UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------)( MONA CONWAY, Individually and on behalf of her son K.C.G., a child with a disability and those similarly situated,
Plaintiffs,
-against- OPINION AND ORDER 13-CV-5283 (SJF)(WDW) BOARD OF EDUCATION OF NORTHPORT- EAST NORTHPORT SCHOOL DISTRICT, MARYLOU MCDERMOTT, in her individual FILED and official capacity as Superintendent of Schools, IN CLERK'S OFFICE CHRISTINA PULASKI, in her individual and U S DISTRICT COURT E D NY official capacity as Director of Special Education, IRENE McLAUGHLIN, in her individual and official capacity as Principal ofNORTHPORT * AUG 01 Z014 * HIGH SCHOOL, DENISE KEENAN, in her lONG ISLAND OFFICE individual and official capacity as Vice-Principal, TERRENCE HINSON, in his individual and official capacity as Chairperson of Guidance, and REGINA THOMAS, in her individual and official capacity as Guidance Counselor,
Defendants. ------------------------------------------------------------)( FEUERSTEIN, J.
On September 23, 2013,pro se plaintiff Mona Conway ("plaintiff'') commenced this
action' on behalf of herself and her son, K.C.G?, a child with a disability, against defendant
Board of Education ofNorthport-East Northport School District ("the Board of Education" or
"the School District") and defendants Marylou McDermott ("McDermott''), in her individual and
1 Although plaintiff claims to bring this action on behalf of "those similarly situated," she never moved for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. 2 Although appearing pro se in this action, plaintiff is an attorney licensed to practice in the State ofNew York and, therefore, can maintain this action on behalf of her son.
I ---- 4 -
official capacity as Superintendent of Schools; Christina Pulaski ("Pulaski"), in her individual
and official capacity as Director of Special Education; Irene McLaughlin ("McLaughlin"), in her
individual and official capacity as Principal of Northport High School ("Northport H.S." or "the
School"); Denise Keenan ("Keenan"), in her individual and official capacity as Vice-Principal of
Northport H.S.; Terrence Hinson ("Hinson"), in his individual and official capacity as
Chairperson of Guidance; and Regina Thomas ("Thomas"), in her individual and official
capacity as Guidance Counselor (collectively, "the individual defendants"), alleging violations of
the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq.; the
Rehabilitation Act of 1973 ("the Rehabilitation Act"), 29 U.S.C. § 794; and the Civil Rights Act
of 1871,42 U.S.C. § 1983 ("Section 1983"). The School District and individual defendants
(collectively, "defendants") now move to dismiss the complaint pursuant to Rules 12(b)(I) and
(6) of the Federal Ru1es of Civil Procedure for lack of subject matter jurisdiction and failure to
state a claim for relief. For the reasons set forth below, the motion is denied.
I. Background
A. Factual Background'
At the time this action was commenced, K.C.G. was seventeen (I 7) years old.
(Complaint ["Compl."], ~ 4).
On or about August 7, 2012, plaintiff appeared at Northport H.S. to register K.C.G. "as an
incoming Junior (eleventh grade)," (Compl., ~ 16), as her family "had just moved into the school
3 The following facts are taken from the complaint and are assumed to be true for purposes of this motion. They do not constitute findings of fact by the Court.
2
district," (Compl., ~ 4). At that time, plaintiff: (1) submitted "all pertinent and otherwise
required paperwork* * • to the admissions department at Northport H.S.; such paperwork
included retrieved documentation from [K.C.G.'s] previous high school, Huntington High
School, and medical information[,]" (Compl., ~ 17); (2) notified "attendance personnel" (a) that
[K.C.G.] was having medical problems, causing him to have to attend his last months at
Huntington High School on 'home instruction[,]"' (Compl., ~ 18), and (b) that K.C.G. "was
being treated by physicians for chronic stomach pains, migraine headaches, insomnia, anxiety
and depression," (Compl., ~ 19); and (3) requested "that a conference with a guidance counselor
be scheduled as soon as possible to ensure that an evaluation and suitable accommodations be
put in place before the start of the school year." @J
On or about August 14, 2012, K.C.G. had a physical examination by his treating
physician, who completed the School District's "standard physical examination form," (Compl.,
~ 20), indicating that K.C.G. was being treated for "stomach pains, headaches, anxiety,
depression, ADD [attention deficit disorder]," (Compl. ~ 21), and submitted it to Northport H.S.,
(Compl., ~ 20).
On or about August 15,2012, plaintiff met with Hinson "to discuss [K.C.G.'s] disabilities
and further discuss Northport H.S.'s available accommodations[,]" (Compl., ~ 22), at which time
Hinson "assured" her that Northport H.S. would make "appropriate accommodations" for K.C.G.
(Id.) According to plaintiff, although Hinson scheduled a "follow-up meeting • * * to speak with
[K.C.G.], introduce him to the school with a tour of the building and further discuss [K.C.G.'s]
medical issues so that an accommodation could be put in place for [K.C.G.][,]" (Compl., ~ 23),
he subsequently cancelled that meeting and never rescheduled it (Compl., ~ 24). "Instead,
3
[K.C.G.] was referred to Regina Thomas • • • to discuss accommodations for [him] and an
appointment was scheduled to take place before the start of the school year." (Compl., ~ 25).
According to plaintiff, Thomas twice rescheduled the meeting, ultimately rescheduling it
on September 5, 2012, the first day of school. (Compl., ~ 26). On September 5, 2012, plaintiff
and K.C.G. met with Thomas. (Compl., ~ 27). After plaintiff "raised the issue of [K.C.G's]
disability," Steven Bouchet ("Bouchet"), whom plaintiff believes to be the School's social
worker, "was called to Ms. Thomas's office to assist." (Compl., ~ 27, 29). According to
plaintiff, "[a] brief and harried discussion took place between [her]self, Mr. Bouchet, Ms.
Thomas and [K.C.G.], as Ms. Thomas rushed to attend to several different tasks[,] • • •
apologized profusely for the delays, lack of information and stressful beginning of the school
year for [K.C.G.] and promised to schedule a focused meeting to address [K.C.G.'s] disabilities."
(Compl., ~~ 30-31 ).
On or about September 12, 2012, K.C.G. "lost consciousness as a result of a panic attack
and collapsed into a bakery shelf display," following which he was taken by ambulance to
Huntington Hospital where he "received multiple stitches across his nose and eyelid." (Compl., ~
32). After the "guidance office" at Northport H.S. was notified of that incident, "[a]n impromptu
decision was made by [it] to place [K.C.G.] on 'home instruction' as a temporary measure until
an evaluation by the School's psychiatrist could be conducted." (Compl., ~ 34).
"Approximately four (4) weeks later, [K.C.G.] was provided with a list of five (5) home
instructors, along with a schedule to meet such instructors at the local library, which is
approximately one-and-a-half miles from [his] residence." (Compl., ~ 35). According to
plaintiff, she "was required to take time from work each day to drive [K.C.G.] to and from the
4 PageID #: ...._...... <pageID>
library for 'home instruction[,]'" (Compl., ~ 36), in the subjects of algebra, U.S. history, forensic
science, English and "Living Environment." (Compl., ~ 37). K.C.G. "was not offered any
electives for home instruction, nor was he given any home instruction for physical education."
(Compl., ~ 38). Thus, according to plaintiff, "remaining on home instruction throughout the
entire school year would necessarily deprive [K.C.G.] of an opportunity to meet the requisite
credit number to enable him to graduate on time." (I d.)
According to plaintiff, K.C.G. "attended home instruction as consistently as he could,
given his chronic illness and was, to [her] knowledge, performing well and at grade level."
(Compl., ~ 39). "The limited reports [plaintiff] received with respect to [K.C.G.'s] progress were
almost always verbal and only after [she] inquired regarding same from each of his instructors."
(Compl., ~ 40).
Plaintiff alleges that "[f]rom September through December, [she] made periodic
telephone calls to Steven Bouchet and the guidance office to follow-up on the status of
[K.C.G.'s] evaluation[,]" (Compl., ~ 41), but it was not until "[s]ometime in November of2012"
that Northport H.S. contacted her to advise her that K.C.G. "was assigned to a psychiatrist for an
evaluation." (Compl., ~ 42). That evaluation did not occur because the psychiatrist subsequently
left Northport H.S. (Compl., ~ 43).
"On or about December 6, 2012, Mr. Bouchet contacted [plaintiff] to inform [her] that all
of [K.C.G.'s] records- including medical records from his treating physician and previous school
- had been requested by superior school personnel and suggested that some form of
accommodation would be designed for [K.C.G.] with respect to his disability." (Compl., ~ 44).
On or about December II, 2012, K.C.G. and his parents attended a meeting at Northport
5
H.S. with Bouchet, Thomas "and, for a brief period, a person introduced as psychologist, Dr.
