Conway ex rel. Her Son K.C.G. v. Bd. of Educ. of Northport-Eastnorthport Sch. Dist., 13-CV-5283 (SJF)(WDW)

MONA CONWAY, Individually and on behalf of her son K.C.G.,a child with a disability and those similarly situated, Plaintiffs, v. BOARD OF EDUCATION OF NORTHPORT-EASTNORTHPORT SCHOOL DISTRICT,MARYLOU MCDERMOTT, in her individual and official capacityas Superintendent of Schools, CHRISTINA PULASKI,in her individual and official capacity as Director of Special Education,IRENE McLAUGHLIN, in her individual and official capacityas Principal of NORTHPORT HIGH SCHOOL, DENISE KEENAN,in her individual and official capacity as Vice-Principal, TERRENCE HINSON,in his individual and official capacity as Chairperson of Guidance, and REGINA THOMAS,in her individual and official capacity as Guidance Counselor, Defendants.

13-CV-5283 (SJF)(WDW)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 1, 2014

OPINION AND ORDER

FEUERSTEIN, J.

On September 23, 2013, pro se plaintiff Mona Conway ("plaintiff") commenced this action¹ on behalf of herself and her son, K.C.G.², a child with a disability, against defendant Board of Education of Northport-East Northport School District ("the Board of Education" or "the School District") and defendants Marylou McDermott ("McDermott"), in her individual andofficial capacity as Superintendent of Schools; Christina Pulaski ("Pulaski"), in her individual and official capacity as Director of Special Education; Irene McLaughlin ("McLaughlin"), in her individual and official capacity as Principal of Northport High School ("Northport H.S." or "the School"); Denise Keenan ("Keenan"), in her individual and official capacity as Vice-Principal of Northport H.S.; Terrence Hinson ("Hinson"), in his individual and official capacity as Chairperson of Guidance; and Regina Thomas ("Thomas"), in her individual and official capacity as Guidance Counselor (collectively, "the individual defendants"), alleging violations of 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. § 794; and the Civil Rights Act of 1871, 42 U.S.C. § 1983 ("Section 1983"). The School District and individual defendants (collectively, "defendants") now move to dismiss the complaint pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state a claim for relief. For the reasons set forth below, the motion is denied.

I. Background

A. Factual Background³

At the time this action was commenced, K.C.G. was seventeen (17) years old. (Complaint ["Compl."], ¶ 4).

On or about August 7, 2012, plaintiff appeared at Northport H.S. to register K.C.G. "as an incoming Junior (eleventh grade)," (Compl, ¶ 16), as her family "had just moved into the schooldistrict," (Compl., ¶ 4). At that time, plaintiff: (1) submitted "all pertinent and otherwise required paperwork * * * to the admissions department at Northport H.S.; such paperwork included retrieved documentation from [K.C.G.'s] previous high school, Huntington High School, and medical information[,]" (Compl., ¶ 17); (2) notified "attendance personnel" (a) that [K.C.G.] was having medical problems, causing him to have to attend his last months at Huntington High School on 'home instruction[,]"' (Compl., ¶ 18), and (b) that K.C.G. "was being treated by physicians for chronic stomach pains, migraine headaches, insomnia, anxiety and depression," (Compl., ¶ 19); and (3) requested "that a conference with a guidance counselor be scheduled as soon as possible to ensure that an evaluation and suitable accommodations be put in place before the start of the school year." (Id.)

On or about August 14, 2012, K.C.G. had a physical examination by his treating physician, who completed the School District's "standard physical examination form," (Compl., ¶ 20), indicating that K.C.G. was being treated for "stomach pains, headaches, anxiety, depression, ADD [attention deficit disorder]," (Compl. ¶ 21), and submitted it to Northport H.S., (Compl., ¶ 20).

On or about August 15, 2012, plaintiff met with Hinson "to discuss [K.C.G.'s] disabilities and further discuss Northport H.S.'s available accommodations[,]" (Compl., ¶ 22), at which time Hinson "assured" her that Northport H.S. would make "appropriate accommodations" for K.C.G. (Id.) According to plaintiff, although Hinson scheduled a "follow-up meeting * * * to speak with [K.C.G.], introduce him to the school with a tour of the building and further discuss [K.C.G.'s] medical issues so that an accommodation could be put in place for [K.C.G.][,]" (Compl., ¶ 23), he subsequently cancelled that meeting and never rescheduled it. (Compl., ¶ 24). "Instead,[K.C.G.] was referred to Regina Thomas * * * to discuss accommodations for [him] and an appointment was scheduled to take place before the start of the school year." (Compl., ¶ 25).

