Tryon et al v. East Islip Union Free School District

Filing 18

MEMORANDUM & ORDER granting 6 Motion to Dismiss for Failure to State a Claim; For the foregoing reasons, Defendant's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Docket Entry 6) is GRANTED. Plaintif f's federal claims are DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. Plaintiffs' State Claims are DISMISSED WITHOUT PREJUDICE to refiling in the appropriate court. So Ordered by Judge Joanna Seybert on 11/19/2015. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
ANNE TRYON and DAVID TRYON on
behalf of their minor
daughter, A.T.,
Plaintiffs,
MEMORANDUM & ORDER
15-CV-1534(JS)(GRB)

-againstTHE EAST ISLIP UNION FREE SCHOOL
DISTRICT,

Defendant.
---------------------------------X
APPEARANCES
For Plaintiffs:
Ira Newman, Esq.
Brad A. Schlossberg, Esq.
Law Offices of Ira S. Newman
98 Cutter Mill Road, Suite 441-S
Great Neck, New York 11021
For Defendant:

Lewis R. Silverman, Esq.
Silverman & Associates
445 Hamilton Avenue, #1102
White Plains, New York 10601

SEYBERT, District Judge:
Plaintiffs Anne Tryon (“Mrs. Tryon”) and David Tryon
(“Mr. Tryon”) (collectively, “Plaintiffs”) commenced this action
on behalf of their minor daughter, A.T., against the East Islip
Union Free School District (“Defendant”) asserting claims pursuant
to

42

U.S.C.

§

1983

(“Section

1983”),

Section

504

of

the

Rehabilitation Act of 1973 (“Section 504”), and the Americans with
Disabilities Act (“ADA”), as well as state law claims for negligent
supervision or hiring, negligent infliction of emotional distress,

negligence, and negligence for failure to implement provisions of
the Dignity for All Students Act (“DASA”).
Presently pending before the Court is Defendant’s motion
to dismiss pursuant to Rule 12(b)(1) and (6). (Def.’s Mot., Docket
Entry 6.)

For the following reasons, Defendant’s motion is

GRANTED.
BACKGROUND1
A.T. attended schools under the control and supervision
of Defendant between 2010 and 2014.

(Compl. ¶¶ 21, 24.)

From

sixth through eighth grade (2010 through 2013), A.T. attended East
Islip Middle School (“EIMS”).

(Compl. ¶ 24.)

Islip High School (“EIHS”) in September 2013.

A.T. began East
(Compl. ¶ 21.)

A.T. has been diagnosed with “severe depression, anxiety
and mood disorder NOS.”2
I.

(Compl. ¶ 18.)

Bullying at East Islip Middle School
In or about June 2012, A.T. was subjected to bullying,

threats, and harassment by “Ji. K”, another seventh grade student,
and her sister, “Ja. K.,” a ninth grade student at EIHS.
¶¶ 26-27.)

(Compl.

Ji. K. told A.T. that “if she saw Ja. K. and her

The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.
1

The Complaint does not define the term “NOS.” The Court
assumes that this is an abbreviation for “not otherwise
specified.”
2

2

friends she should fear for her life and run because they were
going to hurt A.T.”
for her life.”

(Compl. ¶ 28.)

Ja. K. also told A.T. to “fear

(Compl. ¶ 29.)

That same month, Mrs. Tryon contacted Ms. Jones, EIMS’s
Assistant Principal, and advised her of Ji. K. and Ja. K.’s
bullying, threats, and harassment.

(Compl. ¶ 30.)

Mrs. Tryon

also reported Ji. K. and Ja. K.’s bullying to EIHS and the Suffolk
County Police Department.

(Compl. ¶¶ 31-32.)

Ji. K. and Ja. K.’s

bullying and harassment of A.T. continued throughout the 2012-2013
school year.

(Compl. ¶ 33.)

II. Bullying at East Islip High School
Ji. K., Ja. K., and students who were friends with Ja.
K. subjected A.T. to “bullying, harassment, threats and physical
assaults” at EIHS during the 2013-2014 school year.

(Compl. ¶¶

35-37.)
A.

The December 2013 Meeting
In or about December 2013, Mrs. Tryon met with Mr.

