Parent and Student v. Pittsford Central School District et al
DECISION AND ORDER granting 36 Motion to Dismiss for Failure to State a Claim. Defendants motion to dismiss [#36] is granted. The first, second, seventh and eighth causes of action are dismissed without prejudice, pursuant to FRCP 12(b)(1). See, J etBlue Airways Corp. v. CopyTele Inc., 629 F. App'x 44, 45 (2d Cir. 2015) ([W]here a court lacks subject matter jurisdiction, it also lacks the power to dismiss with prejudice.) (quoting Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999)). The remaining causes of action are dismissed without prejudice, pursuant to 28 U.S.C. § 1367(c)(3). The Clerk of the Court is directed to close this action.Signed by Hon. Charles J. Siragusa on 2/17/17. (KAP)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PARENT and STUDENT,
DECISION AND ORDER
PITTSFORD CENTRAL SCHOOL DISTRICT,
MICHAEL PERO, Superintendent of the Pittsford
Central School District, KARL THIELKING, Principal
of Pittsford Mendon High School, LAURA HEFNER,
Assistant Principal of Pittsford Mendon High School,
MICHAEL LEONE, Pittsford Central School District
Human Resource Officer, and ANDREW BELLUSH,
formerly a teacher at Pittsford Mendon High School,
R. Brian Goewey, Esq.
Law Office of R. Brian Goewey, Esq.
45 Exchange Boulevard, Suite 716
Rochester, New York 14614
Michael P. McClaren, Esq.
Jeremy A. Colby, Esq.
Webster Szanyi LLP
424 Main Street
1400 Liberty Building
Buffalo, New York 14202
Plaintiffs maintain that Defendants discriminated against Student, a former high
school student, in violation of federal disability statutes, and also committed various torts
under New York State Law. Now before the Court is Defendants’ motion to dismiss the
Amended Complaint, for lack of subject matter jurisdiction, pursuant to Federal Rule of
Civil Procedure (“FRCP”) 12(b)(1), and for failure to state a claim, pursuant to FRCP
12(b)(6). The application is granted, and all of Plaintiffs’ claims are dismissed without
Unless otherwise noted, the following facts are taken from the Amended Complaint.
At all relevant times, Student was a high-school student at defendant Pittsford Central
School District, with an alleged disability. According to the Amended Complaint, Student
“had a 504 Plan that was designed to accommodate Student’s impairments.”1 However,
the Amended Complaint never describes either the disability or the contents of the 504
Plan, alleging instead that such information is “protected information from public
disclosure” under HIPAA, FERPA, “and other statutes.” Consequently, the Court has
before it a lawsuit based on an alleged failure to accommodate a disability, and an alleged
violation of a Section 504 Plan, where neither the disability nor the Section 504 Plan is
explained.2 Indeed, the only informative statements in the Amended Complaint concerning
either the alleged disability or the 504 Plan are that the 504 Plan “acknowledge[d] that
Student’s learning and social functions [were] impacted by Student’s impairments,”3 that
Student had a “504 Plan Tutor,”4 and that Defendants’ actions caused Student “distress,”
which was “exacerbated by” Student’s unspecified impairments.5
Against this vague backdrop, Plaintiffs allege that Defendants mis-handled an
employee disciplinary matter in such a way that it caused Student to experience emotional
Amended Complaint [#34] at ¶ 61.
Amended Complaint [#34] at ¶ ¶ 9, 12. While it may be true that such information is protected
generally, Plaintiff put her health and educational information at issue by filing this lawsuit. Moreover,
the Court has granted Plaintiffs the ability to proceed anonymously. Consequently, to the extent that
Plaintiffs have nevertheless chosen not to plead any facts concerning Student’s health or 504 Plan, that
is a tactical choice. However, neither HIPAA nor FERPA excuses Plaintiffs’ obligation to plead a
Amended Complaint [#34] at ¶ 85.
Amended Complaint [#34] at ¶ ¶ 54-55, 58.
