M.A. v. New York City Department of Education et al

Filing 88

ADOPTION OF REPORT AND RECOMMENDATION for 83 Report and Recommendations, 61 Motion for Summary Judgment filed by Michael Bloomberg, Gina Demetrious, Katrina Choi, Claudine Cassan-Jellison, New York City Department of Education, Joel Klein, Susan Rappaport: Having conducted the appropriate levels of review of the Report and Recommendation of United States Magistrate Judge Michael H. Dolinger, dated September 5, 2013, the Court APPROVES, ADOPTS, and RATIFIES the Report in its entirety. Defenda nts' Motion for Summary Judgment is GRANTED. Accordingly, this Court finds (1) Plaintiffs' federal law claims premised on abuse and failure to report abuse are dismissed with prejudice; (2) Plaintiff's federal law claims concerning W.A .'s involved in mainstream classroom activities, purported efforts to remove services, the availability of her assistive communication devise, the sufficiency of the September 2008 CSE meeting, and the DOE's initial non-disclosure of its in ternal investigatory report are dismissed without prejudice for lack of exhaustion; and (3) Plaintiffs' state law claims are dismissed without prejudice because this Court declines to exercise supplemental jurisdiction. The Clerk of the Court is directed to close the docket in this case. (Signed by Judge Deborah A. Batts on 2/25/2014) (tn)

United States District Court
Southern District of New York
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M.A.,
Individually and on behalf
of her minor child, W.A.,
Plaintiff,
v.

10 Civ. 3646 (DAB)
ADOPTION OF REPORT
AND RECOMMENDATION

NEW YORK DEPARTMENT OF EDUCATION,
et al.,
Defendants.
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DEBORAH A. BATTS, United States District Judge.
On September 5, 2013, United States Magistrate Judge Michael
H. Dolinger issued a Report and Recommendation (“Report”),
denying Defendants’ Motion to Strike, recommending that
Defendant’s Motion for Summary Judgment be granted as to
Plaintiffs’ federal law claims, and recommending that Plaintiffs’
state law claims be dismissed without prejudice to their refiling
in state court.

(Report at 2, 50.) Plaintiffs filed timely

Objections to the Report, and Defendants responded.
For the reasons set forth below, after conducting the
appropriate levels of review following Plaintiffs’ Objections,
the Report shall be ADOPTED in its entirety.

Accordingly, the

Court GRANTS Defendants’ Motion for Summary Judgment, dismissing
Plaintiffs’ federal law claims and declining to exercise
supplemental jurisdiction over Plaintiffs’ state law claims.

I.

FACTUAL BACKGROUND
The Report meticulously details the facts in this matter,

and they will not be fully restated here.
In their Complaint, Plaintiffs allege that Defendants
violated Section 504 of the Rehabilitation Act and the Americans
with Disability Act (“ADA”) when they discriminated against W.A.
by (1) by excluding her from music class and other educational
programs and (2) removing her to the hallway for separate
instruction.

(Compl. ¶¶ 62-63, 68-69.) They also claim that

Defendants impermissibly retaliated against Plaintiffs for M.A.’s
advocacy of W.A.’s special education needs by “engaging in
prohibited interference, coercion and/or intimidation,” thereby
violating the ADA.

(Compl. ¶ 74.) The purported retaliatory acts

included McFadden’s abuse of W.A., the failure of school
administrators and teachers to report the abuse, and the
aforementioned discriminatory acts.

None of Plaintiffs’

discrimination claims relate to W.A.’s abuse or the failure to
report it.
Additionally, Plaintiffs allege state law causes of action,
namely intentional infliction of emotional harm, assault and
battery, and negligent training and supervision of school
personnel.

(Compl. ¶¶ 77-88.) These state law claims directly

relate to the alleged physical and emotional injuries that
McFadden inflicted upon W.A.

(Id.)
2

II.

DISCUSSION
A.

Standard of Review for a Report and Recommendation

“Within fourteen days after being served with a copy [of a
Magistrate Judge’s Report and Recommendation], a party may serve
and file specific written objections to the proposed findings and
recommendations.”
636(b)(1)(C).

Fed. R. Civ. P. 72(b)(2); accord 28 U.S.C. §

The court may adopt those portions of the report

to which no timely objection has been made, as long as there is
no clear error on the face of the record.

Wilds v. United Parcel

Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003).

