adopted; second, a Section 1983 claim that all
Defendants deprived Plaintiff of his rights under IDEA for the
same reasons; third, Section 1983 and 1985 claims against Gallo
and Gibson for conspiring to violate Plaintiff’s rights under
IDEA; and fourth, a Section 1983 claim against Gallo, Gibson,
and Briglio for depriving Plaintiff of due process under the
Fourteenth Amendment. The Complaint also asserts a state law
claim of negligence against Gallo.
Many of these claims are similar to those Plaintiff
raised in another case before this Court, Luo v. Baldwin Union
Free Sch. Dist. et al., No. 10-CV-1985 (“Luo I”).2 Thus, the
Court may periodically refer to its previous rulings in that
action.
2 Plaintiff’s current action involves events later in time than those in Luo I.
5
The Court will first address the legal standard on a
motion to dismiss before addressing the parties’ substantive
arguments.
I. Legal Standard
Gibson, the District, and Gallo, move to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). Briglio
moves to dismiss pursuant to Federal Rule of Civil Procedure
12(c).
In deciding Rule 12(b)(6) motions to dismiss, the
Court applies a “plausibility standard,” which is guided by
“[t]wo working principles.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); accord Harris v.
Mills, 572 F.3d 66, 71-72 (2d Cir. 2009). First, although the
Court must accept all allegations as true, this “tenet” is
“inapplicable to legal conclusions;” thus, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678;
accord Harris, 572 F.3d at 72. Second, only complaints that
state a “plausible claim for relief” can survive a Rule 12(b)(6)
motion to dismiss. Iqbal, 556 U.S. at 679. Determining whether
a complaint does so is “a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.” Id.; accord Harris, 572 F.3d at 72.
6
The standard for evaluating Briglio’s motion for
judgment on the pleadings, pursuant to Rule 12(c), is the same
as the standard for a motion to dismiss under Rule 12(b). See
Karedes v. Ackerley Grp., Inc., 423 F.3d 107, 113 (2d Cir.
2005).
In addition, 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 “raise the strongest arguments that they suggest”
Corcoran v. N.Y. Power Auth., 202 F.3d 530, 536 (2d Cir. 1999)
(quoting McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)).
II. IDEA Violations
Plaintiff alleges that all Defendants violated IDEA
by: (a) failing to consider information regarding B.L.’s
placement in Camphill or a similar setting; (b) failing to
improve B.L.’s language and social skills; and (c) conducting
administrative proceedings in which erroneous arguments were
made and adopted.
A. Individual Defendants
To the extent that Plaintiff intends to raise claims
of an IDEA violation against individual defendants Gallo,
Gibson, and Briglio, this Court has previously held that the
IDEA does not provide for individual liability. See Luo I, 2011
WL 941263, at *5 (E.D.N.Y. Mar. 15, 2011) (collecting cases).
7
Accordingly, Plaintiff’s IDEA claims against Gibson, Gallo, and
Briglio are DISMISSED.
B. The District
In addition, the District’s memorandum of law in
support of its motion to dismiss specifically states that
“Defendants do not move to dismiss the remaining claim, the IDEA
administrative review.” (Docket Entry 16 at 1.) Thus, insofar
as Plaintiff brings a claim for IDEA administrative review
against the District, this claim may proceed.
III. Sections 1983 and 1985 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
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).
8
Section 1985 prohibits conspiracy to inference with one’s civil
rights. 42 U.S.C. § 1985.
A. Gibson
Plaintiff explicitly notes in his Complaint that
“Gibson is not sued over her representation in the
administrative hearing.” (Compl. ¶ 39.) Despite this
acknowledgement, the Complaint raises a large number of
allegations against Gibson in connection with the due process
hearing and her representation of the District generally. (See,
e.g., Compl. ¶¶ 39-45, 54-55, 59, 64, 66-69.) The Court
presumes that Plaintiff raises these allegations primarily as a
means of providing background information for his additional
claims.
The only substantive allegations against Gibson are
that she “advised Gallo to continuously distribute the flaw[ed]
2009 evaluation report” and that Gibson conspired with Gallo to
violate the IDEA. (Id. ¶ 38.) To the extent that Plaintiff’s
claims against Gibson arise out of her legal advice to Gallo or
in her role as advocate for the District, Gibson was not acting
under color of state law. See Goetz v. Windsor Cent. Sch.
