B.J.S v. The State Educ. Dep't/univ. Of The State Of N.Y.

• Decision Date: 23 March 2010
• Docket Number: No. 08-CV-513A.,08-CV-513A.
• Citation: 699 F.Supp.2d 586
• Parties: B.J.S., Individually and on behalf of N.S., a child with a disability, Plaintiff,v.The STATE EDUCATION DEPARTMENT/UNIVERSITY OF the State of NEW YORK, Paul F. Kelly, State Review Officer, Richard P. Mills, Commissioner of Education, Springville-Griffith Institute Central School District Board of Education, Defendants.
• Court: U.S. District Court — Western District of New York

699 F.Supp.2d 586

B.J.S., Individually and on behalf of N.S., a child with a disability, Plaintiff,v.The STATE EDUCATION DEPARTMENT/UNIVERSITY OF the State of NEW YORK, Paul F. Kelly, State Review Officer, Richard P. Mills, Commissioner of Education, Springville-Griffith Institute Central School District Board of Education, Defendants.

No. 08-CV-513A.

United States District Court,

W.D. New York.

March 23, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

B.J.S., Springville, NY, Pro Se.

Andrew M. Cuomo, New York State Attorney General, Darren Longo, Assistant New York State Attorney General, of Counsel, Buffalo, NY, for Defendants State Education Department, Paul F. Kelly and Richard P. Mills.

Hodgson Russ, LLP, Paul I. Perlman, Ryan L. Everhart, of Counsel, Buffalo, NY, for Springville-Griffith Central School District.

ORDER

RICHARD J. ARCARA, District Judge.

Plaintiff commenced this action against the State Education Department, Paul F. Kelly, Richard P. Mills (collectively, the “State Defendants”) and the Springville-Griffith Institute Central School District (“School District”). This case was referred to Magistrate Judge Leslie G. Foschio pursuant to 28 U.S.C. § 636(b)(1). On June 12, 2009, the State Defendants filed a motion to dismiss all of plaintiffs claims against them. On February 9, 2010, Magistrate Judge Foschio issued a Report and Recommendation, recommending that the motion to dismiss be granted and that all of plaintiff's claims against the State Defendants be dismissed.

The State Defendants filed limited objections to Magistrate Judge's Report and Recommendation, and plaintiff did not file any objections. The Court deemed oral argument unnecessary.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the State Defendants' limited objections, the Court grants the State Defendants' motion to dismiss for the reasons stated in Magistrate Judge Foschio's Report and Recommendation. The Court finds it unnecessary to resolve the State Defendants' limited objections because the objected-to portions are merely dicta and do not impact the ultimate resolution of the motion.

Accordingly, for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation, the State Defendants' motion to dismiss is granted, and plaintiff's claims against State Education Department, Paul F. Kelly and Richard P. Mills are dismissed.

IT IS SO ORDERED.

REPORT and RECOMMENDATION

LESLIE G. FOSCHIO, United States Magistrate Judge.

JURISDICTION

By order of June 17, 2009 (Doc. No. 22), Hon. Richard J. Arcara referred this action to the undesigned for all pretrial matters. The case is presently before the court on Defendants, The State Education Department, The University of the State of New York, Paul F. Kelly, State Review Officer, and Richard P. Mills, Commissioner of Education's (“the State Defendants”) motion to dismiss filed June 12, 2009 (Doc. No. 19).

BACKGROUND AND FACTS¹

Plaintiff, B.J.S. (“B.J.S.” or “Plaintiff”) commenced this action by filing a complaint on July 10, 2008 alleging on behalf of Plaintiff and her child, N.S. (“N.S.”), then enrolled in Defendant Springville-Griffith Institute Central School District (“the School District”), that the School District denied N.S. a free and appropriate public education (“FAPE”) for the 2006-2007 school year required under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., (“the IDEA” or “the Act”). Specifically, Plaintiff requests annulment of an administrative review decision by Mr. Paul T. Bumbalo, an Independent Hearing Officer (“IHO”), a non-party, and a decision on appeal by Defendant Paul F. Kelly, a State Review Officer appointed by Defendant New York State Department of Education (“the SRO” or “SRO Kelly”), rendered March 10, 2008, which overruled the prior IHO's decision, based on the SRO's finding that the relief requested for Plaintiff and N.S. was moot. Plaintiff also alleges that the SRO improperly remanded the appeal to the IHO for testimony regarding N.S.'s need for “pendency services,” and that the IHO and SRO unlawfully directed an evaluation of N.S.'s disability's effect upon N.S.'s educational needs without Plaintiff's consent. Plaintiff claims the SRO's determination was arbitrary and capricious, and was based on an erroneous application of the Defendant Commissioner of Education's regulations governing special education services required to be provided under the Act. A copy of the SRO's decision is attached to the Complaint (“State Review Officer Decision”).

