Luo v. Baldwin Union Free School District et al

Filing 34

MEMORANDUM & ORDER granting 12 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 16 Motion to Dismiss for Failure to State a Claim; granting 18 Motion to Dismiss Case as Frivolous; denying 19 Motion to Dismiss. For the foregoing reasons, Gibson and Briglio's motions to dismiss are GRANTED. The District and Gallo's partial motion to dismiss is GRANTED IN PART and DENIED IN PART. Plaintiff's motion to dismiss Briglio's coun terclaim is DENIED. Plaintiff's remaining claims, therefore, are his claim for IDEA administrative review, and his Section 1983 claims against Gallo and the District for (a) failing to consider information regarding B.L.'s placement in a C amphill-like setting and thus not providing Plaintiff a meaningful opportunity to recommend an educational placement, and (b) conducting administrative proceedings in which erroneous arguments were made and adopted. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. The Clerk of the Court is directed to terminate Gibson and Briglio as Defendants in this action; Robert Briglio and Susan M. Gibson terminated. The Clerk of Court is directed to mail a copy of this Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 3/21/2013. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
JENN-CHING LUO,
Plaintiff,
-againstBALDWIN UNION FREE SCHOOL DISTRICT,
MICHELLE GALLO, SUSAN M. GIBSON and
ROBERT BRIGLIO,

MEMORANDUM & ORDER
12-CV-3073(JS)(AKT)

Defendants.
------------------------------------X
APPEARANCES
For Plaintiff:
Jenn-Ching Luo, pro se
830 Hastings Street
Baldwin, NY 11510
For Defendants
District
and Gallo:

For Defendant
Gibson:

Jeltje DeJong, Esq.
Kelly E. Wright, Esq.
Devitt Spellman Barrett, L.L.P.
50 Route 111
Smithtown, NY 11787
Ralph A. Catalano, Esq.
Catalano, Gallardo & Petropoulous, L.L.P.
1565 Franklin Avenue
Mineola, NY 11501
Jennifer B. Ettenger, Esq.
Catalano, Gallardo & Petropoulous, L.L.P.
100 Jericho Quadrangle, Suite 326
Jericho, NY 11753

For Defendant
Briglio:

Martin J. Coleman, Esq.
Law Offices of Martin J. Coleman
100 Crossways Park Drive West, Suite 412
Woodbury, NY 11797

SEYBERT, District Judge:
Pro se Plaintiff Jenn-Ching Luo brought this action to
redress
Union

perceived
Free

shortcomings

School

District

in

the

(the

way

Defendant

“District”)

and

Baldwin
several

individual defendants addressed the educational needs of B.L.,
Plaintiff’s

disabled

child.

Plaintiff

sued

the

District,

Michelle Gallo (“Gallo”), Susan M. Gibson (“Gibson”), and Robert
Briglio (“Briglio,” and collectively “Defendants”); he asserts
violations of the Individuals with Disabilities Education Act
(“IDEA”), Section 1983 of Title 42 of the United States Code
(“Section 1983”), and Section 1985 of Title 42 of the United
States

Code

(“Section

1985”).

Currently

pending

before

the

Court are two motions to dismiss Plaintiff’s Complaint filed by
Gibson

and

Briglio,

dismiss

on

behalf

before

the

Court

counterclaim.

of
is

respectively,
the

District

Plaintiff’s

and

a

and

Gallo.

motion

partial

to

motion

Also

dismiss

to

pending

Briglio’s

For the following reasons, Gibson and Briglio’s

motions to dismiss are GRANTED; the District and Gallo’s partial
motion to dismiss is GRANTED IN PART and DENIED IN PART; and
Plaintiff’s motion to dismiss Briglio’s counterclaim is DENIED.
BACKGROUND
Plaintiff’s
Defendant
director

autistic

District.

(Compl.

of

pupil

services

child,
¶

5.)

for

the

2

B.L.,

is

Defendant
District

a

student

Gallo

(id.

¶

in

is

the

7),

and

Defendant Gibson is a legal consultant to the District (id.
¶ 8).
Plaintiff’s claims primarily center around a July 2011
Committee on Special Education (“CSE”) meeting and a subsequent
due process hearing in which Plaintiff and Defendants discussed
educational placement programs and placement recommendations for
B.L.

