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Frank v. Sachem School District

United States District Court, E.D. New York

February 5, 2015

ANNA FRANK, as next friend pursuant to Fed. R. Civ. P.17(c) for infant plaintiff Michael Frank Jr., Plaintiff,

For the Plaintiff: William M. Brooks, Esq., Of Counsel, Civil Rights Clinic, Touro College Jacob D Fuchsberg Law Center, Central Islip, NY.

For the Defendant Sachem School District: David Ferdinand Kwee, Esq., Of Counsel, Ingerman Smith, L.L.P, Hauppauge, NY.

For Christopher M. Gatto, Esq., Assistant County Attorney, Suffolk County Attorney's Office, Hauppauge, NY.


ARTHUR D. SPATT, United States District Judge.

On January 6, 2014, Anna Frank (the " Plaintiff" ), as next friend pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 17(c) for the Infant Plaintiff, Michael Frank, Jr. (" MF" ), commenced this action for compensatory and punitive damages in connection with the decision of the Defendant Sachem School District (" Sachem" ) to remove MF from Grundy Elementary School and place him into the Little Flower Residential Treatment Center, a residential treatment center for emotionally disturbed children. In particular, the Plaintiff asserts claims against Sachem under (i) Title II of the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12132; (ii) Section 504 of the Rehabilitation Act (the " Rehabilitation Act" ), 29 U.S.C. § 794(a); (iii) the Civil Right Acts, 42 U.S.C. § 1983, for alleged violations of MF's right to Procedural Due Process under the Fourteenth Amendment of the Constitution; and (iv) the Individuals with Disabilities Act (" IDEA" ), 20 U.S.C. § 1400, et seq. In addition, the Plaintiff asserts a claim against the Defendant Suffolk County (" Suffolk County" ) under the ADA.

Presently before the Court are (i) Sachem's motion to dismiss the Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6); and (ii) Suffolk County's motion to dismiss the Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6).

For the reasons set forth below, the Court grants the Defendants' motions in their entirety.


Unless otherwise noted, the Court draws the following facts from the Plaintiff's complaint and construes them in the light most favorable to the Plaintiff.

A. The Parties

MF is currently sixteen years old and a resident of Suffolk County, New York. (Compl. at ¶ ¶ 1, 16; Kwee Decl., Ex. J.) He was approximately twelve years old on May 16, 2011, when he was transferred to the Little Flower Residential Treatment Center (" Little Flower" ). The Plaintiff is MF's natural birth mother and a resident of Suffolk County. (Compl. at ¶ 1.)

As described below, Michael Frank, Sr., MF's father, was involved in a divorce proceeding with the Plaintiff and was awarded temporary custody of MF from January 1, 2009 to June 22, 2012. (Id. at ¶ ¶ 26, 81.) Michael Frank is not a party to this action.

The Defendant Sachem is a school district located in Suffolk County, New York, which had authority to make decisions regarding MF's education. (Id. at ¶ 1.)

The Defendant Suffolk County is a municipal entity that receives federal financial assistance and was responsible for paying the expenses and costs related to MF's treatment at Little Flower. (Id. at ¶ 3.)

B. The Provision of Special Education Services under Federal and New York Law

The IDEA requires states receiving federal funding to provide a " free appropriate public education" to children with disabilities. 20 U.S.C. § 1412(a)(1)(A). A free appropriate public education consists of special education and related services that are provided in accordance with an individualized education program (" IEP" ). 20 U.S.C. § 1401(9). The IEP is a written document that " sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." K.H. v. New York City Dep't of Educ., No. 12-CV-1680 (ARR), 2014 WL 3866430, at *1 (E.D.N.Y. Aug. 6, 2014) (quoting Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)).

The IEP must be developed by a team " including the child's parents, teachers, representatives of the district, and, where appropriate, the child." Id. (citing 20 U.S.C. § 1414(d)(1)(B)). In New York, this team is referred to as the Committee on Special Education (" CSE" ).

The IDEA also established procedural safeguards for the parents of a child with special needs. 20 U.S.C. § 1415. In particular, the parent has the right to bring a complaint " with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." Id. at § 1415(f). If the school district does not resolve the complaint, the parent has a right to a " due process hearing." Id.

New York Education Law (" NYEL" ) § 4404 provides for two levels of administrative review. First, a local school district appoints an impartial hearing officer (" IHO" ) to conduct a Due Process hearing. N.Y. Educ. Law § 4404(1)(a) (McKinney). Second, either party can appeal the IHO's decision to a State Review Officer (" SRO" ). N.Y. Educ. Law § 4404(2).

Subject to exhaustion and statute of limitations requirements described in more detail below, the IDEA provides that " [a]ny party aggrieved by the findings and decision made" in the administrative due process proceedings may bring a civil action in federal court " with respect to the complaint presented" in the administrative proceedings. Piazza v. Florida Union Free Sch. Dist., 777 F.Supp.2d 669, 679 (S.D.N.Y. 2011) (quoting 20 U.S.C. § 1415(i)(2)(A)).

