Killoran v. Westhampton Beach School District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

----------------------------------x

CHRISTIAN KILLORAN,

on behalf of his son, AIDEN KILLORAN;

CHRISTIAN KILLORAN; and

TERRIE KILLORAN,

Plaintiff, OMNIBUS MEMORANDUM & ORDER

No. 20-CV-4763(JS)(LGD)

-against-

WESTHAMPTON BEACH SCHOOL DISTRICT;

SUZANNE MENSCH, AND JOYCE DONNESON,

as Board of Education Members;

MICHAEL RADDAY, as Superintendent;

MARYANN AMBROSINI,1 as Director of

Pupil Personnel and CSE Chairperson,

Defendants.

----------------------------------x

CHRISTIAN KILLORAN,

on behalf of his son,

AIDEN KILLORAN,

Plaintiff, No. 22-CV-1632(JS)(LGD)

-against-

WESTHAMPTON BEACH SCHOOL DISTRICT;

MICHAEL RADDAY, as Superintendent;

SUZANNE MENSCH, JOYCE DONNESON,

GEORGE KAST, and HALSEY C. STEVENS,

as Board of Education Members,

Defendants.

----------------------------------x

1 Plaintiff has misspelled Defendant Ambrosini’s first name as

“Mary Ann”. Cf. Killoran v. Westhampton Beach Sch. Dist., No.

20-CV-4121, 2023 WL 5532920, n.1 (E.D.N.Y. Aug. 28, 2023)

(hereafter, the “Killoran August 2023 Order”). If not already

done so, the Clerk of Court is directed to correct said spelling

to “MaryAnn” in the four Case Dockets subject to this Omnibus

Memorandum & Order.

----------------------------------x

CHRISTIAN KILLORAN,

on behalf of his son,

AIDEN KILLORAN,

Plaintiff, No. 23-CV-1114(JS)(LGD)

-against-

WESTHAMPTON BEACH SCHOOL DISTRICT;

and MARYANN AMBROSINI,

Defendants.

----------------------------------x

CHRISTIAN KILLORAN,

on behalf of his son,

AIDEN KILLORAN,

Plaintiff, No. 23-CV-1115(JS)(LGD)

-against-

WESTHAMPTON BEACH SCHOOL DISTRICT,

Defendant.

----------------------------------x

Appearances:

For Plaintiff: Christian Killoran, Esq., pro se

132-13 Main Street

Westhampton Beach, New York 11978

For Defendants: Anne C. Leahey, Esq.

Anne Leahey Law, LLC

319 Thompson Street

Port Jefferson, New York 11777-1919

SEYBERT, District Judge:

Pro se plaintiff Christian Killoran (“Plaintiff” or

“Parent”2), in various capacities, e.g., individually and as parent

2 While A.K.’s mother, Terrie Killoran, is also a named Plaintiff

in one of these cases, because her interests are aligned with those

to A.K., a child with Down Syndrome, has commenced numerous

administrative challenges and subsequent and additional federal

actions, all emanating from the development of A.K.’s

individualized education plans (“IEPs”; singularly, “IEP”) and

subsequent placements pursuant to those IEPs and, for certain

academic years, pursuant to an agreed-upon 2019 Pendency Placement

Agreement. Parent has brought the instant suits against:

Westhampton Beach School District (“Westhampton” or the “School

District”); as well as, variously: Michael Radday, Superintendent

of the School District; MaryAnn Ambrosini, sometimes individually

and as Director of Pupil Personnel and CSE Chairperson

(“Ambrosini”); and Joyce Donneson, George Kast, Suzanne Mensch,

and Halsey C. Stevens, as members of the School Board

(collectively, the “Defendants”). These suits are brought

pursuant to: the Individuals with Disabilities Act (“IDEA”),

20 U.S.C. § 1400 et seq.; the Americans with Disabilities Act

of Christian Killoran, hereafter, the Court refers only to Parent

Christian Killoran. However, the Court’s rulings herein apply

equally to Christian and Terrie Killoran.

Further, “the Court takes notice that Plaintiff [Christian

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

Killoran v. Westhampton Beach Sch. Dist., No. 19-CV-3298, 2020 WL

4740498, at *4 (E.D.N.Y. June 24, 2020), report and recommendation

adopted, 2020 WL 4743189 (E.D.N.Y. July 27, 2020). “Accordingly,

although Plaintiff is proceeding pro se, his Complaint[s] [are]

held to the same standards as pleadings drafted by lawyers.”

Killoran v. Westhampton Beach Sch. Dist., No. 20-CV-4121, 2022 WL

866816, at *4 (E.D.N.Y. Mar. 22, 2022) (hereafter, “Killoran March

2022 Order”) (citing Bazadier v. McAlary, 464 F. App’x 11, 12 (2d

Cir. 2012)).

(“ADA”), 42 U.S.C. § 12101 et seq.; Section 504 of the

Rehabilitation Act (“Section 504”), 29 U.S.C. § 794(a) et seq.;

and Section 1983 of Title 42 of the United States Code (“Section

1983”), 42 U.S.C. § 1983. Parent also challenges administrative

decisions of different state review officers (“SROs”; singularly,

“SRO”). He variously seeks monetary damages and compensatory

education damages.

