Killoran v. Westhampton Beach School District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CHRISTIAN KILLORAN,

TERRIE KILLORAN, and

AIDEN KILLORAN,

Plaintiffs, MEMORANDUM & ORDER

21-CV-3264(JS)(SIL)

-against-

WESTHAMPTON BEACH SCHOOL

DISTRICT, and

MARY ANN AMBROSINI,

Defendants.

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For Plaintiffs: Christian Killoran, Esq., pro se

Terrie Killoran, pro se

Aiden Killoran, pro se

132-13 Main Street, Suite 13

Westhampton Beach, New York 11978

For Defendants: Anne Leahey, Esq.

ANNE LEAHEY LAW, LLC

17 Dumplin Hill Lane

Huntington, New York 11743

SEYBERT, District Judge:

Pro se plaintiffs Christian Killoran, Terrie Killoran

(together, “the Parents”), and Aiden Killoran (“A.K.”), a special

education student, (collectively, the “Plaintiffs”), commenced

this action against defendants Westhampton Beach School District

(“Westhampton” or the “District”) and Mary Ann Ambrosini (“Dr.

Ambrosini”), the District’s Director of Pupil Personnel,

(together, “the Defendants”). Plaintiffs’ Complaint purports to

allege retaliation claims pursuant to Section 504 of the

Rehabilitation Act (“Rehabilitation Act”), 29 U.S.C. § 701 et seq.,

and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101

et seq. (See Compl., ECF No. 1.) It also purports to allege

constitutional claims pursuant to 42 U.S.C. § 1983 (“Section 1983”)

and a state law breach of contract claim. (See id.) Plaintiffs

seek monetary damages and equitable relief.

Currently pending before the Court is Defendants’ motion

to dismiss Plaintiffs’ Complaint (hereafter, “Dismissal Motion”)

pursuant to Federal Rule of Civil Procedure 12(b)(1). (See ECF

No. 16; see also Support Memo, ECF No. 16-1; Reply, ECF No. 19.)

Plaintiffs oppose the Dismissal Motion. (See Opp’n, ECF No. 21.)

After careful consideration, for the reasons stated herein,

Defendants’ Dismissal Motion is GRANTED with respect to

Plaintiffs’ federal claims. Having disposed of the federal claims,

the Court declines to exercise supplemental jurisdiction over the

remaining state law claim. Accordingly, Plaintiffs’ Complaint is

dismissed in its entirety.

[Remainder of page intentionally left blank.]

BACKGROUND1

I. Factual Background2

This action is one in a series of civil rights litigation

brought by Plaintiffs against Westhampton concerning the education

of A.K. It arises out of an administrative due process hearing

initiated by Plaintiffs pursuant to the Individuals with

Disabilities Education Act (“IDEA”) related to the development of

A.K.’s individualized education plan (“IEP”) and placement for the

2020-2021 academic year. (See Compl.)

Subsequent to A.K.’s August 2020 annual review by the

Committee on Special Education (“CSE”), A.K.’s Parents commenced

an administrative due process proceeding against the District.

(See Compl. ¶¶ 3, 6.) In December 2020, following an

administrative due process hearing, Internal Hearing Officer

(“IHO”) Roslyn Roth (“IHO Roth”) found that the District had failed

to recommend an educational placement recommendation in the least

restrictive environment (“LRE”) and that the District had failed

to develop an appropriate set of transitional activities and goals,

implemented in the LRE. (See id. ¶¶ 8, 9, 10.) IHO Roth ordered

1 For ease of reference, the Court cites to the Electronic Case

Filing System (“ECF”) pagination.

2 The facts set forth herein are taken from the Complaint, as well

as the documents attached to it as exhibits, and are accepted as

true for purposes of the instant motion. See Sira v. Morton, 380

F.3d 57, 67 (2d Cir. 2004).

the District to reconvene a CSE for purposes of rendering an

educational placement recommendation for A.K. within the LRE, and

to appoint a “transitional coordinator” responsible for developing

a “coordinated set of transitional activities and goals” within

A.K.’s home community, as the LRE. (See id. ¶ 11.)

In accordance with IHO Roth’s order, the CSE reconvened

in January 2021. (See id. ¶ 12.) Defendant, Dr. Ambrosini served

as the CSE Chairperson. (See id. ¶¶ 12, 13.) Dr. Magito McLaughlin

(“Dr. McLaughlin”), President of Positive Behavior Support

Consulting (“PBS Consulting”), served as a CSE member and the CSE’s

parent-trainer and transitional coordinator.3 (See id. ¶¶ 19-23.)

