B.H. v. Southington Bd. of Educ.

273 F.Supp.2d 194

B.H., et. al., Plaintiffs, v. SOUTHINGTON BOARD OF EDUCATION, et al., Defendants.

No. CIV.A. 3:02 CV 252 (SRU).

United States District Court, D. Connecticut.

July 25, 2003.

David C. Shaw, Andrew Alan Feinstein, Law Offices of David C. Shaw, Bloomfield, CT, for plaintiffs.

Lawrence J. Campane, Mark J. Sommaruga, Nicole Alexandra Bernabo, Sullivan, Schoen, Campane & Connon, Hartford, CT, Nyle Kimrick Davey, Thomas M. Fiorentino, Attorney General's Office, Hartford, CT, for defendants.

RULING ON DEFENDANTS' MOTIONS TO DISMISS

UNDERHILL, District Judge.

B.H., a disabled minor, by and through his parents, Mr. and Mrs. C.H. ("the parents") (collectively, "the plaintiffs"), bring this action pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1415 et seq. ("IDEA"), and 42 U.S.C. § 1983. The plaintiffs allege that the defendants, the Southington Board of Education and its employees, Frances J. Hagg and Anthony D'Angelo¹ (collectively, "the Board Defendants"), and the Connecticut Department of Education, through its Commissioner Theordore Sergi (collectively, "the State Defendants"), violated B.H.'s rights under the IDEA in connection with his education in the Southington School District. The plaintiffs seek monetary and equitable relief. Pending before the court are the State and Board Defendants' motions to dismiss pursuant to Rule 12(b)(6) and Rule 12(b)(1) of the Federal Rules of Civil Procedure. For the following reasons, the State Defendants' motion to dismiss is granted and the Board Defendants' motion to dismiss is granted in part, and denied in part.

I. BACKGROUND

A. The Statutory Scheme of the IDEA

The IDEA was intended as an "an ambitious federal effort to promote the education of handicapped children" by requiring states that receive funding from Congress to provide "all children with disabilities" with a "free appropriate public education." ("FAPE"). M.C. ex rel. Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 62 (2d Cir.2000); 20 U.S.C. § 1412(a)(1)(A). "This `free appropriate public education' must include `special education and related services' tailored to meet the unique needs of the particular child, 20 U.S.C. § 1401(8), and must be `reasonably calculated to enable the child to receive educational benefits' ...." Voluntown Bd. of Educ., 226 F.3d at 62. The particular educational needs of a disabled child and the services required to meet those needs must be set forth at least annually in a written individualized education plan ("IEP").² A.S. ex rel. P.B.S. v. Board of Educ. of Town of West Hartford, 245 F.Supp.2d 417, 419 (D.Conn.2001); 20 U.S.C. § 1414(d)(4)(A)(i).

The IDEA also requires states to enact various procedural safeguards to ensure that the child is receiving a FAPE, and that, if he is not, avenues are available to redress any problems. Cordero by Bates v. Pennsylvania Dept. of Educ., 795 F.Supp. 1352, 1355 (M.D.Pa.1992); 20 U.S.C. § 1415(a-b). In general, under Connecticut law, if parents are dissatisfied with the "identification, evaluation, or educational placement of the child," they may request the State Educational Agency ("SEA"), in this case, the State Defendants, to appoint an impartial hearing officer to conduct an administrative due process hearing to resolve their concerns. 20 U.S.C. § 1415(f); see also Conn. Gen.Stat. § 10-76a et seq. (setting forth the procedural and substantive obligations of parents and educational agencies in the appeals process under state law); M.C. ex rel. v. Voluntown Bd. of Educ., 178 F.R.D. 367, 370 (D.Conn.1998) ("Connecticut legislature empowered only the state department of education to schedule due process hearings."). Any party aggrieved by the outcome of the due process hearing may bring a civil action in the Connecticut Superior Court or the U.S. District Court. See 20 U.S.C. § 1415(i)(2).

B. Facts³

For purposes of this motion, the factual allegations made in the Complaint are assumed to be true, and all inferences are drawn in favor of the plaintiffs. Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.1998).

