Opinion
02 Civ. 1050 (RCC) (RLE)
October 2, 2002
Pro se plaintiff, Richard Fauconier, Troy, NY.
Attorney for defendants, Nancy Jane Botta Assistant Corporation Counsel New York, NY.
REPORT AND RECOMMENDATION
I. INTRODUCTION
On February 11, 2002, pro se plaintiff Richard Fauconier ("Fauconier"), filed a complaint on behalf of his son, M.F., against the Committee of Special Education, District 3 ("District 3"), and the New York City Board of Education ("Board of Education") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. On July 24, 2002, defendants filed a motion to dismiss for lack of subject matter jurisdiction over District 3 and the Board of Education because of failure to exhaust administrative remedies, the Rooker-Feldman doctrine, and failure to join necessary parties. For the reasons set forth below, I recommend that defendants' motion to dismiss be GRANTED, and plaintiffs complaint be DISMISSED WITHOUT PREJUDICE.
In order to protect the child's privacy, the child will be referred to in these proceedings as "M.F."
II. BACKGROUND
Fauconier, a divorced father of two, brings this action on behalf of M.F., his eleven year-old son. M.F. has been diagnosed with Attention Deficit Hyperactive Disorder. See Amended Complaint, Exhibit K. He attends the Forum School, a private school for emotionally, physically and mentally challenged students in Waldwick, New Jersey. Id. at ¶ 21. Because of M.F.'s disability, his education at the Forum School is provided with public funds. Id. From August of 1994 through March of 2001, M.F. was evaluated by District 3 five separate times. Id. at Exhibit L. As a result of these evaluations, District 3 determined that M.F. is best served by attending the Forum School. Id.On July 27, 2001, Fauconier, M.F.'s non-custodial parent, contacted the Forum School to express concerns about his son's academic achievements and educational development. Id. at ¶ 27. The Forum School indicated that it would only reevaluate M.F. if ordered to do so. Id. By letter dated August 27, 2001, Fauconier complained to District 3 about his son's placement at the Forum School, and requested that M.F. be placed in a mainstream school. Id. at ¶ 26. On September 6, 2001, District 3 responded to Fauconier and indicated that M.F. would not be reevaluated (and thus not transferred out of the Forum School) in the near future. Id. at Exhibit L. Although District 3 dismissed Fauconier's transfer request, he was never informed of his right to an impartial due process hearing. On September 19, 2001, Fauconier once again wrote to District 3, renewing his requests for M.F. to be reevaluated and requesting that M.F. be "mainsteamed" for math and language arts. Id. at Exhibit K. Fauconier also requested to be made a part of M.F.'s individualized education program ("IEP") team. Id. In response, on October 12, 2001, District 3 wrote a letter informing Fauconier that, as the non-custodial parent, he did not have a say in challenging M.F.'s classification or educational placement. Id. at Exhibit M. Further, District 3 advised Fauconier to contact a lawyer, but did not advise him of his right to a hearing, nor were his complaints sent to an independent hearing officer. Id. On October 26, 2001, Fauconier personally visited District 3's home office. Id. at ¶ 29. Fauconier asked to inspect and review all educational records with respect to the identification, evaluation and educational placement of M.F. Id. After being repeatedly rejected, Fauconier was finally told by the Assistant Chairperson of the Committee on Special Education for District 3 that he could not review M.F.'s records because they were under seal by court order. Id. Although Fauconier asked to see the court order, it was never produced. Id. Further, although the defendants reference this court order in their memorandum of law, they have neither specifically identified the court of origin for this order, nor produced it as an exhibit. See Memorandum of Law in Support of Defendant's Motion to Dismiss the Amended Complaint, pp. 4. Fauconier was turned away from District 3's headquarters and, once again, instead of being referred to an independent hearing officer, he was referred to his ex-wife. See Amended Complaint ¶ 29.
Fauconier then received a letter on November 20, 2001, from his ex-wife's attorney. See Plaintiff's Memorandum of Law in Support of Plaintiff's Cross-Motion for Default Judgment in Opposition to Defendant's Motion to Dismiss Exhibit K. The attorney advised Fauconier to stop pressuring" District 3, and informed him that his proper recourse if unhappy with District 3's decision was to file a motion with the court. Id. M.F.'s court appointed law guardian was copied on this letter. Id.
On or around November 5, 2001, Fauconier filed an order to show cause in an Article 78 Special Proceeding in the State of New York Supreme Court, New York County. See Amended Complaint ¶ 32. Fauconier's order to show cause sought to order defendants to provide a new evaluation of M.F., that M.F.'s IEP place M.F. in a "regular education setting with support services," that defendants allow M.F. to take the standardized testing for grade four math and English, that Fauconier be placed on M.F.'s IEP team and receive access to M.F.'s educational records. Id. at Exhibit P. The court declined to sign the order to show cause because of uncertainty whether Fauconier had "the authority to challenge the educational decision-making process regarding his son." Id. at Exhibit Q. The court then referred the matter to the judge who was in charge of all post-divorce matters between Fauconier and his ex-wife. Id. By final disposition dated November 20, 2001, the judge denied Fauconier's order to show cause because he was "not the custodial parent," and therefore not entitled to any educational decision-making under the IDEA. Id. at Exhibit Q. Acting pro se, Fauconier then filed the complaint in this Court on February 11, 2002.
