Toth v. New York City Department of Education

Filing 57

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION. The Court adopts Judge Orenstein's R&R in its entirety. (ECF No. 48 .) Defendant's motion to dismiss the Complaint for lack of subject-matter jurisdiction under Federal Rules of C ivil Procedure 12(b)(1) and (h)(3) is granted (ECF No. 37 ). Plaintiff's cross-motion to amend the Complaint is denied (ECF No. 42 ). The Complaint is dismissed (ECF No. 1 ). The Clerk of Court is directed to close this case. Ordered by Judge Sandra L. Townes on 1/5/2017. (Barrett, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------x
GEZA TOTH on behalf of T.T.,
Plaintiff,
-against-

MEMORANDUM AND ORDER
14-cv-3776 (SLT) (JO)
ISTRK',T COURT

NEW YORK CITY DEPARTMENT OF EDUCATION,
Defendant.
--------------------------------------------------x

* JAN O9IO17 *
BROOKLYN OFFICE

TOWNES, United States District Judge:
On June 11, 2014, Plaintiff Geza Toth filed a complaint, pro Se, on behalf of his minor
son, T.T., alleging that Defendant New York City Department of Education failed to provide
T.T. with a "free appropriate public education" as required under the Individuals with
Disabilities Education Improvement Act ("IDEA"), 42 U.S.C. §§ 1400 et seq. (Compl., ECF No.
1.) Defendant moved to dismiss the Complaint pursuant to Federal Rules of Civil Procedure
12(b)(1) and (h)(3) for lack of subject-matter jurisdiction on the grounds that Plaintiff's claims
are moot or, alternatively, pursuant to Federal Rule of Civil Procedure 12(c) for failure to state a
claim. (ECF No. 38.) Plaintiff opposed the motion and cross-moved to amend the Complaint.
(ECF Nos. 39, 42.) On August 27, 2015, this Court referred both motions to United States
Magistrate Judge James Orenstein ("Judge Orenstein") for a report and recommendation. (ECF
No. 47.)
On March 14, 2016, Judge Orenstein issued a Report and Recommendation (the "R&R")
recommending that Defendant's motion be granted to the extent that it seeks dismissal for lack of
subject-matter jurisdiction and Plaintiff's cross-motion to amend the Complaint be denied. (ECF
No. 48.) On April 9, 2016, Plaintiff filed objections to the R&R ("Objections"). (ECF No. 56.)
Plaintiff's Objections are without merit. Accordingly, the Court adopts the R&R in its entirety.

BACKGROUND
I. STATUTORY FRAMEWORK
Any state that receives IDEA funding must provide all disabled children with a "free
appropriate public education." 20 U.S.C. § 1412(a). "A free appropriate public education
["FAPE"] must include special education and related services tailored to meet the unique needs
of a particular child, and be reasonably calculated to enable the child to receive educational
benefits." C.F. v. New York City Dep 't of Educ., 746 F.3d 68, 71-2 (2d cir. 2014) (citations
omitted). "The key element of the IDEA is the development of an IEP [individualized education
program] for each handicapped child, which includes a comprehensive statement of the
educational needs of a handicapped child and the specially designed instruction and related
services to be employed to meet those needs." Frank G. v. Rd. of Educ., 459 F.3d 356, 363 (2d
Cir. 2006) (internal quotation marks and citation omitted); see 20 U.S.C. § 1414(d).
"New York parents who disagree with their child's IEP may challenge it in an impartial
due process hearing, ... before an IHO [impartial hearing officer] appointed by the local board of
education..... " Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) (citing
20 U.S.C. § 1415(f) 5 N.Y. Educ. Law § 4404(1)). Parents can appeal the IHO's decision to a
state review officer ("SRO") and challenge the SRO's decision in a state or federal lawsuit.

Id.

(citing 20 U.S.C. § 14 15(g) and (i)(2)(A), N.Y. Educ. Law § 4404(2)). Parents must exhaust the
administrative review process before raising IDEA claims in a state or federal lawsuit. Cave v.
East Meadow Union Free Sc/i. Distr., 514 F.3d 240, 245 (2d Cir. 2008) ("[o]nly after exhaustion
of these procedures has an aggrieved party the right to file a suit in a federal or state court")
(citing 20 U.S .C. § 141 5(i)(2)(A)). "Failure to exhaust the administrative remedies deprives the
court of subject matter jurisdiction." Id. (citations omitted). A party need not exhaust

2

administrative remedies only if the party can show that "(1) it would be futile to resort to the
IDEA's due process procedures; (2) an agency has adopted a policy or pursued a practice of
general applicability that is contrary to the law; or (3) it is improbable that adequate relief can be
obtained by pursuing administrative remedies." Murphy v. Arlington Centr. Sch. Dist. Bd. of
Educ., 297 F.3d 195, 199-200 (2d Cir. 2002) (J. Sotomayor) (citing Mrs. W. v. Tirozzi, 832 F.2d
748, 755 (2d Cir. 1987) (quoting H.R. Rep. No. 296, 99th Cong., 1st Sess. 7 (1985))).
The IDEA provides that "during the pendency of any proceedings conducted pursuant to
this section, unless the State or local educational agency and the parents otherwise agree, the
child shall remain in the then-current educational placement of the child .. . ." 20 U.S.C.
§ 14150). Section 14150) is commonly referred to as the pendency provision. A party need not
administratively exhaust a claim alleging violation of the pendency provision. Murphy, 297 F.3d
at 199-200; Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 455 (2d Cir. 2015).
II.

