Killoran et al v. Westhampton Beach School UFSD et al

Filing 26

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATIONS adopting Report and Recommendations as to 22 Report and Recommendations; granting 12 Motion to Dismiss for Failure to State a Claim; granting 12 Motion to Dismiss for Lack of Jurisdicti on. IT IS HEREBY ORDERED that, having ADOPTED the R&R in its entirety: (1) Plaintiffs' Objection is OVERRULED; (2) Defendants' Dismissal Motion for lack of subject matter jurisdiction is GRANTED and, thereafter; (3) The Clerk of Court is directed to close this case. So Ordered by Judge Joanna Seybert on 3/31/2021. C/ECF (Valle, Christine)

Case 2:20-cv-00269-JS-SIL Document 26 Filed 03/31/21 Page 1 of 11 PageID #: 417

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------x
CHRISTIAN KILLORAN, on behalf of his
Son, A.K., CHRISTIAN KILLORAN,
and TERRIE KILLORAN,
Plaintiffs,

MEMORANDUM & ORDER
20-CV-0269(JS)(SIL)

-againstWESTHAMPTON BEACH UNION FREE
SCHOOL DISTRICT, MICHAEL RADDAY,
as Superintendent, MARY ANN
AMBROSINI, as Director of Pupil
Personnel, SUSANNE MENSCH, JOYCE
DONNESON, and HALSEY STEVENS,
as Board of Education Members,

Defendants.
----------------------------------x
APPEARANCES:
For Plaintiffs:
Christian Killoran, Esq., pro se
Terrie Killoran, pro se
132-13 Main Street
Westhampton, New York 11978
For Defendants:

Scott J. Kreppein, Esq.
DEVITT SPELLMAN BARRETT, LLP
50 Route 111
Smithtown, New York 11787

SEYBERT, District Judge:
Pro

se

plaintiffs

Christian

Killoran 1

and

Terrie

Killoran, individually and as parents to A.K., a child with Down
“[A]s the Court’s prior orders note, Plaintiff [Christian
Killoran] is an attorney.
Accordingly, his pleadings are not
entitled to the ‘special consideration which the courts
customarily grant to pro se parties.’” Killoran v. Westhampton
Beach Sch. Dist., No. 20-CV-4121, 2020 WL 5424722, at *1 (E.D.N.Y.
1

Page 1 of 11

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Syndrome, commenced this action against the Defendants alleging
violations of: (1) the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400, et seq.; (2) the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; (3) Section
504 of the Rehabilitation Act of 1983 (“Section 504”); and (4) 42
U.S.C. § 1983 (“Section 1983”) with respect to Plaintiffs’ due
process and equal protection rights for the 2019-2020 school year.
(See

Compl.,

ECF

No.

1.)

Defendants

moved

to

dismiss

the

Complaint, pursuant to Rule 12(b)(1) of the Federal Rules of
Procedure
Plaintiffs

for
had

lack
not

of

subject

exhausted

matter

their

jurisdiction,

administrative

since

remedies

regarding their IDEA claims (hereafter, the “Dismissal Motion”).
(See ECF No. 12.)

Plaintiffs opposed Defendants’ Motion, but

voluntarily withdrew their “IDEA based claims, reserving a right
to re-file, pending the outcome of local exhaustion.” (Opp’n Aff.,
ECF No. 18 (emphasis in original).)

The Dismissal Motion was

referred to Magistrate Judge Locke for a report and recommendation.
(See Oct. 26, 2020 Elec. Referral Order.)
Presently before the Court is Magistrate Judge Locke’s
February 11, 2021 Report and Recommendation (“R&R”) (see ECF No.
22) recommending that the Defendants’ Dismissal Motion be granted,

Sept. 10, 2020) (quoting Bazadier v. McAlary, 464 F. App’x 11, 12
(2d Cir. 2012) (internal quotation marks and citation omitted)).
Page 2 of 11

Case 2:20-cv-00269-JS-SIL Document 26 Filed 03/31/21 Page 3 of 11 PageID #: 419

to which Plaintiffs object.

(See Objection, ECF No. 23.)

For the

reasons that follow, Plaintiffs’ Objection is OVERRULED, the R&R
is ADOPTED, and Defendants’ Dismissal Motion is GRANTED.
BACKGROUND and REPORT & RECOMMENDATION
Given

the

lengthy,

litigious

history

between

the

parties, 2 and hearing no objections to Magistrate Judge Locke’s
recitation of the relevant facts, the Court assumes the parties’
familiarity

and

agreement

with

the

factual

background

and

procedural history of the underlying administrative proceeding, as
well as this case, as articulated in the R&R, which this Court
adopts and incorporates herein by reference.
(factual

background),

7-9

(procedural

3

(See R&R at 2-7

background).)