Digose," to discuss K.C.G.'s disability, (Compl., 'lf'l/45-46), during which they "were informed
that the school would be working on an evaluation plan and further discussion regarding an
appropriate of[sic] instruction would be forthcoming." (Compl., 'l/47). According to plaintiff,
"[o]verthe next several weeks, [she] made periodic telephone calls to Steven Bouchet and the
guidance office to follow-up on the status of[K.C.G.'s] pending evaluation." (Compl., 'l/48).
On or about January 18, 2013, Bouchet contacted plaintiff, advised her that "he had
spoken with the Chairperson of Special Education and that the School was still working on
[K.C.G.'s] case[,]" apologized for the delays and indicated that the delays "were due to staff
illnesses." (Compl., 'l/49).
On or about February 4, 2013, Thomas cancelled "an annual 'Junior Conference'" with
K.C.G. that she had scheduled for February 6, 2013 "to discuss course planning for the
following year and * * * college offerings and planning," (Compl., 'l/50), because "she believed
that such a meeting was not appropriate for [K.C.G.]." (Compl., 'l/51).
Plaintiff alleges that in February and March of2013, Dr. Digose; Rosanne Grasso, Dr.
Digose's "replacement;" and Dr. Michael Comiskey, Grasso's "replacement," all contacted her
"to inform [her] that an evaluation of [K.C.G.'s] disability would be forthcoming." (Compl., 'l/
52). According to plaintiff, Northport H.S. cancelled: (a) her appointment to meet with Dr.
Digose on March II, 2013; (b) a psychological evaluation scheduled for March 22, 2013; and (c)
a meeting with school personnel scheduled for Aprill9, 2013. (Compl., 'l/'l/53, 55-56).
Northport H.S. conducted an educational evaluation ofK.C.G. on March 20, 2013. (Compl., 'l/
54). However, according to plaintiff, the educational evaluation: (a) "was inappropriate, as it
6 -.:. •....-"- tested for learning disabilities, which was never a concern with respect to [K.C.G.][,] [who] has a
high I.Q. with no apparent learning disabilities," (Compl., -,r 54); (b) was done "simply [to]
placate[] [her] continuous pleas for assistance from the School," (ill,); and (c) "delayed the
process of helping [K.C.G.]." (Id.)
On or about March 27, 2013, plaintiff was sent "a written notification of a Meeting of the
Committee on Special Education (CSE) * * *scheduled for April19, 2013 at I :45 p.m." ("the
CSE meeting"). (Compl., -,r 57).
Dr. Comiskey conducted a psychological evaluation ofK.C.G. on April3, 2013 and
produced a seven (7)-page report of his findings on April15, 2013. (Compl., -,r 58). According
to plaintiff, Dr. Comiskey found that K.C.G. "had no indication oflearning disabilities" and
"presented 'a high average Full-Scale IQ[,]'" (Compl., -,r 59), and recommended that "the current
level of impact [K.C.G.'s] behavior, emotions, and reported medical concerns has had on his
education be considered when discussing intervention through Special Education[,]"' (Compl., -,r
60).
On April IS, 2013, plaintiff met with Dr. Comiskey in his office at Northport H.S., at
which time she "explained to him that Northport H.S. had taken so much time to schedule an
evaluation of [K.C.G.] that he had been on home instruction for most of the school year[,] * * *
expressed the inappropriateness of th[o ]se measures and implored him to do what he could to
expedite the process on [K.C.G.'s] behalf." (Compl., -,r 61). According to plaintiff, "Dr.
Comiskey appeared to be very understanding and promised to do his best, working in
conjunction with Mr. Bouchet, to get [K.C.G.] properly evaluated and devise an appropriate
educational schedule for him." (Id.)
7
On April19, 2013, the CSE meeting, attended by plaintiff, CSE chairperson Ally Giaimo
("Giaimo"), Keenan, "Special Education Teacher, Meredith Kule and a substitute for Dr.
Michael Comiskey named 'Dr. White"', (Campi., '1[63), began late. (Campi., '1[62). In addition
to those appearing in person at the conference, Thomas and K.C.G. 's home instructor for U.S.
History, Jennifer Cain ("Cain"), "partially participated by telephone." (Campi., '1['1[63-64).
During the meeting, Cain indicated "for the first time" that K.C.G. "was 'missing' 90% of his
work." (Campi., '1[64). However, according to plaintiff, "within two (2) weeks prior to th[e]
[CSE] meeting," she had asked Cain how K.C.G. was doing during a home instruction session in
her home and Cain "only expressed how impressed she was with [K.C.G.'s] knowledge of the
Civil War and related materials that were currently being studied." iliU
Plaintiff alleges that"[d]uring the CSE Meeting, the Committee Chair verbally denied
any assistance to [K.C.G.], based on the findings of the participants of the Committee." (Campi.,
'1[65). According to plaintiff, after she "insisted that the Committee reevaluate its decision,
stating that [K.C.G.] had been out of school for nearly eight (8) months because the School had
allowed [him] to languish on home instruction without any special assistance and that [he] was
poised to drop out of high school as a result of this lack of care and attention to his education[,].*
* * the Committee changed its initial determination of denial of services." (Campi., '1['1[66-67).
"The Committee's report, dated April 19, 2013, stated that it 'could not determine if [K.G.C.] is
eligible to receive special educational services[]' * * * [and] recommended a 'psychiatric
evaluation."' (Campi., '1['1[68-69).
On April30, 2013, plaintiff and K.C.G. met with Bouchet at Northport H.S. "to, once
again, discuss the School's plans to assist [K.C.G.]." (Campi., '1['1[70-71). According to plaintiff,
8
"Mr. Bouchet spent the first half-hour of this 'meeting' inquiring as to [K.C.G.'s] health and well-being and his home instruction. He then gave us a tour ofthe 'time-out room' of the School. It is a dank room with little-to-no learning materials and no educators present. The 'time-out room' is where children are sent as a disciplinary measure. The reason stated for bringing us to this place was to persuade [K.C.G.] to spend, what Mr. Bouchet estimated was the last 26 school days in this room to finish out his Junior year."
(Compl., ~ 72). When Keenan eventually joined the meeting, she and Bouchet "began discussing
the importance of having [K.C.G.] coming back to school," (Compl., ~~ 74-75), and "spoke
about the same issues that had been previously discussed at length again for the next hour or so."
(Compl., ~ 76). According to plaintiff, approximately two (2) hours after she and K.C.G. had
arrived for the meeting, Thomas "participated in the meeting by bringing [K.C.G.'s] academic
records, which [they] reviewed as a group." (Compl., ~ 77). At that time, K.C.G. and plaintiff
"were first alerted to the fact that art and physical education courses were indicated on his course
schedule." (Compl., ~ 78). According to plaintiff, Keenan did not respond when she asked her
"why [K.C.G.] was not provided with materials to complete th[at] coursework * * *." (Id.) In
addition, plaintiff alleges that she "was also told for the first time, that [K.C.G.] had received
only 1.5 credits from his previous high school[,]** * [which] contradicted the information [I]
that [K.C.G.] and [plaintiff] were given on his first day of school at Northport H.S., when Ms.
Thomas indicated that she would set up a schedule for [K.C.G.] to enable him to graduate on
time[;]* * * [and] [2] [that she] received at a later meeting with another vice-principal of the
School, when [she] was told that [K.C.G.] had 6.75 credits from his previous high school."
(Compl., ~ 80). According to plaintiff, she "strongly objected" to Keenan's and Thomas's
suggestion that K.C.G. return to school and begin to attend classes "[g]iven [K.C.G.'s] medical
9
condition, and the fact that introducing him to new students, new teachers and new materials
with less than four (4) weeks of school days remaining would likely disrupt the progress he had
made academically to that point[.]" (Compl., '1[81). Plaintiff alleges that "Mr. Bouchet agreed
that such a transition would not help [K.C.G.] and would likely be educationally and
psychologically damaging." @,)
"After carefully reviewing [K.C.G. 's] transcripts, it was revealed that the only way [he]
could graduate on time would be for him to take two (2) years of summer school[] [and] [that]
[e]ven if [he] passed all of his current course work and did well on the Regents Exams, he was
destined to be a 'super Senior,' meaning that he could only graduate after his second year of
summer school in August of 20 14." (Compl., '1[82). "After much discussion on the matter,
[K.C.G.] agreed to follow Northport H.S.'s Senior schedule for him, including two full summer
school sessions, so long as he could remain on home instruction for the remainder of the school
year and not be forced to attend classes, as originally proposed by Ms. Keenan." (Compl., '1[83).
According to plaintiff, Keenan "agreed to allow [K.C.G.] to complete his course work via home
instruction until the end of the school year[] * * * [and] then said, 'We'll need another doctor's
note right away."' (Compl., '1[84). Plaintiff"proceeded to immediately arrange another
appointment with [K.C.G.'s] doctor[,]" which was scheduled for the following week. (Compl., '1[
85).
On May 2, 2013, plaintiff"received a telephone call from Steve Bouchet to inform [her]
that [K.C.G. 's] home instruction was immediately terminated[] [and that] [K.C.G.] was directed
to attend his classes in school immediately." (Compl., '1[86).
