Killoran v. Westhampton Beach Sch. Dist.

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CHRISTIAN KILLORAN, on behalf of his son, AIDEN KILLORAN; CHRISTIAN KILLORAN; and TERRIE KILLORAN, Plaintiff, v. WESTHAMPTON BEACH SCHOOL DISTRICT; SUZANNE MENSCH, AND JOYCE DONNESON, as Board of Education Members; MICHAEL RADDAY, as Superintendent; MARYANN AMBROSINI,^[1] as Director of Pupil Personnel and CSE Chairperson, Defendants.

CHRISTIAN KILLORAN, on behalf of his son, AIDEN KILLORAN, Plaintiff, v. WESTHAMPTON BEACH SCHOOL DISTRICT; MICHAEL RADDAY, as Superintendent; SUZANNE MENSCH, JOYCE DONNESON, GEORGE KAST, and HALSEY C. STEVENS, as Board of Education Members, Defendants.

CHRISTIAN KILLORAN, on behalf of his son, AIDEN KILLORAN, Plaintiff, v. WESTHAMPTON BEACH SCHOOL DISTRICT; and MARYANN AMBROSINI, Defendants.

CHRISTIAN KILLORAN, on behalf of his son, AIDEN KILLORAN, Plaintiff, v. WESTHAMPTON BEACH SCHOOL DISTRICT, Defendant.

Nos. 20-CV-4763(JS)(LGD), 22-CV-1632(JS)(LGD), 23-CV-1114(JS)(LGD), 23-CV-1115(JS)(LGD)

United States District Court, E.D. New York

February 26, 2024

For Plaintiff: Christian Killoran, Esq., pro se

For Defendants: Anne C. Leahey, Esq. Anne Leahey Law, LLC

OMNIBUS MEMORANDUM & ORDER

JOANNA SEYBERT, U.S.D.J

Appearances:

SEYBERT District Judge:

Pro se plaintiff Christian Killoran (“Plaintiff” or “Parent”^[2]), in various capacities e.g., individually and as parent to A.K., a child with Down Syndrome, has commenced numerous administrative challenges and subsequent and additional federal actions, all emanating from the development of A.K.'s individualized education plans (“IEPs”; singularly, “IEP”) and subsequent placements pursuant to those IEPs and, for certain academic years, pursuant to an agreed-upon 2019 Pendency Placement Agreement. Parent has brought the instant suits against: Westhampton Beach School District (“Westhampton” or the “School District”); as well as, variously: Michael Radday Superintendent of the School District; MaryAnn Ambrosini, sometimes individually and as Director of Pupil Personnel and CSE Chairperson (“Ambrosini”); and Joyce Donneson, George Kast, Suzanne Mensch, and Halsey C. Stevens, as members of the School Board (collectively, the “Defendants”). These suits are brought pursuant to: the Individuals with Disabilities Act (“IDEA”), 20 U.S.C. § 1400 et seq.; the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794(a) et seq.; and Section 1983 of Title 42 of the United States Code (“Section 1983”), 42 U.S.C. § 1983. Parent also challenges administrative decisions of different state review officers (“SROs”; singularly, “SRO”). He variously seeks monetary damages and compensatory education damages.

On October 24, 2023, the Court held an Omnibus Status Conference in these actions; it addressed Defendants' various pre-motion conference letters (“PMC Letters”)^[3] requesting permission to file dismissal motions.^[4] The parties were informed the Court was construing the PMC Letters as Defendants' respective dismissal motions.^[5] To the extent Parent had not responded to the PMC Letters, he was afforded the opportunity to do so.^[6] (See id.)

Parent's responses have now been filed.^[7] As a result, presently before the Court are Defendants' respective Dismissal Motions.^[8] Thus, having considered the parties' written submissions and heard their arguments, for the reasons that follow, the Court: (1) in Case No. 20-CV-4763, GRANTS Defendants' Motion to Dismiss; (2) in Case No. 22-CV-1632, GRANTS Defendants' Partial Motion to Dismiss; (3) in Case No. 23-CV-1114, GRANTS Defendants' Motion to Dismiss; and, (4) in Case No. 23-CV-1115, GRANTS the School District's Partial Motion to Dismiss.

