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William Schafer, Jr., et al v. Hicksville Union Free School District

March 31, 2011


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


Plaintiff William Schafer, Jr. ("Billy") is a student with disabilities. Billy, appearing by and through Plaintiffs William Schafer, Sr. and Janet Schafer (the "Parents" or "Plaintiffs") sued for damages related to how educators addressed Billy's special education needs. There are three groups of defendants. First is the Hicksville School District (the "School District"; Maureen K. Bright; Dr. Allen Orenstein; Dr. Joseph Hayward; and Dr. Joseph Moreno (collectively, with the School District, the "Hicksville Defendants"). Second is Nassau BOCES.*fn1 Third is John Piccarello; Flora Cohen; Dr. Mark Curci; Eric Rauscher; and Paul Schaefer (collectively, the "BOCES Individuals").*fn2

All Defendants have moved for summary judgment. For the reasons that follow, the Hicksville Defendants' and the BOCES Individuals' motions for summary judgment are GRANTED. Nassau BOCES' motion for summary judgment is GRANTED IN PART. Nassau BOCES and Plaintiffs are directed to appear before this Court for a pre-trial conference on April 29, 2011 at 9:30 a.m.


This case has two distinct themes. First, Plaintiffs allege federal and state law violations arising out of Billy's alleged confinement in the "timeout room" at the Rosemary Kennedy School (the "Kennedy School"), a Nassau BOCES institution. Second, Plaintiffs allege that Billy was wrongly denied a Free Appropriate Public Education ("FAPE").

I. The Parties

Plaintiff Billy is a developmentally disabled male who resides within the defendant Hicksville, New York, Union Free School District. (Proposed Joint Pretrial Order, Stipulated Facts ("JPTO") ¶ 2.) Plaintiffs William Schafer, Sr. and Janet Schafer are Billy's parents (the "Parents").

The Hicksville School District is a defendant in this action, as is its superintendent, Maureen K. Bright, and three of its employees: Dr. Allen Orenstein, at relevant times the Interim Director of Pupil Personnel Services and Special Education; Dr. Joseph Hayward, the Special Education Superintendent; and Dr. Joseph Moreno, a school psychologist. (JPTO ¶¶ 3-6.)

The Kennedy School is a Wantagh, New York, Nassau BOCES school for children with developmental disabilities. (JPTP ¶ 7.) Defendant John Piccarello is the Kennedy School's principal, defendant Flora Cohen was its assistant principal, defendant Dr. Mark Curci is a Kennedy School psychologist, defendant Eric Rauscher was a Kennedy School teacher, and defendant Paul Schaefer is a Kennedy School employee. (JPTO ¶¶ 8-11.)

II. Billy's Background and Placement at the Kennedy School

Billy has extensive neuro-developmental deficits and

global impairments, and he functions between a three- and five-year old level. (BOCES 56.1 Stmt. ¶¶ 6-7.)*fn3 He has impaired language and communication skills. (Id. ¶ 8.) According to his Parents, Billy is also claustrophobic. (Pl. BOCES Cntr-Stmt. ¶ 103.) As a result of his disabilities, Billy has received special education services since he was two years old. Beginning in Spring 2004, Billy received home services in speech therapy, occupational therapy, and academic instruction. (See Hicksville 56.1 Stmt. ¶ 3.)

On June 2, 2004, Billy's Committee on Special Education (the "CSE") met to discuss Billy's academic placement for the upcoming 2004-05 school year. The Individualized Education Plan ("IEP") that arose out of that meeting provided that Billy would enroll at the Kennedy School in September. (BOCES 56.1 Stmt. ¶ 39.) The IEP also provided for continued homebound instruction. (Pl. BOCES 56.1 Cntr-Stmt. ¶ 39.)

Billy began classes at the Kennedy School in September 2004. (JPTO ¶ 14.) He was fourteen years old at the time. (Id. ¶ 18.) The Kennedy School's assistant principal, Defendant Flora Cohen, screened Billy prior to his enrollment to determine what level of services suited Billy's needs. (JPTO ¶ 19.) Upon enrollment, Billy was assigned to a school psychologist, Defendant Dr. Curci. (BOCES 56.1 Stmt. ¶ 25.) According to Plaintiffs, Billy's Parents only saw the Kennedy School once before Billy began classes there. (Pl. BOCES Cntr-Stmt. ¶ 12.)