Bilotti, an Assistant Principal at EIHS, to discuss the bullying,
harassment, threats, and physical assault of A.T.

(Compl. ¶ 41.)

Mr. Bilotti advised that he would “get things done.”

(Compl.

¶ 42.)
Approximately

two

weeks

after

their

December

2013

meeting, Mrs. Tryon telephoned Mr. Bilotti and advised him that
A.T. “continued to be the subject of verbal bullying, harassment
3

and threats and . . . continued to be physically assaulted in the
hallways of [EIHS] by Ji. K, Ja. K., and their friends.”
¶ 43.)

(Compl.

Mr. Bilotti advised Mrs. Tryon that he would review the

security camera footage of the school hallways.

(Compl. ¶ 44.)

Plaintiffs believe that neither Mr. Bilotti, nor any other school
or district administrator or employee, reviewed the camera footage
or investigated Mrs. Tryon’s complaints.
B.

(Compl. ¶¶ 45-46.)

The December 18, 2013 Incident
On or about December 18, 2013, A.T. was bullied, harassed

and threatened by Ja. K., Ji. K., and their friends in EIHS’s
hallways.

(Compl. ¶ 47.)

A.T. was advised that a student who had

previously assaulted another student “had been recruited by Ji. K.
to beat up A.T.”

(Compl. ¶ 48.)

Mrs. Tryon reported this incident

to Mr. Bilotti and the Suffolk County Police Department on that
same day.

(Compl. ¶¶ 49, 55.)
On or about December 19, 2013, Mrs. Tryon telephoned Mr.

Bilotti and told him A.T.’s “mental health was deteriorating due
to the failure of the Defendant to address the incidents . . . .”
(Compl. ¶ 50.)

Mr. Bilotti advised Mrs. Tryon that the bullying

and harassment incidents were “in the past and that, ‘we have to
leave the past in the past.’”
that

neither

Mr.

Bilotti

(Compl. ¶ 51.)

nor

any

other

Plaintiffs believe
school

or

district

administrator or employee investigated Mrs. Tryon’s December 19,
2013 complaints.

(Compl. ¶ 52.)
4

C.

The January 11, 2014 Letter
On or about January 11, 2014, Mrs. Tryon mailed a

certified letter to EIHS’s Principal, Mr. Brenner (the “January
Letter”).

(Compl. ¶ 56.)

The January Letter advised that A.T.

was receiving treatment for anxiety and depression “due to the
preceding history of bullying, threats, harassment and assaults”
and requested that the Defendant “take immediate action to ensure
that

[A.T.’s]

school

day

harassment and assaults.”

was

free

from

bullying,

threats,

(Compl. ¶¶ 57-58.)

On or about January 13, 2014, Mrs. Tryon participated in
a conference call with Mr. Brenner, Mr. Bilotti, EIHS’s social
worker,

Mr.

DePasquale,

Constantino.

and

(Compl. ¶ 59.)

EIHS’s

school

psychologist,

Dr.

Mrs. Tryon was advised that she had

not given EIHS “the time required to do their job.” (Compl. ¶ 60.)
During this phone call, Mrs. Tryon requested that the Defendant
conduct

an

Plaintiffs

investigation
believe

investigation.
In

or

that

pursuant

to

Defendant

DASA.

did

not

(Compl.
conduct

¶

61.)

any

DASA

(Compl. ¶ 62.)
about

January

2014,

Mrs.

Tryon

spoke

to

the

Superintendent of defendant East Islip Union Free School District,
Linda Rozzi, by telephone.

(Compl. ¶ 66.)

Mrs. Tryon read the

January Letter aloud to Superintendent Rozzi, who advised that she
would meet with the administrative staff of EIHS and the bullying
“would be taken care of.”

(Compl. ¶ 67.)
5

On January 14, 2014, A.T. was admitted for observation
at Stony Brook University Hospital as a result of “suicidal
thoughts and ideations.”

(Compl. ¶ 64.)

Mrs. Tryon called EIHS’s

administration and advised that A.T. had been admitted to the
hospital.
D.

(Compl. ¶ 65.)
The January 21, 2014 Meeting
On January 21, 2014, Mr. and Mrs. Tryon attended a

meeting at EIHS with Mr. Bilotti, Mr. Brennen, Mr. DePasquale, and
Dr. Constantino.

