-AKT Luo v. Baldwin Union Free School District et al, No. 2:2010cv01985 - Document 74 (E.D.N.Y. 2011)
Court Description: MEMORANDUM AND ORDER granting in part and denying in part 51 Motion to Dismiss; granting in part and denying in part 51 Motion to Dismiss for Lack of Jurisdiction; denying 52 Motion for Hearing; granting 60 Motion to Amend/Correct/Supplement; denying as moot 70 Motion for Extension of Time to Complete Discovery; granting 24 Motion to Dismiss. Party Susan M. Gibson terminated. The Clerk of Court is directed to mail Plaintiff a copy of this Order. So Ordered by Judge Joanna Seybert on 3/15/11. C/M; C/ECF (Valle, Christine)
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-AKT Luo v. Baldwin Union Free School District et al Doc. 74 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------X JENN-CHING LUO, Plaintiff, -against- MEMORANDUM AND ORDER 10-CV-1985 (JS)(AKT) BALDWIN UNION FREE SCHOOL DISTRICT, MICHELLE GALLO, SHERRISSE MARTIN, SUSAN M. GIBSON and JOHN M. SUOZZI, Defendants. --------------------------------------X Appearances: For Plaintiff: Jenn-Ching Luo, pro se 830 Hastings Street Baldwin, NY 11510 For Defendants Baldwin UFSD, Michelle Gallo, and Sherrisse Martin: Jeltje DeJong, Esq. Kelly E. Wright, Esq. Devitt Spellman Barrett, LLP 50 Route 111 Smithtown, NY 11787 Susan M. Gibson: Ralph A. Catalano, Esq. Catalano, Gallardo & Petropoulos, LLP 1565 Franklin Avenue Mineola, NY 11501 John M. Suozzi: Jonathan R. Hammerman, Esq. Kaufman, Borgeest & Ryan LLP 1305 Franklin Avenue Garden City, NY 11530 Dennis John Dozis, Esq. Kaufman, Borgeest & Ryan LLP 120 Broadway, 14th Floor New York, NY 10271 SEYBERT, District Judge: Pro se Plaintiff Jenn-Ching Luo brought this action to redress perceived infirmities in the way Defendant Baldwin Union Dockets.Justia.com Free School (the “District”) addressed defendants District the educational disabled child, B.L. and several needs of individual Plaintiff’s The Defendants are the District, Michelle Gallo, Sherrisse Martin, Susan Gibson and John Suozzi, Ph.D; Plaintiff asserts violations of the Individuals with Disabilities Education Act (“IDEA”) and Section 1983 of Title 42 of the United States Code (“Section 1983”), as well as several state law claims. Pending before the Court are Gibson’s and Suozzi’s motions to dismiss the Complaint pursuant to Federal Rule of Civil Procedure Plaintiff’s 12(b).1 letter Also motion pending to amend before the the caption Court of is this litigation. For the reasons that follow, Plaintiff’s motion to amend the caption is GRANTED insofar as the Court will construe the Complaint claims on as behalf asserting of Complaint is GRANTED. B.L. only Plaintiff’s Gibson’s motion own claims, not to dismiss the Suozzi’s motion to dismiss is GRANTED IN PART AND DENIED IN PART. 1 Gibson has also moved for judgment on the pleadings pursuant to Rule 12(c). As Gibson has not yet answered, that motion is DENIED as premature. See Taylor v. City of New York, 953 F. Supp. 95, 97 (S.D.N.Y. 1997). 2 BACKGROUND The following facts are taken from the Complaint and are presumed to be true for the purpose of this Memorandum and Order. I. The Parties Plaintiff is the parent of B.L., an autistic child residing in the District. (Compl. ¶ 13.) Defendant Michelle Gallo was the District’s director of pupil services. (Compl. ¶ 15.) Defendant Sherrisse Martin was the assistant director of pupil services. (Compl. ¶ 16.) Defendant Susan Gibson is an attorney who represented the District at a due process hearing Individualized Education Plan (“IEP”). concerning B.L.’s Gibson also served as a counselor to the District, providing legal advice in connection with Plaintiff’s dispute over B.L.’s education. Defendant psychologist. John M. Suozzi, Ph.D, (Compl. ¶ 17.) is a licensed He maintains a private practice, and he was hired as a consultant to evaluate B.L. (Compl. ¶ 18.) As the Court will explain, this psychological evaluation, and Suozzi’s report thereof, allegedly loomed large in the development of B.L.’s IEP. II. Plaintiff’s Dispute with the District B.L. has received home instruction as part of his IEP 3 since he was in pre-school. Court can determine, this (Compl. ¶ 65.) lawsuit stems As near as the from the District’s attempt to modify B.L.’s IEP by removing or limiting the home instruction “parent component skills” techniques that development. and