For

the

reader’s convenience, the Court briefly notes that when this action
commenced, A.K. was: a seventeen-year-old boy who was born with
Down syndrome; classified as an “alternately assessed” special
education student; and, enrolled within the District.
3.)

This

action

Administrative

Due

relates

to

Plaintiffs’

Process

Complaint

(See id. at

January

(hereafter,

9,

2020

the

“ADP

Complaint”), filed with the New York State Department of Education,
Plaintiffs have filed numerous other lawsuits against the
Defendant School District regarding A.K.’s education. See, e.g.,
Case Nos. 15-CV-4743, 17-CV-0866, 17-CV-3553, 18-CV-3389, 19-CV3298, 19-CV-5078, 19-CV-6663, 20-CV-4121, and 20-CV-4763.
2

Further, the Court assumes the parties’ familiarity with the
terms of art used in the R&R, which this Court adopts and uses
herein.
3

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Case 2:20-cv-00269-JS-SIL Document 26 Filed 03/31/21 Page 4 of 11 PageID #: 420

Westhampton Beach School District, together with prior, related
administrative

hearings,

all

which

emanate

from

Plaintiffs’

dissatisfaction with the Defendants’ compliance with A.K.’s IDEA
rights for the 2019-2020 school year.

(See id. at 2-7; see also

Ex. P-1, ADP Compliant, attached to Compl.)

More particularly,

Plaintiffs filed the ADP Complaint after they appealed the IHO’s
determination that A.K.’s FAPE was IDEA-compliant and the SRO
partially overturned the IHO’s decision, remanding to the IHO the
issue of whether the District provided A.K. with a FAPE.

(R&R at

7 4 (citing Dec. 26, 2019 SRO Decision, ECF No. 12-4, at 21-22)).
Of significance to Plaintiffs’ Objection, Magistrate Judge Locke
stated:
On January 7, 2020, Defendants’ counsel
informed Plaintiffs that the District planned
to appeal the SRO decision pursuant to Article
78 of the New York State Civil Practice Law
and Rules, and therefore that the remanded due
process hearing would be automatically stayed.
See Compl. ¶ 15. Nevertheless, on April 24,
2020, the remanded hearing on Plaintiffs’
[ADP] Complaint commenced, and the parties are
currently addressing disputes regarding the
scope of the hearing.
(R&R

at

7

(citing

Defs.’

Support

Memo.,

ECF

No.

12-2,

at

8)(emphasis added).)

(See also R&R at 11-12 (discussing New York State’s two-tiered
administrative review process to which parents must avail
themselves when claiming IDEA-related grievances).)
4

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Case 2:20-cv-00269-JS-SIL Document 26 Filed 03/31/21 Page 5 of 11 PageID #: 421

In

that

vein,

the

Magistrate

Judge

outlined

the

applicable law stating, “the IDEA statute requires plaintiffs with
any claims related to the education of disabled children, whether
brought under IDEA or another statute (e.g., the Rehabilitation
Act), to exhaust the administrative remedies available under IDEA
prior to initiating a federal lawsuit,” (id. at 12-13 (quoting
Kalliope R. ex rel. Irene D. v. N.Y.S. Dep’t of Educ., 827 F. Supp.
2d

130,

137

(E.D.N.Y.

2010)(emphasis

added)),

and

noted

the

Plaintiffs’ recognition that “their claims under the IDEA, the
ADA, Section 504 and Section 1983 are all subject to the exhaustion
requirement” (id. at 13). However, Judge Locke proceeded to reject
the Plaintiffs’ futility argument, a recognized exception to the
exhaustion requirement, finding:
[Plaintiffs’] ultimate request as to their
claims is that Defendants implement an
appropriate
IEP
within
the
LRE
which,
according to Plaintiffs, is a hybrid program
within the general education setting when
appropriate, and within-District[; t]his type
of challenge to the placement of a disabled
student is a matter that is within the ambit
of the administrative scheme addressed by the
IDEA, which explicitly provides parents with
an opportunity to present a complaint to an
impartial IHO “with respect to any matter
relating to the identification, evaluation, or
educational placement of the child, or the
provision of a free appropriate public
education to such child[;]” [and] Plaintiffs’
issues with the District’s justifications for
A.K.’s IEP and academic placement must first
be addressed to the local and state education
agencies [because they] are “uniquely well
suited
to
review
the
content
and
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Case 2:20-cv-00269-JS-SIL Document 26 Filed 03/31/21 Page 6 of 11 PageID #: 422

implementation of IEPs . . . and to determine
what changes, if any, are needed.”
(R&R at 15-16 (first quoting 20 U.S.C.A. § 1415(b)(6)(A); then
quoting Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 248
(2d Cir. 2008) (internal quotations and citations omitted).)

