United States District Court, E.D. New York
ALISSA CALANDRINO on behalf of her minor child, J.C., Plaintiff,
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
Y. Shields United States Magistrate Judge.
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
“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
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”) 
(“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.
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.
2018 - 2019 School Year
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.
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.
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.
commenced this lawsuit on January 22, 2019. On March 3, 2019,
an initial conference was held before the District Court. DE
. On March 19, 2019, Plaintiff filed an Amended
Complaint. DE .
13, 2019, Defendants filed their motion to dismiss. DE .
Upon briefing of the motion, it was referred to this Court
for report and recommendation. See Order dated