See, e.g., Amended Complaint [#34] at ¶ ¶ 45, 48, 64, 74-77, 82. Although, the pleading does
not explain why Student had a tutor as part of the 504 Plan.
distress. More specifically, the Amended Complaint alleges that Parent became aware that
defendant Andrew Bellush (“Bellush”), a high-school English teacher employed by the
Pittsford School District, had posted a video on his personal Facebook page, in which he
appeared to be intoxicated. At the time, Student was enrolled in Bellush’s 10th grade
English class. Parent learned about the video after Parent overheard Student’s friends
talking about the video. Parent discreetly emailed Bellush about the video, and suggested
that he ought to consider removing it from his Facebook page, as it was being viewed by
students. Shortly thereafter, Parent sent Bellush a second email message, asking Bellush
to refrain from telling Student, who was enrolled in Bellush’s English class, that Parent had
notified him about the video, since “Student had certain impairments resulting in a 504
Plan,” and the knowledge that Parent had contacted Bellush about the Facebook video
“would exacerbate Student’s impairments.”6
Bellush responded by taking a screen-shot of Parent’s initial email message, and
placing it on his Facebook page, evidently to mock Parent’s suggestion. That is, Bellush
published the message suggesting that he remove the video from his Facebook page,
which included Parent’s name; he did not publish the second message, which referred to
Student’s alleged disability. Parent was unaware that Bellush had published the email.
Subsequently, approximately three months passed, during which Parent apparently gave
no further thought to the matter.
However, after that passage of time, Student was told, by classmates who had
viewed Bellush’s Facebook page, that Bellush had published Parent’s email message on
the Facebook page. Student experienced a “panic attack” over the matter, and notified
Parent of what Bellush had done. Parent contacted the school, which suspended Bellush
for one week.
In reaction to Bellush’s suspension, “several” unnamed classmates
Amended Complaint [#34] at pare 36.
“confronted and blamed Student for Bellush’s absence from school.”7
Student “felt betrayed” by Bellush’s actions, and “experienced emotional distress
that was exacerbated by Student’s [unspecified] impairments.”8 Consequently, Student
became upset at the prospect of being in Bellush’s classroom after he returned from his
suspension, and Parent communicated that fact to school officials. Parent requested a
meeting to discuss the matter, and on March 21, 2014, Parent and Student’s therapist met
with administrators and staff at the High School, including defendant Assistant Principal
Laura Hefner and the school psychologist. Parent indicated that Student was experiencing
“extreme distress” at the thought of Bellush returning to school, and Student’s therapist
opined that Student “should not have to return to Bellush’s class.”9 In response to those
concerns, school administrators offered Student “two alternatives” -- “either return to
Bellush’s class or transfer to the other 10th grade English class.”10 Plaintiff’s do not claim
that there was any appreciable qualitative difference between the two English classes.
Nevertheless, Plaintiffs maintain that “[t]ransferring to the other 10th grade English
class would have required Student to change Student’s schedule which would have been
disruptive to Student,” and would have “exacerbated Student’s mental distress due to
Student’s impairments.”11 Specifically, the Amended Complaint states that switching
classes “would have reinforced Student’s peers’ perception that Student and Parent were
responsible for Bellush’s suspension since Student would no longer be in Bellush’s English
Amended Complaint [#34] at ¶ 43.
Amended Complaint [#34] at ¶ ¶ 45, 48.
Amended Complaint [#34] at ¶ 56.
Amended Complaint [#34] at
Amended Complaint [#34] at
¶ ¶ 63-64.
class.”12 In sum, Student was worried that switching classes would draw negative attention
to her from classmates.
