Opinion
99 CV 1468
March 31, 2000
GRACE NWACHEJKWU, Esq., Brooklyn, New York, for plaintiff Amanze Nwachukwu.
LAURA H. CORVO, Esq., Assistant Corporation Counsel, New York, New York, for defendant.
MEMORANDUM AND ORDER
Amanze Nwachukwu ("Amanze" or "son"), by his mother Grace Nwachukwu ("Grace" or "plaintiff"), brings this civil rights suit under 42 U.S.C. § 1983 against defendant District 22 of the New York City Board of Education ("District 22") for violating Amanze Nwachukwu's constitutional rights under the Fourteenth Amendment. Grace claims that defendant District 22 maliciously violated her son's guaranteed procedural safeguards under the Individuals with Disabilities Act, 20 U.S.C. § 1400 et seq. ("Disabilities Education Act" or "Act") and that defendant refuses to comply with an order of an impartial hearing officer, requiring defendant to provide her son with a public school education appropriately tailored to his needs. Defendant moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6).
I
Before surveying the facts as alleged in the amended complaint, it would be helpful to review the statutory framework of the Disabilities Education Act.
Congress enacted the Act "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs" and "to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400 (d)(1)(A) and (B). The Act provides certain federal funding to states on the condition that the state, among other things, makes a "free appropriate public education" available to children with disabilities, develops an "individualized education program" for each disabled child, and affords disabled children and their parents the "procedural safeguards found in [ 20 U.S.C. § 1415]." 20 U.S.C. § 1412 (a)(1), (4), and (6)
Each child's individualized education program ("Individual Program") must include, among other things, a statement of the child's "present level of educational performance"; long-term and short-term educational goals; and the special education needs, related services, or supplementary aids required by the child. 20 U.S.C. § 1414 (d)(1)(A). The Act requires the child's parents and educators and special experts ("Program Team") to work together to develop the Individual Program and to review and revise it as necessary. See 20 U.S.C. § 1414 (d)(1)(B); see also Heldman v. Sobol, 962 F.2d 148, 150 (2d Cir. 1992).
Central to the statutory scheme are the "extensive procedural safeguards to protect the educational rights of children with disabling conditions." Heldman, 962 F.2d at 150. The Act requires, among other things, that parents have the opportunity to participate in meetings with respect to the child's evaluation, classification, and educational placement; to obtain an "independent educational evaluation of the child"; to receive "written prior notice" regarding proposed changes to the child's educational placement; and the opportunity "to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child." 20 U.S.C. § 1415 (b).
"Foremost among the procedural safeguards" is the complaint process, Heldman, 962 F.2d at 150, which allows a parent to challenge the evaluation, classification, or placement of a child through an "impartial due process hearing" conducted by the local school district. 20 U.S.C. § 1415 (f)(1). The impartial hearing officer's decision is binding on all parties and it can be appealed to the state educational agency. See 20 U.S.C. § 1415 (g).
After exhaustion of this review process, the Act provides that "any party aggrieved by the findings and decisions . . . shall have the right to bring a civil action with respect to the complaint . . . in a district court of the United States. . . ." 20 U.S.C. § 1415 (i)(2) (A). The Act explicitly requires exhaustion of administrative remedies: "[B]efore the filing of a civil action under [federal law] seeking relief that is also available under [the Disabilities Act]," the complaint process must be "exhausted to the same extent as would be required had the action been brought under [the Disabilities Act]." 20 U.S.C. § 1415 (1).
The Amended Complaint
In 1995, District 22 classified Amanze, then five years old, as "[s]peech impaired." Amanze remained in school with the general student population and followed an Individualized Program tailored to his speech impairment needs.
On or about May 5, 1997, District 22 "requested a review" of Amanze's Individualized Program and "made a false writing attributing to [Grace] and her husband views they did not hold and actions they did not take." Defendant then "signed the names of [Grace] and her husband . . . on this false writing without their knowledge or authorization." The amended complaint does not explain the substance of the "views" and "actions" attributed to them.
Shortly thereafter, Amanze "successfully completed the kindergarten class at P.S. 198 and earned [a] promotion to [the] first grade" in June 1997. But instead of sending Amanze directly to the first grade, District 22 "placed [Amanze] in [a] kindergarten/bridge class at P.S. 198 without complying with procedural safeguards." Grace does not clarify which procedural safeguards were allegedly violated.
In September and October 1997, District 22 then intentionally entered "false information . . . [into Amanze's] cumulative school record" and "intentionally documented one-sided, false, and negative anecdotal [information] against [him]." No further details are offered about the "false" and "negative" information.
On February 26, 1998, Grace and her husband sought an "impartial hearing . . . to stop the re-evaluation of their son by [District 22]." On March 24, 1998, the "impartial hearing officer ordered that [Amanze] be reevaluated by independent evaluators to be requested and identified by [Grace]."
