14-0103-cv
Stropkay, et al. v. Garden City Union Free Sch. Dist., et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 AT A STATED TERM OF THE UNITED STATES COURT OF APPEALS FOR THE
2 SECOND CIRCUIT, HELD AT THE THURGOOD MARSHALL UNITED STATES COURTHOUSE,
3 40 FOLEY SQUARE, IN THE CITY OF NEW YORK, ON THE 3rd DAY OF DECEMBER,
4 TWO THOUSAND FOURTEEN.
5
6 PRESENT: RALPH K. WINTER,
7 JOHN M. WALKER, JR.,
8 JOSÉ A. CABRANES,
9 Circuit Judges.
10
11 ---------------------------------------------
12
13 Denise Stropkay, individually and on behalf of
14 Dayna Stropkay; Melanie Donus, individually
15 and on behalf of Michael Donus and Dimitri
16 Donus; Diane Collins, individually and on behalf
17 of Katie Collins,
18
19 Plaintiffs-Appellants,
20
21 v. No. 14-0103-cv
22
23 Garden City Union Free School District,
24 Board of Education of the Garden City
25 Union Free School District,
26
27 Defendants-Appellees.
28
29 ---------------------------------------------
30
31 FOR PLAINTIFFS-APPELLANTS: Steven A. Morelli, Law Office
32 of Steven A. Morelli, P.C.,
33 Garden City, NY.
1
2 FOR DEFENDANTS-APPELLEES: Lewis R. Silverman, Caroline
3 B. Lineen, Rutherford &
4 Christie, LLP, New York, NY.
5
6 Appeal from a December 12, 2013 decision of the United
7 States District Court for the Eastern District of New York
8 (Leonard D. Wexler, Judge).
9 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
10 ADJUDGED, AND DECREED that the judgment of the District Court be
11 AFFIRMED IN PART, AND VACATED AND REMANDED IN PART.
12 Plaintiffs-appellants, the parents of four children with
13 disabilities who are current or former students in defendant
14 appellee Garden City Union Free School District, appeal from the
15 District Court’s decision granting defendant-appellees’ motion
16 for judgment on the pleadings. Plaintiffs’ complaint asserted
17 claims for discrimination in violation of the Americans with
18 Disabilities Act, 42 U.S.C. §§ 12101 et seq. (the “ADA”); Section
19 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and 42
20 U.S.C. § 1983 as well as claims for retaliation in violation of
21 the ADA and the Rehabilitation Act. The District Court held that
22 it lacked subject matter jurisdiction over plaintiffs’ claims
23 because plaintiffs had failed to exhaust their administrative
24 remedies prior to commencing litigation, as required by the
25 Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §
26 1400 et seq., and further concluded that this failure to exhaust
2
1 was not excused under either of the two potential futility
2 exemptions. We assume the parties’ familiarity with the
3 underlying facts and procedural history of the case.
4 We review de novo the dismissal of a complaint for lack of
5 subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(c) or
6 12(b)(1), accepting the well-pleaded allegations in the complaint
7 as true. See Sharkey v. Quarantillo, 541 F.3d 75, 82 (2d Cir.
8 2008). “The plaintiff bears the burden of proving subject matter
9 jurisdiction by a preponderance of the evidence.” Liranzo v.
10 United States, 690 F.3d 78, 84 (2d Cir. 2012) (quoting
11 Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638
12 (2d Cir. 2005)). Upon an independent review of the record on
13 appeal and upon consideration of the arguments advanced by the
14 parties, we affirm the judgment of the District Court with
15 respect to nearly all of plaintiffs’ asserted claims for
16 discrimination and retaliation, substantially for the reasons set
17 forth in the December 12, 2013 Memorandum and Order, see Donus v.
18 Garden City Union Free Sch. Dist., 987 F. Supp. 2d 218, 226-32
19 (E.D.N.Y. 2013). We vacate and remand, however, the District
20 Court’s judgment concerning plaintiffs’ claim that the School
21 District failed to implement certain clearly-stated
22 Individualized Education Programs (IEPs). We find that those IEP
23 claims were not subject to the administrative exhaustion
3
1 requirement under the futility exception, see Polera v. Bd. of
2 Educ. of Newburgh, 288 F.3d 478, 488-49 (2d Cir. 2002).
3 “It is well settled that the IDEA requires an aggrieved
4 party to exhaust all administrative remedies before bringing a
5 civil action in federal or state court.” J.S. ex rel N.S. v.
