Opinion
02-CV-0555E(F)
February 14, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiff filed this suit on August 1, 2002 and the Amended Complaint was filed on July 1, 2003. Plaintiff asserts claims for alleged violations of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (2000) ("the IDEA"), the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (2000) ("the ADA"), the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. (2000) ("Section 504"), and 42 U.S.C. § 1983 (2000). Defendants filed a motion to dismiss the Amended Complaint on August 18. Plaintiff filed a cross-motion for partial summary judgment on October 10. These motions were argued and submitted on January 30, 2004. For the reasons set forth below, defendants' motion to dismiss will be granted in part and denied in part and plaintiff's motion for partial summary judgment will be denied without prejudice. When ruling on a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP"), this Court "must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor" — Phelps v. Kapnolas, 308 F.3d 180, 184 (2d Cir. 2002) (citation and internal citation omitted) — and cannot dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Accordingly, this Court must not consider whether the claims will ultimately be successful, but merely "assess the legal feasibility of the [Amended] [C]omplaint." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (citation and internal citation omitted). Moreover, when reviewing a motion to dismiss, this Court must of course limit its review to the face of the Amended Complaint and documents incorporated therein that are properly subject to judicial notice. See Newman Schwartz v. Asplundh Tree Expert Co., 102 E3d 660, 662 (2d Cir. 1996).
Plaintiff is a mentally and emotionally challenged young man who requires constant supervision in a 24-hour residential-educational program. Consequently, Justin is entitled to a free, appropriate and public education ("FAPE") under the IDEA. As a result of his condition, Justin requires a highly-structured living environment. In 2000, Justin resided in a community group home ("the Residence") operated by Heritage Centers, Inc. ("Heritage"). Justin attended an educational program ("the School") also operated by Heritage. The School and the Residence were separately located, which required Justin to be transported between the School and the Residence each day. Justin became more aggressive in the fall of 2000 and was eventually admitted to the acute-care adolescent psychiatric unit at Erie County Medical Center ("ECMC") where he resided for a total of approximately eighteen months. Because ECMC was a sub-optimal placement, numerous attempts were made to find a satisfactory residential-educational placement for Justin. On March 17, 2003, Justin was admitted to the Woods School, in Langhorne, Pennsylvania ("the Woods School"), where he currently resides.
Plaintiff "has been diagnosed with mild mental retardation, autism, pervasive developmental disability, psychotic disorder not otherwise specified, and a seizure disorder." Am. Compl. ¶ 6. It should be noted that docket entry number 40 — a Declaration by Stephen F. Gawlik, Esq. — contains un-redacted documents that list plaintiff's last name as opposed to the pseudonym under which this suit has been filed. The parties shall rectify this oversight immediately.
See 20 U.S.C. § 1400 et seq. (2000); Polera v. Bd. of Educ. of the Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 481-482 (2d Cir. 2002); see also Maine Sch. Admin. Dist. No. 35 v. Mr. Mrs. R., 321 F.3d 9, 11 (1st Cir. 2003) ("The [IDEA] *** obligates school districts to furnish a free appropriate public education (FAPE) to children with disabilities. That is the good news. The bad news is that the IDEA is not self-executing, and parents, school officials, bureaucrats, and judges alike have struggled to master its intricacies.") (citations omitted).
Heritage staff noticed that Justin's aggressive behavior was often triggered when he boarded the bus to transition from the School to the Residence and vice-versa.
The Woods School is now known as the Woods Services Foundation. See www.woods.org. Although plaintiff referred to the Woods School as the "Woodlands School" in his Memorandum of Law, the parties referred to his current school as the Woods School at oral argument. This Court will refer to such as the Woods School.
The Amended Complaint asserts two claims. Plaintiff's first claim is that defendants violated the IDEA via their "continuing failure to provide" him a FAPE, " including an appropriate day or residential program in close proximity to his family ***" ("the IDEA Claim"). Am. Compl. ¶ 92 (emphasis added). Plaintiff's second claim mirrors the IDEA Claim in asserting that defendants violated the ADA and Section 504 via their "continuing failure to provide" a FAPE, "including an appropriate day or residential program in close proximity to [his] family *** " ("the ADA/Section 504 Claim"). Id. ¶ 95 (emphasis added). Consequently, both of plaintiff's claims allege that defendants failed to provide him with a FAPE — including the failure to provide an appropriate program in Western New York ("WNY"). For purposes of this memorandum and order, the IDEA Claim and the ADA/Section 504 claim will be collectively referred to as the FAPE Claims. Plaintiff seeks, inter alia, injunctive and declaratory relief and an award of compensatory education for the eighteen months that he was placed at ECMC. Id. ¶¶ 96-103.