FACTS
These facts are drawn from the Complaint, the sealed record of the administrative

proceedings, and exhibits filed in support of the motions currently in front of the Court. T.T.
was born on October 2, 2007. (Compi. ¶ 7.) On June 10, 2010, he was diagnosed as autistic; his
diagnosis is not in dispute. (Id. at ¶ 8.)
T.T. subsequently received ABA therapy.' From June 2010 to August 2011, he received
20 hours of therapy a week. (Id.) Starting August 2011, that number was reduced to 10 hours a
week. (Id.) From July 2011 through August 2012, he attended a private school with "ABA

"ABA" refers to applied behavior analysis which "focuses on the principles that explain how learning takes
place. Positive reinforcement is one such principle. When a behavior is followed by some sort of reward, the
behavior is more likely to be repeated..,. Applied behavior analysis (ABA) is the use of these techniques and
principles to bring about meaningful and positive change in behavior." https://www.autismspeaks.orglwhatautism/treatment/applied-behavior-analysis-aba

3

trained teachers" and was progressing well. (Id. at ¶ 10.) But when he aged out, his parents
placed him in public school beginning in September 2012. (Id. at ¶ 12; Sept. 3, 2013,
administrative hearing transcript at 193.) He was placed in a 6:1:1 classroom (Sept. 18, 2013,
administrative hearing transcript at 406), which means that there was a teacher and an aide
attending to six students. However, T.T. did not perform well in that setting. By June 2013, the
school informed his parents that his behavior was unmanageable, that he was simply staring at
the ceiling during class, and that he was "not learning anything ...." (Compi. ¶ 20; Sept. 3, 2013,
administrative hearing transcript at 193.)
The IEP that Defendant formulated for T.T. commencing December 28, 2012 provided
that he continue in the 6:1:1 public classroom, but it did not call for any ABA therapy. (P1. Opp.
Memo. of Law, 2 Deci. of Dr. Karen M. Hopkins, Ex. A at 9; Compi. ¶ 18.) The projected date of
the IEP's next review was December 11, 2013. (Id. at 1.) In January 2013, T.T.'s parents filed a
"due process complaint." In March 2013, Plaintiff and Defendant entered into a Resolution
Agreement whereby: (i) Defendant would provide for 10 hours of SETS S3 therapy from July 5,
2013, through January 31, 2014, and (ii) by January 1, 2014, Defendant would "consider" athome SETS services for the rest of the 2013 -14 school year. (Id. at ¶ 19; PX4 E and I.) T.T.
was still attending public school.
On June 28, 2013, T.T.'s parents filed another due process complaint seeking a
placement at the Brooklyn Autism Center ("BAC") and an increase in T.T.'s at-home therapy

2

"P1. Opp. Memo. of Law" refers to the Memorandum of Law in Opposition to Respondent's Motion to Dismiss.
(ECF No. 39).
SETSS refers to "Special Education Teacher Support Services[.]"
http ://schools .nyc .gov/Academics/SpecialEducationjprograms/environment,/setss .htm

4

"PX" refers to any Exhibit offered by Plaintiff that is part of the administrative proceedings record.

in

from 10 hours to 15 hours a week. (PX A at 1.) On December 1, 2013, the IHO denied
Plaintiff's claim and, on February 12, 2014, the SRO affirmed that decision. (Compi. ¶J 27, 28.)
The IEP commencing January 1, 2014 continued to place T.T. in a 6:1:1 public school
classroom with no SETSS services. (P1. Opp. Memo. of Law, Deci. of Dr. Karen M. Hopkins,
Ex. B at 6.) In April 2014, the parties entered into another Resolution Agreement whereby: (i)
Defendant would provide 15 hours a week of at-home SETS S therapy for a year, starting April
23, 2014, and (ii) by April 1, 2015, additional at-home SETSS services through April 23, 2016,
would be considered. (Def. Moving Memo. of Law, 5 Decl. of Lyssa M. Sampson, Ex. A at ¶ 4.)
On June 11, 2014, Plaintiff filed the instant lawsuit. On March 4, 2015, the parties
entered into another Resolution Agreement whereby: (i) on or before March 30, 2015, the
Central Based Support Team ("CBST") would identify an "appropriate" private school program
for T.T., and (ii) 15 hours per week of at-home SETS S services would be provided for a year
starting April 24, 2015. (Def.'s Reply Memo. of Law in Support of its Motion to Dismiss, Deci.
of Lyssa M. Sampson, Esq., Ex. A at ¶ 1.) Thus, T.T. was continually receiving ABA therapy at
home from July 5, 2013, through April 24, 2016. The CBST subsequently identified a placement
for T.T. at the Association for Metroarea Autistic Children ("AMAC"), starting July 1, 2015.
(Id. at ¶ 5.) The AMAC uses the ABA method. 6
The TEP commencing July 6, 2015 provided for 15 hours of at-home SETSS services, "as
per previous impartial hearing and resolution agreement." (Obj. to Report and
Recommendations Dated March 14, 2016 ("Pl.'s Obj."), Ex. C at 4, ECF No. 50.) The IEP also
provided for T.T. to attend the AMAC school. (Id. at 10.) On March 29, 2016, Plaintiff was
notified that the at-home therapy was scheduled to end on April 24, 2016. (Pl.'s Obj. ¶ 3, Ex.
"Def. Moving Memo, of Law" refers to the Memorandum of Law in Support of Defendant's Motion to Dismiss.
6

http://www.privateschoolreview.comlthe-association-for-metro-area-autistic-children-profile ; http://amac.org .

5

A.) On April 4, 2016, Plaintiff initiated an administrative proceeding seeking, inter alia,
"[c]larification" as to when the at-home therapy provided for in the July 6, 2015 IEP was to end.
(Memo. of Law in Resp. to Pl.'s Obj. to the Report and Recommendation of Judge Orenstein,
Deci. of Lesley Berson Mbaye, Ex. A.) Neither party has informed the Court whether T.T. is
still receiving one-on-one therapy at home.
III. PROCEDURAL HISTORY

In the Complaint, Plaintiff challenged the IEP, without specifying which IEP, for
"fail[ing] to consider a 1:1 ratio placement classroom, despite overwhelming evidence that
Terence required one, and instead placed Terence in a 6:1:1 classroom," thereby denying T:T a
FAPE. (Compi. ¶ 6.) He also challenged the IHO and SRO denials of his request to place T.T.
in the BAC and to increase the therapy hours to 15 hours a week. (Id. at ¶J 30-2.) Plaintiff seeks
the following relief:
"(a) an independent review and consideration of the underlying administrative record and any
additional evidence this Court may find appropriate to consider;
(b)

de novo review of the IHO and the SRO's decisions;

(c)

a determination that the defendant failed to meet its evidentiary burden to prove that it
provided to the plaintiff a FAPE

(d)

a determination that the Brooklyn Autism Center, the educational program requested by
the parents is reasonably calculated to provide an educational benefit ...;

(e)

a determination that the equities favored [T.T.] and his parents ...;

(f)

an award of compensatory ABA therapy;

(g)

an order granting plaintiffs leave to file a fee application pursuant to the fee-shifting
provisions of 20 U.S.C. §1400 et seq. (IDEA), and 20 U.S.C. §

1415."

