M.F. v. North Syracuse Central School District et al
Filing
28
MEMORANDUM-DECISION and ORDER - That SED's motion to dismiss (Dkt. No. 13) is GRANTED. That the Clerk is directed to terminate SED as a party to this action. That the District and Speach's motion for a judgment on the pleadings (Dkt. No. 15) is GRANTED IN PART AND DENIED IN PART as follows: DENIED with respect to M.F.'s Section 504 claim against the District and GRANTED in all other respects. That the Clerk is directed to terminate Speech as a party to this action. That M.F.& #039;s motion for leave to file an amended complaint (Dkt. No. 22) is GRANTED IN PART AND DENIED IN PART as follows: GRANTED insofar as it seeks to add a § 1983 claim against the District and a systemic violation of the IDEA claim against SED a nd DENIED in all other respects. That M.F. shall timely file and serve the original signed amended pleading as set forth in Local Rule 7.1(a)(4), should M.F. fail to do so, the complaint, as modified by this Memorandum-Decision and Order, will remain the operative pleading. That defendants shall file a responsive pleading or renew their motion to dismiss within the time allotted under the Rules. Signed by Senior Judge Gary L. Sharpe on 3/29/2019. (jel, ) Modified on 3/29/2019 (jel, ).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
M.F., individually and on behalf
of her minor child, V.G.,
Plaintiff,
5:17-cv-1385
(GLS/ATB)
v.
NORTH SYRACUSE CENTRAL
SCHOOL DISTRICT et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
A.A. Castro C.L.A.N. PLLC
60 Broad Street, Suite 2422
New York, NY 10004
FOR THE DEFENDANTS:
North Syracuse Central School
District and Annette Speach
Bond Schoeneck & King, PLLC
One Lincoln Center
Syracuse, NY 13202
New York State Education
Department
HON. LETITIA JAMES
New York State Attorney General
The Capitol
Albany, NY 12224
Gary L. Sharpe
Senior District Judge
ANGEL A. CASTRO, ESQ.
JONATHAN B. FELLOWS, ESQ.
KATE I. REID, ESQ.
CHRISTOPHER J. HUMMEL
Assistant Attorney General
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff M.F. brings this action—on behalf of herself and her minor
son, V.G.—against the North Syracuse Central School District, its
Superintendent, Annette Speach, the New York State Education
Department (hereinafter “SED”), and unidentified John and Jane Doe
employees pursuant to the Individuals with Disabilities Education Act
(IDEA),1 Article 89 of the N.Y. Education Law,2 Part 200 of the N.Y. Comp.
Codes & Regs.,3 Section 504 of the Rehabilitation Act,4 Titles II5 and IV6 of
the Americans with Disabilities Act (ADA), and state common law. (See
generally Compl., Dkt. No. 1.) Generally, M.F. argues that defendants
have failed to provide her son a Free and Appropriate Public Education
(FAPE) since 2016, (id. ¶¶ 3, 9), and seeks compensatory and punitive
1
See 20 U.S.C. §§ 1400-1482.
2
See N.Y. Educ. Law §§ 4401-10-C.
3
See 8 N.Y.C.R.R. §§ 200.1-200.22.
4
See 29 U.S.C. § 794.
5
See 42 U.S.C. §§ 12131-12165.
6
See 42 U.S.C. §§ 12201-12213.
2
damages, declaratory and injunctive relief, as well as attorney’s fees and
costs, (id. at 41-43, ¶ 12). Pending is SED’s motion to dismiss, (Dkt. No.
13), the District and Speach’s motion for judgment on the pleadings, (Dkt.
No. 15), and M.F.’s motion for leave to file an amended complaint, (Dkt.
No. 22). For the following reasons, SED’s motion is granted, the District
and Speach’s motion is granted in part and denied in part, and M.F.’s
motion is granted in part and denied in part.
II. Background
A.
Facts7
M.F.’s son, V.G., who was sixteen years old when this action began,
has been diagnosed with autism spectrum disorder and other diagnosed
disabilities that make it difficult to learn in a traditional classroom setting.
(Compl. ¶¶ 2, 36.) Since V.G. entered the District in 2008, M.F. has
disputed the Committee on Special Education (CSE) over the educational
services necessary to provide V.G. a FAPE. (Id. ¶¶ 37-53.) In sum, M.F.
alleges that defendants failed to provide V.G. a FAPE because
(a) they did not recommend a program to address the elopement
7
Unless otherwise noted, the facts are drawn from M.F.’s complaint
and presented in the light most favorable to her.
3
concerns brought by [M.F.] and [V.G.’s] previous school;
(b) they . . . recommended a BOCES 8:1:1 program, which was
insufficient to address V.G.’s unique educational needs; (c) they
did not allow [M.F.] to meaningfully participate in the [CSE]
[m]eeting setting [V.G.’s] school placement; and (d) the school
placement that [defendants] recommended could not provide a
program to accommodate [V.G.’s] academic or health needs as
mandated in V.G.’s Individualized Education Program [(IEP)].
(Id. ¶ 3 (internal marks omitted).) To remedy these perceived failures, M.F.
and the District executed a Stipulation of Settlement Agreement
(hereinafter “the Agreement”) prior to the 2015 school year. (Id. ¶¶ 54-57;
Dkt. No. 6, Attach. 1.8) Pursuant to the Agreement, the District was
required to pay V.G.’s tuition to attend the Vincent Smith School, a private
school, for the 2015, 2016, and 2017 school years. (Compl. ¶¶ 54-57.)
V.G. completed the 2015 school year at the Vincent Smith School,
but the school “asked him not to return.” (Id. ¶ 57.) Thereafter, M.F. and
her current attorney––who was a non-licensed “advocate” at the
time––notified the District that they were looking for another private school
placement. (Id. ¶ 60.) Based on the District’s alleged lack of cooperation,
M.F. was unable to place V.G. in another private school. (Id. ¶¶ 60-62.)
8
The Agreement is properly considered at this stage because it is
integral to the complaint. See Sira v. Morton, 380 F.3d 57, 67 (2d Cir.
2004).
4
On December 6, 2016, M.F. filed a due process complaint alleging
that the District failed to offer V.G. a FAPE for the 2016 school year. (Id.
¶ 65.) “On December 30, 2016, V.G. was hospitalized because, on
information and belief, [he] attempted suicide and eloped from the home.”
(Id. ¶ 72.) After the Impartial Hearing Officer (IHO) denied the District’s
motion to dismiss M.F.’s complaint, the District agreed to provide V.G. with
home instruction. (Id. ¶ 73.) However, the District initially failed to provide
home instruction and never provided related services. (Id. ¶¶ 74-75.)
When the District eventually sent a tutor to V.G.’s home, the tutor read
inappropriate material to V.G. (Id. ¶ 76.)
In January 2017, M.F. filed a lawsuit in New York Supreme Court in
Onondaga County.9 (Id. ¶ 63.) On or about February 3, 2017, the CSE
met and developed a new IEP for V.G., which recommended placement in
an 8:1:1 classroom at a BOCES site and related services. (Id. ¶ 77;
Attach. 1 at 3.)