(Compl. ¶¶ 68-69.)

During this meeting, “the

representatives of the District expressed anger at Anne Tryon . .
. [and] would not agree to or advise the Plaintiffs as to the steps
being taken to address the bullying, threats, harassment and
assault of A.T.”

(Compl. ¶¶ 70-71.)

Approximately three weeks later, Mrs. Tryon called Mr.
Bilotti and complained that A.T. was being bullied, threatened,
harassed, and assaulted at EIHS by Ji. K., Ja. K., and their
friends.

(Compl. ¶ 73.)

Mrs. Tryon advised that A.T. was called

“white trash” and told, on a daily basis, “that she was ‘a piece
of

shit,’

that

herself.’”

she

‘should

die’

and

that

she

should

‘kill

(Compl. ¶ 74.)
During several phone conferences in February 2014, Mrs.

Tryon again advised Mr. Bilotti, Mr. Brennen, Mr. DePasquale, and
Dr. Constantino of the continued bullying of A.T.
Mrs.

Tryon

“was

again

repeatedly
6

advised

by

(Compl. ¶ 76.)
the

District

representatives

that

they

were

investigating

the

bullying,

threats, harassment and assaults and that they would take care of
it.”

(Compl. ¶ 77.)
E.

The March 4, 2014 Incident
On March 4, 2014, A.T.’s friend informed her that Ji. K.

was “bragging in the high school locker room that she had destroyed
A.T. and ruined her life.”

(Compl. ¶ 78.)

On or about that same day, Mr. DePasquale called Mrs.
Tryon and told her to come to EIHS.

(Compl. ¶ 79.)

Mrs. Tryon

was advised by Mr. DePasquale and/or Dr. Constantino that A.T. had
“‘told off’” Mr. Bilotti and had essentially stated that “‘you are
not doing anything’ and ‘you are not going to do a fucking thing
until I am dead.’”

(Compl. ¶ 80.)

Following her meeting at EIHS, Mrs. Tryon took A.T. to
Stonybrook Medical Center.

(Compl. ¶ 81.)

A.T. began home

instruction in or about March 2014 and remained on home instruction
for the remainder of the 2013-2014 school year.
A.T.

was

hospitalized

at

South

Oaks

(Compl. ¶ 82.)

Medical

Center

for

psychological treatment from May 25, 2014 through June 2, 2014.
(Compl. ¶ 83.)
F.

A.T.’s Return to EIHS
In May 2014, Mrs. Tryon contacted Defendant3 to determine

The Complaint does not specify the person or persons that Mrs.
Tryon spoke with in May, 2014.
3

7

what measures would be taken to protect A.T. from continued
bullying.

(Compl. ¶ 84.)

Defendant advised that A.T. would not

be placed in classes with Ji. K. and that the school computer
system would contain notations that A.T. was to be “completely
separated” from Ji. K. and Ja. K.

(Compl. ¶ 85.)

In September

2014, Mrs. Tryon was provided with paperwork to complete for A.T.
to have a Section 504 evaluation.

(Compl. ¶ 87.)

A.T. returned to EIHS in September 2014 and discovered
that she was placed in five classes with Ji. K.
88.)

(Compl. ¶¶ 86,

A.T. also discovered that her locker was four lockers away

from Ji. K.’s locker. (Compl. ¶89.) The EIHS administration could
not explain why A.T. was placed in five classes with Ji. K. or why
A.T.’s locker was within close proximity to Ji. K.’s locker.
(Compl. ¶¶ 91-92.)
from EIHS.

Mr. and Mrs. Tryon immediately removed A.T.

(Compl. ¶ 90.)
A.T. was admitted to South Oaks Hospital for psychiatric

treatment from September 6, 2014 through September 12, 2014.
(Compl. ¶ 93.)

Upon her discharge from South Oaks Hospital, A.T.

attended the Newport Academy, where she received psychological
counseling

and

academic

through December 15, 2014.

instruction

from

(Compl. ¶ 94.)

September

12,

2014

A.T. was accepted to

St. John the Baptist, a private parochial school, in January 2014.
(Compl. ¶ 95.)

