UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------x CHRISTIAN KILLORAN, on behalf of his son, AIDEN KILLORAN,
Plaintiff, MEMORANDUM & ORDER 20-CV-4121(JS)(SIL) -against-
WESTHAMPTON BEACH SCHOOL DISTRICT; MICHAEL RADDAY, as Superintendent; MARY ANNE AMBROSINI, as Director of Pupil Personnel; SUZANNE MENSCH, HALSEY C. STEVENS, JOYCE DONNESSON, and GEORGE R. KAST, as Board of Education Members,
Defendants. ----------------------------------x For Plaintiff: Christian Killoran, Esq., Pro Se 132-13 Main Street Westhampton Beach, New York 11978
For Defendants: Anne C. Leahey, Esq. Anne Leahey Law, LLC 17 Dumplin Hill Lane Huntington, New York 11743
SEYBERT, District Judge:
Pro se plaintiff Christian Killoran (“Plaintiff”),
individually and as parent to A.K., a child with Down Syndrome,
commenced this action against defendants Westhampton Beach School
District (“Westhampton” or the “District”), Michael Radday (“the
Superintendent”), Mary Anne Ambrosini (“Director of Pupil
Personnel”), Suzanne M. Mensch, Halsey C. Stevens, Joyce L.
1
Donnesson, and George R. Kast, Jr. (together, the “School Board,”
and collectively with Westhampton, the Superintendent, and the
Director of Pupil Personnel, the “Defendants”). Plaintiff’s
Complaint purports to allege violations of the “stay-put”
provision of the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1415(j), the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq., Section 504 of the
Rehabilitation Act (“Section 504”), 29 U.S.C. § 701 et seq., and
42 U.S.C. § 1983 (“Section 1983”). (See Combined Verified
Complaint and Affidavit in Support of Order to Show Cause,
(“Compl.”), ECF No. 1.) 1
Currently pending before the Court is Defendants’ motion
to dismiss the Complaint in in its entirety (hereafter, “Dismissal
Motion”) (ECF No. 16.), and Plaintiff’s cross-motion for partial
summary judgment with respect to his IDEA claim (hereafter, the
“Cross Motion”). (ECF No. 19. 2) After careful consideration, for
the reasons stated herein, Defendants’ Dismissal Motion is
GRANTED, and Plaintiff’s Cross-Motion is DENIED.
1 Note that the Court cites to electronic case filing (“ECF”) system pagination throughout this Memorandum and Order. 2 In his Cross-Motion (ECF No. 19), Plaintiff also includes his opposition to Defendants’ Dismissal Motion. (See infra, Background, Part II.) To the extent the Court cites to this document in the context of Plaintiff’s opposition, it will use the notation “Pl. Opp’n”. 2
BACKGROUND
I. Factual Background
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. 3
On September 20, 2019, in response to a prior order from
this Court in a related case (see Case No. 19-CV-5078, Sept. 6,
2019 Elec. Order), the parties reached an agreement concerning
A.K.’s pendency placement during the parties’ ongoing
administrative proceedings (hereafter, the “2019 Agreement”).
(See 2019 Agreement, ECF No. 1 at 9-11. 4) Pursuant to said
Agreement, A.K. would receive a hybrid of services. (Id. at ¶¶ 1-
3.) For example: A.K. would first be bussed to the District where
he would receive adaptive physical education, speech pathology;
and occupational therapy (id. at ¶ 2); he would then be bussed to
the local library for his special education instruction by a
District-provided special education teacher (id. at ¶ 3); and,
thereafter, AK’s parents would be responsible for his transport
home (id. at ¶ 4). As Plaintiff alleges, the 2019 Agreement became
3 The facts set forth herein are taken from the 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).
4 The 2019 Agreement is attached to the Complaint in this action. 3
the “‘last agreed upon’ pendency agreement” between the parties.
(Compl. ¶ 12.) According to Plaintiff, A.K. received his
instruction in accordance with the terms of the 2019 Agreement “up
and until the COVID-19 pandemic ensued, wherein all instruction
became virtual.” (Id.)
In March 2020, in accordance with a COVID-19 pandemic-
related executive order from then-Governor Cuomo, Westhampton
terminated in-person instruction; thereafter, all students,
including A.K., received remote instruction through the end of the
academic year. (Pl. Opp’n at 5.) When the District began the
next school year in September 2020, it provided in-person
instruction for all elementary and middle school students. (Id.
at 6.) However, the District’s high-school students were provided
with a hybrid schedule consisting of in-person and remote
instruction. (Id.) According to Plaintiff, “all of the District’s
‘alternately assessed special education students,’ except [A.K.],
began receiving their instructions ‘full-time’ and ‘in-person’.”
