UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------X GM, a minor, by his parent and natural guardian, DM,
Plaintiff, MEMORANDUM & ORDER -against- 14-CV-4126(JS)(ARL)
MASSAPEQUA UNION FREE SCHOOL DISTRICT, MASSAPEQUA UNION FREE SCHOOL DISTRICT BOARD OF EDUCATION, MARIA HABER, individually and in her official capacity, AMANDA LOWRY, individually and in her official capacity, DIANE SALES, individually and in her official capacity, DOROTHY AHL, individually and in her official capacity, CHARLES SULC, individually and in his official capacity, and LUCILLE ICONIS, individually and in her official capacity,
Defendants. -------------------------------------X APPEARANCES For Plaintiff: Steven A. Morelli, Esq. The Law Offices of Steven A. Morelli, P.C. 1461 Franklin Ave. Garden City, NY 11530
For Defendant Haber: Lewis R. Silverman, Esq. Silverman & Associates 445 Hamilton Ave, Ste. 1102 White Plains, NY 10601
For the Supervisor Defendants: Steven C. Stern, Esq. Susan Hull Odessky, Esq. Sokoloff Stern LLP 179 Westbury Ave. Carle Place, NY 11514
SEYBERT, District Judge:
Plaintiff GM, a minor, by his parent and natural
guardian, DM (“Plaintiff”), commenced this action against
defendants Massapequa Union Free School District (the “District”),
Massapequa Union Free School District Board of Education (the
“Board”), Maria Haber (“Haber”), Amanda Lowry (“Lowry”), Diane
Sales (“Sales”), Dorothy Ahl (“Ahl”), Charles Sulc (“Sulc”), and
Lucille Iconis (“Iconis,” and together with Lowry, Sales, Ahl,
Sulc, the District, and the Board, the “Supervisor Defendants”),
alleging, inter alia, that GM was (1) unlawfully seized in
violation of the Fourth Amendment, U.S. CONST. amend. IV,
(2) discriminated against based on his disability in violation of
the Americans with Disabilities Act of 1990 (“ADA”),
42 U.S.C. § 12101 et seq., the New York State Human Rights Law
(“NYSHRL”), N.Y. EXEC. LAW § 290 et seq., and the United States
Constitution; and (3) subjected to various state-law torts.
Pending before the Court are Haber’s and the Supervisor Defendants’
respective motions to dismiss the complaint for lack of subject
matter jurisdiction and failure to state a claim pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Docket
Entries 12, 15.) For the following reasons, both motions are
GRANTED.
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BACKGROUND1
GM, a thirteen year-old2 boy diagnosed with attention
deficit hyperactivity disorder (“ADHD”), is a student at the
McKenna Elementary School, a facility within the District.
(Compl., ¶¶ 7, 10.) Although the Complaint does not describe the
full reaches of GM’s disability, it does explain that his
disability sometimes leads to uncontrollable fidgeting. (Compl.
¶ 41.) GM also exhibits certain “ticks” when he is stressed or
nervous; he chews his shirt sleeve, pulls his hair out, and licks
his fingers. (Compl. ¶ 19.) He also has some difficulty keeping
up with assignments. (Compl. ¶ 45.) DM explains that by
mishandling GM’s disability, Defendants thwarted his efforts
toward a productive education. (Compl. ¶ 47.)
GM’s troubles at school began in January 2011, when Haber
began teaching his fourth-grade class. (Compl. ¶ 18.) The
Complaint alleges that Haber would routinely discipline GM for
“actions that were the uncontrollable byproduct of his
disability.” (Compl. ¶ 27.) Haber’s key disciplinary measure
involved segregating GM from the class by sending him to a back
1 The following facts are drawn from the Complaint and are assumed true for the purposes of these motions.
2 The Complaint is unclear as to GM’s age at the time of the filing; some allegations describe him as twelve, (Compl. ¶ 1), others thirteen (Compl. ¶ 7). Either way, the Court’s analysis is the same. 3
room of the classroom. (Compl. ¶¶ 28, 29.) The room had a window,
and it contained school and kitchen supplies. (Compl. ¶ 30.) While
in that room, GM could not see the chalkboard or otherwise
participate in class. (Compl. ¶ 30.) Haber did not assign GM
separate work when she sent him to the storage room; her only
instructions were to “have fun.” (Compl. ¶ 31.) Haber sent GM to
this storage room multiple times per week, sometimes every day,
and sometimes multiple times per day. (Compl. ¶ 29.) The duration
of his trips to the back room is not alleged.