Ms. Maureen Grauer (“Ms. Grauer”), employed by PBS Consulting,

also served as a CSE member and the CSE’s educational consultant.

(See id. ¶ 23.) Thereafter, Dr. Ambrosini issued a program

recommendation and a placement recommendation for A.K. to attend

BOCES; she also recommended that A.K.’s coordinated set of

transitional activities and goals be implemented within BOCES.

(See id. ¶¶ 14, 15.)

In March 2021, in response to Dr. Ambrosini’s placement

recommendation, Plaintiffs commenced another administrative due

3 Pursuant to a consulting agreement with the District, PBS

Consulting provided parent coaching and training, transition

planning, and educational program consultation for the 2020-2021

school year. (See Correspondence, Ex. P-1, attached to Compl.)

process proceeding against the District; it was held before IHO

Jeffrey Schiro (“IHO Schiro”). (See id. ¶¶ 16-18.) At the March

2021 due process hearing, Dr. McLaughlin testified on behalf of

Plaintiffs, stating that a March 5, 2021 letter she received from

Dr. Ambrosini, which was marked “Personal and Confidential” (the

“Correspondence”), caused her ”to get very upset.” (Id. ¶¶ 25,

30, 34, 57; see also Correspondence, Ex. P-1, attached to Compl.)

The Correspondence reviewed the services to be provided by Dr.

McLaughlin pursuant to the consulting agreement between the

District and PBS Consulting and provided examples of Dr. McLaughlin

acting outside of that role. (See Correspondence.) It explained

that as a parent trainer, Dr. McLaughlin was expected to provide

the parents with information and available services, not to

advocate on their behalf. (See id.) In pertinent part, the

Correspondence stated:

In light of your recent correspondence, it

seems prudent to consider your role as

President of PBS Consulting and the provision

of Parent Coaching & Training, Transition

Coordinator and Educational Consultation

services to the Westhampton Beach School

District. In your February 26, 2021 email you

refer to Ms. Grauer, your employee, as a

"Special Education Consultant" and then

propose that Ms. Grauer take on the role of a

"Special Educator" neither of which have been

requested by the District or contractually

agreed upon. In your email you set forth the

reasons that you disagree with the CSE

recommendation for the student’s program and

placement while offering options for PBS

Consulting to provide additional services.

Further, you have promoted the services of PBS

Consulting on numerous occasions ignoring the

District’s contractual agreements with other

agencies.

The WHB and Remsenburg-Speonk BOE’s have

approved a consulting agreement with Positive

Behavior Support Consulting for the 2020-21

school year. The agreement describes the

following services:

. . . .

If you are no longer in agreement with these

descriptions as the agreed upon services to be

rendered please submit an amendment to the

agreement to be submitted for Board of

Education approval. Otherwise, the District

expects that you uphold the agreement by

delivering the services as described.

In your agency’s role as a Parent Trainer, you

are expected to provide parents with

information and available services. Your

statements and correspondence are more

reflective of a parent advocate and as such is

in conflict with and a violative of the BOE

approved agreement. In addition, your

recommendations to the parents and to the

committee to change the student’s schedule,

assign additional staff and services, change

the pendency agreement, change room

assignments/locations and revise the role of

the educational consultant are not within the

scope of the services to be provided by a

Parent Trainer or Transition Coordinator. If

you have questions about the PBS Consulting's

contractual agreement please contact my office

to discuss.

You are certainly entitled to your opinions;

however, it is deeply troubling that as the

Transition Coordinator you are adopting a

position that the most restrictive and most

isolated setting possible (a one student, one

teacher/provider environment) is the most

appropriate to address the transition goals

for this student. The Transition Services

Program, toured by yourself and members of the

team, on February 25, 2021, offers the student

opportunities for interacting, communicating

and working cooperatively with peers while

learning and practicing new skills in a

realistic setting. Certainly you would concur

with the value of these skills in a post-

secondary setting. While it is clear that you

are passionate about ‘transition’, it is the

role of the CSE to recommend an appropriate

placement to address all of the student’s

goals and needs including those pertaining to

his transition.

The parents’ desire to have their son educated

within the WHB High School building has been

addressed for more than six years by Impartial

Hearing Officers, State Review Officers and

Committees on Special Education. Whether you

agree or not, the WHB School District does not

possess an appropriate program for this

student and is not mandated to create one.

Additionally, the District will not seek to

create a program by accreting services to the

pendency agreement as the parents and yourself

have suggested be done. Again, it is the role

of the CSE to recommend an appropriate

placement to address all of the student’s

goals (including the manner in which his

transitions goals are best accomplished).