classes he replacing whereby could use or supplementing Plaintiff at home to can it learn accelerate with certain B.L.’s (See Compl. ¶¶ 67-68, 72.) A. The District’s “Hitman Practice” Plaintiff alleges that the District follows what he calls “hitman practice” when determining the appropriate level of services it must provide to disabled students. Pursuant to this practice, school districts attempt to end-around the IEP development process by paying an ostensibly disinterested consultant to write a “recommendation” for a child’s educational program that is nothing more than a dressed-up version of what type of program best suits the school. (Compl. ¶¶ 64-76.) The “hitman” has little or no knowledge of a particular student’s circumstances, and instead recites the school’s desired outcome, couched as a recommendation. (See Compl. ¶¶ 78-79.) Plaintiff does not say so explicitly, but the school district’s motive for such a tactic appears to be financial; the district can save money if its consultants “recommend” the least expensive IEP. Plaintiff alleges that he and B.L. were victims of 4 this “hitman” practice on at least two occasions. On the first, the District asked a woman named Andretta to write a report that recommended replacing “parent lessons.” B.L.’s home instructional (Compl. ¶¶ 77, 80.) program with Andretta did so, despite having no personal knowledge about B.L.’s educational progress, because the District promised her a job in exchange for her report. (Compl. ¶¶ 83-86.) On the second, the District’s psychologist suggested that she perform a psychological re-evaluation of B.L (the “Reevaluation”). (See Compl. ¶ 94.) Wary that the Re-evaluation would be conducted by a “hitman,” Plaintiff insisted that it be performed by someone unaffiliated with the District. 95-97.) (Id. ¶¶ The District hired Defendant Suozzi, a psychologist in private practice, to perform the Re-evaluation and sent him a letter authorizing him to proceed. (Id. ¶ conducted the Re-evaluation on February 2, 2009. 103.) Suozzi (Id. ¶ 111.) Notwithstanding Plaintiff’s precautions, Suozzi turned out to be a District “hitman,” too. The Re-evaluation and Suozzi’s report are discussed in detail, below. B. B.L.’s Re-evaluation Suozzi’s report of the Re-evaluation listed several recommendations for B.L.’s development, two of which Plaintiff cites in the Complaint. In Recommendation 6, Suozzi opined that 5 B.L. was not ready to learn some of the skills in his thencurrent educational program. 7, Suozzi suggested that (Compl. ¶ 234.) “home-based In Recommendation instruction” would help Plaintiff learn skills he needed to maximize B.L.’s development. (Compl. ¶ 245.) Plaintiff disagrees with the substance of these Recommendations, and he objects to three procedural aspects of the Re-evaluation and Suozzi’s report. was conducted generally without id. ¶¶ the required 137-170.) First, the Re-evaluation parental More consent. specifically, (See Plaintiff returned a consent form with four conditions and the District accepted Plaintiff’s evaluation began. satisfy consent” (Id. ¶¶ 137-139.) Plaintiff’s Plaintiff’s “conditional view, conditions the the Re- The District failed to after-the-fact, consent generally id. ¶¶ 137-170.) before retroactively rendering, void. in (See Second, Plaintiff received Suozzi’s report only two days before he was supposed to meet with the District to discuss B.L.’s IEP. (Id. ¶ 118.) had little time to prepare his response. Suozzi’s report did not provide Plaintiff thus (Id. ¶ 119.) sufficient information support its conclusions. (See generally id. ¶¶ 231-280.) other Recommendations shortcomings, the were “too cited no peer-reviewed publications for support. 6 Third, to Among vague” and (Id. ¶¶ 235, 237.) C. The February 26, 2009 Meeting The District used Suozzi’s report, which was tainted by the District’s “hitman practice” and rife with substantive and procedural defects, as the start- and end-point to discussions concerning B.L.’s educational needs, thereby cutting Plaintiff out of the process of determining what was best for B.L. generally (See Plaintiff, “Suozzi Compl. ¶¶ determined 207-230.) [B.L.’s] (Recommendations 6 and 7) by himself.” although Suozzi took time to According educational needs (Id. ¶ 210.) “emotionally to And, explain” his conclusions to Plaintiff, Plaintiff suggests that he was not given a