Dist., 593 F. Supp. 526, 528-29 (N.D.N.Y. 1984) (complaint,
which alleged that attorney rendered professional advice to
school district, did not allege conduct constituting action
“under color of state law”); c.f. Polk Cnty. v. Dodson, 454 U.S.
9
312, 325, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981) (“[W]e decide
. . . that a public defender does not act under color of state
law when performing a lawyer’s traditional functions as counsel
to a defendant in a criminal proceeding.”). To the extent that
Plaintiff claims that Gibson conspired to deny Plaintiff of his
rights, Plaintiff’s Complaint contains only conclusory
allegations of conspiracy, which are insufficient to overcome a
motion to dismiss. See Browdy v. Kapre, 131 F. App’x 751, 753
(2d Cir. 2005); Ciambriello v. Cnty. of Nassau, 292 F.3d 307,
324 (2d Cir. 2002). Accordingly, Plaintiff’s Section 1983 and
1985 claims against Gibson are DISMISSED.
B. Briglio
There is no dispute that Defendant Briglio was acting
under color of state law in his capacity as IHO. (See Briglio’s
Memo. of Law, Docket Entry 18 at 4.) Briglio asserts, however,
that he is entitled to absolute judicial immunity against
Plaintiff’s Section 1983 claims. The Court agrees.
“A judge defending against a section 1983 suit is
entitled to absolute immunity from damages for actions performed
in his judicial capacity.” Fields v. Soloff, 920 F.2d 1114,
1119 (2d Cir. 1990). “This immunity also extends to
administrative officials performing functions closely associated
with the judicial process because the role of the ‘hearing
examiner or administrative law judge . . . is functionally
10
comparable to that of a judge.’” Montero v. Travis, 171 F.3d
757, 760 (2d Cir. 1999) (quoting Butz v. Economou, 438 U.S. 478,
513, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978)). Here, Briglio
presided over the administrative hearing, and Plaintiff
essentially challenges his rulings. This is just the type of
scenario to which absolute judicial immunity applies.
Accordingly, Plaintiff’s Section 1983 claims against Briglio are
DISMISSED.3
C. Gallo, and the District Generally
As with Briglio, Defendants do not raise any assertion
that Gallo was not acting under color of state law. Thus, the
issue is whether Plaintiff has alleged the deprivation of a
federal right.
1. IDEA Violations
As this Court has acknowledged in Luo I, the Second
Circuit permits IDEA-based Section 1983 claims where the
plaintiff was denied the procedural or administrative remedies
that IDEA provides. See Luo I, 2011 WL 941263, at *6 (citing
Streck v. Bd. of Educ. of East Greenbush Sch. Dist., 280 F.
App’x 66, 68 (2d Cir. 2008); Quackenbush v. Johnson City Sch.
Dist., 716 F.2d 141, 148 (2d Cir. 1983); K.M. ex rel. A.M. v.
3 To the extent that Plaintiff raises a Section 1983 claim against Briglio regarding his failure to comply with applicable regulations and governing timelines, said claims are also DISMISSED as a result of Brilgio’s absolute immunity. (See, e.g., Compl. ¶¶ 49-50.)
11
Manhasset Union Free Sch. Dist., No. 04-CV-1031, 2006 WL
1071568, at *7 (E.D.N.Y. Apr. 20, 2006)). The Court finds that
Plaintiff’s claims regarding a failure to consider Camphill or a
similar setting and conduct administrative proceedings in which
erroneous arguments were made and adopted assert denial of
procedural or administrative remedies that IDEA provides.
Therefore, Plaintiff may use Section 1983 to redress those
violations. However, Plaintiff’s claim that Gallo and the
District failed to improve B.L.’s language and social skills
does not assert such a claim, and thus, said Section 1983 claim
against Gallo is DISMISSED.
a. Administrative Proceedings
Plaintiff’s claims regarding placement in Camphill and
the flawed administrative proceedings mirror those that
Plaintiff raised in Luo I. For example, in Luo I Plaintiff
alleged that “misconduct prevented him from pursuing his
grievances at an impartial due process hearing, and that the
state review process was a sham.” Luo I, 2011 WL 941263, at *6.
