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Reyes v. Valley Stream School Dist.

March 26, 2009

ELLEN REYES, PLAINTIFF,
v.
VALLEY STREAM SCHOOL DISTRICT AND DR. MARC BERSTEIN, DEFENDANT.



The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge

MEMORANDUM OPINION and ORDER

This is a very troublesome action that was initiated by the plaintiff, Ellen Reyes, acting pro se, in November 2007. Ms. Reyes has attempted in this litigation to review the Individualized Education Plan ("IEP") established by the defendants, Valley Stream School District and Dr. Marc Berstein (hereinafter called "the District"), for the 2006-2007 school year as it related to her disabled daughter, referred to as "J.R."

It appears that complaints filed against the District triggered the commencement in 2007 of an administrative due process proceeding, pursuant to New York Education Law Section 4401 and Commissioner of Education Regulation Section 200.5, before the Impartial Hearing Officer ("IHO") Paul T. Bumbalo, Esq., which resulted in a final decision on May 6, 2008. In a twenty-one (21) page decision, the IHO found that the District provided a free and appropriate education to J.R. and directed that she be required to participate in an evaluation for admission to the Henry Viscardi School ("HVS") for orthopedically impaired students.

That decision states the following as to any appeal:

[A] notice of intention to seek review shall be served on the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25-or 35-day period. Decision by Paul T. Bumbalo, Esq., IHO, dated May 6, 2008, In the Matter of the Application brought by E.R. on behalf of their child J.R. against the Valley Stream Central High School District.

On February 19, 2008, the District moved to dismiss on the ground, among others, that the plaintiff and J.R. had failed to exhaust their administrative remedies by timely appealing the IHO's decision.

On March 10, 2008, the assigned district judge, Joseph F. Bianco, dismissed this action, without prejudice, to allow plaintiff to pursue her administrative remedies.

The plaintiff's response to Judge Bianco's order was the submission of no less than twenty-seven (27) letters addressed to the court between March 11, 2008 and July 25, 2008. These letters were often hand delivered to the Clerk for filing and the plaintiff would frequently be accompanied by J.R. on these court visits.

Plaintiff was advised by Judge Bianco on July 25, 2008 that, in the absence of such an appeal, the federal court was without authority to review the District's IEP. Plaintiff's counsel, Lester Wayne Mackey, Esq., appearing at that and other conferences, but never filing a notice of appearance, was instructed by the court that the plaintiff still has not properly exhausted her claim so that it may be heard in federal court. The court advised plaintiff's counsel to ascertain whether plaintiff had appealed the decision and, in any event, to make an appeal to the New York State Education Department Office of State Review so that a final decision can be rendered.

The court further advised counsel that the Court would allow him to submit a motion to reopen the case at any time he concluded plaintiff was in a legal position to do so. (Docket Entry 68 - Tape # 11:54-12:14.)

Between July 30, 2008 and September 17, 2008, the plaintiff made 15 pro se requests for an emergency conference and a restraining order. Many of these filings were done in person, accompanied by J.R. during regular school hours.

On September 17, 2008 the undersigned was requested to address one of these applications and did so by the issuance of an order to show cause: why the within action should not be restored to this court's active docket pursuant to the oral directive of Judge Bianco, dated July 25, 2008 (see entry # 68 of the Docket Sheet herein) on the ground that plaintiff has adequately exhausted her available State remedies. (Order to Show Cause, dated Sept. 17, 2008.)

The District opposes the show cause order, based on, among other grounds, the failure of the plaintiff to exhaust her administrative remedies by filing an appeal from the May 6, 2008 decision of the IHO. (Aff. of Opp'n by John P. Sheahan, Esq., dated Sept. 30, 2008, 3-10.)

The plaintiff now appears in this action by counsel, Frederick K. Brewington, who filed a notice of ...


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