Muschette et al v. West Hartford et al
Filing
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ORDER granting 69 Motion for Reconsideration. The Court vacates its prior ruling granting the motion to dismiss for lack of subject matter jurisdiction and finding as moot the motion to dismiss for failure to state a claim. Upon review, the Court GRANTS the motion to dismiss [Doc. #49] for failure to state a claim. Signed by Judge Warren W. Eginton on 4/9/15. (Ladd-Smith, I.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
A.M., a minor by his parents and
natural guardians, AUDLEY
MUSCHETTE and JUDITH
MUSCHETTE,
:
:
:
:
:
Plaintiffs,
:
:
v.
:
:
AMERICAN SCHOOL FOR THE DEAF,:
CHRIS HAMMOND,
:
ELWIN ESPINOSA, TOWN OF
:
WEST HARTFORD, CHRISTOPHER :
LYTH, PAUL GIONFRIDDO,
:
:
Defendants.
:
3:13cv1337 (WWE)
RULING ON MOTION FOR RECONSIDERATION
In this action, plaintiffs Audley and Judith Muschette on behalf of their minor child
A.M. have brought claims pursuant to the Americans with Disability Act (“ADA”),
Rehabilitation Act, and state law (negligence, assault, battery, and negligent and
intentional infliction of emotional distress) against defendants American School for the
Deaf (“ASD”), Chris Hammond, and Elwin Espinosa. Plaintiffs also allege claims
pursuant to Section 1983, the ADA, and the Rehabilitation Act against West Hartford
and Police Officers Christopher Lyth and Paul Gionfriddo.
Defendants ASD, Hammond, and Espinosa filed a motion to dismiss the
complaint for lack of jurisdiction and a motion to dismiss for failure to state a claim. The
Court granted the motion to dismiss for lack of subject matter jurisdiction and dismissed
the federal and state law claims against ASD, Chris Hammon and Espinosa. The Court
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found the motion to dismiss for failure to state a claim as moot. Plaintiffs filed a motion
for reconsideration. The Court will grant the motion for reconsideration.
BRIEF FACTUAL BACKGROUND
The following facts are reflected in the allegations of the complaint, which are
considered to be true for purposes of this ruling.
ASD is a provider of private special education services approved for
reimbursement pursuant to the Connecticut statutes and regulations by the Connecticut
Bureau of Special Education. ASD is also a recipient of federal funding. The individual
defendants Hammond and Espinosa are alleged employees of ASD.
A.M. was a student at ASD, participating in P.A.C.E.S., a program approved by
the Connecticut Bureau of Special Education for the special needs of deaf and hard of
hearing children and youth whose emotional or behavioral disorders prevent them from
being served in more traditional programs. Plaintiff alleges that he was mistreated and
physically assaulted by the individual ASD defendants. ASD failed to follow proper
protocol by notifying his parents of the incidents, by providing information about the
individuals involved in the incidents, and by complying with State regulations and
procedures concerning investigation and reporting of the incidents.
DISCUSSION
A motion for reconsideration may be based solely upon “matters or controlling
decisions which counsel believes the Court overlooked in the initial decision or order.”
D. Conn. Local R. Civ. P. 7(c)(1). Such a motion should be granted only where the
Court has overlooked facts or precedents that might have “materially influenced” the
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earlier decision. Park South Tenants Corp. v. 200 Cent. Park South Assocs. L.P., 754
F. Supp. 352, 354 (S.D.N.Y. 1991). The movant’s burden is made weighty to avoid
“wasteful repetition of arguments already briefed, considered and decided.” Weissman
v. Fruchtman, 124 F.R.D. 559, 560 (S.D.N.Y. 1989).
Lack of Subject Matter Jurisdiction
In the motion for lack of subject matter jurisdiction, defendants argued that
plaintiffs’ ADA and Rehabilitation Act claims against ASD represent potential claims
brought pursuant to the Individuals with Disabilities in Education Act (“IDEA”) that
should have been administratively exhausted. Defendants asserted that failure to
exhaust bars this Court from having subject matter jurisdiction over the claims asserted.
The Court agreed, holding that plaintiffs must satisfy IDEA’s procedural exhaustion
requirements for all IDEA claims as well as those claims asserted for relief that is
available under IDEA regardless of the asserted statutory basis of the claim.