6 Attica Cent. Schs., 386 F.3d 107, 112 (2d Cir. 2004). Although
7 plaintiffs here did not expressly advance any cause of action
8 under the IDEA, the statute extends the exhaustion requirement to
9 actions “under such laws seeking relief that is also available
10 under this subchapter.” 20 U.S.C. § 1415(l). We construe this
11 statutory language broadly, such that plaintiffs’ request for
12 damages, a form of relief not available under the IDEA, does not
13 enable them to “bypass the IDEA’s administrative exhaustion
14 rule.” Cave v. East Meadow Union Free Sch. Dist., 514 F.3d 240,
15 247 (2d Cir. 2008) (citing Polera, 288 F.3d at 488). Where, as
16 here, plaintiffs raise “grievances related to the education of
17 disabled children,” they are obligated to “exhaust their
18 administrative remedies before filing suit in federal court, even
19 if their claims are formulated under a statute other than the
20 IDEA (such as the ADA or the Rehabilitation Act).” Polera, 288
21 F.3d at 481. “Failure to exhaust the administrative remedies
22 deprives the court of subject matter jurisdiction.” Cave, 514
23 F.3d at 245 (citing Polera, 288 F.3d at 483).
4
1 It is undisputed that plaintiffs did not exhaust the
2 administrative review process required by the IDEA.
3 Nevertheless, plaintiffs argue that this failure did not deprive
4 the court of subject matter jurisdiction because (1) their
5 retaliation claims were not subject to the IDEA exhaustion
6 requirement, and (2) their failure to exhaust the discrimination
7 claims should be excused under one or both of the futility
8 exemptions.
9 Plaintiffs’ retaliation claims rest on a limited set of
10 alleged retaliatory acts: that defendants limited communication
11 with plaintiff Denise Stropkay to one point of contact, that
12 defendants prevented the use of an upgraded power wheelchair on
13 purported safety grounds, that defendants imposed certain
14 toileting requirements for a student they incorrectly claimed was
15 incontinent, and that defendants placed one phone call to Child
16 Protective Services after plaintiff Diane Collins yelled at
17 District representatives visiting her home, an incident which
18 caused trauma to her disabled daughter. Appellant’s Br. at 53-
19 55; Am. Compl. ¶¶ 54-111, 333-345. According to the amended
20 complaint, the gravamen of the retaliation claim is that
21 “Defendants made several individual adverse decisions against
22 Plaintiffs” in retaliation for plaintiffs’ “engage[ment] in
23 protected activities under the ADA and Rehabilitation Act by
5
1 advocating for reasonable accommodations and against Defendants’
2 discriminatory practices.” Am. Compl. ¶¶ 384, 386.
3 Because these claims constitute “grievances related to the
4 education of disabled children,” they are subject to the IDEA’s
5 exhaustion requirements. Polera, 288 F.3d at 481. We have
6 previously explained that “education, as used within the IDEA,
7 encompasses more than simply academics,” especially in light of
8 the IDEA’s statutory goal to provide students with “services
9 designed to meet their unique needs and prepare them for further
10 education, employment and independent living.” Cave, 514 F.3d at
11 248 (alterations omitted) (quoting 20 U.S.C. § 1400(d)(1)(A)).
12 Just as a hearing-impaired student’s request for a service dog
13 falls within the ambit of the IDEA’s framework, see id., so too
14 do the wheelchair, toileting, and other issues raised here.
15 As to their discrimination claims, plaintiffs rely on the
16 principle that the IDEA’s exhaustion requirement will be excused
17 in those circumstances where exhaustion would be futile. Coleman
18 v. Newburgh Enlarged City Sch. Dist., 503 F.3d 198, 205 (2d Cir.
