UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------x CHRISTIAN KILLORAN, on behalf of his son, AIDEN KILLORAN, CHRISTIAN KILLORAN, and TERRIE KILLORAN
Plaintiffs, MEMORANDUM & ORDER 19-CV-06663(JS)(SIL) -against-
WESTHAMPTON BEACH SCHOOL DISTRICT; MICHAEL RADDAY, as Superintendent; SUZANNE M. MENSCH, JAMES HULME, JOYCE L. DONNESON, GEORGE R. KAST, JR., and HALSEY C. STEVENS, as Board of Education Members,
Defendants. ----------------------------------x For Plaintiffs: Christian Killoran, Esq., pro se Terrie Killoran, pro se 132-13 Main Street Westhampton Beach, New York 11978
For Defendants: Scott J. Kreppein, Esq. DEVITT SPELLMAN BARRETT, LLP 50 Route 111 Smithtown, New York 11787
SEYBERT, District Judge:
Pro se plaintiffs Christian Killoran and Terrie Killoran
(together, “the Parents”), individually and as parents to A.K., a
child with Down Syndrome, (collectively, the Plaintiffs”)
commenced this action against defendants Westhampton Beach School
District (“Westhampton” or the “District”), Michael Radday (“the
Superintendent”), Suzanne M. Mensch, James Hulme, Joyce L.
1
Donneson, George R. Kast, Jr., and Halsey C. Stevens (i.e., the
School Board) (collectively with Westhampton and the
Superintendent, “Defendants”). Plaintiffs’ Amended Complaint
purports to allege an equal protection claim pursuant to 42 U.S.C.
§ 1983 (“Section 1983”). (See Am. Compl., ECF No. 19.) Plaintiffs
seek monetary damages and equitable relief.
Currently pending before the Court is Defendants’ motion
to dismiss Plaintiffs’ Amended Complaint (hereafter, “Dismissal
Motion”). (See ECF No. 24; see also Support Memo, ECF No. 24-2.)
After careful consideration, for the reasons stated herein,
Defendants’ Dismissal Motion is GRANTED.
BACKGROUND
I. Factual Background 1
The parties and the Court are familiar with the extensive
facts underlying the present litigation. In the interest of
brevity, only the proceedings relevant to the issues presented in
the parties’ motions are discussed below. 2
1 The facts set forth herein are taken from the Amended Complaint, as well as the documents attached to it as exhibits, and are accepted as true for purposes of the instant motion. Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004). Additionally, a document may be considered on a motion to dismiss where the plaintiff has “reli[ed] on the terms and effect of [the] document in drafting the complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (emphasis omitted).
2 For ease of reference, the Court cites to the Electronic Case Filing System (“ECF”) pagination.
2
A.K., who was born with Down syndrome, completed the
sixth grade in 2015 in his home school district, the Remsenburg-
Speonk School District (“Remsenburg”). (Am. Compl. ¶¶ 15, 63; see
also Jan. 26, 2017 Order of Independent Hearing Officer (“IHO”)
Nancy M. Lederman (“IHO Lederman”) (hereafter, “Lederman Order”),
ECF No. 24-4, at 8, attached to Kreppein Decl., ECF No. 24-1.)
Remsenburg contracts with Defendant District and the Eastport-
South Manor School District (“Eastport”) to educate its middle and
high school students. (Am. Compl. ¶¶ 15-16; Lederman Order at 5.)
Despite Plaintiffs’ interest in sending A.K. to Defendant District
for middle school for the 2015-2016 academic year, Remsenburg's
initial individualized education plan (“IEP”) for A.K. recommended
his placement in an 8:1:1 program in Eastport. (See Am. Compl. ¶¶
21-22; Lederman Order at 7-9.) Following Plaintiffs’
administrative challenge of Remsenburg's placement decision,
Remsenburg modified A.K.’s IEP and recommended that Westhampton
implement an individualized program to accommodate A.K.’s
placement. (Lederman Order at 8-9.) Westhampton declined to
enroll A.K.; subsequently, additional administrative proceedings
ensued as to the 2015-2016 and 2016-2017 school years. (See Am.
Compl. ¶¶ 21-24; Lederman Order at 8-9, 25, 31.)
In September 2016, at IHO Lederman’s direction,
Westhampton enrolled A.K. and convened a Committee on Special
Education (“CSE”). (Am. Compl. ¶¶ 72-73.) The CSE recommended
3
that A.K. be placed in a program in Eastport for the 2016-2017
school year. (Lederman Order at 25.) Plaintiffs again
administratively challenged the District’s recommendation. (See
id. at 31.) Thereafter, IHO Lederman found that Westhampton had
failed to provide A.K. with a free and appropriate education
(“FAPE”) for the 2015-2016 and 2016-2017 academic years. (Am.