A

district court must review de novo “those portions of the report
or specified proposed findings or recommendations to which
objection is made.”

28 U.S.C. § 636(b)(1)(C).

“To the extent,

however, that the party makes only conclusory or general
arguments, or simply reiterates the original arguments, the Court
will review the Report strictly for clear error.”

Indymac Bank,

F.S.B. v. Nat’l Settlement Agency, Inc., No. 07 Civ. 6865, 2008
WL 4810043, at *1 (S.D.N.Y. Nov. 3, 2008). After conducting the
appropriate levels of review, the Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made
by the Magistrate.

28 U.S.C. § 636(b)(1)(C).

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B.

The Exhaustion Requirement Under the Individual with
Disabilities Act (“IDEA”)

“It is well settled that the IDEA requires an aggrieved
party to exhaust all administrative remedies before bringing a
civil action in federal or state court.”

J.S. ex rel. N.S. v.

Attica Cent. Schs., 386 F.3d 107, 112 (2d Cir. 2004); 20 U.S.C. §
1415(i)(2)(A).

“Failure to exhaust the administrative remedies

deprives the court of subject matter jurisdiction.”

Cave v. E.

Meadow Union Free Sch. Dist., 514 F.3d 240, 246 (2d Cir. 2008).
A court looks to the “theory behind the grievance” to determine
whether the IDEA exhaustion requirement is triggered.

Id.

(quoting Polera v. Bd. of Educ. of Newburgh Enlarged City Sch.
Dist., 288 F.3d 478, 486 (2d Cir. 2002)).

This is such that

“potential plaintiffs with grievances related to the education of
disabled children generally must exhaust their administrative
remedies before filing suit in federal court, even if their
claims are formulated under a statute other than the IDEA (such
as the ADA or the Rehabilitation Act).”

Polera, 288 F.3d at 481;

20 U.S.C. § 1415(l).
Additionally, a plaintiff “may not bypass the IDEA’s
administrative exhaustion rule merely by claiming” damages that
are “unavailable under the IDEA.”

Cave, 514 F.3d at 247.

There

are, however, three limited circumstances in which failure to
exhaust, even though required, may be excused: “(1) it would be
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futile to resort to the IDEA’s due process procedures; (2) an
agency has adopted a policy or pursued a practice of general
applicability that is contrary to the law; or (3) it is
improbable that adequate relief can be obtained by pursuing
administrative remedies.”

Murphy v. Arlington Cent. Sch. Dist.

Bd. of Educ., 297 F.3d 195, 199 (2d Cir. 2002).

C.

Plaintiffs’ Objections

Plaintiffs filed timely Objections, objecting to the
Report’s findings that they had not exhausted their
administrative remedies and that the New York child abuse
reporting requirement was not triggered.

They also object to the

fact that the Report “disregarded Plaintiffs’ 56.1 Statement” and
recommended to decline exercising supplemental jurisdiction over
Plaintiffs’ state law claims.

(Pls.’ Obj. 12.) The Court has

reviewed for clear error the portions of the Report to which no
Objections have been made and finds none.

1.

Exhaustion of Administrative Remedies

Magistrate Judge Dolinger determined that, save the
retaliation claims premised on alleged abuse and the failure to
report such abuse, Plaintiffs’ discrimination and retaliation
claims related to W.A.’s educational opportunities and

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Plaintiffs’ procedural rights under the IDEA.1

(Report 31-34.)

Because Plaintiffs did not exhaust their administrative remedies
nor was Plaintiffs’ failure to exhaust excused, the Report
recommended that Summary Judgment be granted as to those claims.
(Report 31-34, 36-41.) However, Magistrate Judge Dolinger found
that the exhaustion requirement did not apply to Plaintiffs’
retaliation claims that Defendants physically and emotionally
mistreated W.A., subjected her to McFadden’s abuse, and failed to
report such abuse.

(Report 35-36.) The Report also recommended

that the exhaustion requirement did not apply to Plaintiffs’
state law claims.

(Report 29 n. 11.)

In their Objection, Plaintiffs mistakenly assert that none
of their claims relate to W.A.’s educational programs or
accommodations and thereby do not require exhaustion.2

(Pls.’

Obj. 9.) The Report relied upon two cases in finding that
exhaustion was required with respect to Plaintiffs’ allegations
pertaining to W.A.’s educational services.

