UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------X ANNE TRYON and DAVID TRYON on behalf of their minor daughter, A.T.,
Plaintiffs, MEMORANDUM & ORDER -against- 15-CV-1534(JS)(GRB)
THE EAST ISLIP UNION FREE SCHOOL DISTRICT,
Defendant. ---------------------------------X APPEARANCES For Plaintiffs: Ira Newman, Esq. Brad A. Schlossberg, Esq. Law Offices of Ira S. Newman 98 Cutter Mill Road, Suite 441-S Great Neck, New York 11021
For Defendant: Lewis R. Silverman, Esq. Silverman & Associates 445 Hamilton Avenue, #1102 White Plains, New York 10601
SEYBERT, District Judge:
Plaintiffs Anne Tryon (“Mrs. Tryon”) and David Tryon
(“Mr. Tryon”) (collectively, “Plaintiffs”) commenced this action
on behalf of their minor daughter, A.T., against the East Islip
Union Free School District (“Defendant”) asserting claims pursuant
to 42 U.S.C. § 1983 (“Section 1983”), Section 504 of the
Rehabilitation Act of 1973 (“Section 504”), and the Americans with
Disabilities Act (“ADA”), as well as state law claims for negligent
supervision or hiring, negligent infliction of emotional distress,
negligence, and negligence for failure to implement provisions of
the Dignity for All Students Act (“DASA”).
Presently pending before the Court is Defendant’s motion
to dismiss pursuant to Rule 12(b)(1) and (6). (Def.’s Mot., Docket
Entry 6.) For the following reasons, Defendant’s motion is
GRANTED.
BACKGROUND1
A.T. attended schools under the control and supervision
of Defendant between 2010 and 2014. (Compl. ¶¶ 21, 24.) From
sixth through eighth grade (2010 through 2013), A.T. attended East
Islip Middle School (“EIMS”). (Compl. ¶ 24.) A.T. began East
Islip High School (“EIHS”) in September 2013. (Compl. ¶ 21.)
A.T. has been diagnosed with “severe depression, anxiety
and mood disorder NOS.”2 (Compl. ¶ 18.)
I. Bullying at East Islip Middle School
In or about June 2012, A.T. was subjected to bullying,
threats, and harassment by “Ji. K”, another seventh grade student,
and her sister, “Ja. K.,” a ninth grade student at EIHS. (Compl.
¶¶ 26-27.) Ji. K. told A.T. that “if she saw Ja. K. and her
1 The following facts are taken from Plaintiff’s Complaint and are presumed to be true for the purposes of this Memorandum and Order.
2 The Complaint does not define the term “NOS.” The Court assumes that this is an abbreviation for “not otherwise specified.” 2
friends she should fear for her life and run because they were
going to hurt A.T.” (Compl. ¶ 28.) Ja. K. also told A.T. to “fear
for her life.” (Compl. ¶ 29.)
That same month, Mrs. Tryon contacted Ms. Jones, EIMS’s
Assistant Principal, and advised her of Ji. K. and Ja. K.’s
bullying, threats, and harassment. (Compl. ¶ 30.) Mrs. Tryon
also reported Ji. K. and Ja. K.’s bullying to EIHS and the Suffolk
County Police Department. (Compl. ¶¶ 31-32.) Ji. K. and Ja. K.’s
bullying and harassment of A.T. continued throughout the 2012-2013
school year. (Compl. ¶ 33.)
II. Bullying at East Islip High School
Ji. K., Ja. K., and students who were friends with Ja.
K. subjected A.T. to “bullying, harassment, threats and physical
assaults” at EIHS during the 2013-2014 school year. (Compl. ¶¶
35-37.)
A. The December 2013 Meeting
In or about December 2013, Mrs. Tryon met with Mr.
Bilotti, an Assistant Principal at EIHS, to discuss the bullying,
harassment, threats, and physical assault of A.T. (Compl. ¶ 41.)
Mr. Bilotti advised that he would “get things done.” (Compl.
¶ 42.)
