Jameson v. NYSED VESID et al
Filing
45
ORDER granting 33 Motion to Dismiss; denying 26 Motion to Amend/Correct/Supplement: For the reasons stated in the attached Memorandum and Order, Defendants' motion to dismiss 33 is GRANTED, and all of Plaintiffs claims are DISMISSED. F urther, Plaintiff request for leave to file a Fourth Amended Complaint 26 is DENIED. The Clerk of Court shall enter judgment accordingly, mail a copy of the judgment and this Memorandum and Order to plaintiff pro se, and close this case. Th e Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).. Ordered by Judge Roslynn R. Mauskopf on 3/20/2012. (Mauskopf, Roslynn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------X
RICHARD L. JAMESON,
Plaintiff,
- against NYSED VESID, A. ABRAHAM, J.
TREVINGTON, M. WINESTINE, L. HARRIS,
NYS EDUCATION DEPARTMENT, R. MILLS,
Commissioner, NYS ATTORNEY GENERAL A.
CUOMO, and CHARLES ENLOE,
MEMORANDUM & ORDER
10-CV-847 (RRM) (JO)
Defendants.
------------------------------------------------------------X
ROSLYNN R. MAUSKOPF, United States District Judge.
Pro se Plaintiff Richard L. Jameson (“Plaintiff”) filed this action against the Vocational
and Educational Services for Individuals with Disabilities (“VESID”), a division of the New
York State Education Department (“NYSED”),1 relating to VESID’s decision to terminate
funding of Plaintiff’s limousine business as part of a self-employment plan under Title I of the
federal Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. §§ 720-728a, and related
state law. Defendants seek to dismiss Plaintiff’s Third Amended Complaint, and oppose the
filing of a proposed Fourth Amended Complaint. Plaintiff is granted in forma pauperis status for
purposes of these motions. For the reasons set forth herein, the Defendants’ motions are
GRANTED.
1
The individual Defendants named in the action are VESID employees at VESID’s Brooklyn office, former
NYSED Commissioner Richard Mills, former Attorney General Andrew Cuomo, and Assistant Attorney General
Charles Enloe.
I.
BACKGROUND
a. Plaintiff’s Individualized Plan of Employment Through VESID
VESID provides vocational rehabilitation services to disabled individuals pursuant to
Title I of the Rehabilitation Act and related state law. See 29 U.S.C. §§ 720-728a; 34 C.F.R. §
361; N.Y. Educ. Law §§ 1001-10 (McKinney 2007); N.Y. Comp. Codes R. & Regs. tit. 8, § 247
(2012). The Rehabilitation Act provides federal funding “to assist States in operating statewide
comprehensive, coordinated, effective, efficient, and accountable programs of vocational
rehabilitation”. 29 U.S.C. § 720(a)(2). These programs are “designed to assess, plan, develop,
and provide vocational rehabilitation services for individuals with disabilities, consistent with
their strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed
choice, so that such individuals may prepare for and engage in gainful employment.” Id.; see
also 34 C.F.R. § 361.1(b). Participating states like New York are required to submit plans for
vocational rehabilitation for federal approval, subject to certain federal reporting requirements.
29 U.S.C. §§ 721, 726(b)(2); 34 C.F.R. §§ 361.2, 361.10, 361.29. New York’s Vocational
Rehabilitation Law, N.Y. Educ. Law §§ 1001-10, and its implementing regulations N.Y. Comp.
Codes R. & Regs. tit. 8, § 247 govern the vocational rehabilitations programs provided by the
state.
An individual is eligible for rehabilitation assistance if he “has a physical or mental
impairment which for such individual constitutes or results in a substantial impediment to
employment,” “can benefit in terms of an employment outcome from vocational rehabilitation
services,” and “requires vocational rehabilitation services to prepare for, secure, retain, or regain
employment.” 29 U.S.C. §§ 705(20)(a), 722(a)(1). VESID designs an Individualized Plan of
Employment (“IPE”) for each eligible recipient (“consumer”) and provides that consumer with
2
the vocational rehabilitation services necessary to reaching the goals set out in the IPE. 29
U.S.C. §§ 722(b), 723(A); 34 C.F.R. §§ 361.45, 361.48; N.Y. Educ. Law § 1004(2); N.Y. Comp.