(Id. atJ33.)

On April 22, 2015, Defendant moved to dismiss the Complaint under Federal Rules of
Civil Procedure 12(b)(1) and (h)(3) for lack of subject-matter jurisdiction. (Def. Moving Memo.
of Law at Point II.A., 21-23.) Defendant argued that Plaintiff's claims for declaratory relief and
"compensatory ABA therapy" are moot because Defendant has agreed to place T.T. in private
school and has been providing T.T. with 15 hours-a-week of at-home therapy. (Id.) In response,
Plaintiff argued that because "[for three years the DOE did not consider or provide a 1:1
instruction ratio classroom placement[]" or place T.T. in the BAC or "a comparable unapproved
school[,]" rather placing T.T. in a 6:1:1 public classroom, that the case is not moot. (P1. Opp.
Memo. of Law at Point I, 15-6.) "The case or controversy is whether Brooklyn Autism Center or
a comparable ABA school providing 1:1 instruction, is appropriate." (Id. at 16.) As to
compensatory ABA therapy, Plaintiff argued why it is a meritorious claim but did not address
Defendant's mootness argument. (Id. at Point II, 19-23.)
On June 23, 2015, Plaintiff informed the Court that T.T. was not offered placement at the
BAC for the upcoming school year. (ECF No. 36.) On July 3, 2015, Plaintiff cross-moved
seeking to amend the Complaint by withdrawing the claim for a declaratory judgment that the
BAC is an appropriate placement and instead, seeking an injunction under Federal Rule of Civil
Procedure 65 ordering Defendant to provide 1,000 hours of ABA therapy to compensate T.T. for
the year of education that he "lost" by attending public school. (Memo. of Law in Support of
Pl.'s Cross-Mot. for an Award of Compensatory Education as a Remedy for the School District's
Denial of an Appropriate Education 1, ECF 42-3.)

7

IV. JUDGE ORENSTEIN'S R&R
Judge Orenstein reviewed the facts as ascertained from the Complaint, the exhibits that
were incorporated by reference, and the sealed record of the administrative proceedings. First,
Judge Orenstein recommended finding that Plaintiffs claim for declaratory relief is moot
because Plaintiff seeks a declaration that FAPE was not offered for a school year that has ended 2013-2014. Therefore, any declaration or other declaratory relief concerning that school year
"will afford no meaningful relief" (Id. at 8.) Judge Orenstein also found that "there is no
reasonable expectation that the IEP at issue will be repeated" because in 2015, Defendant agreed
to move T.T. into a private school. Judge Orenstein concluded, therefore, that Plaintiffs concern
that Defendant will revert back to the older IEP provisions is "mere speculation" that "does not
suffice to establish the existence of a live case or controversy." (Id. at 9.) The Judge also noted
that "if the DOE were to issue such a regressive JEP" and Plaintiff chose to challenge it in
federal court, Defendant could not make a mootness argument because it would no longer be
mere speculation that the prior IEP would be repeated. (Id. at 9 n.4.)
Judge Orenstein also recommended denial of Plaintiffs claim for compensatory
education. "Compensatory education is prospective equitable relief, requiring a school district to
fund education beyond the expiration of a child's eligibility as a remedy for any earlier
deprivations in the child's education." Somoza v. New York City Dep 't. of Educ.,

538 F.3d 106,

109 n.2 (2d Cir. 2008) (internal quotation marks and citation omitted). Judge Orenstein
concluded that the issue need not be decided because the "current IEP" called for 15 hours a
week of ABA therapy, which is the very relief that Plaintiff seeks for the 2013-14 school year in

[J

the instant lawsuit. 7 (Id. at 9.) The Judge noted "that the fact that [compensatory education] is
prospective and equitable in nature does not preclude the request from being moot . . . ." (Id.)
Judge Orenstein also recommended rejection of Plaintiff's claim for attorneys' fees
because although Plaintiff is an attorney, he has brought this action pro Se, and irrespective of
that fact has not prevailed here. (Id. at 10.) The Judge also recommended denial of Plaintiff's
cross-motion seeking to amend the Complaint by seeking injunctive relief of 1,000 hours of athome therapy. (Id. at 11-13.) Plaintiff has not clarified whether he seeks a total of 1,000 hours
or 1,000 hours in addition to the 15 hours a week that T.T. was currently receiving. Judge
Orenstein concluded that if Plaintiff seeks a total of 1,000 hours, the proposed amendment is
moot because Defendant has already provided for that increase "over the 2014 and 2015 school
years." (Id. at 11.)
Alternatively, if Plaintiff is seeking an additional 1,000 hours on top of the 15 hours per
week, Judge Orenstein concluded that "the proposed amendment is futile" because, even
assuming that the proposed Amended Complaint is "read liberally to establish a substantial
likelihood of success on the merits and (even more charitably, under the circumstances) that
mandating the additional compensatory therapy is in the public interest," there is nothing in the
record showing that T.T. will suffer "irreparable harm" if the additional 1,000 hours are not
provided. (Id. at 12.) The Judge noted that his conclusion was based not just on the proposed
allegations but also on the "extensive factual record developed in prior administrative
proceedings ...." (Id.) Judge Orenstein further concluded that "it is not even clear that it would
be practical to give him still more therapy for five hours a day." (Id.) As Defendant noted, that

In seeking "compensatory ABA therapy" Plaintiff did not specify in the Complaint the number of hours that he
seeks. Defendant and Judge Orenstein correctly noted that it is 15 hours because that is the amount at issue in
the SRO decision that Plaintiff is challenging in the instant lawsuit. (Compi. ¶J 27, 28, 33; PX A at 1.)

would mean T.T. would be schooled entirely at home for eight hours a day. (Memo. of Law in
Opp. to Pl.'s Mot. to Amend the Compl. 20, ECF No. 45.) The Judge concluded that "the
proposed Amended Complaint would be futile, as would any good faith attempt to further refine
that proposed pleading." (R&R 13.)
V.

