Vasquez v. N.Y.C. Dep't of Educ.
| Decision Date | 16 February 2023 |
| Docket Number | 22-CV-03360-PAC |
| Parties | LISA VASQUEZ, on behalf of herself and her infant Daughter, J.V., Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Defendant New York City Department of Education moves to dismiss the Amended Complaint of Plaintiff Lisa Vasquez and her infant daughter, J.V. Plaintiff seeks monetary damages, alleging a deprivation of J.V.'s rights under the Individuals with Disabilities Education Act (the “IDEA”), 20 U.S.C. § 1400 et seq., and New York Education Law Article 89, pursuant to 42 U.S.C. § 1983 (“Count I”); discrimination against J.V. in violation of Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794 (“Count II”); and a retaliation claim under Section 504, pursuant to 42 U.S.C. § 1983 (“Count III”). Plaintiff seeks to bring each claim for the 2019-2020, 2020-2021, and 2021-2022 school years. Pending before the Court is j
Defendant's motion to dismiss. For the reasons stated below Defendant's motion is GRANTED.
BACKGROUND |
The following allegations are taken from the Amended Complaint and administrative orders referenced therein.[1] See Am Compl., ECF No., 16; Def.'s MoL Exs. A, B, ECF No. 24.
J.V. is an eleven-year-old child with a speech and language impairment who lives with Plaintiff and J.V.'s sibling J.V.2 in Staten Island. Am. Compl. ¶¶ 6, 7, 39, ECF No. 16. J.V. received an Individualized Education Program (“IEP”) on November 13, 2017, that, among other things, referred J.V. for placement in a Non-Public School (“NPS”). Id. ¶ 7. When an NPS placement was not forthcoming, Plaintiff requested an impartial hearing, alleging that the Defendant failed to provide J.V. with a free appropriate public education (“FAPE”) for the 20162017 and 2017-2018 school years. Id. ¶ 8.
In two orders from August and October 2018 (“August 2018 Order” and “October 2018 Order”, respectively), an Impartial Hearing Officer (“IHO”) awarded J.V. various special education services and tutoring, among other relief. Id. ¶ 9. After Plaintiff appealed, the IHO issued an uncontested Order on Pendency dated February 28, 2019, awarding compensatory services retroactive to May 24, 2018, that remained in effect until the case closed on August 27, 2020. Id. ¶ 10; Def's MoL, Ex. A at 5, 8.
J.V. received no placement or services until May 2019, when Plaintiff had “no other option” but to enroll her at the Reece school (“Reece”), a non-public placement. Am. Compl. ¶ 11. J.V., however, was “attacked by other students daily verbally, physically and sexually” and received “only a fraction of the services” she was entitled to under the prior administrative orders Id. ¶¶ 11, 13. When Plaintiff requested the staff at Reece intervene, “Reece kicked J.V. out of new placement for J.V. Id. ¶ 15. J.V. then had no placement from March 2020 through August 2020. Id..¶12.[2]
On April 1, 2020, Plaintiff filed another Impartial Hearing Request, asking that Defendant comply with the prior IHO orders and provide J.V. with compensatory services for her missed hours. Id. ¶ 13. Meanwhile, in May 2020, Plaintiff-without assistance from Defendant-identified Leap/Dyslexia Associates (“Leap”) as a potential partial service provider. Id. ¶ 16. In August 2020, J.V. attended Leap, but only received “4 hours per week” of services. Id. ¶ 17. Plaintiff “asked Defendant to facilitate [the Leap] enrollment, but Defendant ignored her requests and again, offered no assistance.” Id. ¶ 16.
In a Findings of Fact and Decision and Order dated August 27, 2020, (“August 2020 Order”) the IHO found that, inter alia, J.V. was entitled to compensatory services pursuant to the 2018 Orders. Def.'s MoL Ex B at 11-12. Approximately three weeks later, (“September 2020, Order”), the IHO further directed that, if Plaintiff did not appeal the August 2020 Order, the Defendant was required to “hold an IEP meeting and develop an IEP commensurate with [the October 2018 order]” and provide J.V. with the appropriate amount of compensatory service hours. Def. MoL Ex. A at 10. The record does not reflect whether Plaintiff appealed the decision.
In spring 2020, an unnamed member of the Committee of Special Education,(“CSE”) filed a “false complaint” with the New York City Administration for Children's Services (“ACS”) against Plaintiff. Id. ¶ 28. The CSE member falsely alleged that Plaintiff “engaged in educational neglect by refusing to send J.V. to school and refusing to allow special education and related services to J.V., and that [Plaintiff] committed other acts that required ACS intervention.” Id. ¶ 29. Plaintiff alleges that the Defendant filed the false complaint to retaliate against Plaintiff for her attempts to get J.V. educational services and that it sought to have ACS remove J.V. from her custody to ensure that she could no longer enforce J.V.'s rights. Id. ¶ 34. ACS closed its investigation in June 2021 “when it became clear that the allegations against [Plaintiff] had no basis.” Id. ¶ 36.