Similarly, here, Plaintiff claims that he was deprived of an
impartial hearing, in part because Gallo withheld information at
the due process hearing and continued to disseminate a flawed
evaluation report. Thus, Plaintiff may use Section 1983 to
redress his claim that he was unable to pursue his grievances in
an impartial hearing. See Taylor v. Vermont Dep’t of Educ., 313
12
F.3d 768, 790 (2d Cir. 2002) (“[I]f plaintiffs can demonstrate
that there is no relief available to them through the
administrative process, they may [seek monetary damages for IDEA
violations pursuant to § 1983].”); Mrs. W. v. Tirozzi, 832 F.2d
748, 757 (2d Cir. 1987) (affirming the denial of a motion to
dismiss a Section 1983 claim where the plaintiffs alleged
violations that were unable to be addressed at due process
hearing). Therefore, the District and Gallo’s motion to dismiss
this claim is DENIED.
b. Failure to Consider Camphill or Similar Setting
In addition, Plaintiff’s claims that Gallo failed to
consider placement in Camphill or a similar environment and did
not disseminate information regarding Camphill arguably asserts
that Plaintiff was denied a procedural right under IDEA.
Parents are required members of the IEP team, and thus must be
afforded a meaningful opportunity to make recommendations
regarding the educational placement of their child. 34 C.F.R.
§§ 300.321, 300.322.
Plaintiff alleges that Gallo failed to disseminate
such a concept at the CSE meeting. (Compl. ¶¶ 24-28.)
Liberally construing these allegations, the Court reads the
Complaint to assert that Plaintiff was not afforded a meaningful
13
opportunity to recommend an educational placement involving a
“natural setting” program. See Concerned Parents & Citizens for
the Continuing Ed. of Malcolm X (PS 79) v. N.Y.C. Bd. of Educ.,
629 F.2d 751, 753 (2d Cir. 1980) (“[T]he term ‘educational
placement’ refers only to the general type of educational
program in which the child is placed.”). Accordingly, in this
respect, Plaintiff has sufficiently alleged that he was deprived
of a federal right under IDEA. As such, the District and
Gallo’s motion to dismiss this claim is DENIED.
The Court notes, however, that Plaintiff does not have
a procedural right in the specific locational placement of his
child, as opposed to the educational placement. See R.E. v.
N.Y.C. Dep’t of Educ., 694 F.3d 167, 191-92 (2d Cir. 2012) (“The
Department may select the specific school without the advice of
the parents so long as it conforms to the program offered in the
IEP.”); T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 420 (2d
Cir. 2009) (“Therefore, we conclude that because there is no
requirement in the IDEA that the IEP name a specific school
location, T.Y.’s IEP was not procedurally deficient for that
reason.”); F.L. ex rel. F.L. v. N.Y.C. Dep’t of Educ., No. 11-
CV-5131, 2012 WL 4891748, at *11 (S.D.N.Y. Oct. 16, 2012)
(“Parents are entitled to participate in any decision regarding
the educational placement of their child. Parents are not,
14
however, procedurally entitled to participate in the decision
regarding school placement.”).
Therefore, to the extent that Plaintiff alleges an
IDEA violation regarding consideration of Camphill specifically,
such a claim is not cognizable.
c. Failure to Improve B.L.’s Language and Social Skills
Plaintiff’s claims regarding a failure to improve
B.L.’s language and social skills, however, do not relate to a
procedural or administrative remedy under IDEA. The Complaint
does not identify how B.L.’s lack of progress was the result of
any failures to comply with procedural requirements of IDEA.
Rather, it asserts, in conclusory fashion, that the District did
not help B.L. improve his skills. (Compl. ¶ 13 (The District
“never helped the student to improve his language.”).) “A
procedural violation generally concerns the process by which the
IEP and placement offer was developed and conveyed; on the other
hand, a substantive violation arises from a deficiency in the
programming being offered.” P.K. ex rel. S.K. v. N.Y.C. Dep’t
of Educ. (Region 4), 819 F. Supp. 2d 90, 105 (E.D.N.Y. 2011).
Plaintiff’s allegations apparently stem from
deficiencies in the program, which allegedly caused B.L.’s
“negative development.” (Compl. ¶ 12.) As Plaintiff has not
asserted deprivation of a procedural or administrative remedy
15
under IDEA, he cannot sustain a Section 1983 claim on this
ground. Thus, Plaintiff’s claim under Section 1983 relating to
Gallo and the District’s alleged failure to improve B.L.’s
skills is DISMISSED.
d. Conspiracy Claim against Gallo
For the same reasons asserted above with respect to
Defendant Gibson, the Court finds that Plaintiff’s claims of
conspiracy are insufficient. Plaintiff asserts a conclusory
allegation that Gallo and Gibson conspired with one another to
deny B.L. a FAPE. (Comp. ¶ 38.) This is insufficient, and
therefore Plaintiff’s claim in this respect is DISMISSED.
