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B.J.S., Individually and On Behalf of N.S., A Child With A Disability v. the State Education Department/The University

August 18, 2011


The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge




This action was referred to the undersigned by Honorable Richard J. Arcara on September 10, 2009, for all pretrial matters. The case is presently before the court on Defendants' motions to dismiss filed on April 5, 2010, by Springville-Griffith Institute Central School District Board of Education (Doc. No. 49), and on October 20, 2010, by the State Education Department/University of the State of New York, Kelly and Mills (Doc. No. 61).*fn1


Plaintiff B.J.S. ("Plainitff" or "B.J.S."), commenced this action on July 13, 2007, by filing a complaint alleging on behalf of herself and her child, N.S. ("N.S."), then enrolled in Defendant Springville-Griffith Institute Central School District ("the School District"), that Defendants New York State Department of Education ("NYSED"), NYSED Commissioner Richard P. Mills ("Commissioner Mills" or "Mills"), and NYSED appointed State Review Officer ("SRO") Paul F. Kelly ("SRO Kelly" or "Kelly") (together, "State Defendants"), denied N.S. a free and appropriate public education ("FAPE"), for the 2005-2006 school year in violation of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("the IDEA" or "the Act"). Plaintiff in this action specifically seeks to have annulled the March 17, 2007 decision rendered by SRO Kelly ("SRO Decision"), overruling the decision rendered by the School District's appointed Impartial Hearing Officer ("IHO") James P. Walsh ("IHO Walsh" or "Walsh"), a nonparty to this action, on December 17, 2006, and amended on December 28, 2006 ("IHO Decision"). The IHO Decision was favorable to Plantiff, whereas the SRO Decision was not.

N.S. was first determined by the School District's Committee on Special Education ("CSE"), during the 2002-2003 school year to be autistic and, thus, a student in need of special education and related services. As such, the School District's CSE was required to develop for N.S. an Individualized Education Program ("IEP") which, if correctly followed, would provide N.S. with the FAPE mandated by the IDEA. During the 2002-2003 school year, N.S. was educated, pursuant to an Individualized Education Program ("IEP") in a School District Third Grade inclusion setting and made substantial progress in all academic and social areas. The IEP for the 2005-2006 school year at issue in this action was not in place until April 4, 2006. Throughout the period relevant to this action, N.S. had been educated pursuant to a "Pendency Plan," defined as the most recent agreed upon IEP, specifically, the IEP for the 2003-2004 school year, despite the fact that such IEP was found by both an IHO and SRO to be both procedurally and substantively inappropriate and, as a result, annulled.

Meanwhile, on April 4, 2006, Plaintiff commenced an administrative due process proceeding with the School District, regarding the School District's adoption of both the January 19, 2006 and March 28, 2006 IEPs for the 2005-2006 school year, challenging both the appropriateness of the 2005-2006 IEP, as well as the School District's failure to provide N.S. with a Pendency Program consistent with an FAPE. The School District, on April 4, 2006, appointed Walsh as the IHO to preside over administrative hearings in connection with the matter. On September 12, 2006, Plaintiff filed another administrative complaint requesting an Impartial Due Process Hearing ("first impartial hearing") alleging the failure by the School District and the CSE to provide N.S. with an IEP for the 2006-2007 school year.*fn3

The first impartial hearing lasted nine days, convening on June 2, 2006, and ending on October 19, 2006. In his IHO Decision, issued on December 28, 2006, IHO Walsh found the substantive portions of the 2005-2006 IEP rendered the IEP defective, and ordered a number of steps to be taken by Plaintiff and the School District to ensure N.S.'s rights under the IDEA to an FAPE were protected. The School District appealed the IHO to the NYSED where it was reviewed by SRO Kelly who, on March 19, 2007, issued the SRO Decision, annulling the IHO Decision, and remanding the matter to the School District's CSE to develop and implement an appropriate IEP for N.S.

Meanwhile, Plaintiff's administrative challenge to the IEP for the 2006-2007 school year continued, with an impartial hearing held on August 10, 2007 ("the second impartial hearing"), at the School District's offices before Impartial Hearing Officer Paul T. Bumbalo ("IHO Bumbalo"). The School District was represented at the second impartial hearing by Ryan L. Everhart, Esq. ("Everhart"), who also represents the School District in this action. During this impartial hearing, Plaintiff advised that she had filed an action in this court, United States District Court for the Western District of New York, appealing the SRO Decision. Hearing Tr.*fn4 at 357. Everhart inquired whether Plaintiff served the School District in connection with the federal action, to which Plaintiff responded, "I'm not required to. The action is only against the SRO." Id. Everhart then advised, "If you're appealing an SRO decision, you need to serve the necessary parties, the School District." Id. Plaintiff replied, "No, I've already checked, researched and discussed it with the Courts and they told me not to give it to the District. But I did bring proof that it was filed in District Court." Id.