(Id.)
Due to the COVID-19 pandemic, the local public library
was unavailable at the commencement of the 2020 academic year.
Accordingly, prior to the start of that academic year, the District
notified Plaintiff that because of the library’s closure due to
the pandemic, it would provide A.K.’s special education
instruction in his home. (Compl. ¶ 17.) Specifically, A.K. would
4
receive daily services at the school from 7:30 a.m. to 9:00 a.m.,
and would then be bussed home where he would receive in-person
home instruction from a teacher three days per week and remote
instruction from the same teacher two days per week. (See Killoran
v. Westhampton Beach Sch. Dist., No. 20-CV-4121, 2020 WL 5424722,
at *2 (E.D.N.Y. Sept. 10, 2020) (hereafter, the “Prior Order”)
(docketed herein at ECF No. 9).) Referencing the 2019 Agreement,
Plaintiff responded to the District that it “should facilitate
such instruction within its own facilities, particularly because
it remains the [District] that is legally obligated to educate
[A.K.] and also because the [District] is doing so for every other
student.” (Compl. ¶ 18.) Plaintiff claims that the parents
“cannot reasonably, practically, or safely facilitate the
education of [A.K.] at home, particularly because both of [his]
parents work, and moreover that [A.K.’s] parents are not
comfortable with allowing someone, outside of the family, to enter
their home, unsupervised, during the Covid-19 pandemic.” (Id. at
¶ 19.) The District responded to Plaintiff’s concerns by offering
A.K. full-time remote instruction. (Prior Order, 2020 WL 5424722,
at *2.) Plaintiff responded via email stating:
[The] issue has been raised within the context of a Federal OTSC submitted yesterday. A.K. must receive his instruction at the school or alternatively at the Public Library. In any event DO NOT DROP A.K. OFF AT HOME, AS DOING SO WILL MOST CERTAINLY IMPACT HIS HEALTH, SAFETY AND WELL-BEING.
5
(Id. (cleaned up; capitalization in original).)
II. Procedural Background
On September 2, 2020, Plaintiff filed the instant suit
by Order to Show Cause seeking to have A.K.’s special education
instruction take place in the District. (See Compl.) Following
a telephonic hearing on September 8, 2020, the Court issued an
oral order, and on September 10, 2020, a written decision, denying
Plaintiff’s motion for emergency injunctive relief. (See Prior
Order, 2020 WL 5424722.) The Court found that the IDEA’s stay-
put provision was not violated because the Defendants were
substantially complying with the 2019 Agreement. (Id. at *3.)
The Court further found that “even if the Court were to liberally
construe the facts as disturbing the ‘status quo’ of A.K.’s
education, it would not grant emergency relief.” (Id.) After
weighing “Plaintiff’s desire for a change in A.K.’s current
pendency placement to ease the burden of home instruction on
Plaintiff and his wife against the safety of all others in the
district,” the Court concluded that the balance of hardships did
not tip in Plaintiff’s favor. (Id.) Furthermore, the Court found
that Plaintiff failed to show irreparable harm, noting that all
students across the nation were grappling with modified learning
due to the pandemic. (Id.) Ultimately, the Court concluded that,
in light of the library’s closure due to the pandemic, Defendant’s
proposal complied with the 2019 Agreement. (Id.)
6
With respect to the instant motions, Plaintiff’s
Complaint seeks an order “compelling the [District] to allocate
the space necessary to educate [A.K.],” and compensatory education
damages for a purported violation of the stay-put provision of the
IDEA. (Compl., “WHEREFORE” clause; Pl. Opp’n at 26-27.) Plaintiff
seeks additional damages for alleged violations of the ADA, Section
504, and Section 1983. (Compl., “WHEREFORE” clause.)
On October 30, 2020, Defendants filed their Dismissal
Motion asserting that the Complaint fails to state a claim pursuant
to Federal Rule of Civil Procedure 12(b)(6). (See
Dismissal
Motion.) On November 30, 2020, Plaintiff filed his opposition to
Defendants’ Dismissal Motion and cross-moved for partial summary
judgment of Plaintiff’s IDEA claim. (Pl. Opp’n.) On January 4,
2021, Defendants filed a reply brief in further support of their
Dismissal Motion and in opposition to Plaintiff’s Cross-Motion.
