Doe et al v. Board of Education et al

Filing 132

ORDER: Defendants Katz and Aarons's Motions 33 , 34 to Dismiss are GRANTED; Defendant Board of Education's Motion 57 to Dismiss is DENIED. Signed by Judge Janet Bond Arterton on 09/17/2012. (Bonneau, J)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOHN DOE, by and through his Parents and next
friends, Mr. & Mrs. Robert Doe; MR. ROBERT DOE;
and MRS. ROBERT DOE ,
Plaintiffs,
v.

Civil No. 3:11cv1581 (JBA)

September 17, 2012

DARIEN BOARD OF EDUCATION; TOWN OF
DARIEN; ZACHARY HASAK, individually; ROBIN
PAVIA, individually; MELISSA BELLINO,
individually; DONALD FIFTAL, individually;
STEPHEN FALCONE, individually; MARY LEE
FISHER, individually; NICOLE RUOSPO,
individually; MARC MARIN, individually;
CARLEEN WOOD, individually; JOETTE KATZ,
Commissioner of the Dept. of Children and Families,
in her official capacity; INGRID AARONS,
individually; and JOHN WOODRING, individually;
Defendants.
RULING ON DEFENDANTS’ MOTIONS TO DISMISS
On December 28, 2012, Plaintiff John Doe, and his parents Mr. and Mrs. Robert Doe,
filed a First Amended Complaint [Doc. # 28] claiming that he was sexually assaulted by
Darien school system employee Defendant Zachary Hasak and physically assaulted by
Darien school system employee Defendant Nicole Ruospo, and that the Defendants Board
of Education and Joette Katz, who is sued in her official capacity as Commissioner of the
Department of Children and Families, violated their rights under the Fourteenth
Amendment of the United States Constitution, the Civil Rights Act of 1871, 29 U.S.C. § 794,
Title IX (20 U.S.C. § 1681(a)), the Americans with Disabilities Act, and § 504 of the
Rehabilitation Act of 1973. Defendants Joette Katz and Ingrid Aarons have moved to

dismiss [Doc. ## 33, 34] Plaintiffs’ First Amended Complaint1 based on lack of standing,
absolute immunity, sovereign immunity, qualified immunity, and failure to state a claim
upon which relief could be granted. Defendant Board of Education has moved [Doc. # 57]
to dismiss Plaintiffs’ Second Amended Complaint [Doc. # 128]. For the reasons discussed
below, Defendants Katz and Aarons’ Motions to Dismiss will be granted, and Defendant
Board of Education’s Motion to Dismiss will be denied.
I.

RELEVANT FACTUAL BACKGROUND
Plaintiff John Doe (“John”) is a fourteen–year–old student in the Darien Public

School system who is entitled to special education under the Individuals with Disabilities
Education Improvement Act (“IDEA”). (Second Am. Compl. [Doc. # 128] ¶ 1.) Plaintiffs
Mr. and Mrs. Robert Doe (“Plaintiff Parents” or “Parents”) are his parents. (Id. ¶ 2).
During the 2009–2010 school year, John attended the fifth grade at Tokeneke Elementary
School, where his Individual Education Plan (“IEP”) required Defendant Board of Education
to provide a one–on–one paraprofessional to him throughout the school day. (Id. at ¶¶
17–18.) Defendant Zachary Hasak, the nephew of the Darien Director of Special Education
Defendant Robin Pavia, was hired as John’s paraprofessional. He was not a certified teacher
or special education teacher and was to be supervised by Pavia, Defendant Melissa Bellino
(John’s special education teacher) and Defendant Mary Lee Fisher (Principal of Tokeneke
Elementary School). (Id. ¶¶ 19–20.)

1

Before the Motions to Dismiss were fully joined, Plaintiffs moved to amend the
First Amended Complaint. On September 6, 2012, the Court granted Plaintiffs’ Motion to
Amend. The Motions to Dismiss the First Amended Complaint will therefore be construed
as Motions to Dismiss the Second Amended Complaint. (See Ruling Granting Plaintiffs’
Motion to Amend [Doc. 124] at 3.)
2