meaningful opportunity to voice his own thoughts about B.L.’s educational needs. Complaint does not terminated or that skills” classes, it (Id. ¶ 121.) allege that Plaintiff is B.L.’s actually apparent that Further, although his home instruction attended Plaintiff the was “parent feels the District’s strong-arm tactics denied B.L. a free and appropriate public education (“FAPE”). Gibson Opp. at 6 (See id. ¶ 286(e); see also Pl. (suggesting that, had it entertained Plaintiff’s views on B.L.’s education, the District would have 7 added services to B.L.’s program).)2 III. Plaintiff’s Due Process Complaint and Hearing Plaintiff aired these grievances in a due process complaint against the District that he filed on March 10, 2009. (Compl. ¶ independent 19.) hearing (Id. ¶ 20.) Thereafter, officer the (“IHO”) District and a appointed hearing was an held. The IHO apparently ruled in the District’s favor, (id. ¶ 61), and that decision was upheld on appeal by the state review board. (Id. ¶ 62.) The Complaint contains a host of allegations charging the IHO with misconduct (see id. ¶¶ 19-62). Inasmuch as the IHO is not a defendant in this case, these allegations--which include claims that the IHO had improper ex parte contact with the District and scheduled the hearing at a time inconvenient to Plaintiff--are relevant only to show that Plaintiff was allegedly not provided with an impartial hearing. Plaintiff also asserts that the state review officer upheld the IHO’s decision with “nothing more than a rewritten version” of the IHO’s opinion. (Id. ¶ 62.) IV. Defendant Gibson’s Role Gibson, a private attorney, represented the District at the due process hearing and counseled the District throughout 2 Plaintiff’s opposition to Gibson’s motion to dismiss is cited as “Pl. Gibson Opp.” and his opposition to Suozzi’s motion is cited as “Pl. Suozzi Opp.” 8 its dispute with Plaintiff. (See, e.g., Compl. ¶¶ 126, 241.) According to Plaintiff, Gibson advised the District that it was not bound by the conditional nature of Plaintiff’s consent to the Reevaluation, (Compl. ¶ 124), provided case law to Defendant Martin concerning the Family Educational Rights and Privacy Act, (id. ¶ 125), and once, after Plaintiff had a dispute with the IHO over whether transcripts of Plaintiff the was proceeding, entitled “chased to receive Plaintiff out digital of the conference room where the hearing was conducted, and closed the door.” (Id. ¶ 47.) Plaintiff also complains that Gibson did not know the proper evaluation procedures mandated by IDEA. (Id. ¶¶ 188-189.) DISCUSSION The Court first clarifies the scope of Plaintiff’s Complaint and then addresses the pending motions. I. The Scope of Plaintiff’s Complaint It is axiomatic that district courts have a duty to construe pro se pleadings to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). Consistent with this duty, the Court reads Plaintiff’s Complaint liberally. Id. As an initial matter, however, the Court notes Plaintiff has clarified that he does not assert any claims on behalf of B.L. Plaintiff had originally captioned his Complaint 9 “Jenn-Ching Lou on behalf of himself and B.L.” But because pro se litigants may not appear in federal court on someone else’s behalf, Berrios v. New York City Housing Authority, 564 F.3d 130, 133-34 (2d Cir. 2009), the Court ordered Plaintiff either to retain counsel for B.L. or have B.L.’s claims dismissed from the case. (August 2, 2010 Minute Order.) B.L. has not appeared in this action through counsel, and Plaintiff’s September 27, 2010 letter stated unequivocally that “BL has no claim in the complaint” right.” and “no (Docket one cause Entry 60 of at action 2.) is asserted Accordingly, in BL’s Plaintiff’s Complaint is limited to claims that Plaintiff may assert on his own behalf. In this case, though, whether Plaintiff is suing in his own right or on behalf of B.L. is a distinction without much of a difference. The Supreme Court has recognized that parents have rights to their children’s FAPE and that they may sue on See Winkleman v. Parma City their own to enforce those rights. Sch. Dist., 550 U.S. 516, 531, 127 S. Ct. 1994, 2004 (2007). With Plaintiff’s claims: Complaint in to mind, the assert Court the liberally following four construes federal first, a claim that all Defendants violated IDEA by (a) subjecting consent; that B.L. (b) to failing the to