Codes R. & Regs. tit. 8, §§ 247.11, 247.13. The rehabilitation services are primarily provided by
VESID-approved vendors who are directly reimbursed by the State. N.Y. Comp. Codes R. &
Regs. tit. 8, § 247.16.
Plaintiff qualified for VESID services and proposed a business plan to start a limousine
service based on his prior experience as a limousine driver. VESID’s 1301.00 Self-Employment
Policy allows VESID to fund a maximum of $11,000 in start-up costs for an eligible recipient’s
IPE.2 (See IHO Decision 7, 9, May 21, 2009, Doc. No. 8-2.) VESID’s 1355.00 Transportation
Policy (“Transportation Policy”) limits VESID funding for vehicle use and prohibits VESID
from purchasing or leasing vehicles for the recipient’s transportation as part of the vocational
rehabilitation services facilitating the recipient’s IPE.3 (See IHO Decision 7, 9, Doc. No. 8-2.)
VESID initially approved Plaintiff’s IPE and authorized a total of aproximately $11,000
to fund other equipment and services for the limousine business. (IHO Hr’g Tr. 30:17-30:21,
April 17, 2009, Doc. No. 8-2.) At the time the IPE was approved, Plaintiff presented evidence to
his vocational rehabilitation counselor that he had access to a vehicle; subsequently, however,
plaintiff could not procure the proposed vehicle and sought to secure a replacement. (Id. at
31:19-32:4.) As the viability of Plaintiff’s IPE was contingent upon the availability of a vehicle,
and VESID’s Transportation Policy prohibits the purchase or lease of vehicles for its consumers,
VESID withheld funding until Plaintiff was able to provide proof of vehicle ownership, and
2
1301.00 Self-Employment Policy, NYSED.gov,
http://www.acces.nysed.gov/vr/current_provider_information/vocational_rehabilitation/policies_procedures/1301_se
lf_employment/policy.htm (last visited March 20, 2012).
3
1355.00 Self-Employment Policy, NYSED.gov,
http://www.acces.nysed.gov/vr/current_provider_information/vocational_rehabilitation/policies_procedures/1355_tr
ansportation_services/policy.htm (last visited March 20, 2012).
3
indicated a willingness to work with Plaintiff to develop another IPE if he was not able to furnish
such proof by a certain date. (Id. at 32:20-33:18.) Ultimately, Plaintiff was unable to secure a
vehicle and, on March 6, 2009, VESID terminated funding for the plan unless Plaintiff could
provide proof vehicle ownership. (Id. at 32:5-32:19; 33:8-33:18.)
b. IHO Review of VESID’s Decision to Terminate Funding
A consumer who disagrees with a determination made by VESID can request an
impartial due process hearing before an impartial hearing officer (“IHO”) no later than 90 days
after the consumer is notified of the determination. N.Y. Comp. Codes R. & Regs. tit. 8, §
247.4; 29 U.S.C. § 722(c)(5); 34 C.F.R. § 361.57(e). The IHO, vested with the powers provided
by Section 304 of the State Administrative Procedures Act, is required to issue a fair,
independent and impartial written decision after receiving and considering all relevant and
reliable evidence from the consumer. N.Y. Comp. Codes R. & Regs. tit. 8, § 247.4(i); 34 C.F.R.
§ 361.57(e)(3). The Rehabilitation Act allows states to establish procedures for administrative
appellate review of IHO decisions, but since New York has not done so, the IHO decision is final
and can only be appealed through a civil action brought in the appropriate federal or state court.
29 U.S.C. §§ 722(c)(5)(D), (G), (J); 34 C.F.R. §§ 361.57(e)(4), 361.57(g), 361.57(i)(l).
Plaintiff requested a due process hearing by email dated March 9, 2009, and an IHO was
appointed on March 10, 2009. A hearing was held on April 17, 2009 addressing Plaintiff’s
challenges to VESID’s decision; representing himself, Plaintiff participated in the hearing. (See
IHO Decision 4, May 21, 2009, Doc. No. 8-2.) On May 21, 2009, the IHO issued a final
decision upholding VESID’s termination of funding, which was mailed to Plaintiff on the same
4
day, and again on May 27, 2009.4 (See Letter from Linda Agoston, IHO, to Richard Jameson
(May 21, 2009), Doc. No. 8-2; Letter from Michael Plotzker, Unit Coordinator, NYSED VESID,
to Richard Jameson (May 27, 2009), Doc. No. 8-2.)