Under his IEP, John was to receive a full day of instruction from qualified regular and
special education teachers. As Hasak was not a certified teacher, he was not to be alone with
John for any significant amount of time without direct supervision from one of John’s
certified instructors. (Id. ¶ 21). Nevertheless, on one or more occasions, Hasak took John
into an empty classroom. Once he was alone with John, Hasak exposed himself to John,
made sexual advances toward John, and encouraged John to engage in sexual activity with
him. (Id. ¶ 24.) When John rejected Hasak’s advances, Hasak told John not to tell anyone
what had happened, threatening to hurt John if he reported the incidents. (Id. ¶ 25.)
Despite these threats, John told Bellino about Hasak’s behavior. Instead of reporting
the alleged abuse to the school system, Bellino told John not to tell anyone else about the
incidents because Hasak could get in trouble. (Id. ¶¶ 27, 29.) Finally, on October 15, 2009,
John told his father and mother about Hasak’s sexual advances. They immediately reported
the abuse to the independent consultant assigned to John’s program, the Assistant
Superintendent of Schools, Defendant Stephen Falcone, and the police. (Id. ¶¶ 32–33, 36.)
Falcone reported the alleged abuse to the Department of Children and Families (“DCF”) and
had school employees interview John regarding the incident. The employees conducting the
interview told Plaintiff Parents that they believed John’s statements that he had been abused
by Hasak. (Id. ¶ 34.) The Board of Education also filed a complaint with DCF and placed
Hasak on paid administrative leave. (Id. ¶ 11.)
Pursuant to police protocol for handling sexual abuse cases involving children with
disabilities, the Darien Police Department referred John to the Child Guidance Center of
Southern Connecticut (“the Center”) for a forensic interview. (Id. ¶ 38.) The interview was
conducted on October 21, 2009, and the Center issued an opinion that John had been
3

sexually assaulted by Hasak. (Id. ¶¶ 39–40.) Plaintiff Parents requested a copy of the
Center’s written findings and a videotape of their son’s interview, but they did not receive
either. (Id. ¶ 40.)
On October 15, 2009, DCF began an investigation into Hasak’s conduct and found
probable cause that John had been abused, based in large part on the Center’s findings. (Id.
¶ 41.) On December 22, 2009, after having refused to participate in the initial investigation,
Hasak requested that DCF revise its findings. (Id. 41–42.) Plaintiff Parents requested to
participate in any DCF proceedings regarding Hasak’s request for revision, but were told by
a DCF attorney that they could not participate. (Id. ¶ 42.)
In February 2010, DCF reversed its finding that Hasak had abused John Doe after an
internal review was conducted by Defendant Ingrid Aarons, the Program Manager of the
Norwalk Office of DCF. (Id. ¶ 43). Aarons’s decision was based on information from the
State’s Attorney’s Office that Hasak had passed lie detector tests regarding the alleged abuse
and that as a result of these tests, and the prosecutor’s concern that John would not be an
effective witness because of his disability, Hasak would not be prosecuted. (Id.) Plaintiff
Parents’ repeated requests to rebut the findings of the internal review have been denied. (Id.
¶ 44.)
In May 2010, Hasak was restored as a full–time paraprofessional in the Darien Public
Schools. (Id. ¶ 46.) In September 2010, John was transferred to Middlesex Middle School
in Darien, where Defendant Nicole Ruospo was assigned as his special education teacher.
(Id. ¶ 51.) During the 2010–2011 school year, Ruospo abused John on several occasions by
tripping him and knocking him on the floor. (Id. ¶ 52.) On November 23, 2010, Defendant

4

Marc Marin witnessed one such incident. Despite repeated reports of this abuse by Plaintiff
Parents, the Board of Education failed to refer the matter to DCF. (Id. ¶¶ 52–54.)
After this lawsuit was filed in October 2011, DCF commenced two additional abuse
investigations involving John which are ongoing: the first investigation involves the alleged
physical abuse by Ruospo, and the second investigation involves allegations of abuse by a
private provider of special education services. (Id. ¶ 57.)
II.

DISCUSSION2
A.

