GM v. Massapequa Union Free School District et al

Filing 26

MEMORANDUM & ORDER granting 12 Motion to Dismiss for Failure to State a Claim; granting 12 Motion to Dismiss for Lack of Jurisdiction; granting 15 Motion to Dismiss; For the foregoing reasons, both the motion of defendant Haber to dismis s the Complaint for lack of subject matter jurisdiction and failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Docket Entry 12) and the motion of the Supervisor Defendants to dismiss the Complaint for lack o f subject matter jurisdiction and for failure to state a claim pursuant to Federal Rules 12(b)(1) and 12(b)(6) (Docket Entry 15) are GRANTED. Plaintiff's Federal Claims are DISMISSED for lack of subject matter jurisdiction. Plaintiff's Stat e Claims are DISMISSED WITHOUT PREJUDICE to refiling in the appropriate court. The Clerk of the Court is directed to enter judgment consistent with this Memorandum and Order and to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 7/2/2015. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
GM, a minor, by his parent and
natural guardian, DM,
Plaintiff,
MEMORANDUM & ORDER
14-CV-4126(JS)(ARL)

-againstMASSAPEQUA UNION FREE SCHOOL
DISTRICT, MASSAPEQUA UNION FREE
SCHOOL DISTRICT BOARD OF EDUCATION,
MARIA HABER, individually and in her
official capacity, AMANDA LOWRY,
individually and in her official
capacity, DIANE SALES, individually
and in her official capacity, DOROTHY
AHL, individually and in her official
capacity, CHARLES SULC, individually
and in his official capacity, and
LUCILLE ICONIS, individually and in
her official capacity,

Defendants.
-------------------------------------X
APPEARANCES
For Plaintiff:
Steven A. Morelli, Esq.
The Law Offices of Steven A. Morelli, P.C.
1461 Franklin Ave.
Garden City, NY 11530
For Defendant
Haber:

For the Supervisor
Defendants:

Lewis R. Silverman, Esq.
Silverman & Associates
445 Hamilton Ave, Ste. 1102
White Plains, NY 10601

Steven C. Stern, Esq.
Susan Hull Odessky, Esq.
Sokoloff Stern LLP
179 Westbury Ave.
Carle Place, NY 11514

SEYBERT, District Judge:
Plaintiff
guardian,

DM

GM,

a

minor,

(“Plaintiff”),

by

his

commenced

parent

this

and

natural

action

against

defendants Massapequa Union Free School District (the “District”),
Massapequa Union Free School District Board of Education (the
“Board”), Maria Haber (“Haber”), Amanda Lowry (“Lowry”), Diane
Sales (“Sales”), Dorothy Ahl (“Ahl”), Charles Sulc (“Sulc”), and
Lucille Iconis (“Iconis,” and together with Lowry, Sales, Ahl,
Sulc, the District, and the Board, the “Supervisor Defendants”),
alleging,

inter

violation

of

alia,

the

that

Fourth

GM

was

(1)

Amendment,

unlawfully

U.S.

CONST.

seized
amend.

in
IV,

(2) discriminated against based on his disability in violation of
the

Americans

with

Disabilities

Act

of

1990

(“ADA”),

42 U.S.C. § 12101 et seq., the New York State Human Rights Law
(“NYSHRL”), N.Y. EXEC. LAW § 290 et seq., and the United States
Constitution;

and

(3)

subjected

to

various

state-law

torts.

Pending before the Court are Haber’s and the Supervisor Defendants’
respective motions to dismiss the complaint for lack of subject
matter jurisdiction and failure to state a claim pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
Entries 12, 15.)

(Docket

For the following reasons, both motions are

GRANTED.

2

BACKGROUND1
GM, a thirteen year-old2 boy diagnosed with attention
deficit hyperactivity disorder (“ADHD”), is a student at the
McKenna

Elementary

(Compl., ¶¶ 7, 10.)
full

reaches

of

School,

a

facility

within

the

District.

Although the Complaint does not describe the

GM’s

disability,

it

does

explain

that

disability sometimes leads to uncontrollable fidgeting.
¶ 41.)

his

(Compl.

GM also exhibits certain “ticks” when he is stressed or

nervous; he chews his shirt sleeve, pulls his hair out, and licks
his fingers.
up

with

(Compl. ¶ 19.)

assignments.

mishandling

GM’s

He also has some difficulty keeping

(Compl.

disability,

toward a productive education.

¶

45.)

Defendants

DM

explains

thwarted

that

his

by

efforts

(Compl. ¶ 47.)

GM’s troubles at school began in January 2011, when Haber
began teaching his fourth-grade class.

(Compl. ¶ 18.)