Prior to the CSE meeting, teachers had reported B.L.’s

“lack of motivation.”
solution,

Plaintiff

Pennsylvania.”

(Id. ¶ 17.)
visited

(Id. ¶ 20.)

In an attempt to find a

“Camphill

special

school

in

Plaintiff believed that Camphill

presented the kind of “natural-setting environment” that would
motivate B.L.

(Id. ¶ 21.)

As such, Plaintiff requested a

meeting with the District to discuss B.L.’s possible placement
at Camphill or a similar school.

(Id. ¶ 22.)

Plaintiff alleges that, although he shared information
about Camphill with Defendant Gallo, Gallo failed to prepare or
present any information about Camphill or a similar school at
the CSE meeting.

(Id. ¶¶ 24-26.)

Instead, Gallo presented a

flawed evaluation report from 2009 regarding B.L.
34.)
advised

Furthermore,
Gallo

to

evaluation report.

Plaintiff
continue

alleges

that

distributing

(Id. ¶¶ 32-

Defendant
the

Gibson

flawed

2009

(Id. ¶ 38.)

Plaintiff was apparently unsatisfied with the results
of the CSE meeting and thus filed a due process complaint.
3

The

District held an administrative hearing and appointed Defendant
Robert

Briglio

as

an

independent

hearing

officer

(“IHO”).

Plaintiff claims that at the hearing, Briglio erroneously placed
the burden on Plaintiff of demonstrating that Camphill is an
appropriate

placement

for

B.L.

(Id.

¶

51.)

In

addition,

Briglio accepted the “fabricated” and “baseless” arguments of
Gibson and erroneously ruled in the District’s favor.

(Id.

¶¶ 54-57.)1
In addition to the foregoing allegations, Plaintiff
asserts that the District generally has failed to provide B.L.
with a free appropriate public education (“FAPE”).

(Id. ¶ 10.)

In support, Plaintiff alleges that various test results reveal
that B.L. has not progressed in certain developmental areas, at
times

receiving

development.”

test

results

(Id. ¶¶ 12-13.)

that

demonstrate

“negative

According to Plaintiff, the

District has failed to help B.L. develop skills that would allow
him to participate in school activities with other students.
(Id. ¶ 14.)
needs

for

It has also failed to consider B.L.’s educational
the

development

of

an

educational

program.

(Id.

¶ 15.)

1

Plaintiff appealed Briglio’s decision to State Review Officer
(“SRO”) Deyoe. (Catalano Decl. 24.) On February 22, 2012, SRO
Deyoe upheld Briglio’s decision and dismissed Plaintiff’s
appeal. (Catalano Decl. Ex. I.)
4

DISCUSSION
Consistent with the Court’s duty to liberally construe
pro se pleadings, Soto v. Walker, 44 F.3d 169, 173 (2d Cir.
1995),

the

Court

reads

Plaintiff’s

Complaint

to

assert

the

following federal claims: first, a claim that all Defendants
violated IDEA by (a) failing to consider information regarding
B.L.’s placement at Camphill or a similar setting; (b) failing
to improve B.L.’s language and social skills; and (c) conducting
administrative

proceedings

in

which

erroneous

arguments

were

presented and adopted; second, a Section 1983 claim that all
Defendants deprived Plaintiff of his rights under IDEA for the
same reasons; third, Section 1983 and 1985 claims against Gallo
and Gibson for conspiring to violate Plaintiff’s rights under
IDEA; and fourth, a Section 1983 claim against Gallo, Gibson,
and Briglio for depriving Plaintiff of due process under the
Fourteenth Amendment.

The Complaint also asserts a state law

claim of negligence against Gallo.
Many of these claims are similar to those Plaintiff
raised in another case before this Court, Luo v. Baldwin Union
Free Sch. Dist. et al., No. 10-CV-1985 (“Luo I”).2

Thus, the

Court may periodically refer to its previous rulings in that
action.

