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Calandrino v. The Farmingdale Union Free School District

United States District Court, E.D. New York

December 18, 2019

ALISSA CALANDRINO on behalf of her minor child, J.C., Plaintiff,
v.
The FARMINGDALE UNION FREE SCHOOL DISTRICT; the BOARD OF EDUCATION OF THE FARMINGDALE UNION FREE SCHOOL DISTRICT; MICHAEL GOLDBERG; RALPH MORALES; SUZANNE D'AMICO; MARIO ESPINOSA; ANTHONY GIORDANO; KATHY LIVELY; ARLENE SOETE; LUIS PENA; DONALD CASSIDY; YUVELIN BALTAR; and MARISA MOSCATO, Defendants.

          REPORT AND RECOMMENDATION

          Anne Y. Shields United States Magistrate Judge.

         This is an action in which Plaintiff Alissa Calandrino (“Calandrino” or “Plaintiff”), on behalf of her minor child, J.C., seeks compensatory damages from defendants Farmingdale Union Free School District (“the District”), Board of Education of the Farmingdale Union Free School District (“the Board”), Michael Goldberg (“Goldberg”), Ralph Morales (“Morales”), Suzanne D'Amico (“D'Amico”), Mario Espinosa (“Espinosa”), Anthony Giordano (“Giordano”), Kathy Lively (“Lively”), Arlene Soete (“Soete”), Luis Pena (“Pena”), Donald Cassidy (“Cassidy”), Yuvelin Baltar (“Baltar”), and Marisa Moscato (“Moscato”) (collectively “Defendants”) due to alleged violations of the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act (“Section 504”), the Equal Protection Clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983, claims under New York State Human Rights Law § 296 (“NYSHRL”), and for negligence, negligent infliction of emotional distress, the Dignity for All Student Act (“DASA”), and negligent supervision/hiring.

         Presently before this Court, upon referral by the Honorable Sandra J. Feuerstein for Report and Recommendation, is Defendants' motion pursuant to Rule 12 of the Federal Rules of Civil Procedure to dismiss Plaintiff's Amended Complaint. See Docket Entry herein (“DE”) [28] (“Motion to Dismiss”); see Electronic Order dated May 14, 2019 (referring motion). For the reasons set forth below, this Court respectfully recommends that the Motion to Dismiss be granted.

         BACKGROUND

         I. Facts

         A. J.C.

         Plaintiff Calandrino is the mother of J.C., an eighth-grade student at Weldon E. Howitt Middle School who has been enrolled since September 2016. Amended Complaint (“Am. Compl.) ¶¶ 23-24. J.C. has Type I Diabetes. Id. ¶ 22. Since October 2018, J.C. utilizes a Freestyle Libre Continuous Glucose Monitor to monitor his blood glucose levels via a mobile application on his cell phone. Id. ¶¶ 26-27. Plaintiff asserts that this mobile application makes J.C.'s cell phone a medical device and provides him with increased ability to prevent hypoglycemia and hyperglycemia. Id. ¶ 27. J.C. has had a 504 Plan with Defendants providing him with accommodations for his Type I Diabetes since August 2015. Id. ¶¶ 29.

         B. 2018 - 2019 School Year

         At the beginning of the 2018-2019 school year, Plaintiff and her husband requested that J.C.'s 504 Plan be updated to permit him the use of his cell phone at any and all times throughout the school day, and during school related activities, in order for him to text message his parents in order to safely manage his Type 1 Diabetes. Am. Compl. ¶ 30. On September 6, 2018, Plaintiff received a new 504 Plan for J.C. which states that “[J.C. may request permission of school staff to check his cell phone for parent messages pertaining to his diabetes. [J.C.] must be given permission to visit any of the administrative offices to use his cell phone or an office phone to call his parents regarding his diabetic condition under the supervision of school staff.” Id. ¶ 31.

         On September 14, 2018, Plaintiff and her husband met with the District's Committee on Special Education (“CSE”) to request that the committee modify the language contained in J.C.'s 504 Plan pertaining to the use of his cell phone to allow him the use of his cell phone at any and all times throughout the school day for the purposes of text messaging his parents for guidance in the treatment of his Type 1 Diabetes, as well as to monitor his blood glucose levels via the mobile application. Am. Compl. ¶ 33. The request was not granted. Id. Thereafter, Plaintiff attempted on numerous occasions to contact Defendants to modify the language in J.C.'s 504 Plan pertaining to the use of his cell phone to allow J.C. to use the cell phone at any and all times throughout the school day for the purposes of monitoring his blood glucose levels. Id. ¶¶ 34, 36-37.

         On March 1, 2019, Defendants agreed to modify J.C.'s 504 Plan. Am. Compl. ¶ 40. The 504 Plan was modified to allow J.C. to utilize his cell phone at any time throughout the school day for the purposes o managing his Type 1 Diabetes, including the mobile application to monitor his blood sugars, as well as to contact his parents for diabetes management decisions without having to visit school administrative offices. Id.

         II. Procedural History

         Plaintiff commenced this lawsuit on January 22, 2019. On March 3, 2019, an initial conference was held before the District Court. DE [23]. On March 19, 2019, Plaintiff filed an Amended Complaint. DE [24].

         On May 13, 2019, Defendants filed their motion to dismiss. DE [28]. Upon briefing of the motion, it was referred to this Court for report and recommendation. See Order dated 05/14/2019.

         III. Plaintif ...


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