Plaintiffs seek reconsideration of the Court’s ruling on the basis that any
exhaustion requirement should be excused due to futility. Specifically, plaintiffs assert
that ASD would not be a party to the administrative proceeding against the local
educational agency, which could therefore not provide a remedy to the discrimination
complained of by plaintiffs. In seeking to avoid exhaustion, plaintiffs bears the burden
of showing futility. Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288
F.3d 478, 488 n.8 (2d Cir. 2002).
IDEA exhaustion may be excused where the pursuit of administrative remedies
would be futile because the agency was either acting in violation of the law or was
unable to remedy the alleged injury. Heldman on behalf of T.H. v. Sobol, 962 F.2d 148,
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159 (2d Cir. 1992). The Second Circuit has accepted futility arguments where the state
agency actions was contrary to law; systemic violations could not be remedied by local
or state administrative agencies; the failure to take immediate action would adversely
affect a child's mental or physical health; or the school district allegedly failed to
implement the clearly-stated requirements of the child’s education plan. Frank v.
Sachem School Dist., 2015 WL 500489, *16 (E.D.N.Y.) (citing cases).
In its prior ruling, this Court noted that IDEA exhaustion was required where a
student attending a private school claimed violation of the ADA, Rehabilitation Act and
the IDEA. See Bishop v. Oakstone Academy, 477 F. Supp. 2d 876, 883 (S.D. Ohio
2007). However, in Bishop, the absence of private school from the administrative
hearings would not have rendered the administrative remedies futile because the local
school district could adequately address the relief sought through an alternative
placement of the student in a public school. In this instance, the administrative
remedies would be futile because the Department of Education hearing officer would
have no jurisdiction over ASD, as a private school, and could not enforce any type of
remedy developed through IDEA’s administrative hearing process. See M.K. v. Sergi,
554 F. Supp. 2d 233, 241 (D. Conn. 2008) (Department of Education has jurisdiction
only over entities delivering services as local education agency); 20 U.S.C. §
1401(19)(A) (defining “local education agency as “public board of education or other
public authority”).
Upon review and reconsideration, the Court will reverse its prior decision finding
that plaintiff had failed to demonstrate futility. Plaintiff has shown that precedent
supports the position that the hearing officer would have no jurisdiction over ASD as a
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respondent to the administrative hearing and would not have the capacity to address
the instant complaints of discrimination rather than an appropriate educational
placement. The Court finds that plaintiff was not required to exhaust IDEA’s
administrative remedies and the Court does not lack subject matter jurisdiction over the
matter. Accordingly, the Court must consider the merits of defendants’ motion to
dismiss for failure to state a claim.
Motion to Dismiss for Failure to State ADA and Rehabilitation Act Claims
The function of a motion to dismiss is “merely to assess the legal feasibility of the
complaint, not to assay the weight of the evidence which might be offered in support
thereof.” Ryder Energy Distrib. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779
(2d Cir. 1984). When deciding a motion to dismiss for failure to state a claim, the Court
must accept all well-pleaded allegations as true and draw all reasonable inferences in
favor of the pleader. Hishon v. King, 467 U.S. 69, 73 (1984). The complaint must
contain the grounds upon which the claim rests through factual allegations sufficient “to
raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). A plaintiff is obliged to amplify a claim with some factual allegations to
allow the court to draw the reasonable inference that the defendant is liable for the
alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
In the complaint, plaintiffs allege that ASD “failed to properly train staff and have
procedures in place to have peaceful encounters with individuals with Attention Deficit
Hyperactivity Disorder or other emotional & behavioral issues and failed to establish a
proper policy for handling such encounters, which resulted in the discrimination
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against A.M. that caused him to suffer his injuries.” Defendants maintain that
plaintiffs are challenging the adequacy of the treatment plaintiff A.M. received at ASD
rather than disparate treatment related to his disability; that plaintiffs cannot establish
a prima facie case under the ADA or the Rehabilitation Act; and that plaintiffs have
not adequately stated a claim for injunctive relief under the ADA or monetary
damages under the Rehabilitation Act.
Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12182,
prohibits private individuals who own, lease or operate a place of public
accommodation from discrimination based on disability. The Rehabilitation Act
provides that “no qualified individual with a disability ... shall, by reason of such
disability, be excluded from participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving Federal financial assistance.”
