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United States District Court, N.D. New York

June 4, 2004.


The opinion of the court was delivered by: DAVID HURD, District Judge


Plaintiff Ahmed Zahran ("plaintiffs"), on behalf of his minor son, Ibrahim Zahran ("Ibrahim" or "plaintiffs"), a disabled student, brought suit against defendants State of New York Department of Education ("DOE") and Board of Education of the Niskuyana Central School District ("District" or "Board"), alleging causes of action under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (first cause of action), Article 89 of the New York State Education Law (second cause of action), 42 U.S.C. § 1983 (third cause of action), the Americans with Disabilities Act, 42 U.S.C. § 12132 (fourth cause of action), and the Rehabilitation Act of 1973, 29 U.S.C. § 794 (fifth cause of action). The district cross-claimed against DOE, demanding that the state review officer's decision be partially reversed or modified.

  By Memorandum-Decision and Order dated February 10, 2004, the DOE's motion to dismiss the complaint and cross-claim as against it was granted. Zahran ex rel. Zahran v. N.Y. Dep't of Educ., 306 F. Supp.2d 204 (N.D.N.Y. 2004). On April 8, 2004, the District moved for summary judgment pursuant to Fed.R.Civ.P. 56. (Docket No. 39.) Plaintiffs opposed and cross-moved for summary judgment, also pursuant to Fed.R.Civ.P. 56. (Docket No. 41.) Oral argument was heard on the summary judgment motions on June 2, 2004, in Albany, New York. Decision was reserved.


  The relevant facts of this case were extensively outlined in the February 10, 2004, Memorandum-Decision and Order, Id. at 206-08, and will not be repeated here. Familiarity with that decision ("Zahran I") will be assumed.


  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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Richardson v. N.Y. State Dep't of Corr. Servs., 180 F.3d 426, 436 (2d Cir. 1999). 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

  Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, however, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56; Anderson, 477 U.S. at 250. At that point, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec., 475 U.S. at 386. Indeed, to withstand a summary judgment motion, the nonmoving party must demonstrate that sufficient evidence exists upon which a reasonable jury could return a verdict in its favor. Anderson, 477 U.S. at 248-49; Matsushita Elec., 475 U.S. at 587.

  B. Article 89, Americans with Disabilities, and Rehabilitation Act Claims

  Plaintiffs have voluntarily withdrawn their second, fourth, and fifth causes of action, asserting claims under Article 89 of the New York State Education Law, the Americans with Disabilities Act, and the Rehabilitation Act of 1973. (Docket No. 41, Attach. 6, p. 1.) Accordingly, those claims will be dismissed.

  C. IDEA Claim

  Though Zahran I addressed plaintiffs' claims against just the DOE, the only defendant which had moved to dismiss, it applies with equal force to the propriety of plaintiffs' first cause of action against the District.

  In the first cause of action, plaintiffs allege that Ibrahim was deprived of a free appropriate public education for the 2001-02 academic school year, in violation of the Individuals with Disabilities Education Act ("IDEA"). In Zahran I, it was noted that compensatory education is available as appropriate relief under the IDEA, but monetary damages are not. 306 F. Supp.2d at 210 (citing Garro v. State of Conn., 23 F.3d 734, 736 (2d Cir. 1994); Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist, 288 F.3d 478, 486 (2d Cir. 2002) ("We therefore hold that monetary damages are unavailable under the IDEA")).

  In the complaint, plaintiffs seek "compensatory education and money damages in the amount of $75,000," as well as "the costs and expenses of maintaining this action, and the underlying administrative proceedings necessary to bring this action[,] including reasonable attorneys' fees." (Docket No. 1, Prayer For Relief, ¶¶ (a)-(d)). In Zahran I it was pointed out that this language could be read in one of two ways: either as seeking compensatory education, on one hand, and $75,000 in money damages, on the other, or as seeking $75,000 as representing both money damages and the value of compensatory education. This ambiguity was cured, it was noted, in plaintiffs' opposition papers to the DOE's motion to dismiss, in which plaintiffs stated that the $75,000 "`represent[s] compensatory education and trebled money damages[.]'" Zahran I, 306 F. Supp.2d at 210-11 (quoting Docket No. 26, p. 1) (emphasis added). Therefore, because plaintiffs seek only monetary damages — no matter what such damages supposedly represent — it was held that the IDEA claim had to be dismissed. Because such a holding was not based on the particular moving defendant, however, it applies with equal force to the District's summary judgment motion.

  Plaintiffs attempt to evade the reach of the holding by claiming, in their summary judgment moving papers, for the first time, that they do indeed seek both compensatory education and monetary damages. However, at no time after Zahran I was issued on February 10, 2004, did plaintiffs seek to amend the complaint or otherwise notify the court to reflect this. They will not now be permitted to exploit the decision highlighting their mistake to shift the relief sought, to the prejudice of the District. Accordingly, the District is entitled to judgment as a matter of law on the first cause of action.

