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Jenn-Ching Luo v. Baldwin Union Free School District

March 15, 2011

JENN-CHING LUO, PLAINTIFF,
v.
BALDWIN UNION FREE SCHOOL DISTRICT,
MICHELLE GALLO, SHERRISSE MARTIN, SUSAN M. GIBSON AND JOHN M. SUOZZI, DEFENDANTS.



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

MEMORANDUM AND ORDER

Pro se Plaintiff Jenn-Ching Luo brought this action to redress perceived infirmities in the way Defendant Baldwin Union Free School District (the "District") and several individual defendants addressed the educational needs of Plaintiff's disabled child, B.L. The Defendants are the District, Michelle Gallo, Sherrisse Martin, Susan Gibson and John Suozzi, Ph.D; Plaintiff asserts violations of the Individuals with Disabilities Education Act ("IDEA") and Section 1983 of Title 42 of the United States Code ("Section 1983"), as well as several state law claims.

Pending before the Court are Gibson's and Suozzi's motions to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b).*fn1 Also pending before the Court is Plaintiff's letter motion to amend the caption of this litigation.

For the reasons that follow, Plaintiff's motion to amend the caption is GRANTED insofar as the Court will construe the Complaint as asserting only Plaintiff's own claims, not claims on behalf of B.L. Gibson's motion to dismiss the Complaint is GRANTED. Suozzi's motion to dismiss is GRANTED IN PART AND DENIED IN PART.

BACKGROUND

The following facts are taken from the Complaint and are presumed to be true for the purpose of this Memorandum and Order.

I. The Parties

Plaintiff is the parent of B.L., an autistic child residing in the District. (Compl. ¶ 13.)

Defendant Michelle Gallo was the District's director of pupil services. (Compl. ¶ 15.) Defendant Sherrisse Martin was the assistant director of pupil services. (Compl. ¶ 16.)

Defendant Susan Gibson is an attorney who represented the District at a due process hearing concerning B.L.'s Individualized Education Plan ("IEP"). Gibson also served as a counselor to the District, providing legal advice in connection with Plaintiff's dispute over B.L.'s education. (Compl. ¶ 17.)

Defendant John M. Suozzi, Ph.D, is a licensed psychologist. He maintains a private practice, and he was hired as a consultant to evaluate B.L. (Compl. ¶ 18.) As the Court will explain, this psychological evaluation, and Suozzi's report thereof, allegedly loomed large in the development of B.L.'s IEP.

II. Plaintiff's Dispute with the District

B.L. has received home instruction as part of his IEP since he was in pre-school. (Compl. ¶ 65.) As near as the Court can determine, this lawsuit stems from the District's attempt to modify B.L.'s IEP by removing or limiting the home instruction component and replacing or supplementing it with "parent skills" classes whereby Plaintiff can learn certain techniques that he could use at home to accelerate B.L.'s development. (See Compl. ¶¶ 67-68, 72.)

A. The District's "Hitman Practice"

Plaintiff alleges that the District follows what he calls "hitman practice" when determining the appropriate level of services it must provide to disabled students. Pursuant to this practice, school districts attempt to end-around the IEP development process by paying an ostensibly disinterested consultant to write a "recommendation" for a child's educational program that is nothing more than a dressed-up version of what type of program best suits the school. (Compl. ¶¶ 64-76.) The "hitman" has little or no knowledge of a particular student's circumstances, and instead recites the school's desired outcome, couched as a recommendation. (See Compl. ¶¶ 78-79.) Plaintiff does not say so explicitly, but the school district's motive for such a tactic appears to be financial; the district can save money if its consultants "recommend" the least expensive IEP.

Plaintiff alleges that he and B.L. were victims of this "hitman" practice on at least two occasions. On the first, the District asked a woman named Andretta to write a report that recommended replacing B.L.'s home instructional program with "parent lessons." (Compl. ¶¶ 77, 80.) Andretta did so, despite having no personal knowledge about B.L.'s educational progress, because the District promised her a job in exchange for her report. (Compl. ¶¶ 83-86.)