2

Plaintiff’s current action involves events later in time than
those in Luo I.
5

The Court will first address the legal standard on a
motion

to

dismiss

before

addressing

the

parties’

substantive

arguments.
I.

Legal Standard
Gibson,

the

District,

and

Gallo,

move

to

pursuant to Federal Rule of Civil Procedure 12(b)(6).

dismiss
Briglio

moves to dismiss pursuant to Federal Rule of Civil Procedure
12(c).
In
Court

deciding

applies

a

Rule

12(b)(6)

“plausibility

“[t]wo working principles.”

motions

standard,”

to

which

dismiss,
is

guided

the
by

Ashcroft v. Iqbal, 556 U.S. 662,

678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); accord Harris v.
Mills, 572 F.3d 66, 71-72 (2d Cir. 2009).
Court

must

accept

“inapplicable

all

to

allegations

legal

as

First, although the

true,

conclusions;”

this

thus,

“tenet”

is

“[t]hreadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
accord Harris, 572 F.3d at 72.

Iqbal, 556 U.S. at 678;

Second, only complaints that

state a “plausible claim for relief” can survive a Rule 12(b)(6)
motion to dismiss.

Iqbal, 556 U.S. at 679.

Determining whether

a complaint does so is “a context-specific task that requires
the

reviewing

common sense.”

court

to

draw

on

its

judicial

experience

Id.; accord Harris, 572 F.3d at 72.

6

and

The

standard

for

evaluating

Briglio’s

motion

for

judgment on the pleadings, pursuant to Rule 12(c), is the same
as the standard for a motion to dismiss under Rule 12(b).
Karedes

v.

Ackerley

Grp.,

Inc.,

423

F.3d

107,

113

See

(2d

Cir.

2005).
In addition, because Plaintiff is litigating pro se,
the Court reads his Complaint liberally, see, e.g., Mancuso v.
Hynes, 379 F. App’x 60, 61 (2d Cir. 2010), and interprets his
papers

to

“raise

the

strongest

arguments

that

they

suggest”

Corcoran v. N.Y. Power Auth., 202 F.3d 530, 536 (2d Cir. 1999)
(quoting McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)).
II.

IDEA Violations
Plaintiff alleges that all Defendants violated IDEA

by:

(a)

failing

placement

in

to

Camphill

consider
or

a

information

similar

regarding

setting;

(b)

B.L.’s

failing

to

improve B.L.’s language and social skills; and (c) conducting
administrative

proceedings

in

which

erroneous

arguments

were

made and adopted.
A.

Individual Defendants
To the extent that Plaintiff intends to raise claims

of

an

IDEA

violation

against

individual

defendants

Gallo,

Gibson, and Briglio, this Court has previously held that the
IDEA does not provide for individual liability.

See Luo I, 2011

WL 941263, at *5 (E.D.N.Y. Mar. 15, 2011) (collecting cases).
7

Accordingly, Plaintiff’s IDEA claims against Gibson, Gallo, and
Briglio are DISMISSED.
B.

The District
In

support

of

addition,
its

the

motion

to

District’s
dismiss

memorandum

specifically

of

law

states

in

that

“Defendants do not move to dismiss the remaining claim, the IDEA
administrative review.”

(Docket Entry 16 at 1.)

as

claim

Plaintiff

brings

a

for

IDEA

Thus, insofar

administrative

review

against the District, this claim may proceed.
III.

Sections 1983 and 1985 Claims
Section 1983 provides, in relevant part that:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State or Territory or the
District of Columbia, subjects, or causes to
be subjected, any citizen of the United
States
or
other
person
within
the
jurisdiction thereof to the deprivation of
any rights, privileges or immunities secured
by the Constitution and laws, shall be
liable to the party injured in an action at
law.

42 U.S.C. § 1983.

To state a claim under this law, a plaintiff

must allege: (1) that the defendant acted under color of state
law; and (2) that as a result of the defendant’s actions, the
plaintiff

suffered

a

deprivation

of

his

or

her

rights

or

privileges as secured by the Constitution or laws of the United
States.