Reevaluation gather 10 the without relevant valid parental information in support of Recommendations 6 and 7, and (c) cutting Plaintiff out of meaningful discussions concerning B.L.’s IEP by presenting Suozzi’s “hitman” evaluation of B.L.’s educational needs to Plaintiff as a fait accompli; second, a Section 1983 claim that all Defendants deprived Plaintiff of his rights under IDEA for the same reasons (Compl. ¶¶ 287-300.); third, a Section 1983 Claim that all Defendants deprived Plaintiff of a Fourteenth Amendment property right to B.L.’s FAPE; fourth, a Section 1983 claim that all Defendants deprived Plaintiff of a Fourteenth Amendment liberty right by suggesting that Plaintiff learn “parent skills” as part of B.L.’s new IEP (Compl. ¶¶ 301317). In addition to his federal claims, Plaintiff also appears to assert four state law claims: first, the District, Gallo and Martin breached a contract by not honoring the conditional consent to the Reevaluation, (Compl. ¶¶ 318-326); second, all Defendants used the IEP determination process to harass Plaintiff committed a (Compl. prima facie ¶¶ 327-331); tort; and third, fourth, all Defendants Suozzi defamed Plaintiff by writing that Plaintiff needed to learn additional skills (Compl. ¶ 309). II. Gibson’s and Suozzi’s Motions Gibson’s motion to dismiss the Complaint is GRANTED, 11 and Plaintiff’s entirety. claims her are dismissed in their Suozzi’s motion to dismiss is GRANTED IN PART AND DENIED IN PART. deprived against Plaintiff’s Section 1983 claim that Suozzi Plaintiff of his right to participate determination of B.L.’s IEP may go forward. in the The remainder of Plaintiff’s claims against Suozzi are DISMISSED. A. Legal Standard for Rule 12 Motions To survive a Rule 12(b)(6) motion, a plaintiff must plead sufficient factual allegations in the complaint to “state a claim [for] relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929, 949 (2007). The complaint does not need “detailed factual allegations[,]” but it demands “more than labels and conclusions, an a formulaic recitation the Id. at 555. elements of a cause of action will not do.” of In addition, the facts pleaded in the complaint “must be enough to raise a right Determining to relief whether a above the plaintiff speculative has met his level.” burden Id. is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” 572 F.3d 66, 72 (2d Cir. 2009). of the elements of a cause Harris v. Mills, However, “[t]hreadbare recitals of action, conclusory statements, do not suffice.” 12 supported by mere Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). B. Plaintiff’s IDEA Claims Plaintiff may not maintain his IDEA claims against Gibson and Suozzi because IDEA does not provide for individual liability. See B.I. v. Montgomery County Bd. of Educ., __ F. Supp. 2d __, 2010 WL 4595518, at *2 (M.D. Ala. Nov. 12, 2010) (“IDEA does not provide for individual liability.”); see also Parenteau v. Prescott Unified School Dist., No. 07-CV-8072, 2008 WL 5214997, at *8 (D. Ariz. Dec. 11, 2008); S.W. v. Warren, 528 F. Supp. 2d 282, 298 (S.D.N.Y. 2007). Accordingly, Plaintiff’s IDEA claims against Gibson and Suozzi are DISMISSED. C. Section 1983 Claims Section 1983 provides, in relevant part, that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law. 42 U.S.C. § 1983. To state a claim under this law, a plaintiff must allege: (1) that the defendant acted under color of state law; and (2) that as a result of the defendant's actions, the plaintiff suffered a deprivation 13 of his or her rights or privileges as secured by the Constitution or laws of the United States. See Am. Mfr. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 985, 143 L. Ed. 2d 130, 143 (1999). 1. Under Color of State Law As initial matter, Plaintiff has alleged that Suozzi, but not Gibson, was acting under color of state law. The Court addresses the allegations against Gibson and then those against Suozzi. a. Gibson was not Acting Under Color of State Law Even construing his Complaint liberally and affording him every favorable inference, Plaintiff has not alleged that Gibson was acting under color of state law. Plaintiff’s allegations as to Gibson center on her role as a counselor and advocate for the District. (See Compl. ¶¶ 124-128 (providing legal advice and precedent); ¶ 241 (cross-examining witnesses at due process hearing); ¶¶ 254, 257 (voicing objections