Approximately two weeks after their December 2013
meeting, Mrs. Tryon telephoned Mr. Bilotti and advised him that
A.T. “continued to be the subject of verbal bullying, harassment
3
and threats and . . . continued to be physically assaulted in the
hallways of [EIHS] by Ji. K, Ja. K., and their friends.” (Compl.
¶ 43.) Mr. Bilotti advised Mrs. Tryon that he would review the
security camera footage of the school hallways. (Compl. ¶ 44.)
Plaintiffs believe that neither Mr. Bilotti, nor any other school
or district administrator or employee, reviewed the camera footage
or investigated Mrs. Tryon’s complaints. (Compl. ¶¶ 45-46.)
B. The December 18, 2013 Incident
On or about December 18, 2013, A.T. was bullied, harassed
and threatened by Ja. K., Ji. K., and their friends in EIHS’s
hallways. (Compl. ¶ 47.) A.T. was advised that a student who had
previously assaulted another student “had been recruited by Ji. K.
to beat up A.T.” (Compl. ¶ 48.) Mrs. Tryon reported this incident
to Mr. Bilotti and the Suffolk County Police Department on that
same day. (Compl. ¶¶ 49, 55.)
On or about December 19, 2013, Mrs. Tryon telephoned Mr.
Bilotti and told him A.T.’s “mental health was deteriorating due
to the failure of the Defendant to address the incidents . . . .”
(Compl. ¶ 50.) Mr. Bilotti advised Mrs. Tryon that the bullying
and harassment incidents were “in the past and that, ‘we have to
leave the past in the past.’” (Compl. ¶ 51.) Plaintiffs believe
that neither Mr. Bilotti nor any other school or district
administrator or employee investigated Mrs. Tryon’s December 19,
2013 complaints. (Compl. ¶ 52.)
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C. The January 11, 2014 Letter
On or about January 11, 2014, Mrs. Tryon mailed a
certified letter to EIHS’s Principal, Mr. Brenner (the “January
Letter”). (Compl. ¶ 56.) The January Letter advised that A.T.
was receiving treatment for anxiety and depression “due to the
preceding history of bullying, threats, harassment and assaults”
and requested that the Defendant “take immediate action to ensure
that [A.T.’s] school day was free from bullying, threats,
harassment and assaults.” (Compl. ¶¶ 57-58.)
On or about January 13, 2014, Mrs. Tryon participated in
a conference call with Mr. Brenner, Mr. Bilotti, EIHS’s social
worker, Mr. DePasquale, and EIHS’s school psychologist, Dr.
Constantino. (Compl. ¶ 59.) Mrs. Tryon was advised that she had
not given EIHS “the time required to do their job.” (Compl. ¶ 60.)
During this phone call, Mrs. Tryon requested that the Defendant
conduct an investigation pursuant to DASA. (Compl. ¶ 61.)
Plaintiffs believe that Defendant did not conduct any DASA
investigation. (Compl. ¶ 62.)
In or about January 2014, Mrs. Tryon spoke to the
Superintendent of defendant East Islip Union Free School District,
Linda Rozzi, by telephone. (Compl. ¶ 66.) Mrs. Tryon read the
January Letter aloud to Superintendent Rozzi, who advised that she
would meet with the administrative staff of EIHS and the bullying
“would be taken care of.” (Compl. ¶ 67.)
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On January 14, 2014, A.T. was admitted for observation
at Stony Brook University Hospital as a result of “suicidal
thoughts and ideations.” (Compl. ¶ 64.) Mrs. Tryon called EIHS’s
administration and advised that A.T. had been admitted to the
hospital. (Compl. ¶ 65.)
D. The January 21, 2014 Meeting
On January 21, 2014, Mr. and Mrs. Tryon attended a
meeting at EIHS with Mr. Bilotti, Mr. Brennen, Mr. DePasquale, and
Dr. Constantino. (Compl. ¶¶ 68-69.) During this meeting, “the
representatives of the District expressed anger at Anne Tryon . .