9
The action, (Dkt. No. 6, Attach. 2), was eventually dismissed by
Supreme Court, (id., Attach. 3), affirmed by the Appellate Division, Fourth
Department, (id., Attach. 4), and a subsequent appeal was dismissed by
New York Court of Appeals, (Dkt. No. 27). The court properly takes notice
of these matters of public record at this stage. See Pani v. Empire Blue
Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998).
5
On February 21, 2017, M.F. requested that the IHO find that V.G.’s
pendency placement10 was governed by the Agreement, which obligated
the District to pay for V.G.’s placement in a private school of M.F.’s
choosing until the proceedings concluded. (Compl. ¶ 77.) In response, the
District noted that it “was willing to fund V.G.’s placement at any private
school in New York State that accepted [him].” (Id. ¶ 78.)
Nonetheless, on April 17, 2017, the IHO denied M.F.’s request for
her desired pendency placement. (Id. ¶¶ 5, 82; Attach. 1.) M.F. appealed
the IHO’s pendency decision to a State Review Officer (SRO). (Compl.
¶ 6.) On June 22, 2017, the SRO affirmed the denial of M.F.’s requested
pendency placement and determined that V.G.’s proper pendency
placement was governed by his September 11, 2013 IEP, which included
homebound instruction. (Id., Attach. 2 at 11, 13.) M.F. alleges that “[]SED,
through the SRO, has created precedent that prevents V.G. from obtaining
a proper pendency placement during any and all disputes that may occur
10
The pendency provisions of the IDEA and N.Y. Educ. Law
generally require that a child remain in his current placement during the
pendency of proceedings related to identification, evaluation, or placement
of the child. (Compl., Attach. 1 at 4-5.) The inquiry centers on identifying
the child’s current educational placement, which has been found to be the
last agreed upon placement when the due process proceeding is
commenced. (Id.)
6
until the end of the 2017-2018 [school year.]” (Compl. ¶ 101.)
On July 12, 2017, the IHO issued a decision on M.F.’s due process
complaint. (Id. ¶ 7; Attach. 3.) The IHO found that the District failed to
provide a FAPE to V.G. from September 2016 through January 2017. (Id.,
Attach. 3 at 17-18.) To remedy this violation, the IHO awarded M.F.
compensatory education services as follows: 400 hours of private tutoring
at a rate of $125.00 per session as well as twenty-four hours of
occupational therapy, speech, and counseling services at a rate of $40.00
per session. (Id. at 18-19.) Thereafter, M.F. and the District each
appealed the IHO’s decision to the SRO. (Id., Attach. 4.) Specifically,
M.F. appealed the IHO’s decision insofar as it found that the District had
provided V.G. with a FAPE starting in January 2017, and the District
appealed the award of compensatory relief. (Compl. ¶ 8.)
On September 22, 2017, the SRO concluded that the District failed to
offer V.G. a FAPE from September 2016 through February 28, 2017 but
otherwise affirmed the compensatory award granted by the IHO. (Id. ¶ 8;
Attach. 4 at 16-17.)
M.F. challenges the correctness of the SRO’s decision, (Compl. ¶ 9),
and also alleges that the District failed to provide V.G. a FAPE for the
7
2017-2018 school year, (id. ¶¶ 91-96). However, M.F. did not file a due
process complaint with an IHO regarding the 2017 school year. (Id. ¶ 99.)
She argues that doing so would have only further delayed V.G.’s
education. (Id.)
In the backdrop of the above-mentioned proceedings, the District
banned M.F. from its property except to attend impartial hearings, CSE
meetings, or with permission from the District Superintendent,11 (id. ¶¶ 6566, 87-88); attempted to arrest M.F. when she visited the District offices to
file her due process complaint on December 6, 2016, (id. ¶ 65); cancelled
or refused to convene CSE meetings over M.F.’s objections, (id. ¶¶ 66,
94); prohibited M.F. from “participat[ing] in a meaningful manner [at CSE
meetings] because [the District] would not address her concerns
and . . . did not consider [her] position,” (id. ¶¶ 95-96); failed to notify M.F.
that it was changing V.G.’s special education placement, (id. ¶ 91); and
failed to provide M.F. with V.G.’s bus or class schedule for the 2017 school
year, (id.). Additionally, at some unspecified time, the District or its
11
Although the complaint contains no specific allegations related to
Speach’s conduct, (see generally Compl.), it can be reasonably inferred
that she is the District Superintendent who could permit M.F. on the
premises, (id. ¶¶ 26, 88).
8
employees threatened to assault M.F., made a “bogus call to child
protective services that was determined to be unfounded,” and had armed
guards escort M.F. to CSE meetings. (Id. ¶ 103.) Moreover, M.F. alleges,
upon information and belief, that the District improperly intervened in
another school’s admissions process of V.G., (id. ¶ 92); “purposely
attempt[ed] to elicit a negative reaction from M.F., based on the
assumption that[,] because . . . she suffers from PTSD[,] . . . she will have
difficulty communicating and thinking when she is stressed,” (id. ¶ 97); and
did not put aside funds into an escrow account to pay for the compensatory
education services awarded by the IHO, (id. ¶ 98).
Meanwhile, V.G. has regressed academically and socially. (Id.
¶ 105.)
B.
Procedural History
M.F. commenced this action on December 22, 2017. (Id.) She
asserts claims pursuant to the IDEA, (id. ¶¶ 106-107), Article 89 of the N.Y.
Educ. Law, (id. ¶¶ 106, 108, 131-34), and Part 200 of the N.Y. Comp.
Codes & Regs., (id. ¶¶ 106, 108), against all defendants.12 She also
12
It appears that M.F. asserts two claims challenging the SRO’s
decisions: one pursuant to § 4402 of the N.Y. Educ. Law challenging the
9
asserts Section 504 claims against the District and arguably against SED.
(Id. ¶¶ 109-119.) Additionally, M.F. asserts claims pursuant to Titles II,
(id. ¶¶ 120-25), and IV, (id. ¶¶ 126-30), of the ADA against the District and
Doe defendants. Lastly, she asserts tort claims for intentional infliction of
emotional “harm,” (id. ¶¶ 135-38), against the District and negligent training
and supervision, (id. ¶¶ 139-41), against the District and SED.
Thereafter, SED moved to dismiss pursuant to Fed. R. Civ. P.
12(b)(1) and 12(b)(6), (Dkt. No. 13), which was followed by the District and
Speach moving for judgment on the pleadings pursuant to Fed. R. Civ. P.
12(c), (Dkt. No. 15). Thereafter, M.F. filed an affidavit in opposition to
defendants’ pending motions.13 (Dkt. No. 18.) M.F. also improvidently filed
an amended complaint, which was stricken by the court. (Dkt. No. 21.)
SRO’s decision on the IHO’s interim decision regarding V.G.’s pendency
placement, (Compl. ¶¶ 133-34), and the other pursuant to the IDEA
challenging the SRO’s decision on the IHO’s final decision, (id. ¶¶ 106107). Although it is irrelevant for reasons that follow, it should be noted
that M.F. does not bring her second claim under N.Y. Educ. Law against
Speach. (See id. ¶¶ 131-34.)
