UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------x JANE DOE on behalf of herself and her minor child, SARAH DOE, MEMORANDUM AND ORDER
Plaintiff, Case No. 2:21-CV-5012-FB-SIL
-against-
FRANKLIN SQUARE UNION FREE SCHOOL DISTRICT, and JAMES V. MCDONALD, in his official capacity as Commissioner of the New York State Department of Health
Defendants. ------------------------------------------------x Appearances: For the Plaintiff: For the Defendants: SUJATA S. GIBSON ADAM I. KLEINBERG Gibson Law Firm, PLLC CHELSEA ELLA WEISBORD 832 Hanshaw Rd., Suite A Sokoloff Stern LLP Ithaca, New York 14850 179 Westbury Avenue Carle Place, New York 11514
TODD ALAN SPIEGELMAN NYS Attorney General’s Office 120 Broadway, 24th Floor New York, New York 10271
BLOCK, Senior District Judge:
Plaintiff Jane Doe (“Plaintiff” or “Doe”) brings this action on behalf of
herself and her minor daughter, Sarah Doe, against defendants Franklin Square
Union Free School District (the “School District”) and the Commissioner of the
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New York State Department of Health in his official capacity1 (the
“Commissioner” and together, “Defendants”). Doe alleges that the
Commissioner’s regulation requiring New York State’s school students to wear
masks (the “Mask Mandate”) violates their constitutional rights. She also alleges
violations of the New York State Constitution, the Americans with Disabilities
Act, (“ADA”), the Rehabilitation Act of 1973, and the New York State Human
Rights Law (“NYS HRL”). Defendants have moved to dismiss Doe’s amended
complaint under Federal Rules of Civil Procedure (“FRCP”) 12(b)(6) and 12(b)(1).
For the reasons that follow, Defendants’ motions are granted.
I. FACTS
The Court relayed the facts of this case in its October 26, 2021
Memorandum and Order denying Doe’s motion for a preliminary injunction (the
“M&O”). The Court assumes the parties’ familiarity with those facts and
incorporates them herein by reference.
Less than one week after the Court issued the M&O, the parties represented
that they had come to an agreement regarding a reasonable accommodation for
Sarah Doe. Plaintiff subsequently amended her complaint to add claims for a
violation of the ADA, the Rehabilitation Act, and NYS HRL. Significantly, the
1 James V. McDonald replaced Mary T. Bassett as Commissioner and is automatically substituted as a party. Fed. R. Civ. P. 25(d)
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Mask Mandate was lifted as of March 2, 2022, and as of February 9, 2023, the
Commissioner announced that he would not seek reissuance of 10 NYCRR § 2.60
(“Section 2.60”), the emergency regulation underlying the Mask Mandate. As of
February 12, 2023, Section 2.60 expired.
Defendants now move to dismiss the amended complaint. For the purposes
of this motion, the Court accepts the facts that Doe alleges in her amended
complaint as true and draws all reasonable inferences in her favor. See, e.g., Gamm
v. Sanderson Farms, Inc., 944 F.3d 455, 458 (2d Cir. 2019).
II. LEGAL STANDARDS
a. Rule 12(b)(6)
“To survive a motion to dismiss [under FRCP 12(b)(6)], a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible
when “the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556). The pleading must offer more than “bare
assertions,” “conclusory” allegations, and a “formulaic recitation of the elements
of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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b. Rule 12(b)(1)
“Rule 12(b)(1) requires that an action be dismissed for lack of subject matter
jurisdiction when the district court lacks the statutory or constitutional power to
adjudicate the case. The party asserting subject matter jurisdiction carries the
burden of establishing, by a preponderance of the evidence, that jurisdiction exists
. . .” Salvani v. ADVFN PLC, 50 F. Supp. 3d 456, 468 (S.D.N.Y. 2014). “In
resolving a motion to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), a district court . . . may refer to evidence outside the pleadings.”
Makarova v. U.S., 201 F.3d 110, 113 (2d Cir. 2000). Courts must accept all
material factual allegations as true in evaluating a 12(b)(1) motion, but unlike with
a 12(b)(2) motion, does not draw inferences in favor of the plaintiff. See J.S. ex rel.
N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004).
III. ANALYSIS
The Court now turns to Defendants’ motions to dismiss the amended
complaint.
a. Declaratory and Injunctive Relief – Counts I and IV
Since the Mask Mandate is no longer in effect and Section 2.60 has lapsed,
Doe’s amended complaint is moot insofar as it requests declaratory and injunctive
relief.
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Under Article III of the Constitution, the Court’s jurisdiction is limited to
justiciable “cases and controversies,” Campbell-Ewald Co. v. Gomez, 577 U.S.
153, 160 (2016), and may not render mere advisory opinions on issues which are
moot. United States Nat’l Bank v. Independent Ins. Agents of Am., Inc., 508 U.S.
439, 446 (1993). “A case becomes moot . . . when it is impossible for a court to
grant any effectual relief whatever to the prevailing party.” Campbell-Ewald Co. v.
