The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Pending is defendant's motion to dismiss and request for attorneys' fees. (Dkt. No. 7.) Pro se plaintiffs Susyn and Thomas Kelly commenced this action with, and on behalf of, their daughter, M.K., seeking relief and compensatory damages under the IDEA,*fn1 § 504 of the Rehabilitation Act of 1973,*fn2 the ADA,*fn3 42 U.S.C. §§ 1983 and 1985, and New York State Education Law.*fn4 (See Compl., Dkt. No. 1.) Defendant's motion to dismiss is granted due to the court's lack of subject matter jurisdiction. Defendant's motion for attorneys' fees is denied.
The Kellys allege that defendant Saratoga Springs City School District has deprived them and their daughter of a free appropriate public education (FAPE) by failing to implement an appropriate Individualized Education Program (IEP) as required by the IDEA, the ADA, and § 504. (See generally Compl., Dkt. No. 1.) They further allege that such failure denied their due process and equal protection rights under the Fourteenth Amendment in violation of § 1983. (See generally id.) Under 20 U.S.C. § 1415, the Kellys seek reimbursement for (1) M.K.'s private tutoring during the 2007-2008 school year and (2) reasonable attorneys' fees incurred during the administrative proceedings. (See id. at 19.) While it is not a model of clarity, the court has construed the Kellys' complaint to also include a demand for damages based on the District and its attorney's alleged conspiracy to interfere with and deprive them of their civil rights in violation of § 1985.*fn5 (See id. at 1, 19; see also id. at ¶¶ 47, 51.)
Viewed in the light most favorable to plaintiffs, the facts are as follows. The Kellys are residents of Saratoga Springs, New York. From September 2005 to June 2008, their daughter, M.K., attended Caroline Street School in the District. (See Compl. ¶ 1, Dkt. No. 1.) Between 2005 and 2007, upon the Kellys' requests, M.K. was twice referred to the District's Committee on Special Education (CSE) for evaluation. (See Def. Ex. B,Impartial Hearing Officer (IHO) Decision at 4, Dkt. No. 7:2.) At both meetings, the CSE recommended against classifying M.K. as learning disabled. (See id.) Nonetheless, in the summer of 2007, as a result of a resolution hearing held involving the Kellys and the District, the CSE met to re-consider M.K.'s classification. (See id.)
On July 11, 2007, before M.K. began second grade, the CSE classified M.K. as a student with a learning disability and recommended an IEP for the 2007-2008 school year. (See id.) And in January 2008, a CSE subcommittee issued an amended IEP that updated M.K.'s performance levels and testing results. (See id. at 5-7.) Pursuant to the IEP, M.K. received direct consultant teacher services, special seating, and testing modifications. (See id. at 6.) The District also provided M.K. with a "balanced literacy approach" utilizing both the Wilson and Scott Foresman reading programs. (See id. at 5-6.)
The Kellys' problems with the appropriateness of the IEP included a failure to: (1) state M.K. as dyslexic; (2) state whether M.K. should receive a systematic, multi-sensory reading program; and (3) measure M.K.'s progress by standardized testing. (See id. at 19-20.) Additionally, the Kellys complained that the District refused to implement the Wilson program in accordance with the July 2007 Resolution Agreement by, among other things, failing to comprehensively and consistently apply the Wilson program. (See id. at 19-20; see also Compl. ¶¶ 23, 62, Dkt. No. 1.) Based on these concerns, on January 15, 2008, M.K. began receiving private tutoring under the Orton-Gillingham reading program at the Adirondack Reading Center (ARC). (See Def. Ex. B, IHO Decision at 4, 20, Dkt. No. 7:2.; see also Compl. ¶ 29, Dkt. No. 1.)
Based on the District's alleged failings, the Kellys requested an impartial hearing, seeking relief and reimbursement, pursuant to 20 U.S.C. § 1415(f), 34 C.F.R. § 300.511, N.Y. EDUC. LAW § 4404, and 8 N.Y.C.R.R. § 200.5. (See Def. Memo. of Law at 2, Dkt. No. 7:3.; see also Def. Ex. B, IHO Decision at 4-5, Dkt. No. 7:2; Compl. ¶ 57, Dkt. No. 1.) The IHO held an impartial hearing on May 28, May 29, and July 7, 2008. (See Def. Ex. B, IHO Decision at 3, Dkt. No. 7:2.) The Kellys were accompanied by counsel at the hearing. (See id. at 1-2; see also Def. Ex. C, Pet. to State Review Officer (SRO) at 6, Dkt. No. 7:2; Compl. ¶ 36, Dkt. No. 1.) On August 21, 2008, the IHO determined that while M.K.'s IEP was "procedurally and substantively defective," it still provided M.K. with an appropriate special education program, whereby the Kellys were not entitled to reimbursement for the costs of M.K.'s private tutoring. (See Def. Ex. B, IHO Decision at 31, Dkt. No. 7:2.)
The IHO emailed his decision to counsel for both parties on August 22, 2008, and mailed each party a hard copy on August 25, 2008, which the Kellys received on August 27, 2008. (See Def. Ex. D, SRO Decision at 2, Dkt. No. 7:2; see also Compl. ¶ 35, Dkt. No. 1.) In his decision, the IHO gave notice to each party that any appeal to the SRO must be made within thirty-five days of the date of decision or the date of mailing plus four days. (See Def. Ex. B, IHO Decision at 32, Dkt. No. 7:2.) The IHO also notified each party that failure to file a timely appeal would result in waiver. (See id.) The Kellys filed their appeal with the SRO on October 6, 2008, forty-six days after the IHO reached his decision and forty-two days after the date of mailing. (See Compl. ¶ 50, Dkt. No. 1.)
The SRO, in a decision issued on November 7, 2008, found that the Kellys failed to file their appeal in a timely manner and did not have good cause for the delay. (See Def. Ex. D, SRO Decision at 2, Dkt. No. 7:2.) Accordingly, the SRO dismissed the Kellys' petition for untimely service and improper initiation of an appeal. (See id. at 3.)
The Kellys commenced this action on March 9, 2009.