B.H. is a disabled child with Pervasive Developmental Disorder and Absence Epilepsy. These disabilities inhibit B.H.'s learning and result in significant communication and sensory processing problems. Because of these disabilities the Board Defendants have identified B.H. as a student who is eligible to receive special education and related services. Until approximately November 1, 2001, pursuant to a settlement of a prior due process hearing, B.H. was receiving special education and related services in the Southington public schools through a collaborative effort by the Board Defendants and a private agency. Following a series of meetings in the Fall of 2001, the PPT agreed upon a new IEP, (hereinafter, the "October 17, 2001 IEP"). The Board Defendants, however, inconsistently and inadequately implemented the October 17, 2001 IEP. Specifically, the Board Defendants failed to hire both a qualified consultant to support the program and the appropriate staff to implement the program. Moreover, the lack of staffing and support became so pronounced that the parents were forced to remove B.H. from school, on or about November 1, 2001, to protect him from harm. Since November 1, 2001, B.H. has had an extremely limited special education program.

The Board Defendants repeatedly assured the parents that these problems would be promptly corrected. The parents relied upon these representations and, as a result, delayed filing a request for a due process hearing.

On December 6, 2001 the plaintiffs requested: (1) a due process hearing to challenge the Board Defendants' failure to implement the October 17, 2001 IEP since at least October 31, 2001; and (2) that the hearing officer enter an interim order requiring the Board Defendants to implement the October 17, 2001 IEP. Of note, the plaintiffs did not request that the State Defendants be included at the due process hearing. On December 11, 2001 Hearing Officer Slez entered an interim order directing the Board Defendants to immediately implement the October 17, 2001 IEP. The Board Defendants did not object to the order, yet thereafter they failed to implement the October 17, 2001 IEP and hire the staff necessary to enable B.H. to return to school.

On December 17, 2001, the parents requested the State Defendants to enforce Hearing Officer Slez's interim order. On December 19, 2001, the State Defendants responded that "it is not within the purview of this office to decide on the implementation of a hearing officer's interim order since [a] due process hearing is pending and such an order is not a final decision."

On January 29, 2002 the parties attended the due process hearing. At the hearing, the parties conveyed to Hearing Officer Slez that the Board Defendants had agreed to hire Ms. Luddy, a mutually acceptable independent consultant, to coordinate B.H.'s IEP.⁴ Hearing Officer Slez then dismissed the plaintiffs' complaint, without prejudice, for lack of jurisdiction on the ground that there was no longer a live controversy before her.⁵

II. STANDARDS OF REVIEW

The Board and State Defendants have each moved pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1) to dismiss the Complaint.

A. Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction

A plaintiff bears the burden of proving the existence of subject matter jurisdiction by a preponderance of the evidence. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). In considering a motion to dismiss for lack of subject matter jurisdiction, a court must "accept as true all material factual allegations in the Complaint and refrain from drawing inferences in favor of the party contesting jurisdiction." Serrano v. 900 5th Ave. Corp., 4 F.Supp.2d 315, 316 (S.D.N.Y.1998) (citations omitted). The court may consider evidence outside the pleadings, such as affidavits and other documents, in determining the existence of jurisdiction. See Makarova, 201 F.3d at 113.

B. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim

When considering a Rule 12(b)(6) motion to dismiss, "the court must accept as true the factual allegations in the complaint, and draw all reasonable inferences in favor of the plaintiff." Bolt Electric Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995) (citations omitted). Further, "[t]he district court should grant such a motion only if, after viewing plaintiff's allegations in this favorable light, `it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. (quoting Walker v. City of New York, 974 F.2d 293, 298 (2d Cir.1992), and Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir.1991)). "The issue is not whether a plaintiff is likely to prevail ultimately, `but whether the claimant is entitled to offer evidence to support the claims.'" Gant v. Wallingford Board of Ed., 69 F.3d 669, 673 (2d Cir.1995) (citations omitted). When deciding a motion to dismiss, a court may consider not only the complaint, but also "any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference." See Cortec Indus. Inc., 949 F.2d at 47.

III. DISCUSSION

A. The IDEA's exhaustion requirement

There is no dispute that before any party may bring an action in state or federal court for a violation of the IDEA, the party must first seek recourse under the IDEA's administrative procedures. Taylor v. Vermont Dept. of Educ., 313 F.3d 768 (2d Cir.2002), citing 20 U.S.C. § 1415(l).⁶ In Polera v. Bd. of Educ. of the Newburgh Enlarged City School Dist., 288 F.3d 478 (2d Cir.2002), the Second Circuit stated: "[T]he IDEA's exhaustion requirement was intended to channel disputes related to the education of disabled children into an administrative process that could apply administrators' expertise in the area and...