III. May 23, 2005 CSE Meeting

Toward the end of Billy's first year at the Kennedy School, his CSE met to discuss his IEP and academic placement for the upcoming 2005-2006 school year. (JPTO ¶ 15.) The meeting was held at the Kennedy School, and it was attended by Billy's Parents and Defendants Curci, Rauscher, Konk and, from the School District, Drs. Orenstein and Moreno. The CSE decided that Billy would return to the Kennedy School in the fall of 2005. (JPTO ¶¶ 28-29.) According to Plaintiffs, the CSE also resolved to provide Billy with home academic instruction for the upcoming year, but the home instruction was inadvertently omitted from the new IEP. (Pl. Hicksville 56.1 Ctr-Stmt. ¶ 15.) Mr. Schafer asked Dr. Orenstein about the omission, and Dr. Orenstein reassured him that Billy would continue to receive home academic instruction. Mr. Schafer made a handwritten note on the IEP to that effect, (id.), and Dr. Curci initialed the note. (See Hicksville 56.1 Stmt. Ex. X at 5.) It is unclear from the parties' briefs and 56.1 statements whether and for how long Billy's home academic instruction was interrupted. As best as the Court can tell from the papers, it appears that there was a break in Billy's home tutoring but that the home instruction resumed approximately a week after the May 23, 2005 CSE meeting.

See infra at 12.

IV. The Timeout Room

When the May 23 CSE meeting was finished, Billy's Parents asked to see their son. (JPTO ¶ 30.) They were escorted to Billy's classroom, but when they got there they were told that Billy had been taken to the timeout room. (JPTO ¶ 31.) The Parents asked to be taken to see Billy, and Dr. Curci escorted them to the timeout room area. When they arrived, Dr. Curci asked Defendant Paul Schaefer, the timeout room monitor, to open the door of a closet-like cubicle. Schaefer did so, and the Parents found Billy crying inside the small space. (See Pl. BOCES Cntr-Stmt. ¶¶ 123-125.) The Parents, shocked and furious at finding their son confined to the cubicle, took Billy home. Billy never returned to the Kennedy School. (BOCES 56.1 Stmt. ¶ 132; JPTO ¶ 33.)

A. The Timeout Room's Physical Space

Classroom 506 of the Kennedy School was the designated "timeout area." According to Plaintiffs, the timeout room was a small, dark room, approximately four feet by five feet, with little or no lighting, (Pl. BOCES Cntr-Stmt. ¶¶ 90-92), and with blue gym matting on the walls and floor. (See William Schafer Dep. at 240, Pl. Ex. C.) It was one of two small rooms within a larger classroom-type area. (Pl. BOCES Cntr-Stmt. ¶ 95.) The classroom windows were covered with cardboard. (Id. ¶ 96) The door to the timeout room where Mr. Schafer found Billy might have had a window--Mr. Schafer cannot recall--but if it did the window was blocked. (See Id. ¶ 97.) Further, Plaintiffs infer that the timeout room was locked.*fn4 (See id. ¶ 98.) It is undisputed that Defendant Paul Schaefer was assigned to monitor the timeout room during the time Billy was enrolled at the Kennedy School. (BOCES 56.1 ¶ 92.)

B. Use of the Timeout Room

According to Plaintiffs, Defendants put Billy in the timeout room between twenty-seven and forty times between September 2004 and May 2005. (Pl. BOCES Cntr-Stmt. ¶ 73.) There are twenty-seven reported confinement incidents in Billy's timeout log, (see Pl. BOCES 56.1 Cntr-Stmt. ¶ 100; id., Ex. H) but Defendant Cohen told Mr. Schafer that she thought Billy had been sent to the timeout room forty times. (Pl. Ex. B at 55.)

According to the log, Billy was sent to the timeout room for behavior such as "hitting" or "kicking" and also for infractions such as "refusing to work" and "cursing." (Pl. Ex. H.)

Defendants claim that they prepared a Behavioral Intervention Plan ("BIP") for Billy and discussed it with his Parents. (see BOCES 56.1 Stmt. ¶¶ 55-65.) Billy's Parents sharply dispute that they ever had any knowledge of the BIP or the strategies it described. (See, e.g., Pl. BOCES Cntr-Stmt. ¶ 57.) In any event, the BIP appears to permit use of the timeout room only when "Billy is physically aggressive toward others." (Pl. Ex. K at 4.)