8

III. The Complaint
On March 24, 2015, Plaintiffs commenced this action
alleging seven causes of action on A.T.’s behalf: (1) a Section
1983

claim

based

on

a

violation

of

A.T.’s

right

to

equal

protection; (2) a claim for disability discrimination pursuant to
Section 504, 29 U.S.C. § 701 et seq.; (3) a claim for disability
discrimination pursuant to the ADA, 42 U.S.C. § 12101 et seq.; (4)
a state law claim for negligent supervision or hiring; (5) a state
law claim for negligent infliction of emotional distress; (6) a
state law claim for negligence; and (7) a claim for negligence
with respect to Defendant’s failure to implement the Dignity for
All Students Act (“DASA”), L.2010, ch. 482, § 2, New York Education
Law § 10 et seq.

(See generally Compl.)

Defendant moves to dismiss the Complaint pursuant to
Rule 12(b)(1) and (b)(6) arguing, inter alia, that the Court lacks
subject matter jurisdiction over Plaintiffs’ claims pursuant to
Section 1983, Section 504, and the ADA (collectively, the “Federal
Claims”) due to Plaintiffs’ failure to exhaust administrative
remedies. (Def.’s Br., Docket Entry 8, at 4-6.) Defendant further
alleges that to the extent the Court dismisses the Federal Claims,
it should also decline to exercise supplemental jurisdiction over
Plaintiffs’ state law claims for negligent supervision or hiring,
negligent infliction of emotional distress, negligence, and a

9

violation of DASA (collectively, the “State Law Claims”). (Def.’s
Br. at 15-23.)
DISCUSSION
The Court first considers the issue of subject matter
jurisdiction.

As set forth below, because the Court lacks subject

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

Legal Standard
To withstand a motion to dismiss, a complaint must

contain factual allegations that are sufficient to state a facially
“plausible” claim to relief.

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

678, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955 (2007)).
plausibility

standard

is

not

a

“probability

This

requirement”

and

requires “more than a sheer possibility that a defendant has acted
unlawfully.”

Id. (internal quotations and citations omitted).

While all allegations in the complaint must be accepted as true,
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
679.

The

Court’s

plausibility

determination

is

a

Id. at

“context-

specific task that requires the reviewing court to draw on its

10

judicial experience and common sense.”

Harris v. Mills, 572 F.3d

66, 72 (2d Cir. 2009) (internal quotation marks omitted).
“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).
required

to

determine

whether

it

jurisdiction prior to deciding a case.
F.3d 153, 157 (2d Cir. 2001).

possesses

Makarova v.
The Court is

subject

matter

Wynn v. AC Rochester, 273

Accord Morrison v. Nat’l Austl.

Bank, Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff’d, 561 U.S. 247,
130 S. Ct. 2869 (2008) (“Determining the existence of subject
matter jurisdiction is a threshold inquiry . . . .”).

The

plaintiff bears the burden of establishing that subject matter
exists by a preponderance of the evidence.

Makarova, 201 F.3d at

113.
II.

Federal Claims
The Individuals with Disabilities Act (“IDEA”) seeks to

“provide

disabled

students

with

a

‘free

appropriate

public

education’ in the least restrictive environment suitable for their
needs.”

Cave v. East Meadow Union Free Sch. Dist., 514 F.3d 240,

245 (2d Cir. 2008) (quoting Heldman ex rel. v. Sobol, 962 F.2d
148, 150 (2d Cir. 1992)).
Particularly,

the

IDEA

See generally 20 U.S.C. § 1400 et seq.
guarantees

that

parents

of

disabled

students have “‘both an opportunity for meaningful input into all
11

decisions affecting their child’s education and the right to seek
review of any decisions they think inappropriate.’”

Kalliope R.

ex rel. Irene D. v. N.Y. State Dept. of Educ., 827 F. Supp. 2d
130, 135 (E.D.N.Y. 2010) (quoting Cave, 514 F.3d at 245).

Indeed,

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.”

20 U.S.C § 1415(b)(6)(A).

In the

context of the IDEA, “education . . . encompasses more than simply
academics.”

Cave, 514 F.3d at 248 (internal quotation marks and

citation omitted).
It

is

well

settled

that

administrative

remedies,

including an impartial hearing and the appeal of the hearing
officer’s decision, must be exhausted prior to the commencement of
an action pursuant to the IDEA.