Katz and Aarons’s Motions to Dismiss

Defendants Katz and Aarons move to dismiss Count Nine and Defendant Katz
moves to Dismiss Count Three of the Second Amended Complaint on the grounds of lack
of standing, sovereign immunity, absolute immunity, failure to state a claim, and qualified
immunity, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Katz, the Commissioner of

2

“[T]he standards for dismissal under 12(b)(6) and 12(b)(1) are substantively
identical.” Scholastic Corp. v. Najah Kassem & Kasper & Del Toldeo LLC, 398 F. Supp. 2d
402, 404 (D. Conn. 2005) (quoting Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir.
2003). But see Thompson v. County of Franklin, 15 F. 2d 245, 249 (2d Cir. 1994) (noting
that the party invoking the court’s jurisdiction has the burden of proof in a 12(b)(1) motion,
in contrast to a 12(b)(6) motion, in which the movant has the burden of proof). “To survive
a motion to dismiss, 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)). Although detailed allegations
are not required, a claim will be found facially plausible only if “the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at 678. Conclusory allegations are not sufficient. Id.
at 678–79; see also Fed. R. Civ. P. 12(b)(6). “When reviewing a motion to dismiss a court
must accept as true all of the factual allegations set out in the plaintiff’s complaint, draw
inferences from those allegations in the light most favorable to the plaintiff, and construe the
complaint liberally.” Rescuecom Corp. v. Google Inc., 562 F.3d 123, 127 (2d Cir. 2009)
(internal quotation marks and citations omitted).
5

DCF is sued in her official capacity and Aarons is sued in her individual capacity. In Count
Three, Plaintiffs allege that by failing to credit and give proper weight to John’s claims of
abuse, DCF discriminated against him on the basis of the severity and nature of his
disability, in violation of the ADA and § 504 of the Rehabilitation Act. In Count Nine,
Plaintiffs allege that DCF’s internal review process violated their constitutional rights under
the Due Process Clause of the Fourteenth Amendment in that they were deprived of a
meaningful opportunity to know the basis for the DCF determination of abuse and to
participate in a hearing or review if they disagreed with that determination. Because the
Court agrees that Plaintiffs lack standing to assert their claims, the Court will not address
Defendants Katz and Aarons’s additional arguments that they are entitled to immunity.
1.

Standing

Standing is a federal jurisdictional question. See Altman v. Bedford Cent. School Dist.,
245 F.3d 49, 69 (2d Cir. 2001). “To establish standing, a plaintiff must demonstrate: (1) an
injury in fact that is concrete and particularized and actual or imminent, not conjectural or
hypothetical; (2) a causal connection between the injury and the conduct complained of; and
(3) redressability of the injury by a favorable decision.” Harty v. Simon Property Group, L.P.,
428 F. App’x 69, 71 (2d Cir. 2011) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 55,
560–61 (1992)) (internal citations omitted). “Moreover, a plaintiff seeking injunctive relief
cannot rely only on past injury to satisfy the injury requirement but must show a likelihood
of future harm.” Id. (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)).
Katz and Aarons argue that Plaintiffs lack standing for their due process, ADA, and
§ 504 claims because the DCF internal review process conducted under Conn. Gen. Stat.
§ 17a-101k is an administrative enforcement decision akin to the decision whether or not
6

to pursue a criminal prosecution. The Supreme Court has held that “a citizen lacks standing
to contest the policies of the prosecuting authority when he himself is neither prosecuted nor
threatened with prosecution. . . . [A] private citizen lacks a judicially cognizable interest in
the prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619
(1973). The Second Circuit has also extended the principle that an individual lacks standing
to challenge the criminal prosecution or nonprosecution of another to civil enforcement
cases, such as attorney disciplinary proceedings. See In re Attorney Disciplinary Appeal, 650
F.3d 202, 203–04 (2d Cir. 2011) (per curiam) (holding that a third–party lacks standing to
challenge a district court’s decision not to discipline an attorney and acknowledging that the
decision is “consistent with the rule that ‘a private citizen lacks a judicially cognizable
interest in the prosecution or nonprosecution of another,’ and therefore ‘lacks standing to
contest the policies of the prosecuting authority when he himself is neither prosecuted nor
threatened with prosecution.’” (quoting Linda R.S., 410 U.S. at 614)). In that case, the
Second Circuit held that the plaintiff who filed a disciplinary complaint “[wa]s an informer
and nothing more, and as such has no right to be heard at any stage of the proceedings . . .
. The plaintiff has averred nothing to show that his interest in the matter . . . differed in any
particular from the interest of any other citizen and member of the bar, none of whom have
standing as a party in interest.” Id. at 203 (internal quotation marks and citations omitted).
At least one state court has held that a child does not have standing to challenge the
decision by a state child welfare agency that a report that the child has been abused is
unfounded. In Daniel S. v. Dowling, 684 N.Y.S. 2d 99 (N.Y. App. Div. 1998), appeal
dismissed by 93 N.Y.2d 919 (N.Y. 1999), the New York Appellate Division held that the
“failure to provide a fair hearing to the child named in an unfounded report does not

