Quatroche v. East Lyme Bd. of Educ.

• Decision Date: 30 March 2009
• Docket Number: Case No. 3:07CV1784 (AWT).
• Citation: 604 F.Supp.2d 403
• Court: U.S. District Court — District of Connecticut
• Parties: John E. QUATROCHE, II, Plaintiff, v. EAST LYME BOARD OF EDUCATION; Salem Board of Education; Connecticut State Board of Education; and Connecticut Department of Education, Defendants.

604 F.Supp.2d 403

John E. QUATROCHE, II, Plaintiff, v. EAST LYME BOARD OF EDUCATION; Salem Board of Education; Connecticut State Board of Education; and Connecticut Department of Education, Defendants.

Case No. 3:07CV1784 (AWT).

United States District Court, D. Connecticut.

March 30, 2009.

COPYRIGHT MATERIAL OMITTED

C.G. Kirkman, Jr., Gordon Krikman, Attorney at Law, Old Saybrook, CT, for Plaintiff.

Nicole C. Chomiak, Stacey L. Pitcher, Nuzzo & Roberts, Cheshire, CT, James G. Williams, Scott Roland Ouellette, Williams Walsh & O'Connor, North Haven, CT, Mark J. Sommaruga, Sullivan, Schoen, Campane & Connon, Darren P. Cunningham, Attorney General's Office, Hartford, CT, for Defendants.

RULING ON MOTIONS TO DISMISS

ALVIN W. THOMPSON, District Judge.

Plaintiff John E. Quatroche, II ("Quatroche") brings this action against the East Lyme Board of Education ("East Lyme Board"), the Salem Board of Education ("Salem Board") (collectively, the "town defendants"), the Connecticut State Board of Education ("CBOE"), and the Connecticut Department of Education ("CDOE") (collectively, the "state defendants"), alleging in Claim One, violation of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., in the appeal of Case # 07-224 as to all defendants; Claim Two, violation of the IDEA in the appeal of Case # 07-277 as to all defendants; Claim Three, systemic violation of the IDEA as to the state defendants; Claim Four, violation of the IDEA FAPE ("Free Appropriate Public Education") as to the town defendants; Claim Five, violation of § 504 of the Rehabilitation Act as to the town defendants; Claim Six, violation of ADA Title II as to the town defendants; Claim Seven, violation of 42 U.S.C. § 1983 based on the First Amendment as to the town defendants; and Claim Eight, violation of Quatroche's equal protection rights under the Connecticut State Constitution as to the town defendants. The state defendants have moved to dismiss Claims One, Two, and Three. Quatroche has withdrawn Claim Eight against the state defendants. The town defendants have moved to dismiss Claims One, Seven and Eight.¹ The motions do not address Claims Four, Five, and Six. For the reasons set forth below, the East Lyme Board's motion to dismiss and the Salem Board's motion to dismiss are being granted as to Claim Seven and denied as to Claim One and Claim Eight. The state defendants' motion to dismiss is being granted as to Claims One, Two, and Three, with leave to replead Claim Three.

I. BACKGROUND

Quatroche is a special education student, who is "profoundly deaf" (Third Amended Complaint (Doc. No. 42) ("Compl.") at ¶ 4) and has an identified specific language learning disability in the area of language. "He communicates using speech and his residual hearing as mitigated with his cochlear implants." (Compl. at ¶ 14.) At the time that this lawsuit was filed, he resided "primarily in the Town of Salem, CT and secondarily in the Town of East Lyme, CT." (Id. at ¶ 4.) East Lyme and Salem share responsibility for providing Quatroche with a public education. From August 2004 through June 2008, he was enrolled at East Lyme High School and his educational program at the high school was primarily directed by a teacher of the hearing-impaired, who was employed directly by Salem. He was identified as a student requiring special education and related services under IDEA Individual Education Plans (IEPs) at age three, and has been receiving these services since that time. His IEP has included the provision of captioning for all classes as a program accommodation. A captionist also served him at large group meetings and assemblies. He has had informal exposure to sign language, but is not fluent in it either receptively or expressively. As of April 2007, school officials placed Quatroche's reading skills at the fifth grade level. Quatroche avers that he has received "significant academic benefit from watching captioned video in terms of improved reading ability, increased vocabulary, and dramatically improved access to information." (Id. at ¶ 18.) Every morning, East Lyme High School broadcasts the "Morning Show" to the student body in each classroom through the school's internal television network. Lasting from five to ten minutes, the show normally includes news, sports, weather, and entertainment segments. According to Quatroche, the show is one of the primary ways the students receive information about what is going on at the high school. Parts of the show are now subtitled; however, most of the audio is not accessible to Quatroche. Quatroche estimates he understands only 50-60% of the information on the show, even with the assistance, when available, of a teacher for the deaf.

