Dzugas-Smith v. Southold Union Free Sch. Dist.

DONNA DZUGAS-SMITH, Plaintiffs,

v. SOUTHOLD UNION FREE SCHOOL DISTRICT, DR. CHRISTOPHER GALLAGHER,VIRGINIA THOMPSON, RICHARD CAGGIANO, PAULETTE OFRAIS, JUDI FOUCHET, DR. ROBERT WALSH,JEANANNE DEMPSEY, PATRICIA MELLAS, DAVID RIDDELL,ELAINE WHITE, SCOTT DESIMONE, SUSAN NOBILE, GAIL ANDREWS BUTTA,MARY FITZPATRICK, MARY LOU CAHILL and BRUCE KOLLMAR, Defendants.

CV-08-1319 (SJF)(WDW)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: May 9, 2012

OPINION & ORDER

FEUERSTEIN, J.

On April 1, 2008, pro se plaintiff Donna Dzugas-Smith ("plaintiff") commenced an action ("Action No. 1"), individually and on behalf of her child "B.D.S.," against defendants Southold Union Free School District ("the UFSD"), Dr. Christopher Gallagher, Virginia Thompson, Richard Caggiano, Paulette Ofrias, Judi Fouchet, Dr. Robert Walsh, Jeananne Dempsey, Patricia Mellas, Lori Cariello, David Riddell, Elaine White and Scott Desimone, (collectively, the "UFSD defendants"), State Review Officer Paul F. Kelly ("Kelly") and Ingerman and Smith L.L.P. ("Ingerman Smith"). On June 26, 2008, plaintiff filed an amended complaint in Action No. 1 alleging violations of, inter alia, the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq.; the Rehabilitation Act of 1973 ("theRehabilitation Act"), 29 U.S.C. § 792, et seq.; the Civil Rights Act of 1871, 42 U.S.C. §§ 1983 ("Section 1983") and 1985 ("Section 1985"); Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131, et seq.; New York Education Law §§ 4401, et seq. ("New York Education Law"); and the New York State Constitution Article XI, § 1 ("New York Constitution").

On May 8, 2008, pro se plaintiff commenced a separate action ("Action No. 2"), individually and on behalf of B.D.S., against all of the same defendants as named in Action No. 1, as well as against Susan Nobile, Gail Andrews Butta, Mary Fitzpatrick, Mary Lou Cahill and Bruce Kollmar (collectively, "the additional UFSD defendants") and the New York State Education Department ("NYSED"). On September 4, 2008, plaintiff filed an amended complaint in Action No. 2 alleging violations of, inter alia, the IDEA, the Rehabilitation Act, Section 1983, 42 U.S.C. § 1988 ("Section 1988"), the ADA, the New York Education Law and the New York Constitution.

Thereafter, Ingerman Smith and Kelly moved, inter alia, pursuant to Rule 12 of the Federal Rules of Civil Procedure to dismiss the amended complaints in both actions as against them. By order entered June 26, 2009, this Court, inter alia: (1) consolidated Actions No. 1 and 2; (2) dismissed plaintiff's Section 1983, Section 1985 and state law claims as against Ingerman Smith without prejudice and sua sponte dismissed plaintiff's Section 1985 claims as against all defendants without prejudice; (2) dismissed plaintiff's ADA and Rehabilitation Law claims as against Ingerman Smith, Kelly and all individual defendants with prejudice; (3) dismissed plaintiff's claims as against Kelly with prejudice, with the exception that plaintiff was granted leave to amend the pleadings to assert a claim seeking a declaratory judgment based upon anyongoing violation of federal law by Kelly; (4) sua sponte dismissed plaintiff's ADA claims in both actions, and her Rehabilitation Act claims in Action No. 2, as against the UFSD and NYSED without prejudice; and (5) directed plaintiff to retain counsel, or move for the appointment of counsel, on behalf of B.D.S. within thirty (30) days or all claims asserted on behalf of B.D.S. would be dismissed without prejudice.¹

On September 21, 2009, plaintiff, individually and on behalf of B.D.S., filed an amended complaint, which became the operative pleading in the consolidated action, against all defendants² and moved for the appointment of counsel on behalf of B.D.S. By order entered October 2, 2009, plaintiff's motion to appoint counsel on behalf of B.D.S. was denied with leave to renew within thirty (30) days upon submission of an appropriate financial affidavit and plaintiff was advised that her failure to timely renew the motion, to secure pro bono counsel or to retain counsel on behalf of B.D.S. would result in all claims asserted on behalf of B.D.S. in this action being dismissed without prejudice.

