J.R. et al v. New York City Department of Education et al, No. 1:2014cv00392 - Document 40 (E.D.N.Y. 2015)
Court Description: ORDER granting in part and denying in part 22 Motion to Dismiss; granting in part and denying in part 27 Motion for Judgment on the Pleadings; finding as moot 27 Motion for Summary Judgment. Ordered by Judge I. Leo Glasser on 8/20/2015. (Russell, Alexandra)
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J.R. et al v. New York City Department of Education et al Doc. 40 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x J .R., ET AL., MEMORANDUM AND ORDER Plaintiffs, 14 Civ. 0 392 (ILG) (RML) - against NEW YORK CITY DEPARTMENT OF EDUCATION and HILLSIDE FAMILY OF AGENCIES, Defendants. ------------------------------------------------------x GLASSER, Senior United States District J udge: Plaintiffs Courtney and J anice Richards, individually and on behalf of their son, J .R.,1 bring this action against the New York City Departm ent of Education (“DOE”) and Hillside Fam ily of Agencies (“Hillside”; and together with the DOE, “Defendants”), alleging discrim ination and retaliation claims pursuant to 42 U.S.C. §§ 1983 and 1988; the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 140 0 et seq.; Section 50 4 of the Rehabilitation Act of 1973 (“Section 50 4”), 29 U.S.C. § 794; Title II of the Am ericans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq.; Title IX of the Education Am endm ents of 1972 (“Title IX”), 20 U.S.C. § 1681 et seq.; and New York law. The DOE m oves, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, to dism iss the Am ended Com plaint. Dkt. No. 22. Hillside m oves for judgm ent on the pleadings, pursuant to Rule 12(c), or, in the alternative, for sum m ary judgm ent.2 Dkt. No. 27. For the following reasons, Defendants’ m otions are GRANTED in part and DENIED in part. 1 As a m inor, J .R. lacks capacity to sue on his own behalf, but m ay be represented by his parents. See Fed. R. Civ. P. 17(c); Berrios v. N.Y.C. Hous. Auth., 564 F.3d 130 , 134 (2d Cir. 20 0 9). 2 Because Hillside has presented no m atters outside of the pleadings in support of its 12(c) m otion, the Court will not convert it into a m otion for sum m ary judgm ent. See Fed. R. Civ. P. 12(d). 1 Dockets.Justia.com BACKGROU N D The following facts are taken from the Am ended Com plaint, which is presum ed true for purposes of this m otion. J .R. is an African-Am erican m ale who was born in 1996. Am . Com pl. ¶ 18. He suffers from m ajor depressive disorder, panic disorder with agoraphobia, and borderline personality disorder. Id. ¶¶ 8, 18. Plaintiffs allege that throughout the 20 10 -20 14 school years, students and staff at schools run by Defendants harassed J .R. based on his gender, race, and disability, and seek $ 10 m illion in com pensatory and punitive 3 dam ages. Id. ¶ 2. I. H aras s m e n t at D OE Sch o o ls J .R. entered the 8th grade at I.S. 20 8 in Bellerose, New York in Septem ber, 20 10 . Id. ¶¶ 21-22. While in school, he was on m ore than one occasion bullied and harassed by other students because of his perceived fem ininity and speech, being regularly slapped in the face and in one instance, having his pants pulled down. Id. ¶¶ 29-32. That behavior, it is alleged, occurred in the classroom of a teacher, Mr. Dibs, 4 and in the presence of other DOE em ployees. Id. ¶¶ 24-29, 38-39. In or around Decem ber of that year, J .R. com plained to his parents that he was depressed on account of the bullying. Id. ¶ 40 . At that tim e too, a suicide note he wrote was found by a DOE em ployee and he was hospitalized with a diagnosis of depression. Id. ¶ 41, 45. Upon his discharge from the hospital, he was placed on hom e instruction by the DOE through the end of the 8th grade. Id. ¶ 48. In Septem ber 20 11, J .R. entered the 9th grade at Queens High School for Science and Teaching. Id. ¶ 50 . He was bullied there as well by students who called him 3 Plaintiffs withdrew their request for punitive dam ages against the DOE. See Opp. at 58. 4 Plaintiffs refer to this em ployee elsewhere in the Am ended Com plaint as “Mr. Gibbs.” Am . Com pl. ¶ 20 1. 