GV v. Board of Education of the West Genesee Central School District et al

Filing 60

MEMORANDUM-DECISION and ORDER - That the District's 32 Motion for Judgment on the Pleadings is GRANTED. That BOCES' 29 Motion for Judgment on the Pleadings is GRANTED. That plaintiff's complaint (Dkt. No. 1) is DISMISSED. That defendants' cross-claims (Dkt. Nos. 17, 20) are DISMISSED. Signed by Senior Judge Gary L. Sharpe on 7/25/2017. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
GV, individually and as parent
and natural guardian of CV, an
infant under the age of 18,
Plaintiff,

5:15-cv-1173
(GLS/TWD)

v.
BOARD OF EDUCATION OF THE
WEST GENESEE CENTRAL
SCHOOL DISTRICT et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Getnick, Livingston Law Firm
258 Genesee Street
Suite 401
Utica, NY 13502
FOR THE DEFENDANTS:
Board of Education of the West
Genesee Central School District
Costello, Cooney Law Firm
500 Plum Street
Suite 300
Syracuse, NY 13204

PATRICK G. RADEL, ESQ.

ELIZABETH A. HOFFMAN, ESQ.

Onondaga-Cortland-Madison Counties
Board of Cooperative Educational
Services
Office of Frank. W. Miller
CHRISTOPHER M. MILITELLO,
6575 Kirkville Road
ESQ.

East Syracuse, NY 13057

FRANK W. MILLER, ESQ.

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff GV, on behalf of himself and his minor son, CV,
commenced this action against defendants Board of Education of the
West Genesee Central School District (District) and Onondaga-CortlandMadison Counties Board of Cooperative Educational Services (BOCES)
pursuant to Section 504 of the Rehabilitation Act of 19731 (Section 504)
and Title II of the Americans with Disabilities Act2 (ADA). (Compl., Dkt.
No. 1.) Pending is BOCES’ motion for judgment on the pleadings, (Dkt.
No. 29), which seeks to dismiss the complaint and a cross-claim filed by
the District, (Dkt. No. 17 at 10). Also pending is the District’s motion for
judgment on the pleadings, (Dkt. No. 32), which seeks to dismiss the
complaint and a cross-claim filed by BOCES, (Dkt. No. 20 at 8).
II. Background

1

29 U.S.C. § 794.

2

42 U.S.C. § 12101 et seq.

2

A.

Facts3
1.

2012-13 School Year

GV is the parent and natural guardian of CV, “an infant under the
age of 18”4 with Down syndrome and attention deficit hyperactivity
disorder. (Compl. ¶ 3; Id., Attach. 1 at 4.) During the 2012-13 school
year, per the recommendation of the District’s Committee on Special
Education (CSE), CV attended a program, known as the TEAM class,
located at Split Rock Elementary School, one of the District’s elementary
schools. (Compl. ¶ 10.) The TEAM class was “operated” by BOCES and
“jointly staffed and supervised” by the District and BOCES. (Id. ¶¶ 10-11.)
Shortly after the start of the 2012-13 school year, CV “demonstrated
challenging behaviors,” including “aggressive behaviors.” (Id. ¶ 12.) In
response, the District and BOCES “repeatedly subjected CV to violent
physical restraints and seclusion.” (Id. ¶ 13.) District and BOCES
employees “frequently used a therapy mat to pin CV against a wall” and
“left CV alone in the classroom while holding the door closed from the

3

As with a Rule 12(b)(6) motion, the facts are drawn from plaintiff’s complaint and
presented in the light most favorable to him.
4

As of October 29, 2013, GV was thirteen years old. (Compl., Attach. 1 at 2, 4.)

3

outside to prevent his frantic efforts to escape.” (Id. ¶¶ 16-17.) CV was
physically restrained seven times in October 2012; during that month, CV
was subjected to physical restraints involving multiple adults for at least
forty-nine minutes. (Id. ¶¶ 14-15.)
2.