Gomez, 577 U.S. 153, 161 (2016). “[T]o obtain declaratory relief, a plaintiff must
show ‘how [she] will be injured prospectively and that the injury would be
prevented by the equitable relief sought.’” Pinckney v. Carroll, No. 18-CV-12198,
2019 WL 6619484, at n. 3 (S.D.N.Y. Dec. 4, 2019) (quoting Marcavage v. City of
New York, 689 F.3d 98, 103 (2d Cir. 2012)). Similarly, to establish standing to
obtain injunctive relief, plaintiffs must demonstrate a non-speculative risk of
continuing or future irreparable injury in the absence of such an order. See Id. at *4
(citing City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)).
Voluntary cessation of the Mask Mandate does not undermine a finding of
mootness. Only when a plaintiff is “under a constant threat” of a challenged
practice being reinstated is declaratory or injunctive relief not rendered moot by a
cessation of the practice in question. Roman Catholic Diocese of Brooklyn v.
Cuomo, 141 S. Ct. 63, 68 (2020). To defeat Doe’s claim that she is under constant
threat of the Mask Mandate’s reimposition, Defendants must show that “the
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possibility of recurrence is merely speculative.” Dark Storm Indus. LLC v. Hochul,
No. 20-CV-2725, 2021 WL 4538640, at *1 (2d Cir. Oct. 5, 2021). The Court joins
its peers in this Circuit which consistently have found that the threat of COVID-19
measures being reimposed is merely speculative. See Mongielo v. Hochul, No. 22-
CV-116, 2023 WL 2307887, at *9 (W.D.N.Y. Mar. 1, 2023) (holding that
plaintiffs’ claims seeking declaratory and injunctive relief regarding the school
mask mandate were moot: “Given the current state of the pandemic . . . there is no
reasonable threat—let alone a constant threat—that the mandate will be
reimposed.”); see also Dark Storm Indus. LLC, 2021 WL 4538640, at *1 (2d Cir.
2021); Nat’l Rifle Ass’n of Am. v. Hochul, No. 20-CV-3187, 2021 WL 5313713, at
*1 (2d Cir. 2021); Lebovits v. Cuomo, No. 20-CV-1284, 2022 WL 344269, at *3
(N.D.N.Y. Feb. 4, 2022). Therefore, Doe’s amended complaint is moot insofar as it
seeks declaratory and injunctive relief. Count one, which seeks a declaratory
judgment for violation of the Supremacy Clause, and count four, which seeks a
declaration that the Mask Mandate is unconstitutional, are dismissed since they
state no cognizable claim beyond declaratory and injunctive relief.
b. Substantive Due Process Claim – Count II
Count two alleges a substantive due process claim for the alleged violation
of Doe’s right to refuse medical interventions that place her child at risk of harm.
For the reasons explained at length in the Court’s M&O denying Doe’s request for
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a preliminary injunction, the facts Doe alleged do not implicate any substantive
due process violation. There is no fundamental right to receive an education. See
Smith v. Guilford Bd. of Educ., 226 F. App’x 58, 61 (2d Cir. 2007); Marino v. City
Univ. of New York, 18 F. Supp. 3d 320, 339 (E.D.N.Y. 2014). Nor is there a
fundamental right to refuse to wear a mask or to receive a medical exemption from
wearing a mask. See, e.g., Doe v. Zucker, 520 F. Supp. 3d 217, 251 (N.D.N.Y. Feb
17, 2021) (holding that there is no fundamental right to a medical exemption to the
state’s vaccine requirement for children to attend public school); Klaassen v. Trs.
Of Ind. Univ., 7 F.4th 592, 593 (7th Cir. 2021); Denis v. Ige, No. 21-CV-00011,
2021 WL 3892657, at *8 (D. Haw. Aug 31, 2021); Forbes v. Cnty. of San Diego,
No. 20-CV-00998, 2021 WL 843175, at *5 (S.D. Cal. Mar. 4, 2021); Oberheim v.
Bason, No. 21-CV-01566, 2021 WL 4478333, at *7 (M.D. Pa. Sept. 30, 2021);
Young v. James, 2020 WL 6572798, at *3 (S.D.N.Y. Oct. 26, 2020). The Mask
Mandate also does not implicate the fundamental right of parents to direct the care
and upbringing of their children. See Zucker, 520 F. Supp. 3d at 250-51 (holding
that the school vaccine mandate did not interfere with a parent’s fundamental
rights even when refusing to comply meant barring their children from attending
school). Having failed to identify the implication of any constitutional right or
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violation thereof, Doe fails to state a claim as to her second count and accordingly
it is dismissed.
c. Abandoned Claim – Count III
Doe failed to respond to Defendants’ motions to dismiss as they pertain to
count three, her New York State claim for violation of her right to refuse unwanted
medical treatment. Courts “may, and generally will, deem a claim abandoned when
a plaintiff fails to respond to a defendant’s arguments that the claim should be
dismissed.” Arma v. Buyseasons, Inc., 591 F. Supp. 2d 637, 643 (S.D.N.Y. 2008)
(quoting Lipton v. Cnty. of Orange, N.Y., 315 F. Supp. 2d 434, 446 (S.D.N.Y.