On May 20, 2013, plaintiff"was contacted by Northport personnel to inform [her] that
10
[K.C.G.'s] home instruction was being reinstated." (Compl., ~ 89). However, according to
plaintiff, "at that time, only two (2) of the five (5) instructors were currently available to
[K.C.G.]." (Compl., ~ 90). Around the same time, plaintiff"received a letter stating that a
psychiatric evaluation would take place on June 17,2013 with Dr. Edelman." (Compl., ~ 91).
On May 22, 2013, plaintiff wrote to Keenan "implor[ing] her to contact her immediately
to remedy the incomprehensible sabotaging of [K.C.G. 's] education[] * • * [and] referenc[ing]
the Regents Exams and how [K.C.G.] might be prepared for them." (Compl., ~ 92). Plaintiff
copied McLaughlin, Bouchet and Dr. Comiskey on that correspondence, ful), but received no
response from any of its recipients. (Compl., ~ 93).
According to plaintiff, "Eleventh grade Regents exams were held on June I 0 through 13,
2013 [] [and] [she] received several telephone messages from someone from 'the Alternative
Program,' stating that the exams were underway each day." (Compl., ~ 94).
On June 17, 2013, plaintiff received a message from someone at Northport H.S. "[a]sking
that [K.C.G.] clean out his locker and stating that a plastic bag was found in it." (Compl., ~ 95).
According to plaintiff, K.C.G. did not have a locker at the School. (Id.) On that same date,
plaintiff: (I) sent a follow-up letter to Keenan, on which she copied McLaughlin, Bouchet and
Dr. Comiskey, "requesting that the issues raised in [her] May 22"d [letter] be addressed[,]"
(Compl., ~ 96); and (2) sent a letter to McDermott enclosing copies of both her May 22"d and
June 17th letters to Keenan and requesting that McDermott contact her because "the issues
involved are extremely serious." (Compl., ~ 98). According to plaintiff, neither Keenan nor
McDermott responded to those letters. (Compl., ~~ 97-98).
On June 21, 2013, at approximately 2:00p.m., Thomas called plaintiff to ask her if
11
K.C.G. would be attending summer school. (Compl., '1[99). When plaintiff asked Thomas if she
read or knew about her "correspondence to the School regarding [K.C.G.'s] academic situation[,]
[Thomas] denied knowing anything about it***." (ML) At approximately 2:30p.m. on that
same date, plaintiff received a telephone call from Pat Lynch ("Lynch") "stating that she was
calling to set up an appointment with [her] to meet with Principal McLaughlin." (Compl., '1[
I 00). According to plaintiff, a meeting "to include only [her]self and Ms. McLaughlin for the
express purpose of addressing the issues raised in [her]letters to Ms. Keenan[,]" was scheduled
for June 27,2013 at 10:00 a.m. (Compl., '1[101).
On June 27,2013, at approximately 9:00a.m., Shannon Dantuono, Northport H.S.'s
Vice-Principal, called plaintiff to advise her that McLaughlin was unavailable for the meeting
and offered to meet with plaintiff, in the presence of Keenan and Dr. Comiskey, "in order to
specifically discuss the contents of[her] May 22, 2013 letter to Denise Keenan." (Compl., '11
103). According to plaintiff, "[d]uring th[e] hour-long meeting, nothing was accomplished; more
time had been wasted[;] • * * further aggravation was added to the already highly frustrated state
of affairs with respect to [K.C.G.'s] High School education[;]*** [plaintiff] received no
apologies • • • [and] was offered preposterous 'solutions' to remedy [K.C.G.'s] academic
situation (including a 'program' for suspended children); [K.C.G.'s] disabilities were continually
ignored; and, ultimately, [her] parental concerns were met with blatant hostility." (Compl., '11'11
105-106).
On June 28, 2013, plaintiff sent a letter to McLaughlin, on which she copied McDermott,
"detailing the [June 27, 2013] meeting** *[;] summariz[ing] the debacle of [K.C.G.'s]
educational experiences at Northport H.S. ***[and] demand[ing] [K.C.G.'s] complete file and
12
• • • information that the School and the District are mandated to provide by law for parents to
dispute the educational plans of students." (Compl., '1[107). According to plaintiff, she
"received no response to [her]letter and no information regarding procedural safeguards for
parents." (Compl., '1[108).
On August 15, 2013, Lynch called plaintiff and told her that K.C.G.'s file "would be
available to pick up on August 19, 2013.'' (Compl., '1[109). Plaintiff alleges that she "picked up
the file prepared for [her], which primarily contains a haphazard collection of academic records,
a few notes and emails, and reports of[K.C.G.'s] progress from his home instructors, which had
not been previously forwarded to [her]." (Compl., '1[110).
Plaintiff also alleges that she "frequently received automated telephone messages
throughout the year, stating that [K.C.G.] had missed certain class periods[,] * * * [which] were
inappropriate since [K.C.G.] was not an in-school student attendee." (Compl., '1[111).
B. Procedural Background
On September 23,2013, plaintiff commenced this action against defendants alleging
violations of the IDEA, the Rehabilitation Act and Section 1983. Specifically, plaintiff alleges,
inter alia: (1) that defendants "have violated [Section 1415] of the IDEA by failing to provide
special education and related services, tailored to meet [K.C.G. 's] unique needs[;] • • • failing to
provide services to [K.C.G.] that are reasonably calculated to enable [him] to receive the
educational benefits he is entitled to under State and Federal law[;] • * • [and] knowingly
refus[ing] to provide [K.C.G.] with an Individualized Education Plan (IEP)" (first cause of
action) (Compl., '1['1[115-116, 119, 134); (2) that the Board of Education, the School District and
13
Northport H.S. violated the Rehabilitation Act "by failing to appropriately accommodate
[K.C.G.'s] disability;" "by discriminating against [K.C.G.] due to his disability;" and by
"knowingly refus[ing] to provide [K.C.G.] with an educational plan" (second cause of action),
(Compl., ~~ 142, 147, 149); and (3) that defendants violated Section 1983 by "directly and
proximately caus[ing] the deprivation of[K.C.G.'s] constitutional rights by systematically
depriving him and [plaintiff] of their rights under the IDEA and by discriminating against
[K.C.G.] under the Rehabilitation Act" (third cause of action), (Compl., ~ 159). Plaintiff seeks,
inter alia, compensatory and punitive damages; an injunction "preventing Defendants from
continuing to engage in the wrongful and illegal conduct as described [in the complaint][;]" and
costs and attorney's fees. (Compl. at 25).
Defendants now move to dismiss the complaint pursuant to Rules 12(b)(I) and ( 6) of the
Federal Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state a
claim for relief.
II. Discussion
A. Rule 12(b)(l)
I. Standard of Review
"Federal courts are courts of limited jurisdiction," Gunn v. Minton,- U.S.-, 133 S. Ct.
1059, 1064, 185 L. Ed. 2d 72 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Americ!!,
511 U.S. 375,377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994)); see also Mims v. Arrow
Financial Services. LLC,- U.S.-, 132 S. Ct. 740, 747, 181 L. Ed. 2d 881 (2012), and may not
preside over cases absent subject matter jurisdiction. See Exxon Mobil Corn. v. Allapattah
14
Services. Inc., 545 U.S. 546, 552, 125 S. Ct. 2611, 162 L. Ed. 2d 502 (2005) (holding that federal
courts may not exercise jurisdiction absent a statutory basis); Kokkonen, 511 U.S. at 377, 114 S.
Ct. 1673 (holding that federal courts "possess only that power authorized by Constitution and
statute • • *. ") Lack of subject matter jurisdiction cannot be waived or forfeited and may be
raised at any time by a party or by the court sua sponte. See Gonzalez v. Thaler,- U.S.-, 132
S. Ct. 641,648, 181 L. Ed. 2d 619 (2012); see also Sebelius v. Auburn Regional Medical Center,
-U.S.-, 133 S. Ct. 817, 824, 184 L. Ed. 2d 627 (2013) ("Objections to a tribunal's
jurisdiction can be raised at any time, even by a party that once conceded the tribunal's subject-
matter jurisdiction over the controversy."); Henderson ex rel. Henderson v. Shinseki,- U.S.-,
131 S. Ct. 1197, 1202, 179 L. Ed. 2d !59 (201l)("[F]ederal courts have an independent
obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they
must raise and decide jurisdictional questions that the parties either overlook or elect not to press.
* • • Objections to subject-matter jurisdiction* * • may be raised at any time.") If a court lacks subject matter jurisdiction, it must dismiss the action. See Fed. R. Civ. P. 12(h)(3); Arbaugh v.
Y & H Com., 546 U.S. 500, 514, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006); Durant. Nichols,
Houston. Hodgson & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62-3 (2d Cir. 2009).
"[M]aterials extrinsic to the complaint" may be considered on a Rule 12(b)(l) motion.