PLAINTIFF'S OBJECTIONS TO THE R&R
On April 9, 2016, Plaintiff filed his objections to the R&R. But Plaintiff did not object to

or disagree with any particular portion of the R&R. He also asserted two new legal claims in the
Objections.
Plaintiff first reported on "a new development" - that the one-on-one therapy would end
on April 24, 2016 and that "a student's right of pendency pending proceedings pursuant to 20
U.S.C. § 14150); 34 C.F.R. § 5 18(a) (2007); N.Y. Educ. Law 4404(40(a)" was not recognized.
(Pl.'s Obj. ¶ 4.) He also stated that the then-current TEP called for 1:1 instruction and that "[a]
Resolution Agreement had granted the services until April 24, 2016." (Id. at ¶ 6.)
Next, under the heading "At Bar, the challenged IEP for 2013 did not provide sufficient
1:1 instruction[,]" Plaintiff repeated allegations from the Complaint that according to a
psychologist, T.T. made "a big improvement" when he received 20 hours of 1:1 therapy in 2010
and 2011, that a developmental behavioral pediatrician found that T.T. had progressed well in
2012 while attending a private school, that he had regressed while attending a "six child" public
classroom, that the 2013 IEP did not provide enough 1:1 instruction, and that from 2014 through
2015, he was provided 15 hours a week of 1:1 therapy. (Id. at ¶J 7-10.)
Then, for the first time in this litigation, Plaintiff argued for "one additional hour of 1:1
instruction per day," from 15 hours to 20 hours a week "[a]s compensatory award for a loss of
education[.]" (Id. at ¶J 11-13, 21-22.)

10

Plaintiff followed with his legal arguments under the heading "Discussion[.]" He started
by noting that "[t]he March 14, 2016 Report and Recommendations raises an issue of law under
the Constitution of the United States." (Id. at ¶ 13.) This is the only time that Plaintiff's
objections referred to or discussed any portion of the R&R. Plaintiff next discussed that a case
becomes moot when it no longer presents a live controversy. (Id.) He argued that because "[t]he
challenged conduct is recurring[,]" it is "capable of repetition, yet evading review." (Id. at ¶ 17.)
Plaintiff does not clarify whether "[t]he challenged conduct" refers to his claim for private school
placement or compensatory ABA therapy.
Next, under subheading "A. This case presents an exception to the mootness doctrine,"
Plaintiff argued that:
The duration of T.T.'s 2013 IEP was too short to be fully litigated either before its
scheduled expiration or by when the Department issued the 2014 IEP providing
the same classroom. The Department has consistently pursued the position that
at-home services are not necessary for T.T. to receive a FAPE. Parents have a
reasonable expectation of confronting this controversy every year that T.T. is
eligible for public education.
(Id. at ¶ 18.) Under subheading "B. The Department is subjecting T.T. to the same action once

again[,]" Plaintiff argued that because the parties have been litigating the 1:1 instruction issue
since September 2012, that "{tjhere is a recurring case or controversy."

(Id. at ¶ 19.) Again,

Plaintiff did not clarify whether the "1:1 instruction" refers to in-school or at-home services.
Plaintiff's submission ends with two new legal arguments. First, that Defendant violated
the IDEA's pendency provision. (Id. at ¶ 20.) Second, that Plaintiff wants to increase his claim
for compensatory education to 20 hours a week. (Id. at ¶J 21-22.) Plaintiff concluded by
arguing that "T.T. changed schools. The same problems persist now as in the challenged JEP for
2013[j" but failed to provide any basis for this argument. (Id. at ¶ 24.)

11

VI.

DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS
In response, Defendant argues that: (i) Plaintiff fails to object to any specific portion of

the R&R and, therefore, the Court should review the R&R only for clear error, and no such error
was made; (ii) that no new IEP has been developed for T.T. and, therefore, Judge Orenstein's
recommendation that it is speculative that this issue is "capable of repetition, yet evading
review" should be adopted; and (iii) as to Plaintiff's pendency argument, "it is questionable
whether Plaintiff may assert this claim for the first time in his Objections to the Report and
Recommendation[,J" and that, nonetheless, Plaintiff must first exhaust administrative review of
this claim before raising it in a civil suit, which administrative proceeding Plaintiff already
commenced on April 4, 2016. (Memo. of Law in Resp. to Pl.'s Obj. to the Report and
Recommendation of Judge Orenstein, ECF No. 52.)
Defendant attached Plaintiff's April 4, 2016 due process complaint. (Deci. of Lesley
Berson Mbaye ¶ 3, Ex. A, ECF No. 53.) In it, Plaintiff raised the two claims that he newly raised
in his Objections. Specifically, Plaintiff "invoke[d]" the IDEA's pendency provision and sought
an increase in compensatory therapy from 15 hours to 20 hours a week. (Id. atEx. A, 1-3.) He
also argued that the July 7, 2015 IEP "did not intend for Terence' s [at-home therapy] to
terminate before the end of the IEP on June 20, 2016" and sought "clarification" on the end date.
(Id. at 1, 3.)
VII.

SUBSEQUENT PROCEDURAL HISTORY
On May 6, 2016, Plaintiff filed a copy of a letter that he wrote to Defendant regarding a

possible settlement offer concerning the April 2016 administrative proceedings. (ECF No. 54.)
On May 9, 2016, Defendant responded with its own letter to the Court in which it noted that in
this litigation, "the parties have exhausted settlement attempts." (ECF No. 55.)