The

Complaint alleges that Haber would routinely discipline GM for
“actions

that

disability.”

were

the

uncontrollable

(Compl. ¶ 27.)

byproduct

of

his

Haber’s key disciplinary measure

involved segregating GM from the class by sending him to a back

The following facts are drawn from the Complaint and are
assumed true for the purposes of these motions.
1

The Complaint is unclear as to GM’s age at the time of the
filing; some allegations describe him as twelve, (Compl. ¶ 1),
others thirteen (Compl. ¶ 7). Either way, the Court’s analysis
is the same.
2

3

room of the classroom.

(Compl. ¶¶ 28, 29.)

The room had a window,

and it contained school and kitchen supplies. (Compl. ¶ 30.) While
in

that

room,

GM

could

participate in class.

not

see

the

chalkboard

(Compl. ¶ 30.)

or

otherwise

Haber did not assign GM

separate work when she sent him to the storage room; her only
instructions were to “have fun.”

(Compl. ¶ 31.)

Haber sent GM to

this storage room multiple times per week, sometimes every day,
and sometimes multiple times per day. (Compl. ¶ 29.) The duration
of his trips to the back room is not alleged.
In

March

2011,

DM

learned

that

disciplined with trips to the back room.

her

son

was

(Compl. ¶ 39.)

being

DM first

brought the matter to the attention of the School’s Principal
Amanda Lowry and school psychologist Dorothy Ahl, but neither took
action.

(Compl. ¶ 43.)

She then contacted the Superintendent of

the District, Charles Sulc, who ignored DM’s calls. (Compl. ¶ 48.)
Finally, DM wrote to the Board, but they too failed to respond.
(Compl. ¶¶ 48, 50.)
The following academic year, GM was elected to a student
council position.
divested

GM

(Compl. ¶ 52.)

of

(Compl. ¶ 51.)
his

position

as

At some point, Defendants
a

disciplinary

measure.

Though the Complaint alleges GM was targeted, it

is entirely devoid of any circumstances surrounding this event,
including who stripped GM of his position or what GM did to warrant
such a punishment.

(Compl. ¶ 52.)
4

During GM’s sixth-grade year (2012-2013), he continued
to

receive

detention

“for

problems

associated

with

his

disability.” (Compl. ¶ 55.) Additionally, DM repeatedly requested
that Defendants provide GM with constant adult supervision so that
he would not be bullied by other students.

(Compl. ¶¶ 72, 83.)

Defendants provided no such supervision, and as a result, other
students frequently bullied GM.

(Compl. ¶¶ 56-82.)

The Complaint

recounts a number of instances where GM was bullied both verbally
and physically by other students, and it alleges that the bullying
was a direct result of Defendants’ failure to provide the added
adult supervision.

(Compl. ¶¶ 73, 83.)

Students who bullied GM

were allegedly either not disciplined at all or not sufficiently
disciplined.

(Compl. ¶¶ 59, 66, 69, 81.)

As a result of GM’s alleged mistreatment, DM brings eight
causes

of

action

on

his

behalf:

(1)

a

claim

for

disability

discrimination in violation of the NYSHRL; (2) a Section 1983 claim
for unlawful seizure in violation of the Fourth Amendment; (3) a
Section 1983 action for violation of GM’s Fourteenth Amendment
right to due process; (4) a Section 1983 action for violation of
GM’s

right

to

equal

protection;

(5)

a

claim

of

disability

discrimination in violation of the ADA; (6) a claim for negligent
hiring and administration of discipline; (7) a claim for negligence
per se; and (8) a claim for negligent infliction of emotional
distress.

For simplicity’s sake, the Court refers to Plaintiff’s
5

first, sixth, seventh, and eight causes of action as the “State
Claims,” and second, third, fourth, and fifth causes of action as
the “Federal Claims.”
DISCUSSION
The Court first considers whether it has subject matter
jurisdiction over Plaintiff’s claims.

Because it concludes that

it lacks subject matter jurisdiction over Plaintiff’s Federal
Claims and declines to exercise its supplemental jurisdiction over
Plaintiff’s State Claims, the Court does not reach the merits of
Defendants’ 12(b)(6) arguments.
I.

Legal Standard
“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.”
United States, 201 F.3d 110, 113 (2d Cir. 2000).

Makarova v.

In resolving a

motion to dismiss for lack of subject matter jurisdiction, the
Court may consider affidavits and other materials beyond the
pleadings.

See Morrison v. Nat’l Austl. Bank, Ltd., 547 F.3d 167,

170 (2d Cir. 2008).

Though the Court must accept the factual

allegations contained in the Complaint as true, it will not draw
argumentative inferences in favor of Plaintiff; subject matter
jurisdiction must be shown affirmatively.

See id.; Atl. Mut. Ins.

Co. v. Balfour Maclaine Int’l Ltd., 968 F.2d 196, 198 (2d Cir.
1992); Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d
6

Cir. 1998).