7

constitute a denial of procedural due process.” Id. at 99–100. Under New York law, which
is similar to the Connecticut statutory scheme, only an accused abuser has the right to seek
review at a fair hearing to challenge a report of abuse, and therefore “the child reported to
the State Central Register of Child Abuse and Maltreatment [] lacks standing to challenge
the determination that the report was unfounded.” Id. at 99. DCF’s internal review and
reversal of its finding that the report that Hasak abused John was substantiated and its
decision to list, and then de–list, Hasak on the state child–abuse registry is analogous to the
determination that a report of abuse was unfounded in the Daniel S. case. A state child
welfare agency’s review of its decision to list an individual on the state child–abuse registry
is sufficiently similar to a prosecuting authority’s review of a criminal complaint that a third
party lacks a judicially cognizable interest in the prosecution or nonprosecution of that
complaint, as was held in Linda R.S. While Plaintiffs here certainly had a personal interest
in the outcome of DCF’s internal review of the decision to list Hasak’s name on the state
child–abuse registry, legally, this interest is not distinguishable from the general public’s
interest in protecting children. The internal review procedures were established to safeguard
the due process rights of those who have been accused of abuse and listed on the state
child–abuse registry, and thus Hasak, rather than Plaintiffs, was the party–in–interest for the
internal review conducted by Aarons. Therefore, Plaintiffs lack standing to bring this suit
against Defendants Katz and Aarons.
2.

Failure to State a Claim

Furthermore, even if Plaintiffs could establish that they had standing for these claims,
they have failed to state a claim for which relief can be granted, because they have no legal

8

entitlement under either the Fourteenth Amendment or the ADA and § 504 to the outcome
of this process.
a.

Claims Under 42 U.S.C. § 1983 (Count Nine Against
Defendants Katz and Aarons)

To sustain a cause of action under § 1983, a plaintiff must allege that “the conduct
at issue [was] committed by a person acting under color of state law and [] deprived a person
of rights, privileges, or immunities secured by the Constitution or the laws of the United
States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (internal quotation marks omitted).
In this case, Plaintiffs claim that the conduct of DCF’s internal review process violated their
due process rights, established by Conn. Gen. Stat. § 17a-101, et seq., to have complaints of
abuse investigated by DCF and to have appropriate action taken on those complaints to
protect alleged victims of abuse, such as the provision of protective services. Specifically, at
oral argument, Plaintiffs’ counsel pointed to Conn. Agencies Regs. § 17a-101(e)-5 (stating
that if a DCF investigation produces evidence of abuse, DCF “will take action deemed
necessary to protect the child. Such action may include: . . . counseling services [and]
referral to and utilization of other community resources such as social, health, education and
employment services) and Conn. Gen. Stat. § 17a-101k (governing the process for listing an
allegeed abuser’s name on the state child–abuse registry) to show that Plaintiffs had an
entitlement to protective services under Connecticut law. Katz and Aarons argue that the
statutory scheme regulating the reporting and investigation of complaints of abuse does not
give rise to any constitutionally protected individual entitlement.
The Supreme Court has recognized that “a State’s failure to protect an individual
against private violence simply does not constitute a violation of the Due Process Clause.”

9

DeShaney v. Winnebago, 489 U.S. 189, 197 (1989). In DeShaney, the state child welfare
service had received numerous complaints that the four–year–old plaintiff was being abused
by his father, but took no steps to remove the child from his father’s care. Eventually, the
plaintiff was beaten so severely by his father that he was left permanently brain damaged.
Despite what it admitted were “undeniably tragic” facts, id. at 191, the Supreme Court
determined that the state had no duty to protect the child from his father, and the failure to
properly investigate the allegations of abuse could not give rise to a substantive due process
claim. Thus, Plaintiffs can assert no substantive due process right to DCF protective services
arising from the complaints of abuse by Hasak.
Plaintiffs also fail to state a claim that their procedural due process rights were
violated by DCF’s conduct of the internal review process. The Supreme Court has held that
“[t]he procedural component of the Due Process Clause does not protect everything that
may be described as a benefit: To have a property interest in a benefit, a person clearly must
have more than an abstract need or desire and more than a unilateral expectation of it. He
must, instead, have a legitimate claim of entitlement to it.” Town of Castle Rock v. Gonzales,
545 U.S. 748, 756 (2005) (internal quotations omitted). “Such entitlements . . . are created
and their dimensions are defined by existing rules or understandings that stem from an
independent source such as state law.” Id. (internal quotations omitted). “A benefit is not
a protected entitlement if government officials may grant or deny it in their discretion.” Id.
Based on this reasoning, the Supreme Court in Town of Castle Rock held that a Colorado law
stating that “a peace officer shall arrest” an individual where there is probable cause that he
has violated a restraining order did not create an entitlement in the enforcement of
restraining orders. Because this law was found to be discretionary, the Supreme Court held

