Opinion
5:95-CV-1081 (FJS/GJD)
April 5, 2004
MITCHELL J. KATZ, ESQ., MENTER, RUDIN TRIVELPIECE, P.C., Syracuse, New York, for Plaintiff
S. PAUL BATTAGLIA, ESQ., BOND, SCHOENECK KING, PLLC, Syracuse, New York, for Defendant Canastota Central School District
SENTA B. SIUDA, AAG, Syracuse, New York, for Defendant Commissioner of Education of the State of New York
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff's father initially brought this action pro se on behalf of himself and Plaintiff, asserting claims under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq., and the Due Process Clause of the Fourteenth Amendment to the United States Constitution against a number of individuals who worked for Defendant Canastota Central School District ("CCSD"), Defendant CCSD School Board members, Defendant CCSD itself, and Defendant Thomas Sobol, the Commissioner of Education of the State of New York.
In 1991, Plaintiff, who was then fifteen years old, was seriously injured in an automobile accident. As a result of the injuries he sustained in the accident, he has been classified as traumatic brain injured. See Wenger v. Canastota Cent. Sch. Dist., 961 F. Supp. 416, 418 (N.D.N.Y. 1997), affdinpart, vacated and remanded, 146 F.3d 123 (2d Cir. 1998). In 1992 and again in 1994, doctors determined that Plaintiff was in a "persistent vegetative state." Id. at 418 n. 1.
The CCSD Defendants moved for summary judgment and Defendant Sobol moved for judgment on the pleadings. On April 14, 1997, this Court granted Defendants' motions and dismissed the complaint in its entirety. See Wenger v. Canastota Cent. Sch. Dist., 961 F. Supp. 416 (N.D.N.Y. 1997), affdin part, vacated and remanded, 146 F.3d 123 (2d Cir. 1998). Plaintiff's father appealed the dismissal to the Second Circuit.
Prior to the Court issuing its April 14, 1997 Memorandum-Decision and Order, Magistrate Judge DiBianco. had considered and denied Plaintiff's father's motion for appointment of counsel. At that time, there was no request for appointment of counsel on behalf of Plaintiff.
The Second Circuit affirmed the dismissal of the action in its entirety as to Plaintiff's father's claims. However, the court held that it was clear that Plaintiff's father could not represent Plaintiff and that this Court should have focused on Plaintiff's need for counsel. Therefore, the Second Circuit vacated this Court's judgment as to Plaintiff and remanded so that this Court could consider whether appointment of counsel was appropriate. See Wenger, 146 F.3d at 125-126. This Court referred the question of appointment of counsel to Magistrate Judge DiBianco.
In an abundance of caution and in the interest of protecting the rights of a disabled plaintiff, Magistrate Judge DiBianco. requested that an attorney evaluate the case to determine whether appointment of counsel was appropriate. In October 2001, after reviewing counsel's confidential report, Magistrate Judge DiBianco. appointed counsel based upon counsel's statement that he believed that "some" of Plaintiff's claims were "potentially meritorious" and may not have been advanced in an appropriate manner.
On May 27, 2003, the parties filed a stipulation dismissing Plaintiff's father as a plaintiff and dismissing all Defendants from this action with prejudice, except for Defendant CCSD and Defendant Sobol. See Dkt. No. 80. In addition, counsel moved to amend Plaintiff's father's original pro se complaint in an attempt to raise properly the "potentially meritorious" claims.
On March 1, 2004, Magistrate Judge DiBianco. issued an Order and Report-Recommendation in which he denied Plaintiff's motion to amend the complaint and recommended that this Court sua sponte grant summary judgment to Defendants and dismiss the complaint in its entirety.
Presently before the Court are Plaintiff's objections to that Order and Report-Recommendation.
II. DISCUSSION
A. Plaintiff's motion to amend the complaint
Generally, a court, in exercising its discretion whether to grant leave to amend, must act pursuant to Rule 15(a) of the Federal Rules of Civil Procedure and grant such a motion "freely . . . when justice so requires." Fed.R.Civ.P. 15(a); see also Foman v. Davis, 371 U.S. 178, 182 (1962). In deciding whether to grant a motion to amend, a court must examine whether there has been "`undue delay, bad faith or dilatory motive'" on the part of the movant. See Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 46 (2d Cir. 1983) (quotation omitted). A court must also consider whether the amendment would be unduly prejudicial to the opposing party. See Kovian v. Fulton County Nat'l Bank Trust Co., 86-CV-154, 1992 WL 106814, *1 (N.D.N.Y. May 13, 1992) (quotation omitted). Finally, "[w]here it appears that granting leave to amend is unlikely to be productive" or that the amendment would be fufile, it is not an abuse of discretion for a court to deny leave to amend. See Ruffolo v. Oppenheimer Co., 987 F.2d 129, 131 (2d Cir. 1993) (citations omitted).
