Moskowitz v. Great Neck Union Free Sch. Dist.
| Decision Date | 04 August 2021 |
| Docket Number | 20-cv-1659 (KAM)(SIL) |
| Parties | CRAIG MOSKOWITZ and BARBARA MOSKOWITZ, each on their own behalf, and as parents on behalf of their minor child, S.M., Plaintiffs, v. GREAT NECK UNION FREE SCHOOL DISTRICT, THE BOARD OF EDUCATION OF THE GREAT NECK UNION FREE SCHOOL DISTRICT, DANA SLACKMAN, DR. GABRIELLA DUKE, KATE MUGNO, ROBIN TRICHON, DR. ANTHONY IACOVELLI, LUCIANA BRADLEY, and SARA GOLDBERG, each Individually, and in their respective official capacities, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
REPORT AND RECOMMENDATION
Presently before the Court, on referral from the Honorable Kiyo A Matsumoto, for Report and Recommendation, are Defendants' motions to dismiss Plaintiffs' complaint for lack of subject matter jurisdiction and failure to state a claim. Plaintiffs Craig Moskowitz and Barbara Moskowitz individually and as parents to S.M., their child with emotional and learning disabilities (together, the “Plaintiffs” or “Parents”), commenced this action against Defendants Great Neck Union Free School District (the “District”), the Board of Education of the Great Neck Union Free School District (the “Board”), Dana Slackman (“Slackman”) Dr. Gabriella Duke (“Duke”), Kate Mugno (“Mugno”), Robin Trichon (“Trichon”) Dr. Anthony Iacovelli (“Iacovelli”), Luciana Bradley (“Bradley”), and Sara Goldberg (“Goldberg”) (collectively with Slackman, Duke, Mugno, Trichon, Iacovelli, and Bradley, the “Individual Defendants, ” and with the District and the Board, “Defendants”) by way of Complaint dated April 1, 2020, alleging violations of: (1) Section 504 of the Rehabilitation Act of 1983 (“Section 504”); (2) the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; and (3) 42 U.S.C. § 1983 (“Section 1983”) with respect to Plaintiffs' Due Process, Equal Protection, and Fourth Amendment rights for the 2017-2018 and 2018-2019 school years, as well as related state law claims for false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, negligent training and supervision, negligent performance of a governmental function, and assault and battery. See Complaint (“Compl.”), Docket Entry (“DE”) [1]. On December 11, 2020, Defendants filed their motions to dismiss, which Plaintiffs oppose. See DE [34], [35], [37], [39], [40], [41]. On April 1, 2021, Judge Matsumoto referred Defendants' motions to this Court for a Report and Recommendation as to whether they should be granted. See April 1, 2021 Electronic Order Referring Motion. For the reasons set forth herein, the Court respectfully recommends granting Defendants' motions.
Unless otherwise indicated, the facts set forth herein are taken from the Complaint, and are accepted as true for purposes of the instant motions.
S.M. is an eleven-year-old child who is a resident of Great Neck, New York, along with his parents, Plaintiffs Craig and Barbara Moskowitz, who are married. See Compl. ¶¶ 5, 12. S.M. has been diagnosed at various times as suffering from several emotional and learning disabilities and disorders, including Attention Deficit Hyperactivity Disorder (“ADHD”), Disruptive Mood Dysregulation Disorder (“DMDD”), Unspecified Anxiety, and Unspecified Trauma, which limit and inhibit S.M.'s ability to concentrate and learn. See id. ¶ 7. S.M.'s doctors noted that his learning and behavioral disabilities make him hyperactive, impulsive and unable to concentrate on a regular basis. See id. Accordingly, S.M. qualifies for special education and related services as defined and authorized by the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq. See id. ¶ 8. Despite these disabilities, S.M. was qualified to participate in an Integrated Classroom Teaching (“ICT”) educational program that Saddle Rock Elementary School (“Saddle Rock”) offers. See id. ¶ 10. Plaintiffs maintain that, while attending Saddle Rock, S.M. was not capable of defending himself or responding to bullying and harassment in the same way that a non-disabled child may have been, and that he was harassed and bullied on multiple occasions in the form of teasing, name calling, physical altercations and intimidation, which caused him “extreme emotional disstress, ” increased anxiety and hyperactivity, further exacerbating the disruption to his learning. See id. ¶ 11. The Parents allege that they, along with S.M.'s doctors, informed Defendants on a regular basis of S.M.'s disabilities and diagnoses. See Id. ¶ 14.