Your knowledge and expertise are well

respected; it is the hope of the District that

we are able to maintain a professional

relationship that addresses the needs of the

student as delineated in the consulting

agreement approved by the District and PBS

Consulting.

(Correspondence (emphasis in original).)

According to Plaintiffs, Dr. McLaughlin testified that

she viewed the Correspondence as bullying her to change her

placement recommendation for A.K. and threatening her continued

employment, as a CSE member, parent trainer, and transitional

coordinator, as well as the continued retention of her company,

PBS Consulting as the CSE’s educational consultant. (See Compl.

¶¶ 55, 56.) She also testified that the Correspondence contained

factual inaccuracies regarding the description of Dr. McLaughlin’s

employment contract. (Id. ¶ 58.)

Plaintiffs, who were unaware of the Correspondence prior

to Dr. McLaughlin’s testimony, requested its production during the

March 2021 due process hearing. (See id. ¶ 31.) Despite the

District’s contention that the Correspondence was privileged, IHO

Schiro signed a subpoena ordering its production from the District,

which was produced the day before the May 27, 2021 re-convened

hearing. (See id. ¶¶ 40-44.)

Further, prior to reconvening the due process hearing, IHO

Schiro denied Plaintiffs’ request to amend their due process

complaint to add a retaliation claim pursuant to the Rehabilitation

Act based upon the Correspondence. (See id. ¶¶ 45, 47.) Thus,

Plaintiffs filed a new due process complaint against the District

claiming that Dr. Ambrosini’s actions in sending the

Correspondence violated the IDEA and the Rehabilitation Act’s

protection against retaliation. (See id. ¶ 59.) Plaintiffs allege

that Defendants have not granted IHO Schiro authority to adjudicate

the Rehabilitation Act claim. (See id. ¶¶ 60-61.)

II. Relevant Procedural History4

On June 9, 2021, Plaintiffs filed a Complaint purporting

to allege violations of the Rehabilitation Act, the ADA, Section

1983 and a state law breach-of-contract claim. (See Compl.) On

September 10, 2021, Defendants filed the instant Dismissal Motion.

(See Dismissal Motion, ECF No. 16.) Plaintiffs filed their

opposition to the Motion on October 11, 2021. (See Opp’n., ECF

No. 21.) Defendants filed a reply to Plaintiffs’ opposition on

October 22, 2021. (Reply, ECF No. 18.)

DISCUSSION

I. Legal Standard for Rule 12(b)(1) Motion

“A case is properly dismissed for lack of subject matter

jurisdiction under Rule 12(b)(1) when the district court lacks the

4 For completeness, the Court notes the following. On May 9,

2022, in another case commenced by Mr. Killoran, Case No. 20-CV-

4121, the Court issued an Omnibus Order directing the parties to

show cause why Case No. 21-CV-1281 and Case No. 21-CV-5924 should

not be consolidated with Case No. 20-CV-4121, since, inter alia,

they all relate to the 2020-2021 academic year. (See Case Docket,

Omnibus Order to Show Cause, ECF No. 24.) The parties were also

permitted to move for the consolidation of the instant case with

the other cases. (See id.) The parties consented to the

consolidation of Case Nos. 20-CV-4121, 21-CV-1281 and 21-CV-5924.

However, Defendants objected to the consolidation of the instant

case arguing that the parties and claims in this case are different

from the other actions and because, unlike the other actions, this

case implicates the Court’s subject matter jurisdiction. (See

Case No. 20-CV-4121, Defs.’ May 23, 2022 OSC Response, ECF No. 37,

at 3.) Thereafter, the Court issued an order consolidating Case

Nos. 20-CV-4121, 21-CV-1281 and 21-CV-5924, but maintained the

instant case independent of the consolidated actions. (See Case

Docket, June 1, 2022 Elec. Order.)

statutory or constitutional power to adjudicate it.” Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000). In resolving a

motion to dismiss for lack of subject matter jurisdiction, the

Court may consider materials beyond the pleadings. See Morrison

v. Nat'l Austl. Bank, Ltd., 547 F.3d 167, 170 (2d Cir. 2008),

aff'd, 561 U.S. 247 (2010). Though the Court must accept the

factual allegations contained in the Complaint as true, it will

not draw argumentative inferences in favor of Plaintiff; subject

matter jurisdiction must be shown affirmatively. See id.