C. Were the Parents Aware of Use of Timeout Room?

Billy's Parents maintain that they were completely unaware that the Kennedy School had a timeout room. It was never shown to them when they toured the school, and no one from either the School District or BOCES ever told Plaintiffs about the room. (Pl. BOCES Cntr-Stmt. ¶ 13.) The timeout procedure at the Kennedy School was never explained or described to Plaintiffs, and Billy's Parents were always under the impression that a "timeout" consisted of telling Billy to sit quietly with his hands in his lap. (Pl. BOCES Cntr-Stmt. ¶ 22.) This is consistent with how Billy's Parents described Billy's timeouts at home. (See Pl. BOCES 56.1 Cntr-Stmt. ¶ 44.) On the one occasion that Mr. Schafer asked Dr. Curci where the Kennedy School timeouts took place, Dr. Curci responded that timeouts were conducted in his office. (Id.)

Students at the Kennedy School maintained a notebook in which their teachers would provide short notes intended to keep parents apprised of their child's progress. Several entries in Billy's notebook mentioned that he had been sent to "timeout" or "TO." According to Plaintiffs, they understood these entries to mean that references to "timeout" meant that Billy had been told to sit quietly, either in the classroom or in Dr. Curci's office. (Pl. BOCES Cntr-Stmt. ¶¶ 71-72.)

Defendants also claim that Dr. Curci called Mr. Schafer to advise him every time Billy was placed in the timeout room. (BOCES 56.1 Stmt. ¶ 73.) Plaintiffs dispute this; they claim that Dr. Curci only spoke with Mr. Schafer on the phone between twelve and fifteen times, far fewer than the approximately forty times Billy was placed in the timeout room. (Pl. 56.1 Stmt. ¶ 73.) Further, Plaintiffs claim that, to the extent Dr. Curci may have mentioned that Billy had a "timeout," Mr. Schafer assumed that to mean that Billy was told to sit quietly, not that Billy was locked in a closet. (Pl. 56.1 BOCES Counter-Stmt. ¶ 73.)

Defendants also claim that they reviewed their strategies and procedures for keeping Billy on task--which included timeouts and physical re-direction--during at least two meetings (March 17, 2005 and May 9, 2005). (BOCES 56.1 Stmt. ¶¶ 74, 88) Billy's Parents disagree that they were told about the timeout room at these meetings and that they consented to physical contact as a method of redirecting their son. (Pl. BOCES 56.1 Counter Stmt. ¶¶ 83, 88.)

V. Billy's Response to the Timeout Room

According to Plaintiffs, Billy was traumatized by the timeout room. Among other things, Plaintiffs claim that Billy would become agitated and yell "no blue room" when he heard the work "mark." (Pl. Hicksville 56.1 Cntr-Stmt. ¶ 20.) Billy's therapist characterized Billy's timeout-room experience as traumatizing and opined that returning Billy to the Kennedy School would "exacerbate the present stress reaction to trauma." (Id. ¶ 24.) Plaintiffs also point to Billy's historical transitioning problem. According to Plaintiffs, these transitioning problems were magnified when Billy attended the Kennedy School, and Billy would say "no bus, no school, no blue room" when he refused to board the bus. (Pl. BOCES 56.1 Stmt. ¶ 29.) "Blue room" was apparently a reference to the timeout room's blue-padded walls.

VI. Events Following the May 23, 2005 CSE Meeting

After Billy's Parents discovered the timeout room at the May 23 CSE meeting, they refused to send Billy back to the Kennedy School. In the days that followed, Dr. Orenstein apologized to Mr. Schafer for the timeout room, (Pl. Hicksville Cntr-Stmt. ¶ 17), and Mr. Schafer asked Dr. Orenstein to explore other placements. (Hicksville 56.1 Stmt. ¶ 18.) Dr. Orenstein agreed to look at other placements, but cautioned Mr. Schafer that finding something suitable would take some time. (Id. ¶ 19.)

In the meantime, Defendants arranged for home academic instruction.*fn5 Defendants maintain that they reinstated home instruction to compensate for the instruction Billy was missing as a result of his being pulled from the Kennedy School. Plaintiffs maintain, however, that Defendants were obligated to continue home academic instruction based on the IEP that was approved and initialed at the May 23 CSE meeting. See supra at 6; Pl. Hicksville Cntr-Stmt. ¶ 23. In any event, Plaintiffs allege that, in an August 4, 2005 meeting, Defendants proposed to withdraw home instruction. (Pl. Hicksville Opp. at 3.) Plaintiffs had served notices of claim on the School District and Nassau BOCES in July of 2005, (Pl. Exs. LL, JJ) and, in Plaintiffs' view, removing home instruction was in retaliation for Plaintiffs' anticipated lawsuit. (See Pl. Hicksville Opp. at 3). Plaintiffs contend that they were presented with a stark "Hobson's Choice": return Billy to the Kennedy School, or lose home academic services. (Pl. Hicksville 56.1 Cntr-Stmt. ¶ 41.)