Plaintiff's proposed amended complaint contains two causes of action, one against Defendant CCSD and the other against Defendant Sobol. Plaintiff brings both of these claims pursuant to § 1983 for alleged violations of the IDEA and seeks only monetary damages. Magistrate Judge DiBianco. concluded that allowing Plaintiff to file this amended complaint would be fufile. Plaintiff objects to that conclusion. The Court will address each of Plaintiff's objections in turn.
1. Plaintiff's proposed amendment regarding Defendant Sobol in his individual capacity
Magistrate Judge DiBianco. determined that, rather than asserting that Defendant Sobol was personally involved in the alleged violation of Plaintiff's rights under the IDEA, the proposed amended complaint essentially alleged respondeat superior liability, which is not available under § 1983. Therefore, he denied as fufile Plaintiff's motion to amend the complaint to assert a claim against Defendant Sobol in his individual capacity.
Plaintiff does not appeal from this part of Magistrate Judge DiBianco's Order. As Magistrate Judge DiBianco. correctly noted, absent allegations of personal involvement, a § 1983 claim will not lie against an official in his individual capacity. See Hernandez v. Keane, 341 F.3d 137, 144-45 (2d Cir. 2003) (citation omitted). Since none of the allegations in the proposed amended complaint assert that Defendant Sobol was personally involved in the alleged violations of Plaintiff's rights under the IDEA, the Court affirms that part of the Order denying as fufile Plaintiff's motion to amend the complaint to assert an individual-capacity claim against Defendant Sobol.
2. Plaintiff's proposed amendment regarding Defendant Sobol in his official capacity
Magistrate Judge DiBianco. held that, because Defendant Sobol is clearly an official of New York State and New York State has not waived its immunity under § 1983, Plaintiff's proposed amendment to assert an official-capacity claim against Defendant Sobol would be fufile.
Plaintiff appeals from this part of Magistrate Judge DiBianco's Order on the ground that the IDEA specifically abrogates the states' immunity under the Eleventh Amendment for suits brought based upon a violation of the IDEA. See Plaintiff's Objections at ¶ 3 (citing 20 U.S.C. § 1403(a) (West 2004) ("A State shall not be immune under the eleventh amendment to the Constitution of the United States from suit in Federal court for a violation of this Act [the IDEA]"); Little Rock School District v. State of Arkansas, 183 F.3d 816 (8th Cir. 1999)).
Despite Plaintiff's assertion to the contrary, he cannot maintain a claim under § 1983 against Defendant Sobol in his official capacity, even if that claim is premised upon a violation of the IDEA. In Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476 (2d Cir. 2002), the plaintiffs asserted claims under the IDEA, the Fourteenth Amendment, and § 1983. The Second Circuit agreed with the district court that the Eleventh Amendment required dismissal of the plaintiffs' § 1983 claim. See id. at 480 (citations omitted). Moreover, the court held that "§ 1403(a)'s waiver of sovereign immunity extends only to claims brought pursuant to the IDEA, not claims brought pursuant to § 1983. . . ." Id. The court reasoned that "a waiver of sovereign immunity must be `made either by invoking federal jurisdiction or by a clear declaration, a "stringent" test.' . . . The IDEA contains no such clear statement with regard to § 1983 claims, and so cannot be construed as a waiver." Id. (internal citations omitted).
The case that Plaintiff cites for the proposition that Congress abrogated the states' immunity under the Eleventh Amendment for suits based upon a violation of the IDEA, Little Rock Sch. Dist. v. Mauney, 183 F.3d 816 (8th Cir. 1999), was abrogated by the Eight Circuit's decision in Bradley v. Arkansas Dep't of Educ., 189 F.3d 745 (8th Cir. 1999). In Bradley, the Eighth Circuit held that, although " Mauney's determination that § 1403 offers an unequivocal expression of Congress's intent to abrogate the states' immunity remains correct[,]" "[t]he IDEA . . . cannot be an appropriate exercise of Congress's § 5 power, and its abrogation provision is not valid. . . .[thus, the abrogation] portion of Mauney no longer represents current law." Id. at 751-52 (citations omitted). The court in Bradley, however, did uphold that part of Mauney which held that "Arkansas waived its Eleventh Amendment immunity by receiving funds appropriated under the IDEA." Id. at 752 (citation omitted).