Compl. ¶¶ 5-7, 19; Lederman Order at 41.)
At some point following the commencement of Plaintiffs’
claims against the Defendants, the District implemented a class
that educated two or three alternately assessed special education
students at the middle school level. (Am. Compl. ¶¶ 80-81.)
Because the students in this newly formed special education class
were younger than A.K., who was of high school age, an age waiver
was required to admit A.K. to this middle school program. (See
Killoran v. Westhampton Beach Sch. Dist., No. 19-CV-6663, 2021 WL
1146078, at *3 (E.D.N.Y. Mar. 25, 2021) (hereafter, the “Prior
Order”). 3 The District refused to apply for the age waiver. (See
id.) Thereafter, IHO Leah L. Murphy (“IHO Murphy”) concluded that
“[t]he District violated A.K. and his parents’ procedural rights
pursuant to the IDEA, when it failed to include them in a
discussion regarding a decision to apply for an age variance . .
. and rejected their request to seek a waiver.” (Id.) Thus, on
3 While the Prior Order is docketed in this case at ECF No. 18, when citing to it herein, the Court will use Westlaw pin citations. 4
August 3, 2018, she issued an interim order compelling Defendant
District to apply for the age waiver. (See id.; Am. Compl. ¶ 83.)
The District complied and submitted the age variance to the New
York State Education Department, which denied the requested waiver
finding it “lack[ed] an educational justification that support[ed]
exceeding the 36-month age range in this class.” (Prior Order at
3.)
II. Procedural Background
In a prior action, Case No. 17-CV-0866 (hereafter, the
“2017 Action”), on August 15, 2018, Plaintiffs raised a class-of-
one equal protection claim via their second amended consolidated
complaint. (See A.K. v. Westhampton Beach Sch. Dist., No. 17-CV-
0866, Second Am. Compl., ECF No. 52 (E.D.N.Y. Aug. 15, 2018).) On
September 7, 2019, the Court granted, without prejudice,
Defendants’ Rule 12(c) motion for judgment on the pleadings
regarding Plaintiffs’ Section 1983 equal protection-based claim
finding that Plaintiffs failed “to plausibly allege that A.K. was
treated differently from any similarly situated individual.” A.K.
v. Westhampton Beach Sch. Dist., No. 17-CV-0866, 2019 WL 4736969
at * 17 (E.D.N.Y. Sept. 27, 2019) (Hereafter, the “2019 Order”).
Instead of repleading their equal protection claim in
the 2017 Action, on November 26, 2019, Plaintiffs brought the
instant action against Defendants purportedly alleging a class-
of-one equal protection claim pursuant to Section 1983. (See ECF
5
No. 1.) On March 25, 2021, the Court granted Defendants’ Rule
12(b)(6) motion to dismiss the complaint without prejudice and
provided Plaintiffs with the opportunity to replead. (See Prior
Order at 7.) Specifically, the Court directed that “in amending
their claim, Plaintiffs must provide non-conclusory allegations
demonstrating how the alleged comparators are similarly situated
to A.K. but were treated differently.” (Id.)
On April 22, 2021, Plaintiffs filed an Amended Complaint
again purporting to allege an equal protection claim pursuant to
Section 1983. (See Am. Compl., ECF No. 19.) On June 24, 2021,
Defendants filed the instant Dismissal Motion. (See Dismissal
Motion, ECF No. 24.) Plaintiffs filed their opposition to the
Motion on June 30, 2021. (See Opp’n., ECF No. 25.)
DISCUSSION I. Standard of Review To withstand a motion to dismiss, a complaint must
contain factual allegations that “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). This plausibility standard is not a “probability
requirement” and requires “more than a sheer possibility that a
defendant has acted unlawfully.” Id. (internal quotation marks
and citation omitted). Although the Court must accept all
allegations in the complaint as true, this tenet is “inapplicable
6
to legal conclusions.” Id. Thus, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citation omitted). Ultimately,
the Court’s plausibility determination is a “context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679. In turn,
“[p]lausibility . . . depends on a host of considerations: the
full factual picture presented by the complaint, the particular
cause of action and its elements, and the existence of alternative
explanations so obvious that they render plaintiff’s inferences
unreasonable.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419,
430 (2d Cir. 2011) (citing Iqbal, 556 U.S. at 674-84).
In deciding a motion to dismiss, the Court is confined
to “the allegations contained within the four corners of [the]
complaint,” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71
(2d Cir. 1998), but this has been interpreted broadly to include
any document attached to the complaint, any statements or documents
incorporated in the complaint by reference, any document on which
the complaint heavily relies, and anything of which judicial notice
may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147,
152-53 (2d Cir. 2002) (observing that a document is “integral” if
the complaint “relies heavily upon its terms and effect”).