On October 24, 2023, the Court held an Omnibus Status

Conference in these actions; it addressed Defendants’ various

pre-motion conference letters (“PMC Letters”)3 requesting

permission to file dismissal motions.4 The parties were informed

the Court was construing the PMC Letters as Defendants’ respective

dismissal motions.5 To the extent Parent had not responded to the

PMC Letters, he was afforded the opportunity to do so.6 (See id.)

3 (See Case No. 20-CV-4763, PMC Letter, ECF No. 25; Case No.

22-CV-1632, PMC Letter, ECF No. 8; Case No. 23-CV-1114, PMC Letter,

ECF No. 7; and Case No. 23-CV-1115, PMC Letter, ECF No. 8.)

4 (See Case No. 20-CV-4763, Omnibus Minute Entry, ECF No. 32; Case

No. 22-CV-1632, Omnibus Minute Entry,, ECF No. 26; Case No.

23-CV-1114, Omnibus Minute Entry,, ECF No. 13; and Case No.

23-CV-1115, Omnibus Minute Entry,, ECF No. 14.) In Case No.

22-CV-1632, the Court also heard oral argument on Plaintiff’s

Motion to Reopen (ECF No. 21); it rules on said Motion herein (see

infra at 30-31).

5 (See all Omnibus Minute Entries at 5, § IV.)

6 (See supra note 5.)

Parent’s responses have now been filed.7 As a result, presently

before the Court are Defendants’ respective Dismissal Motions.8

Thus, having considered the parties’ written submissions and heard

their arguments, for the reasons that follow, the Court: (1) in

Case No. 20-CV-4763, GRANTS Defendants’ Motion to Dismiss; (2) in

Case No. 22-CV-1632, GRANTS Defendants’ Partial Motion to Dismiss;

(3) in Case No. 23-CV-1114, GRANTS Defendants’ Motion to Dismiss;

and, (4) in Case No. 23-CV-1115, GRANTS the School District’s

Partial Motion to Dismiss.

BACKGROUND

I. Factual Background

The parties and the Court are familiar with the extensive

facts leading to these litigations and, accordingly, assumes the

parties’ familiarity with same.9 At this point, the Court states

7 (See Case No. 20-CV-4763, PMC Response, ECF No. 33; Case No.

22-CV-1632, PMC Response, ECF No. 27; Case No. 23-CV-1114, PMC

Response, ECF No. 14; and Case No. 23-CV-1115, PMC Response, ECF

No. 15.)

8 (See supra note 4 (informing the reader Plaintiff’s Motion to

Reopen in Case No. 22-CV-1632 is also presently before the Court).)

9 See, e.g., Killoran March 2022 Order, 2022 WL 866816; see also

Killoran v. Westhampton Beach Sch. Dist., Case No. 22-CV-6467, SRO

Harrington June 23, 2023 Decision, No. 23-093, ECF No. 12-3, at 2-

3 (listing 18 prior State-level administrative appeals of which

A.K. was the subject), and at 4 n.3 (noting “[d]ue to the nearly

continuous nature of the administrative due process proceedings

and State-level administrative appeals—and related federal

district court proceedings—involving this student, he has been

receiving his special education program under various pendency

placements since approximately the 2015-16 school year”).

generally and briefly that A.K.: has Down syndrome; is an

alternately assessed student; and, is eligible for special

education as a student with intellectual disabilities. As the

Second Circuit has observed, Parent and the School District have

been in a long-running dispute over A.K.’s education. See, e.g.,

Killoran v. Westhampton Beach Sch. Dist., No. 22-204, 2023 WL

4503278, at *1 and n.1 (2d Cir. July 13, 2023) (hereafter, the “2d

Cir. Brown Appeal”) (citing Killoran v. Westhampton Beach UFSD,

No. 21-2647, 2023 WL 4503151 (2d Cir. July 13, 2023) (hereafter,

the “2d Cir. Seybert 2021 Appeal”); Killoran v. Westhampton Beach

Sch. Dist., No. 22-1753, 2023 WL 4503274 (2d Cir. July 13, 2023)

(hereafter, the “2d Cir. Seybert 2022 Appeal”)). In particular,

since approximately the 2016-2017 academic year, Parent has not

agreed with, and has challenged, the School District’s IEPs for

A.K., which IEPs have been created by the School District’s

Committee on Special Education (“CSE”). As a result, A.K. had

been receiving his IEPs and corresponding special education

To the extent the Court provides background for context in a

particular case, and such factual background is relevant to the

Court’s determination of one of the instant dismissal motions,

those facts have been taken from the relevant Complaint and are

assumed to be true for purposes of deciding the particular motion.

See, e.g., Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004).

Additionally, a document may be considered on a motion to dismiss

where the plaintiff has “reli[ed] on the terms and effect of [the]

document in drafting the complaint.” Chambers v. Time Warner,

Inc., 282 F.3d 147, 153 (2d Cir. 2002) (emphasis omitted).

programs under various pendency placements, including the 2019

Agreement,10 until April 2023, when the CSE determined A.K.’s IEP

should be delivered in the School District’s 12:1:1 special

education class. See, e.g., Killoran v. Westhampton Beach Sch.

Dist., No. 22-CV-6467, Defs. Letter Update, ECF No. 27 (E.D.N.Y.