In August 2009, pursuant to Section 722(c)(5)(J), Plaintiff, proceeding pro se, filed an
Article 78 proceeding in New York State Supreme Court, Kings County against VESID and
Defendant Andrea Abraham, Plaintiff’s vocational rehabilitation counselor at VESID,
challenging the IHO’s final decision.5 The Article 78 proceeding was transferred from Kings
County to Albany County on January 5, 2010 following respondents’ motion to change venue
pursuant to N.Y. C.P.L.R. 506(b)(2) and 511(b).6 On February 23, 2010, while his Article 78
proceeding was pending in the Supreme Court, Albany County, Plaintiff filed the instant federal
action.
On June 21, 2010, plaintiff’s Article 78 proceeding was again transferred to the Appellate
Division, Third Department pursuant to N.Y. C.P.L.R. 7804(g) (See June 9, 2010 Order of
Transfer, Doc. No. 20-5 at 21-22; Letter from Kelly L. Munkwitz, Assistant Attorney General, to
Richard Jameson (June 24, 2010), Doc. No. 20-5 at 26.). Plaintiff was given instructions on how
to perfect his Article 78 in the Third Department and given notice that he had nine months from
the date of the transfer, or roughly until March 9, 2011, to do so. (See Directions on Perfecting
A Transferred Article 78 Proceeding, Doc. No. 20-5 at 28.) Letter from Robert D. Mayberger,
Clerk of the Appellate Division, Third Department, to Richard Jameson (March 22, 2011), Doc.
No. 28, at 11. While the record is unclear, it appears that Plaintiff failed to so do. In any event,
4
For purposes of determining whether an action is timely filed within a specific limitations period, it can be
presumed that a notice provided by a government agency is mailed on the date given on the notice and “received
three days after its mailing.” Sherlock v. Montefiore Medical Ctr., 84 F.3d 522, 525-26 (2d Cir. 1996).
5
See Jameson v. NYSED VESID, Index No. 18575/09.
6
See Decl. Andrew H. Meier in Supp. Mot. Dismiss, Ex. B, Doc. No. 35; Jameson v. NYSED VESID, Index No.
7616/09. N.Y. C.P.L.R. 506(b)(2) requires that proceedings brought against NYSED and its constituent units and
employees be filed in Supreme Court, Albany County.
5
it is clear that plaintiff’s Article 78 proceeding was pending in Albany County at the time this
action was filed
c. Procedural History of the Instant Federal Action
Since the inception of this action, Plaintiff has filed five different Complaints over a
period spanning roughly one year, each challenging the decisions by VESID and/or the IHO
regarding the termination of his funding. By Order dated March 3, 2010 (Doc. No. 3), and
pursuant to its authority under 28 U.S.C. § 1915(e)(2)(B), the Court dismissed Plaintiff’s original
Complaint (ECF. No. 1) for failure to state a claim, and granted leave to amend. Plaintiff timely
filed an Amended Complaint (Doc. No. 4), and by Order dated July 19, 2010 (ECF. No. 7), the
Court dismissed Plaintiff’s Amended Complaint and again granted leave to amend, this time
specifically directing Plaintiff to detail whether he participated in an impartial due process
hearing and whether a final administrative decision was issued by a hearing officer, both
necessary prerequisites to trigger federal district court review under 29 U.S.C. § 722(c) of the
Rehabilitation Act.