Plaintiff also claims damages for alleged due process violations by the School District, retaliation by the SRO based on the SRO's alleged hostility against parents, including Plaintiff, of disabled children who seek redress under the Act, and for pain, suffering and emotional distress. Plaintiff maintains that as a result of Defendants' violations of the Act, N.S. has been deprived of an ability to meet “state learning standards,” occupation and vision therapy, and counseling and speech services, and suffers “anger, frustration and resistence to the learning environment” as a result of discriminatory treatment by the School District's staff causing N.S. emotional, social, and academic harm. Plaintiff specifically alleges that the School District denied N.S. an FAPE and that the individual education plan (“IEP”) previously formulated for N.S. by the School District's Committee on Special Education (“CSE”) was improperly modified. Plaintiff also alleges Defendants violated the parent's right to full participation in the CSE which formulated N.S.'s IEP. Plaintiff seeks $10 million in compensatory damages and punitive damages based on the alleged violations of the Act, $5 million in punitive damages based on Plaintiff's retaliation and due process claims against the School District and SRO Kelly, and an order granting N.S. pendency status.²

In lieu of an answer, State Defendants moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), (2), (5), and (6), (Doc. No. 19) (“State Defendants' motion”), together with a declaration of Howard S. Beyer, assistant counsel, Office of Counsel for Defendant New York State Education Department (Doc. No. 20) (“Beyer Declaration”), and a Memorandum of Law (Doc. No. 21) (“State Defendants' Memorandum”). On July 6, 2009, Plaintiff filed a Response to Motion to Dismiss (Doc. No. 23) (“Plaintiff's Response”) together with Exhibits A-Q (“Plaintiff's Exh(s). ---”). On September 3, 2009, State Defendants filed a Reply Memorandum of Law in Support of Motion to Dismiss (Doc. No. 34) (“State Defendants' Reply Memorandum”).

At a hearing on State Defendants' motion conducted before the undersigned on September 10, 2009 (Doc. No. 36), State Defendants withdrew that part of the motion directed to an alleged lack of personal jurisdiction and proper service based on Plaintiff's asserted failure to timely serve State Defendants, in accordance with Fed.R.Civ.P. 4(m), and the court permitted Plaintiff to file a supplemental memorandum in opposition to the State Defendants' motion to dismiss directed to the motion under Fed.R.Civ.P. 12(b)(1) and (6). ³ On October 1, 2009, Plaintiff filed a Supplemental Response regarding Defendant's [ sic ] Motion to Dismiss (Doc. No. 37) (“Plaintiff's Supplemental Response”) and the Declaration of B.J.S. (Doc. No. 33) (“Plaintiff's Declaration”). On October 13, 2009, State Defendants filed State Defendants' Reply to Plaintiff's Supplemental Response (Doc. No. 38) (“State Defendants' Reply”).⁴ Defendant School District took no position on State Defendants' motion. Further oral argument was deemed unnecessary.

DISCUSSION

According to Plaintiff's allegations, Plaintiff's claim for relief is based on N.S.'s status as a student with a learning disability enrolled in the School District and Plaintiff's disagreement with the IEP for N.S. for the 2006-2007 school year, established by the School District's Committee on Special Education (“CSE”) and as modified by the IHO and SRO on Plaintiff's administrative appeals.⁵ Plaintiff also asserts violations of Plaintiff's due process rights to fully participate in the CSE proceedings related to N.S.'s IEP by the School District and SRO in reviewing N.S.'s IEP, and retaliation by the SRO.

In particular, Plaintiff alleges that the IHO failed to consider Plaintiff's “procedural” issues because of mootness, and erroneously considered only “substantive” issues regarding whether the IEP adopted by the CSE was appropriate, including providing N.S. with “pendency services,” for the 2006-2007 school year. Complaint at 3-4. Plaintiff also asserts that the IHO failed to properly consider several issues related to N.S.'s IEP, as formulated by the CSE, including, for example, the extent of counseling services to be provided to N.S., the need for additional parent training, reading services, N.S.'s need for a personal aide, a foreign language exemption, and a parent communication log. Id. at 4. The IHO also directed the CSE to review N.S.'s performance level, including whether N.S's disability causes his “refusal” to attend class and revise N.S.'s IEP accordingly, and directed that N.S. receive occupational therapy id. at 5, although Plaintiff does not specifically allege this direction to be a ground for relief. Finally, Plaintiff states the IHO improperly directed the School District's CSE evaluate N.S. using a “functional behavioral assessment” to measure the effect of N.S.'s disability on his ability to attend classes. Id. Following appeal to the SRO, Plaintiff asserted Defendant SRO Kelly erroneously annulled the IHO's decision because the SRO found the matter to be moot, that the SRO failed to render a timely decision, ⁶ and improperly remanded the matter to the IHO to develop, through additional...