2 “faggot” and “nigger” and avoided him because of his threatened suicide hospitalization. Id. ¶¶ 52-58; 62; 64; 70 ; 72. That disparagement and harassm ent, it is alleged, was in the presence of DOE em ployees who did nothing to intervene. Id. ¶ 53. He was hospitalized again between October 25 and Novem ber 29, 20 11 after being found by a DOE em ployee to be cutting him self. Id. ¶ 81. Upon discharge from the hospital, his doctors recom m ended that he be placed on hom e instruction through the end of the 9th grade, which the DOE did not do. Id. ¶ 84. On J anuary 23, 20 12, J .R. was placed by the DOE in the Queens Children’s Psychiatric Center (“QCPC”). Id. ¶ 87. Two days later, on J anuary 25, the DOE was asked to refer J .R. to the Com m ittee on Special Education (“CSE”) 5 by a letter from Dr. Scott Weisner 6 to determ ine whether he was eligible for special education services. Id. ¶ 88. The DOE did not m ake that referral at that tim e. While at the QCPC, it is alleged that J .R. was physically attacked and flagrantly harassed because of his perceived hom osexuality, all in the presence of DOE em ployees who did nothing to intervene. Id. ¶¶ 99-10 5. The bullying was not confined to the school proper, but was consistently endured by J .R. on the bus that transported him to and from school, which as before, was alleged to be in the presence of DOE em ployees who did nothing to intervene. Id. ¶¶ 90 -95; 98. Plaintiffs requested the QCPC principal to transfer J .R. to another bus on which he would not be bullied. Id. ¶ 10 6. The principal referred them to the DOE’s Pupil 5 The Com m ittee on Special Education is a team consisting of the student’s parents, teachers, representatives of the local educational agency and, where appropriate, the student, which is responsible for developing an individualized education program (“IEP”) for the student. See 20 U.S.C. § 1414(d); N.Y. Educ. Law. § 440 2(1). 6 The Am ended Com plaint does not identify Weisner as a DOE em ployee. 3 Transportation Departm ent, which did not transfer him . Id. Plaintiffs allege vaguely that their requests m ade DOE employees “standoff-ish.” Id. ¶ 10 7. The principal told Plaintiffs that because of the school’s violent student population, J .R. would continue to be bullied. Id. ¶ 10 9. The school had no plan for alleviating that condition. Id. J .R.’s depression worsened as the bullying continued. Id. ¶ 112. On April 23, 20 12, he was suspended for five days for bringing a knife to school and during the suspension hearing that followed on May 10 , 20 12, he was referred by a DOE hearing officer to the CSE for the first tim e. Id. ¶¶ 113-14. II. H aras s m e n t at H ills id e Ch ild re n ’s Ce n te r The CSE held its first m eeting for J .R. on Septem ber 7, 20 12, at which an Individualized Education Program (“IEP”) was drafted for him and he was placed at Hillside Children’s Center (“HCC”) in Rom ulus, New York for the 20 12-20 13 school year. Id. ¶ 19. HCC is owned and operated by Defendant Hillside, a private corporation. Id. ¶¶ 16-17; 124. While at HCC, J .R. was sim ilarly harassed, denigrated, and physically abused because of his race, depression, perceived hom osexuality, and fem inine m annerism s. Id. ¶¶ 130 ; 132-34; 144. Notwithstanding Plaintiffs’ com plaints to Hillside and DOE em ployees, they did nothing to intervene. Id. ¶¶ 135; 141. At som e point during the 20 12-20 13 school year, Hillside determ ined that HCC was not appropriate for J .R. and recom m ended to the DOE a “m ore therapeutic” school for him . Id. ¶ 142. This recom m endation was not followed, and the DOE continued J .R. at HCC for the 20 13-20 14 school year, during which the bullying persisted. Id. ¶¶ 14344. During a CSE m eeting on October 4, 20 13, Plaintiffs allegedly were told to find a new school for J .R. them selves. Id. ¶ 146. III. Im p artial H e arin g 4 On Novem ber 15, 20 13, Plaintiffs filed with the DOE a request for an im partial hearing and a com plaint alleging that the DOE failed to provide J .R. with a “free appropriate public education” for the 20 10 -20 13 school years, in violation of the IDEA. Id. ¶¶ 20 ; 147. On J anuary 13, 20 14, an Im partial Hearing Officer issued a decision in favor of Plaintiffs requiring, inter alia, the DOE to issue a “Nickerson Letter”7 authorizing J .R.’s placem ent at an approved private school for special education at public expense. Id. ¶¶ 20 ; 148. The DOE did not appeal that decision. On J anuary 19, 20 14, Plaintiffs initiated this lawsuit. Dkt. No. 1. On April 3, 20 14, Hillside filed its Answer and cross-claim against the DOE for indem nification or contribution. Dkt. No. 11. On April 22, 20 14, J .R. began attending the Sum m it School— a private school—at the DOE’s expense. Am . Com pl. ¶ 150 . On May 12, 20 14, Plaintiffs am ended their com plaint to reflect J .R.’s transfer from HCC to the Sum m it School. Dkt. No. 15. On May 27, 20 14, Hillside filed its Answer to the Am ended Com plaint and reasserted its cross-claim against the DOE. Dkt. No. 18. The DOE filed its m otion to dism iss on August 1, 20 14, and Plaintiffs opposed this m otion on October 3, 20 14. Dkt. Nos. 22, 29. The DOE replied on October 14, 20 14. Dkt. No. 34. Hillside filed its m otion for judgm ent on the pleadings on October 2, 20 14, and Plaintiffs opposed Hillside’s m otion on Novem ber 3, 20 14. Dkt Nos. 27, 35. Hillside replied in support of its m otion on Novem ber 24, 20 14. Dkt. No. 36. LEGAL STAN D ARD S I. Ru le 12 ( b) ( 1) A Nickerson Letter authorizes a parent to place a child with a disability in a State-approved private school for special education at public expense if such a school is available that can m eet the child’s needs. See J ennifer D. ex rel. Travis D. v. N.Y.C. Dep’t of Educ., 550 F. Supp. 2d 420 , 426 (S.D.N.Y. 20 0 8). 