See Cave, 514 F.3d at

248-49 (holding that the exhaustion rule applies to services

1

Upon a de novo review, the Court finds that the Report
correctly determined that none of the alleged discriminatory acts
related to McFadden’s treatment of W.A.
2

In their Objection, Plaintiffs admit that the instant
matter is unrelated to prior administrative hearings. (Pls.’
Obj. 9.) Plaintiffs, however, then argue that they did exhaust
their administrative remedies concerning W.A.’s educational
services. (Id. at 10.) To avoid confusion, after de novo review,
this Court finds that the instant matter is unrelated to
Plaintiffs’ prior hearings.
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designed to prepare students for “further education, employment,
and independent living” (quoting 20 U.S.C. § 1400(d)(1)(A)));
Polera, 288 F.3d at 488 (holding that claims relating to
educational services require exhaustion).

While Plaintiffs

correctly note that Cave and Polera are not dispositive with
respect to the abuse W.A. endured, (Pls.’ Obj. 9-11), they
misinterpret Magistrate Judge Dolinger’s findings.

The Report

did not rely on Cave and Polera with respect to the claims
related to the alleged abuses W.A. suffered and the failure to
report such abuse.

Moreover, upon clear error review, the Report

correctly determined that the exhaustion requirement did not
apply to Plaintiffs’ state law claims as well as their federal
retaliation claims that Defendants physically and emotionally
mistreated W.A., subjected her to McFadden’s abuse, and failed to
report such abuse.

See Xiang Li v. Rogers, No. 10 Civ. 803, 2011

WL 2432923, at *2 (N.D.N.Y. June 16, 2011) (applying clear error
review where the objection made an argument premised on an
incorrect summary of the report and recommendation).
Plaintiffs’ next Objection asserts that the Report
incorrectly found that W.A.’s exclusion from school activities,
such as her removal to the hallway for separate instruction and
her exclusion from music class, was subject to the exhaustion
requirement.

(Pls.’ Obj. 11.) Plaintiffs claim the Report erred

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because “the denial of access to an appropriate educational
program” is a Rehabilitation Act issue and not an IDEA issue.
(Pls.’ Obj. 11 (quoting Gabel ex rel. L.G. v. Bd. of Educ. Of
Hyde Park Cent. Sch. Dist., 368 F. Supp. 2d 313, 333-34 (S.D.N.Y.
2005)).) Although Gabel made that general statement, the court
did not define “access.”

Gabel, 368 F. Supp. 2d at 321-322

(citing Zahran ex rel. Zahran v. N.Y. Dep’t of Educ., 306 F.
Supp. 2d 204, 213 (N.D.N.Y. 2004)).

Zahran, which Gabel cited to

as the basis of its pronouncement, clarifies the meaning of
“access.”

See Zahran, 306 F. Supp. 2d at 213.

In Zahran, the

court discussed “access” in terms of reasonable accommodations
and the interplay among the Rehabilitation Act, ADA, and IDEA;
the court explained,
While reasonable accommodations must be offered to
ensure meaningful access to the program, the
[Rehabilitation Act and the ADA] do not require that
substantial changes be made to the program itself.
Therefore, under the disability discrimination
statutes, a plaintiff may challenge access to, but not
the content of, the programs at issue. Such is the
distinction between claims made under the disability
discrimination statutes and claims made under the IDEA.
Id.

Thus, the “denial of access” is not whether W.A. received

instruction in the hallway or was excluded from music class.3

3

Moreover, Gabel distinguished the Rehabilitation Act from
the IDEA because the former requires “a showing of
discrimination, [and] it requires something more than proof of a
mere violation of IDEA because ‘a plaintiff must demonstrate that
a school district acted with bad faith or gross misjudgment.’”
Gabel, 368 F. Supp. 2d at 333-35. Plaintiffs make no such
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Plaintiffs challenge the content of W.A.’s educational program
and whether the program was the least restrictive environment;
these claims thereby fall squarely within the IDEA and require
exhaustion.
Since Plaintiffs did not exhaust their administrative
remedies and were not excused from doing so, this Court lacks
jurisdiction with respect to their claims regarding W.A.’s
educational services.4

See Baldessarre v. Monroe-Woodbury Cent.

Sch. Dist., 820 F. Supp. 2d 490, 505-09 (S.D.N.Y. 2011), aff’d,
496 F. App’x 131 (2d Cir. 2012).