12

In response to Defendant's May 9th letter, Plaintiff filed the Declaration of Geza Toth
Concerning a Persistent Recurring Problem. (ECF No. 56.) In his Declaration, Plaintiff stated
that Defendant's response to his Objections failed to include the documents that Plaintiff
attached to his April 4, 2016 due process complaint which in sum included reports from
"experts." (Id. at ¶ 3.) He further argued that "[fjrom December, 2012 until the present, the
Department has relied upon administrative employees, or persons without special training in
autism[,]" that "[p]rior to the Department's termination of T.T.'s 1:1 home based instruction on
December 13, 2012 and on April 24, 2016, the Department failed to assess T.T.'s individual
needs[,]" [t]he failure to consider 1:1 teaching ratio denied T.T. a free and appropriate public
education[,]" and that "[b]etween the Defendant and T.T.s parents, from 2012 until the present, a
persistent, repetitive dispute has recurred concerning T.T.'s need for 1:1 instruction." (ECF No.
56 atTJ5-7.)
DISCUSSION

Under 28 U.S.C. § 636, a district court may refer a "pretrial matter" to a magistrate judge
for a report and recommendation. 28 U.S.C. § 636(b)(1). "Within 14 days after being served
with a copy of the recommended disposition, a party may serve and file specific written
objections to the proposed findings." FED. R. CIV. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). A
proper objection requires reference to a specific portion of the report and recommendation. Pall
Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008) (citation omitted); Williams v.
Woodhull Med. And Mental Health Ctr., 891 F.Supp.2d 301, 310 (E.D.N.Y. 2012). "The
objections of parties appearing pro se are generally accorded leniency and should be construed to
raise the strongest arguments that they suggest.... Nonetheless, even apro se party's objections
to a Report and Recommendation must be specific and clearly aimed at particular findings in the

13

magistrate's proposal, such that no party be allowed a second bite at the apple by simply
relitigating a prior argument." DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 340 (S.D.N.Y.
2009) (internal quotation marks and citations omitted).
"The district judge must determine de novo any part of the magistrate judge's disposition
that has been properly objected to." FED. R. Civ. P. 72(b)(3); see 28 U.S.C. § 636(b)(1)(C) (a
district judge is to make "a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made"). But "[r]eviewing courts
should review a report and recommendation for clear error where objections are merely
perfunctory responses, argued in an attempt to engage the district court in a rehashing of the
same arguments set forth in the original petition." Ortiz v. Barkley, 558 F.Supp.2d 444, 451
(S.D.N.Y. 2008) (internal quotation marks and citations omitted). "The goal of the federal
statute providing for the assignment of cases to magistrates is to increase the overall efficiency of
the federal judiciary." McCarthy v. Manson, 554 F. Supp. 1275, 1286 (D.Conn. 1982), aJj'd, 714
F.2d 234 (2d Cir. 1983) (quoting Nettles v. Wainwright, 677 F.2d 404, 410 (Former 5th Cir.
1982) (en bane)) (footnote omitted). "There is no increase in efficiency, and much extra work,
when a party attempts to relitigate every argument which it presented to the Magistrate Judge."
Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F.Supp. 380, 382
(W.D.N.Y. 1992). Moreover, "[w]hile 28 U.S.C. § 636(b)(1) grants district courts discretion to
consider additional evidence after a magistrate judge has issued her report, ... a district court
generally should not entertain new grounds for relief or additional legal arguments not presented
to the magistrate . . . ." Ortiz, 558 F. Supp. 2d at 451 (internal quotation marks and citations
omitted); see also In re: Madison Bentley Assoc., LLC, 516 B.R. 724, 731 n.21 (S.D.N.Y. 2014).

14

After the review, the district court "may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions." FED. R. Civ. P. 72(b)(3). As to those portions of a report and recommendation to
which no objection has been addressed, the district court is not required to review the magistrate
judge's factual or legal conclusions. Thomas v. Am, 474 U.S. 140, 150 (1985). A district court
"may reconsider any" portion of an R&R that "is clearly erroneous or contrary to law." 28
U.S.C. § 636(b)(1)(A).
A.

UN-OBJECTED TO RECOMMENDATIONS
No objections have been filed to the portions of the R&R recommending dismissal of

Plaintiffs claim for attorneys' fees and denial of Plaintiffs motion to amend the Complaint.
This Court has reviewed the record and Judge Orenstein's R&R for clear error and found none.
Therefore, the Court adopts those portions of the R&R and denies Plaintiffs claim for attorneys'
fees and Plaintiff's motion to amend the Complaint by removing his claim for declaratory relief
that BAC is an appropriate placement and instead, seeking an injunction under Federal Rule of
Civil Procedure 65 ordering Defendant to provide 1,000 hours of ABA therapy.
B.

PLAINTIFF'S OBJECTIONS DO NOT WARRANT DE NO VU REVIEW
Plaintiff has not objected to any portion of the R&R. Rather, Plaintiff merely states the

following: "The March 14, 2016 Report and Recommendations raises an issue of law under the
Constitution of the United States." (Pl.'s Obj. ¶ 13.) Plaintiff then discusses that the United
States Constitution limits a district court's jurisdiction to cases that present a live controversy.
(Id.) But reiterating that the R&R discusses subject-matter jurisdiction does not constitute an

objection to any of the recommendations therein.

15

Although Plaintiff is proceeding pro Se, he is an attorney. Plaintiff has also previously
filed and litigated another IDEA case in this jurisdiction. Toth v. New York City Dep 't of Educ.,
7-cv-03239-SLT-JO (E.D.N.Y.). Moreover, even pro se objections need to be "clearly aimed at
particular findings in the magistrate's proposal ...." DiPilato, 662 F.Supp.2d at 340. Therefore,
the Court need not liberally construe Plaintiff's objections. See e.g., Zimmelman v. Teachers'
Retirement Sys. of the City of New York,