Moser v. Pollin, 294 F.3d 335, 339 (2d Cir. 2002); see also Phifer v. Citv of New York, 289 F.3d
49, 55 (2d Cir. 2002).
2. IDEA Claim
"The IDEA's central mandate is to provide disabled students with a 'free appropriate
15
public education' in the least restrictive environment suitable for their needs." Cave v. East
Meadow Union Free School District, 514 F.3d 240,245 (2d Cir. 2008); see also Polera v. Bd. of
Educ. ofNewburgh Enlarged Citv Sch. Dist., 288 F.3d 478,481-82 (2d Cir. 2002) ("The IDEA*
* * mandates federal grants to states to provide disabled children with 'a free appropriate public
education' in the least restrictive appropriate environment.") "Under the educational scheme of
the IDEA * * *, parents of students with disabling conditions are guaranteed 'both an opportunity
for meaningful input into all decisions affecting their child's education and the right to seek
review of any decisions they think inappropriate."' Cave, 514 F.3d at 245 (quoting Honig v. Doe,
484 U.S. 305,311-12, 108 S. Ct. 592,98 L. Ed. 2d 686 (1988)). "Educators and parents of a
child covered by the IDEA must jointly develop an 'individualized education program' ('IEP')
for each year of the child's education." Polera, 288 F.3d at 482. "The IEP is the central
mechanism by which public schools ensure that their disabled students receive a free appropriate
public education." Id.
"The IDEA requires that states offer parents of a disabled student an array of procedural
safeguards designed to help ensure the education of their child[.]" Polera, 288 F.3d at 482 (citing
20 U.S.C. § 1415(a)4). "If a parent believes that her child's IEP or the school's implementation
of the IEP does not comply with the IDEA, the parent may file a 'due process complaint' with the
appropriate state agency." B.M. v. New York City Department of Education,- F. App'x - ,
2014 WL 2748756, at* 1 (2d Cir. June 18, 2014)(summary order) (citing 20 U.S.C. §
4 Section 1415(a) provides: "Any State educational agency, State agency, or local educational agency that receives assistance under this subchapter shall establish and maintain procedures in accordance with this section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education by such agencies."
16 •
1415(b)(6)'); see also Cave, 514 F.3d at 245 ("Parents are • • • entitled to request a due process
hearing in order to present complaints as 'to any matter relating to the identification, evaluation,
or educational placement of the child, or the provision of a free appropriate public education."'
(quoting 20 U.S.C. § 1415(b)(6)(A))); 20 U.S.C. § 1415(f)(l)(A) ("Whenever a complaint has
been received under subsection (b)(6) * * *, the parents or the local educational agency involved
in such complaint shall have an opportunity for an impartial due process hearing, which shall be
conducted by the State educational agency or by the local educational agency, as determined by
State law or by the State educational agency."); N.Y. Educ. Law§ 4404(l)(a) ("If the parent**
* of a student • • • presents a complaint with respect to any matter relating to the identification,
evaluation or educational placement of the student or the provision of a free appropriate public
education to the student • • •, and the party presenting the complaint or their attorney provides a
due process complaint notice in accordance with federal law and regulations and such complaint
sets forth an alleged violation that occurred not more than two years before the date the parent *
* • knew or should have known about the alleged action that forms the basis for the complaint,
the board or agency shall appoint an impartial hearing officer to review the due process
complaint notice when challenged and, if the matter is not resolved in a resolution session that
has been convened as required by federal Jaw, to preside over an impartial due process hearing
5 Section 1415(b) provides, in relevant part: "The procedures required by this section shall include the following: • * * (6) An opportunity for any party to present a complaint- (A) with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child; and (B) which sets forth an alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for presenting such a complaint under this subchapter, in such time as the State law allows, except that the exceptions to the timeline described in subsection (f)(3)(D) shall apply to the timeline described in this subparagraph."
17 •
and make a determination within such period of time as the commissioner by regulation shall
determine* * * .) "Districts are then permitted a thirty-day 'resolution period' to address alleged
deficiencies without penalty." B.M., 2014 WL 2748756, at* I (citing 20 U.S.C. §
1415(f)(l)(B)6). "Once the resolution period has run, a parent may continue to a due process
hearing before an independent hearing officer ('IHO') and appeal the resulting decision to a state
review officer ('SRO')." Id. (citing 20 U.S.C. § 1415(f)7 ; N.Y. Educ. Law§ 4404(2)8); see also
6 Section 1415(f)(l )(B)(i) provides, in relevant part: "Prior to the opportunity for an impartial due process hearing under subparagraph (A), the local educational agency shall convene a meeting with the parents and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the complaint- (I) within 15 days of receiving notice of the parents' complaint; (II) which shall include a representative of the agency who has decisionmaking authority on behalf of such agency; • • * and (IV) where the parents of the child discuss their complaint, and the facts that form the basis of the complaint, and the local educational agency is provided the opportunity to resolve the complaint, unless the parents and the local educational agency agree in writing to waive such meeting, or agree to use the mediation process described in subsection (e)."
Section 1415(f)(l )(B)(ii) provides: "If the local educational agency has not resolved the complaint to the satisfaction of the parents within 30 days of the receipt of the complaint, the due process hearing may occur, and all of the applicable timelines for a due process hearing under this subchapter shall commence." 7 Section 1415(f)(3)(C) provides: "A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this subchapter, in such time as the State law allows."
Section 14!5(f)(3)(D) provides, in relevant part: "The timeline described in suparagraph (C) shall not apply to a parent if the parent was prevented from requesting the hearing due to-* * • (ii) the local educational agency's withholding of information from the parent that was required under this subchapter to be provided to the parent." 8 Section 4404(2) provides, in relevant part: "A state review officer of the education department shall review and may modify, in such cases and to the extent that the review officer deems necessary, in order to properly effectuate the purposes of this article, any determination of the impartial hearing officer relating to the determination of the nature of a child's handicapping
18 •
20 U.S.C. §§ 1415(g)(!) ("If the hearing required by subsection (f) is conducted by a local
educational agency, any party aggrieved by the findings and decision rendered in such hearing
may appeal such findings and decision to the State educational agency.") and (g)(2) ("The State
educational agency shall conduct an impartial review of the findings and decision appealed under
paragraph (! ). The officer conducting such review shall make an independent decision upon
completion of such review.") "Only after exhaustion ofth[e] procedures [set forth in Section
1415 of the IDEA] has an aggrieved party the right to file a suit in a federal or state court." Cave,
514 F.3d at 245 (citing 20 U.S.C. § 1415(i)(2)(A)9); see also Coleman v. Newburgh Enlarged
Citv Sch. Dist., 503 F .3d 198, 204-05 (2d Cir. 2007) ("It is well settled that the IDEA requires an
aggrieved party to exhaust all administrative remedies before bringing a civil action in federal or
state court .... " (quoting J.S. v. Attica Cent. Sch., 386 F.3d 107, 112 (2d Cir. 2004))).
The Second Circuit has held that "[ f]ailure to exhaust the administrative remedies [set
forth in the IDEA] deprives the court of subject matter jurisdiction." Cave, 514 F.3d at 245; see
also Baldessarre ex rei. Baldessarre v. Monroe-Woodburv Cent. Sch. Dist., 496 F. App'x 131,
133 (2d Cir. Sept. 14, 2012) (summary order); Polera, 288 F.3d at 483 10 "The purpose of the
condition, selection of an appropriate special education program or service and the failure to provide such program and require such board to comply with the provisions of such modification. * * *" 9 Section 1415(i)(2)(A) provides, in relevant part:"* * * [A]ny party aggrieved by the findings and decisions made under this subsection, shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought * * * in a district court of the United States, without regard to the amount in controversy." 10 Although "the Second Circuit, in dicta, has called into question its precedents finding the IDEA's exhaustion requirement to be jurisdictional * * * binding Second Circuit decisions * * * continue to hold * * * that a plaintiff's unexcused failure to exhaust the administrative remedies set forth in the IDEA divests the district court of jurisdiction." M.H. ex rei. K.H. v.
19 i
exhaustion rule is to 'channel disputes related to the education of disabled children into an
administrative process that could apply administrators' expertise in the area and promptly resolve
grievances."' Cave, 514 F.3d at 245-46 (quoting Polera, 288 F.3d at 487); see also J.S., 386 F.3d
at 112 ("Exhaustion of administrative remedies is required under the IDEA so that disputes
related to the education of disabled children are first analyzed by administrators with expertise in
the area who can promptly resolve grievances."); Taylor v. Vermont Department of Education,
313 F.3d 768, 790 (2d Cir. 2002) ("[T]he IDEA's administrative remedies scheme is***
critical because it allows for the exercise of discretion and educational expertise by state and
local agencies, affords full exploration of technical educational issues, furthers development of a
complete factual record, and promotes judicial efficiency by giving these agencies the first
opportunity to correct shortcomings in their educational programs for disabled children."
(quotations and citation omitted)).
It is undisputed that plaintiff did not exhaust the IDEA's administrative remedies.
