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WENGER v. CANASTOTA CENT. SCH. DIST.

April 14, 1997

WALTER S.J. WENGER, Individually and as Parent and Natural Guardian of his son, STEVEN JOSEPH WENGER, Plaintiff,
v.
CANASTOTA CENTRAL SCHOOL DISTRICT ("CCSD"); PATRICIA VACCA, Individually and as Chairperson of the Committee on Special Education for the CCSD; SAMUEL L. COLELLA, Individually and as Interim Superintendent of the CCSD; ARTHUR BLYMILLER, Individually and as School Psychologist of the CCSD; FELIPE CANIZARES, M.D., Individually and as School Physician of the CCSD; BARBARA STEVENSON, Individually and as Parent-Member of the Committee on Special Education of the CCSD; CATHERINE SANGSTER, Individually and as a Teacher of the CCSD; PAMELA COLANGELO, Individually and as Occupational Therapist of the CCSD; LORI EVERETT, Individually and as Speech Therapist of the CCSD; DEBORAH GALLINERO, Individually and as Physical Therapist of the CCSD; PAT MURPHY, Individually and as President of the School Board of the CCSD; DEWEY J. ROMAGNOLI, Individually and as Vice-President of the School Board of the CCSD; DONALD J. HARVEY, Individually and as Trustee of the School Board of the CCSD; MICHAEL BUDA, Individually and as Trustee of the School Board of the CCSD; IONE LeBLANC, Individually and as Trustee of the School Board of the CCSD; JEANNINE MASUCCI, Individually and as Trustee of the School Board of the CCSD; JOHN R. MENGUCCI, Individually and as Trustee of the School Board of the CCSD; and THOMAS SOBOL, Commissioner of Education of the State of New York, Defendants.



The opinion of the court was delivered by: SCULLIN

 Introduction

 Plaintiff Walter Wenger brings this action against Defendant Canastota Central School District ("CCSD") and various individuals connected to the school district (all the defendants except Defendant Sobol are referred to as the "CCSD Defendants") based on alleged violations of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., section 504 of the Rehabilitation Act of 1973 ("section 504"), 29 U.S.C. §§ 794 et seq., and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Plaintiff alleges that the CCSD Defendants failed to provide his son Steven Wenger with an appropriate education in violation of the IDEA, that they discriminated against Steven on the basis of his disability in violation of section 504, and that their failure to provide Steven with an appropriate education violated the Due Process Clause. Plaintiff also alleges that Defendant Thomas Sobol ("Defendant Sobol"), as Commissioner of Education of the State of New York, failed to protect Steven's rights under the IDEA and failed to take affirmative measures to remedy the actions of the CCSD Defendants. Plaintiff seeks injunctive relief as well as compensatory and punitive damages. Presently before the Court are a motion for summary judgment by the CCSD Defendants pursuant to Rule 56 of the Federal Rules of Civil Procedure, and a motion for judgment on the pleadings by Defendant Sobol pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

 Background

 In March 1991, when Steven was fifteen years old, he was seriously injured in an automobile accident, sustaining multiple trauma, including a severe head injury. Since that time, Steven has been classified as traumatic brain injured. *fn1" After Steven's initial hospitalization, he was transferred to a head injury rehabilitation facility in Pennsylvania, where he remained until May 1992. In July 1992, Steven was admitted to Crouse-Irving Memorial Hospital in Syracuse, New York. *fn2"

 During the 1992-93 and 1993-94 school years, Defendant CCSD provided special education and related services to Steven. *fn3" On September 20, 1994, the committee at CCSD responsible for developing Steven's individualized education program ("IEP"), *fn4" the Committee on Special Education ("CSE"), met with Plaintiff to prepare Steven's IEP for the 1994-95 school year. *fn5" Steven's 1994-95 IEP provided for two hours per day of special education, thirty minutes of speech/language therapy twice per week, and physical/occupational therapy on a consultant basis once per week for eight weeks and once per month for the remainder of the 1994-95 school year. Steven's 1994-95 IEP also included special education goals for Steven, including the ability to (1) respond in a consistent manner to visual, auditory, and multisensory stimuli, and (2) achieve a functional range of motion in his upper and lower extremities.

 By letter dated September 21, 1994, Plaintiff asked for and was granted an impartial hearing to review the IEP recommended by the CSE. The hearing began on October 11, 1994 and concluded on December 22, 1994. At issue in the hearing was whether the IEP prepared at the September 20, 1994 CSE meeting was appropriate. *fn6" In a decision dated January 25, 1995, the hearing officer decided that Steven's 1994-95 IEP was appropriate. Thereafter, Plaintiff appealed the hearing officer's decision to the State Review Officer ("SRO"). On April 6, 1995, the SRO issued a decision concurring with the hearing officer's decision that Steven's 1994-95 IEP was appropriate. On August 4, 1995, this action was filed.

 Discussion

 As stated, Plaintiff brings this action alleging three causes of action against the CCSD Defendants: (1) that the CCSD Defendants failed to provide his son Steven with an appropriate education in violation of the IDEA, 20 U.S.C. §§ 1400 et seq. ; (2) that the CCSD Defendants discriminated against Steven on the basis of his disability in violation of section 504 of the Rehabilitation Act, 29 U.S.C. §§ 794 et seq. ; and (3) that the CCSD Defendants violated Plaintiff's and Steven's due process rights in violation of the Fourteenth Amendment to the United States Constitution. The CCSD Defendants deny these allegations and have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is warranted if, when viewing the evidence in a light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 457, 119 L. Ed. 2d 265, 112 S. Ct. 2072 (1992); Commander Oil v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir. 1993). The test for whether there is a genuine issue of material fact is two-fold. First, the materiality of a fact is determined from the substantive law governing the claim. Only disputes over facts that might affect the outcome of the suit are relevant on summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Second, any dispute of material fact must be "genuine." A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. Id. It is the non-moving party's burden to demonstrate that there is evidence to support each essential element of his or her claim. The Court will address each cause of action seriatim.

 Plaintiff's IDEA Claim

 IDEA

 The IDEA is designed to assist states to meet the educational needs of children with disabilities, and it establishes an enforceable right to a "free appropriate public education." *fn7" Mrs. W. v. Tirozzi, 832 F.2d 748, 750-51 (2d Cir. 1987) (citing 20 U.S.C. § 1400(c)). No state or local educational agency may receive federal funding unless it provides children with disabilities the right to a free appropriate education. A free appropriate public education is defined as "special education and related services" tailored to the individual needs of the child, pursuant to an individualized education program ("IEP"). *fn8" 20 U.S.C. § 1401(a)(18). As stated, an IEP is a "written plan which specifies the special education programs and related services to be provided to meet the unique educational needs of a student with a disability." N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1(t); see also 20 U.S.C. § 1401(a)(20). In New York state, the IEP is produced by a Committee on Special Education ("CSE"), whose members are appointed by the board of education of the school district in consultation with the child's teacher and parents or guardian. N.Y. Educ. Law § 4402(1)(b)(1); see also 20 U.S.C. § 1401(a)(20).

 If a child's parents are dissatisfied with their child's IEP or with anything related to the child's education, they may file a complaint with the state educational agency. 20 U.S.C. § 1415(b)(1)(E). Such complaints are reviewed at a due process hearing conducted by an impartial hearing officer appointed by the state or local educational agency. 20 U.S.C. § 1415(c). If a hearing is conducted at the local level, an appeal may be taken to the state agency. Id. Any party aggrieved by the outcome of the state administrative proceeding may ...


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