III. DISCUSSION
A. Standard for dismissal under Rule 12(b)(6)
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure should be granted only if it appears beyond doubt that "`no relief could be granted under any set of facts that could be proved consistent with the allegations.'" H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50 (1989) ( citing Hishon v. King Spalding, 467 U.S. 69, 73 (1984)). In reviewing a Rule 12(b)(6) motion, this Court must accept the factual allegations of the complaint as true and must draw all reasonable inferences in favor of the plaintiff. Hishon, 467 U.S. at 73. The Court does not, however, have to accept as true "conclusions of law or unwarranted deductions of fact." First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994), cert. denied, 513 U.S. 1079 (1995) ( citing 2A Moore Lucas, Moore's Federal Practice ¶ 12.08, at 2266-69 (2d ed. 1984)). The review is limited, and "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims[.]" Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995), cert. denied, 519 U.S. 808 (1996).
Pleadings prepared by pro se plaintiffs are held to less stringent standards than those prepared by lawyers. Boddie v. Schneider, 105 F.3d 857, 860 (2d Cir. 1997). Thus, some courts have considered factual allegations in opposition papers by pro se plaintiffs. See, e.g., Gill v. Mooney. 824 F.2d 192, 195 (2d Cir. 1987) (considering allegations in pro se plaintiffs affidavit submitted in opposition to motion to dismiss); Riordan v. Am. Fed'n of Gov't Employees, AFL-CIO, 2001 WL 1352464, at * 3 n. 5 (S.D.N.Y. Nov. 1, 2001) (considering factual allegations in affidavit that were consistent with allegations in the amended complaint); Burgess v. Goord, 1999 WL 33458, at * 1 n. 1 (S.D.N.Y. Jan. 26, 1999) (citing Donahue v. United States Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990) ("The policy reasons favoring liberal construction of pro se pleadings warrant the Court's consideration of the allegations contained in plaintiffs' memorandum of law, at least where those allegations are consistent with the allegations in the complaint.")).
Pro se plaintiffs are not, however, completely relieved of pleading requirements. In order to avoid dismissal, a plaintiff must do more than plead mere "[clonclusory allegations or legal conclusions masquerading as factual conclusions." Gebhardt v. Allspect, Inc., 96 F. Supp.2d 331, 333 (S.D.N.Y. 2000) (quoting 2 James Wm. Moore, Moore's Federal Practice ¶ 12.34[1][b] (3d ed. 1997)); see also Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987) (stating that civil rights complaints "must contain specific allegations of fact which indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under § 1983").
B. Pre-Answer Dismissal
1. Administrative Exhaustion Under the IDEA
The IDEA "mandates federal grants to provide disabled children with a free appropriate public education in the least restrictive appropriate environment." Polera v. Board of Education of Newburgh, 288 F.3d 478, 481 (2d Cir. 2002). To help ensure the education of disabled children, the IDEA provides parents with a wide variety of procedural safeguards, including the right "to examine all records relating to [the] child and to participate in meetings with respect to the identification, evaluation and educational placement of the child," 20 U.S.C. § 1415(b)(1); the right "to obtain an independent educational evaluation of the child," id.; "an opportunity to present complaints with respect to [the educational placement of the child]," id. at § 1415(b)(6); and, whenever such a complaint is made, the right to "an impartial due process hearing . . . by the State educational agency or by the local educational agency." Id. at § 1415(f)(1). Courts have interpreted the IDEA to "impose a broadly applicable requirement that plaintiffs first exhaust administrative remedies." Polera, 288 F.3d at 483. Failure to exhaust administrative remedies under the IDEA will normally deprive a court of subject matter jurisdiction. Id. As the Second Circuit recently observed, "[t]he IDEA's exhaustion requirement was intended to channel disputes related to the education of disabled children into an administrative process that could apply administrators' expertise in the area and promptly resolve grievances." Id. at 487. Therefore, failure to exhaust administrative remedies is customarily fatal for IDEA causes of action.