Further, it is well-established that pleadings filed by
pro se plaintiffs are held “to less stringent standards than formal
7
pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (internal quotation marks and citation omitted).
However, where, as here, an attorney is proceeding pro se, his
pleadings are not entitled to the “special consideration which the
courts customarily grant to pro se parties.” Bazadier v. McAlary,
464 F. App’x 11, 12 (2d Cir. 2012) (internal quotation marks and
citation omitted); see also Killoran v. Westhampton Beach Sch.
Dist., No. 19-CV-3298, 2020 WL 4740498, at *4 (E.D.N.Y. June 24,
2020) (“[T]he Court takes notice that Plaintiff [Christian
Killoran], although proceeding pro se, is a registered attorney.”)
report and recommendation adopted, 2020 WL 4743189 (E.D.N.Y. July
27, 2020). Accordingly, although Plaintiff is proceeding pro se,
his Amended Complaint is held to the same standards as pleadings
drafted by lawyers. See Bazadier, 464 F. App’x at 12.
II. Section 1983 Equal Protection Claim
Plaintiffs’ Amended Complaint contains substantially
similar allegations to their original complaint, alleging that
A.K. is similarly situated to both pre-enrolled and post-enrolled
Remsenburg graduates. For the reasons discussed infra, the Court
finds that Plaintiffs’ Amended Complaint fails to state a
cognizable claim upon which relief can be granted.
Pursuant to the Fourteenth Amendment’s Equal Protection
Clause, the Government must treat “all similarly situated people
alike.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494,
8
499 (2d Cir. 2001) (citing City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 439 (1985)). The protections afforded by the
Equal Protection Clause extend to “individuals who allege no
specific class membership[,]” known as “class of one claims[,]”
“where the plaintiff alleges that [ ]he has been intentionally
treated differently from others similarly situated and that there
is no rational basis for the difference in treatment.” Id.
(quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)
(per curiam)).
To prevail on a “class of one” claim, “‘the plaintiff
must point to at least one other individual whose circumstances,
aside from being treated more favorably than plaintiff, are ‘prima
facie identical’ in all other respects.’” MB v. Islip Sch. Dist.,
No. 14-CV-4670, 2015 WL 3756875, at *10 (E.D.N.Y. June 16, 2015)
(cleaned up); see also Clubside, Inc. v. Valentin, 468 F.3d 144,
159 (2d Cir. 2006) (“[C]lass-of-one plaintiffs must show an
extremely high degree of similarity between themselves and the
persons to whom they compare themselves.” (emphasis added)). More
specifically, a plaintiff must establish that he and a comparator
are “prima facie identical” by showing:
(i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to
9
exclude the possibility that the defendant acted on the basis of a mistake.
Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59–60 (2d
Cir. 2010), cert. denied, 562 U.S. 1108 (2010) (quoting Clubside,
468 F.3d at 159).
To survive a motion to dismiss, a complaint must make
sufficient factual allegations in support of this similarity
requirement. See Ruston, 610 F.3d at 59 (citing Iqbal, 556 U.S.
at 678.) Courts require “more than a bare allegation that other
individuals were treated differently.” Vaher v. Town of
Orangetown, N.Y., 916 F. Supp. 2d 404, 435 (S.D.N.Y. 2013)
(citation omitted). “[T]he court must [ ] determine whether, based
on a plaintiff’s allegations in the complaint, it is plausible
that a jury could ultimately determine that the comparators are
similarly situated.” Id. at 434 (quoting Mosdos Chofetz Chaim,
Inc. v. Village of Wesley Hills, 815 F. Supp. 2d 679, 697-98
(S.D.N.Y. 2011)).
Of relevance to this action, the Second Circuit recently
recognized “that ‘[t]here is no precise formula to determine
whether an individual is similarly situated to comparators.’” Hu
v. City of N.Y., 927 F.3d 81, 97 (2d Cir. 2019) (quoting McDonald
v. Vill. of Winnetka, 371 F.3d 992, 1002 (7th Cir. 2004); citing
Lindquist v. City of Pasadena, Texas, 669 F.3d 225, 234 (5th Cir.
2012) (“[T]he inquiry is case-specific and requires us to consider
10
the full variety of factors that an objectively reasonable
decisionmaker would have found relevant in making the challenged
decision.” (citation omitted))). The Hu Court instructed that the
“question of ‘whether parties are similarly situated is
[generally] a fact-intensive inquiry’ that depends heavily on the
particular context of the case at hand.” Id. (quoting Clubside,
Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006); citing Jennings
v. City of Stillwater, 383 F.3d 1199, 1214 (10th Cir. 2004)
(“Inevitably, the degree to which others are viewed as similarly
situated depends substantially on the facts and context of the
case.”)).