According to plaintiff, Thomas twice rescheduled the meeting, ultimately rescheduling it on September 5, 2012, the first day of school. (Compl., ¶ 26). On September 5, 2012, plaintiff and K.C.G. met with Thomas. (Compl., ¶ 27). After plaintiff "raised the issue of [K.C.G's] disability," Steven Bouchet ("Bouchet"), whom plaintiff believes to be the School's social worker, "was called to Ms. Thomas's office to assist." (Compl., ¶ 27, 29). According to plaintiff, "[a] brief and harried discussion took place between [her]self, Mr. Bouchet, Ms. Thomas and [K.C.G.], as Ms. Thomas rushed to attend to several different tasks[,] * * * apologized profusely for the delays, lack of information and stressful beginning of the school year for [K.C.G.] and promised to schedule a focused meeting to address [K.C.G.'s] disabilities." (Compl., ¶¶ 30-31).

On or about September 12, 2012, K.C.G. "lost consciousness as a result of a panic attack and collapsed into a bakery shelf display," following which he was taken by ambulance to Huntington Hospital where he "received multiple stitches across his nose and eyelid." (Compl., ¶ 32). After the "guidance office" at Northport H.S. was notified of that incident, "[a]n impromptu decision was made by [it] to place [K.C.G.] on 'home instruction' as a temporary measure until an evaluation by the School's psychiatrist could be conducted." (Compl., ¶ 34).

"Approximately four (4) weeks later, [K.C.G.] was provided with a list of five (5) home instructors, along with a schedule to meet such instructors at the local library, which is approximately one-and-a-half miles from [his] residence." (Compl., ¶ 35). According to plaintiff, she "was required to take time from work each day to drive [K.C.G.] to and from thelibrary for 'home instruction[,]"' (Compl., ¶ 36), in the subjects of algebra, U.S. history, forensic science, English and "Living Environment." (Compl., ¶ 37). K.C.G. "was not offered any electives for home instruction, nor was he given any home instruction for physical education." (Compl., ¶ 38). Thus, according to plaintiff, "remaining on home instruction throughout the entire school year would necessarily deprive [K.C.G.] of an opportunity to meet the requisite credit number to enable him to graduate on time." (Id.)

According to plaintiff, K.C.G. "attended home instruction as consistently as he could, given his chronic illness and was, to [her] knowledge, performing well and at grade level." (Compl., ¶ 39). "The limited reports [plaintiff] received with respect to [K.C.G.'s] progress were almost always verbal and only after [she] inquired regarding same from each of his instructors." (Compl., ¶ 40).

Plaintiff alleges that "[f]rom September through December, [she] made periodic telephone calls to Steven Bouchet and the guidance office to follow-up on the status of [K.C.G.'s] evaluation[,]" (Compl., ¶ 41), but it was not until "[s]ometime in November of 2012" that Northport H.S. contacted her to advise her that K.C.G. "was assigned to a psychiatrist for an evaluation." (Compl., ¶ 42). That evaluation did not occur because the psychiatrist subsequently left Northport H.S. (Compl., ¶ 43).

"On or about December 6, 2012, Mr. Bouchet contacted [plaintiff] to inform [her] that all of [K.C.G.'s] records - including medical records from his treating physician and previous school - had been requested by superior school personnel and suggested that some form of accommodation would be designed for [K.C.G.] with respect to his disability." (Compl., ¶ 44).

On or about December 11, 2012, K.C.G. and his parents attended a meeting at NorthportH.S. with Bouchet, Thomas "and, for a brief period, a person introduced as psychologist, Dr. Digose," to discuss K.C.G.'s disability, (Compl., ¶¶ 45-46), during which they "were informed that the school would be working on an evaluation plan and further discussion regarding an appropriate of [sic] instruction would be forthcoming." (Compl., ¶ 47). According to plaintiff, "[o]ver the next several weeks, [she] made periodic telephone calls to Steven Bouchet and the guidance office to follow-up on the status of [K.C.G.'s] pending evaluation." (Compl., ¶ 48).

On or about January 18, 2013, Bouchet contacted plaintiff, advised her that "he had spoken with the Chairperson of Special Education and that the School was still working on [K.C.G.'s] case[,]" apologized for the delays and indicated that the delays "were due to staff illnesses." (Compl., ¶ 49).

On or about February 4, 2013, Thomas cancelled "an annual 'Junior Conference'" with K.C.G. that she had scheduled for February 6, 2013 " to discuss course planning for the following year and * * * college offerings and planning," (Compl., ¶ 50), because "she believed that such a meeting was not appropriate for [K.C.G.]." (Compl., ¶ 51).

Plaintiff alleges that in February and March of 2013, Dr. Digose; Rosanne Grasso, Dr. Digose's "replacement;" and Dr. Michael Comiskey, Grasso's "replacement," all contacted her "to inform [her] that an evaluation of [K.C.G.'s] disability would be forthcoming." (Compl., ¶ 52). According to plaintiff, Northport H.S. cancelled: (a) her...