May 3, 2023) (advising “the State Education Department, on March

6, 2023, granted an age variance permitting A.K.’s participation

in the District High School’s special class (12:1:1)” and “A.K.

joined the class on April 19, 2023 where he is currently receiving

instruction and related services”); see also, e.g., Killoran v.

Westhampton Beach Sch. Dist., No. 20-CV-4121, 2023 WL 553290, at

n.7 (E.D.N.Y. Aug. 28, 2023) (hereafter, the “Killoran August 2023

Order”) (noting State’s granting an age variance for A.K. for the

2022-2023 school year).

DISCUSSION

I. Applicable Law

A. Rule 12 Dismissal

The Court restates the well-established plausibility

standard applied to dismissal motions brought pursuant to Rules

12(b) and (c) of the Federal Rules of Civil Procedure, as

articulated in a prior ruling made by the Court in a case brought

by Parent:

10 See Killoran March 2022 Order, 2022 WL 866816, at *1 (defining

and explaining the “2019 Agreement”).

To withstand a motion to dismiss, a

complaint must contain factual allegations

that “state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). This plausibility standard is not a

“probability requirement” and requires “more

than a sheer possibility that a defendant has

acted unlawfully.” Id. (internal quotation

marks and citation omitted). Although the

Court must accept all allegations in the

complaint as true, this tenet is “inapplicable

to legal conclusions.” Id. Thus,

“[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory

statements, do not suffice.” Id. (citation

omitted). Ultimately, the Court’s

plausibility determination is a “context-

specific task that requires the reviewing

court to draw on its judicial experience and

common sense.” Id. at 679.

In deciding a motion to dismiss, the

Court is confined to “the allegations

contained within the four corners of [the]

complaint,” Pani v. Empire Blue Cross Blue

Shield, 152 F.3d 67, 71 (2d Cir. 1998), but

this has been interpreted broadly to include

any document attached to the complaint, any

statements or documents incorporated in the

complaint by reference, any document on which

the complaint heavily relies, and anything of

which judicial notice may be taken. See

Chambers v. Time Warner, Inc., 282 F.3d 147,

152-53 (2d Cir. 2002) (observing that a

document is “integral” if the complaint

“relies heavily upon its terms and effect”).

Killoran March 2022 Order, 2022 WL 866816, at *3 (granting

Defendants’ dismissal motion). “The standard for granting a Rule

12(c) motion for judgment on the pleadings is identical to that

for granting a Rule 12(b)(6) motion for failure to state a claim.”

Killoran August 2023 Order, 2023 WL 5532920, at *3 (quoting Lively

v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 301 (2d Cir. 2021)

(further citation omitted)).

B. IDEA Claims

In one of its July 2023 trilogy Killoran summary orders,

the Second Circuit stated:

Under the IDEA, a school district must

provide services “tailored to meet the unique

needs of a particular child, and . . .

reasonably calculated to enable the child to

receive educational benefits.” Gagliardo[ v.

Arlington Cent. Sch. Dist.], 489 F.3d [105,]

107 [(2d Cir. 2007)] (internal quotation marks

omitted). To administer these services, a

school district must develop an individualized

education program (“IEP”) each year for each

student with a disability. M.H.[ v. N.Y.C.

Dep’t of Educ.], 685 F.3d [217,] 224 [(2d Cir.

2012)].

For an IEP to be adequate under the IDEA,

it must be “likely to produce progress, not

regression, and . . . afford[ ] the student

with an opportunity greater than mere trivial

advancement.” Cerra v. Pawling Cent. Sch.

Dist., 427 F.3d 186, 195 (2d Cir. 2005)

(internal quotation marks omitted). It must

also “ensure that ‘[t]o the maximum extent

appropriate, children with disabilities . . .

are educated with children who are not

disabled.’” T.M. ex rel. A.M. v. Cornwall

Cent. Sch. Dist., 752 F.3d 145, 151 (2d Cir.

2014) (alterations in original) (quoting 20

U.S.C. § 1412(a)(5)(A)). “In other words, the

state must seek to educate each child with a

disability in his or her LRE.” Id.

“In determining whether an IEP complies

with the IDEA, courts make a two-part inquiry

that is, first, procedural, and second,

substantive. At the first step, courts

examine whether there were procedural

violations of the IDEA, namely, whether the

state has complied with the procedures set

forth in the IDEA. . . . Courts then examine

whether the IEP was substantively adequate,

namely, whether it was reasonably calculated

to enable the child to receive educational

benefits.” R.E. v. N.Y.C. Dep’t of Educ., 694

F.3d 167, 189–90 (2d Cir. 2012) (alterations,

citations, and internal quotation marks

omitted). Procedural inadequacies render a

proposed placement violative of the IDEA when

they “cumulatively result in the denial of a

FAPE[11] even if the violations considered

individually do not.” Id. at 190. Substantive

inadequacies automatically render a proposed

placement violative of the IDEA. Id.

2d Cir. Seybert 2021 Appeal, 2023 WL 4503151, at *2; see also

Killoran v. Westhampton Sch. Dist., No. 20-CV-4763, 2022 WL 954851,

at *1-2 (E.D.N.Y. Mar. 30, 2022) (hereafter, the “Compensatory Ed.