Plaintiffs have not met this standard. 4 In support of
their class-of-one equal protection claim, Plaintiffs reference
two groups of students as proposed comparators. The first group
of alleged comparators include Remsenburg graduates who applied
for enrollment within the Defendant District, but, unlike A.K.,
were enrolled by the District (hereafter, the “Pre-Enrollment
Class”). (Am. Compl. ¶¶ 10, 15-70.) Plaintiffs further divide
the Pre-Enrollment Class into what they label as “typical” students
4 The Court notes that Plaintiffs’ contention that “the defendants have the burden of establishing that the ‘comparators’ are different to a degree that would justify the defendants’ unequal treatment” is incorrect. (Am. Compl. ¶ 93 n.11 (emphasis in original).) See Ruston, 610 F.3d at 59 (“[C]lass-of-one plaintiffs must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves.” (emphases added)). 11
and “non-typical” -- or special education -- students. (Id. ¶
38.)
The second group of alleged comparators include
alternately assessed special education students enrolled in the
District, (hereafter, the “Post-Enrollment Class”) which
Plaintiffs divide into two sub-groups: (1) “alternately assessed
special education students” from Remsenburg and other sending
districts, who, unlike A.K., following enrollment in the District,
“did not have their educational placements ‘pre-determined’ by the
defendant district’s CSE” (id. ¶¶ 11, 76); and (2) four identified
students, three of whom, like A.K., have Down Syndrome, but, unlike
A.K., are being educated in the District’s “Middle School
alternately assessed special education class.” (Id. ¶¶ 12, 78-
96.) Plaintiffs contend that “the only discernable difference
between himself and these other ‘alternately assessed special
education students,’. . . was that [ ] A.K., had voiced his
intention to challenge the defendant district’s historic and
discriminatory and reflexive policy of ‘outsourcing’ the post-
enrollment, post-elementary education of every single ‘alternately
assessed special education student’ that has ever come before it.”
(Id. ¶¶ 58, 126.)
A. Pre-Enrollment Class
With respect to the Remsenburg graduates that were
enrolled in the District, Plaintiffs fail to plausibly allege that
12
A.K. was treated differently from any similarly situated
individual. The Amended Complaint alleges that A.K. “profiles as
being ‘similarly situate[d] and/or prima facie identical’ to those
‘typical’ students who graduated from [Remsenburg]” as evidenced
by “inherent ‘similarities’” including the fact that he was the
“same grade-level age,” and, had the same “right[ ] to enroll
within the defendant district” pursuant to a contract between
Remsenburg and the District. (Id. ¶¶ 26-30, 35.) Plaintiffs claim
that the only “discernible difference” between A.K. and his
“typical” Remsenburg graduating peers was that A.K. [] was
disabled.” (Id. ¶ 31.)
Such bare allegations of “inherent similarities” are
insufficient to show “an extremely high degree of similarity”
between A.K. and any one of his “typical” Remsenburg peers.
Ruston, 610 F.3d at 60 (affirming dismissal of “class of one” claim
for failure to “allege specific examples” of similarly situated
comparators); see also Camac v. Long Beach City Sch. Dist., No.
09-CV-5309, 2011 WL 3030345, at *16 (E.D.N.Y. July 22, 2011)
(dismissing class-of-one claim where allegations did no more than
assign unnamed non-disabled students the title of “similarly
situated”).
Further, the existence of a contract between Remsenburg
and the District does nothing to plausibly allege a high degree of
similarity between A.K. and this group of the alleged comparators.
13
Moreover, as Defendants contend, the enrollment process for A.K.
was “unique.” (See Support Memo at 7 (“AK took a unique path
towards requesting enrollment, and thus is not similar to the other
students who were ministerially enrolled via their elementary
schools sending enrollment packets to [Westhampton].”) While the
CSE recommended A.K.’s placement in Eastport, the Plaintiffs
sought his enrollment in Westhampton. (See Lederman Order at 10.)
As to that requested enrollment, “[w]hile no student had ever been
refused enrollment, it was also true that upon a placement
recommendation in another district[,] enrollment in Westhampton
Beach had never been sought.” (Id. at 11. 5) These distinct
5 Earlier in her Order, IHO Lederman stated:
Superintendent Radday characterized the situation for AK as unique, in that Remsenburg-Speonk made a recommendation for the Eastport-South Manor school district, also a school district for which Remsenburg-Speonk had an instruction contract, stating that they had never [s]een a circumstance where a recommendation for another district with a secondary education contract had nevertheless requested that the student be enrolled in Westhampton. . . . He emphasized that the recommendation for Eastport-South Manor, a district with which Remsenburg-Speonk had a tuition contract, made the circumstance unique. Ms. Ambrosini also noted the [D]istrict had never had a request for enrollment for a student placed in Eastport- South Manor school district and thought that the recommendation for Eastport South Manor would indicate enrollment in that district.