(Defs. Reply, ECF No. 21.) On January 13, 2021, Plaintiff filed
a reply brief in support of his Cross-Motion. (Pl. Reply, ECF No.
23.)
[Remainder of page intentionally left blank.]
7
DISCUSSION I. Standard of Review 5 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
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
5 Initially, the Court applies the Rule 12(b)(6) standard. To the extent any claim survives dismissal, the Court would then apply the summary judgment standard. However, because in this instance the Court finds that Plaintiff fails to state a claim for which relief may be granted, it need not apply the summary judgment standard. Additionally, because the Court grants Defendants’ Dismissal Motion in its entirety based on the pleadings and the properly attached documents, there is no need to consider the parties’ affidavits and accompanying exhibits submitted in support of, and in opposition to, Plaintiff’s Cross-Motion. See Staub v. Henshaw, No. 06–CV–0098, 2006 WL 1650687, at *2 (W.D.N.Y. June 7, 2006) (“[C]ourt need not consider any evidence outside the pleadings, . . . because plaintiff has failed to plead facts sufficient to state a claim.”). 8
that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
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
pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (internal quotation marks and citation omitted). Where,
as here, an attorney is proceeding pro se, however, 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 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
9
recommendation adopted, 2020 WL 4743189 (E.D.N.Y. July 27, 2020).
Accordingly, although Plaintiff is proceeding pro se, his
Complaint is held to the same standards as pleadings drafted by
lawyers. See Bazadier, 464 F. App’x at 12.
II. Alleged IDEA Violation
Plaintiff claims that Defendants have violated the stay-
put provision of the IDEA and therefore seeks a permanent
injunction in the form of “an ‘equitable order’ compelling the
[District] to allocate the space necessary to educate [A.K.]” in
the District. (Compl., “WHEREFORE” clause.) Defendants contend
that Plaintiff fails to state an IDEA claim because the Complaint
fails to allege that the District breached the Agreement.
(Dismissal Motion at 15-17.) For the reasons discussed below, the
Court agrees.
A. The IDEA’s Stay-Put Provision
The IDEA’s stay-put provision provides in relevant part
that “during the pendency of any proceedings conducted pursuant to
[20 U.S.C. § 1415] . . . the child shall remain in the then-current
educational placement of the child.” 20 U.S.C. § 1415(j). The
term “then-current educational placement” in the stay-put
provision typically refers to the child’s last agreed-upon
educational program before the parent requested a due process
hearing to challenge the child’s IEP. Ventura de Paulino v. N.Y.
City Dep’t of Educ., 959 F.3d 519, 532 (2d Cir. 2020); Arlington
10
Cent. Sch. Dist. v. L.P., 421 F. Supp. 2d 692, 697 (S.D.N.Y. Mar.
14, 2006) (noting that the stay-put provision is applicable to
pendency placement that arises from an agreement between the
parties) (citing Bd. of Educ. of Pawling Cent. Sch. Dist. v.
Schutz, 137 F. Supp. 2d 83 (N.D.N.Y. 2001), aff’d, 290 F.3d 476,
484 (2d Cir. 2002), cert. denied, 537 U.S. 1227 (2003))). The
stay-put provision exists to “provide stability and consistency in
the education of a student with a disability,” Arlington Cent.
Sch. Dist., 421 F. Supp. 2d at 696, and to maintain “the
educational status quo while the parties’ dispute is being
resolved.” T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752
F.3d 145, 152 (2d Cir. 2014). Thus, in effect, the provision is
“an automatic injunction, which is imposed without regard to such
factors as irreparable harm, likelihood of success on the merits,
and a balancing of the hardships.” Arlington Cent. Sch. Dist.,
421 F. Supp. 2d at 696 (citing Zvi D. v. Ambach, 694 F .2d 904,
906 (2d Cir.1982)). Once a pendency placement has been
established, it can only be changed in one of four ways: (1) by an
agreement of the parties; (2) by an unappealed administrative
decision of a hearing officer; (3) by a decision of a state review
officer (“SRO”) that agrees with the child’s parents that a change
of placement is appropriate; or (4) by a court determination on an
appeal from an SRO’s decision. Schutz, 290 F.3d at 484.
11
B. Application
Here, the parties agree that the last agreed upon
educational placement for A.K. is set out in the 2019 Agreement.