2004)). Therefore, count three of Doe’s amended complaint is deemed abandoned.
d. ADA, Rehabilitation Act, and NYS HRL Claims – Counts V, VI, and VII
In counts five and six, Doe alleges violations of Title II of the ADA,
42 U.S.C. § 12101 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794 et
seq., against all defendants for failing to reasonably accommodate her daughter’s
alleged disability.
Claims brought under Title II of the ADA and § 504 of the Rehabilitation
Act are considered together, since the two statutes are nearly identical. See
McElwee v. Cnty. of Orange, 700 F. 3d 635, 640 (2d Cir. 2012). Under either, Doe
must show that “(1) [her daughter] is a qualified individual with a disability;
(2) the defendant is subject to one of the Acts; and (3) [her daughter] was denied
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the opportunity to participate in or benefit from the defendant’s services, programs,
or activities.” Id. Under either statute, a defendant’s failure to make a reasonable
accommodation to allow a disabled plaintiff to access the public service in
question is considered discrimination. Id.
By November 3, 2021, the School District had already provided Sarah Doe
with an accommodation deemed acceptable by all parties, which was to wear a
mesh mask. Plaintiff’s amended complaint specifically seeks the accommodation
of not wearing a mask at all. However, plaintiffs are not entitled to the
accommodation of their unilateral preference—they are only entitled to a
reasonable one. Insofar as Doe seeks this accommodation or any remedy from the
point at which the accommodation was established onward, her ADA and
Rehabilitation Act claims must be dismissed. See A.M. ex rel. J.M. v. NYC Dep’t of
Educ., 840 F. Supp. 2d 660, 680 (E.D.N.Y. 2012) (“[W]here alternative reasonable
accommodations to allow for ‘meaningful access’ are offered or already in place, a
Section 504 reasonable accommodations claim must fail.”) (quoting Henrietta D.
v. Bloomberg, 331 F. 3d 261, 282 (2d Cir. 2003))).
Therefore, what remains of counts five and six is any part of the failure to
accommodate claims prior to the time when the accommodation for Doe’s
daughter was established. The remainder of these claims fail because Doe did not
exhaust her administrative remedies. Claims brought under the ADA and
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Rehabilitation Act are subject to the exhaustion requirements of the Individuals
with Disabilities Education Act (“IDEA”) when they seek relief that would also be
available under IDEA. Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 755 (2017).
Because the gravamen of Doe’s suit is the denial of free appropriate public
education, the IDEA exhaustion requirement applies to her ADA and
Rehabilitation Act claims. Id. She plainly failed to seek any administrative remedy,
and accordingly these claims are dismissed. See Martinez v. New York City Dep’t
of Educ., No. 17-CV-3152, 2018 WL 4054872, at *5 (E.D.N.Y. Aug. 24, 2018)
(holding that IDEA’s exhaustion requirements applied to plaintiff’s failure to
accommodate claims brought under the ADA and Rehabilitation Act); see also
S.G. v. Success Acad. Charter Sch., Inc., No. 18-CV-2484, 2019 WL 1284280, at
*10 (S.D.N.Y. Mar. 20, 2019) (finding that the IDEA exhaustion requirement
applied to plaintiff’s failure to accommodate claims because they “are properly
classified as complaints about the adequacy of educational services,” therefore
“based on the denial of a FAPE” which placed them “within the scope of the
IDEA.”).
Finally, count seven, which alleges an NYS HRL claim against the School
District, is dismissed because Doe failed to satisfy her requirement to file a notice
of the claim. To file an action against a school district, plaintiffs must serve a
notice of claim. N.Y. Educ. Law § 3813(1). A plaintiff’s failure to do so deprives
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the Court of subject matter jurisdiction. See, e.g., Gloria E. Johns-Khan v.
Westbury Board of Education - Pless Dickerson, No. 21-CV-3908, 2022 WL
280646, at *8 (E.D.N.Y. Jan. 31, 2022); Bertuzzi v. Copiague Union Free Sch.
Dist., No. 17-CV-4256, 2020 WL 5899949, at *20 (E.D.N.Y. Mar. 9, 2020), report
and recommendation adopted as modified, 2020 WL 3989493 (E.D.N.Y. July 15,
2020); Peritz v. Nassau Cnty. Bd. of Coop. Educ. Servs., No. 16-CV-5478, 2019
WL 2410816, at *2 (E.D.N.Y. June 7, 2019). Accordingly, this claim is dismissed.
CONCLUSION
For the foregoing reasons, the defendants’ motions to dismiss are
GRANTED. All claims are dismissed and the Clerk of Court is directed to close
this case.
SO ORDERED.
_/S/ Frederic Block________________ FREDERIC BLOCK Senior United States District Judge Brooklyn, New York March 24, 2023
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