According to Grace, she "requested [an] . . . extension of time" to "submit the independent evaluations" by the deadline of April 21, 1998, but District 22 refused the request. Instead, District 22 used "NYC Board of [E]ducation employees to re-evaluate [Amanze]" and violated the impartial hearing officer's order that an impartial hearing had to be reconvened if District 22 wanted to refuse an extension of time.
On May 8, 1998, District 22 "intentionally utilized the services of an unlicensed psychologist to conduct the psychological evaluation of [Amanze]"
(emphasis in original). On June 11, 1998, District 22 used the findings of the unlicensed psychologist to classify Amanze as "emotionally disturbed" and sought to remove him from the general education population in order to place him in a Modified Class at P.S. 194. Grace claims that District 22 "intentionally failed to include on [the] assessement [sic] team [anyone] with knowledge of [the] disorder known to be the cause of my son's disability."
On June 23, 1998, Grace and her husband initiated impartial hearing proceedings under the Disabilities Act to challenge District 22's emotional disturbance classification and Modified Class recommendation. The hearings began on August 5, 1998, and continued until January 1999.
From July 1998 to February 1999, Grace says that District 22 "intentionally generated [an Individualized Program] that [denied Amanze] appropriate public school education" according to his needs. The specifics of the program are not mentioned.
On January 8, 1999, the "[i]mpartial hearing officer rendered his decision and vacated the emotional disturbance classification and the [Modified Class] recommendation" ("January 1999 Order"). "The hearing officer ordered the defendant to provide [Amanze] with appropriate public school education as mandated by [the Disabilities Act]." Defendant did not appeal this ruling.
Grace claims that District 22 "has refused to comply with the order to provide [Amanze] with [an] appropriate public school educational opportunity according to his needs." She does not provide any further details about the district's non-compliance.
On behalf of Amanze, Grace seeks compensatory damages, pursuant to 42 U.S.C. § 1983, in the amount of "1.3 million dollars" for Amanze's "trauma, fear, mental anguish, humiliation and distress"; $100,000 for "tuition [re-imbursement] for appropriate education in another school," or in the alternative "an injunction to compel [District 22] to provide free and appropriate public education . . . as ordered"; "2.7 million dollars in punitive damages"; and other miscellaneous relief.
II
Generally when a plaintiff is proceeding pro se, the court must liberally construe the complaint. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972).
The amended complaint's principal claims are that District 22(1) should pay for alternative education or be compelled to comply with the impartial hearing officer's January 1999 Order and (2) must compensate Amanze for intentionally violating his rights under the Fourteenth Amendment.
District 22 responds that Grace (1) has failed to exhaust her administrative remedies as required; (2) has failed to adequately allege a municipal policy or custom that caused the violations of Amanze's rights; and (3) cannot bring this action as a pro se parent on behalf of her child. This Court will consider each defense in turn.
Exhaustion of Administrative Remedies
Defendant correctly argues that Grace has failed to exhaust her administrative remedies with respect to her claim that District 22 has refused to comply with the January 1999 Order. Grace seeks tuition reimbursement or an order to compel District 22 to provide appropriate public school education for Amanze, but she has never initiated an impartial due process hearing to seek such relief. Under New York law, an impartial hearing officer has the power to award tuition reimbursement or to order compliance with his ruling. See N.Y. Educ. Law § 4401; see also Ajala v. New York City Bd. of Educ., No. 97 CV 0469 (RWS), 1997 WL 736699 (S.D.N.Y. Nov. 28, 1997) ("hearing officer may . . . order reimbursement for tuition expenses"). Therefore this Court does not have subject matter jurisdiction over Grace's claim based on defendant's non-compliance with the January 1999 Order.
Grace's other claim seeks compensatory relief for defendant's violations of Amanze's Fourteenth Amendment rights and is brought under 42 U.S.C. § 1983. This claim differs from the other one in that it arises out of defendant's alleged past violations of the Disabilities Education Act's procedural safeguards and seeks monetary compensation for Amanze's alleged emotional injuries.
Defendant argues that this claim should also be dismissed because Grace is not a "party aggrieved by the findings and decisions" of the administrative hearing process, and thus, according to 20 U.S.C. § 1415 (i)(2)(A), has no "right to bring a civil action with respect to the complaint." Rather than being "aggrieved," defendant says, Grace initiated a complaint and received a favorable ruling from the impartial hearing officer who found unjustified the school district's classification of Amanze as "emotionally disturbed."