In 2005, 2006, and 2007, Quatroche, through his mother, met with the Salem and East Lyme Planning and Placement Team ("PPT") and requested that captioning be provided for the Morning Show. According to Quatroche, at each of those meetings, the chairs tabled discussion concerning his requests. During the 2007 meeting, arguments in support of the request were heard, but according to Quatroche the request was never documented by the chair of those meetings or rejected under prior written notice in the IEP developed at those meetings. The IEP inaccurately stated that "no other options were considered and rejected." (Compl. at ¶ 32.) Quatroche's mother was reassured each time, however, that the administrators were working on the request.

On July 13, 2007, Quatroche and his parents filed a due process complaint and request for an impartial due process hearing regarding the captioning requests. Attorney Deborah R. Kearns ("Kearns") was appointed the hearing officer. A pre-hearing conference was held on August 21, 2007 and a hearing date was set for September 13, 2007. On August 31, 2007, the town defendants filed motions to dismiss. Quatroche filed an opposition and a request for a hearing on the motions to dismiss. On September 13, 2007, the date scheduled for the hearing, Kearns announced, without hearing any testimony, allowing argument, or receiving exhibits, that the only issue presently before her was "[w]hether a Connecticut Department of Education, Individuals with Disabilities Education Act (IDEA) hearing officer has jurisdiction to decide a Section 504 of the Rehabilitation Act of 1973 matter if the Section 504 matter is the only issue in the claim for due process to be decided?". (Id. at ¶ 57.) Deciding in the negative, she said she did not have jurisdiction to hear such a matter. Her decision relied on the second footnote of a letter issued by the Commissioner of Education to Superintendents of Schools. See Theodore S. Sergi, Circular Letter: C-9, Series 2000-01, Reissue, available at www.sde.ct.gov/sde/ lib/sde/pdf/circ/circ00-01/c9.pdf ("Circular C-9"). The footnote stated that hearing officers "will not hear what is commonly referred to as `Section 504 only cases', but will do a review of Section 504 claims if the Mrs. L [consent decree] requirements are met, i.e., that a determination of a Section 504 claim is necessary to the resolution of the issues." The final decision on the plaintiff's first request for a due process hearing was dated September 18, 2007 and was mailed the next day. On November 5, 2007, Quatroche filed a Motion for Leave to Proceed in Forma Pauperis (IFP) (See Doc. No. 1.) The motion was granted on December 5, 2007. (See Doc. No. 2.)

In addition, Quatroche filed a second Request for Impartial Special Education Hearing on August 29, 2007. The request was based on an August 24, 2007 letter that Quatroche had received stating that the minutes from his April 2007 PPT meeting were "not fully filled out" and enclosing "an updated copy of those PPT minutes." (Compl. at ¶ 61.) According to Quatroche, the IEP copy was not updated but backdated and was "an altered version reflecting IEP team decision-making that never occurred...." (Compl. at ¶ 62.) This version stated that Quatroche had been denied the requested Morning Show accommodation during the original April 2007 meeting for "vague reasons unsupported by Plaintiff's educational record." (Compl. at ¶ 63.) Quatroche wanted a hearing regarding the irregular IEP alteration, and because the IEP team had not reconvened nor had it obtained the consent of Quatroche to revise the IEP as required by the IDEA, as this matter related to both his educational placement and the provision of his FAPE. Elisabeth Borrino ("Borrino") was appointed the hearing officer.

Borrino also did not hold a hearing, but issued a written decision citing the doctrines of res judicata and collateral estoppel, stating that "[s]ince the issue herein is the same one already heard and decided by a hearing officer in a prior due process hearing, this matter must be dismissed." (Compl. at ¶ 76.)

Quatroche exhausted the administrative remedies available to him under the IDEA. He filed a related complaint with the Department of Education Office of Civil Rights ("OCR"). OCR commenced an investigation, but terminated the investigation, as required by its governing regulations, when Quatroche exercised his appeal rights under the IDEA by filing suit.

II. LEGAL STANDARD

When deciding a motion to dismiss under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint and must draw inferences in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Although a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all...