That Agreement provides that A.K. is to receive his special
services daily in the District followed by his special education
instruction in the local public library. (2019 Agreement ¶¶ 1-3;
Pl. Opp’n at 5.) Plaintiff concedes that until the onset of the
COVID-19 pandemic, A.K. was receiving his instruction in
accordance with the 2019 Agreement. (Compl. ¶ 12.) Plaintiff
contends, however, that since the library’s closure, Defendants
have violated the stay-put provision of the IDEA, and A.K. “has
not received any education since September.” (Pl. Reply at 6.)
Plaintiff argues that the library’s closure is a “pendency changing
event,” or, in the alternative, “implementation of the current
‘pendency agreement’ has been rendered impossible.” (Id.; Pl.
Opp’n at 8.) Thus, Plaintiff seeks to have A.K.’s “‘existing
pendency program’ [ ] implemented within [the District] until the
library re-opens.” (Pl. Opp’n at 17.) Plaintiff’s contentions
lack merit.
Plaintiff fails to allege a pendency changing event.
Admittedly, there has been no change in placement via an agreement
of the parties, an unappealed determination by a hearing officer,
a decision by the SRO, or a determination of a court. Further,
the library’s closure due to the pandemic is likely not a pendency-
12
changing event. See, e.g., J.T. v. de Blasio, 500 F. Supp. 3d
137, 187-88 (S.D.N.Y. 2020)(finding no change in pendency
placement where schools closed and switched to remote learning due
to COVID-19 pandemic) (appeal pending); see also N.D. v. Hawaii
Dep’t of Educ., 600 F.3d 1104, 1116, (9th Cir. 2010) (finding that
the shutting down of all schools in Hawaii did not constitute a
change in the educational placement of disabled children).
Plaintiff contends, however, that “even if the Court is
not inclined to view the library’s closing as being a conventional
‘pendency changing event,’” it should “view the circumstances at
hand as profiling as a seeming case of ‘first impression’
concerning pendency, brought about by the novelty of a world-wide
pandemic.” (Pl. Opp’n at 18.) Plaintiff argues that
“implementation of the current ‘pendency agreement’ has been
rendered impossible” (Id. at 8), and therefore the Court should
“reform” the 2019 Agreement and “name the [District] as the most
appropriate public situs to facilitate [A.K.’s education], at
least until the library re-opens.” (Pl. Reply at 6.)
However, because the 2019 Agreement already provides for
the contingency of the library’s closure, the Court need not
“reform” it; the relevant provision provides:
Should the library become unavailable for home instruction or special instruction, due to an emergency, a library closure, or other circumstances not caused by and beyond the control of the parties, the terms above shall
13
remain operative except that the [special education] instruction . . . shall take place in [A.K.]’s home, if available. In the event the library shall be closed for a period exceeding 7 days and [A.K.]’s home is unavailable, the parties will seek in good faith to orchestrate another, alternative off- site placement location.
(2019 Agreement ¶ 8.) Thus, according to the terms of the 2019
Agreement, the library’s extended closure due to the COVID-19
pandemic required that A.K.’s special education instruction take
place in his home, if available. (Id.) In the event Plaintiff’s
home is unavailable, as he now claims, the language of the 2019
Agreement is clear: The parties are to arrange for an alternative,
off-site location. (Id. (emphasis added).)
Plaintiff claims that his home is unavailable because
A.K.’s “parents would have to quit their jobs,” “hire educational
personnel capable of implementing [A.K.’s] educational
accommodations,” “hire supervisorial staff to supervise the safety
of [A.K.],” and “[A.K.’s] family would have to avail itself to the
health risks of allowing outside people into their home during the
world-wide Covid-19 pandemic.” (Pl. Reply at 5-6.) Plaintiff
further asserts that the “[2019 A]greement clearly provides that
in circumstances where such instruction was temporarily
compromised, that [A.K.] would be brought to the [District] for
purposes of receiving his instruction.” (Pl. Reply at 5; see also
Pl. Opp’n at 21.) Plaintiff supports this claim relying upon the
14
“fall back” placement site provision regarding teacher
unavailability, as provided for in paragraph 3 of the 2019
Agreement. (Pl. Opp’n at 21-22, n.18, 19.) Plaintiff is
mistaken.
Paragraph 3 of the 2019 Agreement provides:
[i]n the event [A.K.]’s special education teacher shall cancel instruction, {A.K.] shall not be sent home, but the [District] shall, upon its discretion, either bus [A.K.] to the local library with his aide, or keep him within the [District], within a safe and appropriate space, where [A.K.] will receive carry-over activities. Under these circumstances, the [District’s] obligations to maintain [A.K.]’s presence within the local library, or within the [District] itself, shall not exceed 2 hours.