. [and] would not agree to or advise the Plaintiffs as to the steps
being taken to address the bullying, threats, harassment and
assault of A.T.” (Compl. ¶¶ 70-71.)
Approximately three weeks later, Mrs. Tryon called Mr.
Bilotti and complained that A.T. was being bullied, threatened,
harassed, and assaulted at EIHS by Ji. K., Ja. K., and their
friends. (Compl. ¶ 73.) Mrs. Tryon advised that A.T. was called
“white trash” and told, on a daily basis, “that she was ‘a piece
of shit,’ that she ‘should die’ and that she should ‘kill
herself.’” (Compl. ¶ 74.)
During several phone conferences in February 2014, Mrs.
Tryon again advised Mr. Bilotti, Mr. Brennen, Mr. DePasquale, and
Dr. Constantino of the continued bullying of A.T. (Compl. ¶ 76.)
Mrs. Tryon “was again repeatedly advised by the District
6
representatives that they were investigating the bullying,
threats, harassment and assaults and that they would take care of
it.” (Compl. ¶ 77.)
E. The March 4, 2014 Incident
On March 4, 2014, A.T.’s friend informed her that Ji. K.
was “bragging in the high school locker room that she had destroyed
A.T. and ruined her life.” (Compl. ¶ 78.)
On or about that same day, Mr. DePasquale called Mrs.
Tryon and told her to come to EIHS. (Compl. ¶ 79.) Mrs. Tryon
was advised by Mr. DePasquale and/or Dr. Constantino that A.T. had
“‘told off’” Mr. Bilotti and had essentially stated that “‘you are
not doing anything’ and ‘you are not going to do a fucking thing
until I am dead.’” (Compl. ¶ 80.)
Following her meeting at EIHS, Mrs. Tryon took A.T. to
Stonybrook Medical Center. (Compl. ¶ 81.) A.T. began home
instruction in or about March 2014 and remained on home instruction
for the remainder of the 2013-2014 school year. (Compl. ¶ 82.)
A.T. was hospitalized at South Oaks Medical Center for
psychological treatment from May 25, 2014 through June 2, 2014.
(Compl. ¶ 83.)
F. A.T.’s Return to EIHS
In May 2014, Mrs. Tryon contacted Defendant3 to determine
3 The Complaint does not specify the person or persons that Mrs. Tryon spoke with in May, 2014. 7
what measures would be taken to protect A.T. from continued
bullying. (Compl. ¶ 84.) Defendant advised that A.T. would not
be placed in classes with Ji. K. and that the school computer
system would contain notations that A.T. was to be “completely
separated” from Ji. K. and Ja. K. (Compl. ¶ 85.) In September
2014, Mrs. Tryon was provided with paperwork to complete for A.T.
to have a Section 504 evaluation. (Compl. ¶ 87.)
A.T. returned to EIHS in September 2014 and discovered
that she was placed in five classes with Ji. K. (Compl. ¶¶ 86,
88.) A.T. also discovered that her locker was four lockers away
from Ji. K.’s locker. (Compl. ¶89.) The EIHS administration could
not explain why A.T. was placed in five classes with Ji. K. or why
A.T.’s locker was within close proximity to Ji. K.’s locker.
(Compl. ¶¶ 91-92.) Mr. and Mrs. Tryon immediately removed A.T.
from EIHS. (Compl. ¶ 90.)
A.T. was admitted to South Oaks Hospital for psychiatric
treatment from September 6, 2014 through September 12, 2014.
(Compl. ¶ 93.) Upon her discharge from South Oaks Hospital, A.T.
attended the Newport Academy, where she received psychological
counseling and academic instruction from September 12, 2014
through December 15, 2014. (Compl. ¶ 94.) A.T. was accepted to
St. John the Baptist, a private parochial school, in January 2014.
(Compl. ¶ 95.)