Plaintiff filed a Third Amended Complaint (Doc. No. 8). Plaintiff made no mention of
his then-pending Article 78 proceeding in state court, and again raised challenges to VESID’s
actions and the IHO’s final decision, alleging that: (i) he did not fully understand both the IHO’s
final decision and the transcript of his due process hearing before the IHO; (ii) the IHO allowed
VESID representatives at the hearing “to manipulate the proceedings and totally confuse the
issues”; (iii) the IHO prevented Plaintiff from questioning the VESID representatives at several
points; and (iv) the IHO allowed the “non-issue” of transportation to encompass a major part of
the proceedings while tabling the issue of repaying Plaintiff’s monetary out-lays. (Id. at 2-3.)
6
In the instant motion, Defendants have moved to dismiss this Third Amended Complaint
on multiple grounds (Mem. Supp. Defs.’ Mot. Dismiss 6-8, Doc. No. 34). The Court set a
briefing schedule; on the date his opposition was due, Plaintiff filed instead a proposed Fourth
Amended Complaint, this time couching his claims as “fraud,” adding as a new defendant an
Assistant Attorney General responsible for litigating his Article 78 proceedings on behalf of
VESID and other state actors, and attaching multiple letters and documents totaling over 200
pages in length. (Doc. No. 20.) As to the motion to dismiss his Third Amended Complaint,
Plaintiff claims it “should be denied in its entirety because the issues and concerns raised are
answered in the plaintiff’s 4th amended complaint”. (Doc. No. 25.)
In addition to their motion to dismiss the Third Amended Complaint, Defendants now
seek to deny Plaintiff leave to file his Fourth Amended Complaint. (Doc. No. 43.) After being
given an extension to file his papers, Plaintiff opposed the motion. (Doc. No. 41.)
For the reasons set forth herein, Plaintiff’s Third Amended Complaint is DISMISSED,
and Plaintiff is DENIED leave to file his Fourth Amended Complaint.
II.
MOTION TO DISMISS
a. Standard of Review
As required by Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short
and plain statement of the claim showing that the pleader is entitled to relief.” Rule 12(b)(6)
authorizes dismissal of the case if the plaintiff has failed “to state a claim upon which relief can
be granted.” “The standard for a Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction is ‘substantively identical’ to the 12(b)(6) standard, except that the plaintiff has the
burden of establishing jurisdiction in a 12(b)(1) motion.” S & R Dev. Estates, LLC v. Bass, 588
7
F. Supp. 2d 452, 460 (S.D.N.Y. 2008); see Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d
Cir. 2003).
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)
when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed. R. Civ. P. 12(b)(1)); see also Oscar
Gruss & Son, Inc. v. Hollander, 337 F.3d 186, 193 (2d Cir. 2003) (“Failure of subject matter
jurisdiction, of course, is not waivable and may be raised at any time by a party or by the court
sua sponte.”) In considering a motion to dismiss for lack of subject matter jurisdiction, a district
court “must accept as true all material factual allegations in the complaint, but [is] not to draw
inferences from the complaint favorable to plaintiffs.” J.S. ex rel. N.S. v. Attica Cent. Sch., 386
F.3d 107, 110 (2d Cir. 2004) (citation omitted). This Court, however, “may consider affidavits
and other materials beyond the pleadings to resolve the jurisdictional issue, but [it] may not rely
on conclusory or hearsay statements contained in the affidavits.” Id. (citations omitted). “The
plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the
evidence.” Aurecchione v. Schoolman Transp. Sys. Inc., 426 F.3d 635, 638 (2d Cir. 2005).
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, “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, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A complaint need not contain “‘detailed factual
allegations,’” but it must contain “more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555). In other words,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rather, the plaintiff’s
8
complaint must include “enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 570). The
determination of whether “a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Id. at 1950 (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)).
“A document filed pro se is to be liberally construed and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (internal quotation marks
omitted). Accordingly the Court construes Plaintiff’s Third Amended Complaint with “special
solicitude” and interprets it to raise the strongest arguments it suggests. Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (quoting Ruotolo v. I.R.S., 28 F.3d 6, 8
(2d Cir. 1994)).
b. Discussion
Plaintiff’s federal action, embodied in his Third Amended Complaint, in essence seeks
judicial review of the IHO’s final decision upholding VESID’s determination to cease funding
plaintiff’s IPE. For the reasons that follow, Plaintiff’s Third Amended Complaint must be
dismissed.