Defendant is correct only in part. Grace does not qualify for the right of judicial review provided by 20 U.S.C. § 1415 (2)(A), because she is not a "party aggrieved by the findings and decision" of administrative review. But to conclude from this that Grace cannot bring any claim for violations of her son's procedural safeguards would be perverse and "unthinkable," in light of Congress's intention to meet the special education needs of disabled students and to afford them carefully defined procedural safeguards. Quackenbush v. Johnson City School District, 716 F.2d 141, 145-147 (2d Cir. 1983) (analyzing predecessor statute). In cases such as this one, where the school district is accused of having violated a child's procedural safeguards and the administrative review process cannot provide the compensatory relief sought, 42 U.S.C. § 1983 fills the remedial "lacuna" and is available to Grace to enforce her son's constitutional rights. Id. at 148
Municipal Policy or Custom
If the facts alleged in the amended complaint are true, as this Court must assume on a motion to dismiss, Grace's claims are that District 22 intentionally entered false information in Amanze's record, forged Grace's and her husband's signatures, placed Amanze in a bridge class without following the necessary procedural safeguards, and prevented Grace from obtaining an independent expert's evaluation of Amanze. Grace makes no claim against any individual employee or official of District 22. Thus this claim is only against a municipal agency.
To find a municipal agency liable for constitutional violations under 42 U.S.C. § 1983, the requirements of Monell v. New York City Dep't of Social Services, 436 U.S. 658, 98 S.Ct. 2018 (1978), and the case law interpreting that opinion must be met. Under that case an agency may not be held liable simply because its employees have committed wrongful acts. See Monell, 436 U.S. at 694, 98 S.Ct. at 2037. The plaintiff must establish the municipality's actual responsibility by demonstrating that the constitutional deprivation resulted from the "execution of a [municipal] policy or custom." Monell, 436 U.S. at 694, 98 S.Ct. 2037.
To plead the existence of a municipal custom or policy, a plaintiff must adequately allege a constitutional deprivation resulting from one of the following: (1) a formal policy officially endorsed by a municipality; (2) actions taken or decisions made by government officials responsible for establishing municipal policy; (3) a practice so wide-spread and well-settled that it constitutes a "custom or usage" and implies the constructive knowledge of policy-making officials; or (4) a failure by policy-making officials properly to train or supervise employees to such an extent that it amounts to a "deliberate indifference to the rights of persons with whom municipal employees will come into contact." City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 1204 (1989); Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84, 106 S.Ct. 1292, 1300 (1986); Monell, 436 U.S. at 690-91, 98 S. Ct. 2035-36.
The amended complaint, even viewed in the light most favorable to Grace, and assuming the acts alleged amount to constitutional violations, does not adequately plead any of the above. First, the amended complaint makes no reference to any policy or custom. It points only to a series of incidents involving an unnamed or several unnamed local school officials. This Court cannot infer from this whether any municipal officials with policy-making authority participated in the actions or decisions. Nor are the allegations sufficient to plead a wide-spread and well-settled practice amounting to a "custom or usage."
Indeed, it is only in plaintiff's memorandum of law that Grace mentions for the first time that "New York State has a policy of `offering each district more money for each student refered [sic] to a special education class. . . . '" (quoting a New York Times article dated June 10, 1998). Such an allegation must be made in the complaint, not the memorandum of law.
The Court cannot infer from the amended complaint as presented that an actual municipal policy or custom caused the deprivation of Amanze's constitutional rights. Nevertheless, the Court is concerned about the nature of the acts alleged and deems they merit further consideration. Therefore this Court grants plaintiff leave further to amend her complaint.
Pro Se Parent
In Cheung v. Youth Orchestra Foundation of Buffalo. Inc., 906 F.2d 59 (2d Cir. 1990), the Second Circuit held that a "non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child." Cheung, 906 F.2d at 61. The court noted that the "statutory right to proceed pro se reflects a respect for the choice of an individual citizen to plead his or her own cause." Id. But the court reasoned that when a parent proceeds pro se on behalf of a child, there is "no individual choice . . . for courts to respect" because the "choice to appear pro se is not a true choice for minors who under state law . . . cannot determine their own legal action." Id.
Grace responds in her memorandum of law that she is an attorney and is admitted to practice in the New York State Appellate Division, Second Judicial Department. But this does not solve the problem.
The Second Circuit's concern about a child's lack of true, individual choice leads this Court to believe that, in this case, it is insufficient that Grace is an attorney. She is not admitted to practice in the Eastern District of New York and her papers do not evidence her competency to litigate this case on behalf of Amanze.
Accordingly, Grace must either obtain outside counsel for Amanze or apply to this Court for appointment of counsel.
III
Grace cross-moves for a default judgment under Federal Rule of Civil Procedure 55(a) for defendant's failure to file its answer or moving papers within a reasonable time. Defendant timely served on Grace its motion to dismiss. There is no basis for plaintiff's motion, and it is denied.
IV
For the foregoing reasons, defendant's motion to
dismiss the complaint is granted without prejudice. Plaintiff has leave to further amend the complaint.
Plaintiff's motion for default judgment is denied.