19 2007) (quoting Polera, 288 F.3d at 488). To demonstrate
20 futility, a plaintiff must show that “adequate remedies are not
21 reasonably available or that the wrongs alleged could not or
22 would not have been corrected by resort to the administrative
23 hearing process.” Id. (internal quotation marks ommitted)
24 (quoting J.G. v. Bd. of Educ. of Rochester City Sch. Dist., 830
6
1 F.2d 444, 447 (2d Cir. 1987)). Circumstances evincing futility
2 may arise, for example, where the complaint alleges “systemic
3 violations” that the administrative review process “had no power
4 to correct,” J.S., 386 F.3d at 113, or where the complaint
5 alleges that the defendant school district “had failed to
6 implement the clearly-stated requirements of the IEPs.” Polera,
7 288 F.3d at 488. Plaintiffs here claim the benefit of both
8 exemptions.
9 Plaintiffs’ argument that the complaint alleges systemic
10 violations fails because the need for specific services differs
11 from student to student and is circumstance-dependent.
12 Allegingthat some students were denied services is not sufficient
13 to allege “systemic violations” and thus does not exempt
14 plaintiffs from the need to exhaust administrative remedies.
15 J.S., 386 F.3d at 113.
16 As noted above, however, a claim that a defendant failed to
17 implement specific IEP requirements need not be exhausted. See
18 id. Plaintiffs allege that, from January 2013 to June 2013,
19 Michael Donus did not receive the speech or occupational therapy
20 prescribed by his IEP. Accepting this allegation as true,
21 Sharkey, 541 F.3d at 83, we vacate the judgment and remand with
22 respect to this allegation. We of course intimate no view as to
23 whether the IEPs clearly required such services.
7
1 It is further alleged that, during the beginning of the 2004
2 school year, defendants failed to provide Katie Collins with a
3 1:1 aide, as required by her IEP. Joint App. at 121. Plaintiffs,
4 however, brought suit under the ADA, Rehabilitation Act, and
5 § 1983, all of which have three year statutes of limitations in
6 these circumstances. N.Y. C.P.L.R. § 214(5); see also Graham
7 Cnty. Soil & Water Conservation Dist. v. United States ex rel.
8 Wilson, 545 U.S. 409, 414 (2005) (“To determine the applicable
9 statute of limitations for a cause of action created by a federal
10 statute, we first ask whether the statute expressly supplies a
11 limitations period. If it does not, we generally ‘borrow’ the
12 most closely analogous state limitations period.”); Piazza., 777
13 F. Supp. 2d at 687 (“Rehabilitation Act claims in New York are
14 governed by New York's three-year statute of limitations
15 governing personal injury actions.”); Harris v. City of New York,
16 186 F.3d 243, 247 (2d Cir. 1999) (stating that three years is the
17 appropriate statute of limitations for New–York–based § 1983
18 claims); Pape v. Bd. of Educ. of the Wappingers Cent. Sch. Dist.,
19 No. 07 Civ. 8828, 2009 WL 3151200, at *8 (S.D.N.Y. Sept. 29,
20 2009) (“New York's three-year statute of limitations applicable
21 to personal injury actions is the most analogous state statute of
22 limitations for claims brought under . . . the ADA”). Under all
23 three statutory regimes, claims accrue “when [plaintiff] knew or
8
1 had reason to know of the injury serving as the basis for his
2 claim.” Harris, 186 F.3d at 247.
3 The action was brought on January 28, 2013; therefore, any
4 claims that accrued prior to January 28, 2010―including Katie
5 Collins’ claim that defendants failed to provide a 1:1 aide―are
6 untimely. Even if we apply the infancy toll under N.Y. C.P.L.R.
7 § 208, the statute of limitations is only tolled for three years
8 after infancy ceases. Katie Collins turned 18 on January 3,
9 2010, so the statute of limitations was only extended until
10 January 3, 2013.
11 We hold that the remainder of plaintiffs’ IEP-related claims
12 challenge the adequacy rather than the implementation of IEPs and
13 should have been exhausted. See Polera, 288 F.3d at 489
14 (cautioning that claims of failure to implement must be “closely
15 examine[d]” lest the “futility exception . . . swallow the
16 exhaustion requirement.”).
17 CONCLUSION
18 We have considered all of the arguments raised by plaintiffs
19 on appeal. For the foregoing reasons, we AFFIRM IN PART AND
20 VACATE AND REMAND IN PART the District Court’s December 12, 2013
21 judgment.
22 FOR THE COURT:
23
24 Catherine O’Hagan Wolfe, Clerk
25
26
9