7 5 To defeat a Rule 12(b)(1) m otion to dism iss, plaintiffs “bear[ ] the burden of proving subject m atter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolm an Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 20 0 5). In deciding that m otion, “the court m ust take all facts alleged in the com plaint as true and draw all reasonable inferences in favor of plaintiff[s].” Natural Res. Def. Council v. J ohnson, 461 F.3d 164, 171 (2d Cir. 20 0 6) (quotation om itted). II. Ru le s 12 ( b) ( 6 ) an d 12 ( c) To survive a m otion to dism iss under Rule 12(b)(6), the Am ended Com plaint m ust contain “sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atl. Corp. v. Twom bly, 550 U.S. 544, 570 (20 0 7)). Although detailed factual allegations are not necessary, m ere legal conclusions, “a form ulaic recitation of the elem ents of a cause of action,” or “naked assertions” by the plaintiff will not suffice. Id. (internal quotations and citations om itted). This Court m ust accept as true all allegations in the com plaint and draw all reasonable inferences in the plaintiff’s favor. Matson v. Bd. of Educ. of the City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir. 20 11). The standard for granting m otions pursuant to Rules 12(c) and 12(b)(6) is identical and will be applied accordingly. See Patel v. Contem porary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 20 0 1). D ISCU SSION The federal and state law claim s asserted against the DOE and Hillside are bottom ed upon sim ilar allegations of bullying endured by J .R. Hillside joins in the DOE’s m otion to dism iss as to those claim s. For clarity, the claim s asserted against Defendants are outlined below: 6 I. ADA and Section 50 4 Claim s Against DOE and Hillside a. Discrim ination Against DOE and Hillside b. Retaliation Against DOE II. Title IX Claim Against DOE and Hillside III. Section 1983 a. IDEA Claim Against DOE and Hillside b. Equal Protection Claim Against DOE and Hillside c. Fourth Am endm ent/ Due Process Claim Against DOE d. First Am endm ent/ Retaliation Claim Against DOE e. Municipal Liability Against DOE and Hillside IV. I. State Law Claim s Against DOE and Hillside AD A an d Se ctio n 50 4 Claim s Again s t D OE an d H ills id e 8 Plaintiffs assert disability discrim ination claim s pursuant to Title II of the ADA and Section 50 4 of the Rehabilitation Act. Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, program s or activities of a public entity, or be subjected to discrim ination by any such entity.” 42 U.S.C. § 12132. In nearly identical language, Section 50 4 prohibits disability discrim ination “under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). Plaintiffs have alleged that J .R. suffers from depression caused by discrim ination-based harassm ent for which they claim Defendants bear responsibility in accordance with the 8 Defendants argue that the ADA and Section 50 4 claim s are subject to the sam e exhaustion requirem ents as Plaintiffs’ IDEA claim and m ust be dism issed for failure to exhaust adm inistrative remedies. The Court need not address this argum ent because as discussed infra, Plaintiffs have not failed to exhaust their adm inistrative rem edies. 7 relevant statutes, Section 50 4 and the ADA, the violation of which is analyzed identically. See Henrietta D. v. Bloom berg, 331 F.3d 261, 272 (2d Cir. 20 0 3). a. Stan d in g? As an initial m atter, Defendants contend that the Richards lack standing to sue under Section 50 4 and the ADA on their own behalf for injuries related to J .R.’s education. Defendants provide no relevant authority to support this position, which is m eritless. Although the Second Circuit has not yet addressed this issue, district courts in this Circuit have held that parents possess “a particular and personal interest in preventing discrim ination against [their disabled] child” and thus have standing to assert claim s for violations related to their child’s education. See A.M. ex rel. J .M. v. N.Y.C. Dept. of Educ., 840 F. Supp. 2d 660 , 675 (E.D.N.Y. 20 12); B.D.S. v. Southold Union Free Sch. Dist., Nos. CV-0 8-1319, CV-0 8-1864, 20 0 9 WL 1875942, at *14-15 (E.D.N.Y. J une 24, 20 0 9).9 b. D is crim in atio n again s t D OE an d H ills id e To effectively plead a disability discrim ination claim under Section 50 4 or the ADA, Plaintiffs m ust allege that (1) J .R. is a qualified individual with a disability; 10 (2) Defendants are subject to Section 50 4 or the ADA; (3) J .R. suffered discrim ination by harassm ent because of his disability; (4) the harassm ent was so severe, pervasive and objectively offensive that J .R. was effectively denied equal access to an educational 9 Defendants argue that the applicable statute of lim itations bars all federal claim s asserted individually by the Richards for events which occurred before J anuary 19, 20 11 at I.S. 20 8 (three years prior to the filing of the Com plaint). See Pearl v. City of Long Beach, 296 F.3d 76, 79-80 (2d Cir. 20 0 2) (citing N.Y. C.P.L.R. § 214(5)). This assertion, while correct, has no effect on the claim s brought by the Richards on behalf of J .R. Defendants concede his claim s are not barred by the statute of lim itations, which was tolled while he was a m inor. See DOE Reply at 22. 