i. The Rehabilitation Act Does Not Contemplate Filing Simultaneous
Actions in State and Federal Courts
Title I of the Rehabilitation Act, more specifically, 29 U.S.C. § 722(c)(5)(J), entitles an
aggrieved VESID consumer to judicial review of an IHO’s final decision in “any State court of
competent jurisdiction or in a district court of the United States of competent jurisdiction.” The
9
plain language of the statute, and Congress’s specific use of the disjunctive, allow for an election
between a state or federal forum. Clearly, it does not contemplate providing two bites at the
same apple by allowing simultaneous litigation in federal court after Plaintiff has commenced an
action in state court, or vice versa. Courts have so held in construing the analogous provision of
the Individuals With Disabilities Education Act, commonly referred to as the IDEA, a statute
with similar purpose to the Rehabilitation Act.7
Section 1415(i)(2)(A) of the IDEA entitles a plaintiff to judicial review of a final agency
decision with regard to the provision of IDEA services and, like 29 U.S.C. § 722(c)(5)(J), allows
an aggrieved party to bring a civil action to challenge that final decision “in any State court of
competent jurisdiction or in a district court of the United States.” Section 1415(i)(2)(A) does not
contemplate simultaneous litigation in both forums. See Coe v. Michigan Dept. of Educ., 693
F.2d 616, 617 (6th Cir. 1982) ("'[A § 1415(i)(2)(A)] action may be brought in any State court of
competent jurisdiction or in a district court of the United States ....' Clearly, by the use of the
disjunctive, Congress did not intend that aggrieved parents should be permitted to file two
actions simultaneously."); Scruggs v. Campbell, 630 F.2d 237 (4th Cir. 1980) ("Congress did not
intend judicial consideration of [a § 1415(i)(2)(A)] controversy in both federal and state courts.
By giving the party aggrieved by the final administrative decision the option to proceed in either
forum, the statute avoids simultaneous litigation in both."); Smith v. Indian Hill Exempted
Village School Dist., No. 1:10–cv–718, 2011 WL 4348101, at *3 (S.D. Ohio May 5, 2011) (“The
reasoning of Coe would appear to apply regardless of the present posture of the state court
7
See, e.g., Mark H. v. Lemahieu, 513 F.3d 922, 929 (9th Cir.2008) (“While the IDEA focuses on the provision of
appropriate public education to disabled children, the Rehabilitation Act of 1973 more broadly addresses the
provision of state services to disabled individuals.”); see also Muller v. Comm. on Special Educ., 145 F.3d 95, 100
n.2 (2d Cir.1998) (recognizing that the purposes of the Rehabilitation Act are similar to those of the IDEA, with the
Rehabilitation Act defining more broadly the concept of “disability”).
10
litigation, because it speaks to a litigant's election of a state or federal forum under statutory
language permitting a complaint seeking judicial review to be filed ‘in any State court ... or in a
district court of the United States’—not both. See 20 U.S.C. § 1415(i)(2)(A).”) (emphasis in the
original).
Plaintiff challenged the IHO’s final decision in state court by filing an Article 78 proceeding
in New York Supreme Court in August 2009, and that proceeding was pending and in the midst
of litigation when Plaintiff filed the present action in this Court in February 2010. Somewhat
tellingly, Plaintiff vigorously contested respondents’ motion in the Article 78 proceeding to
change venue to Albany County, and then brought the same claims here after losing that motion.
In any event, having first elected judicial review in state court, Plaintiff may not file a duplicative
federal action under Section 722(c)(5)(J) particularly where, as here, Plaintiff may obtain the
same relief in the state forum. 8
On this ground alone, Plaintiff’s Third Amended Complaint must be dismissed.
ii. The Instant Action is Time Barred
Moreover, even if Plaintiff could properly bring this federal action, it is time-barred. The
Rehabilitation Act does not specify a limitations period for bringing actions under Section
8
The subsequent actions relating to the transfer of plaintiff’s Article 78 proceeding is of no moment. The record is
unclear as to whether plaintiff perfected that proceeding. Assuming that he did not, it may be considered abandoned
pursuant to Section 800.12 of the Rules of Practice of the Supreme Court, Appellate Division. See N.Y. Comp.