Kelly and the NYSED subsequently moved pursuant to Rules 12(b)(1) and (5) of the Federal Rules of Civil Procedure to dismiss the amended complaint against Kelly as barred by the doctrine of absolute immunity and against Kelly and the NYSED for improper service of process, respectively; and Ingerman Smith moved pursuant to Rules 12(b) and (c) of the Federal Rules of Civil Procedure to dismiss the amended complaint as against it and for judgment on thepleadings, respectively. By order dated April 26, 2011, inter alia: (1) the branches of Ingerman Smith's motion seeking judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure was granted and plaintiff's claims were dismissed in their entirety with prejudice as against Ingerman Smith; (2) the branch of Kelly's and the NYSED's motion seeking dismissal of plaintiff's claims against Kelly as barred by the doctrine of absolute immunity was granted and plaintiff's claims were dismissed in their entirety with prejudice as against Kelly; (3) the branch of Kelly's and the NYSED's motion seeking dismissal of the amended complaint against the NYSED pursuant to Rule 12(b)(5) for insufficient service of process was granted and the amended complaint was dismissed in its entirety without prejudice as against the NYSED; (4) plaintiff's Section 1985 claims were dismissed in their entirety with prejudice; and (5) all claims asserted on behalf of B.D.S. were dismissed in their entirety without prejudice. Accordingly, only the following claims remain in this action: (1) the Section 1983 and 1988 claims asserted by plaintiff, individually, against the UFSD defendants and additional UFSD defendants (collectively, "defendants"); (2) the IDEA, Rehabilitation Act and ADA claims asserted by plaintiff, individually, against the UFSD; and (3) Ingerman Smith's counterclaim against plaintiff. Defendants now move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing plaintiff's remaining claims in their entirety.³

I. Background

A. Factual Background⁴

1. The Parties

Plaintiff is the mother and natural guardian of B.D.S., a child with a history of developmental and learning problems who received a public education in the UFSD through and including the 2005-2006 academic year (her sixth grade year). (56.1 Stat., ¶ 1).

The following defendants were employed by the UFSD in the following capacities at all relevant times: (1) Virginia Thompson ("Thompson"), as the director of special education, the chairperson of the Committee of Special Education ("CSE") and the administrator of pupil personnel services; (2) Dr. Christopher Gallagher ("Gallagher"), as superintendent; (3) David Riddell ("Riddell"), as the special education teacher designated on the individualized education program ("IEP") developed for B.D.S.; (4) Laurie Cariello ("Cariello"), as the English language arts teacher of the sixth (6th) grade "teaching team" for B.D.S.; (5) Jeananne Dempsey, a/k/a Jeanne Dempsey ("Dempsey"), as the science and math teacher of the sixth (6th) grade "teaching team" for B.D.S.; (6) Patricia Mellas, a/k/a Patti Mellas ("Mellas"), as the social studies teacher of the sixth (6th) grade "teaching team" for B.D.S.; (7) Elaine White ("White"), as the schoolpsychologist at Southold Elementary School within the UFSD; (8) Susan Nobile ("Mobile"), as a reading specialist; (9) Mary Fitzpatrick ("Fitzpatrick"), as the principal and building administrator of the Junior/Senior High School within the UFSD; (10) Gail Andrews Butta ("Butta"), as the head of special education in the Junior/Senior High School within the UFSD; and (11) Mary Lou Cahill ("Cahill"), as the special education teacher assigned to B.D.S. by the UFSD. In addition, at all relevant times, the Board of Education of the UFSD was comprised of the following defendants: Richard Caggiano ("Caggiano") as President, and Paulette Ofrias ("Ofrias"), Judi Fouchet ("Fouchet"), Dr. Robert Walsh ("Walsh") and Scott DeSimone ("DeSimone"), as members (collectively, the "BOE defendants"). Moreover, defendant Bruce Kollmar ("Kollmar") was, at all relevant times, the "Out of District CSE Chairperson" under contract with the UFSD.

2. B.D.S.'s Performance in Fifth Grade

An "Evaluation Review" completed by Nobile in September 2004, at the beginning of B.D.S.'s fifth grade year, indicates that B.D.S. "demonstrated average regression over the summer, meaning her levels [were] consistent with those normally demonstrated over a long vacation," and, therefore, that extended year ("EY") services⁵ for B.D.S. were not warranted. Inan October 2004 progress report, Nobile further indicated, inter alia: (1) that B.D.S. demonstrated consistent growth in sight word development skills over time; (2) that although test scores revealed a "slight regression" in B.D.S.'s decoding skills over the summer, B.D.S. was able to "retrieve[] and surpass[] her 4/01/04 level of performance, indicating consistent growth in [those] skills over time;" and (3) that B.D.S.'s word reading efficiency was within normal limits for her age. By November 2004, Nobile reported, inter alia, that B.D.S. no longer demonstrated any summer regression. Furthermore, in December 2004, Nobile, inter alia: (1) reported that B.D.S.'s sight word and decoding skills were "firmly within the average range;" and (2) recommended that the CSE discontinue the reading services previously provided by the UFSD for B.D.S. in order to allow her more time to apply her reading skills within the classroom setting.

On her final report card for the 2004-2005 academic year, B.D.S. received grades of "3," with the highest grade attainable being a "4," in all areas of the four (4) academic...