11-2835-cv
Philip Baldessarre, et al. v. Monroe-Woodbury Central School District, 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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel
Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 14th day
of September, two thousand and twelve.

PRESENT:

          JON O. NEWMAN,
          JOSÉ A. CABRANES,
          ROBERT D. SACK,

                               Circuit Judges.
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PHILIP BALDESSARRE & VALENTINA BALDESSARRE, o/b/o
DANIEL BALDESSARRE,

                                Plaintiffs-Appellants,

          v.                                                                               No. 11-2835-cv

MONROE-WOODBURY CENTRAL SCHOOL DISTRICT, ALTHEA
SCHEPPERLY, in her official capacity,

                                Defendants-Appellees.1

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          1
               The Clerk of Court is directed to amend the caption as set forth above.

                                                                      1
FOR PLAINTIFFS-APPELLANTS:                               MICHAEL H. SUSSMAN, Sussman & Watkins,
                                                         Goshen, NY (Mary Jo Whateley, Legal
                                                         Services of the Hudson Valley, Newburgh,
                                                         NY, on the brief).

FOR DEFENDANTS-APPELLEES:                                JAMES P. DROHAN, Thomas, Drohan,
                                                         Waxman, Petigrow & Mayle, LLP, Hopewell
                                                         Junction, NY.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Kenneth M. Karas, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Plaintiffs-appellants appeal from a judgment of the District Court granting the defendants-
appellees’ motion to dismiss for lack of subject-matter jurisdiction and, alternatively, for judgment
on the pleadings, pursuant to Rules 12(b)(1) and 12(c) of the Federal Rules of Civil Procedure.2 We
assume the parties’ familiarity with the facts and procedural history of the case, and the issues on
appeal.

         The District Court dismissed the case in light of the plaintiffs’ failure to exhaust their
administrative remedies under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §
1400 et seq. Although the Amended Complaint did not include a claim expressly under the IDEA,
the District Court held that the claims purportedly arising under the Americans with Disabilities Act,
42 U.S.C. § 12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 701 et seq., “all relate to the
identification, evaluation, or educational placement of Daniel, or his treatment by his teacher
because of his disability, and therefore these claims all invoke Daniel’s right to a free appropriate
public education” under the IDEA. Baldessarre v. Monroe-Woodbury Cent. Sch. Dist., 820 F. Supp. 2d
490, 505 (S.D.N.Y. 2011). Accordingly, the District Court found that the relief the plaintiffs sought
was “available under the IDEA” and that the IDEA’s exhaustion requirement applied. Id. at
507–08.

        We review de novo a district court’s dismissal of a complaint pursuant to Rules 12(b)(1) or
12(c), accepting the well-pleaded allegations in the complaint as true. See Sharkey v. Quarantillo, 541
F.3d 75, 82 (2d Cir. 2008) (Rule 12(b)(1)); Morris v. Schroder Capital Mgmt. Int’l, 445 F.3d 525, 529 (2d

        2
          The defendants filed a motion for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure, but, in view of the fact that no discovery had occurred, the District Court
converted the motion into a motion to dismiss for lack of subject-matter jurisdiction under Rule
12(b)(1) or for judgment on the pleadings pursuant to Rule 12(c).
                                                    2
Cir. 2006) (Rule 12(c)). Having undertaken a de novo review of the record on appeal, and upon
consideration of the arguments of the parties, we affirm the judgment of the District Court,
substantially for the reasons stated in its comprehensive and well-reasoned Opinion and Order of
June 29, 2011. See Baldessarre, 820 F. Supp. 2d at 493–510.