14
circumstances demonstrate that Plaintiffs’ proposed “typical”
Remsenburg graduates are not similarly situated to A.K.
Moreover, Plaintiffs’ allegation that A.K. is
“particularly similarly situate[d] and/or prima-facially
identical” to his “non-typical” special education Remsenburg
graduate peers, who, unlike A.K., were afforded enrollment within
the district (see Am. Compl. ¶ 38), is nearly identical to both the
allegations in their original complaint in this action and the
allegations in their complaint in their 2017 Action, which were
both dismissed by this Court. (See Prior Order at 5-6; 2019 Order
at 49-50.) In its Prior Order dismissing Plaintiffs’ original
complaint in this action, the Court found that aside from
“identify[ing] the ‘Remsenburg graduates’ ‘special education
students’ by name,” Plaintiffs “fail[ed] to set forth any facts
that identify how the circumstances of these students are similar
to A.K.’s circumstances, e.g., the nature of their disabilities,
their educational needs, or when they were enrolled in the
District.” (Prior Order at 5 (citing Compl.).)
(Lederman Order at 9-10.) IHO Lederman also clarified: “There was no discussion regarding [such] enrollment, because participants were so focused on placement and program. Ms. Achilich acknowledged that because of the parents’ insistence on Westhampton Beach and the focus on where AK would attend, there was no breakdown of the difference between enrollment and placement and program discussed.” (Id. at 11.) 15
Now, attempting to remedy their prior deficient
allegations, Plaintiffs allege that all “‘alternately assessed
special education students’ share certain uniform and/or universal
characteristics,” including, but not limited to: similar IQ
proficiencies (see Am. Compl. ¶ 46); the need for an IEP (see id.
¶ 43); the receipt of related services and educational
accommodations, behavioral modification plans, modified
curriculum, transitional planning and services (see id. ¶¶ 47-49);
and the requirement that they meet strict eligibility criteria to
be classified as severely disabled (see id. ¶ 52). Plaintiffs
contend that these shared characteristics establish that all
alternately assessed students are “particularly similarly
situate[d] and/or prima-facially identical” for purposes of
establishing a class-of-one claim. (Id. ¶ 41; Opp’n. at 10.)
However, such “naked assertion[s] devoid of further
factual enhancement” will not survive a motion to dismiss. Iqbal,
556 U.S. at 678. In the context of a case involving alternately
assessed special education students, the fact that all special
education students are entitled to receive additional services,
without more, fails to demonstrate that A.K. is “prima facie
identical” to all of his “non-typical” peers for the purposes of
stating a class-of-one claim. Cf. Marino v. City Univ. of N.Y.,
18 F. Supp. 3d 320, 341 (E.D.N.Y. 2014) (finding allegations that
“all students in [plaintiff’s] seminar [class] were subject to the
16
same curriculum, syllabus, grading requirements, mandatory student
teaching, and overall course instructor” were too conclusory to
show “the high degree of similarity required” to state a cognizable
class of one-claim). Like the original complaint, the Amended
Complaint fails to address the specific nature of the disabilities
or educational needs of any “non-typical” alleged comparator.
Rather, they offer general allegations of prima facie
identicalness, e.g.: “all of the students are ‘alternately
assessed’” (Am. Compl. ¶ 102); “all of the students require related
services” (id. ¶ 103); “all of the students require an aide” (id.
¶ 104); “all of the students are working towards achieving a
graduating ‘skills and achievement commencement credential’” (id.
¶ 105); “all of the students are utilizing curriculum that is
focused on the NYS learning standards . . . along with a focus
upon developing the social skills and activities of functional
daily living” (id. ¶ 107); and, “all of the students are working
upon mastering ‘foundational’ and/or ‘pre-curser’ skills” (id. ¶
108). As in Marino, such allegations are too conclusory to
plausibly allege the extremely high degree of similarity required
to state a cognizable class-of-one claim. 6 See also Hu, 927 F.3d
6 This conclusion applies equally to the general, conclusory allegations contained in footnote 15 of the Amended Complaint. (Am. Compl. ¶ 109 n.15 (asserting all “alternately assessed” students: “rank in the similar IQ percentile” as A.K.; “have remarkably similar IEPs”; “rank comparably on all evaluating testing methodologies”; and “have all been recommended for a 17
at 97 (“[W]hether parties are similarly situated is generally a
fact-intensive inquiry that depends heavily on the particular
context of the case at hand.” (cleaned up)).