Denial Order”) (describing the statutory framework for IDEA

cases); Killoran March 2022 Order, 2022 WL 866816, at *4

(discussing the IDEA’s stay-put provision).

C. ADA and Section 504 Claims

In another of its July 2023 trilogy Killoran summary

orders, the Second Circuit stated:

Though there are “subtle differences”

between the ADA and the Rehabilitation Act, we

generally “treat claims under the two statutes

identically,” applying the same standards to

both. Henrietta D. v. Bloomberg, 331 F.3d

261, 272 (2d Cir. 2003) (citation and internal

quotation marks omitted). To make a claim

under either statute, Plaintiff must show that

(1) A.K. “is a qualified individual with a

disability”; (2) Defendants are “subject to

one of the Acts”; and (3) A.K. “was denied the

opportunity to participate in or benefit from

[Defendants’] services, programs, or

11 “FAPE” is an acronym for “Free Appropriate Public Education”.

activities, or was otherwise discriminated

against by the [Defendants] because of his

disability.” McElwee v. Cnty. of Orange, 700

F.3d 635, 640 (2d Cir. 2012).

“Under both statutes, a defendant

discriminates when it fails to make a

reasonable accommodation that would permit a

qualified disabled individual to have access

to and take a meaningful part in public

services.” Id. at 640. (citation and internal

quotation marks omitted). “A plaintiff

alleging that he was denied a reasonable

accommodation bears the burdens of both

production and persuasion as to the existence

of some accommodation that would allow him to

meet the essential eligibility requirements of

the service, program, or activity at issue.”

Id. at 642.

2d Cir. Brown Appeal, 2023 WL 4503278, at *2-3; see also Killoran

August 2023 Order, 2023 WL 5532920, at *4 (same). And, as this

Court previously elucidated:

Notably, a violation of the IDEA, without

more, is insufficient to support a claim of

disability-based discrimination under the ADA

or Section 504. See French v. N.Y. State Dep’t

of Educ., 476 F. App’x 468, 472-7[3] (2d Cir.

2011) (a “fail[ure] to show that the alleged

‘discrimination’ is anything more than a

rehashing of [the plaintiff’s] allegation that

the defendants failed to provide her with a

FAPE” warrants dismissal of plaintiff’s ADA

and Section 504 claims). Rather, where a

plaintiff asserts denial of a FAPE, there must

be evidence that the school district acted

with “deliberate or reckless indifference to

the student’s federally protected rights” or

with “bad faith or gross misjudgment.” Pape

v. Bd. of Educ. of Wappingers Cent. Sch.

Dist., No. 07-CV-8828, 2013 WL 3929630, at *11

(S.D.N.Y. July 30, 2013) (cleaned up); see

also S.W.[ v. Warren], 528 F. Supp. 2d [282,]

290 [(S.D.N.Y. 2007)] (“[P]laintiffs can rely

on Section 504 to claim they are denied access

to a free appropriate education, as compared

to the free appropriate education non-disabled

students receive, if they can show that

Defendants acted with bad faith or gross

misjudgment in the administration of

disability services.”).

Killoran March 2022 Order, 2022 WL 866816, at *7 (footnote

omitted); see also Killoran August 2023 Order, 2023 WL 5532920, at

*4 (same).

D. Section 1983 Class-of-One Equal Protection Claims

This Court has previously articulated the relevant law

for a class-of-one equal protection claim brought pursuant to

Section 1983. Said law is restated herein:

Pursuant to the Fourteenth Amendment’s

Equal Protection Clause, the Government must

treat “all similarly situated people alike.”

Harlen Assocs. v. Inc. Vill. of Mineola, 273

F.3d 494, 499 (2d Cir. 2001) (citing City of

Cleburne v. Cleburne Living Ctr., 473 U.S.

432, 439 (1985)). The protections afforded by

the Equal Protection Clause extend to

“individuals who allege no specific class

membership[,]” known as “class of one

claims[,]” “where the plaintiff alleges that

[ ]he has been intentionally treated

differently from others similarly situated and

that there is no rational basis for the

difference in treatment.” Id. (quoting Vill.

of Willowbrook v. Olech, 528 U.S. 562, 564

(2000) (per curiam)).

To prevail on a “class of one” claim,

“‘the plaintiff must point to at least one

other individual whose circumstances, aside

from being treated more favorably than

plaintiff, are ‘prima facie identical’ in all

other respects.’” MB v. Islip Sch. Dist., No.

14-CV-4670, 2015 WL 3756875, at *10 (E.D.N.Y.

June 16, 2015) (cleaned up); see also

Clubside, Inc. v. Valentin, 468 F.3d 144, 159

(2d Cir. 2006) (“[C]lass-of-one plaintiffs

must show an extremely high degree of

similarity between themselves and the persons

to whom they compare themselves.” (emphasis

added)). More specifically, a plaintiff must

establish that he and a comparator are “prima

facie identical” by showing:

(i) no rational person could regard

the circumstances of the plaintiff

to differ from those of a comparator

to a degree that would justify the

differential treatment on the basis

of a legitimate government policy;

and (ii) the similarity in

circumstances and difference in

treatment are sufficient to exclude

the possibility that the defendant

acted on the basis of a mistake.