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III. The Complaint
On March 24, 2015, Plaintiffs commenced this action
alleging seven causes of action on A.T.’s behalf: (1) a Section
1983 claim based on a violation of A.T.’s right to equal
protection; (2) a claim for disability discrimination pursuant to
Section 504, 29 U.S.C. § 701 et seq.; (3) a claim for disability
discrimination pursuant to the ADA, 42 U.S.C. § 12101 et seq.; (4)
a state law claim for negligent supervision or hiring; (5) a state
law claim for negligent infliction of emotional distress; (6) a
state law claim for negligence; and (7) a claim for negligence
with respect to Defendant’s failure to implement the Dignity for
All Students Act (“DASA”), L.2010, ch. 482, § 2, New York Education
Law § 10 et seq. (See generally Compl.)
Defendant moves to dismiss the Complaint pursuant to
Rule 12(b)(1) and (b)(6) arguing, inter alia, that the Court lacks
subject matter jurisdiction over Plaintiffs’ claims pursuant to
Section 1983, Section 504, and the ADA (collectively, the “Federal
Claims”) due to Plaintiffs’ failure to exhaust administrative
remedies. (Def.’s Br., Docket Entry 8, at 4-6.) Defendant further
alleges that to the extent the Court dismisses the Federal Claims,
it should also decline to exercise supplemental jurisdiction over
Plaintiffs’ state law claims for negligent supervision or hiring,
negligent infliction of emotional distress, negligence, and a
9
violation of DASA (collectively, the “State Law Claims”). (Def.’s
Br. at 15-23.)
DISCUSSION
The Court first considers the issue of subject matter
jurisdiction. As set forth below, because the Court lacks subject
matter jurisdiction over Plaintiffs’ Federal Claims and declines
to exercise its supplemental jurisdiction over Plaintiffs’ State
Law Claims, the Court does not reach the merits of Defendants’
12(b)(6) arguments.
I. Legal Standard
To withstand a motion to dismiss, a complaint must
contain factual allegations that are sufficient to state a facially
“plausible” claim to relief. Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955 (2007)). This
plausibility standard is not a “probability requirement” and
requires “more than a sheer possibility that a defendant has acted
unlawfully.” Id. (internal quotations and citations omitted).
While all allegations in the complaint must be accepted as true,
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. at
679. The Court’s plausibility determination is a “context-
specific task that requires the reviewing court to draw on its
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judicial experience and common sense.” Harris v. Mills, 572 F.3d
66, 72 (2d Cir. 2009) (internal quotation marks omitted).
“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). The Court is
required to determine whether it possesses subject matter
jurisdiction prior to deciding a case. Wynn v. AC Rochester, 273
F.3d 153, 157 (2d Cir. 2001). Accord Morrison v. Nat’l Austl.
Bank, Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff’d, 561 U.S. 247,
130 S. Ct. 2869 (2008) (“Determining the existence of subject
matter jurisdiction is a threshold inquiry . . . .”). The
plaintiff bears the burden of establishing that subject matter
exists by a preponderance of the evidence. Makarova, 201 F.3d at
113.
II. Federal Claims
The Individuals with Disabilities Act (“IDEA”) seeks to
“provide disabled students with a ‘free appropriate public
education’ in the least restrictive environment suitable for their
needs.” Cave v. East Meadow Union Free Sch. Dist., 514 F.3d 240,
245 (2d Cir. 2008) (quoting Heldman ex rel. v. Sobol, 962 F.2d
148, 150 (2d Cir. 1992)). See generally 20 U.S.C. § 1400 et seq.
Particularly, the IDEA guarantees that parents of disabled
students have “‘both an opportunity for meaningful input into all
11
decisions affecting their child’s education and the right to seek
review of any decisions they think inappropriate.’” Kalliope R.
ex rel. Irene D. v. N.Y. State Dept. of Educ., 827 F. Supp. 2d
130, 135 (E.D.N.Y. 2010) (quoting Cave, 514 F.3d at 245). Indeed,
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). In the
context of the IDEA, “education . . . encompasses more than simply
academics.” Cave, 514 F.3d at 248 (internal quotation marks and
citation omitted).