Kaliope, 827 F. Supp. 2d at 136.

“IDEA’s exhaustion requirement permits states and local agencies
to employ their educational expertise, ‘affords full exploration
of

technical

educational

issues,

furthers

development

of

a

complete factual record and promotes judicial efficiency by giving
these agencies the first opportunity to correct shortcomings in
their educational programs for disabled children.’”

Hope v.

Cortines, 872 F. Supp. 14, 19 (E.D.N.Y. 1995), aff’d, 69 F.3d 687
(2d Cir. 1995) (quoting Hoeft v. Tuscon Unified Sch. Dist., 967
F.2d 1298, 1303 (9th Cir. 1992)).
12

Even where an administrative

hearing and appeal does not resolve a dispute, these procedures
“‘will

at

least

have

produced

a

helpful

record

because

administrators versed in the relevant issues were able to probe
and illuminate those issues for the federal court.’”

Kalliope,

827 F. Supp. 2d at 137 (quoting J.S. ex. rel. v. Attica Cent. Sch.,
386 F.3d 107, 112-13 (2d Cir. 2004)).
A

“narrow

exception”

to

the

IDEA’s

exhaustion

requirement exists where “exhaustion would be futile because the
administrative
remedies.”

procedures

available

do

not

provide

adequate

Scaggs v. N.Y. Dept. of Educ., No. 06-CV-0799, 2007 WL

1456221, at *5 (E.D.N.Y. May 16, 2007) (internal quotation marks
and citations omitted).

Futility is established where plaintiff

demonstrates: “(1) that defendants failed to implement services
that

were

specified

[Individualized

or

Education

otherwise
Program],

clearly
or

(2)

stated

that

the

in

an

problems

alleged are systemic violations that cannot be addressed by the
available administrative procedures.”

Kalliope, 827 F. Supp. 2d

at 138 (internal quotation marks and citations omitted).

See also

Scaggs, 2007 WL 1456221, at *5 (plaintiff bears the burden of
demonstrating
requirement).

the

futility

exception

to

IDEA’s

exhaustion

Additionally, this Circuit has held that exhaustion

will be excused where the parents of the disabled child were not
notified of the remedies available to them. Weixel v. Bd. of Educ.
of City of N.Y., 287 F.3d 138, 149 (2d Cir. 2002) (holding that
13

“the failure of the defendants to notify plaintiffs of their
procedural rights under the IDEA deprived [them] of the opportunity
to take advantage of the procedural safeguards offered by the
statute.”) (internal quotation marks and citations omitted).

See

also MB v. Islip Sch. Dist., No. 14-CV-4670, 2005 WL 3756875, at
*8-9 (E.D.N.Y. Jun. 16, 2015).
The “systemic violation” exception to exhaustion is
applicable where the plaintiff “challenges ‘the framework and
procedures

for

assessing

and

placing

students

in

appropriate

educational programs . . . or [where the] nature and volume of
complaints [are] incapable of correction by the administrative
hearing process.’” Kalliope, 827 F. Supp. 2d at 138 (quoting J.S.,
386 F.3d at 114) (ellipsis and alterations in original).

On the

other hand, exhaustion of administrative remedies is required
where

plaintiff’s

characteristics,

claims

such

as

are
the

founded
sufficiency

[Individualized Educational Program].”
The

IDEA’s

exhaustion

in
of

“individual
a

child’s

Id.

requirement

also

applies

to

plaintiffs seeking relief under other federal statutes if relief
is also available under the IDEA.

J.S., 386 F.3d at 112 (holding

that plaintiffs’ Section 504 and Section 1983 claims were both
subject to the IDEA exhaustion requirement).

See, e.g., Intravaia

ex. rel. Intravaia v. Rocky Point Union Free Sch. Dist., 919 F.
Supp. 2d 285, 292 (E.D.N.Y. 2013); Hope, 872 F. Supp. at 19-24
14

(dismissing plaintiff’s claims pursuant to Section 1983, ADA, and
Title VI of the Civil Rights Act of 1964 based on failure to
exhaust IDEA requirements). See also 20 U.S.C. § 1415(l) (“Nothing
in [the IDEA] shall be construed to 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].”).
This Circuit has held that a plaintiff’s request for
monetary

damages

does

not

vitiate

the

IDEA’s

administrative

exhaustion requirement despite the fact that monetary damages are
not available pursuant to the IDEA.