Mount Vernon Citv Sch. Dist., No. 13-cv-3596, 2014 WL 901578, at* 5 n. 4 (S.D.N.Y. Mar. 3, 2014) (citing Cave, 514 F.3d at 245). In any event, even if no longer considered to be jurisdictional, defendants have challenged plaintiffs failure to exhaust "from [their] first opportunity, mooting the determination whether the exhaustion requirement is jurisdictional or operates as an affmnative * **defense." B.M., 2014 WL 2748756, at* 1; see also Coleman, 503 F.3d at 204 ("[W]e are not forced to decide whether our precedent, which labels the IDEA's exhaustion requirement as a rule affecting subject matter jurisdiction rather than an 'inflexible claim-processing' rule that may be waived or forfeited, remains good Jaw after [certain Supreme Court decisions] because there can be no claim of waiver or forfeiture here[]. Defendants have consistently challenged the district court's exhaustion ruling throughout this litigation.") "Whether or nor the exhaustion requirement is jurisdictional, exhaustion of administrative remedies is a prerequisite to a civil suit unless the plaintiff can allege that an exception should apply." Levine v. Greece Cent. Sch. Dist., 353 F. App'x 461,463 (2d Cir. Nov. 12, 2009) (sununary order). Moreover, even if"merely an affirmative defense," id., where "the complaint on its face shows that there is no possibility that it could be amended to allege facts that, if true, would demonstrate that the plaintiff satisfied the exhaustion requirement, failure to exhaust is a proper ground for a motion to dismiss." Id.
20
2. Rehabilitation Act and Section 1983 Claims
"[C]omplainants must overcome th[e] • • *[exhaustion] hurdle not only when they wish
to file a suit under the IDEA itself, but also whenever they assert claims for relief available under
the IDEA, regardless of the statutory basis of their complaint." Cave, 514 F.3d at 246 (emphasis
in original); see also 20 U.S.C. § 1415(!) ("Nothing in this chapter shall be construed to restrict
or limit the rights, procedures, and remedies available under the Constitution, • * •, title V of the
Rehabilitation Act of 1973 [29 U.S.C.A. § 791, et seq.], or other Federal laws protecting the
rights of children with disabilities, except that before the filing of a civil action under such laws
seeking relief that is also available under this subchapter, the procedures under subsections (f)
and (g) shall be exhausted to the same extent as would be required had the action been brought
under this subchapter." (emphasis added)); J.S., 386 F.3d at 112 ("The [IDEA's] exhaustion
requirement also applies where plaintiffs seek relief under other federal statutes when relief is
also available under the IDEA.") "The language of Section 1415(!) of the IDEA is sufficiently
broad and encompasses complaints asserted under any federal statute, as long as they seek relief
available under the IDEA[,]" Cave, 514 F.3d at 248 (emphasis in original), including claims
under the Rehabilitation Act and Section 1983. See,~ Id. at 248-49 (holding that Section 1983
claims fall "within the scope of Section 1415(!) to the same extent as • * • claims under the
ADA or the Rehabilitation Act."); J.S., 386 F.3d at 112 ("As the district court correctly noted, the
students asserted a section 504 Rehabilitation Act claim and a section 1983 claim that both seek
to ensure a free appropriate public education, thus subjecting both to the IDEA exhaustion
requirement.")
Plaintiff seeks damages and injunctive relief, together with costs and attorney's fees, in
21 • 1
this action. Although injunctive relief, costs and attorney's fees are available under the IDEA,
see Polera, 288 F.3d at 486 (holding that declaratory and injunctive relief, reimbursement of
educational expenses and attorneys' fees are all available under the IDEA); 20 U.S.C. §
1415(i)(3)(B)(i) ("In any action or proceeding brought under this section, the court, in its
discretion, may award reasonable attorneys' fees as part of the costs- (I) to a prevailing party
who is the parent of a child with a disability * * *"), compensatory and punitive damages are not.
See Cave, 514 F.3d at 247; Baldessarre, 496 F. App'x at 133; Polera, 288 F.3d at 486 ("The
purpose of the IDEA is to provide educational services, not compensation for personal injury,
and a damages remedy- as contrasted with reimbursement of expenses-is fundamentally
inconsistent with this goal.")
Although "damages [are] an available remedy in actions brought pursuant to 42 U.S.C. §
1983 for violations of the IDEA," Pol era, 288 F.3d at 483, "a disabled student who claims
deficiencies in her educational program may not bypass the IDEA's administrative exhaustion
rule merely by claiming monetary damages." Cave, 514 F.3d at 247; see also Taylor, 313 F.3d at
789-90 ("A plaintiff cannot evade the IDEA's exhaustion requirement simply by framing his or
her action as one for monetary relief."); Polera, 288 F.3d at 487 (holding that plaintiffs are "not
permitted to evade the IDEA's exhaustion requirement merely by tacking on a request for money
damages.") "[T]he theory behind the grievance may activate the IDEA process, even if the
plaintiff wants a form of relief that the IDEA does not supply." Baldessarre, 496 F. App'x at 133
(quoting Cave, 514 F.3d at 246) (emphasis omitted).
Plaintiff is essentially alleging that defendants denied K.C.G. a free appropriate public
education, i.e, an IEP and appropriate educational and related services, during the 2012-2013
22
academic year, (see Compl., '1['1[135-136, 157-158), which is within the ambit of the IDEA, see,
~ Polera, 288 F.3d at 488 ("The IDEA is intended to remedy precisely the sort of claim made
by [the plaintiff]: that a school district failed to provide her with appropriate educational
services"), and "best dealt with through the [IDEA's] administrative process." Cave, 514 F.3d at
247-48. Accordingly, all of plaintiffs claims are subject to the IDEA's exhaustion requirement.
"The fact that [plaintiff] seeks damages, in addition to reliefthat is available under the IDEA,
does not enable her to sidestep the exhaustion requirements of the IDEA." Polera, 288 F.3d at
488.
3. The Futility Exception
"The exhaustion requirement is excused when exhaustion would be futile because the
administrative procedures do not provide an adequate remedy." Cave, 514 F .3d at 249; see also
Polent, 288 F.3d at 488 (accord). "To show futility, a plaintiff must demonstrate that 'adequate
remedies are not reasonably available' or that 'the wrongs alleged could not or would not have
been corrected by resort to the administrative hearing process." Coleman, 503 F.3d at 205
(quoting J.G. v. Bd. ofEduc. Of Rochester Citv Sch. Dist., 830 F.2d 444,447 (2d Cir. 1987));
see also Cave, 514 F.3d at 249 ("[T]he exhaustion requirement does not apply 'when pursuit of
the administrative remedies would be futile because the agency either was acting in violation of
the law or was unable to remedy the alleged injury."' (quoting Heldman ex rei. T .H. v. Sobol,
962 F.2d 148, 159 (2d Cir. 1992))). The Second Circuit has "accepted arguments of futility
where parents were not informed of administrative remedies, * * * where the state agency was
itself acting contrary to law, * * * where the case involves systemic violations that could not be
23
remedied by local or state administrative agencies, * • • or where an emergency situation exists
(e.g., the failure to take immediate action will adversely affect a child's mental or physical
health)***." Baldessarre, 496 F. App'x at 134 (quotations and citations omitted).
In addition, "if plaintiffs can demonstrate that there is no relief available to them through
the administrative process, they may avail themselves of the futility • * * exception[] to the
exhaustion requirement * • • ." Taylor, 313 F.3d at 790. "Relief available means relief for the
events, condition, or consequences of which the person complains, even if not necessarily relief
ofthe kind the person prefers." Id. (quotations, brackets and citation omitted). "For relief to be
adequate, it must 'give realistic protection to the claimed right."' Coleman, 503 F .3d at 205
(quoting Murphy v. Arlington Cent. Sch. Dist. Bd. ofEduc., 297 F.3d 195, 199 (2d Cir. 2002)).
"The party seeking to avoid exhaustion bears the burden of showing futility." Cave, 514
F.3d at 249; see also Coleman, 503 F.3d at 205 ("The burden of demonstrating futility rests with
the party seeking to avoid the exhaustion requirement.") As courts analyze whether a plaintiff
has sustained the burden of showing futility, they "are to consider whether administrative review
would further the goals of developing facts, making use of available expertise, and promoting
efficiency." J.S., 386 F.3d at 113.
In the complaint, plaintiff alleges, inter alia, that defendants "knowingly refused" to
provide K.C.G. with an IEP "or any similarly designed written statement," thereby depriving him
and plaintiff"ofany meaningful objection(s) to an IEP, the implementation thereof or the
periodic review of same;" denying them "due process in the form of challenging an IEP by
requesting an Impartial Hearing Officer;" and making their "pursuit of any administrative
remedies impossible." (Compl., ~~ 119-121, 123-24, 136). In addition, plaintiff alleges: (I) that
24 ; .
defendants "flatly ignored" her letters "demanding appropriate action and * * * information
regarding procedural remedies[,]" (Compl., '1['1[127-28; see also '1['1[107-08); and (2) that
"exhaustion of any administrative remedies would be futile" because defendants' violations of
the IDEA "were continual and systematic [sic]," (Compl., '1[135).
a. Systemic Violations
The Second Circuit has "excused exhaustion in cases involving systemic violations that
could not be remedied by local or state administrative agencies 'because the framework and
procedures for assessing and placing students in appropriate educational programs were at issue,
or because the nature and volume of complaints were incapable of correction by the
administrative hearing process."' Cave, 514 F.3d at 249 (quoting J.S., 386 F.3d at 114); see also
Levine, 353 F. App'x at 465.