On July 10, 2008, Plaintiff commenced a similar action in this court, 08-CV-00513A(F) ("the 2008 Action"), alleging her child, N.S., was denied an FAPE for the 2006-2007 school year in violation of the IDEA. Despite Plaintiff's statements to Everhart at the second impartial hearing that Plaintiff did not believe the School District was a proper defendant to the instant action, Plaintiff sued, in the 2008 Action, the same State Defendants sued in the instant action, as well as the School District.

On December 7, 2009, Plaintiff moved to file an amended complaint to join the School District as a necessary and indispensable defendant to this action, attributing the failure to earlier name the School District as a Defendant to the instant action to a misinterpretation of an amended provision of the IDEA governing judicial review of an SRO decision. By order filed February 25, 2010 (Doc. No. 40), the undersigned granted Plaintiff's motion to amend, directing Plaintiff to file and serve the amended complaint within 20 days. Accordingly, on March 12, 2010, Plaintiff filed the Amended Complaint (Doc. No. 43) ("Amended Complaint"), seeking relief from the SRO Decision based on numerous alleged errors in procedure, fact, and law, and requesting the School District comply with the IHO Decision.

On March 22, 2010, Plaintiff filed an Affirmation of Service (Doc. No. 44), executed on March 16, 2010, by Sheila Barr ("Barr"), who affirmed she had served a copy of the Amended Complaint on the School Board by hand-delivering the papers on Board of Education member Jeremiah Kane ("Kane"). Another Affirmation of Service (Doc. No. 45), also filed on March 22, 2010, establishes that on March 17, 2010, one Paul Davidson served the State Defendants with a copy of the Amended Complaint by mailing the papers to Assistant New York Attorney General Darren Longo ("Longo").

On April 5, 2010, Defendant School District filed a motion to dismiss the Amended Complaint (Doc. No. 49) ("School District's motion"), supported by the attached Affidavit of Ryan L. Everhart, Esq. ("Everhart Affidavit"), with Exhibit A ("Everhart Affidavit Exh. A"),*fn5 and the Affidavits of Jeremiah Kane ("Kane Affidavit"), Kathy Tucker ("Tucker Affidavit"), and Rochelle Casselman ("Casselman Affidavit'). Defendant School District also filed on April 5, 2010, the Memorandum of Law in Support of Springville-Griffith Institute Cental School District Board of Education's Motion to Dismiss (Doc. No. 50) ("School District's Memorandum").

On April 9, 2010, Plaintiff moved to proceed in forma pauperis (Doc. No. 53). By Text Order entered April 23, 2010 (Doc. No. 54), the undersigned granted Plaintiff's motion to proceed in forma pauperis, and appointed Mary E. Maloney, Esq. ("Maloney") to represent Plaintiff in this action.

On October 20, 2010, State Defendants filed a motion to dismiss the Amended Complaint (Doc. No. 61) ("State Defendants' motion"), for failure to state a claim, and the Memorandum of Law in Support of State Defendants' Motion to Dismiss the Amended Complaint (Doc. No. 62) ("State Defendants' Memorandum"), with an attached exhibit ("State Defendants' Exhibit").

On January 7, 2011, Maloney moved for permission to withdraw as Plaintiff's attorney (Doc. No. 66). On March 4, 2011, the undersigned granted Maloney's request to withdraw as Plaintiff's counsel. On March 18, 2011, the undersigned appointed Frank T. Housh, Esq. ("Housh"), as Plaintiff's attorney.

Plaintiff, represented by Housh, filed several motions requesting extensions of time to file responses to the School District and State Defendants' pending motions to dismiss, including on June 13, 2011 (Doc. No. 81), June 24, 2011 (Doc. No. 83), and July 8, 2011 (Doc. No. 85), and the undersigned granted each request, finally extending Plaintiff's time to respond to July 15, 2011 (Doc. No. 89). On July 27, 2011, Plaintiff filed in opposition to the School District's motion, the Affirmation of Frank T. Housh in Response to Defendant's Motion to Dismiss (Doc. No. 91) ("Housh Affirmation"), attached to which are the Affidavits of Plaintiff (Doc. No. 91-1) ("Plaintiff's Affidavit'), and Sheila J. Barr (Doc. No. 91-2) ("Barr Affidavit").