Based upon the Second Circuit's decision in Schutz, the Court affirms Magistrate Judge DiBianco's Order denying as fufile Plaintiff's motion to amend the complaint to assert a claim against Defendant Sobol in his official capacity. 3. Plaintiff's proposed amendment regarding Defendant CCSD
Magistrate Judge DiBianco. began his analysis of Plaintiff's proposed claims against Defendant CCSD by noting that, because Defendant CCSD is considered a municipality for purposes of § 1983, to hold Defendant CCSD liable for the alleged violation of his rights under the IDEA, Plaintiff must show that these violations occurred as a result of a policy statement, ordinance, regulation or decision officially adopted and promulgated by Defendant CCSD's officers.
Magistrate Judge DiBianco. then reviewed Plaintiff's proposed amended complaint in which he sought to allege two different ways in which Defendant CCSD violated the IDEA. First, Plaintiff alleges that the 1994-1995 IEP itself was insufficient to afford him a free appropriate public education and, second, that the 1994-1995 IEP was not consistently followed. Magistrate Judge DiBianco. found that the first allegation was essentially the same claim that this Court had previously found to be without merit. Thus, he concluded that any attempt to amend the complaint to assert that the 1994-1995 IEP was insufficient, even under § 1983, would be fufile.
With respect to the proposed claim that the 1994-1995 IEP was not consistently followed, Magistrate Judge DiBianco. noted that Plaintiff did not allege that this violation was part of a policy or custom of Defendant CCSD. He found that, at worst, Plaintiff's claim was that the therapists did not properly follow the 1994-1995 IEP and did not show up on certain days or made up missed services on weekends. Magistrate Judge DiBianco. also found that Plaintiff had made no showing that any alleged errors on the part of the service providers were made by individuals whose actions reflected the policy of Defendant CCSD. Thus, he concluded that any attempt to amend the complaint that the 1994-1995 IEP was not consistently followed would be fufile.
As Magistrate Judge DiBianco. noted, in order for Plaintiff to hold Defendant CCSD liable under § 1983, Plaintiff must show that his rights were violated as the result of a policy, practice or custom of Defendant CCSD. See J.F. v. Sch. Dist. of Philadelphia, No. CIV. A. 98-1793, 2000 WL 361866, *8 (E.D. Pa. Apr. 7, 2000) ("§ 1983 liability attaches to a municipality only when a municipal official, acting with the necessary policy-making authority and with deliberate indifference to the rights of individuals establishes or knows of and acquiesces in a policy, practice or custom which deprives individuals of constitutional or statutory rights." (citations omitted)).
When, as in this case, a plaintiff claims that a subordinate municipal official has committed the alleged violations, "municipal liability turns on the plaintiffs' ability to attribute the subordinates' conduct to the actions or omissions of higher ranking officials with policymaking authority." Amnesty Am. v. Town of W. Hartford, No. 03-7332, 2004 WL 491647, *10 (2d Cir. Mar. 15, 2004). A plaintiff may meet this burden by (1) "establish[ing] that a policymaker ordered or ratified the subordinates' actions," or (2) "show[ing] that the policymaker was aware of a subordinate's . . . actions, and consciously chose to ignore them, effectively ratifying the actions." Id. (citations omitted). Therefore, if a policymaking official exhibits deliberate indifference to a violation of a plaintiff's rights that his subordinates caused such that his inaction "constitutes a `deliberate choice,' that acquiescence may `be properly thought of as a city "policy or custom" that is actionable under § 1983.'" Id. (quotation and citations omitted).
