The opinion of the court was delivered by: David N. Hurd, United States District Judge
MEMORANDUM-DECISION AND ORDER
On July 21, 1998, plaintiffs commenced the instant action
pursuant to 42 U.S.C. § 1983 for violations of their rights
under the First and Fourteenth Amendments, and the Individuals
with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1400-1485.
Plaintiffs also assert state law causes of action for
negligence, respondent superior, recklessness, and battery. The
defendant moved for partial summary judgment, seeking dismissal
federal claims.*fn1 Plaintiffs opposed. Oral
argument was heard on December 17, 1999 in Utica, New York.
Decision was reserved. Supplemental briefs and affidavits were
requested to address the issue of IDEA's requirement that
administrative remedies be exhausted before a civil action may be
filed. Plaintiffs filed supplemental papers on February 18, 2000;
the defendant's supplemental papers were filed on February 22,
Alyssa Rabideau ("Alyssa") is a nine-year old student at
Cumberland Head Elementary School, located within the defendant
Beekmantown Central School District ("District" or "defendant").
Alyssa was born with congenital hydrocephalus (water on the
brain). Secondary effects of this condition include seizures, for
which Alyssa is administered medication three times per day. Her
second dosage is administered by the school nurse. On September
16, 1997, a substitute nurse gave Alyssa an overdose of her
medication which caused Alyssa various physical injuries. On
October 16, 1997, Alyssa's parents filed a notice of claim
against the District, pursuant to N.Y. Gen. Mun. Law §§ 50-e
and 50-i and N.Y. Educ. Law § 3813. This is one of the bases
for plaintiffs' state law causes of action. This motion involves
subsequent events occurring at the school which form the bases
for plaintiffs' federal causes of action.
In the beginning of the 1997-1998 school year, the Cumberland
Head Elementary School nurse, Jody Branch, sent a notice to all
parents of children in the first grade that the school would be
conducting physicals of all first grade students on October
15, 1997. If the parent did not want the physical performed, they
were to complete a form informing the school of when and by whom
their child would receive a physical. Alyssa's mother, plaintiff
Joann Rabideau ("Mrs. Rabideau"), completed the form, indicating
that Alyssa's pediatrician would perform her physical. The
plaintiffs contend that, on October 15, 1997, a school physical
was performed on Alyssa anyway. The District asserts that Alyssa
came to the nurse's office on October 15, 1997, complaining of
ear pain and the doctor merely looked at her ear, but did not
perform a physical.
In September of 1998, pursuant to Alyssa's Individualized
Education Program ("IEP"), Alyssa began the school year attending
Susan Beebie's ("Mrs. Beebie") regular second grade class. Alyssa
was also to receive 180 minutes of special education with Leslie
LaValley ("Mrs. LaValley"). However, due to the extensive amount
of time Alyssa was spending in her special education class,
Alyssa was transferred to Mrs. LaValley's class full-time, but
she continued to attend certain regular classes with Mrs. Beebie.
Mrs. LaValley maintained a student journal on Alyssa to record
her behavior during the day. Plaintiffs contend that transferring
Alyssa without their consent and without altering or amending
Alyssa's IEP violates IDEA.
In late September and early October of 1998, Alyssa refused to
stand for or recite the Pledge of Allegiance or participate in
other aspects of the morning routine. Plaintiffs claim that
Alyssa was scolded in front of the other students, was removed
from class, and, on one occasion, was taken to the principal's
office, solely for her failure to participate in the Pledge of
Allegiance. In addition, plaintiffs allege, Alyssa was removed
from recess, art, and music, and separated from her classmates
during class and at lunch to punish her for her failure to
participate in the Pledge of Allegiance. The District denies
A. Summary Judgment Standard
Summary judgment must be granted when the pleadings,
depositions, answers to interrogatories, admissions, and
affidavits show that there is no genuine issue as to any material
fact, and that the moving party is entitled to summary judgment
as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty
Lobby. Inc., 477 U.S. 242, 247 (1986); Lang v. Retirement Living
Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). The moving party
carries the initial burden of demonstrating an absence of a
genuine issue of material fact. Fed. R. Civ. P. 56; Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986); Thompson v. Gjivoje,
896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and
ambiguities must be viewed in a light most favorable to the
nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986); Project Release v. Prevost, 722 F.2d 960,
968 (2d Cir. 1983).
When the moving party has met the burden, the non-moving party
"must do more than simply show that there is some metaphysical
doubt as to the material facts." Matsushita Elec. Indus. Co., 475
U.S. at 586. At that point, the non-moving party "must set forth
specific facts showing that there is a genuine issue for trial."
Fed. R. Civ. P. 56: Liberty Lobby Inc., 477 U.S. at 250;
Matsushita Elec. Indus. Co., 475 U.S. at 587. To withstand a
summary judgment motion, evidence must exist upon which a
reasonable jury could return a verdict for the nonmovant. Liberty
Lobby, Inc., 477 U.S. at 248-49; Matsushita Elec. Indus. Co., 475
U.S. at 587. Thus, summary judgment is proper where there is
"little or no evidence . . . in support of the non-moving party's
case." Gallo v. Prudential Residential Servs., 22 F.3d 1219,
1223-24 (2d Cir. 1994) (citations omitted).
B. Fourteenth Amendment Claim
1. Unauthorized Physical Examination
The defendant claims that Alyssa was never subjected to an
unauthorized physical examination and, therefore, there was no
violation of her Fourteenth Amendment right to bodily integrity.
The plaintiffs, however, assert that, when viewed in a light most
favorable to them, it is reasonable to infer that Alyssa was
subjected to a physical examination without her parents' consent.
There is a genuine issue of material fact exists with respect to
this issue. However, ...