“A plaintiff asserting subject matter jurisdiction

has the burden of proving by a preponderance of the evidence that
it exists.”
II.

Makarova, 201 F.3d at 113.

Federal Claims
The

Individuals

with

Disabilities

Education

Act

(“IDEA”), 20 U.S.C. § 1400 et seq., endeavors to provide disabled
students

with

a

free

appropriate

public

education,

and

it

establishes a series of administrative avenues to remedy any
interference

with

that

endeavor.

As

used

here,

“education” encompasses more than simply academics.

the

term

Cave v. E.

Meadow Union Free Sch. Dist., 514 F.3d 240, 248 (2d Cir. 2008)
(internal quotation marks and citation omitted).

Thus, parents

are entitled to “present a complaint with respect to any matter
relating to the identification, evaluation, or education placement
of the child, or the provision of free appropriate public education
to such child.”
In
remedies,

the

20 U.S.C § 1415(b)(6)(A) (emphasis added).

addition
IDEA

to

establishing

divests

federal

various

courts

of

administrative
subject

matter

jurisdiction over claims asserted by plaintiffs who have not first
exhausted those remedies.3

20 U.S.C. § 1415(i)(2)(A); see also,

Although other Circuits have held that a failure to exhaust
administrative remedies under the IDEA does not divest a court
of subject matter jurisdiction, but instead is an affirmative
defense, the Second Circuit had refused to do so. See Cave, 514
F.3d at 245; Baldessarre v. Monroe-Woodbury Cent. Sch. Dist.,
496 F. Appx. 131, 134 (2d Cir. 2012) (“The District Court’s
3

7

e.g., Cave, 514 F.3d at 245.

“The purpose of the exhaustion rule

is to ‘channel disputes related to the education of disabled
children

into

administrators’
grievances.’”

an

administrative

expertise

in

the

process
area

and

that

could

promptly

apply
resolve

Id. at 245-46 (quoting Polera v. Bd. of Educ. of

Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 487 (2d Cir.
2002)); Crocker v. Tennessee Secondary Sch. Athletic Ass’n, 873
F.2d 933, 935 (6th Cir. 1989) (discussing the IDEA’s predecessor,
the Education for All Handicapped Children Act, and explaining,
“Federal courts--generalists with no expertise in the educational
needs of handicapped students--are given the benefit of expert
factfinding by a state agency devoted to this very purpose.”).
Even where a plaintiff’s causes of action arise from
sources other than the IDEA, such as the ADA or the Constitution,
the IDEA’s exhaustion requirement applies if those claims “assert
claims for relief available under the IDEA.”

Cave, 514 F.3d at

246 (emphasis in original) (applying exhaustion requirement to ADA
claim); In re Intravaia v. Rocky Point Union Free Sch. Dist., 919
F.

Supp.

2d

285,

292

(E.D.N.Y.

2013)

(applying

exhaustion

requirement to claim arising under 42 U.S.C. § 1983); see also 20
U.S.C. § 1415 (“Nothing in [the IDEA] shall be construed to

holding that the plaintiffs’ failure to exhaust the IDEA’s
administrative remedies required dismissal of their complaint
was clearly compelled by our Circuit precedent.”).
8

restrict or limit the rights, procedures, and remedies available
under . . . other Federal laws protecting the rights of children
with disabilities, except that before the filing of a civil action
under such laws seeking relief that is also available under this
subchapter, the procedures under subsections (f) and (g) shall be
exhausted to the same extent as would be required had the action
been brought under [the IDEA].”).
The Second Circuit has repeatedly emphasized the breadth
of the IDEA’s exhaustion requirement.

For example, in Cave, the

Second Circuit directed dismissal of an ADA claim based upon a
school’s refusal to allow a hearing-impaired student to bring his
service dog to school.
that

the

plaintiff’s

514 F.3d at 248.
ADA

claims

The Second Circuit held

were

subject

to

the

IDEA’s

exhaustion requirement because they were “not entirely beyond the
bounds of the IDEA’s educational scheme.”
Monroe-Woodbury

Cent.

Sch.

Dist.,

820

Id.
F.

In Baldessarre v.

Supp.

2d

490,

496

(S.D.N.Y. 2011), the court held that a student’s ADA claim that
his

teacher

was

deliberately

hostile

to

him

based

upon

disability was subject to the IDEA’s exhaustion requirement.

his
A

three-judge panel of the Second Circuit affirmed, explaining,
“[t]he District Court’s holding that the plaintiffs’ failure to
exhaust the IDEA’s administrative remedies required dismissal of
their complaint was clearly compelled by our Circuit precedent.”

9

In re Baldessarre v. Monroe-Woodbury Cent. Sch. Dist., 496 F. App’x
at 134.
Plaintiff

does

not

allege

the

administrative requirements of the IDEA.

satisfaction

of

the

Nor does he argue that

any exception to this exhaustion requirement is applicable.