Additionally, “[a] plaintiff asserting subject matter jurisdiction

has the burden of proving by a preponderance of the evidence that

it exists.” Makarova, 201 F.3d at 113.5

II. Article III Standing

Article III of the U.S. Constitution restricts the

jurisdiction of federal courts to actual cases or controversies.

See Spokeo, Inc. v. Robins, 578 U.S. 330, 337 (2016) (citing Raines

5 Though it is well-established that pleadings filed by pro se

plaintiffs are held “to less stringent standards than formal

pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89,

94 (2007), where, as here, an attorney is proceeding pro se, his

pleadings are not entitled to the “special consideration which the

courts customarily grant to pro se parties.” Bazadier v. McAlary,

464 F. App’x 11, 12 (2d Cir. 2012) (internal quotation marks and

citation omitted); see also Killoran v. Westhampton Beach Sch.

Dist., No. 19-CV-3298, 2020 WL 4740498, at *4 (E.D.N.Y. June 24,

2020) (“[T]he Court takes notice that Plaintiff [Christian

Killoran], although proceeding pro se, is a registered attorney.”)

report and recommendation adopted, 2020 WL 4743189 (E.D.N.Y. July

27, 2020).

v. Byrd, 521 U.S. 811, 818 (1997)). Standing to sue, “a doctrine

rooted in the traditional understanding of a case or controversy,”

“limits the category of litigants empowered to maintain a lawsuit

in federal court to seek redress for a legal wrong.” Id. at 338

(citing Valley Forge Christian Coll. v. Ams. United for Separation

of Church & State, Inc., 454 U.S. 464, 473 (1982); Warth v. Seldin,

422 U.S. 490, 498-99 (1975)). “The hallmark of a case or

controversy is the presence of adverse interests between parties

who have a substantial personal stake in the outcome of the

litigation.” Evans v. Lynn, 537 F.2d 571, 591 (2d Cir. 1975).

“As standing is ‘a limitation on the authority of a federal court

to exercise jurisdiction,’ it is properly addressed within the

context of a Rule 12(b)(1) motion.” City of New York v. Milhelm

Attea & Bros., 550 F. Supp. 2d 332, 340 (E.D.N.Y. 2008) (quoting

All. for Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d

82, 88 n.6 (2d Cir. 2006)). Therefore, to survive a defendant’s

motion to dismiss for lack of subject matter jurisdiction pursuant

to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a

plaintiff must allege facts “that affirmatively and plausibly

suggest that it has standing to sue.” Amidax Trading Grp. v.

S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011).

To establish standing, a plaintiff “must have (1)

suffered an injury in fact, (2) that is fairly traceable to the

challenged conduct of the defendant, and (3) that is likely to be

redressed by a favorable judicial decision.” Spokeo, 587 U.S. at

338. An injury in fact must be “‘concrete and particularized’ and

‘actual or imminent, not conjectural or hypothetical.’” Id. at

339 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992));

see also Anjum v. J.C. Penney Co., Inc., No. 13-CV-460, 2014 WL

5090018, at *6 (E.D.N.Y. Oct. 9, 2014) (“Standing refers to the

requirement that a plaintiff in federal court suffer a non-

speculative injury-in-fact, traceable to the conduct of the

defendant, and capable of redress by a favorable decision.”) An

injury is “particularized” if it “affect[s] the plaintiff in a

personal and individual way.” Spokeo, 578 U.S. at 339 (quoting

Lujan, 504 U.S. at 560 n.1). In comparison, “[a] concrete injury

must be de facto; that is, it must actually exist.” Id. at 340

(internal quotations and citation omitted). “Mere interest in, or

concern over, a prospective defendant’s acts—no matter how deeply

felt—is insufficient to demonstrate injury in fact.” Evans, 537

F.2d at 591 (citing Sierra Club v. Morton, 405 U.S. 727, 739

(1972)).

For the foregoing reasons, the Court finds that

Plaintiffs have failed to plead plausible facts sufficient to show

that they have suffered a “concrete and particularized” injury in

fact and, therefore, lack standing to bring their claims.

A. Associational Retaliation Claims

Plaintiffs allege that “Ms. Ambrosini’s correspondence

illustrates an . . . attack upon, not only the due process

protections afforded by the IDEA, but also the protections afforded

by [the Rehabilitation Act and the ADA] against retaliation.”

(Compl. ¶¶ 69, 75.) They claim that the alleged acts of

retaliation against Dr. McLaughlin “profile as an act of

‘retaliation’ executed upon [Plaintiffs].” (Id. ¶¶ 66, 69, 72,

75.)