In pertinent part, Plaintiff's proposed amended complaint alleges
that "the 1994-1995 IEP was inappropriate, and grossly insufficient to meet [Plaintiff's] unique educational needs to the point of constituting neglect on the part of the CCSD," see Proposed Amended Complaint at ¶ 19;
that "the IEP that was developed for [Plaintiff] was intended to provide the absolute minimum amount of `services' for [Plaintiff] technically required under state and federal law, without regard to whether those services were appropriate or would actually benefit [Plaintiff]," see id. at ¶ 19;
that "CCSD utterly failed and neglected to make sure that the 1994-1995 IEP was implemented in a consistent manner," see id. at 120;
that "the employees or agents of CCSD responsible for implementing the 1994-1995 IEP failed to provide the services outlined in the 1994-1995 IEP on a consistent basis by failing to show up at all for their scheduled times with [Plaintiff] or by engaging in activity other than that provided for in the IEP during the scheduled sessions with [Plaintiff]," see id. at ¶ 21;
that "those employees or agents of CCSD responsible for implementing the 1994-1995 IEP would often skip [Plaintiff's] scheduled sessions altogether," see id. at ¶ 22;
that "those employees or agents of CCSD responsible for implementing the 1994-1995 IEP would often engage in activities unrelated to [sic] instead of providing [Plaintiff] with the services called for in the IEP," see id. at ¶ 23; and
that "CCSD's, 1) failure to draft an IEP for the 1994-1995 school year that was designed to meet [Plaintiff's] unique educational needs, and instead drafting an IEP that was designed to provide the absolute minimum amount of services to [Plaintiff], 2) failure to make sure that the 1994-1995 IEP was implemented by those employees and agents of CCSD whose job it was to make sure that the 1994-1995 [IEP] was implemented, 3) permissiveness in allowing those agents or employees of CCSD responsible for implementing the IEP to skip sessions with [Plaintiff] altogether or engage in activities unrelated to [Plaintiff's] education during scheduled sessions, constitute deliberate indifference on the part of CCSD towards [Plaintiff's] right to a free and appropriate public education as guaranteed by the IDEA," see id. at ¶ 24.
As a preliminary matter, Magistrate Judge DiBianco. correctly determined that Plaintiff's proposed claim that the 1994-1995 IEP was insufficient to afford him a free appropriate public education was essentially the same claim that this Court had previously found to be without merit. In its previous decision, this Court noted that "[t]he issue before the Court . . . is whether [Plaintiff's] 1994-95 IEP was `reasonably calculated to enable [him] to receive educational benefits.'" Wenger, 961 F. Supp. at 420 (quotation omitted). The Court then explained that neither at the hearing nor in opposition to Defendants' motion for summary judgment had Plaintiff's father "provide[d] any evidence indicating that [Plaintiff] would benefit from increased special education and related services, i.e., occupational and physical therapy." Id. at 421 (footnote omitted). The Court further noted that "[a]fter considering all the evidence before him, the hearing officer decided that [Plaintiff's] 1994-95 IEP was appropriate and that [Plaintiff's] needs were primarily medical rather than educational. The SRO concurred with the hearing officer's decision and likewise found that Plaintiff's 1994-95 IEP was appropriate." Id. (footnotes omitted). The Court concluded that
[g]iven the severity of [Plaintiff's] physical and mental condition, the evidence before the hearing officer clearly established that the special education and related services provided pursuant to [Plaintiff's] 1994-95 IEP were reasonably calculated to achieve these goals. . . . Therefore, on the basis of the record before the Court and giving due deference to the administrative proceedings below, the Court finds that [Plaintiff's] 1994-95 IEP was reasonably calculated to provide educational benefits and that [Plaintiff] was afforded a `free appropriate public education' as required by the IDEA.Id. at 421-22 (internal footnote omitted).
Plaintiff has pointed to nothing in the record that would warrant the Court reconsidering this conclusion. The fact that Plaintiff's father brought his claim under the IDEA, rather than § 1983, does not change the nature of the claim. Although Plaintiff argues that his counsel is able to argue a "viable legal theory" where his father was not, in effect, the only difference between these two claims is the type of relief sought. Moreover, Plaintiff has offered no legal support for his proposition that the Court, although bound to defer to the findings of the administrative officer under the IDEA, is not bound by the same deferential standard under § 1983. Accordingly, for all these reasons, the Court affirms Magistrate Judge DiBianco's Order denying as fufile Plaintiff's motion to amend the complaint to assert a claim against Defendant CCSD based upon the alleged insufficiency of the 1994-1995 IEP.
The final proposed amendment involves Plaintiff's claim that Defendant CCSD was deliberately indifferent to his rights under the IDEA. Even if the Court were to look only at the proposed amended complaint, as Plaintiff argues, his claim fails for a number of reasons. First, he has not identified a specific policymaker who was deliberately indifferent to his subordinates' actions with regard to Plaintiff. Nor has Plaintiff identified any policy or custom of Defendant CCSD that led to the alleged violation of his rights under the IDEA. Moreover, even if the Court were to consider Defendant CCSD, as a whole, to be the putative policymaker, Plaintiff has not alleged any facts to support his contention that Defendant CCSD failed to train or supervise its employees with regard to the proper implementation of the 1994-1995 IEP. Accordingly, for all these reasons, the Court affirms Magistrate Judge DiBianco's Order denying as fufile Plaintiff's motion to amend the complaint to assert a claim against Defendant CCSD based upon the allegation that the 1994-1995 IEP was not consistently followed.