Ruston v. Town Bd. for Town of Skaneateles,

610 F.3d 55, 59–60 (2d Cir. 2010), cert.

denied, 562 U.S. 1108 (2010) (quoting

Clubside, 468 F.3d at 159).

To survive a motion to dismiss, a

complaint must make sufficient factual

allegations in support of this similarity

requirement. See Ruston, 610 F.3d at 59

(citing Iqbal, 556 U.S. at 678.) Courts

require “more than a bare allegation that

other individuals were treated differently.”

Vaher v. Town of Orangetown, N.Y., 916 F.

Supp. 2d 404, 435 (S.D.N.Y. 2013) (citation

omitted). “[T]he court must [] determine

whether, based on a plaintiff's allegations in

the complaint, it is plausible that a jury

could ultimately determine that the

comparators are similarly situated.” Id. at

434 (quoting Mosdos Chofetz Chaim, Inc. v.

Vill[.] of Wesley Hills, 815 F. Supp. 2d 679,

697-98 (S.D.N.Y. 2011)).

Of relevance to this action, the Second

Circuit recently recognized “that ‘[t]here is

no precise formula to determine whether an

individual is similarly situated to

comparators.’” Hu v. City of N.Y., 927 F.3d

81, 97 (2d Cir. 2019) (quoting McDonald v.

Vill. of Winnetka, 371 F.3d 992, 1002 (7th

Cir. 2004); citing Lindquist v. City of

Pasadena, Texas, 669 F.3d 225, 234 (5th Cir.

2012) (“[T]he inquiry is case-specific and

requires us to consider the full variety of

factors that an objectively reasonable

decisionmaker would have found relevant in

making the challenged decision.” (citation

omitted))). The Hu Court instructed that the

“question of ‘whether parties are similarly

situated is [generally] a fact-intensive

inquiry’ that depends heavily on the

particular context of the case at hand.” Id.

(quoting Clubside, Inc. v. Valentin, 468 F.3d

144, 159 (2d Cir. 2006); citing Jennings v.

City of Stillwater, 383 F.3d 1199, 1214 (10th

Cir. 2004) (“Inevitably, the degree to which

others are viewed as similarly situated

depends substantially on the facts and context

of the case.”)).

Killoran v. Westhampton Beach Sch. Dist., No. 19-CV-6663, 2022 WL

3309223, at *3-4 (E.D.N.Y. Aug. 10. 2022) (hereafter, the “Killoran

August 2022 Order”), aff’d, 2d Cir. Seybert 2022 Appeal, 2023 WL

4503274; see also Killoran August 2023 Order, 2023 WL 5532920, at

*7-8. (same).

II. Application

A. Case No. 20-CV-4763 (re: 2019-2020 School Year)

In this action, in its Compensatory Ed. Denial Order,

the Court previously denied Parent’s Motion for Partial Summary

Judgment regarding SRO Bates’ September 16, 2020 Decision denying

A.K. compensatory education notwithstanding the SRO’s reversal of

the IHO’s underlying determination that the School District had

provided A.K. with a FAPE in the least restrictive environment

(“LRE”) pursuant to the IDEA; in other words, the Court denied

Parent’s IDEA claim. (See Case Docket, ECF No. 22.12) Now,

pursuant to Rule 12(c), Defendants seek dismissal of Parent’s

remaining claims, i.e., alleged violations of the ADA, Section

504, and Section 1983. (See id., PMC Motion, ECF No. 25.)

1. The Parties’ Positions

Defendants contend Parent’s ADA and Section 504 claims

are based on no more than a violation of the IDEA, which is well-

established as being insufficient to plausibly allege such causes

of action. (See id. at 2.) They further assert that Parent’s

Section 1983 cause of action, another class-of-one claim, “is

supported only by the conclusory assertion that A.K. is like . . .

three comparator students because he is a post-elementary school

student and is an alternately assessed special-education student

and by the speculative assertion that ‘a comparative analysis of

his [IEP]’ and IEPs of the three comparator students ‘will reveal

further inherent similarities.’” (Id. (quoting Compl., ECF No. 1,

¶¶ 104, 105).) And, in any event, Parent “cannot use Section 1983

to obtain damages for IDEA violations absent allegations that he

was denied IDEA’s ‘procedural safeguards or administrative

remedies.’” (Id. (quoting Killoran March 2022 Order, 2022 WL

866816, at *9; further citation omitted).) Such is not the case

12 The Compensatory Ed. Denial Order is also available on the

Westlaw database: Killoran v. Westhampton Beach Sch. Dist., No.

20-CV-4763, 2022 WL 954851 (E.D.N.Y. Mar. 30, 2022).

here. (See id. (stating “the administrative record previously

filed in this Court reveals that Plaintiffs were fully accorded

the procedural safeguards and administrative remedies of the

IDEA”).)

In opposition and as to his ADA and Section 504 claims,

Parent argues these claims “are valid because his [administrative

due process] complaint illustrates how the [D]efendants

discriminated against” A.K., “above and beyond violating the IDEA”

since that complaint “sets forth how the [D]efendants entirely

precluded any consideration whatsoever to place [A.K.] within the

same ‘continuum of placement options’ offered to the other students

who were being educated within the [School District].” (Case

Docket, PMC Response, ECF No. 33, at 1.) Plaintiff contends the

School District “chose not to educate [A.K.] within an ‘alternately

assessed special class format’ simply because of his age.” (Id.