See Am. Mfr. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,

49-50, 119 S. Ct. 977, 985, 143 L. Ed. 2d 130, 143 (1999).
8

Section 1985 prohibits conspiracy to inference with one’s civil
rights.

42 U.S.C. § 1985.

A.

Gibson
Plaintiff
is

“Gibson

explicitly
sued

not

administrative

over

hearing.”

acknowledgement,

the

notes

in

her

Complaint

representation

(Compl.

Complaint

his

¶

a

in

the

Despite

39.)

raises

that

this

large

number

of

allegations against Gibson in connection with the due process
hearing and her representation of the District generally.

(See,

e.g.,

Court

Compl.

¶¶

39-45,

54-55,

59,

64,

66-69.)

The

presumes that Plaintiff raises these allegations primarily as a
means

of

providing

background

information

for

his

additional

claims.
The only substantive allegations against Gibson are
that she “advised Gallo to continuously distribute the flaw[ed]
2009 evaluation report” and that Gibson conspired with Gallo to
violate the IDEA.

(Id. ¶ 38.)

To the extent that Plaintiff’s

claims against Gibson arise out of her legal advice to Gallo or
in her role as advocate for the District, Gibson was not acting
under color of state law.
Dist.,
which
school

593

F.

alleged

Supp.
that

district,

526,

See Goetz v. Windsor Cent. Sch.
528-29

attorney

did

not

(N.D.N.Y.

rendered

allege

1984)

professional

conduct

(complaint,
advice

constituting

to

action

“under color of state law”); c.f. Polk Cnty. v. Dodson, 454 U.S.
9

312, 325, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981) (“[W]e decide
. . . that a public defender does not act under color of state
law when performing a lawyer’s traditional functions as counsel
to a defendant in a criminal proceeding.”).

To the extent that

Plaintiff claims that Gibson conspired to deny Plaintiff of his
rights,

Plaintiff’s

Complaint

contains

only

conclusory

allegations of conspiracy, which are insufficient to overcome a
motion to dismiss.

See Browdy v. Kapre, 131 F. App’x 751, 753

(2d Cir. 2005); Ciambriello v. Cnty. of Nassau, 292 F.3d 307,
324 (2d Cir. 2002).

Accordingly, Plaintiff’s Section 1983 and

1985 claims against Gibson are DISMISSED.
B.

Briglio
There is no dispute that Defendant Briglio was acting

under color of state law in his capacity as IHO.
Memo. of Law, Docket Entry 18 at 4.)
that

he

is

entitled

to

absolute

Plaintiff’s Section 1983 claims.
“A

judge

defending

(See Briglio’s

Briglio asserts, however,
judicial

immunity

against

The Court agrees.

against

a

section

1983

suit

is

entitled to absolute immunity from damages for actions performed
in his judicial capacity.”
1119

(2d

Cir.

1990).

Fields v. Soloff, 920 F.2d 1114,
“This

immunity

also

extends

to

administrative officials performing functions closely associated
with

the

examiner

judicial
or

process

administrative

because
law
10

the

judge

role
.

.

.

of
is

the

‘hearing

functionally

comparable to that of a judge.’”

Montero v. Travis, 171 F.3d

757, 760 (2d Cir. 1999) (quoting Butz v. Economou, 438 U.S. 478,
513, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978)).
presided

over

the

administrative

essentially challenges his rulings.
scenario

to

which

absolute

hearing,

Here, Briglio
and

Plaintiff

This is just the type of

judicial

immunity

applies.

Accordingly, Plaintiff’s Section 1983 claims against Briglio are
DISMISSED.3
C.

Gallo, and the District Generally
As with Briglio, Defendants do not raise any assertion

that Gallo was not acting under color of state law.

Thus, the

issue is whether Plaintiff has alleged the deprivation of a
federal right.
1.

IDEA Violations

As this Court has acknowledged in Luo I, the Second
Circuit

permits

IDEA-based

Section

1983

claims

where

the

plaintiff was denied the procedural or administrative remedies
that IDEA provides.

