Silano v. Tirozzi

• Decision Date: 05 January 1987
• Docket Number: Civ. No. B-83-521 (WWE).
• Court: U.S. District Court — District of Connecticut
• Parties: John SILANO, et al., Plaintiffs, v. Gerald N. TIROZZI, et al., Defendants.

651 F. Supp. 1021

John SILANO, et al., Plaintiffs, v. Gerald N. TIROZZI, et al., Defendants.

Civ. No. B-83-521 (WWE).

United States District Court, D. Connecticut.

January 5, 1987.

Anne S. Finnie, Laurence V. Parnoff, P.C., Bridgeport, Conn., for plaintiffs.

John R. Whelan, Asst. Atty. Gen., Hartford, Conn., Ruth C. Brufsky, Marsha Belman Moses, Ronai, Berchem & Moses, Milford, Conn., for defendants.

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR RECONSIDERATION

EGINTON, District Judge.

The present action is an appeal from the decision of an independent hearing officer in a special education case, whereby the plaintiffs seeks prospective relief, tuition reimbursement, $10,000,000 in damages, and attorney's fees. Plaintiffs brought this lawsuit under the Education for All Handicapped Children's Act of 1975, 20 U.S.C. Section 1401 et seq., as amended (now the Education for the Handicapped Act (EHA), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Section 794 (Section 504), and the Civil Rights Act, 42 U.S.C. Section 1983. John Silano sued inter alia, to enforce his right to a free appropriate education. 20 U.S.C. Section 1412(2)(B); 34 C.F.R. Sections 300.121, 300.300, 104.33. Jurisdiction was claimed, pursuant to 20 U.S.C. Sections 1415(e)(2) and (4), and by 28 U.S.C. Section 1331.

In October, 1983, the state defendants moved, pursuant to Fed.R.Civ.P. Rule 12(b)(6), for dismissal of those parts of the complaint containing a claim under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Section 794, for damages based on a common law charge of educational malpractice or for other damages against the state defendants, insofar as the complaint attempts to state a cause of action against the state defendants in either their official or individual capacities, and for costs and attorney's fees. In March 1984, the remaining defendants filed a parallel motion, including dismissal of any claims under 42 U.S.C. Section 1983.

In margin rulings dated October 2, 1984 Magistrate Thomas P. Smith recommended that the Motions to Dismiss be denied. On June 2, 1986 this Court, over objection, margin endorsed the Magistrate's recommendations. The defendants now ask the Court to reconsider its affirmation of the two decisions, on the grounds that the rulings are inconsistent with this Court's recent ruling in the case of Dubois v. Connecticut State Board of Education, No. B-81-155 (WWE), slip op. at 3-4 (D.Conn. Feb. 21, 1985) Available on WESTLAW, DCT datacase.

The Court GRANTS the defendants' Motions to Reconsider. Upon reconsideration, the magistrate's rulings denying defendants' motions to dismiss are adopted in part and reversed in part.

FACTS

The allegations of the complaint are as follows: Plaintiff John Silano is a multi-handicapped child with a concurrent history of an emotional problem affecting his ability to learn, which is secondary to grand mal epilepsy. He requires a highly structured but flexible school program, one-to-one or small group instruction combined with intensive behavior management.

Between December 1979 and December 1982, John attended a special education program under the auspices of the defendants, the State of Connecticut and the Trumbull Board of Education (Trumbull). The complaint further alleges that during that period John received virtually no benefit from the program purportedly designed for him. In fact, his functioning level deteriorated. Upon entry into the program, John was evaluated by Trumbull to be one year below age level; two years later, in December 1982, Trumbull assessed him to be three years and four months below age level. The few academic skills reported by Trumbull to have been mastered in March and June of 1982 could not be reproduced in November of that year, when he was tested by Dr. Prevey, a neuropsychologist. Dr. Prevey's findings confirmed a June 1982 study of John conducted by the Child Study Center of Yale University (Yale), which had recommended to Trumbull that John attend either the Foundation School or the Area Cooperative Educational Services (ACES) to receive one-to-one instruction with a continuous behavior modification component.