Plaintiff alternatively claims that "defendants' failure to provide an adequate administrative remedy to challenge the failure to implement an appropriate educational program for Justin is actionable under [section 1983]" as a violation of the IDEA. Am. Compl. ¶ 94 (citation omitted).
Defendants seek dismissal on several grounds. First, they assert that each FAPE Claim refers to two distinct violations: (1) failure to provide plaintiff with a FAPE while he was at ECMC ("the ECMC Violation") and (2) failure to provide him with a FAPE while he is at the Woods School ("the Woods Violation"). Defendants contend that both aspects of the FAPE Claims must be dismissed because they have not been administratively exhausted. Defendants argue in the alternative that the FAPE Claims should be dismissed for failure to state a claim.
Defendants have proffered this interpretation of plaintiff's claims based in part on the plaintiff's characterization of his claims in his memorandum of law. The need to interpret plaintiff's claims stems from the vagueness of the Amended Complaint, which alleged that defendants failed to provide plaintiff with a FAPE, including the failure to provide a program in WNY. The use of the term "including" suggests that there are other manners in which the defendants are alleged to have failed to provide a FAPE. This Court will adopt defendants' interpretation of plaintiff's FAPE Claims.
To the extent that the Amended Complaint seeks injunctive relief in the form of a residential-educational placement for the plaintiff, such is moot because he has received such a placement at the Woods School. He contends that this claim satisfies the "capable of repetition, yet evading review" exception to the doctrine of mootness ("the CORYER exception"). The CORYER exception only applies where "(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." The CORYER exception "applies only in exceptional situations" and "is severely circumscribed."
Russman v. Ed. of Ed. of Watervliet, 260 F.3d 114, 119 (2d Cir. 2001) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)).
Russman, supra note 8, at 119.
In support of such argument, plaintiff cites Honig v. Doe, 484 U.S. 305, 318-323 (1988), which held that the EHA claim of Jack Smith, a 20-year-old disabled man, was not moot because he was eligible for a FAPE until the age of 21 and because there was a reasonable expectation that he would again face disciplinary charges stemming from his disability related behavior. Honig, however, is distinguishable. Indeed, the "reasonable expectation" requirement is of necessity highly fact-oriented. Accordingly, the fact that the Supreme Court in Honig found a reasonable expectation that Smith would again be subjected to discipline does not shed any light as to whether there is a reasonable expectation that plaintiff will be expelled from the Woods School — which would require defendants to obtain a new placement for him. Plaintiff does not allege — and nothing in the record suggests — that his placement at the Woods School is in jeopardy. The mere possibility that plaintiff may someday be expelled from the Woods School is insufficient to establish a reasonable expectation that he will again be sent to ECMC pending a new residential-educational placement. Accordingly, plaintiff's claim for injunctive relief for a residential-educational placement is moot and will be dismissed for lack of subject matter jurisdiction. Inasmuch as this claim is only part of plaintiffs' FAPE Claims, this Court will address defendants' other arguments for dismissal.
Education of the Handicapped Act, the predecessor of the IDEA.
For this reason, Olmstead v. L.C., 527 U.S. 581, 594 n. 6 (1999), is also distinguishable.
Indeed, plaintiff stated that
"[w]hile it is likely that [plaintiff] can remain at Woodlands School until a local placement is developed, Woodlands is a private school and [is] under no obligation to keep him, especially if they believe they can no longer accommodate his needs or provide the services required by the IEP. The plaintiff would then find themselves [sic] in an almost identical situation as when the administrative hearing request was filed."
Pl.'s Mem. of Law, at 19 (emphasis added).
Russman, supra note 8, at 120 ("To create a reasonable expectation of recurrence, repetition must be more than theoretically possible. Mere speculation that the parties will be involved in a dispute over the same issue does not give rise to the level of a reasonable expectation or demonstrated probability of recurrence."); id. at 121 (finding no "reasonable expectation" of recurrence where plaintiffs only surmised the possibility that the alleged IDEA violation would reoccur).