Although plaintiff seeks to prosecute this action as a class action on behalf of other
students similarly situated to K.C.G., she never sought class certification and the complaint
challenges only defendants' purported denial of her requests for a psychiatric evaluation and
other appropriate educational and related services for K.C.G. during the 2012-2013 academic
year. There are no factual allegations in the complaint from which it may reasonably be inferred
that there is "a system-wide violation of the IDEA's mandates or of a district-wide policy of
discrimination against [similarly disabled] students [as K.C.G.]," Cave, 514 F.3d at 250, in the
School District, nor "that the administrative process is so structurally tainted that [plaintiff]
would not have been afforded a fair and impartial forum to present [her] claims." Id. Since
plaintiff is challenging defendants' treatment ofK.C.G. individually, and "does not make
25 PageID #: ; .. <pageID>
allegations other than in conclusory fashion that [K.C.G. 's] situation resulted from systemic
violations of the IDEA," Levine, 353 F. App'x at 465, it would not have been futile for plaintiff
to exhaust administrative remedies on this basis.
b. Availability ofRelief
In Weixel v. Bd. ofEduc. OfCitv of New York, 287 F.3d 138 (2d Cir. 2002), the Second
Circuit held that "[e]xhaustion [under the IDEA] will be excused where* **the parents have
not been notified that [administrative] remedies were available to them[] * * * because the failure
of the defendants to notify [them] of their procedural rights under the IDEA 'deprived [them] of
the opportunity to take advantage of the procedural safeguards offered by the statute."' Id. at 149
(fourth brackets in original) (quoting Quackenbush v. Johnson Citv Sch. Dist., 716 F.2d 141, 147
(2d Cir. 1983)).
Based upon the allegations in the complaint, which are accepted as true for purposes of
this motion, administrative remedies were not available to plaintiff because defendants did not
inform her about the procedural safeguards of the IDEA at any time during the 2012-2013
academic year, in violation of Section 1415 of the IDEA. Defendants' failure to, themselves,
comply with the requirements ofthe IDEA, e.g., by developing an IEP and informing plaintiff of
the procedural safeguards of the IDEA, including the right to submit a due process complaint and
seek a due process hearing, deprived plaintiff of her opportunity to pursue her administrative
remedies under the IDEA in a timely fashion and, thus, deprived her of her "right to seek review
of any decisions [she] [thought] inappropriate." Cave, 514 F.3d at 245. This is not a case of a
plaintiff"bypass[ing] the IDEA's administrative exhaustion rule." Cave, 514 F.3d at 247.
26 i' ' •
Rather, if the allegations of the complaint are proven, plaintiff was deprived of her administrative
remedies by defendants' purported violations of the IDEA.
Moreover, relief is no longer available to plaintiff or K.C.G. under the IDEA insofar as
defendants can no longer provide plaintiff with the educational and related services he required
during the 2012-2013 academic year. As such, the only remedies available to plaintiff and
K.C.G. for defendants' purported violations of the IDEA during the 2012-2013 academic year are
damages and costs pursuant to 42 U.S.C. §§ 1983 and 1988. Moreover, the purpose and goals of
the exhaustion rule are not served by requiring plaintiff to now exhaust her administrative
remedies under the IDEA because, inter alia, plaintiff and K.C.G. have already been deprived of
a prompt resolution of their grievances by defendants' violations of the IDEA and, although
exhaustion might fulfill the goal of developing the facts, it would no longer further the goals of
making use of administrator's expertise or promoting efficiency. Since the complaint plausibly
alleges that administrative remedies were not available to plaintiff, plaintiff has satisfied her
burden of demonstrating at the pleadings stage that exhaustion of administrative remedies under
the IDEA would be futile. Accordingly, the branch of defendants' motion seeking dismissal of
the complaint pursuant to Rule 12(b)(l) of the Federal Rules of Civil Procedure is denied.
B. Rule 12(b)(6)
I. Standard of Review
The standard of review on a motion made pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure is that a plaintiff plead sufficient facts "to state a claim for relief that is
plausible on its face." Bell Atlantic Corn. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974, 167
27 . '' ""' L. Ed. 2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d
868 (2009). The plausibility standard requires "more than a sheer possibility that a defendant has
acted unlawfully." Iqbal, 556 U.S. at 678, 129 S. Ct. 1937.
The pleading of specific facts is not required; rather a complaint need only give the
defendant "fair notice of what the * * * claim is and the grounds upon which it rests." Erickson
v. Pardus, 551 U.S. 89, 127 S. Ct. 2197,2200, 167 L. Ed. 2d 1081 (2007). "A pleading that
offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will
not do."' Iqbal, 556 U.S. at 678, 129 S. Ct. 1937 (quoting Twombly. 550 U.S. at 555, 127 S. Ct.
1955). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual
enhancement."' ld. (quoting Twombly. 550 U.S. at 557, 127 S. Ct. 1955). "Factual allegations
must be enough to raise a right to relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. 544, 127 S.
Ct. at 1959.
In deciding a motion pursuant to Rule 12(b)( 6), the Court must liberally construe the
claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences
in favor of the plaintiff. See Grullon v. Citv of New Haven, 720 F.3d 133, 139 (2d Cir. 2013);
Rothstein v. UBS AG, 708 F.3d 82, 90 (2d Cir. 2013). However, this tenet "is inapplicable to
legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S. Ct. 1937. "While legal
conclusions can provide the framework of a complaint, they must be supported by factual
28
allegations." Id. at 679, 129 S. Ct. 1937. "In keeping with these principles a court considering a
motion to dismiss can choose to begin by identifYing pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth." Id.; see also Ruston v. Town Board
for Town of Skaneateles, 610 F.3d 55,59 (2d Cir. 2010).
Nonetheless, a plaintiff is not required to plead "specific evidence or extra facts beyond
what is needed to make the claim plausible." Arista Records. LLC v. Doe 3, 604 F .3d II O, 120-1
(2d Cir. 2010); see also Matson v. Board of Education of City School District ofNew York, 631
F.3d 57, 63 (2d Cir. 2011) ("While a complaint need not contain detailed factual allegations, it
requires more than an unadorned, the defendant-unlawfully-harmed-me accusation." (internal
quotations and citation omitted)). "When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief." Iqbal, 556 U.S. at 679, 129 S. Ct. 1937.
The Court must limit itself to the facts alleged in the complaint, which are accepted as
true; to any documents attached to the complaint as exhibits or incorporated by reference therein;
to matters of which judicial notice may be taken; or to documents upon the terms and effect of
which the complaint "relies heavily" and which are, thus, rendered "integral" to the complaint.
Chambers v. Time Warner. Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); see also In re Thelen LLP,
736 F.3d 213,219 (2d Cir. 2013).
I. Educational Malpractice Claim
Defendants contend that "the complaint must be dismissed as an impermissible attempt to
avoid the rule that there is no claim in New York for 'educational malpractice.'" (Def. Mem. at
29
8). Plaintiff contends that the complaint clearly states causes of action under federal law, i.e., the
IDEA, the Rehabilitation Act and Section 1983, not for negligence.
Since the complaint does not allege educational malpractice or negligence of any kind,
and plaintiff is not attacking the professional judgment of defendants, but rather their violations
of specific federal laws, this branch of defendants' motion is denied. See,~ M.H., 2014 WL
901578, • 8 (denying branch of the defendants' motion seeking dismissal of the complaint
alleging, inter alia, violations of the IDEA on the basis that the plaintiffs' claims sounded in
educational malpractice because the plaintiffs did not allege educational malpractice or
negligence of any kind and "it is not for the • * • Defendants to characterize plaintiffs' claims at
the motion to dismiss stage when the court is required to determine only whether plaintiffs'
allegations plausibly give rise to an entitlement to relief." (quotations and citation omitted)); cf.
Hoffman v. Bd. ofEduc. ofCitv ofNew York, 49 N.Y.2d 121, 125,424 N.Y.S.2d 376,400
N.E.2d 317 (I 979).
2. Availability of Damages
a. Section 1983 Claim
Defendants contend that plaintiff "has not provided sufficient facts to establish that she
was denied access to either IDEA's complaint resolution procedure as implemented by New
York State or the administrative remedies of an impartial hearing and an appeal to the Office of
State Review[,] [and] [t]hus, her allegations of damages claims under Section 1983 for mere
violations of IDEA are indistinguishable from claims of educational malpractice and are
foreclosed from relief in the instant proceeding." (Def. Mem. at 11-12). Plaintiff contends that
30
since the complaint alleges that she and K.C.G. were denied procedural safeguards guaranteed by
the IDEA, she may seek damages under Section 1983.