Parent and Student discussed the matter with Student’s therapist, who “advised that
remaining in Bellush’s class was the better of the two options[.]”13 Consequently, Plaintiffs
chose to have Student remain in Bellush’s class. Neither Parent, Student nor the therapist
requested any additional options at that time, nor did they claim that the School District was
required to offer additional options based upon Student’s 504 Plan. Indeed, the Amended
Complaint admits that the 504 Plan was not discussed at the meeting.14
Upon Bellush’s return to school, he made a statement to Student’s English class,
that “I won’t try to ruin your life like you tried to ruin mine.”15 Bellush directed the comment
to the class, and not to Student personally. Nevertheless, Student “understood” Bellush’s
comment as “Bellush’s way of blaming Student for his suspension.”16 Following Bellush’s
statement to the class, Student experienced additional “severe emotional distress” and
feelings of betrayal by Bellush. Without providing an actual date, the Amended Complaint
alleges that “after a while,” Student “stopped attending [Bellush’s] class.”17 In May 2014,
the high school provided an English tutor for Student, and Student completed the course
Amended Complaint [#34] at
Amended Complaint [#34] at
Amended Complaint [#34] at
Amended Complaint [#34] at
Amended Complaint [#34] at ¶ 73. According to the Amended Complaint, and despite the
alleged petulant statement that is attributed to Bellush, Student actually had nothing to do with Bellush’s
Amended Complaint [#34] at
with a grade of 96.18
On June 18, 2015, Plaintiffs commenced this action. The Amended Complaint
purports to state eight separate causes of action: 1) denial of a “free appropriate public
education” (“FAPE”) in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. §
794(a), based upon the School District’s failure to provide an English tutor, rather than
merely giving Student the option of either staying in Bellush’s class or moving to the other
English class; 2) violation of Title II of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § § 12131-34, based on the School District’s discrimination against Student on the
basis of a disability, “in not providing a tutor for 10th grade English”; 3) negligence under
New York State law, based upon the School District’s breach of duty in “not providing
Student with a tutor” after allowing Bellush to return to work; 4) negligence under New York
State law, based on the School District’s negligent hiring and supervision of Bellush; 5)
“negligence” based on the School District’s violation of a “statutory duty” under Section 504
of the Rehabilitation Act, by failing to consider the impact that Bellush’s return might have
on Student, who had a 504 Plan, and by failing to modify Student’s 504 Plan; 6) “negligent
infliction of emotional harm” based upon Bellush’s misconduct and the School District’s
failure to modify Student’s 504 Plan; 7) “violation of civil rights under 42 U.S.C. § 1983,”
based upon the School District’s violation of Section 504 and the ADA, with “deliberate
indifference,” by allowing Bellush to return to his job and by not offering Student an English
tutor; and 8) a claim for money damages by Parent, resulting from the School District’s
failure to provide Student with a FAPE.
On August 1, 2016, Defendants filed the subject motion (Docket No. [#36]) to
dismiss the Amended Complaint. Defendants first contend that all of Plaintiffs’ federal
See, Warren Affidavit, Docket No. [#36-3]. The Amended Complaint asserts that the only
reason Student received such a high grade was because Bellush inflated the grade after Parent served
a notice of claim on the School District. However, that bald accusation is not supported by any factual
claims must be dismissed for lack of subject-matter jurisdiction pursuant to FRCP 12(b)(1),
since Plaintiffs failed to exhaust their administrative remedies before commencing this
action. Alternatively, Defendants claim, pursuant to FRCP 12(b)(6), that Plaintiffs’ claims
fail as a matter of law. Plaintiffs oppose the application.19 On January 25, 2017, counsel
for the parties appeared before the undersigned for oral argument.20
Defendants’ motion is made pursuant to both FRCP 12(b)(1) and FRCP 12(b)(6).
With regard to the 12(b)(1) application to dismiss for lack of subject-matter jurisdiction, the
standard to be applied in pertinent part is as follows:
In resolving a motion to dismiss under Rule 12(b)(1), the district court must
take all uncontroverted facts in the complaint (or petition) as true, and draw
all reasonable inferences in favor of the party asserting jurisdiction. But
where jurisdictional facts are placed in dispute, the court has the power and
obligation to decide issues of fact by reference to evidence outside the
pleadings, such as affidavits. In that case, the party asserting subject matter
jurisdiction has the burden of proving by a preponderance of the evidence
that it exists.
Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)
(citations and internal quotation marks omitted).