Further, to the extent Plaintiffs rely upon the
District’s age variance application (hereafter, the “Variance
Application”) to establish the requisite extremely high degree of
similarity, that reliance is misplaced. (See Am. Compl. ¶¶ 98-
101, and n.13; see also Ex. P-1, Variance Application, attached to
Am. Compl.) Contrary to Plaintiffs’ contention that the Variance
Application highlights A.K.’s striking similarity to other
alternately assessed special education students within the
District (see id. ¶ 109), it undercuts such claim, highlighting
the differences between A.K.’s assessments and needs with those
comparator students included in the Variance Application. (See
Variance Application.) Moreover, Plaintiffs’ allegation that at
least one of the other students profiled in the Variance
Application is “now over 15 years old” and “require[s]
‘transitional embedding’” (Am. Comp. ¶ 106 7), without more, is not
special class setting in a 12:1:1 format”).) In the special education context, these assertions do not plausibly allege an extremely high degree of similarity between A.K.’s “non-typical” special education peers and A.K.
7 Plaintiffs note that “the [V]ariance [A]pplication was formulated in 2018.” (Am. Compl. ¶ 106 n.14.) Since that time “at least 1 of the students therein is over 15 and thus does in fact require ‘transitional embeddings’.” (Id.) No further facts are alleged. And, regardless of that change, it does not eliminate 18
enough to allege an extremely high degree of similarity between
that student and A.K. such that Plaintiffs have plausibly alleged
a class-of-one equal protection cause of action.
Furthermore, Plaintiffs’ reference to H.R., a Remsenburg
graduate with Down Syndrome, fails to remedy their pleading
deficiency. According to Plaintiffs, H.R. has a “particularized
similarity” with A.K. because of the “shared [physical and
cognitive] ‘characteristics,’” of people with Down Syndrome. (Am.
Compl. ¶¶ 61-68.) However, individuals with Down Syndrome present
a broad range of physical, cognitive and social characteristics
and abilities. See, e.g., Mayo Clinic, Down Syndrome, Symptoms &
Causes, Overview (“Down syndrome varies in severity among
individuals, causing lifelong intellectual disability and
developmental delays. It’s the most common genetic chromosomal
disorder and cause of learning disabilities in children. It also
commonly causes other medical abnormalities, including heart and
gastrointestinal disorders.”),
https://www.mayoclinic.org/diseases-conditions/down-
syndrome/symptoms-causes/syc-20355977 (last visited May 24, 2022).
Therefore, this allegation does not suffice to maintain a class-
the more than three-year age difference between that student and A.K., which age difference supports the District’s decision not to place A.K. with allegedly similarly situated alternately assessed special education students.
19
of-one equal protection claim. Moreover, Plaintiffs’ speculative
allegation that “a comparative analysis of the respective IEP’s of
H.R. and A.K. will reveal a striking degree of similarity shared
between such students” (id. ¶ 69) is insufficient to plausibly
allege that H.R. is prima facie identical to A.K. See Marino, 18
F. Supp. 3d at 341 (“Plaintiff’s hypothetical and speculative claim
that an investigation into her classmates’ performances would
reveal that they were similarly situated” is insufficient to
survive a motion to dismiss.); Killoran, 2020 WL 4740498, at *11,
n.12 (noting that identifying five special education students by
name without explaining how they are similarly situated to A.K.
fails to plausibly allege “that at least one other student whose
circumstances are prima facie identical to those of A.K. was
treated differently than A.K.”). Thus, the Amended Complaint does
not cure the deficiencies of Plaintiffs’ original complaint since
it lacks plausibly alleged facts from which the Court is able to
analyze an extremely high degree of similarity between A.K. and
H.R. or any of his other “non-typical” peers.
In sum, because Plaintiffs fail to allege how A.K.’s
circumstances are prima facie identical to either “typical” or
“non-typical” Remsenburg graduates, Plaintiffs’ equal protection
claim based on this Pre-Enrollment Class cannot survive a motion
to dismiss.
20
B. Post-Enrollment Class
Plaintiffs’ allegations with respect to the Post-
Enrollment Class are also insufficient to state a class-of-one
equal protection claim.
Plaintiffs allege that the District treated A.K.
unequally from all other Remsenburg graduates even after his
enrollment within the District, and, specifically, within the
context of its October 2016 CSE for which IHO Lederman found a
FAPE violation. (Am. Compl. ¶¶ 71-76; Opp’n. at 24-25.) This
Court has repeatedly rejected Plaintiffs’ attempts to base their
equal protection claim on IHO Lederman’s finding of FAPE
violations. (See, e.g., 2019 Order at 16; Prior Order at 6.)
Rather, in order to allege a Section 1983 equal protection claim,
Plaintiffs must “prove that a constitutional violation occurred
‘outside the scope of the IDEA.’” Evans v. Bd. of Educ. of
Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 102-03 (S.D.N.Y.