"Defendants' deliberate interference with procedural safeguards guaranteed by Congress
for the purpose of depriving [a disabled student] of special educational services necessary to
provide him with free appropriate public education would constitute the deprivation of a right
guaranteed under federal law within the meaning of Section 1983." Quackenbush, 716 F .2d at
148. Accordingly, Section 1983 "suppl[ies] the right of action to a plaintiff who has been denied
procedural safeguards under Section 1415 [ofthe Education of the Handicapped Act, the
predecessor of the IDEA] and who, as a result thereof, has not received the findings and decision
following the impartial due process administrative hearing contemplated by Section 1415." Id.
"Although monetary damages are not available under the IDEA itself, a plaintiff may recover
monetary damages for a violation of the IDEA pursuant to Section 1983." Taylor, 313 F.3d at
786 n. 14 (citing Polera, 288 F.3d at 483, n. 5); see also Smith v. Guilford Bd. ofEduc., 226 F.
App'x 58, 63 (2d Cir. June 14, 2007) (summary order) ("It is well-settled that, while the IDEA
itself does not provide for monetary damages, plaintiffs may sue pursuant to Section 1983 to
enforce its provisions- including the right to a [free appropriate public education]- and to obtain
damages for violations of such provisions.")
Contrary to defendants' contention, the complaint sufficiently alleges, as set forth above,
that plaintiff was denied the procedural safeguards and administrative remedies to which she was
entitled under the IDEA by defendants' conduct. Accordingly, plaintiff may assert a Section
1983 claim for damages based upon the purported violations of the IDEA by defendants. Cf.
Streck v. Bd. ofEduc. of East Greenbush Sch. Dist., 280 F. App'x 66, 68 (2d Cir. May 30, 2008)
31
(summary order) (holding that since the plaintiffs failed to allege a denial of procedural
safeguards or administrative remedies, they could not rely on Section 1983 to pursue damages for
violations of the IDEA); French v. New York State Dep't ofEduc., No. 5:04-cv-434, 2010 WL
3909163, * II (N.D.N.Y. Sept. 30, 2010), aff'd, 476 F. App'x 468 (2d Cir. Nov. 3, 2011)
(accord); Rekowicz ex rei. Congemi v. Sachem Cent. Sch. Dist., No. 11-cv-1561, 2012 WL
4172487, at* I (E.D.N.Y. Sept. 17, 2012) ("[P]laintiffs cannot use Section 1983 to obtain
damages for IDEA violations absent allegations that they were denied IDEA's procedural
safeguards and administrative remedies • • *."(quotations and citation omitted)). Accordingly,
the branch of defendants' motion seeking dismissal of plaintiffs Section 1983 claim for damages
is denied.
b. Rehabilitation Act Claim
Defendants contend that the complaint fails to state a claim under the Rehabilitation Act
because plaintiff"has failed to plead and provide sufficient facts establishing that K.C.G.'s
education was adversely affected by bad faith or gross misjudgment." (Def. Mem. at 12).
Plaintiff contends, inter alia, that the complaint "is replete with allegations of reckless violations
of Federal educational law, and the severely adverse effect on [K.C.G. 's] education as a result,"
(Plf. Mem. at 14), and, thus, states a cause of action under Section 504 of the Rehabilitation Act.
Section 504 of the Rehabilitation Act provides, in relevant part, that "[n]o otherwise
qualified individual with a disability in the United States * * * shall, solely by reason of her or
his disability, be excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance • * *." 29
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U.S.C. § 794(a). "[A] Section 504 claim may be predicated on the claim that a disabled student
was denied access to a free appropriate education, as compared to the free appropriate education
non-disabled students receive." C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 831 (2d
Cir. 2014); see also Gabel ex rei. L.G. v. Bd. ofEduc. of Hyde Park Cent. Sch. Dist., 368 F.
Supp. 2d 313, 333-34 (S.D.N.Y. 2005) ("[D]enial of access to an appropriate educational
program on the basis of a disability is a Section 504 issue* * *.") "To recover under the
Rehabilitation Act, there must be evidence that: (1) the student is disabled; (2) the student is
otherwise qualified to participate in school activities; (3) the school or the board received federal
financial assistance; and (4) the student was excluded from participation in programs at, denied
the benefits of, or subject to discrimination at, the school on the basis of her disability." D.C. ex
rei. E.B. v. New York Citv Department of Education, 950 F. Supp. 2d 494, 518 (S.D.N.Y. 2013)
(quotations, brackets and citations omitted); see also P.C. v. Oceanside Union Free Sch. Dist.,
818 F. Supp. 2d 526, 533 (E.D.N.Y. 2011) ("To recover under the Rehabilitation Act, Plaintiffs
must demonstrate that K.C.: (I) is a disabled person under the Act; (2) has been excluded from
benefits of a federally funded program or special service; (3) because of his disability."
(emphasis omitted)). Only the fourth element, i.e., intentional discrimination, is at issue here.
"To demonstrate discrimination under Section 504, the plaintiff is not required to show
personal animosity or ill will***." D.C. ex rei. E.B., 950 F. Supp. 2d at 518 (quotations,
brackets and citation omitted); see also Gabel, 368 F. Supp. 2d at 334 (accord); Pape v. Bd. of
Educ. of Wappingers Cent. Sch. Dist., No. 07 Civ. 8828,2013 WL 3929630, at* 11 (S.D.N.Y.
July 30, 2013), appeal dismissed, No. 13-3400 (2d Cir. Dec. 10, 2013) ("[S]ince intentional
discrimination can be inferred when a school district acts with gross negligence or reckless
33
indifference in depriving a student of access to a [free appropriate public education], a plaintiff is
not required to show personal animosity or ill will." (quotations and citation omitted)).
"Discrimination may be inferred when there is evidence that a school district acted with
deliberate or reckless indifference to the student's federally protected rights or with bad faith or
gross misjudgment." D.C. ex rei. E.B., 950 F. Supp. 2d at 518; see also C.L., 744 F .3d at 841
(holding that a Section 504 claim "requires proof of bad faith or gross misjudgment."); S.W. by
J.W. v. Warren, 528 F. Supp. 2d 282,290 (S.D.N.Y. 2007) ("[P]laintiffs can rely on Section 504
to claim that they are denied access to a free appropriate education, as compared to the free
appropriate education non-disabled students receive, if they can show that defendants acted with
bad faith or gross misjudgment in the administration of disability services."); Gabel, 368 F. Supp.
2d at 334 ("[I]ntentional discrimination may be inferred when a school district acts with gross
negligence or reckless indifference in depriving a child of access to a [free appropriate public
education]."); R.B. ex rei. L.B. v. Bd. ofEduc. ofCitv ofNew York, 99 F. Supp. 2d 411,419
(S.D.N. Y. 2000) ("In the special education context, courts have held that a plaintiff must
demonstrate more than an incorrect evaluation or substantively faulty IEP to establish liability
[under Section 504]; a plaintiff must show that defendants acted with bad faith or gross
misjudgment.") ·A violation of the IDEA, without more, is insufficient to support a claim of
disability-based discrimination under Section 504 of the Rehabilitation Act, French, 476 F.
App'x at 472-73; see also Kalliope R. v. New York State Department of Education, 827 F. Supp.
2d 130, 143 (E.D.N.Y. 2010) ("Since Sectipn 504 relief is conditioned on a showing of
discrimination, it requires something more than proof of a mere violation ofiDEA-i.e., more
than a faulty IEP"), and a "fail[ure] to show that the alleged 'discrimination' is anything more
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than a rehashing of [the plaintiffs] allegation that the defendants failed to provide her with a
[free appropriate public education]," French, 476 F. App'x at 473, warrants dismissal of a
Rehabilitation Act claim. See id.; P.C., 818 F. Supp. 2d at 833 (granting summary judgment
dismissing the plaintiffs' Rehabilitation Act claims because those claims were "merely
restatements of their IDEA claims- that Defendant failed to appropriately classify the plaintiff.");
Pinn ex rei. Steven P. v. Harrison Cent. Sch. Dist., 473 F. Supp. 2d 477,484 (S.D.N.Y. 2007)
(accord).
Intentional discrimination may be inferred "when a defendant takes action to provide a
disabled student with fewer services than had previously been deemed necessary[,]" Kalliope R.,
827 F. Supp. 2d at 143; "[i]fplaintiffs can show that defendants had no proper or reasonable
basis for [implementing a] policy limiting available services [for disabled students], knowing it
would result in a failure to adeqqately implement IEPs established to provide disabled students
with an equal opportunity to a free and adequate education***[,]" S.W. by J.W., 528 F. Supp.