  Even assuming, without deciding, that compensatory education has been properly plead, and that gross violations need not be found for an awarding of the same, and accepting as true plaintiffs' conclusory allegation that they intend to return to the District in the near future despite residing in Georgia for approximately the past two years, it is unclear what form of such education plaintiff seeks. In their memorandum of law in opposition to the District's motion for summary judgment, plaintiffs mention tutoring and summer school as types of compensatory education, but they never state they seek either or both, or any other type of compensatory education.

  Without any guidance it would be difficult, if not impossible, to fashion a compensatory education award. No party seems to want an award that merely heaps on hours to his school day, and plaintiffs have taken issue with the SRO's decision that the time lost could made up gradually over time, whatever that means. Additionally, there is no question that, since his move to Georgia in the summer of 2002, well before the SRO's decision, Ibrahim has been receiving educational services. Any attempt to determine what services he specifically needs, right now, years after the events in question, would result in the contours of any award being formulated out of nothing but sheer speculation and guesswork.

  This may have been the reason plaintiffs never sought to amend the complaint, or otherwise clarify the relief sought or object to Zahran I, after Zahran I was issued. Therefore, it can only be concluded that the compensatory education now sought in the present moving papers is an improper, untimely, and prejudicial shift in legal strategy that will not be permitted. As monetary damages are the only relief sought by plaintiffs, their claim under IDEA must be dismissed.

  C. Section 1983

  While plaintiffs may not seek monetary damages under the IDEA, it was made clear that they could obtain the same through a 42 U.S.C. § 1983 action to enforce IDEA rights. Zahran I, 303 F. Supp.2d at 211 (citing Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 786 n.14 (2d Cir. 2003); id. (collecting cases). In the third cause of action, plaintiffs do just that, asserting a claim under § 1983 to enforce Ibrahim's IDEA rights.

  Before addressing the merits of the § 1983 claim, it is appropriate to address some preliminary issues raised by defendants in the moving papers.

  1. § 1983 as Avenue of Relief

  The District contends that, when a final administrative decision has been rendered, an action under the IDEA itself is the only permissible avenue of relief for a plaintiff. Utilizing § 1983 instead of the statute itself in such a situation, according to the District, significantly undercuts the purposes and structure of the IDEA. This argument is rejected. While the IDEA does indeed provide an avenue of relief for a disabled student alleging he or she has been deprived of a free and appropriate education, it is the exclusive avenue of relief only when the relief sought is actually available under the statute. Thus, if for example compensatory education was available in this case, and plaintiff had properly sought the same in the complaint, his claim to that extent would have been considered one made under the IDEA, and not pursuant to § 1983. However, as noted, plaintiff in the complaint — which, again, has not been amended since Zahran I — sought as relief $75,000. Such relief is not available under the IDEA — and hence no claim can be stated thereunder — but is available in a § 1983 claim to enforce IDEA rights. See supra.

  2. Exhaustion of Administrative Remedies

  The District contends that any challenge plaintiffs are making to the 2001-02 IEP must be dismissed because of an alleged failure to raise it at the administrative level. In order to assess this issue, the precise parameters of plaintiffs' § 1983 claim need to be defined. Plaintiffs' arguments with respect to this claim can be broken down into two categories: (1) that the District failed to properly formulate and implement Ibrahim's 2001-02 IEP up until and including his suspension on December 10, 2001; and (2) that the District failed to formulate and implement an IAES sufficient to allow Ibrahim to meet the goals stated in his IEP, from December 10, 2001, to April 1, 2002, so as to deprive him of a free appropriate public education in that time period.

  With respect to the latter front, it is clear that such a claim was addressed at the administrative level and is therefore properly asserted in this forum. However, to the extent plaintiffs are claiming that the formulation and implementation of the IEP prior to the suspension and commencement of proceedings to develop an IAES to replace the IEP, such a claim has not been administratively exhausted. Plaintiffs pursuing claims under the IDEA, or through § 1983 to enforce rights guaranteed in the IDEA, are required to exhaust administrative remedies. See Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 199 (2d Cir. 2002) (citing 20 U.S.C. § 1415(i)): see also Polera v. Bd. of Educ. of the Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 487 (2d Cir. 2002) (stating that the intent of the exhaustion requirement is to allow for grievances to be promptly resolved by individuals with expertise in the education of the disabled, free from court interference). "A plaintiff cannot evade the IDEA'S exhaustion requirement simply by framing his or her action as one for monetary relief," even if such relief is sought under § 1983 and not the statute itself. Taylor, 313 F.3d at 789.

  Here, the administrative proceedings were initiated by the District to gain approval for the IAES, which was to serve as substitute programming for Ibrahim while his 2001-02 IEP was revised. While the IEP was certainly relevant to the development of the IAES, it was not itself in issue. Indeed, that Ibrahim's 2001-02 IEP influenced the development of the IAES, was prevalent in the IHO's January 29, 2002, decision, and provided background for the SRO's determination on appeal, is more a function of legal requirements*fn1 than any claim challenging the implementation of the IEP prior to the suspension being in issue at the administrative level. The wrangling between plaintiffs and the District pertained to the substantive contours of the IAES. While it was indeed found that Ibrahim was deprived of a free appropriate public education, such finding was limited to December 10, 2001, onward to April 1, 2002. It did not encompass the school year prior to the suspension. Therefore, exhaustion of remedies was required if plaintiffs wished to challenge events prior to December 10, 2001, including any allegations that the IEP was improperly formulated and implemented, so as to deprive Ibrahim of a free and appropriate public education up until his suspension.