at due process hearing); see also id. at ¶¶ 189-194 (alleging that Gibson did not know IDEA’s evaluation procedure).) himself characterizes Gibson’s role as providing Plaintiff the legal advice that precipitated the District’s allegedly wrongful acts. (See, e.g., Pl. Gibson Opp. at 14 (“This action alleged that Gibson was paid to review legal issues, but Gibson gave wrong legal advice, and also advised school district not to remedy the 14 dispute.”).) Attorneys representing the state do not act under color of state law when they perform their traditional functions as counsel. See Polk County v. Dodson, 454 U.S. 312, 325 102 S. Ct. 445, 453 (1981) (public defender does not act under color of state law when representing indigent client). To the extent Plaintiff attempts to evade this rule by suggesting, however obliquely, that Gibson conspired with others to deny Plaintiff his rights, (see Compl. ¶ 286), such conclusory allegations do not suffice to plead a Section 1983 claim against a private actor. See Browdy v. Karpe, 131 F. App’x 751, 753 (2d Cir. 2005). Accordingly, Plaintiff’s Section 1983 claims against Gibson are DISMISSED. b. Suozzi was Allegedly Acting Under Color of State Law Plaintiff has sufficiently alleged that violated Plaintiff’s rights under color of state law. Suozzi “[A] private actor acts under color of state law when the private actor is a willful participant in joint activity with the State or its agents.” Ciambriello v. County of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (quotations and citations omitted). Here, Plaintiff claims that Suozzi jointly engaged in the so-called “hitman practice” whereby he revised his report to reflect the District’s desired outcome before presenting it to Plaintiff as 15 fait accompli. (See Compl. 203 (“The [Re-evaluation] was under the cloud of hitman practice. School district and Suozzi might revise the report to plant Recommendations several times until school district satisfied, but they covered it up.”).) 2. Deprivation of Federal Rights Plaintiff alleges that Suozzi deprived him of his federal rights under IDEA and the Fourteenth Amendment. The Court addresses each in turn. a. IDEA Violations Plaintiff excluding alleges Plaintiff from that Suozzi meaningful violated IDEA discussions by (1) concerning B.L.’s education, see 20 U.S.C. § 1414(b)(4); (2) conducting the Reevaluation without parental consent, see 20 U.S.C. § 1414(c)(3); and (3) failing to gather sufficient factual support for certain recommendations he included in his report (Compl. 231-280). Neither Suozzi nor Gibson argues that Plaintiff cannot use Section 1983 to redress violations of IDEA. (See Gibson Br. at 7; Suozzi Br. at 21) (“Nor can Dr. Suozzi be individually liable for alleged violations of IDEA outside of [Section 1983]”) (emphasis added). The rule in this Circuit is more nuanced than the defendants make it seem. Unlike many Circuits, which do not permit plaintiffs to use Section 1983 to redress IDEA violations, see, e.g., D.A. ex rel. Latasha A. v. 16 Houston Independent School Dist., 629 F.3d 450, 456 (5th Cir. 2010); A.W. v. Jersey City Public Schs., 486 F.3d 791, 803 (3d Cir. 2007) (en banc); Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 28 (1st Cir. 2006), the Second Circuit permits IDEA-based Section 1983 claims, but only where the plaintiff was denied the procedural or administrative remedies that IDEA provides. See Streck v. Board of Educ. of East Greenbush Sch. Dist., 280 F. App’x 66, 68 (2d Cir. 2008); see also Quackenbush v. Johnson City Sch. Dist., 716 F.2d 141, 148 (2d Cir. 1983); K.M. ex rel. A.M. v. Manhasset Union Free Sch. Dist., No. 04-CV-1031, 2006 WL 1071568, at *7 (E.D.N.Y. 2006). Here, Plaintiff essentially alleges that the IHO’s misconduct prevented him from pursuing his grievances at an impartial due process hearing, and that the state review (providing process for was impartial Consequently, Plaintiff alleged violations. IDEA a sham. due may process use Cf. See 20 U.S.C. hearing); Section 1983 Streck, 280 Compl. to F. § 1415(f) ¶ 62. redress the App’x at 68 (“Plaintiffs fail to allege a denial of procedural safeguards or administrative remedies: they were afforded a hearing before an impartial hearing officer and review by a state review officer (‘SRO’). Therefore, plaintiffs may not rely on § 1983 to pursue monetary damages for violations of the IDEA.”). The Court addresses in turn each of Plaintiff’s three 17 IDEA-based Section 1983 claims. i. Participation in Development of B.L.’s IEP Plaintiff has also sufficiently alleged that, as a result of the Suozzi’s conduct, he was deprived of his federal right to participate in meaningful discussions concerning B.L.’s education. 