13
M.F.’s response disregards Local Rule 7.1(a), which requires that
a memorandum of law be included with all opposition to motions.
Additionally, M.F.’s attorney’s affidavit violates Local Rule 7.1(a)(2), as it
predominantly contains legal arguments rather than factual and
procedural background.
10
M.F. later filed a motion for leave to file an amended complaint, (Dkt. No.
22), which defendants argue is futile, (Dkt. Nos. 25, 26).
III. Standards of Review
A.
Rule 12(b)(6)
The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled
and will not be repeated here. For a full discussion of the standard, 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).
B.
Rule 12(b)(1)
Under Fed. R. Civ. P. 12(b)(1), the standard of review is similar,
except that the court “may refer to evidence outside the pleadings . . . [and
a] plaintiff asserting subject matter jurisdiction has the burden of proving by
a preponderance of the evidence that it exists.” Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000).14 Although “[t]he court must take
all facts alleged in the complaint as true and draw all reasonable
inferences in favor of plaintiff, . . . jurisdiction must be shown affirmatively,
and that showing is not made by drawing from the pleadings inferences
14
Unless otherwise noted, case quotations omit all internal quotation
marks, alterations, footnotes, and citations.
11
favorable to the party asserting it.” Morrison v. Nat’l Austl. Bank Ltd., 547
F.3d 167, 170 (2d Cir. 2008).
C.
Rule 12(c)
It is also well settled that
[i]n deciding a Rule 12(c) motion, [the court] employ[s] the
same standard applicable to dismissals pursuant to Fed. R.
Civ. P. 12(b)(6). Thus, [it] will accept all factual allegations in
the complaint as true and draw all reasonable inferences in
[plaintiff’s] favor. To survive a Rule 12(c) motion, [plaintiff’s]
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.
Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010).
IV. Discussion
A.
SED’s Motion to Dismiss15
15
As mentioned above, M.F. brings the following claims against
SED: a claim under the IDEA, (Compl. ¶¶ 106-107), a claim under Article
89 of the N.Y. Educ. Law, (id. ¶¶ 106, 108, 131-34), a claim under Part
200 of the N.Y. Comp. Codes & Regs., (id. ¶¶ 106, 108), and a tort claim
of negligent training and supervision, (id. ¶¶ 139-41). In an abundance of
caution, the court also considers M.F.’s Section 504 claim, (id. ¶¶ 116-17),
as brought against SED. (Dkt. No. 13, Attach. 1 at 12 & n.4.) Although
SED’s motion contains arguments pertaining to additional claims in the
complaint, (id. at 13-14), the court does not consider claims that M.F., who
is represented by counsel, appears to have made no effort to bring
against SED. See Hensel v. City of Utica, 6:15-cv-374, 2016 WL
1069673, at *3 n.6 (N.D.N.Y. Mar. 16, 2016) (“While the [c]ourt will accept
the allegations in the Complaint as true and draw all inferences in
[p]laintiff’s favor, [p]laintiff is represented by counsel and is not entitled to
12
1.
IDEA Claims
For the reasons articulated in SED’s brief, (Dkt. No. 13, Attach. 1 at
6-9), SED is not a proper party to M.F.’s IDEA claim challenging the failure
to provide V.G. with a FAPE. See Avaras v. Clarkstown Cent. Sch. Dist.,
No. 15 Civ. 2042, 2017 WL 3037402, at *12 n.16 (S.D.N.Y. July 17, 2017)
(“The District’s receipt of federal funding allows it to be sued in federal
court under the statute, but [SED]—which is not responsible for the
day-to-day formulation of students’ IEPs—is not the proper party to a suit
challenging an administrative determination as to the sufficiency of the
IEPs provided by the local education agency.”); B.J.S. v. State Educ.
Dep’t/Univ. of N.Y., 699 F. Supp. 2d 586, 599 (W.D.N.Y. 2010) (“[T]he
controversy over the propriety of the IEP and whether it deprives the
student of a[] FAPE remains one between the student, or, as here, the
student’s parent[], and the local educational agency because, under the
[IDEA], the primary responsibility for formulation and implementation of a[]
FAPE and IEP is that of the relevant educational agency, in this case the
[s]chool [d]istrict, not [SED].”). Accordingly, this portion of SED’s motion is
the same liberality afforded to pro se litigants.”).
13
granted and all IDEA claims against SED are dismissed.
2.
Section 504 Claims
To state a Section 504 claim, a plaintiff must allege, among other
things, that defendants excluded him from participation in or enjoyment of
an applicable program, solely by reason of his disability. See Loeffler v.
Staten Island Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009).
Although M.F. alleges conduct that, as discussed below, may be
sufficient to infer a violation of Section 504 by the District, the only
allegations regarding SED are set forth in entirely conclusory terms.
(Compl. ¶¶ 116-18.) That is, M.F. merely asserts that “[b]y the acts and
failures of . . . [SED,] . . . [SED] otherwise subjected . . . V.G. to
discrimination under programs and activities of the [District,]” and “[s]uch
discrimination was solely by reason of . . . V.G.’s disability.” (Id. ¶ 116.)
However, the complaint is devoid of any substantive allegations concerning
SED’s alleged conduct that would amount to discrimination based upon
V.G.’s disability. (See generally id.) The court need not accept M.F.’s
“legal conclusions masquerading as factual conclusions.” Smith v. Local
819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002).
As such, this portion of SED’s motion is also granted, and M.F.’s
14
Section 504 claim against SED is dismissed for failure to state a claim.
3.
State Law Claims
Lastly, because SED is a state agency, (Compl. ¶ 23), the Eleventh
Amendment bars all of M.F.’s state law claims against SED. See Y.D. v.
N.Y.C. Dep’t of Educ., No. 14CV1137, 2016 WL 698139, at *3-4 (S.D.N.Y.
Feb. 19, 2016) (dismissing IIED claim against SED based on Eleventh
Amendment); M.M. ex rel. JM v. N.Y.C. Dep’t of Educ., No. 9 Civ. 5236,
2010 WL 2985477, at *6 (S.D.N.Y. July 27, 2010) (dismissing N.Y. Educ.
Law claim against SED based on Eleventh Amendment).
Although M.F. does not argue that any exception to the Eleventh
Amendment bar applies, (Dkt. Nos. 18, 22, Attach. 1), it should be noted
that M.F.’s request for declaratory and injunctive relief, (Compl. ¶ 12 & 4143), does not save her claims. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 106 (1984) (holding exception to Eleventh
Amendment bar articulated in Ex parte Young, 209 U.S. 123 (1908)
inapplicable to actions against state officials on basis of state law);
Monserrate v. N.Y. State Senate, 695 F. Supp. 2d 80, 97 (S.D.N.Y. 2010)
(“It is well settled that federal courts may not grant declaratory or injunctive
relief against a state agency based on violations of state law.”).
15
Accordingly, this portion of SED’s motion is also granted and all of
the state claims asserted against it are dismissed.