  The Second Circuit has noted that "[e]xhaustion will be excused where it would be futile, the agency has adopted a policy or practice of general applicability that is contrary to law, or it is improbable that adequate relief is available in the administrative forum, or where . . . the parents have not been notified that such remedies were available to them." Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 149 (2d Cir. 2002) (internal quotations and citations omitted). Only the third exception — where "it is improbable that adequate relief is available in the administrative forum" — requires comment here.

  It could be argued, for example, that because monetary damages could not be awarded at the administrative level, plaintiffs were excused from the exhaustion requirement. However, "`[r]elief available' means relief for the events, condition, or consequences of which the person complains, even if not necessarily relief of the kind the person prefers." Taylor, 313 F.3d at 790 (internal quotations and citations omitted). Unlike his counterpart in Taylor, the impartial hearing officer here could have awarded plaintiffs appropriate relief if it was proven that the IEP was formulated or implemented in an improper fashion prior to the December 10, 2001, suspension. Thus, to the extent plaintiffs' § 1983 claim is predicated on a failure to formulate or implement Ibrahim's 2001-02 IEP prior to December 10, 2001, it must be dismissed.

  3. Merits of Claim

  Therefore, the issues remaining in this case would appear to be whether the SRO erred in affirming the IAES approved and order implemented by the IHO, and, if so, whether plaintiff suffered damages as a result. However, complicating effective disposition of these issues is the finding of the SRO that Ibrahim was improperly denied educational services from December 10, 2001, to April 1, 2002. In other words, the SRO approved of the IAES, but determined that because it had not been implemented and Ibrahim had not received sufficient (or any) services until April 1, 2002, Ibrahim was improperly denied educational services from the date of his suspension up until that point. The SRO denied plaintiffs' request on appeal that this period of deprivation could be remedied by compensatory education.

  By the time the SRO issued his decision, though — well over a year after the last decision issued by the IHO — plaintiffs had been living in Georgia since the summer of 2002. This fact, coupled with a lack of allegations until summary judgment that any return to New York State was planned or that compensatory education was even sought, counsels against plaintiffs challenging the SRO's decision denying compensatory education. In the complaint, however, as noted supra, plaintiffs seek a monetary award that is supposedly representative of compensatory education and compensatory damages. Thus, we are left with a highly anomalous situation involving three of the SRO's findings: a determination adverse to plaintiffs with respect to the substance of the IAES; a determination favorable to plaintiffs with respect to whether he was deprived of a free appropriate public education from December 10, 2001, to April 1, 2002; and a determination adverse to plaintiffs with respect to the remedy for such deprivation.

  With respect to the substance of the IAES eventually ordered implemented by the SRO, such an issue is properly asserted in this forum, but is moot since an IAES is only temporary programming until a new IEP can be developed, and a subsequent IEP has been developed for Ibrahim in Georgia.*fn2 With respect to the SRO's finding that Ibrahim was improperly denied services from December 10, 2001, to April 1, 2002, a challenge to this finding is not properly before the court, as it has not been appealed by the only party to which it was adverse, the District.*fn3 Only the third issue — the relief appropriate for the denial of services between December and April — is properly at issue here. While it is acknowledged that plaintiffs did not seek compensatory damages in the administrative proceedings, they did indeed raise the issue of the proper relief, and can properly appeal from the SRO's finding in that regard.

  Therefore, the sole issue remaining in this case is the measure of damages for the District's failure to provide Ibrahim with a free appropriate public education from December 10, 2001, to April 1, 2002. Such issue will be the subject of a trial, after which plaintiffs, if successful in securing more than nominal damages, will be permitted to submit a verified application for attorney's fees, as well as supporting submissions, which the District will have the opportunity to oppose.


  Plaintiffs have consented to the voluntary dismissal of the second, fourth, and fifth causes of action. Plaintiffs' first cause of action — asserted under the IDEA — must also be dismissed, as monetary damages, the only remedy sought, are unavailable under the statute. Plaintiffs can seek such damages for a violation of IDEA rights under Section 1983. The issue of whether Ibrahim's rights were violated is not at issue here — due to the District's failure to contest the SRO's finding that he was improperly denied services from December 10, 2001, to April 1, 2002. Therefore, the only issue remaining for trial is whether plaintiffs can prove compensatory damages or are limited to only nominal damages.

  Accordingly, it is

  ORDERED that

  1. Defendant Board of Education of the Niskayuna Central School District's motion for summary judgment is GRANTED with respect to the first, second, fourth, and fifth causes of action, and DENIED with respect to the third cause of action;

  2. Plaintiffs' cross-motion for summary judgment is GRANTED on the issue of liability with respect to the third cause of action, and DENIED in all other respects;

  3. The first, second, fourth, and fifth causes of action are DISMISSED.


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