Impartial Hearing Officer’s Decision

On July 10, 2013, GV commenced a due process proceeding
pursuant to 20 U.S.C. § 1416, Section 504, the ADA, Article 89 of New
York Education Law, and N.Y. Comp. Codes R. & Regs. tit. 8, § 200.5(j)
by serving a due process complaint notice upon the District. (Id. ¶ 22.)
The District, through its counsel, served a letter response dated July 22.
(Id. ¶ 23.) The matter was heard by Joan Alexander, an impartial hearing
officer (IHO), on September 10, 11, and 12. (Id. ¶ 24.) GV and the
District were represented by counsel, and District and BOCES employees
testified as witnesses. (Id. ¶¶ 25-26.)
On October 29, the IHO issued a decision. (Id. ¶ 27; Id., Attach. 1.)
The IHO found that the District did not provide a free appropriate public
education (FAPE) to CV because, among other things, the District “failed
to properly develop, review[,] and update [CV’s behavioral intervention
plan]” and “improperly used seclusion and restraints” during 2012-13. (Id.,
4

Attach. 1 at 3.)5 However, regarding GV’s Section 504 and ADA claims,
the IHO found “no violation of Section 504 or the ADA” and explained:
I do not find bad faith or gross misjudgment in the [District]’s
2012-[13] behavior[al] intervention “plan”, or in its repeated use
of physical restraints and seclusion. I note that I closely
observed the demeanor[] of all of the witnesses during a threeday hearing, and that I’ve become very familiar with all of the
proof in this matter.
Id., Attach. 1 at 3, 36.
3.

State Review Officer’s Decision

GV and the District sought review of the IHO’s decision by a state
review officer (SRO). (Compl. ¶ 30.) On February 28, 2014, the SRO
issued a decision. (Id., Attach. 2.) Regarding the IHO’s finding that the
District did not violate Section 504 or the ADA, the SRO found:
Although [GV] alleges that the [D]istrict violated [S]ection 504
and the ADA, the New York State Education Law does not
appear to provide for state-level administrative review by an SRO
of IHO decisions with regard to [S]ection 504 or ADA disability
discrimination claims . . . . As [GV] provides no authority for the
proposition that SROs have jurisdiction over [S]ection 504 or
ADA claims, and did not respond to the [D]istrict’s affirmative
assertion that they do not, I decline to address them in this
instance . . . .
(Id., Attach. 2 at 7 n.3 (internal citations omitted).)
5

Plaintiff attached the decisions of the IHO and state review officer to his complaint as
attachments 1 and 2, respectively.

5

Plaintiff did not seek review of the SRO’s decision.
4.

Notice of Claim

On June 25, 2015, New York Supreme Court granted GV’s motion
for leave to file a late notice of claim, (id., Attach. 3), and GV served a
notice on the District and BOCES “thereafter,” (Compl. ¶ 35; Id.,
Attach. 4).
B.

Procedural History
GV filed the instant action on behalf of himself and CV in October

2015. (Compl., Dkt. No. 1.) GV asserts the following claims against the
District and BOCES: (1) “Defendants’ conduct [subjecting CV to repeated
restraints and seclusion] constituted disability discrimination and
amounted to deliberate indifference, the exercise of bad faith, and/or
gross misjudgment with respect to CV’s right pursuant to Section 504 to
be free from discrimination based on his disabilities,” (Compl. ¶ 42), and
(2) “Defendants’ conduct [subjecting CV to repeated restraints and
seclusion] constituted disability discrimination and amounted to deliberate
indifference, the exercise of bad faith, and/or gross misjudgment with
respect to CV’s right pursuant to the ADA to be free from discrimination
based on his disabilities,” (id. ¶ 50). GV’s alleged damages are
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“expenses associated with tutoring and expert witness fees in connection
with the due process proceeding,” (id. ¶ 44), and CV’s alleged damages
are “serious emotional trauma, pain and suffering, and lost educational
progress/opportunity,” (id. ¶ 45). Plaintiff also seeks attorney’s fees,
expert witness fees, and costs. (Id. ¶¶ 53-54.)
The District filed an answer and cross-claim against BOCES for
“contribution and/or indemnity,” (Dkt. No. 12 ¶ 50), and then amended the
same, (Dkt. No. 17 ¶ 58). BOCES filed an answer to the complaint, (Dkt.
No. 14), and then filed an amended answer with a cross-claim against the
District for “contribution or indemnity,” (Dkt. No. 20 ¶ 32). The pending
Rule 12(c) motions for judgment on the pleadings were later filed by
BOCES, (Dkt. No. 29), and the District, (Dkt. No. 32).
III. Standard of Review
“The standard for granting a Rule 12(c) motion for judgment on the
pleadings is identical to that of a Rule 12(b)(6) motion for failure to state a
claim.” Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123,
126 (2nd Cir. 2001) (internal citations omitted). Rule 12(b)(6) provides
that a cause of action shall be dismissed if a complaint fails “to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). For a
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full discussion of the governing standard for Rule 12(b)(6), the court refers
the parties to its prior decision in Ellis v. Cohen & Slamowitz, LLP, 701 F.
Supp. 2d 215, 218 (N.D.N.Y. 2010).
IV. Discussion
Among other arguments, defendants argue that GV’s complaint
must be dismissed because of res judicata or collateral estoppel. (Dkt.
No. 32, Attach. 2 at 6-7; Dkt. No. 52, Attach. 1 at 1-4; Dkt. No. 54). Those
arguments are addressed below.
A.