See Luo I, 2011 WL 941263, at *6 (citing

Streck v. Bd. of Educ. of East Greenbush Sch. Dist., 280 F.
App’x 66, 68 (2d Cir. 2008); Quackenbush v. Johnson City Sch.
Dist., 716 F.2d 141, 148 (2d Cir. 1983); K.M. ex rel. A.M. v.
3

To the extent that Plaintiff raises a Section 1983 claim
against Briglio regarding his failure to comply with applicable
regulations and governing timelines, said claims are also
DISMISSED as a result of Brilgio’s absolute immunity. (See,
e.g., Compl. ¶¶ 49-50.)
11

Manhasset

Union

Free

Sch.

Dist.,

No.

1071568, at *7 (E.D.N.Y. Apr. 20, 2006)).

04-CV-1031,

2006

WL

The Court finds that

Plaintiff’s claims regarding a failure to consider Camphill or a
similar setting and conduct administrative proceedings in which
erroneous

arguments

were

procedural

or

Therefore,

Plaintiff

violations.

made

administrative
may

However,

use

and

adopted

remedies
Section

Plaintiff’s

assert

that
1983

claim

denial

IDEA

to

that

provides.

redress
Gallo

of

those

and

the

District failed to improve B.L.’s language and social skills
does not assert such a claim, and thus, said Section 1983 claim
against Gallo is DISMISSED.
a.

Administrative Proceedings

Plaintiff’s claims regarding placement in Camphill and
the

flawed

administrative

Plaintiff raised in Luo I.
alleged

that

“misconduct

proceedings

mirror

those

that

For example, in Luo I Plaintiff
prevented

him

from

pursuing

his

grievances at an impartial due process hearing, and that the
state review process was a sham.”

Luo I, 2011 WL 941263, at *6.

Similarly, here, Plaintiff claims that he was deprived of an
impartial hearing, in part because Gallo withheld information at
the due process hearing and continued to disseminate a flawed
evaluation

report.

Thus,

Plaintiff

may

use

Section

1983

to

redress his claim that he was unable to pursue his grievances in
an impartial hearing.

See Taylor v. Vermont Dep’t of Educ., 313
12

F.3d 768, 790 (2d Cir. 2002) (“[I]f plaintiffs can demonstrate
that

there

is

no

relief

available

to

them

through

the

administrative process, they may [seek monetary damages for IDEA
violations pursuant to § 1983].”); Mrs. W. v. Tirozzi, 832 F.2d
748, 757 (2d Cir. 1987) (affirming the denial of a motion to
dismiss

a

Section

violations
hearing).

that

1983

were

claim

unable

where

to

be

the

plaintiffs

addressed

at

due

alleged
process

Therefore, the District and Gallo’s motion to dismiss

this claim is DENIED.
b.

Failure to Consider Camphill or Similar
Setting

In addition, Plaintiff’s claims that Gallo failed to
consider placement in Camphill or a similar environment and did
not disseminate information regarding Camphill arguably asserts
that

Plaintiff

was

denied

a

procedural

right

under

IDEA.

Parents are required members of the IEP team, and thus must be
afforded

a

meaningful

opportunity

to

make

recommendations

regarding the educational placement of their child.

34 C.F.R.

§§ 300.321, 300.322.
Plaintiff

alleges

that

Gallo

failed

to

disseminate

information regarding Camphill or a similar setting or raise
such

a

Liberally

concept

at

construing

the

CSE

these

meeting.

allegations,

(Compl.
the

Court

¶¶

24-28.)

reads

the

Complaint to assert that Plaintiff was not afforded a meaningful

13

opportunity to recommend an educational placement involving a
“natural setting” program.

See Concerned Parents & Citizens for

the Continuing Ed. of Malcolm X (PS 79) v. N.Y.C. Bd. of Educ.,
629

F.2d

751,

placement’

753

refers

(2d
only

Cir.
to

1980)
the

(“[T]he

general

term

type

program in which the child is placed.”).

‘educational

of

educational

Accordingly, in this

respect, Plaintiff has sufficiently alleged that he was deprived
of

a

federal

right

under

IDEA.

As

such,

the

District

and

Gallo’s motion to dismiss this claim is DENIED.
The Court notes, however, that Plaintiff does not have
a procedural right in the specific locational placement of his
child, as opposed to the educational placement.