Defendants contend that Plaintiffs lack standing to

bring retaliation claims pursuant to the Rehabilitation Act and

the ADA. (See Support Memo at 13-17.) The Court agrees.

Section 504 of the Rehabilitation Act provides: “No

otherwise qualified individual with a disability in the United

States . . . shall, solely by reason of her or his disability, be

excluded from the participation in, be denied the benefits of, or

be subjected to discrimination under any program or activity

receiving Federal financial assistance . . . .” 29 U.S.C. §

794(a)). It further provides that “‘any person aggrieved by any

act or failure to act by any recipient of Federal assistance’ under

the [Rehabilitation Act] may bring suit.” 29 U.S.C. § 794a(a)(2).

The Second Circuit has recognized claims brought

pursuant to the Rehabilitation Act based on a plaintiff’s

association with an individual who suffers discrimination. See

Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268 (2d Cir. 2009)

(Wesley, J. concurring, but writing for the majority for that

portion of the ruling). In Loeffler, the Second Circuit held that

“non-disabled parties bringing associational discrimination claims

need only prove [that they suffered] an independent injury causally

related to the denial of federally required services to the

disabled persons with whom the non-disabled plaintiffs are

associated.” Id. at 279-80 (emphasis added). It found that a

hospital’s refusal to provide a deaf father with a sign language

interpreter independently harmed the father’s non-disabled

children, as it caused them to become interpreters for doctors

seeking to speak with the father and caused school truancy. Id.

In reaching this conclusion, the Court construed the standing

provision of the Rehabilitation Act, § 794a(a)(2), as being

distinct from the provision prohibiting discriminatory conduct, §

794(a), noting that the type of injury a ‘person aggrieved’ suffers

need not be ‘exclu[sion] from the participation in, . . . deni[al

of] the benefits of, or . . . subject[ion] to discrimination under

any program or activity receiving Federal financial assistance.’”

Id. (quoting 29 U.S.C. § 794(a).) However, this broad

interpretation of standing “does not relieve the person aggrieved

of establishing an injury casually related to, but separate and

distinct from, a disabled person’s injury under the statute.” Id.

at 280 (noting the plaintiff-children were required to establish

having suffered an injury independent from the father that was

causally related to the hospital’s failure to provide services to

the father).

The Second Circuit has yet to determine whether

associational standing exists for discrimination claims brought

pursuant to Title II of the ADA. However, district courts in this

Circuit have extended associational standing under this Title to

the same extent as the Rehabilitation Act based on their

similarity.6 See, e.g., Innovative Health Sys., Inc. v. City of

White Plains, 931 F. Supp. 222, 236 (S.D.N.Y. 1996) (opining that

the ADA statute extending relief to “‘[a]ny person alleging

discrimination . . .’ need not be an individual with a disability,

but may be anyone injured by a covered entity’s discrimination

against an individual on the basis of that individual’s

disability”); Doe v. Westport Bd. of Educ., No. 3:18-CV-01683,

2020 WL 6382639, at *3 (D. Conn. Oct. 30, 2020) (finding that

parents had standing under both the Rehabilitation Act and Title

II of the ADA because they alleged a separate and distinct injury

6 Title II of the ADA, which prohibits various forms of

discrimination by state and local governments, provides, in

pertinent part: “[N]o qualified individual with a disability

shall, by reason of such disability, be excluded from participation

in or be denied the benefits of the services, programs, or

activities of a public entity, or be subjected to discrimination

by any such entity.” 42 U.S.C. § 12132. It further provides that

remedies are available “to any person alleging discrimination on

the basis of disability . . . .” 42 U.S.C. § 12133.

resulting from the alleged denial of services to their disabled

child).

Here, the Court finds that Plaintiffs do not have

associational standing pursuant to the Rehabilitation Act or the

ADA for two reasons. First, Plaintiffs have not alleged that Dr.

McLaughlin -- the individual allegedly retaliated against -- is a

person with a disability who was denied federally required services

in violation of either statute. Second, Plaintiffs fail to allege

that they suffered an injury independent of Dr. McLaughlin’s

alleged injury.7

Plaintiffs attempt to assert standing via their

association with Dr. McLaughlin is untenable. They allege that

Dr. McLaughlin, who served as a CSE member, parent-trainer, and

transitional coordinator, testified at an administrative due

process proceeding initiated by Plaintiffs that the Correspondence

caused her “to get very upset” (Compl. ¶ 30), and that she

interpreted the Correspondence as “pressuring her and/or bullying

her” “to compel her to change her educational program and placement

recommendations for AK,” and “as a threat to her continued

employment.” (Id. ¶¶ 54-56.) As stated, though, nowhere is it

alleged that Dr. McLaughlin suffers from a disability. Thus, the

7 Notably, Plaintiffs cite no authority, nor is the Court aware

of any, extending associational standing under the Rehabilitation

Act or the ADA for retaliation claims.

necessary “bridge” or “link” from the disabled person to the person

alleging an associational discrimination claim is absent.