C. MF's Family and Educational Circumstances

Prior to January 2010, MF attended Hiawartha Elementary School and was an above-average student who did not receive special education services. (Compl. at ¶ ¶ 16-17.)

In February 2008, MF's parents separated, and thereafter began a highly contested divorce proceeding. (Id. at ¶ 16.) His parents shared custody prior to January 1, 2009. (Id. at ¶ ¶ 19, 26.)

After MF's parents separated, the Suffolk County Department of Social Services' Child Protective Service investigated and brought charges against each of them for abuse and neglect. (Id. at ¶ 22.) According to the complaint, neither of them were convicted of the charges, though the Plaintiff alleges that Michael Frank resolved one of the charges against him by a negotiated settlement. (Id. at ¶ 23-25.)

On January 1, 2009, the Suffolk County Supreme Court awarded temporary custody of MF to his father. (Id. at ¶ 26.)

The complaint also alleges that when living with his father, MF " openly but passively resisted completing any school work." (Id. at ¶ 20.) However, when living with his mother, he " completed all his school work without difficulty . . . and received excellent grades." (Id. at ¶ 21.) As a result of his continuing difficulties at school, Sachem requested that MF be evaluated by Dr. Jeffrey Snarr, a psychologist. (Id. at ¶ ¶ 20, 29.)

According to the complaint, Dr. Snarr furnished a report to Sachem regarding his evaluation of MF. (Id. at ¶ ¶ 30-31.) In the report, he indicated that MF did not engage in " disruptive, violent, or self-injurious behavior" but was having difficulties at school as a result of his relationship with his father. (Id. 28, 30.)

On December 10, 2009, the Suffolk County Supreme Court ordered that MF be removed from his father's home temporarily and placed into the Little Flower Residential Treatment Center (" Little Flower" ) to receive further psychiatric evaluation and in-patient treatment. (Id. at ¶ 32.)

Little Flower is a residential treatment center and day school located in Suffolk County. (Id. at ¶ 34.) Patients who live in the residential treatment center receive individual and group therapy. (Id.) According to the complaint, Little Flower is a " locked facility from which patients are unable to leave," and " most of the patients . . . also receive psychotropic medications to treat serious mental illness." (Id.)

In December 2009, Dr. Bernard Hoffman, a psychiatrist at Little Flower, performed a diagnostic exam on MF. (Id. at ¶ ¶ 35-36.) The Plaintiff alleges that Dr. Hoffman concluded that MF had " above average" cognitive and verbal functioning. (Id. at ¶ 35.) However, Dr. Hoffman diagnosed MF with posttraumatic stress disorder (" PTSD" ) resulting from the domestic dispute regarding his parents. (Id. at 35-36.) However, he determined that MF did not need medication for this condition. (Id.) In addition, Dr. Hoffman recommended that Sachem conduct an investigation into whether Michael Frank abused MF. (Id. at ¶ 36.)

On January 28, 2010, the Suffolk County Supreme Court ordered that MF be discharged from Little Flower, and MF was placed back into his father's care. (Id. at ¶ 37.) In addition, the court ordered that MF transfer from Hiawatha Elementary School to Grundy Elementary School (" Grundy" ) for the remainder of the 2010 school year. (Id. at ¶ 38.) While at Grundy, MF received special education services. (Id. at ¶ 40.)

D. MF's 2011 Transfer to Little Flower

In January 2010, following his transfer to Grundy, MF " continued to passively resist completing assignments and participating in classroom activities" in an effort to be removed from his father's care. (Id. at ¶ 46.) According to the complaint, MF was " terrified of his father" who was " physically, emotionally, and verbally abusive to him." (Id. at ¶ 48.)

On March 21, 2011, the Sachem CSE held a meeting to discuss MF's special education needs. (Kwee Decl., Ex. B-9.) At this meeting the CSE classified the Plaintiff as " emotionally disturbed" and recommended that he be placed at Little Flower for the 2011-2012 school year. (Id.) According to the IEP:

[On March 21, 2011] The CSE convened to discuss an annual review for [the Plaintiff]. Little Flower staff reported that the [Plaintiff's] functioning has been inconsistent. He is currently failing his courses[,] which is highly related to emotion and behavioral difficulties. The CSE recommended continuation at Little Flower for the summer and 2011-2012 school year. Mrs. Frank advocated for his placement at Little Flower. Mr. Frank was in disagreement at this time. Parents have continued court involvement related to custody and divorce proceedings. The CSE may reconvene to address ongoing consideration for [MF's] welfare.

(Id .)