See R.E. v.

N.Y.C. Dep’t of Educ., 694 F.3d 167, 191-92 (2d Cir. 2012) (“The
Department may select the specific school without the advice of
the parents so long as it conforms to the program offered in the
IEP.”); T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 420 (2d
Cir. 2009) (“Therefore, we conclude that because there is no
requirement in the IDEA that the IEP name a specific school
location, T.Y.’s IEP was not procedurally deficient for that
reason.”); F.L. ex rel. F.L. v. N.Y.C. Dep’t of Educ., No. 11CV-5131,

2012

WL

4891748,

at

*11

(S.D.N.Y.

Oct.

16,

2012)

(“Parents are entitled to participate in any decision regarding
the educational placement of their child.

14

Parents are not,

however, procedurally entitled to participate in the decision
regarding school placement.”).
Therefore,

to

the

extent

that

Plaintiff

alleges

an

IDEA violation regarding consideration of Camphill specifically,
such a claim is not cognizable.
c.

Failure to Improve B.L.’s Language and
Social Skills

Plaintiff’s

claims

regarding

a

failure

to

improve

B.L.’s language and social skills, however, do not relate to a
procedural or administrative remedy under IDEA.

The Complaint

does not identify how B.L.’s lack of progress was the result of
any failures to comply with procedural requirements of IDEA.
Rather, it asserts, in conclusory fashion, that the District did
not help B.L. improve his skills.
“never

helped

the

student

to

(Compl. ¶ 13 (The District

improve

his

language.”).)

“A

procedural violation generally concerns the process by which the
IEP and placement offer was developed and conveyed; on the other
hand, a substantive violation arises from a deficiency in the
programming being offered.”

P.K. ex rel. S.K. v. N.Y.C. Dep’t

of Educ. (Region 4), 819 F. Supp. 2d 90, 105 (E.D.N.Y. 2011).
Plaintiff’s
deficiencies

in

the

allegations
program,

“negative development.”

which

apparently

stem

from

allegedly

caused

B.L.’s

(Compl. ¶ 12.)

As Plaintiff has not

asserted deprivation of a procedural or administrative remedy

15

under

IDEA,

ground.
Gallo

he

cannot

sustain

a

Section

1983

claim

on

this

Thus, Plaintiff’s claim under Section 1983 relating to

and

the

District’s

alleged

failure

to

improve

B.L.’s

skills is DISMISSED.
d.

Conspiracy Claim against Gallo

For the same reasons asserted above with respect to
Defendant Gibson, the Court finds that Plaintiff’s claims of
conspiracy

are

insufficient.

Plaintiff

asserts

a

conclusory

allegation that Gallo and Gibson conspired with one another to
deny B.L. a FAPE.

(Comp. ¶ 38.)

This is insufficient, and

therefore Plaintiff’s claim in this respect is DISMISSED.
2.

Due Process

Plaintiff also asserts what appears to be a Section
1983

claim

clause.

based

on

the

Fourteenth

Amendment’s

due

process

Although the Complaint does not specify the nature of

Plaintiff’s due process claim, the Court reads the Complaint to
assert that the Defendants allegedly violated Plaintiff’s right
to due process when, at the administrative hearings, Defendants
District,

Gallo,

and

Gibson

presented,

accepted, erroneous and false arguments.

and

Defendant

Briglio

As the Court noted in

Luo I in connection with a similar claim, such a due process
claim must fail because it “is well settled

. . . that a

plaintiff

[Section

asserting

a

constitutionally

based

1983]

claim for procedural violations of the IDEA must establish a
16

constitutional violation ‘outside the scope of the IDEA.’”

(Luo

I at 20 (quoting Engwiller v. Pine Plains Cent. Sch. Dist., 110
F. Supp. 2d 236, 250 (S.D.N.Y. 2000).)

As Plaintiff’s claim in

this regarding is actionable under IDEA, his due process claim
fails.

Therefore, Plaintiff’s due process claim is DISMISSED.

D.

The District
In addition, the District seeks to dismiss Plaintiff’s

Section 1983 claims against it because Plaintiff has failed to
allege a Monell claim against it.
To

prevail

municipality,

a

on

a

plaintiff

The Court disagrees.