However, as explained and in

the Report, the exhaustion requirement does not apply to
Plaintiffs’ state law claims nor their federal retaliation claims
that Defendants physically and emotionally mistreated W.A.,
subjected her to McFadden’s abuse, and failed to report such
abuse.

2.

Not Reporting McFadden’s Abuse

While some of Plaintiffs’ federal claims survived the
exhaustion requirement, the Report recommended that those be

showing.
4

Although Plaintiffs claim that they are excused from
exhaustion under the futility exception, they merely rehash
arguments previously made before Magistrate Judge Dolinger and
thereby are reviewed for clear error. (Compare Pls.’ Obj. 11-12
with Pls.’ Opp’n Summ. J. 13-14.) This Court finds none.
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dismissed on the merits.

Plaintiffs challenge only one these

findings, namely the determination that Plaintiffs “failed to
show that the New York child-abuse reporting requirement was in
fact triggered in this case.”

(Report 46-47; Pls.’ Obj. 13.)

Plaintiffs generally argue that there is “ample support” to find
that Defendants failed to report the suspected abuse in violation
of the mandatory reporting law.

Accordingly, this argument

triggers clear error review, and the Court finds none.

3.

Disregarding Plaintiffs’ 56.1 Statement

Plaintiffs assert Magistrate Judge Dolinger “should have
given more weight to the contents” of their 56.1 Statement and
that if the court had done so, “the facts of the case would have
supported a finding in favor of Plaintiffs.”

(Pls.’ Obj. 12-13.)

Before setting forth the factual background, Magistrate Judge
Dolinger explained, “Rather than become mired in the incidental
issue of whether the Rule 56.1 statements accurately reflect the
evidence, we have relied only on those few Rule 56.1 statements
of fact on which the parties explicitly agree, and have otherwise
summarized the facts based on our own review of the proffered
evidence.”

(Report 7 n. 3.)

“The purpose of Local Rule 56.1 is to streamline the
consideration of summary judgment motions by freeing district
courts from the need to hunt through voluminous records without
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guidance from the parties.”

Holtz v. Rockefeller & Co., Inc.,

258 F.3d 62, 74 (2d Cir. 2001).

Plaintiffs do not point to any

piece of evidence that the Report overlooked but instead want
their 56.1 Statement to have more persuasive value.

Their

Statement, however, “is not itself a vehicle for making factual
assertions that are otherwise unsupported in the record,” and if
the evidence does not support those assertions, “they should be
disregarded and the record reviewed independently.”

Id.

Accordingly, Magistrate Judge Dolinger conducted an appropriate
review of the record and Plaintiffs’ 56.1 Statement.

4.

Supplemental Jurisdiction

Plaintiffs request that this Court should exercise
supplemental jurisdiction over their state law claims.

(Pls.’

Obj. 13-14.) Because this Court adopts the Report’s
recommendation to grant Defendants’ Motion for Summary Judgment
with respect to Plaintiffs’ federal law claims, Plaintiffs’
request is denied.

Magistrate Judge Dolinger correctly

recommended to decline the exercise supplemental jurisdiction.
See New York Mercantile Exch., Inc. v. IntercontinentalExchange,
Inc., 497 F.3d 109, 119 (2d Cir. 2009) (“In general, where the
federal claims are dismissed before trial, the state claims
should be dismissed as well.” (citation omitted)).

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III. CONCLUSION
Having conducted the appropriate levels of review of the
Report and Recommendation of United States Magistrate Judge
Michael H. Dolinger, dated September 5, 2013, the Court APPROVES,
ADOPTS, and RATIFIES the Report in its entirety.
Motion for Summary Judgment is GRANTED.

Defendants’

Accordingly, this Court

finds (1) Plaintiffs’ federal law claims premised on abuse and
failure to report abuse are dismissed with prejudice; (2)
Plaintiff’s federal law claims concerning W.A.’s involved in
mainstream classroom activities, purported efforts to remove
services, the availability of her assistive communication devise,
the sufficiency of the September 2008 CSE meeting, and the DOE’s
initial non-disclosure of its internal investigatory report are
dismissed without prejudice for lack of exhaustion; and (3)
Plaintiffs’ state law claims are dismissed without prejudice
because this Court declines to exercise supplemental
jurisdiction.

The Clerk of the Court is directed to close the

docket in this case.
SO ORDERED.
Dated:

New York, New York
February 25, 2014

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