With regard to Defendant’s motion to dismiss for failure to state a claim, the general
legal principles concerning motions under FRCP 12(b)(6) are well settled:
In Plaintiffs’ responsive papers, Plaintiffs’ counsel accuses Defendants’ counsel of “eroding”
Parent’s privacy, by mistakenly referring to “Parent” as “Mother.” Pl. Memo of Law at p. 1 (“By
misidentifying Parent, defendants have eroded some of the privacy protection afforded by securing
leave to proceed anonymously.”). Plaintiffs’ counsel’s emphasis on this point is difficult to fathom, since
in the publicly-filed Amended Complaint that he drafted, Parent is identified as the “mother” of Student
eight times. Amended Complaint at ¶ ¶ 2, 33, 40, 48, 55, 68, 75, 114. Applying Plaintiffs’ counsel’s
logic, he “eroded” his client’s privacy prior to Defendants’ counsel doing so.
On November 8, 2016, Plaintiffs filed their responsive papers. On January 25, 2017, the day
of oral argument, Plaintiffs faxed additional legal argument to the Court, concerning matters that were
addressed in Defendants’ initial moving papers months earlier. The Court declines to consider
Plaintiffs’ untimely submission, but that has no effect on the outcome because such papers offered
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain
statement of the claim showing that the pleader is entitled to relief, in order
to give the defendant fair notice of what the claim is and the grounds upon
which it rests. While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff's obligation to
provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do. Factual allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929
(2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007) (“To survive dismissal, the plaintiff must provide the grounds upon which his claim
rests through factual allegations sufficient ‘to raise a right to relief above the speculative
level.’ ”) (quoting Bell Atl. Corp. v. Twombly ) (footnote omitted).21
Exhaustion of Administrative Remedies
Defendants maintain that Plaintiffs’ ADA claims and Section 504 claims must be
dismissed for lack of subject matter jurisdiction, due to Plaintiffs’ failure to exhaust
administrative remedies. Plaintiffs admit that such exhaustion is ordinarily required, but
contend that they are excused from exhaustion, since the School District failed to advise
them of their procedural due process rights, after the School “denied” Student a tutor.
The applicable law on this point is clear and undisputed. At the outset,
[a]lthough plaintiffs do not plead an IDEA violation, it is well settled that
plaintiffs must exhaust administrative remedies under the IDEA whenever
they assert claims for relief available under the IDEA, regardless of the
It is of course well-settled that in resolving a 12(b)(6) motion, the Court is limited as to what it
can consider. See, Vasquez v. City of New York, No. 10 Civ. 6277(LBS), 2012 WL 4377774 at *1
(S.D.N.Y. Sep.24, 2012). (On a 12(b)(6) motion, “a court may consider ‘documents attached to the
complaint as an exhibit or incorporated in it by reference, ... matters of which judicial notice may be taken,
or ... documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in
bringing suit.’ “ Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quoting Brass v. Am.
Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993)).”).
statutory basis of their complaint, and that the failure to do so deprives the
court of subject-matter jurisdiction.
L.K. v. Sewanhaka Cent. High Sch. Dist., 641 F. App'x 56, 57 (2d Cir. Mar. 4, 2016)
(emphasis in original, internal quotation marks omitted). This IDEA exhaustion requirement
applies to claims under the ADA and Section 504 which involve the education of disabled
children. Id. (“[I]f the ‘theory’ behind a claim relates to the ‘education of disabled children,’
IDEA exhaustion is required unless plaintiffs demonstrate that their failure to exhaust
should be excused.”).
However, such exhaustion may be excused in certain instances, such as where
parents were never notified that administrative remedies were available to them. See,
Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 149 (2d Cir. 2002) (“While it is true
that IDEA plaintiffs are generally required to exhaust their administrative remedies prior to
seeking redress in federal court, this requirement is not inflexible. Exhaustion will be
excused where . . . the parents have not been notified that such remedies were available
to them.”) (citations omitted).