By letter to the court dated July 28, 2011, Assistant New York Attorney General Darren Longo (Doc. No. 92) ("Longo letter"), advised the undersigned that the Housh Affirmation does not address any of the issues raised by State Defendants in support of State Defendants' motion, requesting State Defendants' motion be treated as unopposed, with all claims against State Defendants dismissed. On August 5, 2011, the School District filed in further support of its motion the Reply Declaration of Ryan L. Everhart, Esq. (Doc. No. 93) ("Everhart Reply Declaration"), and the Memorandum of Law in Reply to Plaintiff's Opposition to Defendants [sic] Motion to Dismiss (Doc. No. 94) ("School District's Reply"). Oral argument was deemed unnecessary. Based on the following, the School District's motion, insofar as it seeks to dismiss for improper service, is DISMISSED as moot, and Plaintiff is GRANTED an extension of time to effect proper service on Defendant School District and, alternatively, insofar as it seeks to dismiss the Amended Complaint as untimely, should be DENIED; State Defendants' motion should be GRANTED.



To assist in understanding how this matter is before the court, a brief description of the IDEA is provided. The IDEA's primary purpose is to ensure students with disabilities receive a free appropriate public education ("FAPE"), emphasizing special education and related services designed to meet such students' unique needs and prepare them for further education, employment, and independent living. 20 U.S.C. § 1400(d)(1)(A); Frank G. v. Board of Education of Hyde Park, 459 F.3d 356, 371 (2d Cir. 2006). An FAPE includes both special education and related services designed to meet the student's unique needs according to a written individualized education program ("IEP"). 20 U.S.C. § 1414(d). Each student's IEP is to be developed by the relevant School District's Committee on Special Education ("CSE"), and must be reasonably calculated to enable the student to receive educational benefits. Id.

A party may commence an administrative proceeding challenging an IEP as failing to provide an FAPE by filing a written complaint with the relevant school district, which will require an administrative hearing before an Impartial Hearing Officer ("IHO"), selected from a list of approved IHOs maintained by the school district. 20 U.S.C. § 1415(f). Any party wishing to seek relief from the IHO's decision may appeal the IHO's findings and decision to the State educational agency, upon which a State Review Officer ("SRO") is required to conduct an impartial review of the IHO's decision. 20 U.S.C. § 1415(g). If not appealed, the IHO's decision is final. 20 U.S.C. § 1415(i)(1)(A). Further, the SRO's decision is final unless a party to that decision commences an action in federal district court pursuant to 20 U.S.C. § 1415(i)(2)(A). 20 U.S.C. § 1415(i)(1)(B). Because the instant action seeks review of the SRO's Decision, it is before the court pursuant to 20 U.S.C. § 1415(i)(2)(A) ("§ 1415(i)(2)(A)").

2. Motions to Dismiss

Defendant School District moves to dismiss the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(5) for improper service and pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim. State Defendants move to dismiss the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim and pursuant to Rules 12(b)(6) and 21 on the basis that State Defendants are not proper parties to this action.

A. School District's Motion

The School District seeks dismissal of the Amended Complaint because Plaintiff herself attempted to effectuate service of the Amended Compliant in violation of Fed.R.Civ.P. 4(c)(2), and Plaintiff failed to serve a Summons along with the Amended Complaint. School District's Memorandum at 3-5. The School District alternatively argues for dismissal of the Amended Complaint as time-barred because it was not commenced within four months of the March 19, 2007 SRO Decision, id. at 5-6, and the Amended Complaint's claims asserted against the School District do not, under Fed.R.Civ.P. 15(c), relate back to the original Complaint, in which the School District was not named as a Defendant, id. at 6-10.

1. Service of Process

The School District argues the Amended Complaint should be dismissed based on defective service of process, including that Plaintiff personally served the Amended Complaint on School Board member Jeremiah Kane ("Kane"), in violation of Fed.R.Civ.P. 4(c)(2), permitting only non-parties to serve process. School District's Memorandum at 3-4. The School District further maintains that even assuming, arguendo, that Barr, rather than Plaintiff, served the, Amended Complaint on Kane, as Plaintiff maintains, such service was nevertheless defective because Kane was not provided with the Summons as required. Id. at 4. As such, the School District urges the court to dismiss the Amended Complaint based on Plaintiff's failure to effect proper service.*fn6 Plaintiff argues in opposition that whether the School District was properly served is a question of fact that cannot be decided by the court absent an evidentiary hearing on the matter. Housh ...

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