The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Joseph Levine ("plaintiff" and/or "Levine") brings this action against defendants Greece Central School District (the "District"), Donald Nadolinski ("Nadolinski"), Deborah Hoeft ("Hoeft"), Amy Perisky ("Perisky"), Kenneth Merkey ("Merkey") (collectively the "District Defendants"), Monroe 2 - Orleans Board of Cooperative Educational Services ("BOCES"), David Mancuso ("Mancuso") and Katherine Madonia ("Madonia") (collectively the "BOCES Defendants"). The complaint contains six separately enumerated causes of action against defendants arising out of the special education and related services plaintiff received beginning in 2005. Specifically, plaintiff alleges that defendants failed to provide plaintiff with a free appropriate public education ("FAPE") pursuant to the Individuals with Disabilities Education Act ("IDEA") in violation of: 1) the IDEA; 2) Section 504 of the Rehabilitation Act of 1973 ("Section 504" or the "Rehabilitation Act"); 3) the Americans with Disabilities Act ("ADA"); 4) the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; 5) the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and 6) 42 U.S.C. §1983.
The District Defendants and BOCES Defendants (collectively "defendants") now move to dismiss the claims brought by plaintiff pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defendants contend that it is undisputed that plaintiff failed to exhaust his administrative remedies as it relates to his IDEA and IDEA-related claims. Moreover, plaintiff has not set forth an adequate claim of futility and accordingly, plaintiff's admitted failure to exhaust his administrative remedies requires the dismissal of his claims under Fed.R.Civ.P. 12(b)(1) since the Court lacks subject matter jurisdiction over such claims. Defendants alternatively argue that even assuming that plaintiff's claims are not subject to dismissal for lack of subject matter jurisdiction, plaintiff's claims must be dismissed for failure to state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6).
Plaintiff concedes that he did not exhaust his administrative remedies. However, plaintiff argues that the exhaustion requirement would have been futile because: (1) defendants allegedly had a "long history of failing" plaintiff; (2) the administrative process would have resulted in "innumerable administrative meetings;" and (3) defendants allegedly failed to notify plaintiff of "the exhaustion requirement." See id., ¶77. In addition, plaintiff alleges that he was not required to exhaust administrative remedies because the District waived its right to assert that defense. See id., ¶78.
For the reasons set forth below, the defendants' motions to dismiss under Rule 12(b)(1) for failure to exhaust administrative remedies is granted.
The complaint alleges that plaintiff is a student in the Greece Central School District and at all relevant times to the claims in the Complaint received special education and related services from the District. See Compl. ¶16-17. During the relevant time period, plaintiff attended classes at the District and at BOCES pursuant to the Bridges Program, which offers alternatives to students who are at risk of leaving high school. See id., ¶21.
Plaintiff admits that he did not exhaust his administrative remedies, but to avoid dismissal argues that exhaustion of administrative remedies would have been futile. Defendants argue that while exhaustion has been excused in situations where a party has not received any notice of the procedural rights afforded to it under the IDEA, that is not the case here since plaintiff has been informed of his procedural rights under the IDEA. The District sent plaintiff's parents a copy of the July 1, 2005 Procedural Safeguards Notice prepared by the Commissioner. See id., ¶61. The Notice advised parents of their procedural rights, including their right to request an impartial hearing, their right to appeal the hearing officer's final decision to the State Review Officer ("SRO"), and their right to appeal the SRO's final decision to either a state or federal court. See id. In addition, the District subsequently sent plaintiff's parents another Procedural Safeguards Notice dated September 13, 2005 with the same notice provisions. See id. Again, in October 2007 the District sent plaintiff's parents yet another Procedural Safeguards Notice with similar notice language. See id., ¶62. The District claims that it was only required by law to inform the plaintiff and/or his parents of their procedural rights under the IDEA, a requirement that plaintiff acknowledges the District fulfilled. See id., ¶¶61-62. However, the District was not required to walk the plaintiff through the administrative process.
Plaintiff, through his parents, previously commenced an action on August 22, 2007 in this Court ("Action I").*fn1 In Action I, plaintiff alleged that he was denied access to special education services and denied FAPE by the District and BOCES. See Action I Compl., ¶¶14, 16-19. Defendants moved to dismiss the Complaint in Action I contending, among other things, that plaintiffs had failed to exhaust their administrative remedies under the IDEA. On January 4, 2008, plaintiffs filed a Notice of Voluntary Dismissal of their Complaint in response to defendants motion to dismiss for failure to exhaust administrative remedies. Thereafter, on February 19, 2008, plaintiff commenced this current action. The most significant difference between the current Complaint and the Complaint in Action I is that plaintiff now alleges that he fits within the futility exception to the exhaustion of administrative remedies rule of the IDEA. See Compl., ¶¶61-74, 77-78. On April 2, 2008 and May 16, 2008, the BOCES Defendants and the District Defendants respectively moved to dismiss the Complaint in its entirety, pursuant to Fed. R. Civ. P. 12(b)(1) and (6). Plaintiff responded on July 31, 2008. The District Defendants and BOCES Defendants replied on August 15, 2008 and August 18, 2008 respectively.