Codes R. & Regs. tit. 22, § 800.12, available at http://www.courts.state.ny.us/ad3/rulesofthecourt.html#800.12
(last visited March 20, 2012) (“A civil appeal or proceeding shall be deemed to have been abandoned where
appellant or petitioner shall fail to serve and file a record and brief within nine months after the date of the notice of
appeal or order of transfer….”).However, under Section 800.12, Plaintiff may still have a basis to on request if he
can show “a reasonable excuse for the delay” and evidence of merit to the proceeding. See N.Y. Comp. Codes R. &
Regs. tit. 22, § 800.12 (“[T]he clerk of this court shall not accept or file any record or brief attempted to be filed
beyond the nine-month period unless directed to do so by order of the court. Such an order shall be granted only
pursuant to a motion on notice supported by an affidavit setting forth a reasonable excuse for the delay and facts
showing merit to the appeal or proceeding.”). Plaintiff cannot rely on the absence of a state court remedy and
thereby compel the federal court to hear his case where plaintiff “would not have been deprived of a state remedy in
the first instance had he filed a timely Article 78 proceeding in state court.” See Surowitz v. New York City
Retirement System, 376 F. Supp. 369, 377 (S.D.N.Y. 1974).
11
722(c)(5)(J). However, “when Congress has not established a time limitation for a federal cause
of action, the settled practice has been to adopt a local time limitation as federal law if it is not
inconsistent with federal law or policy to do so.” Wilson v. Garcia, 471 U.S. 261, 266-67
(1985). “In borrowing state statutes of limitations for federal claims, a federal court must choose
the statute of limitations of the most analogous state claim provided ‘that the borrowed period of
limitations [does] not discriminate against the federal claim.’” Chin v. Bowen, 833 F.2d 21, 23
(2d Cir. 1987) (quoting Okure v. Owens, 816 F.2d 45 (2d Cir. 1987)). “The characterization of
the federal claim for the purpose of borrowing a state statute of limitations is matter of federal
law and must be done with an eye to the federal interests at stake.” Chin, 833 F.2d at 23 (citing
Wilson, 471 U.S. at 269-70).
In this case, given the statutory scheme set forth in the Rehabilitation Act itself, the most
analogous state statute is Article 78 of the New York Civil Practice Law and Rules, which
contains a four-month statute of limitations as provided for by CPLR 217. See Carrigan v. New
York State Educ. Dept., 485 F. Supp. 2d 131, 136 (N.D.N.Y. 2007) (applying CPLR 217’s fourmonth statute of limitations to a challenge of VESID’s denial of vocational services under Title I
of the Rehabilitation Act); see also Adler v. Educ. Dep’t of NYS, 760 F.2d 454, 456 (2d Cir.
1985) (borrowing the CPLR’s four-month statute of limitations for action seeking reimbursement
of tuition cost under precursor to the Individuals with Disabilities Act (“IDEA”), which lacked a
statute of limitations of its own); Mackey v. Bd. of Educ. for the Arlington Centr. Sch. Dist., 373
F. Supp. 2d 292, 300 (S.D.N.Y. 2005) (applying a four-month statute of limitations to challenge
of school district’s individualized education program for disabled student under the IDEA).
Application of Article 78’s four-month limitations period is consistent with the
Rehabilitation Act and its underlying policies. Article 78 proceedings are used to challenge final
12
agency decisions that cannot be adequately reviewed by appeal to a court or to some other body
or officer. See N.Y. C.P.L.R. 7801(1). “[W]here a federal statute provides that suit may be
brought in both federal and state court, there is something to be said for having the same statute
of limitations applicable in both, at least to avoid forum shopping by prospective plaintiffs.”
Adler, 760 F.2d at 459. Such is the case with the Rehabilitation Act, under which Plaintiff is
entitled to judicial review of the IHO’s final decision in “any State court of competent
jurisdiction or in a district court of the United States of competent jurisdiction without regard to
the amount in controversy.” 29 U.S.C. § 722(c)(5)(J)(i).