10 Plaintiffs allege that J .R. is a “qualified individual with a disability” under the statutes. Id. ¶¶ 8; 18. 8 opportunity; 11 and (5) Defendants were “deliberately indifferent” to the discrim inatory harassm ent. See Preston, 876 F. Supp. 2d at 241-42. Plaintiffs have not alleged that Hillside is subject to Title II of the ADA, which applies only to a “public entity,” defined as “any departm ent, agency, special purpose district, or other instrum entality of a State . . . .” 42 U.S.C. § 12131(1)(B). Thus, the ADA discrim ination claim against it is dism issed.12 Section 50 4, however, applies to Hillside as an entity which receives “[f]ederal financial assistance.” See 29 U.S.C. § 794 (a). Defendants contend that Plaintiffs fail to allege the prerequisite standard that the alleged harassm ent was sufficiently “severe and pervasive.” The facts alleged in the Am ended Com plaint and outlined above, which are presum ed to be true, plainly satisfy that prerequisite. Plaintiffs have also alleged facts supporting a plausible inference that the Hillside and DOE em ployees were “deliberately indifferent,” m eaning that their response to known instances of bullying was “clearly unreasonable.” See K.M. ex rel. D.G. v. Hyde Park Cent. Sch. Dist., 381 F. Supp. 2d 343, 359 (S.D.N.Y. 20 0 5); Am . Com pl. ¶¶ 182-83. For exam ple, in response to com plaints about the harassm ent endured by J .R. on the bus, the QCPC principal did not intervene; instead, she told Plaintiffs that the bullying was likely to continue given the violent nature of the student body. Id. ¶ 10 9. Although the “deliberate indifference” standard does not require that teachers and school adm inistrators successfully prevent or eradicate all bullying behavior, surely som e effort to discourage that conduct and announce its unacceptability is required. Accepting the facts alleged as true, the Court finds that the 11 Courts in this Circuit have applied the “severe and pervasive” standard from Title IX cases to evaluate disability harassm ent claim s under the ADA and Section 50 4. See K.M., 381 F. Supp. 2d at 360 . Although Plaintiffs refer to Title III in their Opposition, the Amended Com plaint does not assert a claim pursuant to this section, and they cannot am end their pleading through their Opposition papers. See Hanley v. Nassau Health Care Corp., No. 10 -CV-3884, 20 13 WL 364375, at *3 (E.D.N.Y. J uly 3, 20 13). 12 9 DOE and Hillside em ployees’ alleged com plete failure to address the bullying was “clearly unreasonable” and tantam ount to deliberate indifference. Thus, the Court denies (1) the DOE’s m otion to dism iss the ADA and Section 50 4 discrim ination claim s; and (2) Hillside’s m otion to dism iss the Section 50 4 discrim ination claim . c. Re taliatio n again s t D OE Plaintiffs allege that after they com plained about the bullying incidents on the bus, DOE em ployees becam e “standoff-ish” and failed to adequately investigate their com plaints, which they characterize as “retaliation” in violation of the ADA and Section 50 4. The ADA prohibits retaliation “against any individual because such individual has opposed any act or practice m ade unlawful by [the ADA]. . . .” 42 U.S.C. § 1220 3(a). Section 50 4 contains a sim ilar provision. See 29 U.S.C. § 794(d). To successfully plead a retaliation claim under these statutes, Plaintiffs m ust allege: (1) they were engaged in a protected activity, (2) the DOE was aware of this activity, (3) the DOE took an adverse action against them , and (4) a causal connection between the protected activity and the adverse action. See Weixel v. N.Y.C. Bd. of Educ., 287 F.3d 138, 148-49 (2d Cir. 20 0 2). Advocacy on behalf of a disabled student is “protected activity” for purposes of Section 50 4 and the ADA. See Stahura-Uhl v. Iroquois Cent. Sch. Dist., 836 F. Supp. 2d 132, 143-44 (E.D.N.Y. 20 11). Plaintiffs assert that their efforts to alleviate the bullying of their son was protected activity. The Court recognizes that the DOE’s alleged inaction in response to these efforts could be construed as action, in that it effectively encouraged the