10

that the plaintiff’s procedural due process rights had not been violated when the police
refused to arrest her husband for violating a restraining order, where the police department’s
refusal to take action contributed to the death of the husband and his three daughters.
In Sealed v. Sealed, 332 F.3d 51 (2d Cir. 2003), the plaintiffs alleged that DCF’s
failure to place them in protective custody to protect them from their stepfather’s abuse
constituted a violation of their due process rights under the statutory child welfare scheme
established by Conn. Gen. Stat. § 17a-101. The Second Circuit first found that the general
policy statement expressed in Conn. Gen. Stat. § 17a-101(a) “to protect children whose
health and welfare may be adversely affected through injury and neglect,” did not create any
“discrete rights or reasonable expectations in any specific protective measures.” Sealed, 332
F.3d at 57 (citing Savage v. Aronson, 214 Conn. 256, 279 n.5 (Conn 1990) (“[The] general
statement of the goals of our child welfare laws, although valuable as an aid in construing
ambiguous provisions of such statutes, creates no rights beyond those specifically provided
by the statutes intended to implement the statement of policy.”)). The Second Circuit
certified to the Connecticut Supreme Court the question of whether Connecticut law, as
expressed in Conn. Gen. Stat. § 17a-101g(c), mandated removal once abuse had been
substantiated. In Teresa T. v. Regalia, 272 Conn. 734, 751 (Conn. 2005) the Connecticut
Supreme Court held that the statutory child welfare scheme under § 17a-101 is discretionary
and DCF officials are not required to remove a child once a determination has been made
that probable cause of abuse exists. In light of the holding in City of Castle Rock that
discretionary actions cannot give rise to a property interest, these rulings indicate that
Connecticut law does not establish an entitlement to the provision of protective services by
DCF.

11

In this case, Plaintiffs claim that Conn. Gen. Stat. § 17a-101k entitles them to
participation in DCF’s internal review process through notice and fair hearing once an
allegation of abuse has been substantiated by DCF investigation. If Connecticut law does
not establish an entitlement to DCF protective services because officials can “grant or deny
it in their discretion,” it must similarly be the case that the statutory scheme creates no
entitlement to participate in the discretionary internal review to determine whether or not
an alleged abuser’s name will remain on the state child abuse registry pending an
administrative hearing. Plaintiffs have failed to establish that they have any constitutional
rights grounded in the conduct of the DCF internal review process, and thus have failed to
state a claim under § 1983. Defendants Katz and Aarons’s Motions to Dismiss will therefore
be granted as to Count Nine.
b.

Claims Under the ADA and § 504 of the Rehabilitation Act
(Count Three Against Defendant Katz)

In order to establish a violation of Title II of the ADA, a plaintiff must establish: “(1)
that he is a ‘qualified individual’ with a disability; (2) that he was excluded from participation
in a public entity’s services, programs or activities or was otherwise discriminated against
by a public entity; and (3) that such exclusion or discrimination was due to his disability.”
Hargrave v. Vermont, 340 F.3d 27, 34–35 (2003). The standard is the same for Plaintiffs’
§ 504 claims, id. at 35 (quoting Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir.
1999)), except that to establish a violation of the Rehabilitation Act, a plaintiff must show
that the defendants receive federal funding. See Henrietta D. v. Bloomberg, 331 F.3d 261, 272
(2d Cir. 2003). Katz alleges that only John is a “qualified individual” with a disability and
therefore Plaintiff Parents have failed to state a claim on their own behalf. Furthermore,