It is well settled that administrative remedies,
including an impartial hearing and the appeal of the hearing
officer’s decision, must be exhausted prior to the commencement of
an action pursuant to the IDEA. Kaliope, 827 F. Supp. 2d at 136.
“IDEA’s exhaustion requirement permits states and local agencies
to employ their educational expertise, ‘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.’” Hope v.
Cortines, 872 F. Supp. 14, 19 (E.D.N.Y. 1995), aff’d, 69 F.3d 687
(2d Cir. 1995) (quoting Hoeft v. Tuscon Unified Sch. Dist., 967
F.2d 1298, 1303 (9th Cir. 1992)). Even where an administrative
12
hearing and appeal does not resolve a dispute, these procedures
“‘will at least have produced a helpful record because
administrators versed in the relevant issues were able to probe
and illuminate those issues for the federal court.’” Kalliope,
827 F. Supp. 2d at 137 (quoting J.S. ex. rel. v. Attica Cent. Sch.,
386 F.3d 107, 112-13 (2d Cir. 2004)).
A “narrow exception” to the IDEA’s exhaustion
requirement exists where “exhaustion would be futile because the
administrative procedures available do not provide adequate
remedies.” Scaggs v. N.Y. Dept. of Educ., No. 06-CV-0799, 2007 WL
1456221, at *5 (E.D.N.Y. May 16, 2007) (internal quotation marks
and citations omitted). Futility is established where plaintiff
demonstrates: “(1) that defendants failed to implement services
that were specified or otherwise clearly stated in an
[Individualized Education Program], or (2) that the problems
alleged are systemic violations that cannot be addressed by the
available administrative procedures.” Kalliope, 827 F. Supp. 2d
at 138 (internal quotation marks and citations omitted). See also
Scaggs, 2007 WL 1456221, at *5 (plaintiff bears the burden of
demonstrating the futility exception to IDEA’s exhaustion
requirement). Additionally, this Circuit has held that exhaustion
will be excused where the parents of the disabled child were not
notified of the remedies available to them. Weixel v. Bd. of Educ.
of City of N.Y., 287 F.3d 138, 149 (2d Cir. 2002) (holding that
13
“the failure of the defendants to notify plaintiffs of their
procedural rights under the IDEA deprived [them] of the opportunity
to take advantage of the procedural safeguards offered by the
statute.”) (internal quotation marks and citations omitted). See
also MB v. Islip Sch. Dist., No. 14-CV-4670, 2005 WL 3756875, at
*8-9 (E.D.N.Y. Jun. 16, 2015).
The “systemic violation” exception to exhaustion is
applicable where the plaintiff “challenges ‘the framework and
procedures for assessing and placing students in appropriate
educational programs . . . or [where the] nature and volume of
complaints [are] incapable of correction by the administrative
hearing process.’” Kalliope, 827 F. Supp. 2d at 138 (quoting J.S.,
386 F.3d at 114) (ellipsis and alterations in original). On the
other hand, exhaustion of administrative remedies is required
where plaintiff’s claims are founded in “individual
characteristics, such as the sufficiency of a child’s
[Individualized Educational Program].” Id.
The IDEA’s exhaustion requirement also applies to
plaintiffs seeking relief under other federal statutes if relief
is also available under the IDEA. J.S., 386 F.3d at 112 (holding
that plaintiffs’ Section 504 and Section 1983 claims were both
subject to the IDEA exhaustion requirement). See, e.g., Intravaia
ex. rel. Intravaia v. Rocky Point Union Free Sch. Dist., 919 F.
Supp. 2d 285, 292 (E.D.N.Y. 2013); Hope, 872 F. Supp. at 19-24
14
(dismissing plaintiff’s claims pursuant to Section 1983, ADA, and
Title VI of the Civil Rights Act of 1964 based on failure to
exhaust IDEA requirements). See also 20 U.S.C. § 1415(l) (“Nothing
in [the IDEA] shall be construed to 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].”).
