M.A. v. N.Y. Dep't of Educ.

• Decision Date: 25 February 2014
• Docket Number: No. 10 Civ. 3646(DAB).,10 Civ. 3646(DAB).
• Citation: 1 F.Supp.3d 125
• Parties: M.A., Individually and on behalf of her minor child, W.A., Plaintiff, v. NEW YORK DEPARTMENT OF EDUCATION, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

1 F.Supp.3d 125

M.A., Individually and on behalf of her minor child, W.A., Plaintiff,

v.NEW YORK DEPARTMENT OF EDUCATION, et al., Defendants.

No. 10 Civ. 3646(DAB).

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

Signed Feb. 25, 2014.

Gary S. Mayerson, Tracey Spencer Walsh, Mayerson and Associates, New York, NY, for Plaintiff.

Kimberly Dorothy Conway, Thaddeus Jeremiah Hackworth, New York City Law Depart. Office of the Corporation Counsel, New York, NY, for Defendants.

ADOPTION OF REPORT AND RECOMMENDATION

DEBORAH A. BATTS, 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 133–34, 151.) 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.)

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.” Fed.R.Civ.P. 72(b)(2); accord28 U.S.C. § 636(b)(1)(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).

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 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 Plaintiffs' procedural rights under the IDEA.¹ (Report 144–46.) 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 144–46, 146–48.) 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 146.) The Report also recommended that the exhaustion requirement did not apply to Plaintiffs' state law claims. (Report 144 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 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 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...