The IHO’s final decision was issued on May 21, 2009 and mailed to Plaintiff first on the
same day, and again on May 27, 2009. In the letters transmitting the decision, Plaintiff was
specifically advised that any review of the IHO’s decision must be pursued through the courts.
Plaintiff filed the instant federal action on February 23, 2010, approximately nine months after
receiving notice of the IHO’s final decision and of the need to seek judicial appeal if he wished
to contest the final decision. Accordingly, Plaintiff’s claims are time barred.
iii. Younger Abstention Mandates Dismissal of Plaintiff’s Action
Finally, in light of Plaintiff’s pending Article 78 proceeding, abstention by this Court is
warranted. “As the Supreme Court emphasized in Younger v. Harris, 401 U.S. 37, 43-45, 91
S. Ct. 746 (1971), federal courts should generally refrain from enjoining or otherwise interfering
in ongoing state proceedings. This principle of abstention is grounded in interrelated principles
of comity and federalism.” Spargo v. N.Y. State Comm’n on Judicial Conduct, 351 F.3d 65, 74
(2d Cir. 2003), cert. denied, 541 U.S. 1085 (2004). “Younger generally prohibits courts from
‘taking jurisdiction over federal constitutional claims that involve or call into question ongoing
state proceedings’ so as to avoid unnecessary friction.” Id. at 75 (quoting Diamond “D” Constr.
Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002)). Though Younger was decided in the
13
context of federal court abstention in the face of pending state criminal proceedings, this
doctrine has been expanded to apply to state civil and administrative proceedings as well. See,
e.g., Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986);
Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982) (“The
policies underlying Younger are fully applicable to noncriminal judicial proceedings when
important state interests are involved.”).
“Younger abstention is required when three conditions are met: (1) there is an ongoing
state proceeding; (2) an important state interest is implicated in that proceeding; and (3) the state
proceeding affords the federal plaintiff an adequate opportunity for judicial review of the federal
constitutional claims.” Diamond “D” Constr. Corp., 282 F.3d at 198 (citing Grieve v. Tamerin,
269 F.3d 149, 152 (2d Cir. 2001)). The three conditions are met in this case. First, when this
action was filed, Plaintiff had an active, ongoing Article 78 proceeding in the State Supreme
Court, Albany County.9 Second, in determining whether the “important state interest”
requirement has been met, the Second Circuit considers “whether the state action concerns the
central sovereign functions of state government such that ‘exercise of the federal judicial power
would disregard the comity between the States and the National Government.’” Philip Morris,
Inc. v. Blumenthal, 123 F.3d 103, 105-06 (2d Cir. 1997) (quoting Pennzoil Co. v. Texaco, Inc.,
481 U.S. 1, 11 (1987)). This inquiry does not “‘look narrowly to [the State's] interest in the
outcome of the particular case,’ but rather looks to ‘the importance of the generic proceedings to
the State.’” Philip Morris, Inc., 123 F.3d at 106 (quoting New Orleans Pub. Serv., Inc. v. Council
9
The uncontroverted record evidence demonstrates that when this federal action was filed, Plaintiff’s Article 78
proceeding was pending and ongoing before the Supreme Court, Albany County. As noted above, Plaintiff litigated
the initial change of venue to Albany and lost, and subsequently, the proceeding was transferred to the Appellate
Division on respondents’ motion. That Plaintiff may have subsequently abandoned his Article 78 proceeding by
failing to perfect the proceeding in the appellate court is of no moment, particularly where, as here, Congress, in
crafting the Rehabilitation Act, specifically provided an aggrieved party the right to choose between a state or
federal forum, each of which can accord Plaintiff the relief he seeks, even now on Plaintiff’s motion if he chooses to
pursue one.
14
of New Orleans, 491 U.S. 350, 365 (1989)) (emphasis in original). “The burden is on the state to
establish that an important state interest is implicated.” Philip Morris, Inc., 123 F.3d at 106.