In March 2011, DM learned that her son was being
disciplined with trips to the back room. (Compl. ¶ 39.) DM first
brought the matter to the attention of the School’s Principal
Amanda Lowry and school psychologist Dorothy Ahl, but neither took
action. (Compl. ¶ 43.) She then contacted the Superintendent of
the District, Charles Sulc, who ignored DM’s calls. (Compl. ¶ 48.)
Finally, DM wrote to the Board, but they too failed to respond.
(Compl. ¶¶ 48, 50.)
The following academic year, GM was elected to a student
council position. (Compl. ¶ 51.) At some point, Defendants
divested GM of his position as a disciplinary measure.
(Compl. ¶ 52.) Though the Complaint alleges GM was targeted, it
is entirely devoid of any circumstances surrounding this event,
including who stripped GM of his position or what GM did to warrant
such a punishment. (Compl. ¶ 52.)
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During GM’s sixth-grade year (2012-2013), he continued
to receive detention “for problems associated with his
disability.” (Compl. ¶ 55.) Additionally, DM repeatedly requested
that Defendants provide GM with constant adult supervision so that
he would not be bullied by other students. (Compl. ¶¶ 72, 83.)
Defendants provided no such supervision, and as a result, other
students frequently bullied GM. (Compl. ¶¶ 56-82.) The Complaint
recounts a number of instances where GM was bullied both verbally
and physically by other students, and it alleges that the bullying
was a direct result of Defendants’ failure to provide the added
adult supervision. (Compl. ¶¶ 73, 83.) Students who bullied GM
were allegedly either not disciplined at all or not sufficiently
disciplined. (Compl. ¶¶ 59, 66, 69, 81.)
As a result of GM’s alleged mistreatment, DM brings eight
causes of action on his behalf: (1) a claim for disability
discrimination in violation of the NYSHRL; (2) a Section 1983 claim
for unlawful seizure in violation of the Fourth Amendment; (3) a
Section 1983 action for violation of GM’s Fourteenth Amendment
right to due process; (4) a Section 1983 action for violation of
GM’s right to equal protection; (5) a claim of disability
discrimination in violation of the ADA; (6) a claim for negligent
hiring and administration of discipline; (7) a claim for negligence
per se; and (8) a claim for negligent infliction of emotional
distress. For simplicity’s sake, the Court refers to Plaintiff’s
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first, sixth, seventh, and eight causes of action as the “State
Claims,” and second, third, fourth, and fifth causes of action as
the “Federal Claims.”
DISCUSSION
The Court first considers whether it has subject matter
jurisdiction over Plaintiff’s claims. Because it concludes that
it lacks subject matter jurisdiction over Plaintiff’s Federal
Claims and declines to exercise its supplemental jurisdiction over
Plaintiff’s State Claims, the Court does not reach the merits of
Defendants’ 12(b)(6) arguments.
I. Legal Standard
“A case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court lacks the
statutory or constitutional power to adjudicate it.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000). In resolving a
motion to dismiss for lack of subject matter jurisdiction, the
Court may consider affidavits and other materials beyond the
pleadings. See Morrison v. Nat’l Austl. Bank, Ltd., 547 F.3d 167,
170 (2d Cir. 2008). Though the Court must accept the factual
allegations contained in the Complaint as true, it will not draw
argumentative inferences in favor of Plaintiff; subject matter
jurisdiction must be shown affirmatively. See id.; Atl. Mut. Ins.
Co. v. Balfour Maclaine Int’l Ltd., 968 F.2d 196, 198 (2d Cir.
1992); Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d
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Cir. 1998). “A plaintiff asserting subject matter jurisdiction
has the burden of proving by a preponderance of the evidence that
it exists.” Makarova, 201 F.3d at 113.
II. Federal Claims
The Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400 et seq., endeavors to provide disabled
students with a free appropriate public education, and it
establishes a series of administrative avenues to remedy any
interference with that endeavor. As used here, the term
“education” encompasses more than simply academics. Cave v. E.