This Circuit has held that a plaintiff’s request for
monetary damages does not vitiate the IDEA’s administrative
exhaustion requirement despite the fact that monetary damages are
not available pursuant to the IDEA. Polera, 288 F.3d at 487-88.
Accord Stropkay v. Garden City Union Free Sch. Dist., 593 F. App’x
37, 40 (2d Cir. 2014); Skaggs, 2007 WL 1456221, at *4 (“As the
gravamen of plaintiffs’ action is a claim under IDEA, their request
for damages pursuant to other federal statutes and state tort law
does not allow them to evade the statute’s exhaustion
requirement.”).
Plaintiffs do not dispute that they have not exhausted
their administrative remedies. (See generally Pls.’ Br., Docket
Entry 14). Instead, Plaintiffs argue that “[w]here the failure to
provide a free and appropriate public education is merely a
15
collateral result of a defendants alleged conduct and the gravamen
of the complaint is . . . for compensatory damages stemming from
a District’s alleged indifference to disability based
discrimination under the ADA and [Section 504], a plaintiff need
not allege exhaustion of administrative remedies, because the
relief sought is beyond the scope of the IDEA.” (Pls.’ Br. at 4
(citing to Preston v. Hilton Cent. Sch. Dist., 876 F. Supp. 2d
235, n. 1 (W.D.N.Y. 2012)).) The Court disagrees.
First, the Court is not persuaded by Plaintiffs’ attempt
to style the Complaint as a claim for “indifference to disability”
that is purportedly beyond the purview of the IDEA. (Pls.’ Br. at
4.) As previously noted, it is well-settled that the IDEA is
applicable to other federal statutes where relief is also available
under the IDEA. J.S., 386 F.3d at 112. The Complaint expressly
alleges that A.T. was subjected to discrimination, bullying,
harassment, and physical and emotional abuse based on her
disability and that as a result of Defendant’s allegedly inadequate
response, “A.T. was discriminatorily deprived of educational
benefits, specifically, a supportive, scholastic environment free
from discrimination and harassment.” (See, e.g., Compl. ¶¶ 111,
117, 125, 131, 138.) Particularly, Plaintiffs’ Section 1983 claim
asserts that “Defendant deprived A.T. of the right to be free from
invidious discrimination due to her disability as guaranteed by
the [ADA] and [Section 504].” (Compl. ¶ 111.) With respect to
16
Plaintiffs’ Section 504 and ADA claims, the Complaint alleges that
A.T. qualified for the school’s services, which included “the right
to a safe and bullying-free educational environment, and to a
school with systemic and protective responses to the abuse of
students based upon their disability.” (Compl. ¶¶ 122, 136.)
Thus, Plaintiffs’ claims are founded in “‘grievances related to
the education of disabled children,’” and they are required to
exhaust the IDEA’s administrative remedies prior to filing suit in
federal court. Stropkay, 593 F. App’x at 40 (quoting Polera, 288
F.3d at 481).
Plaintiffs’ reliance on Preston is equally unavailing.
The Preston Court included a footnote rejecting defendants’
argument that the IDEA exhaustion requirement was applicable
because “the gravamen of the plaintiffs’ claims is not the denial
of a [free appropriate public education] to A.P., but a request
for compensatory damages stemming from the District’s alleged
indifference to the disability-based and gender-based
discrimination suffered by A.P.” Preston, 876 F. Supp. 2d at 245,
n.1. The case at bar is distinguishable from Preston in that
Plaintiffs do not assert any claims based on gender discrimination.
(See generally Compl.) Moreover, Preston appears to be an outlier
in declining to apply the IDEA to claims founded in a school
district’s failure to sufficiently respond to disability-based
bullying. See, e.g., GM v. Massapequa Union Free Sch. Dist.,
17
No. 14-CV-4126, 2015 WL 4069201 (E.D.N.Y. July 2, 2015); MB, 2015
WL 3756875, at *7; T.K. v. N.Y. City Dept. of Educ., 779 F. Supp.