(2019 Agreement ¶ 3.) Thus, according to its terms, paragraph 3
of the Agreement applies only when the special education teacher
cancels instruction, and not in the event that the library closes
and A.K.’s home is unavailable. Moreover, the District has offered
to provide A.K.’s special education services in accordance with
the appropriate provision of the 2019 Agreement, i.e., paragraph
8. However, Plaintiff claims that his home is unavailable and
insists that A.K.’s special education instruction take place only
in the District.
The Court finds that Defendants have not violated the
stay-put provision. In fact, in an effort to accommodate
Plaintiff’s trepidations regarding having someone come into his
15
home during the COVID-19 pandemic, the District offered A.K. remote
instruction by the District’s special education teacher. (Pl.
Opp’n at 10.) Additionally, to alleviate Plaintiff’s concern about
missing work in order to supervise A.K. during home instruction,
the District provided Plaintiff the option of providing A.K.’s
special education instruction after regular school hours. (Pl.
Opp’n at 10-12.) However, Plaintiff rejected these accommodations
and made it clear that nothing short of having A.K. physically
present in the District for his special education instruction would
be acceptable. 6 (Id. at 11-12.)
Moreover, even if there was no pendency placement
agreement between the parties, “it is the [District], not the
Parents, that is authorized to decide how (and where) the Student’s
pendency services are to be provided.” Ventura de Paulino, 959
F.3d at 533-34 (stating a stay-put provision “does not eliminate
[ ] the school district’s preexisting and independent authority to
determine how to provide the most-recently-agreed-upon educational
program. . . [i]t is up to the school district, not the parent, to
decide how to provide that educational program [until the IEP
6 Notably, when schools first closed in March 2020 due to the COVID-19 pandemic, A.K. began receiving remote instruction in his home through the District. (Pl. Opp’n at 5.) He continued to receive special education services remotely during the summer. (Id.) Further, since the high school reopened for in-person instruction on a hybrid schedule, A.K. has been attending the high school for his daily services in compliance with the 2019 Agreement. (Id. at 9.) 16
dispute is resolved], so long as the decision is made in good
faith”) (internal quotations and citation omitted). Thus,
Plaintiff’s desire to have A.K.’s special education instruction
occur in the District does not obviate the District’s authority. 7
Hence, because the Court finds that the District has not
breached the 2019 Agreement regarding A.K.’s pendency placement,
the IDEA’s stay-put provision has not been violated. Therefore,
Plaintiff’s IDEA claim is DISMISSED WITH PREJUDICE. 8
III. Discrimination Claims Against the District
Plaintiff asserts that Defendants violated the ADA and
Section 504 by failing to “effectuate reasonable modifications
and/or accommodations, so as to address [A.K.]’s disability,” and
that “[i]n this regard, the [District] discriminate[d] against
[A.K.] predicated upon his disability.” (Compl. ¶¶ 22, 23.)
7 Further, although neither party has provided the Court with an update, the Court notes that it appears the local library has reopened since the parties’ dispute arose. See https://westhamptonlibrary.net/ (last visited March 8, 2022). If that is so, A.K.’s special education services can once again be provided for in the local library in accordance with the 2019 Agreement. 8 The Court notes that Plaintiff’s IDEA claim against the individual defendants is dismissed for the additional reason that there is no individual liability under the IDEA. S.W. v. Warren, 528 F. Supp. 2d 282, 298 (S.D.N.Y. 2007) (citing 20 U.S.C. § 1403(a)). Additionally, “monetary damages are not available under the IDEA.” Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002).
17
Plaintiff’s conclusory allegations fail to allege a discrimination
claim under either the ADA or Section 504. 9
As the standards are generally the same under either the
ADA or Section 504, courts treat claims under the two statutes
identically. Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d
Cir. 2003); see also Rodriguez v. City of N.Y., 197 F.3d 611, 618
(2d Cir. 1999) (“Because Section 504 of the Rehabilitation Act and
the ADA impose identical requirements, we consider these claims in
tandem.”). To make out a prima facie case under the ADA or Section
504, a plaintiff must show:
(1)that [he] is a qualified individual with a disability; (2) that the defendants are subject to [the pertinent statute]; and (3) that [he] was denied the opportunity to participate in or benefit from defendants’ services, programs, or activities, or was otherwise discriminated against by defendants, by reason of [his] disability.
Harris v. Mills, 572 F.3d 66, 73-74 (2d Cir. 2009) (internal
quotation marks and citation omitted).