J.V. continued to receive some services at Leap throughout 2020-2021 and 2021-2022. Id. ¶¶ 18-19. During this time, Plaintiff remained “in constant contact with Defendant” and requested “Defendant abide by the impartial hearing orders previously issued and provide J.V. with a special education placement and all the services she was entitled to receive.” Id. ¶ 18. Defendant, however, has “done nothing ... not one placement, not any services provider, not a single offer of an option for special education or services.”
On April 25, 2022, Plaintiff commenced this action and on September 16, 2022, filed an Amended Complaint. See ECF Nos. 1, 16. On November 23, 2022, Defendant filed a motion to dismiss the Amended Complaint for lack of jurisdiction under Federal Rule of Civil Procedure; 12(b)(1) and failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). See ECF No. 23. After the matter was fully briefed and while the instant motion was pending, the Court granted in part and denied in part Plaintiff's emergency request to prospectively fund J.V.'s placement, related services, and transportation costs. See Order, ECF No. 42.
I- Standard for Motion to Dismiss under 12(b)(1)
Defendant moves to dismiss Plaintiffs claims relating to the 2020-2021 and 2021-2022 school years pursuant to Federal Rule of Civil Procedure 12(b)(1), alleging that the Court lacks sub] ect-matter j urisdiction over the claims.
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. U.S., 201 F.3d 110, 113 (2d Cir. 2000). The plaintiff bears the burden of establishing beyond a preponderance of the evidence that subject-matter jurisdiction exists. Id. In reviewing a Rule 12(b)(1) motion to dismiss, the court “must accept as true all material factual allegations in the complaint, but [may] not draw inferences from the complaint favorable to plaintiff[ ].” J.S. ex rel. N.S. v. Attica Cent Sch., 386 F.3d 107, 110 (2d Cir. 2004)). Further, in resolving a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), a district court may consider “evidentiary matter .. . presented by affidavit or otherwise.” Kanmen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir 1986).
II. Exhaustion of Administrative Remedies under the IDEA
Defendant moves to dismiss all three of Plaintiffs claims for the 2020-2021 and 2021 2022 academic years for failure to exhaust.
The IDEA provides that, to receive federal funding, states must provide qualified children with disabilities a FAPE in the least restrictive approximate environment. See 20 U.S.C. §§ 1400(d)(1)(A), 1411(a)(1), 1412(a)(5)(A). Both educators and parents of a child covered by the IDEA must jointly develop an IEP for each year of the child's education. See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 482 (2d Cir. 2002). Before bringing a civil action in federal court, a party must exhaust available administrative remedies, including filing an administrative complaint challenging a child's educational placement or provision of a FAPE and holding an impartial due process hearing. See 20 U.S.C. §§ 1415(i)(2)(A), (f), (g). New York has a two-tiered system of review, where a hearing is first conducted by a local educational agency through an IHO; the aggrieved party may then appeal the IHO's decision to the State Review Office (“SRO”). Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379-80 (2d Cir. 2003) (citing 20 U.S.C. § 1415 (g); N.Y. Educ. Law § 4404(1), (2)).
“The exhaustion requirement applies to all suits that ‘seek relief for the denial of a FAPE,' regardless of whether the suit was brought under the IDEA or ‘similar laws,' including ... the Rehabilitation Act and 42 U.S.C. § 1983.” Martinez v. N.Y.C. Dep't of Educ., No. 17-CV-3512 (NGG) (CLP), 2018 WL 4054872, at *4 (E.D.N.Y. Aug. 24,2018) (quoting Fry v. Napoleon Cmty. Schs., 580 U.S. 154, 165 (2017)); Schneider v. Mahopac Cent. Sch. Dist./Bd. of Educ., 21-2201, 2022 WL 1316211 at *2-3 (2d Cir. May 3, 2022). A failure to exhaust deprives a federal court of subject-matter jurisdiction over the relevant claims. See K.M. v. Adams, No. 20-4128, 2022 WL 4352040 at *3 (2d Cir. Aug. 31, 2022).
The parties do not dispute that J.V. is properly qualified under the IDEA and Section 504 or that Plaintiffs claims require exhaustion. Rather, Plaintiff alleges that she has adequately exhausted her claims or, in the alternative, that it would have been futile to do so. The parties agree that Plaintiff met the exhaustion requirement for the 2...
To continue reading
Request your trial