B.
The District’s Motion for Judgment on the Pleadings
1.
Speach’s Conduct
The complaint does not contain any factual allegations referencing
Speach, except to posit that she is the District Superintendent. (Compl.
¶ 26.) As such, the District moves for her dismissal. (Dkt. No. 15, Attach.
1 at 17.) In light of the lack of allegations that can be reasonably attributed
to Speach, her dismissal is appropriate. See Dove v. Fordham Univ., 56 F.
Supp. 2d 330, 335 (S.D.N.Y. 1999) (“It is well-settled that ‘where the
complaint names a defendant in the caption but contains no allegations
indicating how the defendant violated the law or injured the plaintiff, a
motion to dismiss the complaint in regard to that defendant should be
granted.’”) (quoting Morabito v. Blum, 528 F. Supp. 252, 262 (S.D.N.Y.
1981)); cf. McAvoy v. DeMarco, No. 14–CV–6293, 2015 WL 1802601, at
*5 (E.D.N.Y. Apr. 16, 2015) (finding no basis for defendant’s personal
involvement where he was not named in the body of the complaint).16
16
Given that the complaint fails to allege any facts related to
Speach, other than that she is the District Superintendent, and because
M.F.’s responsive papers do not articulate a reason that failure does not
16
In response, M.F.’s attorney argues only that “claims
against . . . Speech [sic], in her official capacity, should . . . survive.” (Dkt.
No. 18 ¶ 15 (emphasis added).) “Official-capacity suits . . . generally
represent only another way of pleading an action against an entity of which
an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).
That is, “an official-capacity suit is, in all respects other than name, to be
treated as a suit against the entity.” Id. at 166. As a result, a court may
dismiss an official-capacity claim as unnecessary or redundant where a
similar claim is asserted against the entity which an officer is an agent.
See Sheriff’s Silver Star Ass’n of Oswego Cty., Inc. v. County of Oswego,
56 F. Supp. 2d 263, 265 n.3 (N.D.N.Y. 1999). Given that M.F. asserts
claims that may subject the District to liability, her official-capacity claims
against Speach are redundant.17 Accordingly, this provides another basis
also foreclose her state law claims against Speach, they too are
dismissed. See Smith v. Doe, No. 10 Civ. 3136, 2010 WL 4964394, at *1
(S.D.N.Y. Dec. 1, 2010); Morgan v. County of Nassau, 720 F. Supp. 2d
229, 235 (E.D.N.Y. 2010).
17
Although the above-cited cases generally relate to § 1983 claims,
their reasoning is no less persuasive here.
17
to dismiss and this portion of the District’s motion is granted.18
2.
Pre-November 10, 2015 Conduct
As part of the November 10, 2015 Agreement, M.F. agreed to
withdraw her due process complaint with prejudice and “release[d] the
District from any claims that could be asserted against the District arising
out of or relating to a [FAPE] for [V.G.] . . . prior to and including the date of
the execution of th[e] Agreement.” (Dkt. No. 6, Attach. 1 ¶ 11.) This
release appears to bar any of M.F.’s claims based on conduct occurring
prior to November 10, 2015. See Consolidated Edison, Inc. v. Northeast
Util., 332 F. Supp. 2d 639, 647 (S.D.N.Y. 2004) (holding, under New York
law, “[w]here a release is unambiguous, it must be enforced”).
In response, M.F. argues that the District should not be allowed to
rely on this release “because it breached that contract and has unclean
hands.” (Dkt. No. 18 ¶ 9.) However, M.F. fails to develop this argument or
point the court to any legal authority that would save her claims under the
circumstances. Notably, her argument that the District breached the
18
Furthermore, M.F.’s Section 504 claim against Speach fails
because “[i]ndividuals may not be held liable, in either a personal capacity
or an official capacity, under Section 504.” Davis v. N.Y. State Office of
Mental Health, No. 05–CV–5599, 2009 WL 5178440, at *7 (E.D.N.Y. Dec.
31, 2009).
18
Agreement is the same claim that she made in her state court complaint,
which was dismissed and is now final. (Dkt. No. 25 at 7.) As such, given
the unambiguous release in the Agreement, all IDEA claims arising prior to
the execution of the Agreement are barred. And, in any event, M.F. failed
to respond to the District’s facially-meritorious argument that any IDEA
claims relating to the District’s alleged failure to offer V.G. a FAPE prior to
execution of the Agreement are untimely based on the IDEA’s two-year
statute of limitations for filing a due process complaint. See 20 U.S.C.
§ 1415(f)(3)(C); see also Johnson v. Lew, No. 1:13–CV–1072, 2015 WL
4496363, at *5 & n.6 (N.D.N.Y. July 23, 2015) (“In this District, when a
non-movant willfully fails to oppose a legal argument asserted by a movant,
the movant’s burden with regard to that argument is lightened, such that, in
order to succeed on that argument, the movant need only show that the
argument possess[es] facial merit, which has appropriately been
characterized as a modest burden.”).
Accordingly, this portion of the District’s motion is granted.
3.
2016 School Year
M.F. did not appeal the IHO’s award of compensatory education for
the 2016 school year. (See Compl., Attach. 4 at 16 n.13.) As such, the
19
District argues that M.F. “failed to exhaust any claim regarding the
sufficiency of the compensatory education awarded by the IHO and such
claim has been abandoned.” (Dkt. No. 15, Attach. 1 at 11 (citing Taylor v.
Vt. Dep’t of Educ., 313 F.3d 768, 790 (2d Cir. 2002)).) In response, M.F.
appears to concede that her IDEA claims do not relate to the 2016 school
year:
[w]hether or not the 400 plus hours of compensatory education for
the undisputed denial of FAPE during September 2016 to end of
February 2017 was sufficient is not at issue here. The issue is
whether the denial of FAPE was actually more than two (2) years
which would require compensatory education in at least triplicate
of what has already been awarded.
(Dkt. No. 18 ¶ 10.) Accordingly, M.F.’s IDEA claims relating to the 2016
school year are deemed abandoned, and this portion of the District’s
motion is granted. See Jackson v. Fed. Express, 766 F.3d 189, 196 (2d
Cir. 2014) (“Where abandonment by a counseled party is not explicit but
such an inference may be fairly drawn from the papers and circumstances
viewed as a whole, district courts may conclude that abandonment was
intended.”).
4.
2017 and Subsequent School Years
M.F. seeks an award of “at least $365,000.00 per year for each and
20
every year until V.G. reaches [twenty-two] years of age.” (Compl. at 42.)
Insofar as M.F. seeks relief under the IDEA for the 2017, 2018 or any
school year beyond that, the District argues that such claims must be
dismissed because M.F. has not filed due process complaints challenging
the IEPs adopted for those school years. (Dkt. No. 15, Attach. 1 at 12
(citing Compl. ¶ 99).)
Indeed, it is well-settled that the IDEA requires an aggrieved party to
exhaust administrative remedies by filing a due process complaint before
bringing a civil action in federal court. See Polera v. Bd. of Educ. of
Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 488 (2d Cir. 2002).