2d 289 (E.D.N.Y. 2011); Wang v. Williamsville Cent. School Dist.,
No. 08-CV-575S, 2010 WL 1630466 (W.D.N.Y. Apr. 21, 2010).
Moreover, this District has previously rejected an
argument nearly identical to that asserted by Plaintiffs with
respect to the application of the IDEA. In M.B. v. Islip School
District, Plaintiffs alleged that R.B., a teenager who suffered
from Tourette’s syndrome and anxiety disorder, was bullied based
on his disability, received disparate discipline based on his
disability, and was denied the opportunity to benefit from the
defendant school district’s educational services. M.B., 2015 WL
3756875, at *2, 7. The M.B. plaintiffs argued that the IDEA’s
exhaustion requirement did not apply because “[the] complaint
alleges deliberate indifference to bullying, harassment and
discrimination of [R.B.] by teachers, administrators, and other
students, based on [R.B.’s] disability, and thus . . . allege
discrimination beyond a mere violation of the IDEA . . . .” Id.
at *7 (internal quotation marks and citations omitted). The Court
held that the IDEA applied because plaintiffs’ federal claims
“relate to the interplay between RB’s disability and the
educational services provided to him and/or his treatment by
teachers and school administrators.” Id.
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Second, the fact that Plaintiffs are seeking
compensatory damages has no bearing on the applicability of the
IDEA. (Pls.’ Br. at 4.) See Polera, 288 F.3d at 487-88 (“The
fact that [plaintiff] seeks damages, in addition to relief that is
available under the IDEA, does not enable her to sidestep the
exhaustion requirements of the IDEA.”)
Third, the Complaint does not set forth any basis for
the application of the futility exception to the IDEA’s exhaustion
requirement. See Kalliope, 827 F. Supp. 2d at 138 (futility is
established where defendants failed to implement services set
forth in an Individualized Education Program or the complaint
alleges “systemic violations” that cannot be remedied by
administrative procedures). The Complaint does not allege that an
Individualized Education Program was created for A.T. (See
generally Compl.) Moreover, the “systemic violation” exception is
inapplicable because Plaintiffs are not challenging “the framework
and procedures for assessing and placing students in appropriate
educational programs,” and the Complaint does not allege that the
“nature and volume of complaints [are] incapable of correction by
the administrative hearing process.” J.S., 386 F.3d at 114.
Although Plaintiffs allege in their opposition papers
that Defendant “never advised the Plaintiffs that their daughter
could be evaluated for an Individualized Educational Program nor
of their right to appeal any determination by the District not to
19
provide such a program,” this allegation does not appear in the
Complaint. (See Pls.’ Br. at 6; Compl. (emphasis in original).)
Parenthetically, the Court notes that the Complaint does allege
that Mrs. Tryon was provided with paperwork to complete for a
Section 504 evaluation. (Compl. ¶ 87.)
Accordingly, Plaintiff’s federal claims are DISMISSED
WITHOUT PREJUDICE due to the Court’s lack of subject matter
jurisdiction
III. State Claims
The Court declines to exercise supplemental jurisdiction
over Plaintiffs’ State Claims in light of its lack of subject
matter jurisdiction over Plaintiff’s Federal 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, Defendant’s motion to dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)
(Docket Entry 6) is GRANTED. Plaintiff’s federal claims are
DISMISSED WITHOUT PREJUDICE for lack of subject matter
jurisdiction. See JetBlue Airways Corp. v. CopyTele Inc., No. 15-
CV-0086, 2015 WL 616774 (2d Cir. Oct. 21, 2015) (“‘Article III
deprives federal courts of the power to dismiss a case with
prejudice where federal subject matter jurisdiction does not
20
exist.’”) (quoting Hernandez v. Conriv Realty Assocs., 183 F.3d
121, 123 (2d Cir. 1999)).
Plaintiffs’ State Claims are DISMISSED WITHOUT PREJUDICE
to refiling in the appropriate court.
SO ORDERED.
/s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J.
Dated: November 19 , 2015 Central Islip, New York
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