9 In his opposition to Defendants’ Dismissal Motion, Plaintiff appears to assert a retaliation claim. (See Pl. Opp’n at 19-20). However, a plaintiff “cannot amend h[is] complaint by asserting new facts or theories for the first time in opposition to [d]efendants’ motion to dismiss.” K.D. ex rel. Duncan v. White Plains Sch. Dist., 921 F. Supp. 2d 197, 209 n.8 (S.D.N.Y. 2013) (citation omitted). In any event, Plaintiff’s claim that “the defendant district is simply trying to exert as much ‘pressure’ upon the plaintiff, as retaliation for the plaintiff’s tangential litigation pending against the defendant district” (Pl. Opp’n at 19), fails to plead a plausible retaliation claim. 18
Notably, a violation of the IDEA, without more, is
insufficient to support a claim of disability-based discrimination
under the ADA or Section 504. See French v. N.Y. State Dep’t of
Educ., 476 F. App’x 468, 472-72 (2d Cir. 2011) (a “fail[ure] to
show that the alleged ‘discrimination’ is anything more than a
rehashing of [the plaintiff’s] allegation that the defendants
failed to provide her with a FAPE[ 10]” warrants dismissal of
plaintiff's ADA and Section 504 claims). Rather, where a plaintiff
asserts denial of a FAPE, there must be evidence that the school
district acted with “deliberate or reckless indifference to the
student’s federally protected rights” or with “bad faith or gross
misjudgment.” Pape v. Bd. of Educ. of Wappingers Cent. Sch. Dist.,
No. 07-CV-8828, 2013 WL 3929630, at *11 (S.D.N.Y. July 30, 2013)
(cleaned up); see also S.W., 528 F. Supp. 2d at 290 (“[P]laintiffs
can rely on Section 504 to claim 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.”).
Here, the parties do not dispute that A.K. is disabled
under the terms of the ADA and Section 504 or that the District is
covered by these statutes. The only question is whether Defendants
10 “FAPE” is the acronym for “free appropriate public education”. 19
failed to provide reasonable accommodations to A.K. or
discriminated against A.K. because of his disability, and in so
doing, acted with “deliberate or reckless indifference” or “bad
faith” or “gross misjudgment.” Plaintiff contends that the
District failed to make reasonable accommodations to accommodate
A.K.’s disability when it “refus[ed] to accommodate the physical
space necessary to educate [A.K.] -- namely by providing for the
physical space necessary to accommodate a desk and two chairs.”
(Pl. Opp’n at 19.) However, as discussed supra, the 2019 Agreement
governs the pendency placement of A.K., and pursuant to its terms,
the District was not required to “accommodate the physical space
necessary to educate A.K.” when the library closed.
Moreover, Plaintiff makes no allegation of bad faith or
gross misjudgment on the part of the District; rather, he baldly
alleges that “the school district’s actions reflect nothing short
of abject malice, gross indifference and/or retaliation against
the plaintiff.” (Compl. ¶ 29.) Such conclusory allegations are
insufficient to plausibly state a discrimination claim. See Iqbal,
556 U.S. at 678 (“Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.”); Y.D. v. N.Y.C. Dep’t of Educ., No. 14-CV-1137, 2016 WL
698139, at *6 (S.D.N.Y. Feb. 19, 2016) (courts “dismiss Section
504 claims that ‘are, in actuality, merely restatements of [a
plaintiff’s] IDEA claims,’ where plaintiff fails to offer any facts
20
that he ‘was denied a federal benefit because of his disability’”)
(quoting Pinn ex rel. Steven P. v. Harrison Cent. Sch. Dist., 473
F. Supp. 2d 477, 484 (S.D.N.Y. 2007) (emphasis in original); Zahran
v. N.Y. Dep’t of Educ., 306 F. Supp. 2d 204, 213 (N.D.N.Y. 2004)
(dismissing Section 504 claims because they were “substantially
the same as . . . the IDEA claim”).
Thus, Plaintiff’s discrimination claims must be
dismissed as he fails to allege that A.K. was discriminated against
on the basis of his disability. Accordingly, Plaintiff’s ADA and
Section 504 claims against the District are DISMISSED WITHOUT
PREJUDICE.
IV. Discrimination Claims Against the Individual Defendants
“Individuals in their personal capacities are not proper
defendants on claims brought under the ADA or the Rehabilitation
Act.” Keitt v. New York City, 882 F. Supp. 2d 412, 426 (S.D.N.Y.