No. 08 Civ. 6958, 2010 U. S. Dist. LEXIS 5 003 9, at *9

(S.D.N.Y. May 20, 2010) (pro se's objections did not warrant de novo review for "do[ing] little
more than recycl[ing] the same ... arguments" made in front of the magistrate judge).
Without objecting to any portion of the R&R, Plaintiff argues that his claims concerning
"1:1 instruction" and "at-home services" are not moot because T.T.'s parents expect to confront
litigating these issues every year. Even if Plaintiff's arguments can be construed as a proper
objection to certain portions of the R&R, they would not be subject to de novo review. First, the
arguments that Plaintiff made in his Objections concerning his claim for "1:1 instruction" are the
same arguments that he presented to Judge Orenstein in opposing Defendant's motion to dismiss
the Complaint. Accordingly, the objections do not merit de novo review. Ortiz, 558 F.Supp.2d
at 451 ("Petitioner's objections largely reiterate the arguments made to, and rejected by, Judge
Eaton.... Thus, the Court is only obliged to review the Report for clear error"). "There is no
increase in efficiency, and much extra work, when a party attempts to relitigate every argument
which it presented to the Magistrate Judge." Camardo, 806 F.Supp. at 382. Second, in opposing
Defendant's motion to dismiss before the R&R was issued, Plaintiff could have but chose not to
argue that his claim for compensatory at-home ABA therapy is not moot. Therefore, making the
argument in his Objections fails to merit de novo review. United States Fidelity and Guaranty
Co. v. I United Elec. Contracting Corp., 62 F. Supp.2d 915, 917-18 (E.D.N.Y. 1999) (rejected

16

defendant's objection to certain of the magistrate judge's "factual findings on the basis of a
newly submitted affidavit and purported copies of documents" where the defendant failed to
offer good justification for not offering the same to the magistrate judge).
The Court should review the R&R for clear error only. Camardo, 806 F.Supp. at 382
("Defendant ... attempted to take a second bite when it filed objections" by "merely submit[ting]
a revised version of the same argument it presented to the Magistrate Judge"). Having done so,
the Court finds no clear error and adopts the portions of the R&R recommending a finding that
this Court lacks subject-matter jurisdiction because Plaintiff's claims for declaratory relief and
compensatory ABA therapy are moot.
Even if Plaintiff had properly objected to the R&R's recommendations concerning
Plaintiff's claims for declaratory relief and compensatory ABA therapy, after a de novo review
the Court would reject Plaintiff's objections.
C. EVEN UNDER A DE NOVO REVIEW, THE COURT ADOPTS THE
RECOMMENDATIONS THAT PLAINTIFF'S CLAIMS FOR
DECLARATORY RELIEF AND COMPENSATORY EDUCATION ARE MOOT
Defendant moves to dismiss the Complaint under Rules 12(b)(1) and (h)(3) for lack of
subject-matter jurisdiction on the grounds that Plaintiff's claims are moot. FED. R. Civ. P.
12(b)(1), (h)(3). "The federal courts are courts of limited jurisdiction, their powers
circumscribed at their most basic level by the terms of Article III of the Constitution, which
states that they may hear only 'Cases' or 'Controversies." Russman v. Bd. of Educ. of Enlarged
City Sch. Dist. of City of Watervliet, 260 F.3d 114, 118 (2d Cir. 2001) (citing U.S. Const. art. III,
§ 2, ci. 1). "[A]t all times, the dispute before the court must be real and live, not feigned,
academic, or conjectural." Id. If a live controversy no longer exists, the case becomes moot and
a district court no longer "has subject-matter jurisdiction because any ruling or judgment issued

17

without [a live controversy] would be hypothetical in nature." F. 0. v. New York City Dep't of
Educ., 899 F. Supp. 2d 251, 254 (S.D.N.Y. 2012). "[A] plaintiff asserting subject matter
jurisdiction has the burden of proving by a preponderance of the evidence that it exists."

Viii. of

W. Hampton Dunes v. New York, 89 F.Supp.3d 433, 441 (E.D.N.Y. 2015) (quoting Morrison v.
Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008)) (internal quotation marks omitted).
"[A]rgumentative inferences favorable to the party asserting jurisdiction should not be drawn."
Id. (citing At!. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992))
(internal quotation marks omitted).
"Mootness is a recurring phenomenon in students' suits to vindicate constitutional rights
associated with the conditions of their education: .... As the student's interest evaporates, so does
the requisite case or controversy." Russman, 260 F.3d at 119. "A case becomes moot when
interim relief or events have eradicated the effects of the defendant's act or omission, and there is
no reasonable expectation that the alleged violation will recur." F. 0., 899 F. Supp. 2d at 254
(quoting Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 647 (2d Cir. 1998)).
In Steliato v. Board of Education of the Ellenville Central School District, the Court held
that the plaintiffs' claim for declaratory and injunctive relief was moot because after the lawsuit
was filed, the defendant conducted the very evaluation that the plaintiff wanted conducted, where
the plaintiffs wanted "the court to declare that the school district did indeed unduly delay" the
evaluation "in violation of IDEA" and "an order forcing the school district" to conduct the
evaluation. 842 F. Supp. 1512, 1516 (N.D.N.Y. 1994). Similarly in Browell v. Lemahieu, the
Court found that "[t]here is no effective relief that this Court can grant to Plaintiff[]" where the
defendant had already provided the plaintiff with the compensatory relief that the plaintiff sought

18

- summer school to make up for an eight-week educational interruption. 127 F. Supp. 2d 1117,
1126-27 (D. Ha. 2000).
Similarly here, under uncontested facts, at least until April 24, 2016 T.T. has been
receiving 15 hours of at-home therapy and that this is the very compensatory education that
Plaintiff sought in the Complaint for the 2013-14 school year. Defendant has been providing
such therapy for the past three years. The March 2013 Resolution Agreement provided for ten
hours a week through January 31, 2014. (PX E.) Defendant increased that amount, in two other
Resolution Agreements, to fifteen hours a week from April 24, 2014, through April 24, 2016.
(Def. Moving Memo. of Law, Deci. of Lyssa M. Sampson, Ex. A; Def.'s Reply Memo. of Law
in Support of its Motion to Dismiss, Decl. of Lyssa M. Sampson, Esq., Ex. A.) The IEP
commencing July 6, 2015 also calls for 15 hours of at-home ABA therapy. (Pl.'s Obj., Ex. C at
4.) Moreover, in March 2015, Defendant agreed to move T.T. out of a 6:1:1 public classroom
and place him in an appropriate private school program. (Def.'s Reply Memo. of Law in
Support of its Motion to Dismiss, Deci. of Lyssa M. Sampson, Esq., Ex. A at ¶ 1.)
Consequently, Plaintiff's claim for declaratory relief seeking that T.T. be moved out of a 6:1:1
public classroom and into a private school as well as his claim for compensatory ABA therapy
are moot.
An exception to the mootness doctrine is if the challenged conduct is "capable of
repetition, yet evading review." Spencer v. Kemna, 523 U.S. 1, 17 (1998). But it "applies only
in exceptional situations[.]" Id. One has to show both that: "(1) the challenged action is in its
duration too short to be fully litigated prior to cessation or expiration, and (2) there is a
reasonable expectation that the same complaining party will be subject to the same action
again[.]" Id. (internal quotation marks and citations omitted). "To create a reasonable