20 U.S.C. § 1414(b)(4). IDEA “requires school districts to develop an IEP for each child with a disability, with parents playing a significant role in the process.” Winkelman, 550 U.S. at 524, 127 S. Ct. at 2000 (citations and quotations omitted). IDEA’s Section 1414 provides that “the determination of . . . the educational needs of the child shall be made by a team of qualified professionals and the parent of the child. . . .” Plaintiff has 20 U.S.C. § 1414(b)(4) alleged that Suozzi drafted (emphasis added). a sham, “hitman” report and determined B.L.’s educational needs without any input from Plaintiff. Suozzi’s conclusions were presented and explained to Plaintiff at the February 26 meeting with school officials but, construing his allegations liberally, Plaintiff was not given a meaningful opportunity to discuss his objections to Suozzi’s “recommendations.” lots of time to emotionally evaluation, but answer disputes the did not (See Compl. ¶ 121 (“Suozzi spent explain provide [Plaintiff] 18 any how he specific raised.”).) performed the information to Further, it is apparent that Plaintiff claims the District, by cutting Plaintiff out of the IEP development process, has cost B.L. his FAPE. (See Compl. ¶ 286(e); see also Pl. Gibson Opp. at 6.) ii. Consent to the Re-evaluation Plaintiff’s 1414(c)(3) by conducting consent fails. that the Suozzi violated Re-evaluation Section without parental Setting aside whether the District’s alleged after-the-fact invalidated claim breach his of Plaintiff’s consent, the conditions District retroactively authorized Suozzi to proceed with the Re-evaluation, and there is no suggestion that Suozzi was consent. aware In of the fact, conditional Plaintiff nature of specifically Plaintiff’s alleges that Defendants Gallo and Marin knew of the conditional consent but makes no similar allegations against Suozzi. (Compl. ¶¶ 318- 319.) iii. Failure to Gather Supporting Information Plaintiff sufficient factual claims that Suozzi support for certain included in his report. failed to gather recommendations (Compl. ¶¶ 231-280.) he These allegations do not state a claim under Section 1983 because IDEA does not confer on parents a procedural evaluator’s assessment. an evaluator’s report right to the format of an For example, IDEA does not require that contain 19 citations to peer-reviewed (See Compl. ¶¶ 31-32.) publications. Plaintiff may have a claim against the District if the IEP that arose out of Suozzi’s evaluation denied B.L. a free and appropriate education, but a Section 1983 claim premised on conclusory allegations that a psychological report was inadequately sourced cannot go forward. b. Fourteenth Amendment Claims Plaintiff also asserts what appear to be Section 1983 claims based on the Fourteenth Amendment’s due process clause, specifically that Defendants deprived Plaintiff of (1) a property right in B.L.’s FAPE by failing to develop an IEP in cooperation with both professionals and parents, (Compl. ¶¶ 287296); and prescribing (2) his “parent (Compl. ¶¶ 301-17). settled . . . right to skills” chart classes his as own part of education B.L.’s by IEP, The first claim fails because it “is well that a plaintiff asserting a constitutionally based [Section 1983] claim for procedural violations of the IDEA must establish a constitutional violation ‘outside the scope of the IDEA.’” Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 250 (S.D.N.Y. 2000). “In other words, a plaintiff cannot prevail on a [Section 1983] claim for violation[s] of procedural due process under the Fourteenth Amendment if the violations for which she seeks redress are actionable under the IDEA.” Id. at 250-251. Here, Plaintiff essentially charges 20 that school officials failed to comply with the provisions of IDEA governing how his son’s IEP was formulated. Plaintiff may have a successful IDEA claim against the District if the IEP that arose out of these alleged deficiencies denied B.L. a free and appropriate education--and that appears to be the gravamen of Plaintiff’s