Polera, 288 F.3d at 487-88.

Accord Stropkay v. Garden City Union Free Sch. Dist., 593 F. App’x
37, 40 (2d Cir. 2014); Skaggs, 2007 WL 1456221, at *4 (“As the
gravamen of plaintiffs’ action is a claim under IDEA, their request
for damages pursuant to other federal statutes and state tort law
does

not

allow

them

to

evade

the

statute’s

exhaustion

requirement.”).
Plaintiffs do not dispute that they have not exhausted
their administrative remedies.
Entry 14).

(See generally Pls.’ Br., Docket

Instead, Plaintiffs argue that “[w]here the failure to

provide a free and appropriate public education is merely a
15

collateral result of a defendants alleged conduct and the gravamen
of the complaint is . . . for compensatory damages stemming from
a

District’s

alleged

indifference

to

disability

based

discrimination under the ADA and [Section 504], a plaintiff need
not allege exhaustion of administrative remedies, because the
relief sought is beyond the scope of the IDEA.”

(Pls.’ Br. at 4

(citing to Preston v. Hilton Cent. Sch. Dist., 876 F. Supp. 2d
235, n. 1 (W.D.N.Y. 2012)).)

The Court disagrees.

First, the Court is not persuaded by Plaintiffs’ attempt
to style the Complaint as a claim for “indifference to disability”
that is purportedly beyond the purview of the IDEA.
4.)

(Pls.’ Br. at

As previously noted, it is well-settled that the IDEA is

applicable to other federal statutes where relief is also available
under the IDEA.
alleges

that

harassment,

J.S., 386 F.3d at 112.

A.T.
and

was

subjected

physical

and

to

The Complaint expressly

discrimination,

emotional

abuse

bullying,

based

on

her

disability and that as a result of Defendant’s allegedly inadequate
response,

“A.T.

was

discriminatorily

deprived

of

educational

benefits, specifically, a supportive, scholastic environment free
from discrimination and harassment.”
117, 125, 131, 138.)

(See, e.g., Compl. ¶¶ 111,

Particularly, Plaintiffs’ Section 1983 claim

asserts that “Defendant deprived A.T. of the right to be free from
invidious discrimination due to her disability as guaranteed by
the [ADA] and [Section 504].”

(Compl. ¶ 111.)
16

With respect to

Plaintiffs’ Section 504 and ADA claims, the Complaint alleges that
A.T. qualified for the school’s services, which included “the right
to a safe and bullying-free educational environment, and to a
school with systemic and protective responses to the abuse of
students based upon their disability.”

(Compl. ¶¶ 122, 136.)

Thus, Plaintiffs’ claims are founded in “‘grievances related to
the education of disabled children,’” and they are required to
exhaust the IDEA’s administrative remedies prior to filing suit in
federal court.

Stropkay, 593 F. App’x at 40 (quoting Polera, 288

F.3d at 481).
Plaintiffs’ reliance on Preston is equally unavailing.
The

Preston

argument

that

Court
the

included
IDEA

a

footnote

exhaustion

rejecting

requirement

defendants’

was

applicable

because “the gravamen of the plaintiffs’ claims is not the denial
of a [free appropriate public education] to A.P., but a request
for compensatory damages stemming from the District’s alleged
indifference

to

the

disability-based

discrimination suffered by A.P.”
n.1.

and

gender-based

Preston, 876 F. Supp. 2d at 245,

The case at bar is distinguishable from Preston in that

Plaintiffs do not assert any claims based on gender discrimination.
(See generally Compl.)

Moreover, Preston appears to be an outlier

in declining to apply the IDEA to claims founded in a school
district’s failure to sufficiently respond to disability-based
bullying.

See, e.g., GM v. Massapequa Union Free Sch. Dist.,
17

No. 14-CV-4126, 2015 WL 4069201 (E.D.N.Y. July 2, 2015); MB, 2015
WL 3756875, at *7; T.K. v. N.Y. City Dept. of Educ., 779 F. Supp.
2d 289 (E.D.N.Y. 2011); Wang v. Williamsville Cent. School Dist.,
No. 08-CV-575S, 2010 WL 1630466 (W.D.N.Y. Apr. 21, 2010).
Moreover,

this

District

has

previously

rejected

an

argument nearly identical to that asserted by Plaintiffs with
respect to the application of the IDEA.