19

expectation of recurrence, repetition must be more than theoretically possible. Mere speculation
that the parties will be involved in a dispute over the same issue does not rise to the level of a
reasonable expectation or demonstrated probability of recurrence." Russman, 260 F.3d at 120
(citations omitted). Indeed, repetition must be "probable." Deeper Life Christian Fellowship,
Inc. v. Thomas Sobol, 948 F.2d 79, 82 (2d Cir. 1991).
Plaintiff argues that because the parties have disputed the issue of "1:1 instruction" since
September 2012 and Defendant "has consistently pursued the position that at-home services are
not necessary for T.T. to receive a FAPE," the "[p]arents have a reasonable expectation of
confronting this controversy every year . . . ." (Pl.'s Obj. ¶J 18, 19.) Since the first prong of the
exception to the mootness doctrine is not in dispute, 8 the Court will limit its discussion to the
second prong and determine whether Plaintiff has shown that there is a "reasonable expectation
of recurrence" that Plaintiff will continue to dispute Defendant's position on these issues.
In K C. v. New York City Education Department, the Court held that "the possibility that
Plaintiffs will initiate another administrative proceeding [to challenge the timeliness of SRO' s
decisions] appears remote" because the students would begin attending private school at the
expense of the department of education. No. 13 Civ. 5910, 2015 U.S. Dist. LEXIS 134043, at
*41 (S.D.N.Y. Sept. 30, 2015). Similarly here, where Defendant has agreed for the past three
years to provide 15 hours of at-home therapy and placed T.T. in private school, Plaintiff's
concern that Defendant will revert back to an IEP that places T.T. in a 6:1:1 public school
classroom with decreased at-home ABA therapy is too speculative to demonstrate "reasonable

8

Judge Orenstein concluded that the first prong of demonstrating that an issue is "capable of repetition, yet
evading review" is "easily satisfied" because "judicial review of an IEP invariably takes longer than the
duration of a school year to complete
(R&R 8, citing MR. v. S. Orangetown Cent. Sch. Dist., No. 10-CV1800, 2011 U.S. Dist. LEXIS 145177, at *14 (S.D.N.Y. Sept. 30, 2015)). Plaintiff raised no objection to this
conclusion.
...."

20

recurrence[,]" thereby failing to rise to the level of a "live case or controversy."

Van Wie

V.

Pataki, 267 F.3d 109, 115 (2d Cir. 2001) (dismissing the case as moot because the second prong
was not met).
Plaintiff s reliance on the ruling in Student Xv. New York City Department of Education
is misplaced because there, the school "vigorously defended" the JEP in the administrative
proceedings and refused to offer the services at issue. No. 07-CV-2316, 2008 U.S. Dist. LEXIS
88163, at *41 (E.D.N.Y. Oct. 30, 2008). But here, as Plaintiff himself has repeatedly noted,
Defendant offered no defense of the challenged IEP during the administrative process. And
more importantly, Defendant has on three occasions agreed to provide at-home therapy.
Plaintiffs reliance on Board of Education of the Hendrick Hudson Central School District v.
Rowley is also misplaced because, again, that case has no history of the school providing the very
relief that the plaintiff sought in that case. 458 U.S. 176 (1982).
Plaintiff raises that fact that on March 29, 2016, he received notification that T.T.'s athome therapy was scheduled to end on April 24, 2016. (Pl.'s Obj. ¶J 3, 4.) But this fact does not
change the Court's ruling that Plaintiffs claim for compensatory ABA therapy is moot. Plaintiff
and Defendant agreed on the March 4, 2015 Resolution Agreement which called for the end of
such services on April 24, 2016; the July 6, 2015 IEP echoed that end date in also providing for
this therapy. (Def.'s Reply Memo. of Law in Support of its Motion to Dismiss, Dee!. of Lyssa
M. Sampson, Esq., Ex. A at ¶ 1; Pl.'s Obj., Ex. C at 4.) As JEPs are to be reviewed annually (20
U.S.C. § 1414(d)(2-4)), they will call for services only for the next 12 months. Plaintiff has not
argued that the most current IEP does not provide for 15 hours of at-home therapy.
Moreover, neither the Court nor Plaintiff can predict whether Plaintiff will challenge
another IEP. The IEPs are to be reviewed at least annually and revised to reflect the child's

21

needs. 26 U.S.C. § 1414(d)(2-4). The issue under consideration under the IDEA is not the
at-home therapy, but whether Defendant is providing T.T. with a FAPE, an inquiry which
requires looking both at his school placement and the services provided. Heather S. v.
Wisconsin, 125 F.3d 1045, 1055 (7th Cir. 1997) ("whether Heather was described as cognitively
disabled, other health impaired, or learning disabled is all beside the point. The IDEA concerns
itself not with labels, but with whether a student is receiving a free and appropriate education. A
disabled child's individual education plan must be tailored to the unique needs of that particular
child"); Patskin v. Bd. of Ed. of Webster Centr. Sch. Distr., 583 F.Supp.2d 422, 429 (W.D.N.Y.
2008) ("Whether NHS is an appropriate placement for S.P. is not, however, the relevant issue.
The relevant controversy is whether the particular IEP with which S.P. was provided for the
2006-2007 school year was an appropriate placement ..."). Therefore, Plaintiff could disagree
on the number of hours of at-home ABA therapy while T.T. is placed in an appropriate private
school without being denied a FAPE.
In B.J S. v. State Educ. Dep 't/Univ. of the State off. Y., the Court struck down an
argument that is similar to the one that Plaintiff is making here. The Court held that "the fact
that Plaintiff has repeatedly challenged N.S.'s IEP for each school year since the 2002-2003
academic year, such that N.S. has remained in a pendency placement since 2003," fails to meet
the "requisite 'reasonable expectation' of repetition.... " 815 F.Supp.2d 601, 612-13 (W.D.N.Y.
2011) (the defendant's motion seeking dismissal of claims as moot was unopposed). The Court
reasoned that "[a] finding that Plaintiff has repeatedly challenged N.S.'s IEP would be based on a
presumption that Plaintiff will necessarily commence an administrative challenge to each IEP
developed for N.S., regardless of what is recommended by the CSE, an assertion the Second
Circuit has explicitly rejected . . . ." Id. (citing Lilibask v. Conn. Dep 't. of Educ., 397 F.3d 77, 86