12

Katz alleges that John fails to identify any services, programs or activities that were denied
to him as a result of DCF’s decision to remove Hasak’s name from the state child–abuse
registry and has failed to adequately claim that this decision was discriminatorily based on
the nature and severity of John’s disability.
Plaintiffs counter that under the anti-interference provisions of the ADA, Plaintiff
Parents are “qualified individuals” for the purposes of establishing their ADA claim. See 42
U.S.C. § 12203(b) (“It shall be unlawful to coerce, intimidate, threaten, or interfere with an
individual . . . on account of his or her having aided or encouraged any other individual in
the exercise or enjoyment of, any right granted or protected by this chapter.”) However,
Plaintiffs do not allege that DCF took any action to coerce, intimidate or threaten Plaintiff
Parents, and do not allege that DCF’s refusal to allow them to participate in the internal
review process was “on account of” their having pursued a complaint in behalf of their
disabled son.
Plaintiffs also cite to Doe v. County of Centre, 60 F. Supp. 2d 417 (M.D. Pa. 1999),
to contend that Plaintiff Parents may assert their rights under the ADA and § 504 because
they are qualified individuals based on their association or relationship with an individual
with a disability—i.e., their son John. Id. at 427 (citing 28 C.F.R. § 35.130(g) to hold that the
ADA “was intended to protect otherwise qualified individuals from discrimination because
they are known to have an association or relationship with an individual with a known
disability,” and finding that the adoptive parents of a child with AIDS are such individuals
with a close association with a person with a known disability). In County of Centre,
however, Plaintiffs alleged that they were excluded from participation in a foster care
program on the basis of their son’s disability. Id. at 418–19. Plaintiffs Mr. and Mrs. Robert

13

Doe do not allege that their inability to participate in the DCF internal review process is
based on their status as parents of a child with a disability, as all parents of children who are
the subject of allegations of abuse are similarly excluded from the DCF internal review and
appeal process. Thus, for the purposes of their ADA and § 504 claims, Plaintiff Parents have
failed to state a claim under the ADA or § 504.
John claims that DCF’s investigation of abuse allegations are a “service, program or
activity” within the meaning of the ADA, and that he was denied access to this service
because DCF failed to give proper weight to his statements on the basis of the severity of his
disability. However, Plaintiffs fail to cite to any case law supporting the conclusion that the
DCF investigation and internal review process is a “service, program or activity” within the
meaning of the ADA. Plaintiffs concede that the diagnostic performed by the Center was
appropriate and point to no deprivation of service beyond the claim that Aarons did not give
proper weight to John’s statements when conducting the internal review of the allegations
against Hasak. The discretionary determination of what weight to give to evidence in an
internal review of abuse allegations is not a “service, program or activity” within the meaning
of the ADA. Cf. In re Joseph W., 305 Conn. 633, 650–51 (Conn. 2012) (finding that neglect
proceedings to terminate parental custody are not “services, programs or activities within
the meaning of the ADA” (quoting In re Antony B., 54 Conn. App. 463, 471–72 (Conn.
App. Ct. 1999))). Plaintiffs also asserted at oral argument that they need only allege general
“discrimination” by an agency in order to have an actionable claim under the ADA and
§ 504. As will be discussed below, Plaintiffs’ contentions do not accurately reflect the law.
Plaintiffs have no cognizable interest in the internal review and hearing rights established
under Conn. Gen. Stat. § 17a-101. These procedures are provided as due process safeguards

14

for alleged abusers, and not the victims of abuse. Thus John is not a member of the class of
individuals against whom DCF could discriminate in carrying out this internal review, and
cannot claim injury from the results of this process. Therefore, Plaintiff John Doe fails to
state a claim under the ADA or § 504 and Defendant Katz’s Motion to Dismiss will be
granted with respect to Count Three.
B.

The Board of Education’s Motion to Dismiss

The Board of Education moves to dismiss Count One of the Second Amended
Complaint pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that Plaintiffs have failed
to state a claim for which relief can be granted under the ADA and § 504 of the
Rehabilitation Act. The Board of Education argues that Plaintiffs have failed to allege a
denial of a benefit and have therefore failed to state a claim under the ADA or § 504.
Plaintiffs counter that they need not assert a deprivation of a benefit or exclusion
from a program in order to state a claim under the ADA and § 504, and that they need only
allege that they have been the subject of discriminatory conduct by the employee of a public
entity. In support of this position, Plaintiffs cite several Second Circuit cases. For example,
Plaintiffs allege that Henrietta D, 331 F.3d 261, finding that plaintiffs with AIDS were denied
access to public welfare benefits, establishes that a plaintiff need only allege discrimination
to state a claim under the ADA: “A plaintiff can prevail either by showing discrimination
or by showing deni[al] of benefits of public services.” Id. at 276 (alterations in original)
(internal quotation marks omitted). However, Plaintiffs over–read this sentence. In context,
quoted portion above served to distinguish claims of disparate impact from claims for
failure to accommodate, as the next line of the opinion makes clear: “Therefore, we hold
that a claim of discrimination based on failure to accommodate is distinct from a claim of