(footnoting that while a school district may request an age

variance from the state, the School District refused to do so).)

Parent asserts the School District’s discrimination is

demonstrated by its position that because there were “no alleged

age-appropriate age cohort to educate [A.K.] along side,” “it

simply did not have to educate a student like [A.K.].” (Id. at

2.) He further maintains the School District’s “exclusionary

posture was utterly malicious and effectuated with deliberate

and/or reckless indifference or with bad faith or gross

misjudgment” as underscored by its simultaneous refusal to

consider educating A.K. as a single student within an “alternately

assessed special class format” and “to apply for an age-variance

which would have facilitated [A.K.’s] inclusion within” the School

District’s existing “alternately assessed special class”. (Id.)

Then, as to his class-of-one equal protection claim,

Parent baldly purports A.K. “profile[s] as being educationally

similarly situate[d] to his identified class of comparators” in

the School District’s existing “alternately assessed special

class.” (Id.) To buttress his claim, Parent contends all the

students in the School District’s “alternately assessed special

class” were of differing ages and grade levels, like A.K.; yet,

those students were “determined to be educationally similar for

purposes of educational instruction and grouping.” (Id.)

Of note: None of Plaintiff’s arguments are supported by

citations to his Verified Complaint. (Compare PMC Response, in

toto, with Compl., ECF No. 1.)

2. Analysis

a. The ADA & Section 504 Claims

Having carefully reviewed Plaintiff’s Complaint,13 the

Court finds Plaintiff cannot make out a prima facie case under the

13 The Court has also considered Parent’s administrative due

process complaint and the transcripts of A.K.’s relevant annual

review, which Parent incorporated by reference. (See Case Docket,

Compl., ¶¶ 69, 90); see also Killoran August 2023 Order, 2023 WL

ADA or Section 504. While there is no dispute A.K. is disabled

under the terms of the ADA and Section 504 and the School District

is subject to both of those statutes, Plaintiff has failed to

allege facts that plausibly support his claims the School District

did not provide reasonable accommodations to A.K. or discriminated

against A.K. because of his disability, and thereby acted with

“deliberate or reckless indifference” or “bad faith” or gross

misjudgment.” See, e.g., Killoran August 2023 Order, 2023 WL

5532920, at *4-5. Instead, his Complaint is compiled of threadbare

recitals of the elements of his ADA cause of action (see, e.g.,

Compl. ¶¶ 71, 74, 78, 80, 82), and Section 504 cause of action

(see id. ¶ 91), supported by vague, conclusory statements (re: ADA

claim, see id. at ¶¶ 72, 73, 75-77, 81, 83, 84-86; re: Section 504

claim, see id. at ¶ 92), which does not suffice. See Killoran

August 2023 Order, 2023 WL 5532920, at *3 (quoting Harris v. Mills,

572 F.3d 66, 72 (2d Cir. 2009) (further citation omitted)); see

also Killoran March 2022 Order, 2022 WL 866816, at *8 (“Plaintiff

makes no allegation of bad faith or gross misjudgment on the part

of the [School] District; rather, he baldly alleges that ‘the

5532920, at *3 (in deciding a Rule 12(c) motion, “the Court is

confined to the allegations contained within the four corners of

[the] complaint”, which includes “any document attached to the

complaint, any statements or documents incorporated in the

complaint by reference, and document upon which the complaint

heavily relies, and anything of which judicial notice may be taken”

(internal quotation marks and citations omitted)).

school district’s actions reflect nothing short of abject malice,

gross indifference and/or retaliation against plaintiff.’ Such

conclusory allegations are insufficient to plausibly state a

discrimination claim.” (citations omitted)). In sum, Plaintiff’s

Complaint contains no factual allegations that would substantiate

plausible ADA or Section 504 claims.

Moreover, it is well-settled that “[e]vidence of an IDEA

violation, without more [] is insufficient to demonstrate a

violation under either [the ADA or Section 504].” 2d Cir. Brown

Appeal, 2023 WL 4503278, at *3 (citation omitted). Hence, Parent’s

reliance on the SRO’s decision that the School District violated

the IDEA for the 2019-2020 school year (see Compl. ¶ 89), without

more, is unavailing to maintain Parent’s ADA or Section 504 claims.

b. The Section 1983 Class-of-One Claim

Plaintiff’s class-of-one cause of action fairs no

better. Like other of his federal actions where he has brought

class-of-one equal protection claims, here, Parent fails to “point

to at least one other individual whose circumstances, aside from

being treated more favorably than plaintiff, are prima facie

identical in all other respects.” Killoran March 2022 Order, 2022

WL 866816, at *9 (quoting M.B., 2015 WL 3756875, at *10); see also

id. at *10 (where “Plaintiff fail[ed] to even identify another

student purportedly similar to A.K.”, dismissing Plaintiff’s

class-of-one claim since his bare-boned allegations, e.g., A.K.