Section
must

1983

show

claim

“an

against

injury

to

a
a

constitutionally protected right . . . that . . . was caused by
a

policy

or

custom

of

the

municipality

or

by

a

official ‘responsible for establishing final policy.’”

municipal
Hartline

v. Gallo, 546 F.3d 95, 103 (2d Cir. 2008) (quoting Skehan v.
Village

of

Mamaroneck,

465

F.3d

96,

108-09

(2d

Cir.

2006),

overruled on other grounds by Appel v. Spridon, 531 F.3d 138,
140 (2d Cir. 2008)); see also Monell v. Dep’t of Soc. Servs. of
City of N.Y., 436 U.S. 658, 690-91, 98 S. Ct. 2018, 56 L. Ed. 2d
611

(1978).

“For

purposes

of

§

1983,

school

districts

are

considered to be local governments and are subject to similar
liability as local governments under Monell.”
Educ., 238 F. Supp. 2d 469, 475 (N.D.N.Y. 2002).

17

Booker v. Bd. of

The
allege

a

District

policy

or

asserts

practice

rights to be violated.
continuing
report

¶

which

Plaintiff
caused

his

has

failed

to

constitutional

However, the Complaint does allege a

violation--i.e.,

(Compl.

that

circulating

37)--and

alleges

a

a

depriving B.L. a FAPE (id. ¶¶ 10-16).

flawed

practice

evaluation

of

generally

Thus, Plaintiff alleges

“facts from which it could be plausibly inferred that such a
policy

or

custom

caused”

Westchester

Cnty.

953616,

*11

at

District’s

Dep’t

the
of

(S.D.N.Y.

motion

to

alleged

Corr.,

Apr.

dismiss

3,

violation.

No.

06-CV-2011,

2008).

Plaintiff’s

Harris

v.

2008

WL

Accordingly,
Section

1983

the

claims

against the District based upon Monell liability is DENIED.
IV.

State Law Negligence Claim
In

addition

to

his

federal

claims,

Plaintiff

also

brings a claim of common law negligence against Defendant Gallo.4
Gallo moves to dismiss this claim because it is essentially a
claim under the educational malpractice theory, which New York
courts have rejected.

The Court agrees.

“Where the essence of the complaint is that the school
breached

its

agreement

by

failing

to

provide

an

effective

education, the complaint must be dismissed as an impermissible
attempt to avoid the rule that there is no claim in New York for
4

The District has moved for dismissal of Plaintiff’s negligence
claim against it. However, the Court reads the Complaint to
assert a claim of negligence against Defendant Gallo only.
18

‘educational

malpractice.’”

Gally

v.

Supp. 2d 199, 206-07 (S.D.N.Y. 1998).
that

Gallo

“never

educational
(Compl.

took

environment

¶

19),

educational

that

needs

any

steps

which
“she

for

[the]

to

22

F.

assess

and

find

motivate

the

student”

presented

CSE

Univ.,

Here, Plaintiff alleges

could

never

Columbia

meeting

information
to

develop

an

of
an

appropriate educational program for the student” (id. ¶ 32), and
that

she

“continuously

distributed

evaluation report” (id. ¶ 35).

the

flaw

[sic]

2009

In making these allegations,

Plaintiff essentially attacks the professional judgment of Gallo
and requests that the Court review her decisions.

New York

courts have rejected the educational malpractice theory because
“public

policy

precludes

judicial

interference

with

the

professional judgment of educators and with educational policies
and practices.”

Suriano v. Hyde Park Cent. Sch. Dist., 203

A.D.2d 553, 554, 611 N.Y.S. 2d 20 (2d Dep’t 1994).
Court

finds

malpractice,

that
an

Plaintiff’s
untenable

claims

theory.

sound

in

Plaintiff’s

Thus, the
educational
claim

for

negligence against Gallo is therefore DISMISSED.
V.