VII. Plaintiffs' Legal and Administrative Remedies

Plaintiffs filed this suit on May 23, 2006. Five months later, they filed a due process complaint with the School District. The due process complaint challenged Billy's IEPs for the 2006-07 school year and, after a due process hearing, the hearing officer found for the School District. The hearing officer also noted that he could not discern whether Plaintiffs also intended their due process complaint to challenge IEPs from 2005. Plaintiffs appealed the hearing officer's decision to a State Education Department state review officer (the "SRO"). The SRO found that there were procedural defects at the August 2005 CSE meeting (where Plaintiffs learned that school officials intended to terminate Billy's home instruction), and he awarded Plaintiffs ten months' of compensatory home services. (See Hicksville 56.1 Stmt. ¶¶ 45-49.)

VIII. This Lawsuit

In this action, Plaintiffs assert the following nineteen causes of action: (1) on behalf of Billy, a Section 1983 claim that all Defendants violated Billy's constitutional rights secured by the Fourth, Fifth and Fourteenth Amendments; (2) on behalf of the Parents, a Section 1983 Claim that all Defendants violated the Parents' right to a "free and 'appropriate public education'" secured by the Fifth and Fourteenth Amendments; (3) on behalf of Billy and the Parents, a Section 1983 claim that all Defendants conspired to deprive Billy of his rights in violation of the Fourteenth Amendment; (4) on behalf of Billy and his Parents, a claim under IDEA that Nassau BOCES and the Hicksville Defendants failed to provide Billy with a FAPE; (5) on behalf of Billy, a claim under the ADA that Nassau BOCES and the Hicksville Defendants discriminated against Billy on the basis of his disability and retaliated against Billy for his Parents' opposing the Defendants' actions; (6) on behalf of Billy, a claim under New York State Constitution Article XI, Section 1 that all Defendants deprived Billy of a "meaningful, appropriate or . . . fitting education"; (7) on behalf of Billy, a claim under state law against John Doe(s) for battery; (8) on behalf of Billy, a claim under state law against the Hicksville School District and Nassau BOCES asserting vicarious liability for battery; (9) on behalf of Billy, a claim under state law against John Doe(s) for assault; (10) on behalf of Billy, a claim under state law against the Hicksville School District and Nassau BOCES asserting vicarious liability for assault; (11) on behalf of Billy, a claim under state law against John Doe(s), the Hicksville School District, and Nassau BOCES for false imprisonment; (12) on behalf of Billy, a claim under state law against all Defendants (except Dr. Orenstein) for negligence; (13) on behalf of Billy, a claim under state law against the Hicksville School District and Nassau BOCES for negligent hiring and supervision; (14) on behalf of Billy and his Parents, a claim under state law against all Defendants for breach of contract; (15) on behalf of Billy and his Parents, a claim under state law against all Defendants for intentional infliction of emotional distress arising out of Defendants' confining Billy in the time-out room; (16) on behalf of the Parents, a claim under state law against all Defendants for intentional infliction of emotional distress arising out of the Parents' discovery of Billy's placement in the time-out room; (17) on behalf of Billy, a claim under state law against all Defendants for negligent infliction of emotional distress; (18) on behalf of the Parents, a claim under state law against all Defendants for negligent infliction of emotional distress; and (19) on behalf of Billy and his Parents, a claim against all Defendants for punitive damages.

For the reasons that follow, the Hicksville Defendants' and the BOCES Individuals' motions for summary judgment are GRANTED. Nassau BOCES' motion for summary judgment is GRANTED IN PART.


As discussed above, this case has two distinct parts. For ease of discussion, the Court first addresses Plaintiffs' claims arising out of Billy's confinement and then it considers the claims related to Billy's FAPE.

