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MICHAELS v. MILLS

United States District Court, W.D. New York


February 14, 2004.

JUSTIN MICHAELS, by his parents and next friends, Catherine Michaels and Kevin Michaels, Plaintiff, -vs- RICHARD MILLS, in his official capacity as Commissioner of the New York State Education Department, and THOMAS MAUL, in his official capacity as Commissioner of the Office of Mental Retardation and Developmental Disabilities, GEORGEANN W. REDMAN, in her official capacity as Interim Director of the Western New York Developmental Disabilities Services Officer (DDSO), and ANTONIA C. NOVELLO, in her official capacity as Commissioner of the New York State Department of Health, Defendants

The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge

MEMORANDUM and ORDER*fn1
Plaintiff filed this suit on August 1, 2002 and the Amended Complaint was filed on July 1, 2003. Plaintiff asserts claims for alleged violations of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (2000) ("the IDEA"), the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (2000) ("the ADA"), the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. (2000) ("Section 504"), and 42 U.S.C. § 1983 (2000). Defendants filed a motion to dismiss the Amended Complaint on August 18. Plaintiff filed a cross-motion for partial summary judgment on October 10. These motions were argued and submitted on January 30, 2004. For the reasons set forth below, defendants' motion to dismiss will be granted in part and denied in part and plaintiff's motion for partial summary judgment will be denied without prejudice. When ruling on a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP"), this Court "must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor" — Phelps v. Kapnolas, 308 F.3d 180, 184 (2d Cir. 2002) (citation and internal citation omitted) — and cannot dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Accordingly, this Court must not consider whether the claims will ultimately be successful, but merely "assess the legal feasibility of the [Amended] [C]omplaint." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (citation and internal citation omitted). Moreover, when reviewing a motion to dismiss, this Court must of course limit its review to the face of the Amended Complaint and documents incorporated therein that are properly subject to judicial notice. See Newman & Schwartz v. Asplundh Tree Expert Co., 102 E3d 660, 662 (2d Cir. 1996).

Plaintiff is a mentally and emotionally challenged young man who requires constant supervision in a 24-hour residential-educational program.*fn2 Consequently, Justin is entitled to a free, appropriate and public education ("FAPE") under the IDEA.*fn3 As a result of his condition, Justin requires a highly-structured living environment. In 2000, Justin resided in a community group home ("the Residence") operated by Heritage Centers, Inc. ("Heritage"). Justin attended an educational program ("the School") also operated by Heritage. The School and the Residence were separately located, which required Justin to be transported between the School and the Residence each day.*fn4 Justin became more aggressive in the fall of 2000 and was eventually admitted to the acute-care adolescent psychiatric unit at Erie County Medical Center ("ECMC") where he resided for a total of approximately eighteen months. Because ECMC was a sub-optimal placement, numerous attempts were made to find a satisfactory residential-educational placement for Justin. On March 17, 2003, Justin was admitted to the Woods School, in Langhorne, Pennsylvania ("the Woods School"), where he currently resides.*fn5

  The Amended Complaint asserts two claims. Plaintiff's first claim is that defendants violated the IDEA via their "continuing failure to provide" him a FAPE, "including an appropriate day or residential program in close proximity to his family ***" ("the IDEA Claim"). Am. Compl. ¶ 92 (emphasis added).*fn6 Plaintiff's second claim mirrors the IDEA Claim in asserting that defendants violated the ADA and Section 504 via their "continuing failure to provide" a FAPE, "including an appropriate day or residential program in close proximity to [his] family *** " ("the ADA/Section 504 Claim"). Id. ¶ 95 (emphasis added). Consequently, both of plaintiff's claims allege that defendants failed to provide him with a FAPE — including the failure to provide an appropriate program in Western New York ("WNY"). For purposes of this memorandum and order, the IDEA Claim and the ADA/Section 504 claim will be collectively referred to as the FAPE Claims. Plaintiff seeks, inter alia, injunctive and declaratory relief and an award of compensatory education for the eighteen months that he was placed at ECMC. Id. ¶¶ 96-103.

  Defendants seek dismissal on several grounds. First, they assert that each FAPE Claim refers to two distinct violations: (1) failure to provide plaintiff with a FAPE while he was at ECMC ("the ECMC Violation") and (2) failure to provide him with a FAPE while he is at the Woods School ("the Woods Violation").*fn7 Defendants contend that both aspects of the FAPE Claims must be dismissed because they have not been administratively exhausted. Defendants argue in the alternative that the FAPE Claims should be dismissed for failure to state a claim.

  To the extent that the Amended Complaint seeks injunctive relief in the form of a residential-educational placement for the plaintiff, such is moot because he has received such a placement at the Woods School. He contends that this claim satisfies the "capable of repetition, yet evading review" exception to the doctrine of mootness ("the CORYER exception"). The CORYER exception only applies where "(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again."*fn8 The CORYER exception "applies only in exceptional situations" and "is severely circumscribed."*fn9

