MB v. Islip Sch. Dist.

MB, and RB, a minor, by his parent, RRB, Plaintiffs, v. ISLIP SCHOOL DISTRICT, ISLIP SCHOOL DISTRICT BOARD OF EDUCATION, CHAD WALLERSTEIN,individually and in his official capacity, TIMOTHY MARTIN, individually and in official capacity, TINA BALLINA,individually and in her official capacity, JOE MODICA, individually and in his official capacity, DONNA CARBONARO,individually and in her official capacity, BARBARA NELSON, individually and in her official capacity, JEAN TORRES,individually and in her official capacity, and KRISTINE O'MALLEY,individually and in her official capacity, Defendants.

14-CV-4670 (SJF)(GRB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

June 16, 2015

ORDER

FEUERSTEIN, J.

Plaintiffs MB and RB, a minor, by his parent, RRB (collectively "plaintiffs") commenced this action on August 6, 2014 and filed an amended complaint on August 15, 2014 [Docket Entry No. 5 ("Amended Complaint" or "Am. Compl.")] against defendants Islip School District ("District"), Islip School District Board of Education ("Board"), Chad Wallerstein ("Wallerstein"), Timothy Martin ("Martin"), Tina Ballina ("Ballina"), Joe Modica ("Modica"), Donna Carbonaro ("Carbonaro"), Barbara Nelson ("Nelson"), Jean Torres ("Torres"), Kristine O'Malley ("O'Malley") (collectively "defendants") alleging disability discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12101 ("ADA") and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Rehabilitation Act"), violation of New York State Human Rights Law ("NYSHRL") Exec. Law §290 et seq., violation of plaintiff's constitutional right to equal protection under the Fourteenth Amendment of the U.S. Constitution pursuant to 42 U.S.C. § 1983 ("Section 1983"), negligence, negligence per se, and negligent infliction ofemotional distress. Pending before the Court are defendants' motion to dismiss the Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure [Docket Entry No. 20 ("Motion to Dismiss")] and plaintiffs' cross-motion to amend the Amended Complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. [Docket Entry No. 25 ("Cross-Motion to Amend")]. For the reasons set forth below, the Motion to Dismiss is granted in part and denied in part, and the Cross-Motion to Amend is granted in part and denied in part.

I. BACKGROUND

A. Factual Background¹

RB is a fifteen (15) year old boy with Klinefelter Syndrome, Obsessive Compulsive Disorder ("OCD"), anxiety disorder, seizure disorder (epilepsy), tic disorder (Tourette's syndrome), developmental delays, mild mental retardation, brain trauma and autism. [Docket Entry No. 26, Ex. B ("Proposed Second Amended Complaint" or "Proposed SAC") ¶ 1]. As a result of these disorders, RB suffers from involuntary movements and comments associated with his tic disorder, panic attacks, severe anxiety, many characteristics of autism (id. ¶ 18) and involuntarily performs rituals which require him to "tic-tap," move, and curse involuntarily. Id. ¶ 30. Plaintiffs allege that over the course RB's education within the District, he has been the target of "continuous discrimination, harassment, neglect and bullying by his teachers, administrators and students." Id. ¶ 2.

1. 2011-2012 Academic Year

RB was homeschooled from second to sixth grade, but began attending Islip Middle School in the 2011-2012 academic year in an inclusive/collaborative seventh grade class. Id. ¶20. On September 14, 2011, RB received his first suspension following an incident where, after he climbed on bleachers in the gymnasium, his aide grabbed him, pulled him off the bleachers and across the gymnasium floor in front of general education students, and brought him to the principal's office where he received a lunch detention. Id. ¶¶ 21-23. Defendant Wallerstein, the acting principal, instructed the aide not to allow RB to leave the office until his mother arrived at the school. Id. ¶ 24. RB was extremely nervous and anxious to be alone in the principal's office for several hours with the aide who had mistreated him and attempted to exit the principal's office, at which point the aide blocked his exit, causing RB to panic, a result of his anxiety disorder, and push past his aide to leave the office, for which defendant Wallerstein escalated RB's punishment to a two (2) day suspension from school. Id. ¶¶ 25-27. Following RB's suspension, his two part-time aides were replaced by Mr. Silver, a full-time aide, which purportedly exacerbated the symptoms of his disabilities, particularly his OCD and tic disorder, and caused him to receive multiple lunch detentions throughout the 2011-2012 school year. Id. ¶¶ 30-31. On October 17, 2011, RB was suspended for five (5) days for reaching around his special education teacher, Jean Torres, to complete his tic taps of Mr. Silver. Id. ¶¶ 32-33.