harassm ent to continue. The retaliation claim s fail, however, because the alleged m isconduct was not sufficiently adverse, that is, “harm ful to the point that it could well dissuade an individual of ordinary firm ness from engaging in protected activity.” See M.A. v. New York Dep’t of Educ., 1 F. Supp. 3d 125, 149-50 (S.D.N.Y. 20 14) (internal 10 quotations and citations om itted). As the record m akes abundantly clear, Plaintiffs were not deterred from continuing to press their claim for relief from the DOE. The retaliation claim s are therefore dism issed. II. Title IX Claim Again s t D OE an d H ills id e Title IX sets forth that “no person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrim ination under any education program or activity receiving Federal financial assistance . . . .” 20 U.S.C. 1681(a). The prerequisites of a claim under Title IX are precisely the sam e as those for the Section 50 4 and ADA discrim ination claim s discussed above, with the only distinction being the basis upon which the harassm ent occurs.13 a. Ge n d e r h aras s m e n t Although Title IX does not protect against bullying based solely on hom osexuality, the Suprem e Court has held that harassm ent based on aversion to given gender preferences can support a Title VII claim , and district courts in this Circuit have extended this holding to Title IX claim s. See Price Waterhouse v. Hopkins, 490 U.S. 228, 251-52 (1989) superseded by statute on other grounds as stated in Burrage v. United States, 571 U.S. --- (20 14); Pratt v. Indian River Cent. Sch. Dist., 80 3 F. Supp. 2d 135, 151-52 (N.D.N.Y. 20 11). For exam ple, in Pratt, a m ale student was harassed because aspects of his “expressive gestures and m anner of speaking were of a nature stereotypically associated with fem ales” an d students repeatedly called him nam es like “sissy” and “girl.” 80 3 F. Supp. 2d at 152. The court held that the allegations “plausibly suggest[ed] that [he] was harassed and discrim inated against based on his sex, including 13 Title IX also requires that the defendant have actual notice of the gender-based discrim ination. The Court addresses this in the context of the DOE and Hillside’s m unicipal liability pursuant to Monell. 11 . . . perceived nonconform ity to sexist stereotypes” and denied the m otion to dism iss the Title IX claim . Id. Pratt is precisely applicable here. Plaintiffs’ Title IX claim is bottom ed upon allegations that students bullied J .R. because he did not m eet their stereotyped expectations of how a boy should behave. The Court can reasonably infer that students bullied and harassed J .R. because of their m anifested revulsion of his effem inate m annerism s and way of speaking, which is stereotypically gender based. Thus, the Court finds that the alleged bullying based on J .R.’s fem inine m annerism s supports the Title IX claim . b. D e libe rate in d iffe re n ce Pervasive harassm ent m ust be “sufficiently continuous and concerted” and “m ore than episodic.” Hayut v. State Univ. of N.Y., 352 F.3d 733, 745 (2d Cir. 20 0 3) (internal citations om itted). The allegations of repeated and unwanted physical contact by other students, such as pulling down J .R.’s pants and attem pting to kiss him , support a plausible inference of “severe and pervasive” harassm ent. See Am . Com pl. ¶¶ 30 -31; 9910 3. As discussed supra, Plaintiffs have alleged that the DOE and Hillside em ployees were deliberately indifferent to this persistent physical and verbal badgering. Accordingly, Defendants’ m otions to dism iss the Title IX claim are denied. III. Se ctio n 19 8 3 Claim s Plaintiffs assert Section 1983 claim s against both Defendants for violations of the IDEA and Equal Protection Clause, and against the DOE only for violations of the First and Fourth Am endm ents and the Due Process Clause. “Section 1983 does not create any federally protected right, but sim ply provides a m echanism to enforce federal rights established elsewhere.” Velasquez v. City of New York, No. 12-CV-4689, 20 12 WL 12 5879484, at *2 (E.D.N.Y. Nov. 21, 20 12) (internal citation om itted). To m aintain a Section 1983 claim , Plaintiffs m ust allege that the challenged conduct was com m itted by a person acting under color of state law and deprived them of “rights, privileges or im m unities secured by the Constitution or laws of the United States.” Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). a. U n d e r co lo r o f s tate law ? There is no question that as a m unicipal entity, the DOE is considered a “person acting under color of state law.” See Fierro v. N.Y.C. Dep’t of Educ., 994 F. Supp. 2d 581, 588 (S.D.N.Y. 20 14). A private entity such as Hillside, however, is generally beyond the reach of Section 1983, unless its alleged m isconduct is deem ed to be “fairly attributable to the State.” See Rendell-Baker v. Kohn, 457 U.S. 830 , 838-43 (1982). Plaintiffs argue that Hillside acted “under color of state law” because it received public funding for J .R.’s tuition and fulfilled the DOE’s statutory obligation to provide him with a free appropriate public education. These two factors alone, however, do not m ake Hillside’s conduct “fairly attributable to the State.” First, Hillside’s perform ance of a function which serves the public does not render it a state actor. Rendell-Baker, 457 U.S. at 842. Rather, the function m ust be one that is “traditionally exclusively reserved to the State.” J ackson v. Met. Edison Co., 419 U.S. 345, 352 (1974) (em phasis added). The Suprem e Court has held that education is not such an exclusive public function. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978); Rendell-Baker, 457 U.S. at 842. Furtherm ore, “[e]xtensive regulation and public funding, either alone or taken together, will not transform a private actor into a state actor.” Leeds v. Meltz, 85 F.3d 51, 54 (2d Cir. 1996). To deem even a heavily-regulated private entity a state actor, Plaintiffs m ust allege that the State “exerted its coercive power over, or provided 13 significant encouragem ent to” it. See id. This fact-specific determ ination “requires thorough developm ent and analysis of the facts of the case.” Meadows v. City of New York, No. 10 -CV-286, 20 11 WL 864832, at *5 (E.D.N.Y. Mar. 11, 20 11). Plaintiffs allege that the DOE overrode Hillside’s determ ination that HCC was not an appropriate school for J .R. and continued him there for a second year. At this stage of the litigation, Plaintiffs have alleged sufficient facts to support an inference that the DOE “exerted its coercive power over, or provided significant encouragem ent” to Hillside with respect to at least one key decision regarding J .R.’s education. Accepting the facts alleged as true, the Court finds that Plaintiffs have stated a plausible claim that Hillside functioned as a state actor and can be held liable pursuant to Section 1983. b. ID EA again s t D OE an d H ills id e The IDEA establishes a com prehensive program for providing federal funds to assist the States in educating disabled children. In exchange for federal assistance under the IDEA, the recipient State is required to ensure that disabled students receive a “free appropriate public education that em phasizes special education and related services designed to m eet their unique needs.” 20 U.S.C. §§ 140 0 (d); 1412(a). The Suprem e Court has interpreted the “free appropriate public education” standard to require “personalized instruction with sufficient support services to perm it the [disabled student] to benefit educationally from that instruction.” Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 20 3-0 4 (1982). A school’s failure to prevent the bullying of a disabled student m ay support a finding that it deprived the student of a “free appropriate public education” in violation of the IDEA. See T.K. v. N.Y.C. Dep’t of Educ., 779 F. Supp. 2d 289, 311-12 (E.D.N.Y. 20 11). 1. Exhaustion 14 Defendants argue that the Court lacks subject m atter jurisdiction over the IDEA claim because Plaintiffs did not appeal the Im partial Hearing Officer’s (“IHO”) decision discussed above and therefore have not exhausted their adm inistrative rem edies. See 20 U.S.C. § 1415(i)(2)(A). Under the IDEA, parents are “entitled to request a due process hearing . . . to present com plaints as ‘to any m atter relating to the identification, evaluation, or educational placem ent of the child, or the provision of a free appropriate public education.’” Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240 , 245 (2d Cir. 20 0 8) (quoting 20 U.S.C. § 1415(b)(6)(A)). New York has a two-tiered adm inistrative review process for such grievances, in which parents m ust first request an im partial due process hearing before an IHO. See N.Y. Educ. Law § 440 4. Any aggrieved party m ay then appeal the IHO’s decision to a State Review Officer within the New York State Departm ent of Education. See 20 U.S.C. § 1415(g); N.Y. Educ. Law § 440 4. District courts in this Circuit have recognized that prevailing parties in an im partial due process hearing are not aggrieved parties and thus are not required to appeal a favorable decision to exhaust their adm inistrative rem edies. See R.B. ex rel. L.B. v. Bd. of Educ. of City of New York, 99 F. Supp. 2d 411, 415 (S.D.N.Y. 20 0 0 ); S.J .B. ex rel. Berkhout v. N.Y.C. Dep’t of Educ., No. 0 3 Civ. 6653, 20 0 4 WL 158650 0 , at *3 (S.D.N.Y. J uly 14, 20 0 4). Therefore, Plaintiffs’ failure to appeal the IHO’s favorable decision does not deprive this Court of subject m atter jurisdiction over the IDEA claim . 