2011) (citing Harris v. Mills, 572 F.3d 66, 72-73 (2d Cir. 2009)).
Therefore, Plaintiff’s ADA and Section 504 claims against the
individual Defendants, to the extent brought against them in their
personal capacities, must be dismissed; accordingly, said claims
are DISMISSAL is WITH PREJUDICE.
To the extent that Plaintiff alleges discrimination
claims against the Defendants in their official capacities, those
claims fail as well. The Court notes that there is a split of
21
authority as to whether the ADA and Rehabilitation Act 11 provide
for liability against individual defendants in their official
capacities. See Holly v. Cunningham, No. 15-CV-284, 2016 WL
8711593, at *4 (S.D.N.Y. June 17, 2016) (collecting cases).
Regardless, even if the Court were to conclude that the individual
Defendants could be sued in their official capacity, such claims
would fail in this instance.
Plaintiff’s discrimination claims are wholly conclusory
and are not supported by any alleged facts that plausibly show
A.K. was discriminated against because of his disability. (See,
e.g., Compl. ¶¶ 22-23, 28-29, 31.) Cf. Holly, 2016 WL 8711593, at
*5 (dismissing ADA and Rehabilitation Act claims against
individual defendants in their official capacity “in the absence
of anything other than conclusory allegations”) (collecting cases
where ADA and Rehabilitation Act claims were dismissed in the
absence of allegations of defendants’ discriminatory animus or ill
will). It is well-settled that a complaint’s “[f]actual
allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. Thus, as is the
case here, where the complaint “tenders naked assertions devoid of
further factual enhancement,” Iqbal, 556 U.S. at 678, the plaintiff
11 As a reminder: Plaintiff’s Section 504 claim is brought pursuant to the Rehabilitation Act. (See supra at 2.) For convenience, herein, the Court will use the terms “Section 504” and “Rehabilitation Act” interchangeably. 22
has not “nudged [his] claim[] across the line from conceivable to
plausible,” Twombly, 550 U.S. at 570, thereby compelling dismissal
of the complaint. See id.; see also Iqbal, 556 U.S. at 679.
Rather, having been presented with ADA and Section 504 claims
against the individual Defendants in their official capacity that
are devoid of facts which would plausibility support said claims,
dismissal of these claims is warranted. Accordingly, Plaintiff’s
ADA and Section 504 claims against the Individual Defendants in
their official capacity are DISMISSED WITHOUT PREJUDICE.
V. Section 1983 Claim Against the District
Where an IDEA claim and a Section 1983 claim are brought
simultaneously, a plaintiff 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) (citing Bonar v. Ambach, 771 F.2d 14, 18 (2d Cir.
1985)). Plaintiff cannot use Section 1983 to obtain damages for
IDEA violations absent allegations that he was denied IDEA’s
“procedural safeguards or administrative remedies.” Streck v. Bd.
of Educ. of E. Greenbush Sch. Dist., 280 F. App’x 66, 68 (2d Cir.
2008); 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]
23
alleged noncompliance with the IDEA and its effects on
Plaintiff.”), aff’d, 476 F. App’x 468 (2d Cir. 2011).
Here, Plaintiff alleges that A.K. “is entitled to the
protections afforded by 42 U.S.C. § 1983, in the event his
constitutional right of equal protection is compromised. . . .
[A.K.] is being denied the right to receive a free and appropriate
education (FAPE) as protected by the IDEA, in the same manner as
all other special education students.” (Compl. ¶ 25.) However,
the Court finds that Plaintiff fails to allege an equal protection-
based Section 1983 claim.
The Equal Protection clause mandates that government
agencies treat “all similarly situated people alike.” Harlen
Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001)
(citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
439 (1985)). While the typical equal protection claim involves
“discrimination against people based on their membership in a
vulnerable class,” the Second Circuit and the Supreme Court have
also recognized “‘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).) The parties
agree that this is the type of equal protection claim asserted by
Plaintiff. (Cf. Defs. Reply at 19, with Pl. Opp’n at 20-21.)
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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). “[C]lass-of-one plaintiffs must show an extremely
high degree of similarity between themselves and the persons to
whom they compare themselves.” Clubside, Inc. v. Valentin, 468
F.3d 144, 159 (2d Cir. 2006)). To survive a motion to dismiss, a
complaint must make sufficient factual allegations in support of
this similarity requirement. See Ruston v. Town Bd. for Town of
Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (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)).