Here, Plaintiffs maintain that they are excused from exhausting the IDEA
administrative remedies because the School District failed to advise them of their
administrative remedies, when it “denied” Student a tutor. However, the Court finds that
Plaintiffs have not carried their burden on this point.
Defendants have submitted an affidavit [#36-2] from Todd Warren (“Warren”), “the
Student Services Teacher and Section 504 Coordinator” at the subject high school.
Warren indicates that he gave Student’s parents multiple notices concerning their
procedural due process rights under Section 504, prior to the events described in the
Amended Complaint. More specifically, Warren states that twice during the 2012-2013
school year, the district provided Parent with written copies of the Procedural Safeguards
Notice (“PSN”), and that on November 15, 2012, Parent acknowledged having received a
copy of the PSN.22 Warren further indicates that, in addition to providing Parent with two
copies of the PSN, the School District published the PSN on its website, which was publicly
available.23 Warren’s affidavit thus establishes that the School District twice provided
Parent with actual written notice of Parent’s procedural due process rights prior to the
alleged “denial” of a tutor in March 2014.
In response to Defendants’ submissions on this point, Plaintiffs have not submitted
any affidavits opposing the factual averments in Warren’s affidavit. Nor have Plaintiffs
claimed that they were unaware of their procedural rights. Instead, Plaintiffs’ counsel has
submitted an affirmation arguing both that it was improper for Defendants to submit the
affidavit from Warren, since it was outside of the pleadings, and that the Court cannot
make findings of fact in connection with the subject application.24 However, counsel’s
argument is clearly mistaken on these points, as parties can submit matters outside of the
pleadings on a Rule 12(b)(1) application, and the Court can resolve disputed issues of fact
relating to jurisdiction on a Rule 12(b)(1) application. See, e.g., Makarova v. United States,
201 F.3d 110, 113 (2d Cir. 2000) (“In resolving a motion to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1), a district court, as it did here, may refer to evidence
outside the pleadings.”). This aspect of Plaintiffs’ opposition therefore lacks merit.
Alternatively, Plaintiffs argue that a school district must give written notice to parents
whenever it “refuses . . . to change” the “educational placement” of a child or the “provision
of FAPE” to a child, and that the District’s “refusal” to provide Student with a tutor upon
Docket No. [#36-3] at p. 29.
Warren also states that Student’s 504 Plan did not call for Student to have an English tutor,
and that during the relevant school year, the School District never changed or reduced the services that
Student received pursuant to the 504 Plan.
See, Goewey Affirmation [#39-1].
Bellush’s return from his suspension amounted to such a refusal, which triggered the
requirement for the school district to provide Parent with additional notice of procedural
safeguards.25 Plaintiffs maintain that they are excused from exhausting administrative
remedies, because the school district did not provide such notice in March 2014.
Initially, the Court disagrees that the School District “refused” to provide a tutor.
Plaintiff’s use of the term “refuse” is contrary to its ordinary meaning, as there is no factual
allegation in the Amended Complaint indicating that the school district denied a request to
provide Student with an English tutor, or to otherwise change Student’s 504 Plan or
educational placement.26 The School District cannot be deemed to have “refused” to
provide a tutor when it was never asked to do so.27
Plaintiffs nevertheless argue that the school district was aware that Student had a
disability that was exacerbated by stress, and therefore should have offered Student an
English tutor, without being asked. Plaintiffs contend that the school district’s failure to do
so amounts to a “refusal to initiate or change the identification, evaluation, or educational
placement of the child, or the provision of a free appropriate public education to the child,”
within the meaning of 20 U.S.C. § 1415(b)(3), which would have triggered the requirement
Plaintiffs’ Memo of Law [#39] at p. 6.
Elsewhere in the Amended Complaint Plaintiffs indicate that “Parent was not offered a tutor,”
which is not the same thing as the school district “refusing” to provide a tutor. Amended Complaint
[#34] at ¶ ¶ 60-61.