Moreover, a plaintiff cannot seek relief under the IDEA for future school
years. See Streck v. Bd. of Educ. of the E. Greenbush Cent. Sch. Dist.,
642 F. Supp. 2d 105, 108 (N.D.N.Y. 2009) (“[T]he IDEA allows parents to
recover only actual, not anticipated, expenses[.]”).
In response, M.F. argues that she should be excused from the
general exhaustion requirements because filing a due process complaint
for the 2017 school year would be futile. (Dkt. No. 18 ¶¶ 5, 11.)
To be sure, “if plaintiffs can demonstrate that there is no relief
available to them through the administrative process, they may avail
21
themselves of the futility or inadequacy exceptions to the exhaustion
requirement.” Taylor, 313 F.3d at 790. “[R]elief available [means] relief for
the events, condition, or consequences of which the person complains,
[even if] not necessarily relief of the kind the person prefers.” Id.
Furthermore, “[t]he plaintiff bears the burden of demonstrating futility.” Id.
Here, M.F.’s attorney asserts in his affirmation that “[s]ince [M.F.]
would be bringing the same claim for pendency placement for the 2017
school year, it follows that filing administrative due process claims would
prove futile because no one will consider the issue without the prior
decisions being overturned by this [c]ourt.” (Dkt. No. 18 ¶ 5.) This theory
is difficult to follow. M.F. fails to explain why an IHO would not consider a
due process complaint filed in regards to V.G.’s IEP for the 2017-2018
school year––regardless of the IHO’s previous decision on V.G.’s
pendency placement during those proceedings, which have concluded.
Nonetheless, even if the specific relief M.F. prefers is unavailable, that
does not mean that relief is unavailable to her. See Taylor, 313 F.3d at
790.
Additionally, M.F.’s attorney asserts that
the treatment of [M.F. and V.G.] by [the District] and [its] staff was
22
so egregious and malicious that it should be determined that [the
District] is not capable of providing FAPE to V.G. and their
relationship has deteriorated to the point that further interaction
would only prove harmful to [M.F. and V.G.] Moreover, [the
District] has not even complied with the current decisions
awarding compensatory education and obtaining another award
would not help [M.F. and V.G.] when [the District] will not comply.
(Id. ¶ 11.) First, the complaint does not allege that the District has failed to
comply with the SRO’s decision awarding compensatory education, except
to the extent that M.F. alleges that she believes that the District has not put
aside funds for V.G.’s compensatory education in an escrow account.
(Compl. ¶ 98.) Second, the court agrees with the District that just because
M.F.’s challenge to V.G.’s 2016 IEP was unsuccessful, it does not follow
that she could not subsequently challenge V.G.’s IEP for the 2017 or future
school years. (Dkt. No. 19 at 5-6.) Under the IDEA, the District is
obligated to review a student’s placement annually and prepare a new IEP
for each school year. See N.Y. Educ. Law § 4402(2); 8 N.Y.C.R.R.
§ 200.4(f). Considering that V.G.’s IEP is required to be revisited each
year, the court will not speculate regarding whether the District will offer
V.G. a FAPE in the future. Likewise, given that prospective relief is
unavailable under the IDEA, the court will not speculate regarding whether
the District will comply with any awards yet to be issued. See Streck, 642
23
F. Supp. 2d at 108.
Ultimately, M.F. fails to meet her burden of demonstrating futility.
See Taylor, 313 F.3d at 790. As such, M.F.’s IDEA claims related to the
2017 school year, as well as any subsequent school year for which she
has not filed a due process complaint, are dismissed for failure to exhaust
her administrative remedies.
5.
Timeliness
The District also argues that, to the extent that M.F. seeks review of
the SRO’s decision regarding V.G.’s pendency placement, (Compl. ¶ 133),
that claim is untimely. (Dkt. No. 15, Attach. 1 at 17.) In response, M.F.’s
attorney asserts––again, pointing to no legal authority––that it is unclear
whether N.Y. Educ. Law § “4404(3)(b) [sic]” requires a party to appeal an
SRO’s interim decision within four months of its issuance or within four
months of the final decision on the matter, but, in any event, raising the
issue in M.F.’s closing brief and final appeal to the SRO makes the claim
timely. (Dkt. No. 18 ¶ 14.)
To be sure, an appeal of an SRO’s determination must be
commenced within four months. See N.Y. Educ. Law § 4404(3)(a). There
is nothing ambiguous about the statute’s requirement that “[a]ny final
24
determination or order of a state review officer . . . may only be reviewed in
a proceeding brought in the supreme court . . . or in United States district
court” and “[a]ny such proceeding shall be commenced within four months
after the determination to be reviewed becomes final and binding on the
parties.” Id. (emphases added). Here, the interim order regarding
pendency was the “determination to be reviewed,” and the statute
expressly includes that its mandates apply to any “order,” as well as final
determinations. Id. As such, the SRO’s order regarding V.G.’s pendency
placement became final and binding when it was issued on June 22, 2017.
(Compl. ¶¶ 6, 133.) M.F. fails to explain how raising the pendency issue in
her closing arguments or final appeal to the SRO was procedurally proper
or would extend her time to file an action in federal court appealing such a
decision. Indeed, the SRO’s final decision specifically refused to consider
his prior order regarding pendency and, instead, noted that M.F. could
seek review of that determination in state or federal court. (Compl.,
Attach. 4 at 9-10.) At the time of the SRO’s final decision, the filing window
for M.F. to challenge the order on pendency was still open. However, M.F.
failed to commence this action until December 22, 2017, more than four
months after the SRO’s order regarding pendency. (Compl.) Therefore,
25
M.F.’s claim seeking review of the SRO’s order on V.G.’s pendency
placement is untimely. As such, this portion of the District’s motion is
granted.
6.
ADA and State Law Claims
The District next argues that M.F.’s ADA and state law claims are
precluded by the doctrine of res judicata, in light of a state court judgment
involving the same allegations giving rise to her current claims. (Dkt. No.
15, Attach. 1 at 15-17.)
It is well-settled that a federal court must give full faith and credit to
prior state court adjudications. See Allen v. McCurry, 449 U.S. 90, 95-97
(1980). As such, federal courts are required to give the same “preclusive
effect to issues decided by state courts” as the state courts would
themselves afford, and therefore federal courts look to relevant state law in
determining whether res judicata or collateral estoppel applies to a state
court judgment. Id. at 95; see Boomer v. Bruno, 134 F. Supp. 2d 262, 267
(N.D.N.Y. 2001) (“The [c]ourt must look to New York law in order to
determine what preclusive effect should be given to” a New York State
judgment). In New York, “once a claim is brought to a final conclusion, all
other claims arising out of the same transaction or series of transactions
26
are barred, even if based upon different theories or if seeking a different
remedy.” O’Brien v. City of Syracuse, 54 N.Y.2d 353, 357 (1981).