“is being denied the right to a . . . FAPE . . . in the same manner

as all other special education students”, “fell well-short of

providing allegations plausibly supporting his claim that A.K. is

being treated differently from at least one other student whose

circumstances are identical to those of A.K”)); see also, e.g.,

Killoran August 2022 Order, 2022 WL 3309223, at *8 (notwithstanding

identifying three other alternately assessed students with Down

Syndrome, finding Parent’s allegations too general in nature to

plausibly allege an extremely high degree of similarity required

to maintain a class-of-one equal protection cause of action),

aff’d, 2d Cir. Seybert 2022 Appeal, 2023 WL 4503274, at *2

(“Plaintiffs allege that because A.K. and the comparators are

alternately assessed and because some of the comparators also have

Down syndrome, they are similarly situated. These allegations,

however, do not identify specific characteristics that apply to A.K.

and the comparators beyond those that could apply to any alternately

assessed student.”). Rather, and without even identifying them by

way of initials, Parent baldly states “there are three [other]

‘alternately assessed special education students’ who are being

afforded an education at the secondary level with the [D]efendant

[School D]istrict”, who “are all post-elementary aged students”, and

that a comparison of A.K.’s IEP with that of these other three student

“will reveal further inherent similarities existing between all of

them.” (Compl. ¶¶ 102-105; see also id. at ¶ 101 (“The plaintiff

submits that all ‘alternately assessed special education students’

inherently share similar student profiles and are this ‘similarly

situated’.”).) These class-of-one allegations are even vaguer than

those made in other complaints brought by Parent and which this Court

has repeatedly found wanting. See, e.g., Killoran August 2023 Order,

2023 WL 5532920, at *7-8 (rejecting more detailed allegations as “too

conclusory to plausibly allege the extremely high degree of similarity

required to state a cognizable class-of-one claims” (collecting other

Killoran cases dismissing class-of-one claims for deficiencies in

allegations of similarities with purported comparators)). Hence,

given the dearth of allegations of a high degree of similarity between

A.K. and any purported comparator alternately assessed special

education students, Plaintiff cannot prevail on his class-of-one

claim. See Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55,

59 (2d Cir. 2010).

Finally, to the extent Parent attempts to rely upon the

age variance granted by the State’s Education Department for the

2022-2023 academic year, that is unavailing to support his

class-of-one claim. (See PMC Response at 2.) This case concerns the

2019-2020 school year. Thus, the issue is whether “A.K. was prima

facie identical to student’s in the School District’s [2019-2020]

school year 12:1:1 class.” Killoran August 2023 Order, 2023 WL

5532920, at *8. “[N]otwithstanding the NYSED’s[14] granting A.K. an

14 “NYSED” is the acronym for the New York State Education

Department.

age variance for a subsequent academic year, because Plaintiff fails

to plausibly allege how A.K.’s circumstances for the [2019-2020]

academic year were prima facie identical to any alleged similarly

situate[d] student, his [class-of-one] Equal Protection claim cannot

survive the present Dismissal Motion.” Id.

B. Case No. 22-CV-1632 (re: 2021-2022 School Year)

By this action, Parent seeks appellate review of the

March 11, 2022 Decision of SRO Bates regarding A.K.’s educational

placement for the 2021-2022 academic year. (See Case Docket,

Compl., ECF No. 1, ¶ 2 (identifying Bates Mar. 11, 2022 Decision,

No. 22-010); see also id. ¶¶ 3-84.) Parent has also brought claims

pursuant to the ADA and Section 504, as well as a class-of-one

equal protection claim; based upon these claims, Parent seeks

compensatory damages, compensatory education, and punitive

damages. (See id. at “WHEREFORE” clause.) Defendants do not seek

dismissal of Plaintiff’s IDEA claim; instead, they seek the

dismissal of “[P]laintiff’s claims for monetary damages and

equitable relief” sought pursuant to the ADA, Section 504, and

Section 1983. (Case Docket, PMC Letter, ECF No. 8.)

1. The Parties’ Positions

Once more, Defendants argue Parent’s ADA and Section 504

claims are based on no more than a violation of the IDEA, which is

insufficient to support such claims. (See id. at 1-2.) This

deficiency is compounded by the lack of plausible allegations of

deliberate or reckless indifference, bad faith, or gross

misjudgment. (See id. at 2.) Moreover, since Parent’s class-of-

one equal protection claim is supported by conclusory allegations

regarding purported comparators, he cannot maintain his equal

protection claim. (See id. (citing Killoran March 2022 Order,

2022 WL 866816, at *10).) To the extent Plaintiff seeks the

alternative remedy of having the School District create a new

program for A.K., Defendants maintain that is not an available

option. (See id. (citing Streck v. Bd. of Educ. of E. Greenbush

Sch. Dist., 280 F. App’x 66, 68 (2d Cir. 2008) (further citation

omitted)).) Defendants also contend Parent’s request for

equitable relief is equally untenable since he “fails to meet the

pleading standards for injunctive relief.” (Id. at 2-3.) Finally,

relying upon the Court’s Killoran March 22 Order, pertaining to

A.K’s 2020-2021 school year, in which the Court dismissed

Plaintiff’s ADA, Section 504, and Section 1983 claims, Defendants

assert said Order has preclusive effect here because Plaintiff

presents identical threadbare pleadings in this action. (See Case

Docket, PMC Letter at 3.)

