Dean v. Sch. Dist. of City of Niagara Falls, N.Y.

• Decision Date: 07 May 2009
• Docket Number: No. 07-CV-94S.,07-CV-94S.
• Citation: 615 F.Supp.2d 63
• Parties: Teresa E. DEAN, individually and as parent and natural guardian for J.D.J., Plaintiff, v. SCHOOL DISTRICT OF the CITY OF NIAGARA FALLS, N.Y., et al., Defendants.
• Court: U.S. District Court — Western District of New York

615 F.Supp.2d 63

Teresa E. DEAN, individually and as parent and natural guardian for J.D.J., Plaintiff, v. SCHOOL DISTRICT OF the CITY OF NIAGARA FALLS, N.Y., et al., Defendants.

No. 07-CV-94S.

United States District Court, W.D. New York.

May 7, 2009.

Maloney & Maloney, Mary E. Maloney, of Counsel, Niagara Falls, NY, for Plaintiffs.

Hiscock & Barclay LLP, Dennis R. McCoy, Frank V. Balon, April J. Orlowski, of Counsel, Buffalo, NY, for Defendants.

ORDER

WILLIAM M. SKRETNY, District Judge.

1. Plaintiff commenced this civil rights action against Defendants on February 21, 2007. (Docket No. 1.) On May 2, 2008, Defendants filed a Cross Motion for Summary Judgment (Docket No. 31), which this Court referred to the Honorable Leslie G. Foschio, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B), on May 20, 2008 (Docket No. 34).

2. On March 12, 2009, Judge Foschio filed a Report and Recommendation, in which he recommends that Defendants' Cross Motion for Summary Judgment be denied. (Docket No. 43.)

3. On April 6, 2009, Defendants filed Objections to Judge Foschio's Report and Recommendation (Docket No. 47), to which Plaintiff responded on April 16, 2009 (Docket No. 49).

4. Having carefully reviewed the Report and Recommendation, the pleadings and materials submitted by the parties, and Defendants' objections, this Court will accept Judge Foschio's recommendation in its entirety. Accordingly, Defendants' Cross Motion for Summary Judgment will be denied.

IT HEREBY IS ORDERED, that this Court accepts Judge Foschio's Report and Recommendation (Docket No. 43) in its entirety, including the authorities cited and the reasons given therein.

FURTHER, that Defendants' Objections (Docket No. 47) are DENIED.

FURTHER, that Defendants' Cross Motion for Summary Judgment (Docket No. 31) is DENIED for the reasons stated in Judge Foschio's Report and Recommendation.

SO ORDERED.

REPORT and RECOMMENDATION

LESLIE G. FOSCHIO, United States Magistrate Judge.

JURISDICTION

By order dated March 29, this case was referred to the undersigned by the Honorable William M. Skretny for disposition of all non-dispositive matters and report and recommendation on all dispositive issues. The matter is currently before the court on Defendants' cross-motion for summary judgment, filed March 2, 2008. (Doc. No. 31) ("Defendants' Cross-Motion").

BACKGROUND

Plaintiff Teresa E. Dean ("Dean"), individually and as parent and natural guardian of infant-Plaintiff J.D.J. ("J.D.J."), commenced this action pursuant to 42 U.S.C. § 1983 ("Section 1983") on February 21, 2007, alleging Defendants violated the Fourteenth Amendment ("the Fourteenth Amendment"), the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., and New York law. Complaint ¶ 1. Specifically, Plaintiffs, allege that Defendants, on several occasions between September 2004 and January 2006, denied J.D.J. his right to a free and appropriate education under the Fourteenth Amendment by prohibiting his attendance at Niagara Middle School, by failing to provide him with educational services to accommodate his disability under the IDEA and in failing to develop an Individualized Education Program ("IEP") for him as required by the IDEA. Complaint ¶¶ 14, 23, 26-28, 32, 33-37, 40-41; Defendants' Statement of Undisputed Facts (Doc. No. 31, attachment) ("Defendants' Fact Statement") ¶¶ 10, 12-13. Additionally, Plaintiffs assert violations of the Fourteenth Amendment alleging Defendants' failure to provide a free and appropriate education, Complaint ¶ ¶ 33-39, and Plaintiff J.D.J.'s rights protected by 42 U.S.C. § 1983. Complaint ¶ ¶ 40-43. Plaintiffs also assert state law claims for assault and battery, and defamation. Complaint ¶¶ 25, 29; Defendants' Fact Statement ¶ 14. Plaintiffs seek relief for "monies for additional years of education beyond said plaintiff's twenty-first birthday," as well as compensatory and punitive damages and attorneys' fees and costs. Complaint at 11; Defendants' Fact Statement ¶ 15.

On March 22, 2007, Defendants filed separate answers. (Doc. No. 2) ("Bianco Answer"), (Doc. No. 3) ("Granto Answer"), (Doc. No. 4) ("Holody Answer"), (Doc. No. 5) ("School District Answer"), (Doc. No. 6) ("Chille Zafuto Answer").

On May 2, 2008, Defendants filed a Notice of Cross-Motion for Summary Judgment (Doc. No. 31) ("Defendants' Cross-Motion"), along with a Statement of Undisputed Material Facts (Doc. No. 31, attachment 1) ("Defendants' Fact Statement"), an Appendix to Defendants' Fact Statement (Doc. No. 31, attachment 2) ("Appendix to Defendants' Fact Statement"), Exhibits A through I (Doc. No. 31, Exh. ___), the Declaration of Frank V. Balon, Esq. ("Balon Declaration"), a Memorandum of Law in Support of Defendants' Cross-Motion ("Defendants' Memorandum"), and exhibits.