Meadow Union Free Sch. Dist., 514 F.3d 240, 248 (2d Cir. 2008)
(internal quotation marks and citation omitted). Thus, parents
are entitled to “present a complaint with respect to any matter
relating to the identification, evaluation, or education placement
of the child, or the provision of free appropriate public education
to such child.” 20 U.S.C § 1415(b)(6)(A) (emphasis added).
In addition to establishing various administrative
remedies, the IDEA divests federal courts of subject matter
jurisdiction over claims asserted by plaintiffs who have not first
exhausted those remedies.3 20 U.S.C. § 1415(i)(2)(A); see also,
3 Although other Circuits have held that a failure to exhaust administrative remedies under the IDEA does not divest a court of subject matter jurisdiction, but instead is an affirmative defense, the Second Circuit had refused to do so. See Cave, 514 F.3d at 245; Baldessarre v. Monroe-Woodbury Cent. Sch. Dist., 496 F. Appx. 131, 134 (2d Cir. 2012) (“The District Court’s 7
e.g., Cave, 514 F.3d at 245. “The purpose of the 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.’” Id. at 245-46 (quoting Polera v. Bd. of Educ. of
Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 487 (2d Cir.
2002)); Crocker v. Tennessee Secondary Sch. Athletic Ass’n, 873
F.2d 933, 935 (6th Cir. 1989) (discussing the IDEA’s predecessor,
the Education for All Handicapped Children Act, and explaining,
“Federal courts--generalists with no expertise in the educational
needs of handicapped students--are given the benefit of expert
factfinding by a state agency devoted to this very purpose.”).
Even where a plaintiff’s causes of action arise from
sources other than the IDEA, such as the ADA or the Constitution,
the IDEA’s exhaustion requirement applies if those claims “assert
claims for relief available under the IDEA.” Cave, 514 F.3d at
246 (emphasis in original) (applying exhaustion requirement to ADA
claim); In re Intravaia v. Rocky Point Union Free Sch. Dist., 919
F. Supp. 2d 285, 292 (E.D.N.Y. 2013) (applying exhaustion
requirement to claim arising under 42 U.S.C. § 1983); see also 20
U.S.C. § 1415 (“Nothing in [the IDEA] shall be construed to
holding that the plaintiffs’ failure to exhaust the IDEA’s administrative remedies required dismissal of their complaint was clearly compelled by our Circuit precedent.”). 8
restrict or limit the rights, procedures, and remedies available
under . . . 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 [the IDEA].”).
The Second Circuit has repeatedly emphasized the breadth
of the IDEA’s exhaustion requirement. For example, in Cave, the
Second Circuit directed dismissal of an ADA claim based upon a
school’s refusal to allow a hearing-impaired student to bring his
service dog to school. 514 F.3d at 248. The Second Circuit held
that the plaintiff’s ADA claims were subject to the IDEA’s
exhaustion requirement because they were “not entirely beyond the
bounds of the IDEA’s educational scheme.” Id. In Baldessarre v.
Monroe-Woodbury Cent. Sch. Dist., 820 F. Supp. 2d 490, 496
(S.D.N.Y. 2011), the court held that a student’s ADA claim that
his teacher was deliberately hostile to him based upon his
disability was subject to the IDEA’s exhaustion requirement. A
three-judge panel of the Second Circuit affirmed, explaining,
“[t]he District Court’s holding that the plaintiffs’ failure to
exhaust the IDEA’s administrative remedies required dismissal of
their complaint was clearly compelled by our Circuit precedent.”
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In re Baldessarre v. Monroe-Woodbury Cent. Sch. Dist., 496 F. App’x
at 134.
Plaintiff does not allege the satisfaction of the
administrative requirements of the IDEA. Nor does he argue that
any exception to this exhaustion requirement is applicable. As a
consequence, whether the Court has subject matter jurisdiction
over Plaintiff’s Federal Claims turns on whether they are subject
to the exhaustion requirement of the IDEA.