Plaintiffs allege that instead of proposing a Functional Behavioral Assessment ("FBA") or a Behavior Intervention Plan ("BIP") and instructing RB's teachers and administrators on how to deal with his disabilities, the District teachers and administrators routinely punished RB, sent him out of class, degraded and humiliated in front of his classmates, failed to implement the agreed upon requirements of his IEP by failing to provide copies of class notes and modified homework assignments, and in October 2011, pressured RB's parents to remove him from the co-teach classroom and place him in a self-contained special education classroom. Id. ¶¶ 34-38.Plaintiffs allege that defendant Martin, the principal at the time, forced RB to transition into the self-contained class and reclassified him as a sixth grader, moving him back one grade. Id. ¶ 38.

In November 2011, RB was moved into a self-contained classroom with fourteen (14) other students, one of whom, named "L", began to bully RB on a regular basis because of his disabilities, particularly his uncontrollable tics. Id. ¶¶ 40-52. RB reported this bullying to his teacher on multiple occasions but his complaints were routinely ignored and no action was taken to address the bullying of RB. Id.

2. 2012 Annual IEP Review

A Committee on Special Education ("CSE") meeting was held on May 31, 2012 for the annual review of RB's IEP. Id. ¶ 53. At that meeting, it was determined that a Behavioral Improvement Plan ("BIP") would be incorporated into RB's IEP. Id. ¶¶ 3, 54. Plaintiffs allege that RB's IEP specified that his teachers would receive training from a behavioral consultant but that no training ever took place. Id. ¶ 55. Plaintiffs allege they requested RB receive class notes and assistive technology for writing, but this agreement was never put into RB's 2012-2013 IEP. Id. ¶ 56. Plaintiffs also allege that they requested RB be placed in a co-teach classroom and protected (id. ¶ 58), but that defendant Martin threatened that RB would not be able to attend school in the District unless he agreed to placement in self-contained classroom for the 2012-2013 school year. Id. ¶ 59. Plaintiffs allege this was a retaliatory action for their complaints regarding the discriminatory treatment of RB. Id. ¶ 59.

3. 2012-2013 Academic Year

During the 2012-2013 academic year, L continued to bully RB, causing RB severe anxiety and fear of school. Id. ¶¶ 60-68. MB alerted RB's teacher to this bullying and requested that the boys be separated, but the teacher continued to pair the boys in class, causing morebullying of RB. Id. ¶ 65. RB also reported the bullying to the school psychologist on multiple occasions but the school psychologist purportedly did not respond and allowed the bullying to persist. Id. ¶ 66.

In September 2012, Mr. Silver, RB's full-time aide, was replaced with two part-time aides. Id. ¶ 69. Plaintiffs allege these aides did not understand RB's disabilities and learning needs because despite the requirements of RB's IEP, no behavioral consulting was provided to these new part-time aides. Id. RB's difficulty adjusting to these two new aides made him depressed and extremely anxious, which exacerbated his tic disorder. Id. ¶ 70. RB was suspended for two (2) days as a result of an October 9, 2012 incident during which RB followed one of his new aides across the classroom to complete his tic tapping. Id. ¶¶ 71-73. Plaintiffs allege that RB's suspension was a result of his disability and defendants' failure to implement the requirements of RB's IEP. Id. ¶ 73. On March 18, 2013, RB was disciplined with several days of after school detention for an incident in which he grabbed a teacher's sweatshirt; an action that plaintiffs allege stemmed from his anxiety disorder. Id. ¶¶ 74-75. On April 10, 2013, RB was given a five (5) day suspension and advised that he was not allowed to have any contact with other students following an incident where "he had an involuntary tic in which he unintentionally made contact with [a teacher's] face." Id. ¶ 76. RB subsequently began to suffer emotional and physical manifestations of his stress and anxiety about attending school, including exacerbations of his tic disorder and difficulty eating and sleeping, and was emotionally unable to return to school for the remainder of the 2012-2013 school year. Id. ¶¶ 77-78.

4. Manifestation Review

On May 7, 2013, at a CSE Meeting for a Manifestation Review, the CSE determined that RB's disciplinary infractions were a manifestation of his disabilities which were handledincorrectly because the BIP specified in his IEP was never properly implemented, and RB's parents and administrators agreed to expunge RB's disciplinary record from his file and remove all infractions. Id. ¶¶ 81-83.

5. Home Tutoring and Retaliation

RB was unable to return to school for the remainder of the 2012-2013 school year and was provided with home tutors. Id. ¶¶ 84-86. Despite scoring eighty-five (85) on his final Social Studies exam, one hundred (100) on his final Pre-Algebra exam, ninety-seven (97) on his Science final exam, and sixty-five (65) on his...