Plaintiff’s Motion to Dismiss Briglio’s Counterclaim
Finally,

Plaintiff

seeks

counterclaim against Plaintiff.

to

dismiss

Briglio’s

On July 11, 2012 Briglio filed

his Answer to the Complaint and Counterclaim (Docket Entry 6).
In that submission, Briglio claims that Plaintiff filed this
19

lawsuit to “punish and/or publicly demean all defendants in this
case.”

(Id. ¶ 13)

Such “improper uses of the Complaint,”

according to Briglio, “constitute an abuse of process.” (Id. ¶
15.)

Plaintiff

seeks

dismissal

of

Briglio’s

counterclaim

because, he argues, it was not timely and Plaintiff’s claims are
not frivolous.
The Court notes that Briglio’s answer and counterclaim
were not untimely.

Federal Rule of Civil Procedure 12 provides

that a defendant must serve a responsive pleading within twentyone days after being served with the summons and complaint.
R. CIV. P. 12(a)(1).
June 20, 2012.

FED.

Briglio was served with the Complaint on

Briglio filed his answer and counterclaim, with

a copy to Plaintiff, on July 11, 2012.

(Docket Entry 6.)

Further, Plaintiff’s arguments that the Complaint is
not frivolous and does not constitute an abuse of process are
not enough to dismiss Briglio’s counterclaim.
has

three

essential

either

civil

excuse

or

or

elements:

criminal,

justification,

(2)
and

(1)
an
(3)

“Abuse of process

regularly
intent
use

to

of

issued
do

the

harm

without

process

in

perverted manner to obtain a collateral objective.”
DiMarzio,

Inc.,

216

(internal

quotation

F.
marks

Supp.
and

2d

139,

citation

142

process,

Jacques v.

(E.D.N.Y.

omitted).

a

2002)

Briglio’s

counterclaim alleges that Plaintiff has filed four other federal
court actions and various appeals, that Plaintiff intended to
20

publicly demean Defendants, and that Plaintiff had the ulterior
motive of seeking to punish Defendants.

Plaintiff’s arguments

may tend to show that he brought suit for a legitimate purpose,
and therefore did not have the requisite intent to harm.

At

this stage, however, Briglio’s counterclaim is plausible, and
thus satisfies the applicable pleading standards.
6-7.

Accordingly,

Plaintiff’s

motion

to

See supra at

dismiss

Briglio’s

counterclaim is DENIED.
In addition, the Court takes this opportunity to note
the quantity of foul language used in the Complaint.

(See,

e.g., Compl. ¶¶ 47, 50-52, 57 (characterizing Briglio’s conduct
and rulings as “bullshit”); id. ¶¶ 54-55 (describing Gibson as a
“big

asshole”);

parade”).)

id.

¶

70

(calling

the

hearing

an

“asshole

Plaintiff is warned that he will be sanctioned if he

continues to disrespect the dignity of the proceedings in the
future.

See Koehl v. Greene, 424 F. App’x 61, 62 (2d Cir. 2011)

(upholding

dismissal

“repeatedly

filing

derogatory

and

of

pro

documents

offensive

se

complaint

with

the

statements

as

court

regarding

a

sanction

for

that

contained

the

presiding

and

Briglio’s

magistrate judge and opposing counsel).
CONCLUSION
For
motions

to

the

dismiss

foregoing
are

reasons,

GRANTED.

The

Gibson

District

and

Gallo’s

partial motion to dismiss is GRANTED IN PART and DENIED IN PART.
21

Plaintiff’s motion to dismiss Briglio’s counterclaim is DENIED.
Plaintiff’s remaining claims, therefore, are his claim for IDEA
administrative review, and his Section 1983 claims against Gallo
and

the

District

for

(a)

failing

to

consider

information

regarding B.L.’s placement in a Camphill-like setting and thus
not providing Plaintiff a meaningful opportunity to recommend an
educational

placement,

and

(b)

conducting

administrative

proceedings in which erroneous arguments were made and adopted.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is denied for purpose of
an appeal.

Coppedge v. United States, 369 U.S. 438, 444-45, 82

S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to terminate Gibson
and Briglio as Defendants in this action and mail a copy of this
Order to the pro se Plaintiff.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March
21 , 2013
Central Islip, New York

22