case against the District--but Plaintiff may not maintain a procedural due process claim against Suozzi based on a failure to comply with IDEA’s strictures. fails because rights. Plaintiff has not alleged The second claim any deprivation of He simply alleged that Suozzi included “parent skills” classes in the recommendation, not that Plaintiff ever received this instruction. D. State Law Claims Plaintiff does not assert his breach of contract claim against either Gibson or Suozzi. (See Compl. Hence, that claim is not considered here. considers abundance Plaintiff’s of “harassment” caution, considers claim ¶¶ 318-326.) Below, the Court and, whether out of Plaintiff an has sufficiently alleged a prima facie tort claim against either Gibson or Suozzi or a defamation claim against Suozzi. 1. Harassment New York does not recognize an independent tort for “harassment,” Ralin v. City of New York, 44 A.D.3d 838, 839, 844 21 N.Y.S.2d 83, 84 (N.Y. App. Div. 2007), so the Court will analyze Plaintiff’s harassment allegations as a claim for intentional infliction of emotional distress. To state his claim, Plaintiff must demonstrate that Defendants (1) by extreme and outrageous conduct; (2) intentionally or recklessly; (3) caused Plaintiff severe emotional distress. See Sawicka v. Catena, __ N.Y.S.2d __, 2010 WL 5094399, at *1 (N.Y. App. Div. 2010). Plaintiff cannot make such a showing against Gibson or Suozzi. The Court finds that Gibson’s and Suozzi’s alleged conduct--which can be generally summarized conspiring to as representing shortchange B.L.’s a client IEP (Gibson) (Suozzi)--was and not sufficiently extreme or outrageous to merit recovery under this tort. See Alam v. HSBC Bank USA, N.A., No. 07-CV-3540, 2009 WL 3096293, at *13 n.7 (S.D.N.Y. Sept. 28, 2009) (collecting examples of behavior that is neither extreme nor outrageous); cf. Sawicka, 2010 WL 5094399, at *1 (installing video camera in women’s restroom was sufficiently outrageous to support a jury verdict for plaintiff). 2. Prima Facie Tort Though Plaintiff has not specifically alleged a prima facie tort claim against either Gibson or Suozzi, the Court has a duty to construe a pro se complaint to raise the strongest possible arguments. To establish a prima facie tort claim, a 22 plaintiff must demonstrate “(1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful.” Morrison v. Woolley, 45 A.D.3d 953, 954, 845 N.Y.S.2d 508, 509 (N.Y. App. Div. 2007) (citations omitted). This claim fails because, although he included damages of one million dollars against each defendant in his prayer for relief on his harassment claim, Plaintiff has not alleged special amount to damages. mere “[D]amages general in round allegations” are numbers which “insufficient allegation[s] of damages to support a cause of action for prima facie tort.” Vigoda v. DCA Prods. Plus, Inc., 293 A.D.2d 265, 266, 741 N.Y.S.2d 20 (N.Y. App. Div. 2002). 3. Defamation Plaintiff also appears to assert a defamation claim against Suozzi based on Recommendation 7 in his report. Suozzi’s “viciously” including Recommendation 7 reads: Home-based instruction represents a unique opportunity to extend the programming throughout BL’s day, and can give Mr. and Mrs. Luo the skills needed to maximize their [child’s] growth. Home-based programing should emphasize activities of daily living (ADL), leisure (play) skills, and communication skills. (Compl. ¶¶ 244-245.) Under a liberal reading of his Complaint, 23 Plaintiff alleges that this passage falsely states that he is an unskilled parent, (see Compl. ¶¶ 250-252), and that the passage damaged Plaintiff’s good reputation. (Compl. ¶¶ 308-309.) Although none of the parties address this issue, the Court finds that Plaintiff cannot state a defamation claim. elements of defamation in New York are “a false The statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute Finkel v. Dauber, 29 Misc. 3d 325, 328, 906 defamation per se.” N.Y.S.2d 697, 701-02 (N.Y. Sup. Ct. 2010) (citations and quotations omitted). In this case, Plaintiff cannot establish an actionable false statement, let alone state a valid claim. Only statements of actionable fact, capable of being proven false, are and whether a statement is one of fact is for courts to determine. Id. four Context is key to that evaluation, and courts are guided by factors: language in “(1) issue an has assessment a