The District and its Board of Education are located in Great Neck, New York, with the Board of Education existing as a corporate body under New York law. See id. ¶¶ 15-16. Saddle Rock is a public school located within the District, which, during all relevant times, received federal funds as contemplated by Section 504 and the ADA. See id. ¶¶ 16-19. At all times relevant to this action, Defendant Slackman was a behavior clinician, specializing in special education, who worked as an employee or independent contractor with the District at Saddle Rock. See id. ¶ 20. Additionally, Defendant Duke was Saddle Rock's school psychologist, Mugno was S.M.'s fifth-grade teacher, Trichon was a speech and language therapist at Saddle Rock, Iacovelli was a school psychologist at Saddle Rock, Bradley was Saddle Rock's principal, and Goldberg was Saddle Rock's assistant principal. See id. ¶¶ 20-26. Plaintiffs allege that the Individual Defendants have both individual and collective duties and responsibilities to protect children with disabilities, including S.M. See id. ¶ 27.
Defendants were aware of S.M.'s disabilities at the time he first enrolled at Saddle Rock. See id. ¶ 30. Accordingly, S.M. received an individualized education program (“IEP”) to ensure he received the education and skills necessary for his educational and social advancement. See id. ¶ 32. According to his IEP, S.M. was to learn in an “ICT classroom setting, ” and was to receive small group counseling sessions during school, as well as speech and language therapy in small group settings. See id. ¶ 33.
Plaintiffs maintain that, during the 2017-2018 school year, S.M. endured continuous bullying and harassment by his classmates, which they discussed with all of the Individual Defendants, including providing Iacovelli with recordings of S.M. recounting the alleged conduct. See id. ¶¶ 34-35, 37-38. The Parents maintain that Defendants “blamed” S.M. for these incidents, claiming that he “caused” them because he placed himself “in the path” of bullies, and did nothing to alleviate the alleged harassment and bullying. See id. ¶¶ 36, 38. Eventually, Plaintiffs filed a police report regarding the continuing bullying and harassment, after which Craig Moskowitz spoke with a number of Individual Defendants to express his concerns as to these incidents and the fact that Defendants were failing to protect S.M. See id. ¶ 37. Plaintiffs allege that these Individual Defendants responded that S.M. should stay away from any bullies and try not to put himself in their paths. See id. The bullying and harassment subsequently worsened. See id. ¶ 38.
These incidents continued into the 2018-2019 school year, during which the Parents spoke with Goldberg to express their ongoing concerns and frustrations. See id. ¶¶ 39-40. Goldberg reassured the Parents that Saddle Rock teachers and staff would maintain a careful watch over S.M. See id. ¶ 40. Plaintiffs claim that the events continued, and that S.M.'s behavior worsened in turn, interrupting his education. See id. ¶¶ 41-42. According to Plaintiffs, Defendants witnessed the bullying and harassment throughout the school year, and the Parents further alerted them to these events. See id. ¶¶ 43-45. As a result of their continued interactions with Defendants as to S.M.'s classmates' conduct, the Parents allege they were banned from school grounds. See id. ¶ 46. The District later withdrew the ban in part. See id.
Plaintiffs allege that on April 1, 2019, Slackman stared at and taunted S.M., threatening to “drag” him to see Iacovelli. See id. ¶ 47. These and other actions exacerbated S.M.'s disability symptoms and caused him to feel threatened and unsafe. See id. As a result, S.M. began to run through the school in an attempt to leave the building. See id. Plaintiffs claim that Defendants chased him through the school while threatening him. See id. Finally, Mugno, Duke, Trichon and Slackman attempted to restrain S.M. by each taking hold of one of S.M.'s limbs and stretching him spread-eagle in the air, holding him in that position for over ten minutes while he screamed and cried, which Craig Moskowitz witnessed upon his arrival at Saddle Rock. See id. ¶¶ 48-49. Plaintiffs maintain that this method of restraint is unauthorized, and that, based on standard practices and protocols for de-escalation and crisis management, Defendants should have stood behind S.M. and held his arms and embraced him until he calmed down. See id. ¶¶ 50, 68. S.M. could not stand when Defendants released him, and Plaintiffs allege that the incident caused S.M. to suffer severe trauma, as well as physical and emotional injuries. See id. ¶ 50. The Parents claim that they repeatedly asked Defendants why they employed this restraint, but received no adequate or reasonable justification. See id. ¶ 51. Defendants then suspended S.M. from Saddle Rock for two days. See id.
Plaintiffs allege that, as a result of the April 1, 2019 incident, the Parents hospitalized S.M. at South Oaks Hospital for ten days for psychiatric...
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