The District convincingly argues that the same allegations that make
up M.F.’s ADA and tort claims in these proceedings were the predicates for
her claims in the state court proceedings. (Dkt. No. 15, Attach. 1 at 16-17
(citing Dkt. No. 6, Attach. 2).) In the face of these facially-meritorious
arguments, M.F.’s attorney admits that the state court action “involves
similar facts,” but argues (1) that “this [c]ourt does not have to give full faith
and credit to a decision by a state court that is still being litigated” and (2) it
would “severely prejudice [M.F.] to dismiss current claims that could not
have been brought previously because of exhaustion requirements.” (Dkt.
No. 18 ¶¶ 8, 13.)
M.F.’s first argument fails because the Appellate Division, Fourth
Department and New York Court of Appeals have affirmed the underlying
state court judgment. (Dkt. No. 6, Attachs. 3, 4; Dkt. No. 27, Attach. 1.)
M.F.’s second argument fails because it is undeveloped and cites to no
legal authority. That is, M.F. fails to explain what or how unspecified
“exhaustion requirements” would allow her to file an action in state court
but prohibit her from filing her ADA or tort claims in federal court. Given
27
that M.F. does not contest that her claims arise out of the same series of
transactions as those giving rise to her state court action, as revealed by a
review of her state court complaint, (Dkt. No. 6, Attach. 2), this portion of
the District’s motion is granted. See O’Brien, 54 N.Y.2d at 357; Johnson,
2015 WL 4496363, at *5 & n.6.
7.
Section 504 Claims
The District also argues that M.F.’s Section 504 claims must be
dismissed because there are no allegations of the District’s bad faith or
gross negligence. (Dkt. No. 15, Attach. 1 at 13-15.)
“Since Section 504 relief is conditioned on a showing of
discrimination, it requires something more than proof of a mere violation of
IDEA—i.e., more than a faulty IEP.” Gabel ex rel. L.G. v. Bd. of Educ. of
Hyde Park Cent. Sch. Dist., 368 F. Supp. 2d 313, 334 (S.D.N.Y. 2005); see
J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 70 (2d Cir. 2000). That is, “a
plaintiff must demonstrate that the school district acted with bad faith or
gross misjudgment.” Butler v. S. Glens Falls Cent. Sch. Dist., 106 F.
Supp. 2d 414, 420 (N.D.N.Y. 2000). “The plaintiff is not required to show
personal animosity or ill will. Rather, intentional discrimination may be
inferred when a policymaker acted with at least deliberate indifference to
28
the strong likelihood that a violation of federally protected rights will result
from the implementation of the challenged policy or custom.” Id.
To be sure, the complaint alleges that District violated Section 504 by
“fail[ing] to accommodate V.G.’s disability [insofar as the District] refused to
offer a school placement that addressed his elopement issues or need for
counseling,” (Compl. ¶ 113), and “[b]y failing to provide M.F. with an
appropriate placement for V.G. and FAPE to V.G. for the 2016-2017 and
2017-2018 school years,” (id. ¶ 115). M.F.’s attorney’s response merely
asserts that “[M.F.’s] Section 504 claims must survive because [the District]
acted with gross negligence and reckless indifference for at least six (6)
months,” (Dkt. No. 18 ¶ 12), in apparent reference to the District’s failure to
offer V.G. a FAPE, as determined by the SRO, from September 2016 to
February 2017. To the extent that M.F. relies on these allegations, she
fails to state a Section 504 claim. See J.D., 224 F.3d at 70; Gabel ex rel.
L.G., 368 F. Supp. 2d at 334; see also Streck v. Bd. of Educ. of the E.
Greenbush Sch. Dist., 280 F. App’x 66, 68 (2d Cir. 2008) (affirming
dismissal of ADA and Section 504 claims where student was “afforded
access to an existing program,” but the “content and sufficiency of the IEP”
were challenged).
29
However, other allegations of the complaint, viewed in the light most
favorable to M.F., arguably state a Section 504 claim. Specifically, M.F.
alleges that the District made it difficult for M.F. to participate in the
development of an appropriate IEP for V.G., (Compl. ¶¶ 65-66, 87-88, 9496, 103), stymied V.G.’s ability to access the educational program crafted
in his IEP, (id. ¶ 91), and either delayed, or failed to provide, agreed upon
educational services to V.G., (id. ¶¶ 73-75). Such allegations are sufficient
to demonstrate the District’s bad faith or deliberate indifference at this
stage. Cf. Gabel ex rel. L.G., 368 F. Supp. 2d at 336 (holding that “[a
d]istrict’s recommendation of an 8:1:1 program for [a student] after [a] CSE
had recommended a 12:1:1 program may in itself constitute the type of
gross negligence or reckless indifference Section 504 is meant to
address”); Butler, 106 F. Supp. 2d at 421 (holding that school officials’
development of IEPs that were inappropriate for student’s educational
needs and failure to provide student with certain special education services
“may constitute deliberate indifference to the strong likelihood that
plaintiff’s rights were being violated”).
As such, this portion of the District’s motion is denied with leave to
renew.
30
C.
M.F.’s Motion for Leave to File an Amended Complaint19
1.
Proposed Amendments
M.F.’s proposed amended complaint seeks to add four new claims20:
(1) “Count I A” alleges that SED has engaged in systemic violations of the
IDEA, (Dkt. No. 22, Attach. 2 at 39-4021); (2) “Count I B” alleges that the
District and Speach have engaged in systemic violations of the IDEA, (id.
at 40-42); (3) “Count III A” alleges that SED violated 42 U.S.C. § 1983 “by
failing to implement adequate policies, procedures, protocols, training, and
oversight so as to ensure compliance with the IDEA, Section 504, and New
19
M.F. again runs afoul of the Local Rules, which require a motion to
amend to “set forth specifically the proposed insertions and deletions of
language and identify the amendments in the proposed pleading, either
through the submission of a redline/strikeout version of the pleading
sought to be amended or through other equivalent means.” N.D.N.Y. L.R.
7.1(a)(4). Here, although M.F. purports to highlight all additions to her
original complaint, a review of the proposed amended complaint reveals
that she has changed allegations without specifically identifying such
changes. (See, e.g., Compl. ¶¶ 117-18; Dkt. No. 22, Attach. 2 ¶¶ 141-42.)
20
The proposed amended complaint also apparently seeks to add
two new defendants, Ryan Wall and Kerry Boylan. (Dkt. No. 22, Attach.
1.) However, neither Wall or Boylan are mentioned in the proposed
amended complaint. (See generally id., Attach. 2.) Accordingly, the court
deems this request to be made in error and denies it.
21
This citation refers to the CM/ECF-generated page numbers,
given that M.F. duplicates paragraph numbers and lists them out of order.
(See generally Dkt. No. 22, Attach. 2.)
31
York State law,” (id. ¶¶ 168-69); and (4) “Count III B” alleges that the
District violated 42 U.S.C. § 1983 by “(a) adopting inappropriate policies
and procedures; (b) engaging in a widespread practice that constituted
custom or usage; (c) failing to supervise and train their employees to such
an extent that it amounts to deliberate indifference to the rights of those
who come into contact with such employees, and (d) failing to adopt
appropriate policies and procedures; with respect to” the development of
IEPs, special education services, and related services, (id. ¶¶ 170-73).