15

discrimination based on disparate impact. Quite simply, the demonstration that a disability
makes it difficult for a plaintiff to access benefits that are available to both those with and
without disabilities is sufficient to sustain a claim for a reasonable accommodation.” Id. at
276–77.
Plaintiffs also cite Messier v. Southbury Training School, 562 F. Supp. 2d 294 (D.
Conn. 2008) for this same principle. The court in Messier held that the State of Connecticut
had discriminated against individuals with disabilities by institutionalizing them without
considering whether the services the individuals were receiving could be provided in a more
integrated setting. Id. at 320–42. Plaintiffs argue that the plaintiffs in Messier were not
denied or excluded from a benefit, but were discriminated against because they were
institutionalized. Similarly, Plaintiffs cite C.C. ex rel Ward v. State of Tennessee, No. 3:090246, 2010 WL 3782232 (M.D. Tenn. Sept. 21, 2010), which held that “[p]laintiff need not
establish that he was excluded from participating in or was denied the benefits of a state
program. A plaintiff may meet the third prong of the ADA/Rehabilitation Act test by
alleging that the plaintiff was [s]ubjected to discrimination under the program solely because
of her disability.” Id. at *9 (alteration in original) (emphasis added). In that case, the court
found that a plaintiff with mental impairments had alleged a claim under the ADA and § 504
where he was beaten by child welfare employees while in their custody, based on his
arguments that the employees had discriminated against him in the attack as a result of his
disability and that the state child welfare service had failed to adequately train its employees
regarding discrimination against and treatment of the plaintiff based on his disability.
Contrary to Plaintiffs’ argument, however, in Henrietta D., Messier, and C.C. ex rel Ward,
there was some benefit, service, or program that was available to both disabled and non-

16

disabled individuals, and the defendants either failed to provide reasonable accommodations
to ensure access to this benefit, service, or program, or provided access in a discriminatory
manner on the basis of the plaintiffs’ disabilities or the severity of their disabilities.
Here, Plaintiffs have alleged that the Board of Education discriminated against
Plaintiff John Doe on the basis of the severity of his disability in the provision of a benefit.
Plaintiffs allege that by failing to properly train employees on conducting
non–discriminatory investigations of abuse of severely disabled children, and by failing to
have adequate policies and procedures regarding the reporting and investigation of abuse
of severely disabled students, the Board of Education failed to provide John with equal access
to a safe educational environment.3 Plaintiffs claim that employees of the Board of
Education failed to report the abuse of John after he told them about the incidents of abuse
by Hasak and on at least one occasion, when an employee witnessed abuse by Defendant
Ruospo. Plaintiffs also claim that the Board of Education returned Hasak to work in the
school system and allowed Ruospo to continue working at the school where John was
enrolled after these incidents. Plaintiffs allege that normal reporting and investigation
procedures were not followed in this case because the Board of Education discredited John’s
statements as a result of his severe disability. Thus, taking all facts alleged in the complaint
as true, and drawing all reasonable inferences in favor of Plaintiffs, Plaintiffs have alleged
sufficient facts to state a claim for relief under the ADA and § 504.

3

At oral argument, counsel for the Board of Education conceded that a safe public
education was a benefit under the ADA, and stated that the purpose of the Motion to
Dismiss would be satisfied if it could be clarified that Plaintiffs were not alleging a denial of
a Free Appropriate Public Education (“FAPE”). Plaintiffs’ counsel stated that Plaintiffs were
not claiming a failure to provide a FAPE at this time.
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V.

Conclusion
For the reasons discussed above, Defendant Katz and Aarons’s Motions to Dismiss

[Doc. # 33, 34] are GRANTED, and Katz and Aarons are dismissed from this case.
Defendant Board of Education’s Motion to Dismiss [Doc. # 57] is DENIED.

IT IS SO ORDERED.

/s/
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 17th day of September, 2012.

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