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Licata v. Salmon

United States District Court, E.D. New York

January 12, 2015

JOSEPH LICATA, Plaintiff,
v.
KAREN B. SALMON and BAY SHORE SCHOOLS, Defendants.

OPINION & ORDER

SANDRA J. FEUERSTEIN, District Judge.

On April 25, 2014, pro se plaintiff Joseph Licata ("plaintiff') commenced this action against defendants Karen B. Salmon ("Salmon") and Bay Shore Schools ("the School District") (collectively, "defendants"), pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq.; the Rehabilitation Act of 1973 ("the Rehabilitation Act"), 29 U.S.C. § 792, et seq.; and the Civil Rights Act of 1871, 42 U.S.C. §§ 1983 ("Section 1983"). Pending before the Court are: (1) plaintiff's motion pursuant to Rule 65 of the Federal Rules of Civil Procedure for a preliminary injunction enjoining defendants from denying his son "[m]ini [b]us transportation [f]rom ACLD to [h]ome[;]" and (2) defendants' cross motion pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim for relief. For the reasons stated herein, the branch of defendants' cross motion seeking to dismiss the complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure is granted and, thus, plaintiff's motion is denied.

I. Background

A. Factual Background

1. Factual Allegations in the Complaint

Plaintiff's son is fourteen (14) years old, "is mentally retarded with autism and has [a] [psychiatric] disorder." (Complaint ["Compl."], ¶ III(C)). Plaintiff's son has an individualized education program ("IEP") with the School District which, according to plaintiff, includes his attendance in an "ACLD special education after school program" ("the ACLD program") (Id.)[1] The School District provides transportation to plaintiff's son from his school to the ACLD program, "[b]ut refuses to pick [him] up and take him home." (Id.) According to plaintiff, although Russell Endes ("Endes"), the School District's Director of Pupil Personnel, "tried to give [his son] the transportation home[, ] Karen Salmon said no." (Et.)

2. The IEP

Although the IEP approved by the School District's Subcommittee on Special Education on March 28, 2013 for the period from July 1, 2013 to June 27, 2014 includes multiple "special education programs and related services" to be provided by the School District to plaintiff's son, his attendance in the ACLD program is not included as such a program or service. (Declaration of Melissa L. Holtzer in Support of Defendants' Motion to Dismiss and in Opposition to Plaintiff's Order to Show Cause ["Holtzer Decl, "], Ex. B at 1-2). Rather, the only reference in the IEP to plaintiff's son's attendance in the ACLD program is in the section entitled "Student Information Summary" next to the heading "Special Alerts" which, inter alia, provides information about his medical condition(s) and the medication he takes at home and includes a notation that "student to attend after school program at YMCA 2x per week."[2] (Id. at 1). According to Endes, whose duties as the Executive Director of Pupil Personnel Services for the School District include being the chairperson of the School District's Committee on Special Education ("CSE"), (Endes Aff., ¶¶ 1-2), the ACLD program was mentioned as a "Special Alert" on plaintiff's son's IEP because the CSE "need[ed] to alert [his] teacher to the fact that [he] [would] be transported to the program, and not to his home, two days per week." (Endes Aff., ¶ 4).

In addition, two (2) School District forms entitled "I.E.P. Special Transportation for Special Needs Students Only, " both dated March 28, 2013, indicate, inter alia, that the School District would provide specialized transportation for plaintiffs son in a mini van for "behavior/safety reasons" with a "group driver assistant" so that he could attend summer services from July 1, 2013 until August 9, 2013, (Holtzer Decl., Ex. B at 16), and an "after school program at the YMCA 2x per week" in the Fall, beginning September 4, 2013.[3] (Id. at 17).

According to Endes, the School District considers the ACLD program "to be an afternoon day care situation, not an educational service." (Endes Aff., ¶ 3). The School District does not pay for plaintiff's son to attend the ACLD program, nor did its CSE recommend that he attend the ACLD program. (U) Moreover, Endes avers that the School District "transports [plaintiff's son] to the ACLD because it would ordinarily provide him with transportation home at the end of the school day[, ] * * * [but] is not responsible for transporting [him], or any other student, home from an after-school activity." (Id. at 6).

3. Plaintiff's Affidavit

In his unsworn affidavit submitted in support of his application for a preliminary injunction, plaintiff avers that he is "suffering serious immediate harm" because, inter alia: (1) his son's grandmother, who "was always there at ACLD to help pick him up[, ]" passed away on April 1, 2014; (2) since her death, his son "has to be [sic] increased supervised [sic] during bus pickup in the morning and after school and mainly at ACLD after school program[;]" (3) "[a]s a parent [plaintiff] cannot give [his son] the transportation and aide services he needs at ACLD[;]" and (4) "[w]ithout appropriate mini bus transportation home[, ] [his son] will eventually run away." (Affidavit of Joseph Licata ["Plf. Aff."] at 2).

In the section of the form affidavit asking plaintiff to "state why [he] think[s] [he] will most likely win th[is] case in the end[, ]" plaintiff wrote:

"Facts from [his son's] psychiatrist that has over 30 years experience and unsterstand [sic] ACLD ben[e]fits. 1973 Rehabilitation Act 504 automatically protects [his son]."

(Plf. Aff. at 2).

In the section of the form affidavit asking plaintiff to state "why [he] think[s] the harm to [him] is more serious than any harm [defendants] will suffer if the judge orders a preliminary injunction * * *[, ]" plaintiff wrote: "School attorneys, Karen Salmon do not have a mentally ...


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