precise of whether meaning the which is specific readily understood or whether it is indefinite and ambiguous; (2) a determination of whether the statement is capable of being objectively characterized as true or false; (3) an examination of the full context of the communication in which the statement 24 appears; and (4) a consideration of the broader social context or setting surrounding the communication including the existence of any applicable customs or conventions which might signal to readers or listeners that what is being read or heard is likely to be opinion, not fact.” Id. (quotations and citations omitted); see also Gross v. New York Times Co., 82 N.Y.2d 146, 623 N.E.2d 1163 (1993). Suozzi’s statement All of these factors illustrate that cannot reasonably be interpreted as defamatory. Read from Plaintiff’s perspective in the harshest light, Suozzi’s recommendation suggests that Plaintiff lacked the full complement of skills necessary, in Suozzi’s opinion, to maximize B.L.’s development. What constitutes a “maximization” of B.L.’s development is indefinite and ambiguous (factor one), and thus Recommendation 7 cannot be objectively characterized as true or false (factor two). Further, Recommendation 7 was made in the context of providing a professional evaluation about how best to meet B.L.’s educational needs; the limited readership of Suozzi’s report would have understood that his recommendation constituted his independent opinion, not a statement of fact (factors three and four). (Compl. ¶ 309.) Accordingly, the Court finds that Recommendation 7 cannot be construed as an actionable false statement, and thus Plaintiff cannot state a 25 defamation claim. E. Suozzi is not Entitled to Immunity Suozzi claims that he is entitled to immunity under the doctrine of witness immunity. not. (Suozzi Br. at 29). He is Suozzi is being sued for his alleged role in drafting sham “recommendations” for B.L.’s educational program and presenting them to Plaintiff as the final version of B.L.’s IEP, not simply for his hearing. participation in the School District’s due process Absolute witness immunity: [S]hields witnesses from civil rights claims. This immunity extends to all persons, whether governmental, expert, or lay witnesses, integral to the trial process. The rationale for absolute witness immunity lies in the concern that witnesses fearing civil liability for their testimony might not be willing to come forward to testify or might give distorted testimony. Protecting witnesses from liability encourages witnesses to testify and furthers the fact-finding and truth-seeking process of the courts. Elmasri v. England, 111 F. Supp. 2d 212, 221 (E.D.N.Y. 2000). This rationale 1983 claim extending is simply against immunity inapplicable Suozzi. to to Suozzi’s psychiatrists Plaintiff’s citation who conduct to Section a case competency hearings, see Moses v. Parwatikar, 813 F.2d 891, does not help his defense because the Court rejects the idea that Suozzi’s 26 alleged role was “analogous to that of a witness in a judicial proceeding.” Id. at 892. CONCLUSION For the foregoing reasons, Plaintiff’s motion to amend the caption (Docket Entry 60) is GRANTED to the extent that the Court construes Plaintiff’s Complaint to assert his own claims, not those of B.L. Gibson’s motion to dismiss the Complaint (Docket Entry 24) is GRANTED, and Plaintiff’s case against her is DISMISSED (Docket in Entry its 51) entirety. is GRANTED Suozzi’s IN PART motion AND to DENIED dismiss IN PART. Plaintiff’s sole surviving claim against Suozzi is his Section 1983 claim that Suozzi deprived him of his right to participate in determining depriving the B.L. of educational a free needs of appropriate his child, public thereby education. Plaintiff’s remaining claims against Suozzi are DISMISSED. Suozzi’s request for oral argument (Docket Entry 52) is DENIED. The Court is also in receipt of a flurry of letters between the parties concerning the state of discovery. discovery address issues these are issues moot as as to to the upcoming pre-motion conference. 27 Gibson, remaining and the These Court Defendants at will the The Clerk of the Court is directed to mail Plaintiff a copy of this Order. SO ORDERED. /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: March 15 , 2011 Central Islip, New York 28
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