In M.B. v. Islip School

District, Plaintiffs alleged that R.B., a teenager who suffered
from Tourette’s syndrome and anxiety disorder, was bullied based
on his disability, received disparate discipline based on his
disability, and was denied the opportunity to benefit from the
defendant school district’s educational services.
3756875, at *2, 7.

M.B., 2015 WL

The M.B. plaintiffs argued that the IDEA’s

exhaustion requirement did not apply because “[the] complaint
alleges

deliberate

indifference

to

bullying,

harassment

and

discrimination of [R.B.] by teachers, administrators, and other
students, based on [R.B.’s] disability, and thus . . . allege
discrimination beyond a mere violation of the IDEA . . . .”
at *7 (internal quotation marks and citations omitted).

Id.

The Court

held that the IDEA applied because plaintiffs’ federal claims
“relate

to

the

interplay

between

RB’s

disability

and

the

educational services provided to him and/or his treatment by
teachers and school administrators.”

18

Id.

Second,

the

fact

that

Plaintiffs

are

seeking

compensatory damages has no bearing on the applicability of the
IDEA.

(Pls.’ Br. at 4.)

See Polera, 288 F.3d at 487-88 (“The

fact that [plaintiff] seeks damages, in addition to relief that is
available under the IDEA, does not enable her to sidestep the
exhaustion requirements of the IDEA.”)
Third, the Complaint does not set forth any basis for
the application of the futility exception to the IDEA’s exhaustion
requirement.

See Kalliope, 827 F. Supp. 2d at 138 (futility is

established where defendants failed to implement services set
forth in an Individualized Education Program or the complaint
alleges

“systemic

violations”

administrative procedures).
Individualized

Education

generally Compl.)

that

cannot

be

remedied

by

The Complaint does not allege that an

Program

was

created

for

A.T.

(See

Moreover, the “systemic violation” exception is

inapplicable because Plaintiffs are not challenging “the framework
and procedures for assessing and placing students in appropriate
educational programs,” and the Complaint does not allege that the
“nature and volume of complaints [are] incapable of correction by
the administrative hearing process.”

J.S., 386 F.3d at 114.

Although Plaintiffs allege in their opposition papers
that Defendant “never advised the Plaintiffs that their daughter
could be evaluated for an Individualized Educational Program nor
of their right to appeal any determination by the District not to
19

provide such a program,” this allegation does not appear in the
Complaint.

(See Pls.’ Br. at 6; Compl. (emphasis in original).)

Parenthetically, the Court notes that the Complaint does allege
that Mrs. Tryon was provided with paperwork to complete for a
Section 504 evaluation.

(Compl. ¶ 87.)

Accordingly, Plaintiff’s federal claims are DISMISSED
WITHOUT PREJUDICE due to the Court’s lack of subject matter
jurisdiction
III. State Claims
The Court declines to exercise supplemental jurisdiction
over Plaintiffs’ State Claims in light of its lack of subject
matter

jurisdiction

over

Plaintiff’s

Federal

Claims.

See

28 U.S.C. § 1367(c)(3). Accordingly, Plaintiff’s State Claims are
DISMISSED WITHOUT PREJUDICE to refiling in the appropriate court.
CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)
(Docket Entry 6) is GRANTED.
DISMISSED

WITHOUT

jurisdiction.

PREJUDICE

Plaintiff’s federal claims are
for

lack

of

subject

matter

See JetBlue Airways Corp. v. CopyTele Inc., No. 15-

CV-0086, 2015 WL 616774 (2d Cir. Oct. 21, 2015) (“‘Article III
deprives federal courts of the power to dismiss a case with
prejudice

where

federal

subject

20

matter

jurisdiction

does

not

exist.’”) (quoting Hernandez v. Conriv Realty Assocs., 183 F.3d
121, 123 (2d Cir. 1999)).
Plaintiffs’ State Claims are DISMISSED WITHOUT PREJUDICE
to refiling in the appropriate court.

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

November 19 , 2015
Central Islip, New York

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