Res Judicata
1.

The District

The District argues that plaintiff’s claims are barred by res judicata.
(Dkt. No. 32, Attach. 2 at 6-7; Dkt. No. 52, Attach. 1 at 1-4.) The court
agrees.
“To prove the affirmative defense [of res judicata] a party must show
that (1) the previous action involved an adjudication on the merits; (2) the
previous action involved the plaintiffs or those in privity with them; [and]
(3) the claims asserted in the subsequent action were, or could have
been, raised in the prior action.” TechnoMarine SA v. Giftports, Inc., 758
F.3d 493, 499 (2d Cir. 2014) (internal quotation marks and citation
8

omitted). Elements two and three are clearly satisfied; plaintiff brought the
same Section 504 and ADA claims in the due process proceeding before
the IHO.6 Element one is also satisfied because “[r]es judicata applies to
judgments by . . . administrative agencies acting in an adjudicative
capacity.” Greenberg v. Bd. of Governors of Fed. Reserve Sys., 968 F.2d
164, 168 (2d Cir. 1992) (citing United States v. Utah Constr. & Mining Co.,
384 U.S. 394, 422 (1966)). For example, in F.M. v. Anderson Ctr. for
Autism, No. 1:13-CV-0041, 2014 WL 4457256, at *15-17 (N.D.N.Y. Sept.
10, 2014), the court held that res judicata barred Section 504 and ADA
claims because they had been litigated before an IHO and reviewed by an
SRO.7
Plaintiff’s arguments that res judicata does not apply are unavailing.
(Dkt. No. 37 at 3-7; Dkt. No. 56.) Plaintiff argues that, unlike in F.M., here
the SRO made no decision with respect to his Section 504 and ADA
claims, and thus “there is nothing for this [c]ourt to give preclusive effect

6

That plaintiff may be seeking a different remedy in this action is inconsequential to the
res judicata analysis. Even if the IHO could not have awarded the compensatory damages
that plaintiff seeks in this action, “[a] party cannot avoid the preclusive effect of res judicata by
asserting . . . a different remedy.” Brown Media Corp. v. K&L Gates, LLP, 854 F.3d 150, 157
(2d Cir. 2017) (internal quotation marks and citations omitted).
7

The F.M. court seemingly relied on collateral estoppel in the alternative. F.M., 2014
WL 4457256, at *17. Collateral estoppel is addressed below. See infra Part IV.B.