Russman, supra note 8, at 118-119 ("Whenever mootness occurs, the court — whether trial, appellate, or Supreme — loses jurisdiction over the suit, which therefore must be dismissed.").
Defendants concede that plaintiff's claims concerning compensatory education and whether Justin's current placement violates the law are not moot. Defs.' Mem. of Law in Opposition to Pl.'s Cross-Motion, at 2-3.
Defendants contend that the FAPE Claims must be dismissed because plaintiff failed to exhaust his administrative remedies. The Court of Appeals has noted that a "plaintiff's failure to exhaust administrative remedies under the IDEA deprives a court of subject matter jurisdiction." Nonetheless, there are several exceptions to the IDEA's exhaustion requirement, including, inter alia, (1) futility, (2) "an agency has failed to provide services specified in the child's individualized education program [IEP]" and (3) "an agency has adopted a policy or pursued a practice of general applicability that is contrary to law." The burden of establishing the applicability of an exception to the IDEA's exhaustion requirement rests with plaintiff. Moreover, the exhaustion requirement applies to any action that seeks relief available under the IDEA — i.e., plaintiff's ADA/Section 504 Claim.
Polera, supra note 3, at 483 (citing Hope v. Cortines, 69 F.3d 687, 688 (2d Cir. 1995)).
See Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 789 (2d Cir. 2002) ("[E]xhaustion is not necessary under the IDEA where it would be fufile to resort to the due process procedures or where `it is improbable that adequate relief can be obtained by pursuing administrative remedies (e.g., the hearing officer lacks the authority to grant the relief sought).'"); Heldman v. Sobol, 962 F.2d 148, 159 n. 11 (2d Cir. 1992) (setting forth four exceptions to the IDEA's administrative exhaustion requirement, including "an emergency situation" and where "an agency has failed to provide services specified in the child's individualized education program [IEP]"); Mrs. W. v. Tirozzi, 832 F.2d 748, 756 (2d Cir. 1987) (setting forth exceptions to the IDEA's administrative exhaustion requirement, including, "an agency has adopted a policy or pursued a practice of general applicability that is contrary to the law"); Hope v. Cortines, 872 F. Supp. 14, 22 (E.D.N.Y.) (discussing exceptions to the IDEA's administrative exhaustion requirement), aff'd, 69 F.3d 687, 688 (2d Cir. 1995).
Polera, supra note 3, at 489 n. 8.
Hope, supra note 16, at 688; Mrs. W., supra note 17, at 756.
For the reasons set forth below, plaintiff's compensatory education claim — i.e., the FAPE Claims predicated on the alleged ECMC Violation — will be dismissed for failure to exhaust administrative remedies. As noted above, plaintiff's need not exhaust administrative remedies where "an agency has failed to provide services specified in the child's individualized education program [IEP]." Consequently, if plaintiff's compensatory education claim only involved implementation of his IEP, then he would not be required to exhaust his administrative remedies. Plaintiff's compensatory education claim, however, involves both factual and legal questions. Exhaustion is thus required because factual issues are best left to the expertise of the involved agencies rather than the courts. For example, it is unclear how much compensatory education plaintiff may be entitled to or what form it ought to take. Moreover, plaintiff has not offered any argument as to why the compensatory education claim should be excepted from the exhaustion requirement. Indeed, plaintiff failed to exhaust his administrative remedies because he withdrew the compensatory education claim before it was reviewed by the SRO. Plaintiff has thus failed to meet his burden of establishing the applicability of an exception to the exhaustion requirement for his compensatory education claim. Accordingly, plaintiff's FAPE Claims predicated upon the alleged ECMC Violation (i.e., his compensatory education claim) will be dismissed without prejudice for failure to exhaust administrative remedies. Plaintiff seeks partial summary judgment on the issue of whether defendants failed to provide him a FAPE while he was placed at ECMC. Inasmuch as plaintiff's compensatory education claim will be dismissed without prejudice, his motion for summary judgment will also be denied without prejudice.
This Court, however, declines defendants' invitation to find that plaintiffs waived the compensatory education claim by withdrawing it before it was reviewed by the State Review Officer ("the SRO"). Although plaintiff's compensatory education claim existed when he appealed to the SRO, the ECMC Violation was ongoing at the time of the appeal and it would be inequitable to find that plaintiff waived objection for a violation the extent of which was not yet known. Cf. Maine Sch. Admin. Dist. No. 35, supra note 3, at 18 (excepting plaintiffs' failure to exhaust administrative remedies for a compensatory education claim where such claim did not exist when they appealed administratively).