Amended Complaint [#34] at ¶ ¶ 58, 70. Plaintiffs alternatively argue that the school district
had a duty under the circumstances to amend Student’s 504 by providing an English tutor, without any
prompting from Parent, but cite no instance in which comparable conduct has resulted in liability
against a school district under the ADA or Section 504, which require evidence of bad faith, gross
misjudgment or reckless or deliberate indifference. See, Pl. Memo of Law at p. 11 (Stating: “As PCSD
and its staff are education experts, it was not incumbent upon Parent to suggest any specific
accommodation other than [sic] to advise the defendants of the emotional distress that Bellus’s
misconduct had caused and the difficulty Student was having trying to focus and learn as result of
such.”). However, even if the Court reached the 12(b)(6) aspect of Defendants’ motion, it would find
that Plaintiffs have not pleaded plausible claims under those statutes, since to the extent that the
school district did anything wrong here regarding Student’s placement or FAPE, the allegations in the
Amended Complaint do not rise to the level of intentional discrimination.
to give additional notice of procedural safeguards.
The Court disagrees, for several reasons. To begin with, Plaintiffs have not
provided any example of a court interpreting 20 U.S.C. § 1415(b)(3) in that manner.
Additionally, the Amended Complaint belies Plaintiffs’ assertion that the school district
“should have” offered Student an English tutor upon Bellush’s return from his suspension.
On this point, it is necessary to emphasize that the provision of such a tutor would have
resulted in Student not attending either of the two sections of 10th grade honors English,
and instead, would have resulted in Student being removed from the English classroom
and receiving all English instruction from a tutor outside of class. However, removing
Student from the classroom in that manner would have surely drawn unwanted attention
to Student, according to Plaintiffs, who gave that very reason for having Student remain
in Bellush’s class in the first place: “Transferring to the other 10th grade English class
would have amplified Student’s emotional distress at it would have reinforced Student’s
peers’ perception that Student and Parent were responsible for Bellush’s suspension since
Student would no longer be in Bellush’s English class.” Amended Complaint [#34] at ¶ 62
(emphasis added). Accordingly, the Court cannot see how the school district can be
faulted for failing to offer Student a different option (tutoring) that would have also removed
Student from Bellush’s classroom. In any event, for reasons already stated the Court finds
that the subject meeting concerning Student’s apprehension over Bellush’s return to school
was not an event that triggered a duty by the school district to provide additional notice
under 20 U.S.C. § 1415(b)(3).
However, even assuming arguendo that the School District was required to provide
Parent with an additional procedural due process notice in connection with Bellush’s return
to work, the issue is whether Plaintiffs should be excused from exhausting administrative
remedies based on the School District’s failure to provide such notice at that precise
moment. On this point, it is undisputed that the school district provided Parent with such
notice on multiple prior occasions. On similar facts, the Second Circuit has held that the
prior notice was sufficient. See, L.K. v. Sewanhaka Cent. High Sch. Dist., 641 F. App'x 56,
58 (2d Cir. 2016) (Rejecting parent’s claim that school district had failed to provide notice
of procedural safeguards, where school had provided such safeguards, and parent had
acknowledged in writing that she received the notice) and Dervishi on behalf of T.D. v.
Stamford Bd. of Educ., No. 15-3636-CV, --- Fed.Appx. --- , 2016 WL 5852817 (2d Cir. Oct.
6, 2016) (Stating that, “the record shows that the Board gave Dervishi sufficient notice of
her procedural rights under the IDEA,” where, according to the brief and supplemental
appendix of the Defendant-Appellee, 2016 WL 2942590 at *23-24, the school provided the
parent with multiple copies of the procedural safeguards notice.). Consequently, the Court
finds that Plaintiffs unjustifiably failed to exhaust administrative remedies before
commencing this action, and that the Section 504 and ADA claims must therefore be
dismissed for lack of subject-matter jurisdiction. This includes the first and second causes
of action, as well as the eighth cause of action to the extent that it seeks money damages
for Parent based on the alleged ADA and Section 504 violations.