2. Dam ages Plaintiffs seek dam ages for their em otional pain and suffering and that of their son, but “affirm atively state that they are not seeking reim bursem ent for any expenses 15 associated with educating J .R.” See Opp. at 36. 14 Monetary dam ages are not recoverable for violations of the IDEA, but district courts in this Circuit have held that plaintiffs m ay seek such relief under Section 1983. See R.B., 99 F. Supp. 2d at 418; M.H. v. Bristol Bd. of Educ., 169 F. Supp. 2d 21, 29-30 (D. Conn. 20 0 1). To plead a Section 1983 claim for IDEA violations, Plaintiffs m ust allege that Defendants acted with “deliberate indifference” toward the disability-based bullying. T.K., 779 F. Supp. 2d at 315-16. As discussed supra, Plaintiffs have. Thus, the Court denies Defendants’ m otions to dism iss the Section 1983 claim for IDEA violations. 3. Attorneys’ Fees As prevailing parties in the im partial due process hearing, Plaintiffs are entitled to attorneys’ fees related to the hearing, pursuant to the IDEA, but seek them in the Am ended Com plaint under Section 1988 only. See Vultaggio ex rel. Vultaggio v. Bd. of Educ., 343 F.3d 598, 60 1 (2d Cir. 20 0 3) (citing 20 U.S.C. § 1415(i)(3)(B)); com pare Opp. at 36, with Am . Com pl. ¶¶ 224-26. Although Plaintiffs have not m oved for fees pursuant to the IDEA, the Court grants them leave to am end their Com plaint to do so sua sponte. See Steger v. Delta Airlines, Inc., 382 F. Supp. 2d 382, 387 (E.D.N.Y. 20 0 5). c. Equ al Pro te ctio n again s t D OE an d H ills id e Defendants can be liable for a violation of the Equal Protection Clause pursuant to Section 1983 on the basis of their deliberate indifference to racial or gender-based 14 Defendants argue that the Richards lack standing to assert an IDEA claim for injuries related to J .R.’s education. The Suprem e Court has held that parents have standing to assert IDEA claim s on their own behalf based upon the denial of a “free appropriate public education” for their children. Winkelm an ex rel. Winkelman v. Parm a City Sch. Dist., 550 U.S. 516, 533-35 (20 0 7). 16 bullying. See Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 140 -41 (2d Cir. 1999).15 J .R. suffered from persistent bullying based on his race and gender, and the Court has already determ ined that Plaintiffs’ allegations dem onstrate the deliberate indifference of the DOE and Hillside em ployees. Therefore, it finds that Plaintiffs have stated an equal protection claim against Defendants. d . Fo u rth Am e n d m e n t/ D u e Pro ce s s again s t D OE Plaintiffs allege that the DOE violated J .R.’s rights under the Fourth Am endm ent and Due Process Clause of the Fourteenth Am endm ent by placing him at QCPC without parental consent or an IEP. The DOE’s placem ent decision did not im plicate J .R.’s rights under the Fourth Am endm ent or the Due Process Clause, and the Court finds these claim s to be m eritless and dism isses them . e . Firs t Am e n d m e n t/ Re talia tio n again s t D OE Plaintiffs assert that “J .R. was exercising his protected First Am endm ent interest in seeking redress for wrongs by reporting incidents of harassm ent, bullying and discrim ination to the Defendant DOE em ployees” and that the “DOE took adverse action against J .R. in retaliation for m aking such reports.” See Opp. at 46. To plead a claim for retaliation in violation of J .R.’s First Am endm ent rights, Plaintiffs m ust allege: “(1) [J .R.] has a right protected by the First Am endm ent; (2) [the DOE’s] actions were m otivated or substantially caused by [his] exercise of that right; and (3) [the DOE’s] actions effectively chilled the exercise of [J .R.’s] First Am endm ent right.” See Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 20 0 1). Plaintiffs’ First Am endm ent claim fails because they have not alleged “that the defendant’s actions had som e actual, non 15 Defendants incorrectly assert that Plaintiffs m ust allege that the harassm ent was “severe, pervasive, and objectively offensive.” The Second Circuit has “specifically declined” to decide whether the severity requirem ent from Title IX applies to equal protection claim s. See DiStiso, 691 F.3d at 424. 17 speculative chilling effect.” Colom bo v. O’Connell, 310 F.3d 115, 117 (2d Cir. 20 0 2). As the Am ended Com plaint reflects, the DOE em ployees did not deter Plaintiffs from reporting the bullying incidents. The First Am endm ent claim is dism issed. f. Mu n icip al Liability again s t D OE an d H ills id e Plaintiffs claim the DOE and Hillside are vicariously liable for the wrongful conduct (i.e., deliberate indifference) of their em ployees as discussed above. Monell v. Departm ent of Social Services has long ago taught that respondeat superior is not applicable to m unicipalities absent a claim that the conduct of its em ployees was in accordance with established m unicipal custom or policy or the act of a person with policym aking authority for the m unicipality. 