     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




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