E. The Plaintiff's Due Process Challenge to the CSE's Decision

In the months following the March 21, 2011 meeting, the Plaintiff appears to have changed her mind regarding MF's placement at Little Flower because on May 18, 2011, she filed a Due Process complaint against Sachem pursuant to the procedural process set forth in IDEA § 1415 and NYEL § 4404, in which she (i) requested an impartial hearing and a stay of the CSE's decision to place MF at Little Flower; (ii) reimbursement for certain gas expenses in driving MF to school; and (iii) a copy of MF's special education records. (Kwee Decl., Ex. B-I.)

On May 20, 2011, Mindy Wolman (" Wolman" ) was appointed as an IHO to review the Plaintiff's Due Process complaint. (Id. at 1.)

On May 23, 2011, CSE held another meeting to discuss the Plaintiff's objections to the CSE's decision. (Kwee Decl., Ex. I.) At the meeting, Michael Frank consented to the CSE's decision to transfer MF to Little Flower, and the Plaintiff voiced her disapproval of MF's transfer to Little Flower. (Id.; see also Compl. at ¶ 56.) Despite the Plaintiff's objections, the CSE decided not to alter its decision to transfer MF to Little Flower. (Id.) As a result, on May 26, 2011, MF entered the residential treatment center at Little Flower. (Id. at ¶ 63.)

Dr. Hoffman, the psychiatrist at Little Flower, performed a mental status examination of MF. (Id. at ¶ 43.) According to the complaint, Dr. Hoffman's evaluation found " no evidence [that MF had] hallucinations or delusions" or " suicidal or homicidal ideations." (Id. at ¶ 44.) In addition, Dr. Hoffman allegedly found that MF did " not present any serious overt behavior[] problems." (Id. at ¶ 45.) However, Dr. Hoffman concluded that MF " acted out when he was confronted with the traumatic situation of his parent's divorce." (Id. at ¶ 44.)

On May 28, 2011, Sachem filed a letter requesting that Wolman dismiss the Plaintiff's Due Process complaint. (Id.) In particular, Sachem argued that the Plaintiff lacked standing to bring a Due Process challenge because Michael Frank, not the Plaintiff, had sole custody of MF at that time. (Id.)

On June 13, 2011, the Plaintiff filed an amended Due Process complaint requesting an impartial hearing and a stay of Sachem's decision to place MF at Little Flower. (Kwee Decl., Ex. B-V.) Michael Frank again did not join in the Plaintiff's amended complaint. (See Compl. at ¶ 53.)

On June 14, 2011, Sachem renewed its motion to dismiss the Plaintiff's Due Process complaint on standing grounds. (Kwee Decl., Ex. B-VI.) In addition, Sachem noted that on June 6, 2011, the Plaintiff and Michael Frank signed a stipulation relating to their divorce proceeding before Judge Andrew A. Crecca in the Suffolk County Supreme Court. (Kwee. Decl., Ex. B-VI-1). According to the stipulation, the parties agreed that " [MF's] father would continue to have temporary custody of [MF]" and that MF would " not be removed from [Little Flower] unless and until it is recommended by Little Flower." (Id.)

On August 11, 2011, Wolman held a hearing to discuss (i) the parties' arguments with respect to standing; and (ii) whether she should appoint a guardian ad litem for MF in light of the disagreement between the Plaintiff and Michael Frank as to MF's best interests. (Kwee Decl., Ex. C., Tr. 10:7-12.) At the hearing, MF was represented by Michelle Caldera (" Caldera" ). (Id.) The Plaintiff also attended the hearing with Nancy S. Erickson, her advocate. (Id.)

At the hearing, Wolman found that the appointment of a guardian ad litem for MF would be appropriate because she found that MF's parents have " very different views as to what is appropriate for him in terms of his educational placement." (Id. at Tr. 48:11-23; 49: 9-15.) However, Wolman concluded that Caldera could not act as MF's guardian ad litem because Caldera had previously represented the Plaintiff. (Id. at Tr. 51:7-12.) Thus, Wolman found that a new guardian ad litem would need to be appointed for MF.

On August 18, 2011, Wolman held a second hearing with respect to Sachem's motion to dismiss. (Kwee Decl., Ex. D.) Wolman noted that a guardian ad litem had not yet been appointed for MF. (Id. at Tr. 119:8-12.) However, she concluded that the hearing could proceed without appointing one because " the district's motion to dismiss is based on standing and is not the type of substantive issue that the services of a guardian ad litem are necessary for." (Id. at Tr. 119:20-120:14.)

On September 28, 2011, Wolman rendered a decision dismissing the Plaintiff's Due Process claims relating to MF's transfer to Little Flower and reimbursement of gas expenses. (Id. at 6.) Wolman found that the Plaintiff did not have standing to make a claim with respect to either of these issues because it is " undisputed that [MF's] ...

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