        1.      Plaintiffs Failed to Exhaust Administrative Remedies under the IDEA

         “It is well settled that the IDEA requires an aggrieved party to exhaust all administrative
remedies before bringing a civil action in federal or state court.” J.S. ex rel. N.S. v. Attica Cent. Schs.,
386 F.3d 107, 112 (2d Cir. 2004). Moreover, “potential plaintiffs with grievances related to the
education of disabled children generally must exhaust their administrative remedies before filing suit
in federal court, even if their claims are formulated under a statute other than the IDEA (such as the
ADA or the Rehabilitation Act).” Polera v. Bd. of Educ. of Newburgh, 288 F.3d 478, 481 (2d Cir. 2002);
20 U.S.C. § 1415(l) (“Nothing in [the IDEA] shall be construed to restrict or limit the rights,
procedures, and remedies available under . . . other Federal laws protecting the rights of children
with disabilities, except that before the filing of a civil action under such laws seeking relief that is
also available under [the IDEA], the procedures under subsections (f) and (g) shall be exhausted to
the same extent as would be required had the action been brought under [the IDEA].”). We have
held, on multiple occasions, that the “[f]ailure to exhaust the [IDEA’s] administrative remedies
deprives the court of subject matter jurisdiction.” Cave v. East Meadow Union Free Sch. Dist., 514 F.3d
240, 245 (2d Cir. 2008) (citing Polera, 288 F.3d at 483 and Hope v. Cortines, 69 F.3d 687, 688 (2d Cir.
1995)).3

         There is no dispute that the plaintiffs did not exhaust the administrative remedies available
to them and required by the IDEA. Moreover, as the District Court observed, the relief sought by
the plaintiffs is “relief that is also available under [the IDEA].” 20 U.S.C. § 1415(l). Although the
plaintiffs, in addition to injunctive relief, seek compensatory damages—a form of relief not available
under the IDEA, see Polera, 288 F.3d at 486—we have made clear that “a disabled student who
claims deficiencies in [his] educational program may not bypass the IDEA’s administrative
exhaustion rule merely by claiming monetary damages.” Cave, 514 F.3d at 247. Rather, “the theory


        3
           The plaintiffs urge us to abandon our previous holding and instead “follow the Seventh,
Ninth, and Eleventh Circuits, and hold here that a failure to exhaust administrative remedies does
not divest the Court of its subject matter jurisdiction but, rather, is an affirmative defense.”
Appellants’ Br. at 20. We decline the invitation, which is beyond our authority as a panel. See In re
Zarnel, 619 F.3d 156, 168 (2d Cir. 2010) (“This panel is bound by the decisions of prior panels until
such time as they are overruled either by an en banc panel of our Court or by the Supreme Court.”
(internal quotation marks omitted)). In any event, whether exhaustion is a jurisdictional prerequisite
or simply an affirmative defense is irrelevant here because the defendants properly raised that
argument in their answer to the plaintiffs’ complaint.
                                                     3
behind the grievance may activate the IDEA process, even if the plaintiff wants a form of relief that the
IDEA does not supply.” Id. at 246 (emphasis added) (internal quotation marks omitted).

         Here, the theory behind the plaintiffs’ grievance was that the defendant school district’s
classification and placement of the student, Daniel, was discriminatory and resulted in his being
mistreated by his teacher, defendant Nalick. The IDEA provides relief for this type of grievance.
As we stated in Cave, “[p]arents are specifically entitled to request a due process hearing in order to
present complaints as ‘to any matter relating to the identification, evaluation, or educational
placement of the child, or the provision of a free appropriate public education.’” 514 F.3d at 245
(quoting 20 U.S.C. § 1415(b)(6)(A)). That plaintiffs declined to exercise their rights under the
IDEA’s administrative enforcement regime does not entitle them to come straight to federal court,
thereby depriving the state education agency of the opportunity “to bring its expertise to bear on
[the] problem as well as to correct its own mistakes,” if any. Heldman v. Sobol, 962 F.2d 148, 159 (2d
Cir. 1992). Further, the IDEA provides relief “[f]or disabled students such as [Daniel] who are
removed from school for disciplinary reasons.” Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d
198, 209 (2d Cir. 2007) (Straub, J., concurring) (citing, inter alia, 20 U.S.C. § 1415(k)(1)(E) (providing
a right to a “manifestation hearing” to determine whether student’s conduct was caused by or
directly related to his disability)).

