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WENGER v. CANASTOTA CENTRAL SCHOOL DISTRICT

April 5, 2004.

STEVEN JOSEPH WENGER, Plaintiff,
v.
CANASTOTA CENTRAL SCHOOL DISTRICT and COMMISSIONER OF EDUCATION OF THE STATE OF NEW YORK, Defendants



The opinion of the court was delivered by: FREDERICK SCULLIN, Chief Judge, District

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

  Plaintiff's father initially brought this action pro se on behalf of himself and Plaintiff, asserting claims under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq., and the Due Process Clause of the Fourteenth Amendment to the United States Constitution against a number of individuals who worked for Defendant Canastota Central School District ("CCSD"), Defendant CCSD School Board members, Defendant CCSD itself, and Defendant Thomas Sobol, the Commissioner of Education of the State of New York.*fn1

  The CCSD Defendants moved for summary judgment and Defendant Sobol moved for judgment on the pleadings. On April 14, 1997, this Court granted Defendants' motions and dismissed the complaint in its entirety. See Wenger v. Canastota Cent. Sch. Dist., 961 F. Supp. 416 (N.D.N.Y. 1997), affdin part, vacated and remanded, 146 F.3d 123 (2d Cir. 1998).*fn2 Plaintiff's father appealed the dismissal to the Second Circuit.

  The Second Circuit affirmed the dismissal of the action in its entirety as to Plaintiff's father's claims. However, the court held that it was clear that Plaintiff's father could not represent Plaintiff and that this Court should have focused on Plaintiff's need for counsel. Therefore, the Second Circuit vacated this Court's judgment as to Plaintiff and remanded so that this Court could consider whether appointment of counsel was appropriate. See Wenger, 146 F.3d at 125-126. This Court referred the question of appointment of counsel to Magistrate Judge DiBianco.

  In an abundance of caution and in the interest of protecting the rights of a disabled plaintiff, Magistrate Judge DiBianco. requested that an attorney evaluate the case to determine whether appointment of counsel was appropriate. In October 2001, after reviewing counsel's confidential report, Magistrate Judge DiBianco. appointed counsel based upon counsel's statement that he believed that "some" of Plaintiff's claims were "potentially meritorious" and may not have been advanced in an appropriate manner.

  On May 27, 2003, the parties filed a stipulation dismissing Plaintiff's father as a plaintiff and dismissing all Defendants from this action with prejudice, except for Defendant CCSD and Defendant Sobol. See Dkt. No. 80. In addition, counsel moved to amend Plaintiff's father's original pro se complaint in an attempt to raise properly the "potentially meritorious" claims.

  On March 1, 2004, Magistrate Judge DiBianco. issued an Order and Report-Recommendation in which he denied Plaintiff's motion to amend the complaint and recommended that this Court sua sponte grant summary judgment to Defendants and dismiss the complaint in its entirety.

  Presently before the Court are Plaintiff's objections to that Order and Report-Recommendation.

  II. DISCUSSION

  A. Plaintiff's motion to amend the complaint

  Generally, a court, in exercising its discretion whether to grant leave to amend, must act pursuant to Rule 15(a) of the Federal Rules of Civil Procedure and grant such a motion "freely . . . when justice so requires." Fed.R.Civ.P. 15(a); see also Foman v. Davis, 371 U.S. 178, 182 (1962). In deciding whether to grant a motion to amend, a court must examine whether there has been "`undue delay, bad faith or dilatory motive'" on the part of the movant. See Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 46 (2d Cir. 1983) (quotation omitted). A court must also consider whether the amendment would be unduly prejudicial to the opposing party. See Kovian v. Fulton County Nat'l Bank & Trust Co., 86-CV-154, 1992 WL 106814, *1 (N.D.N.Y. May 13, 1992) (quotation omitted). Finally, "[w]here it appears that granting leave to amend is unlikely to be productive" or that the amendment would be fufile, it is not an abuse of discretion for a court to deny leave to amend. See Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (citations omitted).

  Plaintiff's proposed amended complaint contains two causes of action, one against Defendant CCSD and the other against Defendant Sobol. Plaintiff brings both of these claims pursuant to § 1983 for alleged violations of the IDEA and seeks only monetary damages. Magistrate Judge DiBianco. concluded that allowing Plaintiff to file this amended complaint would be fufile. ...


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