Plaintiffs, on July 20, 2008, filed a Memorandum of Law in Opposition to Defendants' Cross-Motion, (Doc. No. 38) ("Plaintiffs' Memorandum in Opposition") to which Plaintiffs attached a Statement of Undisputed Facts ("Plaintiffs' Fact Statement"), and Exhibits 1 through 10 to Plaintiffs' Fact Statement ("Plaintiffs' Fact Statement, Exh(s). ___").¹ (Doc. No. 38). On August 11, 2008, Defendants filed a Reply Memorandum of Law in further support of Defendants' Cross-Motion for Summary Judgment. (Doc. No. 41) ("Defendants' Reply Memorandum"). Based on the following, Defendants' motion for summary judgment should be DENIED, in part, and DISMISSED as moot, in part.

FACTS², ³

Plaintiff J.D.J. brings this action by Teresa Dean, his parent and guardian. At all times relevant, Plaintiff J.D.J. was a student enrolled in the City of Niagara Falls School District in Niagara Falls, New York ("the School District"). Defendants' Fact Statement at 1 (citing Defendants' Cross-Motion, Exh. I) ("Chille-Zafuto Affidavit"). J.D.J., a student who took honors classes at Niagara Falls Elementary and a math class at the University at Buffalo, having an I.Q. of 141, was diagnosed with Asperger's Syndrome, Oppositional Defiant disorder and some symptoms of separation anxiety in June 2004. Complaint ¶ 15; Defendants' Answers ¶¶ 16; Plaintiffs' Memorandum in Opposition, Exh. 8 (entry Nov. 28, 2005). In August 2004, Dean notified the District, through its employees, Maria Chille Zafuto ("Chille-Zafuto"), Principal of Niagara Middle School in the City of Niagara Falls, and Jo A. Holody ("Holody"), School Nurse at Niagara Middle School in the City of Niagara Falls, of J.D.J.'s diagnoses. Complaint ¶ 17; Holody and Chille-Zafuto Answers ¶¶ 18.

The School District adopted an Accommodation Plan for J.D.J. pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which permitted J.D.J. to arrive at school one-half hour after and leave school one-half hour before the rest of his class, as well as providing other minor accommodations.⁴ Section 504 Accommodation Plans. The 2004-2005 Section 504 Accommodation Plan stated J.D.J.'s "limited major life activity" was "Asperger's disorder," and identified J.D.J. as also suffering from Oppositional Defiant Disorder and symptoms of separation anxiety. Id.; Plaintiffs' Fact Statement ¶ 8.

Plaintiffs completed and submitted to the School District all mandated medical forms prior to commencement of the 2005-2006 school year. Plaintiffs' Fact Statement ¶ 5; Plaintiffs' Memorandum, Exh. 4. By letter dated May 26, 2005, Bonnie Kane, 504 Compliance Officer for the School District, informed Teresa Dean that the school's 504 Committee recommended Plaintiff J.D.J. be "classified as a student with a disability that substantially limits one or more major life activities," and that he receive the "accommodations" listed on an Individualized Accommodation Plan enclosed with the letter. Plaintiffs' Memorandum in Opposition Exh. 4. On May 31, 2005, Chille-Zafuto and Holody sent J.D.J. to the child psychological ward at Niagara Falls Medical Center in an ambulance. Complaint ¶ 24; Defendants' Answers ¶¶ 25. Beginning May 31, 2005, Plaintiff Teresa Dean began documenting her encounters with Defendants.⁵ Plaintiffs' Fact Statement ¶ 16 (citing Plaintiffs' Memorandum in Opposition Exh. 8).

On October 25, 2005, Teresa Dean met with Principal Chille-Zafuto, and two of J.D.J.'s teachers, Mrs. Kurek and Mr. Corsaro, to discuss J.D.J.'s behavior. Plaintiffs' Memorandum in Opposition, Exh. 8 (entry October 25, 2005). As of that date, Mr. Corsaro was unaware of J.D.J.'s disability. Id. Chille-Zafuto stated she would copy material that Dean brought to the meeting which described in detail Asperger's Syndrome to J.D.J.'s teachers, but did not make copies of the material from Dean. Id. Subsequently, on November 23, 2005, Holody gave Plaintiffs a form indicating that J.D.J. may no longer attend school for an indefinite period of time until Plaintiff J.D.J. was evaluated by his doctor and went for bloodwork. Plaintiffs' Memorandum in Opposition, Exhs. 1 & 8. On the form, Holody wrote "A recent health appraisal of your child indicates 4th episode in 1 wk [sic]. Medication has been changed. Therapeutic levels maybe [sic] interacting with hormone changes." Id.; Plaintiffs' Fact Statement ¶ 1. However, Teresa Dean was unable to obtain the bloodwork because J.D.J.'s doctor, Dr. Paul Fazekas, would not authorize it. Plaintiffs' Memorandum in Opposition, Exh. 8 (entry Nov. 28, 2005). Also on November 23, 2005, Principal Chille-Zafuto wrote an e-mail to Cynthia A. Bianco, Assistant Superintendent of Niagara Falls City School District, requesting approval for a medical home teaching. Plaintiffs' Memorandum in Opposition, Exh. 2; Complaint ¶ 10; Defendants' Answers ¶ 11. In the e-mail, Chille-Zafuto acknowledged that J.D.J. suffers from Asperger's Syndrome⁶ and is bipolar, and expressed her belief that the District is "not equipped with the personnel to help [J.D.J.] cope with our learning environment." Plaintiffs' Memorandum in Opposition Exh. 2 (bracketed material added)....