He

concluded that the Plaintiffs’ belief that this appeal process
“will cause a delay that will span additional academic years does
not give them the right to proceed to federal court and bypass the
administrative process.”

(R&R at 16 (citing Hope v. Cortines, 872

F. Supp. 14, 21 (E.D.N.Y. 1995)(“Plaintiffs in substance challenge
the adequacy of the IEP created . . . and seek imposition of their
own more expansive IEP.

This is precisely the type of remedy best

fashioned by the educational experts skilled in developing such
programs and provides a textbook example of the types of cases
justifying administrative exhaustion.”), aff’d, 69 F.3d 687 (2d
Cir. 1995).)

Thus, Magistrate Judge Locke recommended “that all

of Plaintiffs’ causes of action be dismissed for lack of subject
matter jurisdiction” and “Defendants’ motion to dismiss be granted
as to all claims without prejudice until administrative remedies
are exhausted.”

(Id.)

CONSIDERATION OF PLAINTIFFS’ OBJECTION
Rule 72 of the Federal Rules of Civil Procedure permits
a magistrate judge to conduct proceedings of dispositive pretrial
matters without the consent of the parties.
Page 6 of 11

See FED. R. CIV. P.

Case 2:20-cv-00269-JS-SIL Document 26 Filed 03/31/21 Page 7 of 11 PageID #: 423

72(b). Any portion of a report and recommendation on a dispositive
matter to which a timely objection has been made is reviewed de
novo.

See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).

However,

“when a party makes only conclusory or general objections, or
simply reiterates the original arguments, the Court will review
the report strictly for clear error.”

Frankel v. City of N.Y.,

Nos. 06-cv-5450, 07-cv-3436, 2009 WL 465645, at *2 (S.D.N.Y. Feb.
25, 2009); see also Butto v. Collecto, Inc., 290 F.R.D. 372, 379
(E.D.N.Y. 2013) (“In a case where a party makes only conclusory or
general objections, or simply reiterates his original arguments,
the Court reviews the Report and Recommendation only for clear
error.” (quotations and citation omitted)).

The Court is not

required to review the factual findings or legal conclusions of
the magistrate judge as to which no proper objections are made.
See Thomas v. Arn, 474 U.S. 140, 150 (1985).

Whether or not proper

objections have been filed, the district judge may, after review,
accept, reject, or modify any of the magistrate judge’s findings
or recommendations.

See 28 U.S.C. § 636(b)(1); FED. R. CIV. P.

72(b).
Plaintiffs

object

to

the

R&R

asserting

that

“the

fundamental problem with Judge Locke’s analysis is that it does
not take into account the evolution of the plaintiff’s [sic]
underlying

due

process

adjudication

[(hereafter,

“DP

Adjudication”)] that has occurred since the chronology relied upon
Page 7 of 11

Case 2:20-cv-00269-JS-SIL Document 26 Filed 03/31/21 Page 8 of 11 PageID #: 424

by Judge Locke.”

(Objection at 2.)

They contend that the DP

Adjudication has since been concluded and “now profiles as being
fully ‘exhausted’,” and that “subsequent to the chronology relied
upon

by

Judge

Locke,

the

ultimately ‘sustained’.”

plaintiffs’

(Id.)

IDEA

based

claims

were

In essence, Plaintiffs would have

this Court find error in Magistrate Judge Locke’s recommendation
because they failed to apprise the Court of the current status of
their DP Adjudication.

(See id. (“In any event, at this time, as

well as prior to the date Judge Locke issued his decision (February
11, 2021), the plaintiffs’ underlying IDEA based claims were fully
‘exhausted’.”).)
The Plaintiffs’ Objection is unsustainable.

As properly

articulated by Magistrate Judge Locke, upon a Rule 12(b)(1) motion
to dismiss, “the court must assume that all factual allegations in
the complaint are true and draw all reasonable inferences in favor
of the non-moving party.”

(R&R at 10 (quoting C.K. v. Bd. of Educ.

of the Westhampton Beach Sch. Dist., 185 F. Supp. 3d 317, 324
(E.D.N.Y. 2016) (citation omitted).)
Magistrate Judge did in his R&R.

That is precisely what the

To the extent Plaintiffs assert

the Magistrate Judge erred in finding a lack of subject matter
jurisdiction because of an absence of exhaustion, this Court
rejects that argument since it is the Plaintiffs’ “burden to prove
the court’s jurisdiction by a preponderance of the evidence” (id.
(citing Vailette v. Lindsay, No. 11-cv-3610, 2014 WL 4101513, at
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Case 2:20-cv-00269-JS-SIL Document 26 Filed 03/31/21 Page 9 of 11 PageID #: 425

*3 (E.D.N.Y. Aug. 18, 2014)), which they failed to do when the
Dismissal Motion was pending for adjudication.