I. Standard of Review under Federal Rule of Civil Procedure 56 Summary judgment is only appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265, 273 (1986); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 213 (1986); McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); see also FED. R. CIV. P. 56(c). "In assessing the record to determine whether there is a genuine issue to be tried . . . the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." McLee, 109 F.3d at 134. The burden of proving that there is no genuine issue of material fact rests with the moving party. Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Com. & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)). Once that burden is met, the non-moving party must "come forward with specific facts," LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998), to demonstrate that "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," Anderson, 477 U.S. at 257, 106 S. Ct. at 2514-15, 91 L. Ed. 2d at 218. "Mere conclusory allegations or denials will not suffice." Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). And "unsupported allegations do not create a material issue of fact." Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).

II. Timeout Room Claims

Plaintiffs assert both federal and state law claims arising from Billy's confinement.

A. Federal Timeout Room Claims

Plaintiffs' Section 1983 claims allege that all Defendants violated Billy's constitutional rights by confining him in a dark, closet-sized timeout room without, among other things, adequate supervision and adequate safety measures for monitoring his physical and emotional health. (Compl. ¶ 100.)

1. Section 1983

Section 1983 provides, in relevant part, that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.

42 U.S.C. § 1983. To prevail on a claim under this statute, a plaintiff must establish: (1) that the defendant acted under color of state law; and (2) that as a result of the defendant's actions, the plaintiff suffered a deprivation of his or her rights or privileges as secured by the Constitution or laws of the United States. See Am. Mfr. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 985, 143 L. Ed. 2d 130, 143 (1999). "It is well-settled that [Section] 1983 does not create a federal right or benefit; it simply provides a mechanism for enforcing a right or benefit established elsewhere." Morris-Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153, 159 (2d Cir. 2005).

Before considering the merits of Plaintiffs' Section

1983 claims, the Court must clarify the underlying federal statutes or constitutional provisions at issue. Plaintiffs assert that Defendants violated Billy's Fourth Amendment right to be free from unreasonable seizures and his Fourteenth Amendment rights to substantive and procedural due process.*fn6 As an initial matter, under Graham v. Connor, Plaintiffs' Fourth Amendment and substantive due process claims are mutually exclusive. 490 U.S. 386, 394-95, 109 S. Ct. 1865, 1870-71, 104 L. Ed. 2d 443 (1989). Under Graham, the substantive due process analysis is inapplicable where the challenged governmental conduct is regulated by another, more specific constitutional amendment--in this case, the Fourth. Id. Thus, the Court must first determine whether a Fourth Amendment or substantive due process analysis applies to Billy's federal timeout room claims. The Court's research has unearthed conflicting views. Compare Rasmus v. Arizona, 939 F. Supp. 709, 717 (D. Ariz. 1996) (explaining that substantive due process could not be basis for a timeout room claim); with Doe v. S & S Consol. I.S.D., 149 F. Supp. 2d 274, 287 (E.D. Tex. 2001) (noting that substantive due process, not Fourth Amendment, formed basis for timeout room claims).

In the Court's view, the Fourth Amendment regulates the Defendants' alleged conduct vis-a-vis the timeout room and thus it, not substantive due process, applies to this case. It is well-settled that the Fourth Amendment limits the circumstances under which school officials may search students. See New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985). Case law addressing whether the Fourth Amendment similarly limits seizures in the schoolhouse context is relatively limited, however, especially in this Circuit. The Court is persuaded by the district courts in this Circuit that have analyzed school seizure claims under the framework set forth in TLO. See DeFelice ex rel. Defelice v. Warner, 511 F. Supp. 2d 241, 247 (D. Conn. 2007) (plaintiff's claim that she was confined to principal's office for 20-30 minutes by school employee who kept his hand on the doorknob for the duration of the meeting should be analyzed under Fourth Amendment reasonableness standard); Bisignano v. Harrison Central School Dist., 113 F. Supp. 2d 591, 596 (S.D.N.Y. 2000) (Fourth Amendment applies to claim that teacher forcibly detained student in a closet).

a. Fourth Amendment Claim

In this case, the relevant Fourth Amendment inquiry is whether there was a seizure and, if so, whether that seizure was reasonable. In the schoolhouse, a seizure is reasonable if it was (1) "justified at its inception" and (2) "reasonably related in scope to the circumstances which justified" the seizure in the first place." Bisignano, 113 F. Supp. 2d at 597 (quoting T.L.O., 469 U.S. at 341). In evaluating a challenged seizure, the Court reviews the totality of the circumstances. See Phaneuf v. Fraikin, 448 F.3d 591, 597 (2d Cir. 2006); Vassallo v. Lando, 591 F. Supp. 2d 172, 195 ...

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