2d at 291; "when a policymaker acted with at least deliberate indifference to the strong
likelihood that a violation of federally protected rights will result from the implementation of the
challenged policy or custom[,]" Id. (quotations, brackets and citation omitted); or when the
school district commits numerous errors in handling a disabled student's case, see, ~ Gabel,
368 F. Supp. 2d at 335 ("Case law from this Circuit suggests that the District's many failures [in
handling the disabled student's case] may rise to the level of gross negligence or reckless
indifference sufficient to support a claim of discrimination under Section 504.")
Plaintiff, in essence, is alleging that K.C.G. was denied access to a free appropriate
educational program by defendants' conduct. Plaintiffs allegations, inter alia, that defendants
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failed to meet with her or K.C.G. prior to the start of the 2012-2013 academic year; failed to
develop an IEP for K.C.G., to arrange a timely psychiatric evaluation ofK.C.G. and to provide
him with appropriate educational and related services during the 2012-2013 academic year; and
placed K.C.G. in an inappropriate and insufficient program, i.e., home instruction, whereby he
was excluded from the school for almost his entire Junior year and prevented from obtaining a
sufficient number of credits to enable him to graduate on time, because of his disability rise to
the level of gross negligence or deliberate indifference to the likelihood that K.C.G. 's rights were
being violated sufficient to withstand dismissal of the Rehabilitation Act claim at the pleadings
stage. See,~ Butler v. S. Glens Falls Cent. Sch. Dist., 106 F. Supp. 2d 414, 420 (N.D.N.Y.
2000) (denying summary judgment to defendants because the plaintiff presented evidence, inter
alia, that the defendants failed to develop IEP's for him and to provide him with certain special
education services, which conduct, "if proven, may constitute deliberate indifference to the
strong likelihood that plaintiffs rights were being violated.") Accordingly, the branch of
defendants' motion seeking dismissal of plaintiffs Rehabilitation Act claim for damages is
denied.
c. Qualified Immunity
Defendants contend that the individual defendants are entitled to qualified immunity from
plaintiffs claims for damages because the complaint "simply reiterates [plaintiffs] continuous
disagreement with the District's educational programming for K.C.G. for the 2012-2013 school
year[], • • • [which] does not establish that [they] violated a statute prohibiting discrimination."
(Def. Mem. at 14). Plaintiff contends, inter alia, that defendants do not "adequately plead[] a
36
qualified immunity affirmative defense" because they do not "claim which, if any of the
individually named defendants* * * are entitled to qualified immunity[;] * * * [or] assert that
any one of the individually named defendants' actions were not violative of clearly established
law or that it was objectively reasonable for any of the individually named defendants to take the
actions alleged in Plaintiffs' Complaint." (Plf. Mem. at I 5- I 6).
"Qualified immunity protects federal and state officials from both civil damages and
'unnecessary and burdensome discovery or trial proceedings[,]"' Spavone v. New York State
Department of Correctional Services, 719 F.3d 127, 134 (2d Cir. 2013) (quoting Crawford-El v.
Britton, 523 U.S. 574,598, 118 S. Ct. 1584, 140 L. Ed. 2d 759 (1998)); see also Coollick v.
Hughes, 699 F.3d 211,219 (2d Cir. 2012) (accord), "where the officials' conduct was not in
violation of a 'clearly established' constitutional [or statutory] right." Sudler v. City of New
York, 689 F.3d 159, 174 (2d Cir. 2012), cert. denied, 133 S. Ct. 2777, 186 L. Ed. 2d 219 (2013);
see lllliQ Walker v. Schult, 717 F.3d I 19, 125 (2d Cir. 2013) ("A federal official is entitled to
qualified immunity from suit for money damages unless the plaintiff shows that the official
violated a statutory or constitutional right, and that the right was 'clearly established' at the time
of the challenged conduct.") "It is an affirmative defense that the defendants have the burden of
raising in their answer and establishing at trial or on a motion for summary judgment." Spavone,
719 F.3d at 134 (quotations and citation omitted); see also Sudler, 689 F.3d at I 74 ("Qualified
immunity is an affirmative defense, on which the defendant officials bear the burden of proof.")
"Qualified immunity * * *extends to circumstances where an official's conduct 'does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known,' and applies 'regardless of whether the government official's error is a mistake oflaw, a
37
mistake of fact, or a mistake based on mixed questions oflaw and fact."' Spavone, 719 F.3d at
135 (quoting Pearson v. Callahan, 555 U.S. 223,231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009));
see also Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013) ("Qualified immunity, an
affirmative defense on which the defendant officials bear the burden of proof, * * * protects
public officials performing discretionary functions from personal liability in a civil suit for
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known."); Taylor, 313 F.3d at 793 ("Individual
public officials are entitled to qualified immunity from claims for monetary damages if the
statutory right infringed was not clearly established at the time of the violation or if it was
objectively reasonable for officials to believe their acts did not infringe upon those rights.") "So
long as a defendant has an objectively reasonable belief that his actions are lawful, he is entitled
to qualified immunity." Spavone, 719 F.3d at 135 (quotations and citation omitted); see also
Sudler, 689 F.3d at 174 ("If the conduct did not violate a clearly established right, or if it was
objectively reasonable for the official to believe that his conduct did not violate such a right, then
the official is protected by qualified immunity." (quotations, brackets and citation omitted)).
"Qualified immunity 'provides ample protection to all but the plainly incompetent or those who
knowingly violate the law."' Vincent, 718 F.3d at 166 (emphasis omitted) (quoting Malley v.
Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986)); see also Sudler, 689 F.3d
at 174 ("Qualified immunity * * * shields government officials from liability when they make
reasonable mistakes about the legality of their actions * * *."(quotations and citation omitted)).
"Because the immunity not only protects against a judgment for damages but also is in
part an entitlement not to be forced to litigate, * • * early resolution of the qualified immunity
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defense is encouraged • • *." Vincent, 718 F.3d at 166-67 (quotations and citations omitted);
~also Walker, 717 F.3d at 126 ("[C]ourts should resolve the question of qualified immunity at
the 'earliest possible stage in litigation[.]" (quotations and citation omitted)). However, "a
defendant presenting an immunity defense on a Rule 12(b)( 6) motion instead of a motion for
summary judgment must accept the more stringent standard applicable to this procedural
route[.]" Walker, 717 F.3d at 126 (quoting McKenna v. Wright, 386 F.3d 432,436 (2d Cir.
2004)). "[O]n a motion to dismiss, 'it is the defendant's conduct as alleged in the complaint that
is scrutinized for objective legal reasonableness."' McGarrv v. Pallito, 687 F.3d 505, 514 (2d Cir.
2012) (quoting Behrens v. Pelletier, 516 U.S. 299, 309, 116 S. Ct. 834, 133 L. Ed. 2d 773
(1996)). Accordingly, "qualified immunity is often best decided on a motion for summary
judgment when the details of the alleged deprivations are more fully developed." Walker, 717
F.3d at 130.
"Where the nonexistence of a constitutional [or statutory J right may be discerned from the
face ofthe complaint, an official defendant sued in his individual capacity may be granted a
dismissal on the ground of qualified immunity pursuant to Rule 12(b)( 6) • • •." Vincent, 718
F.3d at 167; see also Bush v. City of Utica. N.Y., 558 F. App'x 131, 133 (2d Cir. Mar. 17, 2014)
(summary order) (accord). However, "a ruling on the availability of a qualified immunity
defense would be premature [on a motion to dismiss] [if,] [f]or example, the objective
reasonableness of the defendants' acts depends in part on what information they had at the time."
Taylor, 313 F.3d at 793-94.
Since, liberally read, plaintiffs complaint plausibly alleges violations of her and K.C.G.'s
rights under the IDEA and Rehabilitation Act by defendants, and that defendants acted with at
39
least gross negligence or deliberate indifference with respect to those rights, as set forth above,
the issue with respect to qualified immunity in this case is whether defendants reasonably
believed that their conduct did not violate those rights. Where, as here, "[i]t is unclear what
rights under the IDEA and Rehabilitation Act, or whether other facts may come to light that
would render their actions objectively reasonable[,]" id. at 794, a qualified immunity defense is
properly denied at the pleadings stage. See id.; Starkey ex rei. Starkey v. Somers Cent. Sch.
Dist., 319 F. Supp. 2d 410,421 (S.D.N.Y. 2004) ("[T]he qualified immunity issue turns on
factual questions that cannot be resolved at the motion to dismiss stage of proceedings."
(quotations, brackets and citation omitted)). Accordingly, the branch of defendants' motion
seeking dismissal of plaintiffs' claims for damages against the individual defendants as barred by
the doctrine of qualified immunity is denied.
III. Conclusion
For the reasons stated herein, defendants' motion seeking dismissal of plaintiff's
complaint pursuant to Ru1es 12(b)(l) and 12(b)(6) of the Federal Rules of Civil Procedure is
denied in its entirety.
SO ORDERED. s/ Sandra J. Feuerstein SANDRA /FEUERSTEIN United States District Judge
Dated: August I, 2014 Centra! Islip, N.Y.
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