(Cf. id. (stating

“the court may refer to evidence outside the pleadings, such as
affidavits, to resolve the jurisdictional issue” (citing Forbes v.
State Univ. of N.Y. at Stony Brook, 259 F. Supp. 2d 227, 231-32
(E.D.N.Y. 2003) (citations omitted))).)
that

the

DP

Adjudication

has

Informing the Court now
been

finalized,

i.e.,

administratively exhausted, is too little too late and fails to
demonstrate an error, even under de novo review.
REQUEST TO CONSOLIDATE
To the extent Plaintiffs request in their Objection that
the Court consolidate this action with Plaintiffs’ subsequent
action, Case No. 20-CV-4763 (hereafter, the “Subsequent Action”),
that request is denied.
broad

discretion

in

(See Objection at 3.)
determining

whether

The “court has

consolidation

is

appropriate by balancing the economy gained and prejudice to
parties.”

Molinari v. Bloomberg, No. 08-CV-4539, 2009 WL 87576,

at *4 (E.D.N.Y. Jan. 13, 2009)(citing Haas v. Brookhaven Mem’l
Hosp., No. 07–CV–4788, 2008 WL 822121, at *2 (E.D.N.Y. Mar. 26,
2008) (denying plaintiff’s motion to consolidate because he made
no showing on the record that consolidation would assist judicial
economy
citations

or

avoid

omitted).

unnecessary
Here,

delays

there

has

or

confusion);

been

no

further

showing

that

consolidation will assist in achieving judicial economy or avoid
Page 9 of 11

Case 2:20-cv-00269-JS-SIL Document 26 Filed 03/31/21 Page 10 of 11 PageID #: 426

delay or confusion; rather, the opposite is true. The Court agrees
with

Defendants

“Plaintiffs

that,

given

subsequently

what

has

exhaust[ing]

transpired,
their

with

the

administrative

remedies” and “fil[ing] another action asserting the exact same
claims”

in

the

Subsequent

discontinued voluntarily.”

Action,

“this

action

should

(Response, ECF No. 24, at 2.)

have

Indeed,

the Court’s independent review confirms that the Subsequent Action
raises substantially the same claims and seeks substantially the
same relief 5 as raised and sought in this action.

(See Subsequent

Action, Compl., ECF No. 1; 6 cf. Objection at 2 (stating “the issues
regarding damages now remain pending before this Court within the
context of [the Subsequent Action]” (emphasis added)).)

Moreover,

it is noteworthy that the Subsequent Action, which alleged the
requisite administrative exhaustion, was commenced on October 5,
2020,

before

the

subject

Dismissal

Motion--which

motion

was

premised upon lack of subject matter jurisdiction for failure to
exhaustive Plaintiffs’ administrative remedies--was referred to
The Court notes that in the Subsequent Action, Plaintiffs also
seek the partial reversal of the SRO’s decision, which denied A.K.
“compensatory education”. (Subsequent Action, Compl., ECF No. 1,
Prayer for Relief at 14.)
5

Of significance, Plaintiffs alleged, inter alia: “[A]s this
complaint deals exclusively with the plaintiff’s 2019-2020
academic year, the Court must be updated with the relevant facts”
(Subsequent Action, Compl., ECF No. 1, ¶2 (emphasis added)), and
“SRO Baytes’ decision represented the ‘administrative exhaustion’
of the plaintiff’s IDEA-based claims relative to the 2019-2020
academic year.” (Id. at ¶47.)
6

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Case 2:20-cv-00269-JS-SIL Document 26 Filed 03/31/21 Page 11 of 11 PageID #: 427

Magistrate Judge Locke, on October 16, 2020, for a report and
recommendation.

Certainly, voluntary dismissal of the instant

action would have saved substantial resources of the parties and
the Court.

It would also have avoided confusion, especially as

Plaintiffs have several actions pending regarding different school
years.

Thus, in this instance, consolidation serves no purpose

and is, therefore, DENIED.
In sum, upon careful review and consideration, the Court
finds

Magistrate

Judge

Locke’s

comprehensive, and free of error.

R&R

to

be

well-reasoned,

Hence, it is ADOPTED in its

entirety.
CONCLUSION

Accordingly, IT IS HEREBY ORDERED that, having ADOPTED
the R&R in its entirety:
(1)

Plaintiffs’ Objection is OVERRULED;

(2)

Defendants’ Dismissal Motion for lack of subject matter
jurisdiction is GRANTED and, thereafter;

(3)

The Clerk of Court is directed to close this case.
SO ORDERED.
_/s/ JOANNA SEYBERT____
JOANNA SEYBERT, U.S.D.J

Dated:

March 31, 2021
Central Islip, New York
Page 11 of 11