436 U.S. 658, 691 (1978). Plaintiffs first argue that the Defendants’ practice of “ignoring race and/ or sex peer-on-peer harassm ent was sufficiently widespread and pervasive so as to constitute a custom of ignoring [such harassm ent].” See Opp. to DOE m otion at 44; Opp. to Hillside m otion at 28 (citing Am . Com pl. ¶¶ 127, 139-41, 144, 154). The Am ended Com plaint focuses solely on the bullying against J .R. and sets forth no facts to support the assertion that Defendants’ conduct affected other students and was “sufficiently widespread.” These “[c]onclusory allegations of m unicipal custom or policy will not suffice to satisfy the requirem ents of Monell.” J ackson v. DeMarco, No. 10 -CV-5477, 20 11 WL 10 99487, at *4 (E.D.N.Y. Mar. 21, 20 11). The Court finds, however, that Plaintiffs have alleged a plausible claim for m unicipal liability based on the actions of Hillside and DOE officials with policym aking authority. “When an official has final authority over significant matters involving the exercise of discretion, the choices he m akes represent governm ent policy.” Nagle v. Marron, 663 F.3d 10 0 , 116 (2d Cir. 20 11) (internal quotation m arks om itted). In certain 18 circum stances, “a public school principal m ay be a final policym aker where the harm that befell the plaintiff was under the principal’s control.” T.E. v. Pine Bush Cent. Sch. Dist., No. 12-cv-230 3, --- F. Supp. 3d ---, 20 14 WL 55910 66, at *35 (S.D.N.Y. Nov. 4, 20 14). “As a practical m atter, principals are the highest ranking officials in the school and thus have policym aking authority in the day-to-day operations of the school.” Marino v. Chester Union Free Sch. Dist., 859 F. Supp. 2d 566, 569 (S.D.N.Y. 20 12). Plaintiffs allege that they reported the bullying incidents to the QCPC principal and other unidentified DOE adm inistrators who failed to intervene. The allegations regarding the conduct of the QCPC principal are sufficient at this stage of the litigation to state a Monell claim against the DOE, and further fact-finding is warranted to determ ine the identity and involvem ent of the other alleged DOE adm inistrators who were aware of the bullying and failed to intervene. Plaintiffs’ allegations also indicate that Hillside officials were aware of the bullying. Hillside determ ined that HCC was inappropriate to m eet J .R.’s needs and recom m ended a “less-restrictive, m ore therapeutic placem ent” for him . Am . Com pl. ¶¶ 126; 142. It is reasonable to infer that a Hillside official with policym aking authority rendered this determ ination and was aware of the bullying, given Plaintiffs’ frequent com plaints. Accordingly, Defendants’ m otions to dism iss the claim s for m unicipal liability are denied.16 IV. State Law Claim s 16 Plaintiffs have stated civil rights claim s under Section 1983; thus, dism issal of their request for attorneys’ fees pursuant to Section 1988 is prem ature. Defendants did not address Plaintiff’s claim for punitive damages against Hillside. 19 Plaintiffs assert various tort claim s under New York law.17 The applicable statute of lim itations bars the state law claim s against the DOE, which relate to events that occurred at DOE-run schools prior to Septem ber 20 12, when J .R. began attending HCC. Plaintiffs’ filed their com plaint on J anuary 19, 20 14, after the one year and ninety day lim itations period expired for the tort claim s against the DOE. See N.Y.C.P.L.R. § 217-a. Thus, the DOE’s m otion to dism iss the state law claim s is granted. The Court finds that the state law claim s against Hillside are not tim e-barred because they relate to bullying incidents which occurred at HCC and within the lim itations period. Hillside presented no alternative basis for dism issing the state law claim s against it, and its m otion to dism iss the claim s is therefore denied. CON CLU SION For the foregoing reasons, the Court GRANTS the DOE’s m otion to dism iss the claim s for: (1) violations of New York state law (2) retaliation under the ADA and Section 50 4 and (3) violations of the First and Fourth Am endm ents and Due Process Clause pursuant to Section 1983. The Court GRANTS Hillside’s m otion to dism iss the federal claim for disability discrim ination under the ADA. The Court DENIES Defendants’ m otions with respect to all other claim s and grants leave for Plaintiffs to am end their Com plaint within 30 days to seek attorneys’ fees pursuant to the IDEA. SO ORDERED. Dated: Brooklyn, New York August 20 , 20 15 17 The claim pursuant to Article XI of the New York State Constitution is dism issed because Article XI does not create a private cause of action. See K.M., 381 F. Supp. 2d at 363. 20 / s/ _ I. Leo Glasser Senior United States District J udge 21
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