Heldman, supra note 17, at 159 n. 11.
Heldman, supra note 17, at 159 n. 11; Mrs. W., supra note 17, at 759 (noting that "courts seldom defer to an administrative agency when the issue involved is purely a legal question not involving either administrative experience or expertise"); Joseph M. v. S.E. Delco. Sch. Dist., 2001 WL 283154, at *7 (E.D. Pa. 2001) (noting that the "legislative history of the IDEA suggests an exhaustion exception for situations concerning the implementation of an IEP, as opposed to the contents of an IEP" and concluding "that plaintiffs' claim regarding a denial of FAPE falls under the implementation exception to the exhaustion requirement"); see also Lester H. v. Gilhool, 916 F.2d 865, 869-870 (3d Cir. 1990) (finding that administrative exhaustion was not required with respect to "a pure question of law" — to wit, whether plaintiff was entitled to compensatory education where his "IEP was inappropriate and supposed to be temporary, and that the School District took approximately 2½ years to locate an appropriate program for [him]."). But see Polera, supra note 3, at 489 (construing the futility exception but noting that the implementation exception must be narrowly construed and must exclude claims that are "inextricably tied to the content of the [IEP]"); Vultaggio v. Bd. of Ed. of Smithtown Cent. Sch. Dist., 216 F. Supp.2d 96, 103 (E.D.N.Y. 2002) (holding that "pure questions of IDEA law" fall within the futility exception to the exhaustion requirement), aff'd, 343 F.3d 598 (2d Cir. 2003).
See Lester H., supra 22, at 869 ("[W]here the factual record is fully-developed and no evidentiary disputes remain, the court can and should decide legal issues.") (emphasis added); Kristi H. v. Tri-Valley Sch. Dist., 107 F. Supp.2d 628, 633 (M.D. Pa. 2000) (following Lester H. and dismissing compensatory education claim for failure to exhaust administrative remedy because legal and factual issues remained).
See Polera, supra note 3, at 487 (noting that the "IDEA's exhaustion requirement was intended to channel disputes related to the education of disabled children into an administrative process that could apply administrators' expertise in an area and promptly resolve grievances"); Heldman, supra note 17, at 159 ("The exhaustion doctrine prevents courts from undermining the administrative process and permits an agency to bring its expertise to bear on a problem as well as to correct its own mistakes.").
Kevin M. v. Bristol Township Sch. Dist., 2002 WL 73233, at *5 (E.D. Pa. 2002). Plaintiff seeks compensatory education for the time that he was placed at ECMC. The factual question remains, however, as to how many hours of education per day he would be entitled to. It is unclear whether an award of compensatory education would be for a full school-day of education for eighteen months or whether the two hours per day of education that he received at ECMC should be subtracted to some extent from the full school-day required by his IEP. These are questions best addressed by administrators with expertise in such matters. See Polera, supra note 3, at 487.
At oral argument, plaintiff's futility arguments were only made with respect to the Woods Violation; no arguments were made as to the ECMC Violation. Nonetheless, this Court will address the applicability of the exceptions to the IDEA's administrative exhaustion requirement.
See Aff. of Daniel Johnson, Exh. B, at 10 (indicating that plaintiffs' counsel "agreed to withdraw our request for compensatory education"); cf. id. at Exh. F (SRO decision that does not address compensatory education); Neshaminy Sch. Dist. v. Karla B., 1997 WL 563421, at *5-6 (E.D. Pa. 1997) ("Because the issue of compensatory education was withdrawn from the hearing officer's consideration, the Court concludes that this issue cannot be raised here because of failure to exhaust administrative remedies."); see also Kevin M., supra note 25, at *4-5 (dismissing without prejudice plaintiff's compensatory education claim because plaintiff failed to exhaust administrative remedies under the IDEA); Essen v. Bd. of Educ. of the Ithaca City Sch. Dist., 1996 WL 191948, at *5-6 (N.D.N.Y. 1996) (dismissing compensatory education claim for failure to exhaust administrative remedies under the IDEA).
Inasmuch as plaintiff's compensatory education claim will be dismissed without prejudice, this Court need not address at this time whether such claim is barred by the Eleventh Amendment to the U.S. Constitution — an issue the parties will have to address when next before this Court. See, e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 76 (2d Cir. 1990) ("[W]e do not reach the question whether an award of compensatory education under the EHA on these facts runs afoul of the Eleventh Amendment.").