9

to.” (Dkt. No. 37 at 4.) But plaintiff ignores that the IHO’s
decision—which explicitly found that the District did not violate Section
504 or the ADA—stands as a final administrative adjudication to the
extent that it was not reviewed by the SRO. See C.F. ex rel. R.F. v. New
York City Dep’t of Educ., 746 F.3d 68, 77 (2d Cir. 2014) (“[C]ourts should
defer to the IHO’s analysis when considering an issue not reached by the
SRO.”) (internal citation omitted); F.B. v. New York City Dep’t of Educ.,
132 F. Supp. 3d 522, 554 (S.D.N.Y. 2015) (same) (internal quotation
marks and citations omitted); see also 20 U.S.C. § 1415(i)(1)(A) (“[An
IHO’s decision] shall be final, except that any party . . . may appeal . . . .”);
cf. Am. Hotel Int’l Grp., Inc. v. OneBeacon Ins. Co., 374 F. App’x 71, 74
(2d Cir. 2010) (“[F]indings of a district court not expressly or implicitly
addressed on appeal remain the law of the case.”) (internal citation
omitted).
Plaintiff offers no principled reason to ignore the detailed, thirty-five
page decision, one issued by an IHO who “closely observed the
demeanor[] of all of the witnesses during a three-day hearing” and was
“very familiar with all of the proof.” (Compl., Attach. 1 at 36.) “Simply
because plaintiff is unhappy with the hearing officer’s . . . ruling does not
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mean that plaintiff did not have a full and fair opportunity to litigate the
issue and does not entitle him to a second chance for a more favorable
outcome in another forum.” Levich v. Liberty Cent. Sch. Dist., 361 F.
Supp. 2d 151, 159 (S.D.N.Y. 2004). Indeed, plaintiff chose to raise the
Section 504 and ADA claims during the due process proceedings.
Plaintiff was not left without recourse after the SRO declined to
disturb the IHO’s finding that the District did not violate Section 504 or the
ADA. As plaintiff recognizes, “[t]he losing party has four (4) months from
the date of the SRO’s decision to commence a judicial action (which may
be filed in federal or state court) seeking review of the SRO’s decision.”
(Dkt. No. 37 at 3); see 20 U.S.C. § 1415(i)(2)(B); N.Y. Educ. Law
§ 4404(3)(a). If plaintiff was unhappy with the SRO’s decision not to
disturb the IHO’s finding that the District did not violate Section 504 or the
ADA, plaintiff could have commenced a judicial action seeking review.
See Bd. of Educ. of N. Rockland Cent. Sch. Dist. v. C.M., No. 16 CV
3924, 2017 WL 2656253, at *1, *6 (S.D.N.Y. June 20, 2017) (after
unfavorable IHO decision on Section 504 claims and SRO’s declination to
review due to lack of jurisdiction, party initiated district court action for
review); K.H. v. New York City Dep’t of Educ., No. 12-CV-1680, 2014 WL
11

3866430, at *11-12 (E.D.N.Y. Aug. 6, 2014) (same).
Further, the cases cited by plaintiff to argue that res judicata should
not apply, (Dkt. No. 37, 6-7; Dkt. No. 56, 2-3), are either inapposite or
distinguishable. For example, in K.C. v. Chappaqua Cent. Sch. Dist., No.
16-CV-3138, 2017 WL 2417019, at *7 (S.D.N.Y. June 1, 2017), unlike
here, “[the] Section 504 and ADA claims were not litigated before the
IHO.” The K.C. court also noted that the defendant did not cite a case
“involv[ing] a federal court giving preclusive effect to the [federally]
unreviewed decision of an IHO or SRO,” id. at *6 (internal citations
omitted), but F.M.8 is just such a case. In any event, the court finds K.C.
unpersuasive.9
2.

BOCES

Res judicata also bars plaintiff’s claims against BOCES if BOCES

8

F.M. v. Anderson Ctr. for Autism, No. 1:13-CV-0041, 2014 WL 4457256 (N.D.N.Y.
Sept. 10, 2014).
9

For example, the K.C. court’s citation to Burkybile v. Bd. of Educ. of Hastings-OnHudson Union Free Sch. Dist., 411 F.3d 306, 308 (2d Cir. 2005) seemingly ignores Burkybile’s
holding that a “quasi-judicial [state] administrative action” may be entitled to preclusive effect.
And the K.C. court’s assertion that “the Second Circuit has held that . . . an unreviewed state
administrative decision has no preclusive effect on ADA claims,” 2017 WL 2417019, at *6, is
overly broad. The case cited for that proposition, Kosakow v. New Rochelle Radiology
Assocs., P.C., 274 F.3d 706, 734-35 (2d Cir. 2001), involved a New York state administrative
proceeding that did not include a hearing, which is clearly distinguishable from the
administrative proceeding here, in which there was a three-day hearing with extensive
testimony.