Plaintiff has not met this standard. Rather, by way of
example, in his Compliant, Plaintiff alleges: the District is
educating “every other student” (Compl. ¶ 18); A.K. “is entitled
25
to be afforded the rights endowed by the IDEA, in the same fashion
as all other students similarly situated to him” (¶ 24); “[i]n
this case, based upon the facts at hand, [A.K.] is being denied
the right to receive a . . . FAPE . . . in the same manner as all
other special education students” (¶ 25 (parentheses omitted));
and, although managing to facilitate the education of “every other
student,” the District “cannot facilitate the education of [A.K.]
to occur within the school district” (¶ 28). These bare-bones
allegations fall well-short of providing allegations plausibly
supporting his claim that A.K. is being treated differently from
at least one other student whose circumstances are identical to
those of A.K. Indeed, Plaintiff fails to even identify another
student purportedly similar to A.K. (See Compl., in toto.) Cf.
Killoran v. Westhampton Beach Sch. Dist., No. 19-CV-6663, 2021 WL
1146078, at *5-6 (E.D.N.Y. Mar. 25, 2021) (finding Plaintiff’s
equal protection claim failed for lack of factual allegations
regarding alleged comparators).
Plaintiff’s opposition arguments are equally unavailing.
He contends that the District has re-opened and “has availed its
‘brick and mortar’ infrastructure, as well as all of its
educational resources, to its entire student body, except for the
plaintiff.” (Pl. Opp’n at 20.) He claims that “[A.K.] is
‘similarly situated’ to all of his fellow students, [and,] [i]n
particular, [A.K.] profiles as being ‘similarly situated’ to those
26
‘alternately assessed special education students’ currently
receiving ‘in-person’ instruction within the defendant
[D]istrict.” (Id.) As discussed supra, wholly lacking from
Plaintiff’s Complaint are any factual allegations demonstrating
how these “alternately assessed special education students’”
circumstances are “prima facie identical” to A.K.’s. See 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 in
the absence of “allegations showing how another person’s
circumstances are prima facie identical to [those of the
plaintiffs’ son]”) (cleaned up); MB v. Islip Sch. Dist., 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 [the two students] 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); Irwin v. W.
Irondequoit Cent. School Dist., No. 16-CV-06028, 2017 WL 881850,
at *6 (W.D.N.Y. March 2, 2017) (dismissing equal protection claim
where complaint referenced “other similarly situated students” but
failed to set forth any facts explaining how those students’
circumstances were similar to plaintiff’s).
27
Likewise, Plaintiff offers no facts from which the Court
could analyze the degree of similarity between A.K. and the
“‘alternately assessed special education students’ currently
receiving ‘in-person’ instruction within the defendant district.”
(Pl. Opp’n at 20.) Therefore, Plaintiff’s equal protection claim
fails for lack of factual allegations to support his assertion
that A.K. “is ‘similarly situated’ to all of his fellow students,
[and,] [i]n particular, . . . to those ‘alternately assessed
special education students’ currently receiving ‘in-person’
instruction within the defendant district.” See Ruston, 610 F.3d
at 59 (affirming dismissal of “class of one” claim for failure to
“allege specific examples” of similarly situated comparators); see
also Killoran, 2021 WL 1146078, at *5-6 (finding plaintiff’s equal
protection claim failed given lack of factual allegations
regarding alleged comparators). With nothing more than these
conclusory allegations, Plaintiff’s equal protection-based Section
1983 claim cannot survive a motion to dismiss. Accordingly,
Plaintiff’s equal protection claim is DISMISSED WITHOUT PREJUDICE.
VI. Leave to Amend
The Second Circuit has stated 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.”).
28
Plaintiff is GRANTED LEAVE TO AMEND his Complaint in
accordance with this Memorandum and Order. Any Amended Complaint
shall be filed within thirty (30) days from the date of this
Memorandum and Order and shall be titled “Amended Complaint” and
shall bear the same case number as this Memorandum and Order, i.e.,
No. 20-CV-4121(JS)(SIL). Further, because the Amended Complaint
will completely replace the original Complaint, it must include
all factual allegations and claims that Plaintiff seeks to pursue
in this case. Plaintiff is cautioned that his failure to timely
file an Amended Complaint will lead to the dismissal of his
Complaint with prejudice and the closure of this case.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Defendants’
Dismissal Motion (ECF No. 16) is GRANTED, and Plaintiff’s Cross-
Motion (ECF No. 19) is DENIED.
SO ORDERED.
/s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J.
Dated: March 22,2022 Central Islip, New York
29