22

(2d Cir. 2005) and "observing the Second Circuit requires a probability, rather than a possibility,
that repetition will occur").
For all these reasons, the Court rejects Plaintiff's arguments that there is a reasonable
expectation of recurrence that Plaintiff will again dispute T.T.'s school placement and the
provision of 15 hours of at-home ABA therapy.
D. REVIEW OF PLAINTIFF'S NEW CLAIMS IS BARRED
Plaintiff improperly chose to wait until Judge Orenstein issued the R&R to seek, for the
first time, an increase from 15 to 20 hours a week of compensatory ABA therapy. (Pl.'s Obj.

¶11 11, 12, 21, 22.) "[A] district court generally should not entertain new grounds for relief or
additional legal arguments not presented to the magistrate[,]"Ortiz, 558 F. Supp. 2d at 451,
especially if, as is the case here, "letting Plaintiff belatedly raise this theory would thwart the
efficiencies gained through the Magistrates Act and permit Plaintiff to change tactics after the
issuance of a report and recommendation." Stock Market Recovery Consultants Inc., 13-CV193, 2015 U.S. Dist. LEXIS 132786, at *8 (internal quotation marks and citation omitted); see In
re: Madison Bentley Assoc., LLC, 516 B.R. 724, 731 n.21 (S.D.N.Y. 2014) ("that argument was
raised for the first time in the trustee's objections [to the bankruptcy court's proposed findings]
and the Court thus declines to entertain it") (citing Ortiz, 558 F. Supp. 2d at 451).
Determining whether to grant the increase would entail determining whether Defendant
"depriv[ed]" T.T. of a FAPE such that compensatory ABA therapy is appropriate relief and then
determining whether 20 hours is the appropriate amount of such relief. Somoza, 538 F.3d at 109
n.2. Accordingly, although Plaintiff sought compensatory ABA therapy in the Complaint, the
Court construes this request in Plaintiff's Objections as a new claim. Plaintiff provides no
explanation for why he waited until after the R&R was issued to raise this claim. Accordingly,

23

the Court will not rule on it. Ortiz, 558 F. Supp. 2d at 451; In re: Madison Bentley Assoc., LLC,
516 B.R. at 731 n.21; see e.g., Kennedy v. Adamo, 02-CV-1776,2006 U.S. Dist. LEXIS 93900,
at * 1 (E.D.N.Y. Sept. 1, 2006) (even in a de novo review of a party's specific objections, the
court will not "consider arguments, case law and/or evidentiary material which could have been,
but was not,presented to the magistrate judge in the first instance") (citation and internal
quotation marks omitted), aff'd, 323 Fed. Appx. 34 (2d Cir. 2009).
Even if Plaintiff had sought 20 hours a week of compensatory ABA therapy in the
Complaint, the Court's review is barred because Plaintiff has not yet exhausted administrative
review of the claim. 20 U.S.C. § 1415(i)(2)(A); see Cave, 514 F.3d at 245 (remanded case and
directed the district court to dismiss plaintiffs' "complaint in its entirety for lack of subjectmatter jurisdiction due to plaintiffs-appellants' failure to exhaust the administrative remedies
available to them under the IDEA"); see e.g., R. C. v. Carmel Centr. Sch. Dist., 06 Civ. 5495,
2007 U.S. Dist. LEXIS 43697, at * 14 (S.D.N.Y. June 13, 2007) ("this Court is construed to deny
Plaintiffs' request for compensatory education for failure to exhaust administrative remedies").
Plaintiff only began administrative review of the claim on April 4, 2016, well after he filed the
instant lawsuit on June 11, 2014. (Memo. of Law in Resp. to Pl.'s Obj. to the Report and
Recommendation of Judge Orenstein, Dee!. of Lesley Berson Mbaye, Ex. A at 3.)
"It is well-established that a plaintiff must plead her claims in her complaint." EEOC v.
Bloomberg L.P., 967 F. Supp. 2d 816, 884 (S.D.N.Y. 2013) (citing FED. R. CIV. P. 8(a)(2),
Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998)); see also Eades v. Kennedy, PC
Law Offices, 799 F.3d 161, 174 n.4 (2d Cir. 2015) ("[o]n appeal, the Plaintiffs attempt to bring
new claims .... As the Plaintiffs failed to plead these claims in the amended complaint, we do
not consider them"). The Court will not rule on another new claim that Plaintiff raised in his

24

Objections - that Defendant violated the pendency provision because Plaintiff was notified that
the at-home therapy was scheduled to end on April 24, 2016. (Pl.'s Obj. ¶J 3, 20.) See Ortiz,
558 F. Supp. 2d at 451; In re: Madison Bentley Assoc., LLC, 516 B.R. at 731 n.21. Plaintiff
should have sought to amend the Complaint, as he has already done on another claim, or should
file a new complaint to allege a new violation by Defendant.
CONCLUSION
The Court adopts Judge Orenstein's R&R in its entirety. (ECF No. 48.) Defendant's
motion to dismiss the Complaint for lack of subject-matter jurisdiction under Federal Rules of
Civil Procedure 12(b)(1) and (h)(3) is granted (ECF No. 37). Plaintiff's cross-motion to amend
the Complaint is denied (ECF No. 42). The Complaint is dismissed (ECF No. 1). The Clerk of
Court is directed to close this case.
SO ORDERED.
/s/ Sandra L. Townes
SANDRA L. TOWNES
United States District Judge

5, 2017
Brooklyn, New

25