1996); see also French v. N.Y.S. Dep’t of Educ., No. 04-CV-0434,
2010 WL 3909163, *11 (N.D.N.Y. Sept. 30, 2010) (“Plaintiff’s
complaint makes clear that the alleged Section 1983 violations are
merely a reiteration of his IDEA claims, as they attack
Defendant[’s] alleged noncompliance with the IDEA and its effects
on Plaintiff.”), aff’d, 476 F. App’x 468 (2d Cir. 2011). Once
again, Plaintiffs’ amended allegations fail to do so.
21
Like their original complaint, Plaintiffs’ Amended
Complaint alleges that the District had a “practice and/or policy
of outsourcing” the post-elementary education “of every single
‘alternately assessed special education student’ that has ever
come before it.” (Am. Compl. ¶¶ 58-59, 79, 89, n.9.) As the Court
held in its Prior Order, “this first subset of the ‘post-enrollment
class’ of comparators are not alleged to have been treated
differently than A.K., and for that reason alone, Plaintiffs’
allegations do not support a class of one claim.” (Prior Order at
6) (emphasis added). Therefore, in the absence of any factual
allegations of a constitutional violation on the part of
Defendants, Plaintiffs’ amended allegations with regard to the
first sub-group of the “post-enrollment” comparators fails to
state an equal protection claim.
Next, Plaintiffs claim that the District “treated [A.K.]
unequally following his enrollment by choosing to apply its special
education resources towards the education of certain ‘alternately
assessed special education students’ but not [ ] A.K.,” and refers
to three special education students who, like A.K., have Down
Syndrome but are in the middle school’s special education class. 8
(Am. Compl. ¶¶ 80-81, 94-96.)
8 Plaintiffs allege that the alternately assessed special education class is now comprised of approximately four students, including three students with Down Syndrome (see Am. Compl. ¶ 96) and note that the class will be held in the District’s high school 22
In its Prior Order dismissing Plaintiffs’ equal
protection claim, this Court found that these same “alleged
comparator students are not ‘similarly situated’ to A.K. because,
unlike A.K., they fall within the state-imposed age restrictions
placed upon the class.” (Prior Order at 7.) In an attempt to
circumvent dismissal here, Plaintiffs now contend that the age
disparity between A.K. and the alternately assessed students
enrolled in the District’s middle school program “should be
discarded as a relevant factor” because Plaintiffs are “not arguing
for [A.K.’s] inclusion within the ‘alternately assessed Middle
School special education class’ established by the defendant
district,” but rather seek to hold the District liable for not
applying “their special education resources to [A.K.]” by
educating him in one of Plaintiffs’ suggested “alternative
educational formats.” (Am. Compl. ¶¶ 87-88, 92.)
and not its middle school (see id. at note 12). Plaintiffs further note “at least 1 of the students is 15 years of age” and “requires ‘transitional embedding’” like A.K. (Id.) However, the composition of the current alternately assessed special education class is irrelevant to the instant action and Plaintiffs’ present cause of action, which relates to earlier academic years. Even if that were not so, to the extent the footnoted statement is an allegation, it is also too vague to plausibly allege an extremely high degree of similarity to A.K. See, e.g., MB, 2015 WL 3756875, at *10 (“Plaintiffs’ conclusory statement that [the comparator] is [ ] similarly situated to [plaintiff student], without any supporting facts to suggest an extremely high degree of similarity between [them] is insufficient to establish that no rational person could regard [plaintiff student’s] circumstances . . . to differ from those of [the comparator] to a degree that would justify the differential treatment.”) (internal quotations omitted). 23
Defendants contend that Plaintiffs are merely attempting
to “reargue A.K.’s placement recommendation, rather than asserting
a separate [constitutional] claim that is distinct from
[Plaintiffs’ prior] IDEA claims.” (Support Memo at 15.) They
argue that Plaintiffs’ assertions that the District be required to
adopt their proposed alternative education formats has been
repeatedly rejected administratively and those decisions have been
upheld by this Court. (Id.) The Court agrees.
Admittedly, the students that comprise the District’s
middle school special education class, including the three
students with Down Syndrome whom Plaintiffs identify, are three to
five years younger than A.K. and therefore fall within the state-
imposed age restrictions placed upon the class, a fact the Court
will not “discard[ ].” (Am. Compl. ¶¶ 83-84; Prior Order at 7.)