Plaintiffs’ Section 1983 Claims Are Unexhausted and Duplicative
Plaintiffs’ seventh cause of action purports to state a claim under Section 1983,
based on Defendants’ alleged violation of Section 504 and the ADA. More specifically,
Plaintiffs’ Section 1983 claim alleges that defendants were “deliberately indifferent”28 to
The Amended Complaint [#34] alleges that the school district’s failure to offer Student a tutor
evidenced “deliberate indifference,” since the school was aware that during the seventh and eighth
grades, Student had received all of her instruction from tutors. Id. at ¶ 91. However, the pleading fails
to explain why Parent, who was also obviously aware that such tutoring had previously been provided
to Student, failed to again request a tutor if the other options being offered to Student were
unacceptable, as Plaintiffs now claim. See, id. at ¶ 93 (“The two options provided to Parent and
Student by [the school district] were reasonably certain to exacerbate Student’s impairments[.]”).
“Student’s impairments and Student’s right to a free appropriate public education.”29
However, Plaintiffs also failed to exhaust their administrative remedies as to this § 1983
claim. In that regard, Plaintiffs were required to exhaust their administrative remedies as
to the § 1983 claim, since it also asserts a claim covered by IDEA. See, Cave v. E.
Meadow Union Free Sch. Dist., 514 F.3d 240, 249 (2d Cir. 2008) (Dismissing Section 1983
claim for failure to exhaust IDEA administrative remedies, where claim sought relief that
was available under IDEA, stating, “[W]e hold that the IDEA's exhaustion rule applies to
all of appellants' federal causes of action regardless of their statutory bases.”).
Furthermore, “[a] § 1983 action may not . . . be brought to vindicate rights conferred
only by a statute that contains its own structure for private enforcement.” Patterson v. Cty.
of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004). (On the other hand, where a plaintiff
is suing based upon a statute with its own structure for private enforcement, he “is not
precluded from bringing a concurrent § 1983 action, . . . so long as the § 1983 claim is
based on a distinct violation of a constitutional right.” Id.) In the instant case, both Section
504 and the ADA contain their own enforcement mechanisms, and the Amended
Complaint does not allege any “distinct violation of a constitutional right.” Rather, Plaintiffs’
§ 1983 claim is based on violations of Section 504 and the ADA, with only an additional
allegation that Defendants acted with deliberate indifference.30 Consequently, the § 1983
claim cannot be maintained. See, Grassel v. Dep't of Educ. of City of N.Y., No. 12 CV 1016
PKC, 2015 WL 5657343, at *12 (E.D.N.Y. Sept. 24, 2015) (“To the extent the Complaint
can be construed to assert a deprivation of civil rights under Section 1983, the Court finds
such a claim to claim to be duplicative of Grassel's ADA discrimination claims, therefore
requiring their dismissal.”).
Amended Complaint [#34] at
Amended Complaint [#34] at
¶ ¶ 135, 137.
For all of the foregoing reasons, Plaintiffs claims under Section 504, the ADA and
Section 1983 are dismissed.
The Court Declines to Exercise Supplemental Jurisdiction Over
the Remaining State-Law Claims
The Court having dismissed all claims over which it purportedly had original
jurisdiction, it declines to exercise supplemental jurisdiction over Plaintiff’s remaining statelaw claims, pursuant to 28 U.S.C. § 1367(c)(3). Accordingly, the third, fourth, fifth and sixth
causes of action are dismissed without prejudice.
Defendants’ motion to dismiss [#36] is granted. The first, second, seventh and
eighth causes of action are dismissed without prejudice, pursuant to FRCP 12(b)(1). See,
JetBlue Airways Corp. v. CopyTele Inc., 629 F. App'x 44, 45 (2d Cir. 2015) (“[W]here a
court lacks subject matter jurisdiction, it also lacks the power to dismiss with prejudice.”)
(quoting Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999)). The
remaining causes of action are dismissed without prejudice, pursuant to 28 U.S.C. §
1367(c)(3). The Clerk of the Court is directed to close this action.
Dated: Rochester, New York
February 17, 2017
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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