Otherwise, the claims in the proposed amended complaint seem the same
as the claims in the complaint.22 (Compare id., with Compl.)
Additionally, the proposed amended complaint contains the following
new factual allegations: V.G. has recently been diagnosed with Grave’s
Disease, (Dkt. No. 22, Attach. 2 ¶¶ 2, 60), the CSE did not afford adequate
consideration to V.G.’s symptoms, including “elopement, anxiety, bullying,
refusal to leave his room, etc.” during the 2013-2014, 2014, 2015, 2016,
and 2017 school years, (id. ¶ 3); the District did not attempt to implement
the program recommended by the CSE for the 2017 school year, (id.); the
22
The proposed amended complaint also purports to add a new
“Count I C”; however, that claim is merely a rewording of M.F.’s prior IDEA
claim against the District and Speach. (Id. at 42.)
32
IEP prepared for V.G. for the 2017 school year was based on insufficient
evaluative data and failed to adequately address M.F.’s concerns about
elopement, mood swings, hyperactivity, and other symptoms, (id.
¶¶ 93-97); and the District “never actually attempted to implement [the
2017] IEP and, instead, enrolled V.G. at the North Syracuse Junior
Highschool [sic] where they have faked his attendance records to collect
funds allocated toward V.G.’s special education,” (id. ¶ 118).
In regards to SED, the proposed amended complaint adds
allegations that SED failed to provide a mechanism for parents to
challenge the record submitted as a part of the state-level administrative
review process, which prejudiced M.F. and other parents when the District
fails to submit a sufficient record. (Id. at 34-36.)
2.
Futility
Leave to amend a pleading pursuant to Fed. R. Civ. P. 15(a) may be
denied if the amendment would be futile. See Knife Rights, Inc. v. Vance,
802 F.3d 377, 389 (2d Cir. 2015). An amendment is futile if the proposed
complaint, or any of its claims, could not survive a motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6). See Lucente v. Int’l Bus. Machs.
Corp., 310 F.3d 243, 258 (2d Cir. 2002); see also Hyatt v. LaValley,
33
9:16-cv-528, 2018 WL 4473389, at *4, *5-7 (N.D.N.Y. Aug. 2, 2018)
(denying motion to amend complaint due to futility where proposed claims
could not survive a motion to dismiss).
All defendants argue that the proposed amended complaint is futile
because it fails to remedy the issues requiring dismissal of the claims from
the original complaint, and the claims that it seeks to add cannot withstand
a motion to dismiss. (Dkt. Nos. 25, 26.) For the following reasons, the
court agrees with that assessment, except when it comes to M.F.’s Section
504 claim against the District, for the reasons discussed above, see Part
IV.B.7 supra, as well her § 1983 claims against the District and systemic
violation of the IDEA claim against SED, for the reasons discussed below,
see Parts IV.C.2.c,e infra.
a.
Proposed Claims against Speach
The proposed amended complaint does not add any new factual
allegations regarding Speach. (See generally Dkt. No. 22, Attach. 2.) As
such, M.F. has not remedied the problems identified above requiring her
removal as a party. To the extent that M.F. proposes to add a § 1983
claim against Speach, it fails to allege Speach’s personal involvement in
34
the alleged constitutional deprivation. See Ashcroft v. Iqbal, 556 U.S. 662,
676 (2009) (“Because vicarious liability is inapplicable to . . . § 1983 suits,
a plaintiff must plead that each [g]overnment-official defendant, through the
official’s own individual actions, has violated the Constitution.”); Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (“It is well settled in this Circuit
that personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under § 1983.”). As
such, this portion of M.F.’s motion is denied as futile. See Vance, 802 F.3d
at 389; Lucente, 310 F.3d at 258; Hyatt, 2018 WL 4473389, at *4, *5-7 .
b.
Systemic Violation Claim against the District
For the reasons set forth by the District, (Dkt. No. 25 at 15-16),
M.F.’s proposed claim alleging a systemic violation of the IDEA against it,
(Dkt. No. 22, Attach. 2 at 40-42), is an improper attempt to M.F.’s
exhaustion requirements. See, e.g., Cave v. E. Meadow Union Free Sch.
Dist., 514 F.3d 240, 250 (2d Cir. 2008) (holding complaints seeking relief
for a single student do not allege a “system-wide violation of the IDEA’s
mandates” absent allegations of “a district-wide policy of discrimination
against [disabled] students” or “that the administrative process is so
35
structurally tainted that [plaintiffs] would not have been afforded a fair and
impartial forum to present their claims”); Reyes v. Bedford Cent. Sch. Dist.,
16-cv- 2768, No. 16-CV-2768, 2017 U.S. Dist. LEXIS 159568, at *32
(S.D.N.Y. Sept. 27, 2017) (“Plaintiff points to no other circumstances, other
than her own, in which a child covered by the IDEA was deprived of special
education benefits because of a policy or practice of the [d]istrict[.]”); O.M.
ex rel D.M. v. Bd. of Educ. of the Wayne Cent. Sch. Dist., No.
6:14–cv–6487, 2015 WL 3952601, at *6-7 (W.D.N.Y. June 29, 2015)
(dismissing systemic violation claim where plaintiff parent’s substantive
allegations focused on district’s alleged failures regarding her child
“individually as opposed to systemic failures affecting other disabled
students in the [d]istrict” and parent “plainly d[id] not bring this action on
behalf of any individual other than her son”); Kalliope R. ex rel Irene v. N.Y.
State Educ. Dep’t, 827 F. Supp. 2d 130, 138 (E.D.N.Y. 2010) (“The
systemic violations exception applies where a 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.”); Mr. & Mrs. “B” v. Bd. of Educ. of the Syosset Sch. Dist., No.
36
96–CV–5752, 1998 WL 273025, at *4 (E.D.N.Y. Jan. 15, 1998) (“[T]his
case is not a class action directed at remedying systemic or structural
deficiencies. Rather, this case involves an individual student’s IEP.”);
Yamen by Yamen v. Bd. of Educ. of the Arlington Cent. Sch. Dist., 909 F.
Supp. 207, 210-11 (S.D.N.Y. 1996) (distinguishing cases where a plaintiff
seeks relief only with respect to a single student with Second Circuit
precedent recognizing the ability of class-action plaintiffs to bring claims
concerning systemic violations).
It is clear that the scope of the IDEA action against the District
remains limited to its alleged failure to provide a FAPE to V.G. (See
generally Dkt. No. 22, Attach. 2.) M.F. seeks relief only on behalf of her
son based on the District’s failure to offer him a FAPE. (Id. ¶ 10). The
proposed amended complaint does not plausibly allege that the District
caused harm to other disabled students. (Id. at 40-42.) Thus, despite
being labeled as a “systemic” claim, plaintiff’s new IDEA claim against the
District remains, in essence, a § 1415 claim under the IDEA. Accordingly,
the same reasons requiring dismissal of M.F.’s original IDEA claim against
the District would apply with equal force to this IDEA claim. As such, this
portion of M.F.’s motion is denied as futile. See Vance, 802 F.3d at 389;
37
Lucente, 310 F.3d at 258; Hyatt, 2018 WL 4473389, at *4, *5-7.
c.