As a

consequence, whether the Court has subject matter jurisdiction
over Plaintiff’s Federal Claims turns on whether they are subject
to the exhaustion requirement of the IDEA.
Plaintiff’s Federal Claims are subject to the IDEA’s
exhaustion requirement because they indisputably relate to and are
inextricably intertwined with GM’s access to a free appropriate
public education.
uncontrollable

side

That Haber inappropriately disciplined the
effects

of

GM’s

disability,

or

that

she

employed teaching and disciplinary measures that exacerbated,
rather

than

accommodated

GM’s

disability

squarely within the province of the IDEA.

are

issues

falling

See In re Baldessarre,

496 F. App’x at 134; Intravaia, 919 F. Supp. 2d at 289, 292
(allegations that student was punished for her disability subject
to exhaustion requirement.

Likewise, the Supervisor Defendants’

alleged failure to provide GM with additional adult supervision-which resulted in his being bullied by other students--is another
alleged impediment to GM’s entitlement to a free appropriate public
education subject to the IDEA’s exhaustion requirement. See, e.g.,
T.K. v. N.Y.C. Dep’t of Educ., 779 F. Supp. 2d 289, 312 (E.D.N.Y.
10

2011)

(allegations

that

school

failed

to

prevent

disabled

student’s bullying subject to the IDEA’s exhaustion requirement);
Wang v. Williamsville Cent. Sch. Dist., No. 08-CV-0575, 2010 WL
1630466, at *1 (W.D.N.Y. Apr. 21, 2010) (same).

In short, none of

Plaintiff’s Federal Claims are “entirely beyond the bounds of the
IDEA’s educational scheme,” and they are therefore subject to the
requirement of administrative exhaustion.4

See Cave, 514 F.3d at

248.
To cement its conclusion that Plaintiff’s Federal Claims
all arise from conduct addressable under the IDEA, the Court need
look no further than paragraph eighty-three of the Complaint.
There, Plaintiff summarizes the basis of the Federal Claims:
“Defendants

failed

to

provide

[GM]

with

additional

adult

supervision, preferential seating, and modified assignments.

As

a result of their failure to provide GM with these services he has
been subject to multiple instances of harassment and bullying by
teachers, students, and administrators.”
the

Complaint

explains

that

(Compl. ¶ 83.)

Defendants

classified

Later,
issues

That Plaintiff here seeks monetary damages--a form of relief
unavailable under the IDEA--does not vitiate the requirement
of administrative exhaustion. See Polera, 288 F.3d at 488
(“‘[T]he theory behind the grievance may activate the IDEA’s
process, even if the plaintiff wants a form of relief that the
IDEA does not supply’” (quoting Charlie F. by Neil F. v. Bd. of
Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 991 (7th Cir.
1996))).
4

11

associated with GM’s disability as “behavioral” issues, in order
“to avoid paying for the proper servies [sic].”

(Compl. ¶ 86.)

These allegations make clear that Plaintiff’s suit challenges the
adequacy of the accommodations provided to a disabled student and-perhaps particularly in GM’s case--the often unfortunate and
disconcerting

consequences

thereof.

This

sort

of

challenge

"provides a textbook example of the types of cases justifying
administrative exhaustion.”

Hope v. Cortines, 872 F. Supp. 14, 21

(E.D.N.Y.), aff’d, 69 F.3d 687 (2d Cir. 1995)
Accordingly, Plaintiff’s Federal Claims are DISMISSED
for lack of subject matter jurisdiction.
III. State Claims
Having

found

that

the

Court

lacks

subject

matter

jurisdiction over Plaintiff’s Federal Claims, the Court declines
to

exercise

Claims.

supplemental

jurisdiction

See 28 U.S.C. § 1367(c)(3).

over

Plaintiff’s

State

Accordingly, Plaintiff’s

State Claims are DISMISSED WITHOUT PREJUDICE to refiling in the
appropriate court.
CONCLUSION
For the foregoing reasons, both the motion of defendant
Haber

to

dismiss

the

Complaint

for

lack

of

subject

matter

jurisdiction and failure to state a claim pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6) (Docket Entry 12) and the
motion of the Supervisor Defendants to dismiss the Complaint for
12

lack of subject matter jurisdiction and for failure to state a
claim pursuant to Federal Rules 12(b)(1) and 12(b)(6) (Docket Entry
15) are GRANTED.

Plaintiff’s Federal Claims are DISMISSED for

lack of subject matter jurisdiction.

Plaintiff’s State Claims are

DISMISSED WITHOUT PREJUDICE to refiling in the appropriate court.
The Clerk of the Court is directed to enter judgment consistent
with this Memorandum and Order and to mark this case CLOSED.

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

July
2 , 2015
Central Islip, New York

13