12

and the District are in privity. See Cent. Hudson Gas & Elec. Corp. v.
Empresa Naviera Santa S.A., 56 F.3d 359, 367-68 (2d Cir. 1995) (“[T]he
principle of privity bars relitigation of the same cause of action against a
new defendant known by a plaintiff at the time of the first suit where the
new defendant has a sufficiently close relationship to the original
defendant to justify preclusion.”). For the reasons that follow, BOCES and
the District are in privity, and thus res judicata bars plaintiff’s claims
against BOCES.
Plaintiff alleges that “BOCES provided programs and services to
special education students from the District, including CV, pursuant to a
contract or agreement between the District and BOCES” and “[t]he TEAM
Class was jointly staffed and supervised by the District and BOCES.”
(Compl., ¶¶ 6, 11.) At the IHO hearing, employees of both BOCES and
the District testified,10 (id. ¶ 26), and the hearing “include[d] extensive
testimony from []BOCES employees and documentation prepared and
maintained by []BOCES supervisors and staff,” (Dkt. No. 36 at 7).
Moreover, although plaintiff did not formally name BOCES as a

10

One of the BOCES employees who testified for the District did so as an expert
witness. (Dkt. No. 36 at 9.)

13

defendant in the due process proceeding before the IHO, many of
plaintiff’s allegations supporting his Section 504 and ADA claims against
the District concerned BOCES. In plaintiff’s own words, “[m]any (perhaps
all) of the restraints and seclusion were performed by []BOCES personnel,
at the direction of []BOCES personnel, with []BOCES supervisors being
responsible for investigating the incidents and engaging in appropriate
remedial follow-up.” (Dkt. No. 36 at 6 (internal footnote omitted).)
Further, “[]BOCES employees were the ones who actually developed and
implemented the ‘plan’ that allowed for repeated restraints and seclusion
to be used against CV.” (Id. at 9.) And much of the IHO’s
decision—including its analysis finding no violation of Section 504 or the
ADA—concerns BOCES, and in particular CV’s classroom teacher, a
BOCES employee. (Compl., Attach. 1 at 34-36.) Given how closely
related the District and BOCES are in plaintiff’s own allegations and the
IHO hearing and decision, as well as their contract and other ties, see
supra, BOCES has a “sufficiently close relationship to the [District] to
justify preclusion.” Cent. Hudson Gas & Elec. Corp., 56 F.3d at 367-68.
B.

Collateral Estoppel
Even if res judicata does not bar plaintiff’s claims, collateral estoppel
14

does. “[A] party is collaterally estopped from relitigating an issue if a
four-part test is met: (1) the identical issue was raised in a previous
proceeding; (2) the issue was actually litigated and decided in the
previous proceeding; (3) the party had a full and fair opportunity to litigate
the issue; and (4) the resolution of the issue was necessary to support a
valid and final judgment on the merits.” Boguslavsky v. Kaplan, 159 F.3d
715, 720 (2d Cir. 1998) (internal quotation marks and citations omitted);
see Grenon v. Taconic Hills Cent. Sch. Dist., No. 1:05-CV-1109, 2006 WL
3751450, at *6 (N.D.N.Y. Dec. 19, 2006) (holding collateral estoppel
barred claims in context of IHO and SRO proceedings). For the reasons
above, see supra Part IV.A.1, the elements of collateral estoppel are
satisfied here with regard to the issue of whether Section 504 or the ADA
was violated. That plaintiff did not name BOCES in the due process
proceeding does not prevent application of collateral estoppel. See Austin
v. Downs, Rachlin & Martin, 114 F. App’x 21, 22 (2d Cir. 2004) (“[I]f a
litigant has had an opportunity to fully and fairly litigate an issue and lost,
then third parties unrelated to the original action can bar the litigant from
relitigating that same issue in a subsequent suit.”) (internal citations
omitted); LaFleur v. Whitman, 300 F.3d 256, 274 (2d Cir. 2002) (holding
15

relevant inquiry is whether plaintiff “was fully able to raise the same factual
or legal issues . . . not whether the []defendants were identical in both
cases”) (internal citations omitted).
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the District’s motion for judgment on the pleadings
(Dkt. No. 32) is GRANTED; and it is further
ORDERED that BOCES’ motion for judgment on the pleadings (Dkt.
No. 29) is GRANTED; and it is further
ORDERED that plaintiff’s complaint (Dkt. No. 1) is DISMISSED; and
it is further
ORDERED that defendants’ cross-claims (Dkt. Nos. 17, 20) are
DISMISSED; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
July 25, 2017
Albany, New York

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