2. Due Process
Plaintiff also asserts what appears to be a Section
1983 claim based on the Fourteenth Amendment’s due process
clause. Although the Complaint does not specify the nature of
Plaintiff’s due process claim, the Court reads the Complaint to
assert that the Defendants allegedly violated Plaintiff’s right
to due process when, at the administrative hearings, Defendants
District, Gallo, and Gibson presented, and Defendant Briglio
accepted, erroneous and false arguments. As the Court noted in
Luo I in connection with a similar claim, such a due process
claim must fail because it “is well settled . . . that a
plaintiff asserting a constitutionally based [Section 1983]
claim for procedural violations of the IDEA must establish a
16
constitutional violation ‘outside the scope of the IDEA.’” (Luo
I at 20 (quoting Engwiller v. Pine Plains Cent. Sch. Dist., 110
F. Supp. 2d 236, 250 (S.D.N.Y. 2000).) As Plaintiff’s claim in
this regarding is actionable under IDEA, his due process claim
fails. Therefore, Plaintiff’s due process claim is DISMISSED.
D. The District
In addition, the District seeks to dismiss Plaintiff’s
Section 1983 claims against it because Plaintiff has failed to
allege a Monell claim against it. The Court disagrees.
To prevail on a Section 1983 claim against a
municipality, a plaintiff must show “an injury to a
constitutionally protected right . . . that . . . was caused by
a policy or custom of the municipality or by a municipal
official ‘responsible for establishing final policy.’” Hartline
v. Gallo, 546 F.3d 95, 103 (2d Cir. 2008) (quoting Skehan v.
Village of Mamaroneck, 465 F.3d 96, 108-09 (2d Cir. 2006),
overruled on other grounds by Appel v. Spridon, 531 F.3d 138,
140 (2d Cir. 2008)); see also Monell v. Dep’t of Soc. Servs. of
City of N.Y., 436 U.S. 658, 690-91, 98 S. Ct. 2018, 56 L. Ed. 2d
611 (1978). “For purposes of § 1983, school districts are
considered to be local governments and are subject to similar
liability as local governments under Monell.” Booker v. Bd. of
Educ., 238 F. Supp. 2d 469, 475 (N.D.N.Y. 2002).
17
The District asserts that Plaintiff has failed to
allege a policy or practice which caused his constitutional
rights to be violated. However, the Complaint does allege a
continuing violation--i.e., circulating a flawed evaluation
report (Compl. ¶ 37)--and alleges a practice of generally
depriving B.L. a FAPE (id. ¶¶ 10-16). Thus, Plaintiff alleges
“facts from which it could be plausibly inferred that such a
policy or custom caused” the alleged violation. Harris v.
Westchester Cnty. Dep’t of Corr., No. 06-CV-2011, 2008 WL
953616, at *11 (S.D.N.Y. Apr. 3, 2008). Accordingly, the
District’s motion to dismiss Plaintiff’s Section 1983 claims
against the District based upon Monell liability is DENIED.
IV. State Law Negligence Claim
In addition to his federal claims, Plaintiff also
brings a claim of common law negligence against Defendant Gallo.4
Gallo moves to dismiss this claim because it is essentially a
claim under the educational malpractice theory, which New York
courts have rejected. The Court agrees.
“Where the essence of the complaint is that the school
breached its agreement by failing to provide an effective
education, the complaint must be dismissed as an impermissible
attempt to avoid the rule that there is no claim in New York for
4 The District has moved for dismissal of Plaintiff’s negligence claim against it. However, the Court reads the Complaint to assert a claim of negligence against Defendant Gallo only.
18
‘educational malpractice.’” Gally v. Columbia Univ., 22 F.
Supp. 2d 199, 206-07 (S.D.N.Y. 1998). Here, Plaintiff alleges
that Gallo “never took any steps to assess and find an
educational environment which could motivate the student”
(Compl. ¶ 19), that “she never presented information of
educational needs for [the] CSE meeting to develop an
appropriate educational program for the student” (id. ¶ 32), and
that she “continuously distributed the flaw [sic] 2009
evaluation report” (id. ¶ 35). In making these allegations,
Plaintiff essentially attacks the professional judgment of Gallo
and requests that the Court review her decisions. New York
courts have rejected the educational malpractice theory because
“public policy precludes judicial interference with the
professional judgment of educators and with educational policies
and practices.” Suriano v. Hyde Park Cent. Sch. Dist., 203
A.D.2d 553, 554, 611 N.Y.S. 2d 20 (2d Dep’t 1994). Thus, the
Court finds that Plaintiff’s claims sound in educational
malpractice, an untenable theory. Plaintiff’s claim for
negligence against Gallo is therefore DISMISSED.