         The District Court’s holding that the plaintiffs’ failure to exhaust the IDEA’s administrative
remedies required dismissal of their complaint was clearly compelled by our Circuit precedent. The
plaintiffs apparently do not contest this, but, rather, request that we abandon this precedent and
instead adopt the view of the Court of Appeals for the Ninth Circuit. See Payne v. Peninsula Sch. Dist.,
653 F.3d 863, 871 (9th Cir. 2011) (en banc) (“Non-IDEA claims that do not seek relief available
under the IDEA are not subject to the exhaustion requirement, even if they allege injuries that could
conceivably have been redressed by the IDEA.”). We decline to do so. “This panel is bound by the
decisions of prior panels until . . . they are overruled either by an en banc panel of our Court or by
the Supreme Court.” In re Zarnel, 619 F.3d 156, 168 (2d Cir. 2010) (quotation marks omitted).

        2.      Plaintiffs Failed to Show That Exhaustion Would Be Futile

         The IDEA’s exhaustion requirement “does not apply ‘in situations in which exhaustion
would be futile.’” Coleman, 503 F.3d at 205 (quoting Polera, 288 F.3d at 488). “The party seeking to
avoid exhaustion bears the burden of showing futility.” Cave, 514 F.3d at 249. Although plaintiffs
argued in the District Court that exhaustion would have been futile, they do not make such an
argument in their opening brief, and therefore are deemed to have abandoned it. See J.P. Morgan
Chase Bank v. Altos Hornos de Mex., S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005) (“[A]rguments not
made in an appellant’s opening brief are waived even if the appellant pursued those arguments in the
district court or raised them in a reply brief.”).
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          Even if we were to consider the argument, however, we would find it meritless. “To show
futility, a plaintiff must demonstrate that adequate remedies are not reasonably available or that the
wrongs alleged could not or would not have been corrected by resort to the administrative hearing
process.” Coleman, 503 F.3d at 205 (internal quotation marks omitted). We have accepted
arguments of futility where parents were not informed of administrative remedies, see Weixel v. Bd. of
Educ., 287 F.3d 138, 149 (2d Cir. 2002), where the state agency was itself acting contrary to law, see
Heldman ex rel. T.H. v. Sobol, 962 F.2d 148, 159 (2d Cir. 1992), where the case involves “systemic
violations that could not be remedied by local or state administrative agencies,” Cave, 514 F.3d at
249, or where “‘an emergency situation exists (e.g., the failure to take immediate action will adversely
affect a child’s mental or physical health),’” Coleman, 503 F.3d at 206 (emphasis omitted) (quoting
H.R. Rep. No. 296, 99th Cong., 1st Sess. 7 (1985)). None of these situations apply in this case. As
the District Court held, “[p]laintiffs have alleged no facts from which the Court can conclude that
exhaustion might be futile or excused.” Baldessarre, 820 F. Supp. 2d at 509.

        3.      The Official Capacity Claims Do Not Survive

        In their reply brief, the plaintiffs argue that their claim for injunctive relief against defendant
Schepperly (the school district’s Director of Pupil Personnel Services) in her official capacity should
be permitted to go forward, notwithstanding the District Court’s dismissal of their complaint.4 “The
real party in interest in an official-capacity suit is the government entity.” Henrietta D. v. Bloomberg,
331 F.3d 261, 288 (2d Cir. 2003). The plaintiffs advance no separate claims against defendant
Schepperly; she is merely identified as a defendant with respect to the plaintiffs’ ADA and
Rehabilitation Act claims. Accordingly, the plaintiffs’ failure to exhaust administrative remedies
compelled dismissal of their complaint against Schepperly, as well as the school district.

                                            CONCLUSION

         We have considered all of the plaintiffs’ arguments on appeal and find them to be without
merit. Accordingly, for the reasons stated above, we AFFIRM the judgment of the District Court
in its entirety.

                                                 FOR THE COURT,
                                                 Catherine O’Hagan Wolfe, Clerk of Court




        4
         The plaintiffs withdrew their claim against defendant Nalick and agreed to dismiss her
from the case. See Baldessarre, 820 F. Supp. 2d at 509. They do not seek to reinstate her on appeal.
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