BACKGROUND

I. Factual Background

The parties and the Court are familiar with the extensive facts leading to these litigations and, accordingly, assumes the parties' familiarity with same.^[9] At this point, the Court states generally and briefly that A.K.: has Down syndrome; is an alternately assessed student; and, is eligible for special education as a student with intellectual disabilities. As the Second Circuit has observed, Parent and the School District have been in a long-running dispute over A.K.'s education. See, e.g., Killoran v. Westhampton Beach Sch. Dist., No. 22-204, 2023 WL 4503278, at *1 and n.1 (2d Cir. July 13, 2023) (hereafter, the “2d Cir. Brown Appeal”) (citing Killoran v. Westhampton Beach UFSD, No. 21-2647, 2023 WL 4503151 (2d Cir. July 13, 2023) (hereafter, the “2d Cir. Seybert 2021 Appeal”); Killoran v. Westhampton Beach Sch. Dist., No. 22-1753, 2023 WL 4503274 (2d Cir. July 13, 2023) (hereafter, the “2d Cir. Seybert 2022 Appeal”)). In particular, since approximately the 2016-2017 academic year, Parent has not agreed with, and has challenged, the School District's IEPs for A.K., which IEPs have been created by the School District's Committee on Special Education (“CSE”). As a result, A.K. had been receiving his IEPs and corresponding special education programs under various pendency placements, including the 2019 Agreement,^[10] until April 2023, when the CSE determined A.K.'s IEP should be delivered in the School District's 12:1:1 special education class. See, e.g., Killoran v. Westhampton Beach Sch. Dist., No. 22-CV-6467, Defs. Letter Update, ECF No. 27 (E.D.N.Y. May 3, 2023) (advising “the State Education Department, on March 6, 2023, granted an age variance permitting A.K.'s participation in the District High School's special class (12:1:1)” and “A.K. joined the class on April 19, 2023 where he is currently receiving instruction and related services”); see also, e.g., Killoran v. Westhampton Beach Sch. Dist., No. 20-CV-4121, 2023 WL 553290, at n.7 (E.D.N.Y. Aug. 28, 2023) (hereafter, the “Killoran August 2023 Order”) (noting State's granting an age variance for A.K. for the 2022-2023 school year).

DISCUSSION

I. Applicable Law

A. Rule 12 Dismissal

The Court restates the well-established plausibility standard applied to dismissal motions brought pursuant to Rules 12(b) and (c) of the Federal Rules of Civil Procedure, as articulated in a prior ruling made by the Court in a case brought by Parent:

To withstand a motion to dismiss, a complaint must contain factual allegations that “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This plausibility standard is not a “probability requirement” and requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. (internal quotation marks and citation omitted). Although the Court must accept all allegations in the complaint as true, this tenet is “inapplicable to legal conclusions.” Id. Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citation omitted). Ultimately, the Court's plausibility determination is a “contextspecific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

In deciding a motion to dismiss, the Court is confined to “the allegations contained within the four corners of [the] complaint,” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998), but this has been interpreted broadly to include any document attached to the complaint, any statements or documents incorporated in the complaint by reference, any document on which the complaint heavily relies, and anything of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) (observing that a document is “integral” if the complaint “relies heavily upon its terms and effect”).

Killoran March 2022 Order, 2022 WL 866816, at *3 (granting Defendants' dismissal motion). “The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that for granting a Rule 12(b)(6) motion for failure to state a claim.” Killoran August 2023 Order, 2023 WL 5532920, at *3 (quoting Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 301 (2d Cir. 2021) (further citation omitted)).

B. IDEA Claims

In one of its July 2023 trilogy Killoran summary orders, the Second Circuit stated:

Under the IDEA, a school district must provide services “tailored to meet the unique needs of a particular child, and . . .reasonably calculated to enable the child to receive educational benefits.” Gagliardo[ v Arlington Cent. Sch. Dist.], 489 F.3d [105,] 107 [(2d Cir. 2007)] (internal quotation marks omitted). To administer these services, a school district must develop an individualized education program (“IEP”) each year for each student with a disability. M.H. [ v. N.Y.C. Dep't of Educ.], 685 F.3d [217,] 224 [(2d Cir. 2012)] .

For an IEP to be adequate under the IDEA, it must be “likely to produce progress, not regression, and . . . afford[ ] the student with an opportunity greater than mere trivial advancement.” Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005) (internal quotation marks omitted). It must also “ensure that ‘[t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled.'” T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151 (2d Cir. 2014) (alterations in original) (quoting 20 U.S.C. § 1412(a)(5)(A)). “In other words, the state must seek to educate each child with a disability in his or her LRE.” Id.

“In determining whether an IEP complies with the IDEA, courts make a two-part inquiry that is, first, procedural, and second, substantive. At the first step, courts examine whether there were procedural violations of the IDEA, namely, whether the state has complied with the procedures set forth in the IDEA.... Courts then examine

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