Plaintiff argues, in his objections, that Magistrate Judge DiBianco. erred because he did not use the correct legal standard in addressing his motion to amend the complaint, i.e., that he should have used the same standard as that applicable to a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. However, to support his motion to amend, Plaintiff relied upon extrinsic evidence. Therefore, to the extent that Magistrate Judge DiBianco. looked outside the proposed amended complaint to reach his decision that amendment would be fufile, the Court concludes that this was appropriate.
B. Magistrate Judge DiBianco's recommendation that the Court sua sponte grant summary judgment in favor of Defendant CCSD and dismiss the complaint in its entirety
After denying Plaintiff's motion to amend in its entirety, Magistrate Judge DiBianco. recommended that the Court dismiss the complaint because this Court had already held that the complaint was insufficient to withstand summary judgment and the Second Circuit had affirmed that determination.
The complaint alleges, among other things,
(1) that the CCSD Defendants failed to provide [Plaintiff] with an appropriate education in violation of the IDEA, 20 U.S.C. § 1400 et seq.; (2) that the CCSD Defendants discriminated against [Plaintiff] on the basis of his disability in violation of section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq.; and (3) that the CCSD Defendants violated [Plaintiff's father's] and [Plaintiff's] due process rights in violation of the Fourteenth Amendment to the United States Constitution.Wenger, 961 F. Supp. at 419.
This Court granted the CCSD Defendants' motion for summary judgment with respect to each of these claims. On appeal, the Second Circuit held that, like this Court, it "ha[d] considered all of [Plaintiff's father's] arguments [with regard to his claim that the CCSD Defendants had violated his rights as a parent under the IDEA by failing properly to advise him of those rights, by not including him fully in the development of [Plaintiff's] educational plan, and by not allowing him a meaningful voice in determining the nature and extent of the services [Plaintiff] would receive] and have found them to be without merit." Wenger, 146 F.3d at 126. Therefore, the Second Circuit affirmed this Court's dismissal of Plaintiff's father's claims "for substantially the reasons stated by that court." Id.
Although it is unusual for a court to grant summary judgment sua sponte, this case presents a unique set of circumstances. See First Fin. Ins. Co. v. Allstate Interior Demolition Corp., 193 F.3d 109, 114-15 (2d Cir. 1999) ("`Where it appears clearly upon the record that all of the evidentiary materials that a party might submit in response to a motion for summary judgment are before the court, a sua sponte grant of summary judgment against that party may be appropriate if those materials show that no material dispute of fact exists and that the other party is entitled to judgment as a matter of law.'" (quotation omitted)). With respect to Plaintiff's IDEA claim, since he is now over twenty-two, this claim is moot. Cf. St. Johnsbury Academy v. D.H., 240 F.3d 163, 168 (2d Cir. 2001) (citations omitted). Therefore, the Court grants summary judgment to Defendant CCSD with respect to this claim.
In First Fin. Ins., the court explained that the district court should take care "`to determine that the party against whom summary judgment is rendered has had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried, and that the party for whom summary judgment is rendered is entitled thereto as a matter of law.'" First Fin. Ins., 193 F.3d at 115 (quotation omitted). The court went on to state that
"Before granting summary judgment sua sponte, the district court must assure itself that following the procedures set out in Rule 56 would not alter the outcome. Discovery must either have been completed, or it must be clear that further discovery would be of no benefit. The record must, therefore, reflect the losing party's inability to enhance the evidence supporting its position and the winning party's entitlement to judgment."Id. (quotation omitted).
In this case, all of these elements are met. All discovery is completed — the administrative record is complete and there is nothing Plaintiff's counsel can do to change that record. Moreover, although Magistrate Judge DiBianco. specifically informed Plaintiff that he could raise any arguments that summary judgment would be inappropriate in his objections, Plaintiff's only response is that, if the Court were to allow the case to continue, he would attempt to prove that the 1994-1995 IEP was insufficient. However, he does not point to any material issue of fact that would preclude a grant of summary judgment.