Plaintiff’s Federal Claims are subject to the IDEA’s
exhaustion requirement because they indisputably relate to and are
inextricably intertwined with GM’s access to a free appropriate
public education. That Haber inappropriately disciplined the
uncontrollable side effects of GM’s disability, or that she
employed teaching and disciplinary measures that exacerbated,
rather than accommodated GM’s disability are issues falling
squarely within the province of the IDEA. See In re Baldessarre,
496 F. App’x at 134; Intravaia, 919 F. Supp. 2d at 289, 292
(allegations that student was punished for her disability subject
to exhaustion requirement. Likewise, the Supervisor Defendants’
alleged failure to provide GM with additional adult supervision--
which resulted in his being bullied by other students--is another
alleged impediment to GM’s entitlement to a free appropriate public
education subject to the IDEA’s exhaustion requirement. See, e.g.,
T.K. v. N.Y.C. Dep’t of Educ., 779 F. Supp. 2d 289, 312 (E.D.N.Y.
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2011) (allegations that school failed to prevent disabled
student’s bullying subject to the IDEA’s exhaustion requirement);
Wang v. Williamsville Cent. Sch. Dist., No. 08-CV-0575, 2010 WL
1630466, at *1 (W.D.N.Y. Apr. 21, 2010) (same). In short, none of
Plaintiff’s Federal Claims are “entirely beyond the bounds of the
IDEA’s educational scheme,” and they are therefore subject to the
requirement of administrative exhaustion.4 See Cave, 514 F.3d at
248.
To cement its conclusion that Plaintiff’s Federal Claims
all arise from conduct addressable under the IDEA, the Court need
look no further than paragraph eighty-three of the Complaint.
There, Plaintiff summarizes the basis of the Federal Claims:
“Defendants failed to provide [GM] with additional adult
supervision, preferential seating, and modified assignments. As
a result of their failure to provide GM with these services he has
been subject to multiple instances of harassment and bullying by
teachers, students, and administrators.” (Compl. ¶ 83.) Later,
the Complaint explains that Defendants classified issues
4 That Plaintiff here seeks monetary damages--a form of relief unavailable under the IDEA--does not vitiate the requirement of administrative exhaustion. See Polera, 288 F.3d at 488 (“‘[T]he theory behind the grievance may activate the IDEA’s process, even if the plaintiff wants a form of relief that the IDEA does not supply’” (quoting Charlie F. by Neil F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 991 (7th Cir. 1996))).
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associated with GM’s disability as “behavioral” issues, in order
“to avoid paying for the proper servies [sic].” (Compl. ¶ 86.)
These allegations make clear that Plaintiff’s suit challenges the
adequacy of the accommodations provided to a disabled student and-
-perhaps particularly in GM’s case--the often unfortunate and
disconcerting consequences thereof. This sort of challenge
"provides a textbook example of the types of cases justifying
administrative exhaustion.” Hope v. Cortines, 872 F. Supp. 14, 21
(E.D.N.Y.), aff’d, 69 F.3d 687 (2d Cir. 1995)
Accordingly, Plaintiff’s Federal Claims are DISMISSED
for lack of subject matter jurisdiction.
III. State Claims
Having found that the Court lacks subject matter
jurisdiction over Plaintiff’s Federal Claims, the Court declines
to exercise supplemental jurisdiction over Plaintiff’s State
Claims. See 28 U.S.C. § 1367(c)(3). Accordingly, Plaintiff’s
State Claims are DISMISSED WITHOUT PREJUDICE to refiling in the
appropriate court.
CONCLUSION
For the foregoing reasons, both the motion of defendant
Haber to dismiss the Complaint for lack of subject matter
jurisdiction and failure to state a claim pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6) (Docket Entry 12) and the
motion of the Supervisor Defendants to dismiss the Complaint for
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lack of subject matter jurisdiction and for failure to state a
claim pursuant to Federal Rules 12(b)(1) and 12(b)(6) (Docket Entry
15) are GRANTED. Plaintiff’s Federal Claims are DISMISSED for
lack of subject matter jurisdiction. Plaintiff’s State Claims are
DISMISSED WITHOUT PREJUDICE to refiling in the appropriate court.
The Clerk of the Court is directed to enter judgment consistent
with this Memorandum and Order and to mark this case CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J.
Dated: July 2 , 2015 Central Islip, New York
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