  In support of such argument, plaintiff cites Honig v. Doe, 484 U.S. 305, 318-323 (1988), which held that the EHA*fn10 claim of Jack Smith, a 20-year-old disabled man, was not moot because he was eligible for a FAPE until the age of 21 and because there was a reasonable expectation that he would again face disciplinary charges stemming from his disability related behavior. Honig, however, is distinguishable. Indeed, the "reasonable expectation" requirement is of necessity highly fact-oriented. Accordingly, the fact that the Supreme Court in Honig found a reasonable expectation that Smith would again be subjected to discipline does not shed any light as to whether there is a reasonable expectation that plaintiff will be expelled from the Woods School*fn11 — which would require defendants to obtain a new placement for him. Plaintiff does not allege — and nothing in the record suggests — that his placement at the Woods School is in jeopardy.*fn12 The mere possibility that plaintiff may someday be expelled from the Woods School is insufficient to establish a reasonable expectation that he will again be sent to ECMC pending a new residential-educational placement.*fn13 Accordingly, plaintiff's claim for injunctive relief for a residential-educational placement is moot and will be dismissed for lack of subject matter jurisdiction.*fn14 Inasmuch as this claim is only part of plaintiffs' FAPE Claims, this Court will address defendants' other arguments for dismissal.*fn15

  Defendants contend that the FAPE Claims must be dismissed because plaintiff failed to exhaust his administrative remedies. The Court of Appeals has noted that a "plaintiff's failure to exhaust administrative remedies under the IDEA deprives a court of subject matter jurisdiction."*fn16 Nonetheless, there are several exceptions to the IDEA's exhaustion requirement, including, inter alia, (1) futility, (2) "an agency has failed to provide services specified in the child's individualized education program [IEP]" and (3) "an agency has adopted a policy or pursued a practice of general applicability that is contrary to law."*fn17 The burden of establishing the applicability of an exception to the IDEA's exhaustion requirement rests with plaintiff.*fn18 Moreover, the exhaustion requirement applies to any action that seeks relief available under the IDEA — i.e., plaintiff's ADA/Section 504 Claim.*fn19

  For the reasons set forth below, plaintiff's compensatory education claim — i.e., the FAPE Claims predicated on the alleged ECMC Violation — will be dismissed for failure to exhaust administrative remedies.*fn20 As noted above, plaintiff's need not exhaust administrative remedies where "an agency has failed to provide services specified in the child's individualized education program [IEP]."*fn21 Consequently, if plaintiff's compensatory education claim only involved implementation of his IEP, then he would not be required to exhaust his administrative remedies.*fn22 Plaintiff's compensatory education claim, however, involves both factual and legal questions.*fn23 Exhaustion is thus required because factual issues are best left to the expertise of the involved agencies rather than the courts.*fn24 For example, it is unclear how much compensatory education plaintiff may be entitled to or what form it ought to take.*fn25 Moreover, plaintiff has not offered any argument as to why the compensatory education claim should be excepted from the exhaustion requirement.*fn26 Indeed, plaintiff failed to exhaust his administrative remedies because he withdrew the compensatory education claim before it was reviewed by the SRO.*fn27 Plaintiff has thus failed to meet his burden of establishing the applicability of an exception to the exhaustion requirement for his compensatory education claim. Accordingly, plaintiff's FAPE Claims predicated upon the alleged ECMC Violation (i.e., his compensatory education claim) will be dismissed without prejudice for failure to exhaust administrative remedies.*fn28 Plaintiff seeks partial summary judgment on the issue of whether defendants failed to provide him a FAPE while he was placed at ECMC. Inasmuch as plaintiff's compensatory education claim will be dismissed without prejudice, his motion for summary judgment will also be denied without prejudice.*fn29

  With respect to plaintiff's FAPE Claims predicated on the alleged Woods Violation, this Court finds that plaintiff is not required to exhaust his administrative remedies. As noted above, plaintiff need not exhaust his administrative remedies where "an agency has adopted a policy or pursued a practice of general applicability that is contrary to law."*fn30 Plaintiff has alleged that defendants have adopted a policy or practice of failing to provide sufficient programs for disabled students — such as himself — in WNY and that such policy or practice violates, inter alia, the IDEA. Accordingly, plaintiff's FAPE Claims predicated upon the alleged Woods Violation will not be dismissed for failure to exhaust administrative remedies.*fn31

  This Court must therefore address the merits of defendants' motion to dismiss plaintiff's FAPE Claims based on the Woods Violation — which defendants framed at oral argument as "what about now, is the Woods School too far away?" In providing a FAPE, defendants are required to place Justin in the "least restrictive environment" possible ("the LRE").*fn32 In order to meet the LRE requirement, defendants must follow, inter alia, 34 C.F.R. § 300.552(b)(3) ("section 300.552(b)(3)"), which provides in relevant part that

"each public agency shall ensure that — *** (b) The child's placement — *** (3) Is as close as possible to the child's home; ***."
Defendants contend that the IDEA does not require them to provide programs comparable to the Woods School in WNY. Plaintiff on the other hand argues that his placement outside Philadelphia is not "as close as possible" to his home. To address whether defendants are providing a FAPE in compliance with the LRE requirement, this Court must look outside the Amended Complaint — i.e., this Court must determine whether a sufficient placement (which is willing to admit Justin) exists closer to WNY.*fn33 Accordingly, defendants' motion to dismiss plaintiff's FAPE Claims based on the Woods Violation will be denied.

  Accordingly, it is hereby ORDERED that defendants' motion to dismiss is granted in part and denied in part, that plaintiff's claims based on the ECMC Violation (i.e., the compensatory education claims) are dismissed without prejudice in order that plaintiff may exhaust his administrative remedies, that plaintiff's claims based on the Woods Violation (i.e., the least restrictive environment claims) are not dismissed and that plaintiff's motion for partial summary judgment is denied without prejudice.


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