It should be noted that defendants' Statement of Undisputed Facts failed to comply with Rule 56.1(d) of the Local Rules of Civil Procedure.
With respect to plaintiff's FAPE Claims predicated on the alleged Woods Violation, this Court finds that plaintiff is not required to exhaust his administrative remedies. As noted above, plaintiff need not exhaust his administrative remedies where "an agency has adopted a policy or pursued a practice of general applicability that is contrary to law." Plaintiff has alleged that defendants have adopted a policy or practice of failing to provide sufficient programs for disabled students — such as himself — in WNY and that such policy or practice violates, inter alia, the IDEA. Accordingly, plaintiff's FAPE Claims predicated upon the alleged Woods Violation will not be dismissed for failure to exhaust administrative remedies.
Mrs. W., supra note 17, at 756; Heldman, supra note 17, at 159 n. 11; King v. Pine Plains Cent. Sch. Dist., 918 F. Supp. 772, 781 (S.D.N.Y. 1996) ("The rationale behind [the exhaustion] exception is that while the administrative hearing officers have the authority to enforce established regulations, policies and procedures, they generally do not have the authority to set new policies or to alter existing ones. Therefore, requiring a parent to exhaust his administrative remedies when he is challenging a generally applicable policy or procedure would be fufile.").
Inasmuch as an administrative hearing officer would not have the authority to establish new programs in WNY — Aff. of Daniel Johnson, Exh. F, at 2-, plaintiff's claims based on the Woods Violation fall within the exception to the exhaustion requirement for futility on the ground that "it is improbable that adequate relief can be obtained by pursuing administrative remedies (e.g., the hearing officer lacks the authority to grant the relief sought)." Taylor, supra note 17, at 789 (citation and internal quotation omitted).
This Court must therefore address the merits of defendants' motion to dismiss plaintiff's FAPE Claims based on the Woods Violation — which defendants framed at oral argument as "what about now, is the Woods School too far away?" In providing a FAPE, defendants are required to place Justin in the "least restrictive environment" possible ("the LRE"). In order to meet the LRE requirement, defendants must follow, inter alia, 34 C.F.R. § 300.552(b)(3) ("section 300.552(b)(3)"), which provides in relevant part that
See 20 U.S.C. § 1412(5) (2000).
"each public agency shall ensure that — *** (b) The child's placement — *** (3) Is as close as possible to the child's home; ***."
Defendants contend that the IDEA does not require them to provide programs comparable to the Woods School in WNY. Plaintiff on the other hand argues that his placement outside Philadelphia is not "as close as possible" to his home. To address whether defendants are providing a FAPE in compliance with the LRE requirement, this Court must look outside the Amended Complaint — i.e., this Court must determine whether a sufficient placement (which is willing to admit Justin) exists closer to WNY. Accordingly, defendants' motion to dismiss plaintiff's FAPE Claims based on the Woods Violation will be denied.
In support of their motion to dismiss, defendants cite Poolaw v. Bishop, 67 F.3d 830 (9th Cir. 1995). Poolaw, however, merely affirmed a district court's finding that the subject school district "was unable to provide the resources necessary to fulfill [the student's] needs." Id. at 837. Like the district court in Poolaw, this Court must receive evidence in order to address whether defendants provided a FAPE as close to WNY as possible. Cf. Todd D. v. Andrews, 933 F.2d 1576, 1582 n. 6 (11th Cir. 1991) (noting that the district court made the finding that an out-of-state facility was "the closest residential facility open to [the student]" within the meaning of section 300.552(b)(3)); Remis v. N.J. Dep't of Human Serus., 815 F. Supp. 141, 144 (D.N.J. 1993) (applying section 300.552(b)(3) and requiring state to move student to school in town where he lived based on a comparison of several comparable programs).
Accordingly, it is hereby ORDERED that defendants' motion to dismiss is granted in part and denied in part, that plaintiff's claims based on the ECMC Violation (i.e., the compensatory education claims) are dismissed without prejudice in order that plaintiff may exhaust his administrative remedies, that plaintiff's claims based on the Woods Violation (i.e., the least restrictive environment claims) are not dismissed and that plaintiff's motion for partial summary judgment is denied without prejudice.