Plaintiffs’ amended pleading refers to the Variance Application
itself as evidence of the “similarities” and “‘prima facie
identical profiles’ shared between [ ] A.K. and those students
within the defendant district’s ‘alternately assessed special
education [middle school] class.’” (Id. ¶ 98.) Plaintiffs contend
that A.K., like all of the students within the District’s existing
alternately assessed special education class are, for example,
“alternately assessed,” require an aide and related services, have
similar IEPS, rank comparably on all evaluative testing
methodologies, are utilizing curriculum that is focused on New
24
York state learning standards, and were recommended for a special
class setting in a 12:1:1 format. (Am. Compl. ¶¶ 99-109.) Even
ignoring their generalities in nature which still lack the
specificity necessary to plausibly allege an extremely high degree
of similarity, these new allegations do not dissipate the fact
that there remains at least a three-year age difference between
the alleged comparators and A.K. 9 Such an age differential
underscores the lack of an extremely high degree of similarity
between A.K. and his alleged comparators; on this basis alone, a
rational person could regard A.K.’s circumstances to be different
to a degree justifying the District’s differential treatment,
especially since no age variance was granted. Thus, like their
original allegations, Plaintiffs’ amended pleadings fail to allege
that any of A.K.’s proffered post-enrollment comparators are prima
facie identical to A.K.
Finally, Plaintiffs’ attempt to relitigate their IDEA
claim under the guise of equal protection is unavailing. It is
well-settled that parents are entitled to participate in the
decision making regarding the educational program of their child
but not the “bricks and mortar of the specific school.” T.Y. &
9 And, as noted, supra, Plaintiffs’ allegation that at least one of the students in the middle school class is now over fifteen- years-old and therefore requires transitional embeddings like A.K. (see Am. Compl. ¶ 106) does not support their equal protection claim given the three-year age gap between A.K. and this alleged comparator. 25
K.Y. ex rel. T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 419 (2d
Cir. 2009); see also F.L. ex rel. F.L. v. N.Y.C. Dep’t of Educ.,
No. 11-CV-5131, 2012 WL 4891748, at *11 (S.D.N.Y. Oct. 16, 2012)
(“Parents are entitled to participate in any decision regarding
the educational placement of their child. Parents are not,
however, procedurally entitled to participate in the decision
regarding school placement.”) (citation omitted). Therefore,
Plaintiffs’ desire to have A.K. placed in one of their proposed
alternative educational formats is not only inappropriate under
the IDEA, but also fails to support a constitutional claim.
Accordingly, Plaintiffs’ amended allegations regarding
the post-enrollment class fail to allege a class-of-one equal
protection claim.
***
In sum, as the Defendants aptly argue, the “Plaintiffs’
arguments that the school district should cede to their requests
to take creative measures to accommodate their location
preference, even if not required under the IDEA, because it later
formed a special education class for a group of other disabled
students under different circumstances is more of a plea to general
equity than an argument under the Equal Protection Clause.”
(Support Memo at 7.) Accepting all allegations in the Amended
Complaint as true, because the Amended Complaint does not contain
sufficient factual content showing A.K. and his alleged
26
comparators share the requisite extremely high degree of
similarity, Plaintiffs have failed to state a plausible class-of-
one equal protection claim. Hence, the Court cannot draw a
subsequent reasonable inference that the Defendants are liable for
the alleged equal protection violation, thereby warranting the
granting of Defendants’ Dismissal Motion.
III. Leave to Amend
The Second Circuit has held that “[w]hen a motion to
dismiss is granted, the usual practice is to grant leave to amend
the complaint.” Hayden v. County of Nassau, 180 F.3d 42, 53 (2d
Cir. 1999); see also FED. R. CIV. P. 15(a)(2) (“The court should
freely give leave [to amend] when justice so requires.”). However,
“an opportunity to amend is not required where the plaintiff has
already been afforded the opportunity to amend.” Roache v.
Fischer, No. 18-CV-0825, 2019 WL 6827296, at *5 n.12 (N.D.N.Y.
Dec. 13, 2019) (citing Shuler v. Brown, No. 07-CV-0937, 2009 WL
790973, at *5 & n.25 (N.D.N.Y. Mar. 23, 2009) (“Of course, an
opportunity to amend is not required where the plaintiff has
already amended his complaint.”)); see also Yang v. N.Y.C. Trans.
Auth., No. 01-CV-3933, 2002 WL 31399119, at *2 (E.D.N.Y. Oct. 24,
2002) (denying leave to amend where plaintiff had already amended
complaint once); Advanced Marine Tech. v. Burnham Sec., Inc., 16
F. Supp. 2d 375, 384 (S.D.N.Y. 1998) (same).
27
Since Plaintiffs were afforded two opportunities to
amend their Equal Protection claim, the Court finds that leave to
further amend would be futile and is therefore DENIED.
CONCLUSION
Accordingly, for the reasons set forth above, IT IS
HEREBY ORDERED that Defendants’ Dismissal Motion (ECF No. 24) is
GRANTED and the Amended Complaint is DISMISSED WITH PREJUDICE.
Judgment shall enter in favor of Defendants.
IT IS FURTHER ORDERED that the Clerk of the Court is
directed to mail a copy of this Memorandum and Order to the pro se
Plaintiffs.
SO ORDERED.
/s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J.
Dated: August 10, 2022 Central Islip, New York
28