Alternatively, the Court previously determined that Defendant CCSD provided Plaintiff with a free appropriate public education pursuant to the IDEA, and Plaintiff's counsel argues only that, if the Court allows this action to continue, he will endeavor to prove that the 1994-1995 IEP was insufficient. He does not state how he proposes to do this nor does he state what new evidence he could present to the Court that could possibly change the contents of the administrative record. Therefore, the Court grants summary judgment to Defendant CCSD on this alternative ground as well.
With respect to Plaintiff's § 504 claim, this Court previously held that "[i]n order to make out a violation of section 504 in the context of educating children with disabilities, a plaintiff must demonstrate not only that there was a failure to provide an appropriate education, he or she must also demonstrate bad faith or gross misjudgment." Wenger, 961 F. Supp. at 422 (citing Monahan v. State of Nebraska, 687 F.2d 1164, 1170-71 (8th Cir. 1982)). The Court granted the CCSD Defendants' motion for summary judgment with respect to this claim because Plaintiff's father "ha[d] failed to demonstrate a failure to provide a free appropriate education, not to mention bad faith or gross misjudgment." Id. In his objections, Plaintiff does not even attempt to demonstrate either bad faith or gross misjudgment on Defendant CCSD's part. Moreover, there is nothing in either Plaintiff's complaint or in the administrative record that would support such a claim. In addition, the Court has already determined that Plaintiff received a free appropriate public education, and Plaintiff has pointed to nothing in the record that would rebut this conclusion. Accordingly, the Court grants summary judgment to Defendant CCSD with respect to Plaintiff's § 504 claim.
With respect to Plaintiff's due process claim, this Court previously held that "because . . . the Court finds that the CCSD Defendants did not deny [Plaintiff] the right to an appropriate education . . . [the] due process claim is dismissed as a matter of law." Id. at 422. This claim is totally dependent on a finding that Defendant CCSD failed to provide Plaintiff with a free appropriate public education. The Court, however, has already determined that Defendant CCSD did, in fact, provide Plaintiff with such an education as the IDEA requires. Moreover, Plaintiff has not offered any argument to rebut this conclusion. Accordingly, the Court grants summary judgment to Defendant CCSD with respect to Plaintiff's due process claim.
The Court also noted that "while parents of children with disabilities are entitled to bring actions based on alleged violations of the Due Process Clause of the Fourteenth Amendment, these actions must be brought pursuant to 42 U.S.C. § 1983." Wenger, 961 F. Supp. at 422 n. 15 (citation omitted).
Finally, with respect to Plaintiff's claim that Defendant Sobol violated the IDEA by failing to ensure that Plaintiff received a free appropriate public education or take affirmative measures to remedy the actions of Defendant CCSD, the Court previously held that
[Plaintiff's father] fails to allege facts to support his conclusory allegation that Defendant Sobol "failed and neglected" to ensure the rights of [Plaintiff] under the IDEA. Specifically, the complaint fails to state which rights under the IDEA Defendant Sobol failed to protect, and how Defendant Sobol failed and neglected to ensure these rights. As to [Plaintiff's father's] claim that Defendant Sobol failed to take affirmative measures to remedy the actions of the CCSD, [Plaintiff's father] fails to allege when and how Defendant Sobol failed to take these measures.Wenger, 961 F. Supp. at 423.
Therefore, this Court granted Defendant Sobol's motion for judgment on the pleadings because Plaintiff's father's complaint failed to state a claim upon which relief could be granted. See id.
It is not clear that Plaintiff's father appealed this part of the Court's decision.
Plaintiff has not come forward with any evidence nor offered any substantive argument that would warrant the Court's reconsideration of its previous decision regarding this claim. Accordingly, the Court grants summary judgment to Defendant Sobol with respect to this claim.
III. CONCLUSION
After carefully reviewing the file in this matter, Magistrate Judge DiBianco's March 1, 2004 Order and Report-Recommendation, Plaintiff's objections and Defendants' responses thereto, and the applicable law, and for the reasons stated herein, the Court hereby
ORDERS that Magistrate Judge DiBianco's Order denying Plaintiff's motion to amend the complaint in this action is AFFIRMED in its entirety; and the Court further
ORDERS that Magistrate Judge DiBianco's recommendation that the Court sua sponte grant summary judgment to Defendants is ADOPTED in its entirety; and the Court further
ORDERS that summary judgment is GRANTED to Defendants with respect to all of the claims in the complaint; and the Court further ORDERS that the Clerk of the Court enter judgment in favor of Defendants and close this case.
IT IS SO ORDERED.