29 U.S.C. § 794(a).
To establish the ADA claim, plaintiffs must allege that A.M. is disabled within
the meaning of the ADA; (2) that defendants own, lease or operate a place of public
accommodation; and (3) that defendants discriminated against him by denying him a
full and equal opportunity to enjoy the services defendants provide. Camarillo v.
Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008). To establish the Rehabilitation Act
claim, plaintiffs must allege that A.M. is a person with disabilities under the Act, that
he has been denied benefits of or excluded from participating in a federally funded
program or special service solely because of his disability. Andersen v. North Shore
Long Island Jewish Healthcare System’s Zucker Hillside Hosp., 2015 WL 1443254,
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*15 (E.D.N.Y.). A qualified individual asserting Title III ADA and Rehabilitation Act
claims may allege three theories of discrimination: (1) intentional disparate treatment;
(2) disparate impact or (3) failure to make a reasonable accommodation.
Tsombanidis v. West Haven Fire Dep’t, 352 F.3d 565, 573 (2d Cir. 2003). The merits
of ADA and Rehabilitation Act claims are generally considered together. McGugan v.
Aldana-Bernier, 752 F.3d 224, 233 n.4 (2d Cir. 2014).
In the context of programs directed specifically at the disabled, a plaintiff who
has a disability that is the reason for his eligibility for services faces difficulty in
satisfying the requirement that he be an individual qualified to participate in the
alleged program or facility in spite of his disability. See United States v. University
Hosp., 729 F.2d 144, 156 (2d Cir. 1984); Doe v. Pfrommer, 148 F.3d 73, 83 (2d Cir.
1998). “Neither the ADA nor the Rehabilitation Act establish an obligation to meet a
disabled person’s particular needs vis-avis the needs of other handicapped
individuals, but mandate only that the services provided . . .to non-handicapped
individuals not be denied to a disabled person because he is handicapped.” Fetto v.
Sergi, 181 F. Supp. 2d 53, 76 (D. Conn. 2001). Thus, claims challenging the quality
of services provided to disabled individuals are not cognizable under the ADA or
Rehabilitation Act absent allegations that better care or more accessibility to care is
provided to non-disabled individuals. Univ. Hosp., State Univ. of N.Y., 729 F.2d at
157.
Thus, it follows that a plaintiff who is participating in a program for similarly
disabled individuals will not be able to satisfy the comparative component required to
demonstrate disability discrimination. M.K., 554 F. Supp. 2d at 198; See also
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Henrietta D. v. Bloomberg, 331 F.3d 261, 276 (2d Cir. 2003) (basic analytical
framework of ADA includes comparative component); Tsombanidis, 352 F.3d at 575
(to establish a prima facie disparate impact case, plaintiff must show occurrence of
outwardly neutral practices, and a significant adverse or disproportionate impact on
persons of a particular type produced by defendant’s facially neutral acts or
practices.).
Upon review of plaintiffs’ allegations, the Court find that plaintiffs have failed to
allege any dissimilar treatment afforded to a comparative class of individuals, a denial
of benefits or any refusal to provide a reasonable accommodation.1 Similarly, plaintiff
has not alleged that certain neutral practices or policies have a disproportionate
impact on a particular class of person). The Court will grant the motion to dismiss the
claims of ADA Title III and Rehabilitation Act violation. However, plaintiffs’ brief
indicates that they seek to advance a theory of disability discrimination based on
treatment of individuals at ASD who have ADHD compared to treatment individuals
who are deaf without ADHD. The Court will afford plaintiffs an opportunity to replead
their complaint if, in good faith, they can establish claims of disability discrimination
pursuant to the ADA and Rehabilitation Act.
CONCLUSION
For the foregoing reasons, the Court GRANTS the motion for reconsideration
(doc. #69) and hereby VACATES its prior ruling granting the motion to dismiss for
1
Under a reasonable accommodation theory, a defendant discriminates when it
refuses to provide a reasonable accommodation relevant to the disability at issue.
Tsombanidis, 352 F.3d at 578
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lack of subject matter jurisdiction and finding as moot the motion to dismiss for failure
to state a claim (doc. #68). Upon review, the Court GRANTS the motion to dismiss
for failure to state a claim (doc. #49).
Dated this 9th day of April 2015 at Bridgeport, Connecticut.
/s/Warren W. Eginton
Warren W. Eginton
Senior United States District Judge
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