On the second, the District's psychologist suggested that she perform a psychological re-evaluation of B.L (the "Reevaluation"). (See Compl. ¶ 94.) Wary that the Re-evaluation would be conducted by a "hitman," Plaintiff insisted that it be performed by someone unaffiliated with the District. (Id. ¶¶ 95-97.) The District hired Defendant Suozzi, a psychologist in private practice, to perform the Re-evaluation and sent him a letter authorizing him to proceed. (Id. ¶ 103.) Suozzi conducted the Re-evaluation on February 2, 2009. (Id. ¶ 111.) Notwithstanding Plaintiff's precautions, Suozzi turned out to be a District "hitman," too. The Re-evaluation and Suozzi's report are discussed in detail, below.

B. B.L.'s Re-evaluation

Suozzi's report of the Re-evaluation listed several recommendations for B.L.'s development, two of which Plaintiff cites in the Complaint. In Recommendation 6, Suozzi opined that B.L. was not ready to learn some of the skills in his then-current educational program. (Compl. ¶ 234.) In Recommendation 7, Suozzi suggested that "home-based instruction" would help Plaintiff learn skills he needed to maximize B.L.'s development. (Compl. ¶ 245.)

Plaintiff disagrees with the substance of these Recommendations, and he objects to three procedural aspects of the Re-evaluation and Suozzi's report. First, the Re-evaluation was conducted without the required parental consent. (See generally id. ¶¶ 137-170.) More specifically, Plaintiff returned a consent form with four conditions and the District accepted Plaintiff's "conditional consent" before the Reevaluation began. (Id. ¶¶ 137-139.) The District failed to satisfy Plaintiff's conditions after-the-fact, rendering, in Plaintiff's view, the consent retroactively void. (See generally id. ¶¶ 137-170.) Second, Plaintiff received Suozzi's report only two days before he was supposed to meet with the District to discuss B.L.'s IEP. (Id. ¶ 118.) Plaintiff thus had little time to prepare his response. (Id. ¶ 119.) Third, Suozzi's report did not provide sufficient information to support its conclusions. (See generally id. ¶¶ 231-280.) Among other shortcomings, the Recommendations were "too vague" and cited no peer-reviewed publications for support. (Id. ¶¶ 235, 237.)

C. The February 26, 2009 Meeting

The District used Suozzi's report, which was tainted by the District's "hitman practice" and rife with substantive and procedural defects, as the start- and end-point to discussions concerning B.L.'s educational needs, thereby cutting Plaintiff out of the process of determining what was best for B.L. (See generally Compl. ¶¶ 207-230.) According to Plaintiff, "Suozzi determined [B.L.'s] educational needs (Recommendations 6 and 7) by himself." (Id. ¶ 210.) And, although Suozzi took time to "emotionally explain" his conclusions to Plaintiff, Plaintiff suggests that he was not given a meaningful opportunity to voice his own thoughts about B.L.'s educational needs. (Id. ¶ 121.) Further, although his Complaint does not allege that B.L.'s home instruction was terminated or that Plaintiff actually attended the "parent skills" classes, it is apparent that Plaintiff feels the District's strong-arm tactics denied B.L. a free and appropriate public education ("FAPE"). (See id. ¶ 286(e); see also Pl. Gibson Opp. at 6 (suggesting that, had it entertained Plaintiff's views on B.L.'s education, the District would have added services to B.L.'s program).)*fn2

III. Plaintiff's Due Process Complaint and Hearing

Plaintiff aired these grievances in a due process complaint against the District that he filed on March 10, 2009. (Compl. ¶ 19.) Thereafter, the District appointed an independent hearing officer ("IHO") and a hearing was held. (Id. ¶ 20.) The IHO apparently ruled in the District's favor, (id. ¶ 61), and that decision was upheld on appeal by the state review board. (Id. ¶ 62.) The Complaint contains a host of allegations charging the IHO with misconduct (see id. ¶¶ 19-62). Inasmuch as the IHO is not a defendant in this case, these allegations--which include claims that the IHO had improper ex parte contact with the District and scheduled the hearing at a time inconvenient to Plaintiff--are relevant only to show that Plaintiff was allegedly not ...


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