nonapproved schools in denying the Yamens' request for reimbursement. In fact, the decision of the impartial hearing officer did not even mention the fact that the Maplebrook School was nonapproved, and the decision of the State Review Officer explicitly held that the fact that the Maplebrook School was nonapproved was not dispositive in his denial of the Yamens' request for tuition reimbursement. Rather, the Yamens' failure to show that the Maplebrook School was an appropriate placement precluded the State Review Officer from awarding tuition reimbursement. Thus, the Yamens have failed to allege that their injury is fairly traceable to the defendant's allegedly unlawful conduct.
The State defendants have also moved to dismiss the claims against them on the grounds that they are not proper parties to the action. Specifically, they argue that the remaining claims against them -- the Tenth, Eleventh, Thirteenth and Fourteenth causes of action -- fail to state a claim against them. The Tenth cause of action alleges that the State maintained a list of approved independent hearing officers and the hearing officer in this case, "failed to receive documents in evidence and inappropriately denied plaintiffs' expert access to the district's proposed program." The Eleventh cause of action merely alleges that the District failed to afford the Yamens a fair and impartial hearing. The Thirteen cause of action merely alleges that the defendants receive federal financial assistance and "have discriminated against Michael due to his disability in violation of Section 504." The Fourteenth cause of action merely alleges that "defendants have violated and continue to violate Michael's Constitutional and federal statutory rights, all actionable under 42 U.S.C. § 1983."
In opposition, the Yamens argue that the State defendants are proper parties because of their involvement with the District's allegedly inappropriate program and placement recommendations and procedures. In support of their claims, the Yamens point to the following allegations of involvement. First, Michael was referred for a neuropsychological evaluation by the State and the Yamens contacted the State for the purpose of transition planning. Second, the hearing officer in this case was appointed from a State list of approved hearing officers. Third, the State Review Officer's decision, dated November 4, 1995, is written on the State's letterhead. Fourth, the State Review Officer's decision, dated November 4, 1995, placed the State defendants on notice that Michael had been denied a free appropriate education. Finally, the State defendants failed to fulfill their statutory duties to monitor Local Education Agencies to ensure that they carry out their specific responsibilities under the IDEA and § 504.
In Dorian G. v. Sobol, 93 CV 0687 (J. Nickerson) (E.D.N.Y. January 25, 1994), the plaintiff brought an action under the IDEA against Commissioner Sobol seeking reimbursement for residential expenses incurred during the plaintiff's enrollment at a private school for emotionally disturbed children. The plaintiff argued that Commissioner Sobol could be held liable for failure to meet his statutory duties of "general supervision" over the New York City school system. The court, however, granted Commissioner Sobol's motion to dismiss for failure to state a claim by distinguishing Jose P. v. Ambach, 669 F.2d 865 (2d Cir. 1982), which held that the Commissioner could be held liable for general supervisory violations.
The court distinguished Jose P. on the grounds that it was a class action for systemic violations of federal and state law, proceeding under 20 U.S.C. § 1412(6), which explicitly states that "the State educational agency shall be responsible for assuring that all the requirements of this subchapter are carried out." Dorian G., on the other hand, involved an administrative appeal, under 20 U.S.C. § 1415, of an individual plaintiff. In addition, in Jose P., the Court of Appeals found that the Commissioner had conceded failure to meet his statutory duties by a letter indicating to the district court stating that he had no objection to the proposed judgment.
Here, as in Dorian G., an individual plaintiff has filed a complaint alleging that this Court has jurisdiction pursuant to 20 U.S.C. § 1415, rather than 20 U.S.C. § 1412(6) as in Jose P.. There are no allegations of systemic violations of federal and state law. Moreover, since the amendment of the New York State Education Law § 4404, Commissioner Sobol is no longer involved in the § 1415 administrative appeals process. See Board of Education v. Sobol, 160 Misc. 2d 539, 544, 610 N.Y.S.2d 426, 429 (Sup.Ct. 1994). In addition, there is no letter from the Commissioner indicating that he has no objection to a judgment in this action.
The Yamens have merely alleged in conclusory and general fashion that the State defendants have violated their constitutional and statutory rights. The complaint contains no allegation of any action or practice on the part of the State defendants, other than the State policy to refuse reimbursement to districts for nonapproved school tuition discussed above, that may have led to the alleged procedural deficiencies at the district level, the impartial hearing or before the State Review Officer. The complaint simply contains no adequate allegations as to how the State defendants have violated the Yamens' constitutional or statutory rights. See, e.g., Bruschini v. Board of Education, 95 CV 0455 (J. Brieant) (S.D.N.Y. May 16, 1995).
Although, on a motion to dismiss, this Court is required to accept the allegations in the complaint as true and may not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of their claim that would entitle them to relief, Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957), complaints containing only conclusory, vague or general allegations cannot survive a motion to dismiss. See, e.g., Contemporary Mission, Inc. v. United States Postal Service, 648 F.2d 97, 107 (2d Cir. 1981). Accordingly, the State defendants' motion to dismiss the claims against them is granted. Because the Court grants the State defendants' motion to dismiss the complaint on the basis that they are not proper parties to this action, it does not reach the Eleventh Amendment issue.
Defendants Board of Education and Rothman have withdrawn their "counterclaims" as against the State defendants only. Accordingly, the State defendants' motion to dismiss the counterclaims as against them is moot.
In conclusion, the motion to dismiss the complaint as to the New York State Department of Education and Commissioner Thomas Sobol is granted. The counterclaims as against the New York State Department of Education and Commissioner Thomas Sobol are withdrawn.
Dated: White Plains, N.Y.
January 3, 1996
Barrington D. Parker, Jr.
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