Systemic Violation Claim against SED
Contrary to the crux of SED’s arguments that it is still an improper
party to M.F.’s IDEA claim because the scope of the action is limited to the
District’s alleged failure to provide V.G. a FAPE, (Dkt. No. 26 at 4-6),
M.F.’s proposed amendments adequately state a systemic violation claim
against SED. That is, M.F. alleges that
[]SED created and enforces policies that prohibit parents
appealing due process decisions before the SRO from
challenging the record on appeal produced by school districts and
there is no uniform standard for what records on appeal should
look like, how parent’s exhibits or district’s exhibits should be
labeled, or how what the copy the district serves on the parent
should look like [and] provide[s] no avenue for parents to
challenge the sufficiency of records on appeal produced by [the
District.]
(Dkt. No. 22, Attach. 2 ¶ 109.) Further, M.F. alleges that she “challenged
the record presented by [the District],” but was “denied the ability to
supplement the record on appeal []or clarify how exhibits were labeled.”
(Id. ¶ 110.) As such, M.F. alleges that she suffered an injury insofar as she
was “left at a disadvantage in that [the] District produced a record that
[she] could not cite to and was incomplete and in favor of [the District]’s
38
position.” (Id.)
To be sure, the court is skeptical of this claim’s viability given that
M.F. concedes that she was able to make a motion to supplement the
record in the administrative hearing and the SRO “ordered [the District] to
submit additional documents.” (Id. ¶ 112.) However, SED fails to convince
the court that this claim could not withstand a motion to dismiss as a result.
See Kalliope R., 827 F. Supp. 2d at 141 n.3 (finding SED was proper
defendant where plaintiff alleged SED affirmatively promulgated policy “that
allegedly interferes with the IEP development process for disabled
students in a systemic manner”); Quatroche v. E. Lyme Bd. of Educ., 604
F. Supp. 2d 403, 412 (D. Conn. 2009) (“The state education agency is a
proper party to actions involving claims of systemic violations of the
IDEA[.]”); see also Jose P. v. Ambach, 669 F.2d 865, 870-71 (2d Cir. 1982)
(noting state education commissioner could be proper defendant in suit
under predecessor statute to IDEA alleging procedural deficiencies in
system for evaluating and placing disabled children). The court notes that
this claim hangs on by a thread, but the issue ultimately requires further
elucidation by SED––perhaps in a more specific motion to dismiss.
Accordingly, because SED has not sufficiently demonstrated that it would
39
be futile, this portion of M.F.’s motion for leave to amend is granted.
d.
Section 1983 Claims against SED
A § 1983 claim requires a plaintiff to show the deprivation of a right,
privilege, or immunity secured by the Constitution and its laws by a person
acting under the color of state law. 42 U.S.C. § 1983. It is well-settled that
states and state agencies are not “persons” subject to suit under § 1983.
See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65-66 (1989).
Furthermore,“New York has not consented to § 1983 suits in federal court.”
Mamot v. Bd. of Regents, 367 F. App’x 191, 192 (2d Cir. 2010).
Accordingly, this portion of M.F.’s motion is denied as futile. See Vance,
802 F.3d at 389; Lucente, 310 F.3d at 258; Hyatt, 2018 WL 4473389, at *4,
*5-7 .
e.
Section 1983 Claims against the District
The viability of the § 1983 claims against the District is a closer call.
To be sure, M.F.’s proposed § 1983 allegations against the District, (Dkt.
No. 22, Attach. 2 ¶¶ 170-73), are vague and conclusory. See Proffitt v.
Village of Deposit, 3:15-cv-750, 2018 WL 1157940, at *3 n.4 (N.D.N.Y.
Mar. 12, 2018) (“When plaintiffs are represented by legal counsel, neither
40
the court nor defendants should have to engage in guesswork to address
every possible legal theory of a constitutional violation that is not clearly
delineated in their complaint.”). Additionally, a plaintiff cannot use § 1983
to circumvent IDEA exhaustion requirements where the relief sought was
available to them through the administrative review process. See Streck,
280 F. App’x at 68; see also French v. N.Y. State Dep’t of Educ., 476 F.
App’x 468, 473 (2d Cir. 2011) (affirming dismissal of § 1983 claim where “it
lack[ed] any factual basis other than the alleged IDEA violations and the
related allegation of discrimination”). However, contrary to the District’s
contention that the proposed amended complaint “contains no factual
allegations identifying any inappropriate policies, patterns, practices, or
customs of the District” and “the only facts that are pled pertain to V.G’s
individual special education program and the adequacy of that program to
meet his individual needs,” (Dkt. No. 25 at 21), there are sufficient
allegations outside of the District’s alleged denial of a FAPE that could
state a § 1983 claim. (See, e.g., Compl. ¶¶ 65-66, 73-75, 87-88, 91, 9497, 103.) Given that other claims against the District survive based on
these allegations that involve conduct outside the scope of the IDEA, the
court is not convinced that M.F.’s proposed § 1983 claim against the
41
District would be futile. Again, this is a close call that should be revisited.
f.
Remaining Allegations
Finally, the additional factual allegations sought to be added by M.F.
would not ameliorate the substantive issues affecting any of the claims
from the original complaint that the court has determined should be
dismissed. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)
(holding that where “[t]he problem with [plaintiff]’s causes of action is
substantive . . . better pleading will not cure it”). As such, to the extent that
M.F. attempts to save any of her previously dismissed claims based on the
proposed factual amendments to her complaint, this portion of M.F.’s
motion is denied as futile. See Vance, 802 F.3d at 389; Lucente, 310 F.3d
at 258; Hyatt, 2018 WL 4473389, at *4, *5-7 .
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that SED’s motion to dismiss (Dkt. No. 13) is GRANTED;
and it is further
ORDERED that the Clerk is directed to terminate SED as a party to
this action; and it is further
42
ORDERED that the District and Speach’s motion for a judgment on
the pleadings (Dkt. No. 15) is GRANTED IN PART AND DENIED IN PART
as follows:
DENIED with respect to M.F.’s Section 504 claim against the District;
and
GRANTED in all other respects; and it is further
ORDERED that the Clerk is directed to terminate Speach as a party
to this action; and it is further
ORDERED that M.F.’s motion for leave to file an amended complaint
(Dkt. No. 22) is GRANTED IN PART AND DENIED IN PART as follows:
GRANTED insofar as it seeks to add a § 1983 claim against the
District and a systemic violation of the IDEA claim against SED; and
DENIED in all other respects; and it is further
ORDERED that M.F. shall timely file and serve the original signed
amended pleading as set forth in Local Rule 7.1(a)(4), should M.F. fail to
do so, the complaint, as modified by this Memorandum-Decision and
Order, will remain the operative pleading; and it is further
43
ORDERED that defendants shall file a responsive pleading or renew
their motion to dismiss within the time allotted under the Rules; and it is
further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
March 29, 2019
Albany, New York
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