A parent, however, may bypass the exhaustion requirement of the IDEA "where exhaustion would be futile or inadequate," Honig v. Doe, 484 U.S. 305, 327 (1988), or when "the [administrative] agency [has acted] in violation of the law or was unable to remedy the alleged injury." Heldman v. Sobol, 962 F.2d 148, 159 (2d Cir. 1992). According to 8 N.Y.C.R.R. § 200.5(a), if parents in New York State complain about their child's placement in accordance with the IDEA, the school is to provide a written response which, among other things, informs the parents of their protections and procedural safeguards under New York State law. The state has set up an administrative review process in § 4402(1)(b)(1) of New York Education Law. Under this law, the Committee on Special Education is to refer complaints made by parents to an independent hearing officer, who conducts an initial hearing and makes a recommendation to the Board of Education. See Heldman, 962 F.2d at 152. Parents may then appeal to the Commissioner of Education for a review of the initial hearing. Id. "The scope of the due process hearing is broad, encompassing complaints with respect to any matter relating to the identification, evaluation or educational placement of the child, or the provision of a free appropriate public education to such child." Rose v. Yeaw, 214 F.3d 206, 210 (1st Cir. 2000). Thus, the importance of the administrative process contemplated by the IDEA is clear, and a plaintiff can only be allowed to circumvent those remedies upon a showing of futility.
However, in the case before this Court, it is difficult to command Fauconier to exhaust all administrative remedies when the gatekeepers of those remedies have denied him access. As Fauconier's exhibits demonstrate, and defense counsel concedes, District 3 denied his requests for a change in his son's schooling. Further, instead of referring him to an independent hearing officer, District 3 referred him to his wife. These actions did not conform to the procedural safeguards set out in New York State law. Although Fauconier then took the appropriate step of seeking relief through an Article 78 proceeding, he was again denied access to the appropriate avenues of relief. He cannot, therefore, be penalized for not exhausting administrative remedies when he was effectively denied the opportunity to seek such remedies.
As a final note, both District 3 and the New York State courts have maintained that only custodial parents are afforded rights and protections under the IDEA. However, in the only two cases on point with this issue, both courts have decided that the rights protected under the IDEA apply to both custodial and non-custodial parents. See Fuentes v. Board of Education of the City of New York, 2002 WL 1466421 (E.D.N.Y. 2002); Navin v. Park Ridge School District 64, 270 F.3d 1147 (7th Cir. 2001). Both cases looked to the IDEA's definition of parent, which includes a legal guardian; and . . . an individual assigned [under certain circumstances] . . . to be a surrogate parent." 20 U.S.C. § 1401(19). This language, in conjunction with the definition of parent" under other federal and state laws, led both courts to conclude that "the IDEA grants rights to `parents,' and the regulatory definition of `parent' includes all biological parents." Navin, 270 F.3d at 1149; see also Fuentes, 2002 WL 146642 1*2 (noting that no "statute[s] or regulation[s] limit[s] the definition of parent to one who has custody."). Therefore, "noncustodial status, whether by operation of a divorce decree, incarceration, or otherwise, does not automatically divest a non-custodial parent of all parental rights." Fuentes 2002 WL 1466421*2. I find the reasoning in these cases to be sound. The plain language of the IDEA shows that Congress did not contemplate denying a non-custodial parent the right to ensure that his or her child was receiving a proper education. Indeed, the purpose of the act was to protect the rights of the "parents," and not just "the custodial parent."
District 3 and the state courts improperly denied Fauconier the right to seek administrative remedies under the IDEA. Therefore, the Court finds that Fauconier did not have to exhaust administrative remedies before bringing this suit.
2. Failure to Join Necessary Parties
Defendants argue that Fauconier's complaint should be dismissed for failure to join a necessary party, namely Myrna Coombs, M.F.'s custodial parent and mother. Under Peregrine Myanmer Ltd. v. Segal, 89 F.3d 41, 48 (2d Cir. 1996), an absent party is considered necessary if the court's judgment would require the absent party to do something or change its position. However, under Rule 19(a) of the Federal Rules of Civil Procedure, since Ms. Coombs lives within the Court's jurisdiction, the Court can order that she be joined. Therefore, defendant's request that Fauconier's complaint be dismissed for failure to join a necessary party should be denied.
3. Representing Children Pro Se
Defendants also request that Fauconier's complaint be dismissed because of his pro se status. The Second Circuit has made clear that "a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child." Wenger v. Canastota Central School District, 146 F.3d 123, 124 (2d Cir. 1998) (citing Cheung v. Youth Orchestra Foundation of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990)). The Second Circuit has placed an affirmative duty upon lower courts to enforce the Cheung doctrine, for "[t]he infant is always the ward of every court wherein his rights or property are brought into jeopardy, and is entitled to the most jealous care that no injustice be done to him." Wenger, 146 F.3d at 125 (citation omitted). The rule is designed to protect children, and therefore, "[w]here [children] have claims that require adjudication, they are entitled to trained legal assistance so their rights may be fully protected." Cheung, 906 F.2d at 61. Under this rule, plaintiff cannot proceed pro se to litigate the interests of M.F. Plaintiffs case can only go forward if he is represented by counsel. Therefore, this Court finds that plaintiffs complaint should be dismissed without prejudice.
IV. CONCLUSION
For the foregoing reasons, I recommend that defendants' motion to dismiss be GRANTED WITHOUT PREJUDICE.
Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Richard Conway Casey, 500 Pearl Street, Room 1950, and to the chambers of the undersigned, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Am, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) ( per curiam); 28 U.S.C. § 636(b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).