V. Plaintiff’s Motion to Dismiss Briglio’s Counterclaim
Finally, Plaintiff seeks to dismiss Briglio’s
counterclaim against Plaintiff. On July 11, 2012 Briglio filed
his Answer to the Complaint and Counterclaim (Docket Entry 6).
In that submission, Briglio claims that Plaintiff filed this
19
lawsuit to “punish and/or publicly demean all defendants in this
case.” (Id. ¶ 13) Such “improper uses of the Complaint,”
according to Briglio, “constitute an abuse of process.” (Id. ¶
15.) Plaintiff seeks dismissal of Briglio’s counterclaim
because, he argues, it was not timely and Plaintiff’s claims are
not frivolous.
The Court notes that Briglio’s answer and counterclaim
were not untimely. Federal Rule of Civil Procedure 12 provides
that a defendant must serve a responsive pleading within twenty-
one days after being served with the summons and complaint. FED.
R. CIV. P. 12(a)(1). Briglio was served with the Complaint on
June 20, 2012. Briglio filed his answer and counterclaim, with
a copy to Plaintiff, on July 11, 2012. (Docket Entry 6.)
Further, Plaintiff’s arguments that the Complaint is
not frivolous and does not constitute an abuse of process are
not enough to dismiss Briglio’s counterclaim. “Abuse of process
has three essential elements: (1) regularly issued process,
either civil or criminal, (2) an intent to do harm without
excuse or justification, and (3) use of the process in a
perverted manner to obtain a collateral objective.” Jacques v.
DiMarzio, Inc., 216 F. Supp. 2d 139, 142 (E.D.N.Y. 2002)
(internal quotation marks and citation omitted). Briglio’s
counterclaim alleges that Plaintiff has filed four other federal
court actions and various appeals, that Plaintiff intended to
20
publicly demean Defendants, and that Plaintiff had the ulterior
motive of seeking to punish Defendants. Plaintiff’s arguments
may tend to show that he brought suit for a legitimate purpose,
and therefore did not have the requisite intent to harm. At
this stage, however, Briglio’s counterclaim is plausible, and
thus satisfies the applicable pleading standards. See supra at
6-7. Accordingly, Plaintiff’s motion to dismiss Briglio’s
counterclaim is DENIED.
In addition, the Court takes this opportunity to note
the quantity of foul language used in the Complaint. (See,
e.g., Compl. ¶¶ 47, 50-52, 57 (characterizing Briglio’s conduct
and rulings as “bullshit”); id. ¶¶ 54-55 (describing Gibson as a
“big asshole”); id. ¶ 70 (calling the hearing an “asshole
parade”).) Plaintiff is warned that he will be sanctioned if he
continues to disrespect the dignity of the proceedings in the
future. See Koehl v. Greene, 424 F. App’x 61, 62 (2d Cir. 2011)
(upholding dismissal of pro se complaint as a sanction for
“repeatedly filing documents with the court that contained
derogatory and offensive statements regarding the presiding
magistrate judge and opposing counsel).
CONCLUSION
For the foregoing reasons, Gibson and Briglio’s
motions to dismiss are GRANTED. The District and Gallo’s
partial motion to dismiss is GRANTED IN PART and DENIED IN PART.
21
Plaintiff’s motion to dismiss Briglio’s counterclaim is DENIED.
Plaintiff’s remaining claims, therefore, are his claim for IDEA
administrative review, and his Section 1983 claims against Gallo
and the District for (a) failing to consider information
regarding B.L.’s placement in a Camphill-like setting and thus
not providing Plaintiff a meaningful opportunity to recommend an
educational placement, and (b) conducting administrative
proceedings in which erroneous arguments were made and adopted.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is denied for purpose of
an appeal. Coppedge v. United States, 369 U.S. 438, 444-45, 82
S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to terminate Gibson
and Briglio as Defendants in this action and mail a copy of this
Order to the pro se Plaintiff.
SO ORDERED.
/s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: March 21 , 2013 Central Islip, New York
22