Contrary to the children in Loeffler who had standing based on

their association with their disabled father, Plaintiffs cannot

base their standing upon their association with Dr. McLaughlin,

who is not alleged to be disabled or alleged to have been denied

benefits to which she was entitled as a person with a disability.8

In sum, Plaintiffs lack associational standing under the

Rehabilitation Act and the ADA.

Even if Plaintiffs could assert standing based on their

association with a non-disabled individual, which they cannot,

they would still lack standing for their failure to allege that

they suffered an independent injury causally related to Dr.

McLaughlin’s purported “injuries” of feeling “upset,” “bull[ied],”

8 Notably, any retaliation claim that could potentially be asserted

by Dr. McLaughlin would be based on her association with A.K., on

whose behalf she advocated. (See Ex. P-1.) However, “there is no

support for the proposition that associational discrimination

claims can be brought when someone [like Dr. McLaughlin] is

‘advocating’ on behalf of the disabled.” See Valenti v. Massapequa

Union Free Sch. Dist., No. 03-CV-1193, 2006 WL 2570871, at *14

(E.D.N.Y. Sept. 5, 2006)) (collecting cases); McGRX, Inc. v.

Vermont, No. 5:10–CV–0001, 2011 WL 31022, at *6 (D. Vt. Jan. 5,

2011) (“Because Plaintiff’s generalized allegations of advocacy on

behalf of disabled Medicaid recipients fail to state a claim for

associational discrimination under the ADA and RA, and because

Plaintiff has not otherwise established a violation of its own

legally protected interests under the ADA and RA, Plaintiff’s own

discrimination claims must be dismissed.”). Thus, Dr. McLaughlin

would not have associational standing to assert Rehabilitation Act

or ADA claims with regard to her association with A.K.

and “threatened” that “her continued employment within the

district was in jeopardy.” (Compl. ¶¶ 55, 56; Opp’n. at 1.)

Plaintiffs argue they have “associational standing” to pursue

their claims because the Correspondence resulted in the “potential

denial of the educational aids, benefits and services afforded to

AK as a disabled person under the ADA.” (Opp’n. at 4 (emphasis

added).) Thus, they suffered a “concrete and distinct injury”

resulting from the District’s “retaliatory conduct” inflicted upon

Dr. McLaughlin. (Id.) However, nowhere in their Complaint do

Plaintiffs allege that after receiving the Correspondence, Dr.

McLaughlin changed her recommendation for A.K.’s placement, or

that A.K. was in fact denied benefits or services required by the

Rehabilitation Act or the ADA. In fact, as Plaintiffs, themselves,

point out, Dr. McLaughlin “resist[ed] the defendants’ retaliatory

conduct.” (Opp’n. at 12.) Further, the Correspondence was dated

after the CSE recommendation for A.K.’s placement for the 2020-

2021 academic year and during an impending administrative

proceeding. (See Compl. ¶¶ 12, 14, 16, 18, 25.) Thus, Plaintiffs’

allegation of a “potential denial” of “benefits and services” is

neither a “concrete” nor “actual” injury sufficient to confer

standing. See Spokeo, 587 U.S. at 339 (holding an injury in fact

must be “concrete and particularized” and “actual or imminent, not

conjectural or hypothetical.”).

Therefore, because Plaintiffs have not alleged that Dr.

McLaughlin herself is disabled and was denied federally required

services, or that Plaintiffs suffered an independent injury

causally related to Dr. McLaughlin’s alleged injury, they fail to

allege standing to assert claims pursuant to the Rehabilitation

Act or the ADA. Accordingly, Plaintiffs’ Rehabilitation Act and

ADA claims are DISMISSED.9

B. Section 1983 Claims

Plaintiffs purport to allege third-party constitutional

claims based on Dr. McLaughlin’s rights to free speech and due

process. Specifically, Plaintiffs claim that the Correspondence

“either directly or indirectly throttle[d] free speech advocated

on AK’s behalf, as well as . . . hinder[ed] AK’s due process

rights.” (Compl. ¶¶ 77-78.)