As Defendants argue in their memorandum supporting the motion to dismiss, an
important state interest is implicated in Plaintiff’s Article 78 proceeding before the state court. It
involves both VESID’s policies and regulations under New York’s Vocational Education Law
regarding the State’s provision of rehabilitation services as well as their fiscal integrity. (See
Mem. Supp. Defs.’ Mot. Dismiss 10-11 (citing Trainor v. Hernandez, 431 U.S. 434, 449-50
(1977).) Moreover, the state proceeding afforded Plaintiff an adequate opportunity for judicial
review of the very same issues he subsequently sought to litigate in federal court. See Middlesex
County, supra, 457 U.S. at 432 (“[t]he accused should first set up and rely upon his defense in
the state courts, even though this involves a challenge of the validity of some statute, unless it
plainly appears that this course would not afford adequate protection”) (quoting Younger, 401
U.S. at 45) (internal quotation marks and citation omitted.); see also Erdmann v. Stevens, 458
F.2d 1205, 1211 (2d Cir. 1972) (applying Younger abstention where constitutional issues raised
in the course of disciplinary proceedings can be adequately addressed by state appellate court).
Indeed, the Rehabilitation Act itself contemplates adequate remedies in either a state or federal
forum. Thus, Younger abstention applies.
Plaintiff has been given multiple opportunities to properly challenge the decisions of
VESID and the IHO in the judicial systems of both the state and federal courts. In addition to the
five Complaints filed in this action, Plaintiff pursued and litigated the same claims in his Article
78 proceeding in the state courts. Plaintiff has been accorded proper deference in light of his pro
se status by, inter alia, this Court’s granting of extensions, ensuring proper and timely notice of
court actions, construing his grievances liberally, and providing opportunities for amendment
15
and opposition to motions which Plaintiff eagerly and zealously embraced. Under the law, he
has failed to assert here any viable claims. For each of the reasons discussed above,
Defendants’ Motion to Dismiss the Third Amended Complaint is GRANTED.
III.
LEAVE TO AMEND
Plaintiff seeks to file a Fourth Amended Complaint alleging “fraud” against VESID and its
employees in the handling of his IPE, and against the State Attorney General and his Assistants,
including a newly-added defendant, Assistant Attorney General Kelly Munkwitz, for their
conduct in the Article 78 proceeding and this action. Plaintiff seeks money damages. (Fourth
Amended Complaint, Doc. No. 20 at 8-9.) In the absence of any federal claims, this Court lacks
subject matter jurisdiction over common law claims of fraud either under federal question or
diversity jurisdiction.10 See, e.g., State of New York v. White, 528 F.2d 336, 338 (2d Cir. 1995)
(federal question jurisdiction may be properly invoked only if the plaintiff's complaint
necessarily draws into question the interpretation or application of federal law). To the extent
that it could assert supplemental jurisdiction, the Court declines in its discretion to so do in light
of the very early stages of this litigation, the nature of the claims asserted, and the state’s strong
interests in protecting the integrity of its own administrative processes. Klein & Co. Futures,
Inc. v. Bd. of Trade, 464 F.3d 255, 262 (2d Cir. 2006).
10
In his Fourth Amended Complaint, Plaintiff makes passing references to federal regulations, including 34 C.F.R.
361 et seq., which are the regulations implementing judicial review of IHO final decisions pursuant to 20 U.S.C. §
722(c)(5), and “the accountability and transparency standards of the American Recovery and Reinvestment Act,”
which applies only to non-Federal employers who make protected whistleblower disclosures. (See Doc. No. 20 at
9.) On the facts as alleged, neither gives rise to federal question jurisdiction. Moreover, there is no allegation that
any of the parties are diverse to give rise to this Court’s jurisdiction under 28 U.S.C. § 1446.
16
CONCLUSION
As such, and for the reasons stated herein, Defendants’ motion to dismiss [Doc. No. 33]
is GRANTED, and all of Plaintiff’s claims are DISMISSED. Further, Plaintiff is DENIED leave
to file a Fourth Amended Complaint. The Clerk of Court shall enter judgment accordingly, mail
a copy of this Memorandum and Order to plaintiff pro se, and close this case.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken
in good faith and therefore in forma pauperis status is denied for the purpose of any appeal.
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated: Brooklyn, New York
March 20, 2012
______________________________
ROSLYNN R. MAUSKOPF
United States District Judge
17
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