parents . . . ." 34 C.F.R. § 300.401. Furthermore, under 20 U.S.C. § 1412(6), SED "shall be responsible for assuring that the requirements of [the IDEA] are carried out . . . ." Relying on these provisions, see Complaint, at P 49, plaintiffs assert that by failing to prevent DSS from obtaining a support order requiring them to contribute to Robert's maintenance at Devereux, SED has failed to fulfill these duties.
SED has moved to dismiss on the ground that plaintiffs have failed to make specific factual allegations sufficient to state a claim against SED. Defendants contend, correctly, that claims based only on vague, conclusory or general allegations of wrongdoing cannot survive a motion to dismiss. See Yamen v. Bd. of Educ. of Arlington Cent. Sch. Dist., 909 F. Supp. 207, 211 (S.D.N.Y. 1996) (citing Contemporary Mission, Inc. v. United States Postal Service, 648 F.2d 97, 107 (2d Cir. 1981)). We do not agree, however, that plaintiffs' allegations that SED violated the IDEA fall into that category. Plaintiffs have alleged that "it is common knowledge in New York" that DSS relies on N.Y. Fam. Ct. Act § 415 to sue the parents of disabled children for support payments without regard to the children's eligibility for special education. See Complaint, at P 31. If DSS does indeed follow a policy of obtaining support orders for children placed in private residential facilities by the Family Court for educational purposes, SED has failed to fulfill its duty to ensure that those children receive an appropriate education at no cost to their parents. Accordingly, SED's motion to dismiss plaintiffs' IDEA claim is denied.
Plaintiffs' claim against SED under 42 U.S.C. § 1983 must be dismissed, however. SED, as a political subdivision of New York state, is not a "person" within the meaning of 42 U.S.C. § 1983, and therefore that statute cannot serve as the basis for an action against it. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). This claim is therefore dismissed for lack of subject matter jurisdiction.
II. Motion for Preliminary Injunction
Plaintiffs have moved for a preliminary injunction against defendants that would enable Robert to remain at Devereux at no cost to his parents while these proceedings are pending. The heart of plaintiffs' motion is, therefore, a request for a preliminary injunction prohibiting DSS from enforcing the Family Court's support order. SED is not implicated in plaintiffs' request for preliminary relief, and plaintiffs' motion is denied to the extent that it seeks a preliminary injunction against SED.
Plaintiffs argue that they are entitled to a preliminary injunction against DSS under the "stay put" provision of the IDEA, which dictates that a child shall remain in his or her then current educational placement during the pendency of review proceedings, unless the parents and the agency agree otherwise.
See 20 U.S.C. § 1415(e)(3). Courts have held that if this provision applies, it affords an "automatic" preliminary injunction restoring the status quo, and plaintiffs need not satisfy the usual standard for obtaining preliminary injunctive relief. See Cronin v. Bd. of Educ. of East Ramapo Cent. Sch. Dist., 689 F. Supp. 197, 202 (S.D.N.Y. 1988) (citing Honig v. Doe, 484 U.S. 305, 326-27, 98 L. Ed. 2d 686, 108 S. Ct. 592 (1988)). Hence, the threshold question is whether the Family Court's issuance of the support order constituted a change in Robert's placement that triggered the protection of the stay put provision. See id.
Plaintiffs argue that DSS changed Robert's placement without their consent when it obtained the support order and began collecting payments from plaintiffs. We are not persuaded. First, plaintiffs have alleged absolutely no changes in Robert's program at Devereux as a result of the issuance of the support order. The only change that plaintiffs have alleged is that they became obligated to pay a portion of his maintenance expenses. From the moment that the Family Court placed Robert at Devereux, however, the possibility existed that plaintiffs could be required to contribute to his support. Plaintiffs themselves have asserted that DSS routinely seeks support orders under N.Y. Fam. Ct. Act § 415 in cases like theirs.
See Complaint, at P 31. The fact that a support order has actually been entered does not constitute a change in Robert's placement.
Therefore, plaintiffs are not entitled to a preliminary injunction under the stay put provision.
Plaintiffs also argue that they are entitled to a preliminary injunction under the usual standard. At the present time, we do not have sufficient information before us to determine either plaintiffs' likelihood of success on the merits of their claims against DSS or the probability that plaintiffs will suffer irreparable harm in the absence of a preliminary injunction. Specifically, we believe that a hearing would be beneficial to explore the issues of whether Robert's placement at Devereux was for educational purposes and whether the support payments imposed on his parents are so burdensome as to create a probability of irreparable harm. See Borey v. National Union Fire Insur. Co., 934 F.2d 30, 34 (2d Cir. 1991) ("Monetary loss alone will generally not amount to irreparable harm [absent] evidence of damage that cannot be rectified by financial compensation." (internal quotation omitted)). Plaintiffs are therefore directed to contact chambers upon receipt of this decision to schedule a hearing date on their motion for a preliminary injunction against DSS.
For the foregoing reasons, defendant Pine Plains's motion to dismiss is granted. Defendant DSS's motion to dismiss is denied. Defendant SED's motion to dismiss is granted as to plaintiffs' § 1983 claim and denied as to plaintiffs' IDEA claim. Plaintiffs' motion for a preliminary injunction against SED is denied. We do not decide plaintiffs' motion for a preliminary injunction against defendant DSS, and plaintiffs are hereby directed to contact chambers to schedule a hearing on this motion.
Date: March 6, 1996
White Plains, New York
William C. Conner
Senior United States District Judge