9 In their Opposition and for the first time, Plaintiffs allege

interference claims pursuant to the Rehabilitation Act and the

ADA. (See Opp’n at 6-9.) However, a plaintiff “cannot amend h[is]

complaint by asserting new facts or theories for the first time in

opposition to [d]efendants’ motion to dismiss.” K.D. ex rel.

Duncan v. White Plains Sch. Dist., 921 F. Supp. 2d 197, 209 n.8

(S.D.N.Y. 2013) (citation omitted); O'Brien v. Nat’l Prop.

Analysts Partners, 719 F. Supp. 222, 229 (S.D.N.Y. 1989) (“[I]t is

axiomatic that the Complaint cannot be amended by the briefs in

opposition to a motion to dismiss.”). In any event, Plaintiffs

lack standing to assert interference claims pursuant to the

Rehabilitation Act and the ADA for the same reasons they lack

standing to assert retaliation claims, i.e., they cannot base such

claims on their association with Dr. McLaughlin.

Defendants contend that Plaintiffs lack standing to

bring Section 1983 claims as they “failed to set forth fact-based

allegations regarding the throttling of their right to free speech

or regarding a hindering of their right to due process.” (Support

Memo at 17-18.) They argue that the only claimed wrongs were

“purportedly suffered by Dr. McLaughlin.” (Id. at 18.) The Court

agrees and finds that Plaintiffs’ third-party constitutional

claims fail for lack of standing.

“A party ‘generally must assert his own legal rights and

interests, and cannot rest his claim to relief on the legal rights

or interests of third parties.’” Kowalski v. Tesmer, 543 U.S.

125, 129 (2004) (quoting Warth v. Seldin, 422 U.S. 490, 499

(1975)). However, a plaintiff may assert the constitutional claims

of a third party if the plaintiff can demonstrate: (1) injury to

the plaintiff, (2) a close relationship between the plaintiff and

the third party that would cause plaintiff to be an effective

advocate for the third party’s rights, and (3) “some hindrance to

the third party’s ability to protect his or her own interests.”

Camacho v. Brandon, 317 F.3d 153, 159 (2d Cir. 2003) (quoting

Campbell v. Louisiana, 523 U.S. 392, 397 (1998)).

Here, Plaintiffs cannot assert the alleged

constitutional claims of Dr. McLaughlin because, as discussed

supra, Plaintiffs’ Complaint fails to set forth sufficient factual

allegations that Plaintiffs suffered an injury. Plaintiffs allege

that “the manner and content of Ms. Ambrosini’s [C]orrespondence

illustrates an . . . attack upon, not only the due process

protections afforded by the IDEA, but also upon the protections

afforded by the United States Constitution.” (Compl. ¶ 81.) Such

speculative and conclusory allegations are insufficient to

establish injury in fact for constitutional standing. See Anjum,

2014 WL 5090018, at *6 (stating standing requires that a plaintiff

suffer a non-speculative injury-in-fact.) Plaintiffs “mere

interest in, or concern over . . . Defendants’ acts—no matter how

deeply felt—is insufficient to demonstrate injury in fact.” Evans,

537 F.2d at 591. Therefore, because Plaintiffs’ Complaint fails

to allege that Plaintiffs suffered a “concrete and particularized”

injury, Plaintiffs’ lack standing to assert third-party Section

1983 claims.10,11 See Spokeo, 587 U.S. at 338.

10 The Court further notes that Plaintiffs’ Complaint also fails

to allege facts plausibly showing either (a) a close relationship

between the Plaintiffs and Dr. McLaughlin that would cause

Plaintiffs to be an effective advocate for Dr. McLaughlin’s rights,

or (b) some hindrance to Dr. McLaughlin’s ability to protect her

own interests, both necessary components to asserting the

constitutional claims of a third party, as well as a further basis

to find Plaintiffs lack standing to assert third-party Section

1983 claims.

11 Having determined that Plaintiffs do not have third-party

standing to assert the constitutional rights of Dr. McLaughlin, it

is not necessary to determine whether Plaintiffs have adequately

alleged that Dr. McLaughlin’s First Amendment or due process rights

were violated.

III. Purported IDEA Retaliation Claim

For the first time in their Opposition, Plaintiffs raise

an IDEA-based retaliation claim. Defendants argue that this claim

should not be considered by the Court as it was not alleged in

Plaintiffs’ Complaint. (See Reply at 11.) The Court agrees.

As discussed, supra, a plaintiff “cannot amend h[is]

complaint by asserting new facts or theories for the first time in

opposition to [d]efendants’ motion to dismiss.” K.D., 921 F. Supp.