The complaint asserts that John's mother invoked the administrative procedures mandated by the EHA, because Trumbull refused to revise their program to respond to John's needs. It also alleged that the defendants acted outside the scope of their authority by failing, inter alia, to provide John with suitable services, by concealing from his parents through false reports John's true progress and that his educational programs were ineffective, and by conspiring among themselves and with the hearing officer to keep John in the local placement. John was unilaterally enrolled in the Foundation School program in December, 1982, under a regimen of intensive individual instruction and continuous behavior modification as recommended both by Dr. Prevey and Yale. The hearing officer, Sonia Stoloff, found that John had made substantial and significant progress at the Foundation School, that its program was appropriate and that Trumbull's program was inappropriate. Trumbull was ordered to reimburse John's mother for costs incurred by the placement.

Trumbull then proposed a program for John for the 1983-84 school year modeled upon the Foundation School's program. The hearing officer found the proposed program to be appropriate for John and that Trumbull could provide an appropriate summer program. By the time this decision was rendered, however, John was already participating in the more intensive Foundation School summer program.

The plaintiffs instituted this suit to obtain preliminary and permanent injunctions requiring the defendants to pay reasonable costs of tuition and transportation for John's attendance at the Foundation School summer program of 1983, and thereafter to require the defendants to provide John with an education at the Foundation School. In the alternative, they requested declaratory and injunctive relief requiring the defendants to maintain John in his current placement at the Foundation School during the pendency of this appeal. In addition, they requested damages of $10,000,000 and an award of attorney's fees and costs incurred by the exhaustion of EHA administrative remedies and this appeal.

In this motion for reconsideration, the defendants have asked the court to dismiss all of the plaintiff's causes of action and claims for relief other than their cause of action under the EHA and their claim for prospective relief or reimbursement under that Act. With respect to the remaining cause of action and claim, the defendants have also asked that the action be dismissed against those defendants who have been named in their individual capacity.

DISCUSSION

In passing on a motion to dismiss, the court must accept as true all well pleaded allegations in the complaint and must construe the allegations of the complaint in a light most favorable to the pleader. The count should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts which would entitle him to relief. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969); Williams v. Vincent, 508 F.2d 541, 543 (2d Cir.1974). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

A. Handicapped Children's Protection Act of 1986

The issue before the court is whether plaintiffs are entitled to relief under Sections 1983 of Title 42, U.S.C. and 504 of the Rehabilitation Act of 1973, 29 U.S.C. Section 794 (1978). By previous order, in reliance on Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 3470-74, 82 L.Ed.2d 746 (1984), this court found that the EHA, 20 U.S.C. Section 1400 et seq., was the exclusive avenue through which a handicapped child could assert his right to a free appropriate education; plaintiff's claims under Section 504 of the Rehabilitation Act and the equal protection clause of the fourteenth amendment were therefore precluded. Dubois v. Conn. State Board of Education, No. B-81-155 (WWE), slip op. at 3-4 (D.Conn. Feb. 21, 1985). Since that ruling was issued the Congress has enacted the Handicapped Children's Protection Act of 1986, Pub.L. No. 99-372, 100 Stat. 796, effective August 5, 1986. Section 3 of the Act, amending 20 U.S.C. 1415, provides as follows:

(f) Nothing in this title shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, title V of the Rehabilitation Act of 1973, or other Federal statutes protecting the rights of handicapped children and youth, except that before the filing of a civil action under such laws seeking relief that is also available under this part, the procedures under subsections (b)(2) and (c) shall be exhausted to the same extent as would be required had the action been brought under this part.

It appears that Congress now intends to provide that the EHA is not an exclusive remedy, overruling Smith. The question then becomes whether or not this remedial legislation should be given retroactive application.

On direct review "a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). All three exceptions operate here. The plain language of the statute fails to indicate that the provision at issue in this case, Section 3, is to be given retroactive effect. It is significant that while Section 2 of the Act (provision for award of attorney's fees to prevailing party) explicitly provides for retroactive application, Congress has not included a parallel provision under Section 3, despite the...