2d at 209 n.8; see also Williams v. Black Entm’t Television, Inc.,

No. 13-CV-1459, 2014 WL 585419, at *11 n.8 (E.D.N.Y. Feb. 14, 2014)

(“Plaintiff cannot amend his pleadings through an opposition

brief.”); Fadem v. Ford Motor Co., 352 F. Supp. 2d 501, 516

(S.D.N.Y. 2005) (“It is longstanding precedent in this circuit

that parties cannot amend their pleadings through issues raised

solely in their briefs.”). Since Plaintiffs’ Complaint fails to

raise an IDEA-based retaliation claim, Plaintiffs’ IDEA-based

retaliation argument is presented without a basis and, therefore,

is not considered.12

12 Even assuming, arguendo, the Court found that Plaintiffs’

Complaint alleged an IDEA-based retaliation claim, such claim

would be dismissed as, admittedly, Plaintiffs failed to exhaust

their administrative remedies. See Polera v. Bd. of Educ. of

Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 483 (2d. Cir.

2002) (holding failure to exhaust administrative remedies deprives

the court of subject matter jurisdiction) (citing Hope v. Cortines,

69 F.3d 687, 688 (2d Cir.1995)). Though Plaintiffs claim that

exhaustion should be excused as futile (see Opp’n at 17), the

Second Circuit has cautioned against expansive interpretation of

IV. State Law Claim

In addition to Plaintiffs’ federal claims, the Complaint

also assert a state law claim for breach of contract. However,

because the Court has dismissed Plaintiffs’ federal claims, there

is no longer a basis for federal jurisdiction over the state law

claim. Under Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350

(1988), a federal court should generally decline to exercise

supplemental jurisdiction over state law claims if, as is the case

here, the complaint’s federal claims are dismissed in the

litigation’s early stages and there is no diversity jurisdiction.

See 28 U.S.C. § 1367(c)(3); Delaney v. Bank of Am. Corp., 766 F.3d

163, 170 (2d Cir. 2014) (“In general, where the federal claims are

dismissed before trial, the state claims should be dismissed as

well.”).

The Court declines to exercise supplemental jurisdiction

over Plaintiffs’ remaining state law claim, which are DISMISSED

without prejudice to being refiled in state court.

the futility exception and has refused to apply this exception in

cases where the administrative process, if invoked, could have

provided relief. Id. at 488–89. (holding that “sweeping exceptions

to the exhaustion requirement” is “at odds” with the belief that

administrative agencies are in the optimal position to identify

and correct errors and to “fine tune the design of their

programs”).

V. Leave to Amend

Although Plaintiffs have not requested leave to replead,

the Second Circuit has stated that “[w]hen a motion to dismiss is

granted, the usual practice is to grant leave to amend the

complaint.” Hayden v. County of Nassau, 180 F.3d 42, 53 (2d Cir.

1999); see also FED. R. CIV. P. 15(a)(2) (“The court should freely

give leave [to amend] when justice so requires.”) Leave to amend

should be granted unless there is evidence of undue delay, bad

faith, undue prejudice, or futility. See Milanese v. Rust–Oleum

Corp., 244 F.3d 104, 110 (2d Cir. 2001).

The Court has carefully considered whether leave to

amend is warranted here. Though dismissals based on lack of

standing should generally be without prejudice, Carter v.

HealthPort Techs., LLC, 822 F.3d 47, 54 (2d Cir. 2016), here, where

the standing defect is unlikely curable, the Court denies

Plaintiffs leave to amend their Complaint. See Cuoco v. Moritsugu,

222 F.3d 9, 112 (2d Cir. 2000) (holding that leave to amend should

be denied where “better pleading will not cure” the defects in a

plaintiff’s complaint).

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CONCLUSION

Accordingly, for the reasons set forth above, IT IS

HEREBY ORDERED that:

I. Defendants’ Dismissal Motion (ECF No. 16) is GRANTED;

II. Plaintiffs’ federal claims are DISMISSED WITH PREJUDICE;

III. The Court having declined to exercise supplemental

jurisdiction, Plaintiffs’ state law claim is DISMISSED

WITHOUT PREJUDICE; and

IV. The Clerk of Court is directed to:

A. enter judgment and, thereafter, close this case; and

B. mail a copy of this Memorandum and Order to the pro

se Plaintiffs.

SO ORDERED.

_/s/ JOANNA SEYBERT_____

Joanna Seybert, U.S.D.J.

Dated: September 27 2022

Central Islip, New York