In opposition and as to his ADA and Section 504 claims,

Parent generally argues the School District is at fault for

creating a situation where A.K. was outside the permitted

36-month-age-span for placement in the School District’s

“alternately assessed special classes” and, then, “refusing to

apply for an age-variance” for A.K. which would have permitted his

placement in such a class. (Case Docket, PMC Response, ECF No.

27, at 1-2.) Parent also contends his claim of discrimination is

based upon A.K.’s “status as an ‘alternately assessed special

education student’ which served as the basis for the [D]efendants’

exclusionary posture . . . .” (Id. at 2.) He does not articulate

any alleged deliberate or reckless indifference, bad faith, or

gross misjudgment by Defendants. (-Se-e- -id-.- at 1-2.)

Then, regarding his Section 1983 claim, Parent again

generally lays blame with Defendant School District asserting it

“refused to educate [A.K.] within a similar ‘special class format’

and actually exacerbated the situation by refusing to apply for an

age-variance for [A.K.] which could have facilitated his inclusion

within the [D]efendant [S]chool [D]istrict’s existing ‘special

class.’” (Id. at 3.) Without benefit of citation, Parent proceeds

to rely upon “a recent NYSED investigation” which “determined that

[A.K.] and his identified set of comparators were in fact

educationally similar[].” (Id.) He baldly contends “NYSED’s

finding actually profiles as prima-facie proof that the plaintiff

is educationally similar to his identified set of comparators.”

(Id.)

Further, Plaintiff would have the Court reject

Defendants’ alternative remedy argument, asserting what he seeks

is “already being afforded to other students”. (Id.) He also

argues that because he was “educated outside of the ‘least

restrictive environment (LRE)’”, “the only form of relief which is

capable of reconciling the damages suffered by [A.K.]” is

compensatory education. (Id. at 4.) Plaintiff does not address

his initial requests for compensatory or punitive damages. (See

id.; cf. Compl. at “WHEREFORE” clause.) Finally, Plaintiff argues

the issues and facts of this case are distinct from his case

brought under Case No. 20-CV-4121; therefore, the Court’s Killoran

March 22, 2022 Order should not bar the Court’s consideration of

this action. (See id. at 4.)

Like the prior case, Case No. 20-CV-4763, (see supra),

in this Opposition, Plaintiff does not support any of his arguments

with citations to his Verified Complaint. (Compare PMC Response,

in toto, with Compl., ECF No. 1.)

2. Analysis

a. The ADA & Section 504 Claims

After carefully reviewing Parent’s Complaint, for

substantially the same reasons articulated above (see supra at

17-19), Parent’s ADA and Section 504 Claims in this action are

dismissed. Notably absent are allegations of deliberate or

reckless indifference to A.K.’s rights or that the School District

acted with gross misjudgment. (See Compl., in toto.) To the

extent Parent purports Defendants acted with bad faith (see id.

¶¶ 116-127), his allegations are both conclusory and vague; they

fail to plausibly allege bad faith. Indeed, Parent’s allegations

are no more than a rehashing of his contention that A.K. has not

been provided with a FAPE by the School District, i.e., a

regurgitation of his IDEA claim. This is insufficient to support

his disability-based discrimination claims pursuant to the ADA or

Section 504. See Killoran March 22 Order, 2022 WL 866816, at *7.

Hence, these claims are dismissed.

b. The Section 1983 Class-of-One Claim

As this Court has repeatedly instructed regarding class-

of-one claims, “a complaint must make sufficient factual

allegations in support of [the applicable] similarity requirement”

and one must provide “more than a bare allegation that other

individuals were treated differently.” Killoran August 2022

Order, 2022 WL 3309223, at *4 (internal quotation marks omitted).

Yet, again, in support of his instant class-of-one equal protection

claim, Parent relies upon allegations about “all ‘alternately

assessed special education students’” as compared to A.K. (See

Compl. ¶¶ 96-105 (emphases added).) Such reliance is unavailing.

It does not approach the “extremely high degree of similarity”

between A.K. and a comparator, i.e., that the two are “prima facia

identical”, needed to plausibly allege a class-of-one claim. See

Killoran August 2022 Order, 2022 WL 3309223, at *6; see also

Killoran August 2023 Order, 2023 WL 5532920, at *7 (dismissing

class-of-one claim based upon allegations comparing “all

‘alternately assessed special education students’” with A.K.

because said allegations did not plausibly allege the requisite

extremely high degree of similarity between A.K. and purported

comparators). Parent’s allegations about four other “alternately

assessed special education students” being similarly situated to

A.K. fairs no better given the conclusory and vague nature of those

allegations. (See Compl. ¶¶ 92-93, 106-108.) Likewise, the fact

that three of those four students also have Down Syndrome, like

A.K., without more, does not plausibly allege the prima facie

identicalness required to maintain Parent’s class-of-one claim.

(See id. ¶¶ 106-108); cf. Killoran August 2022 Order, 2022 WL

3309223, at *7 (rejecting similar allegations as not sufficiently

prima facie identical to support a class-of-one claim where Parent

proffered as comparators other Down Syndrome, alternately assessed

special education students), aff’d, 2d Cir. Seybert 2022 Appeal,

2023 WL 4503274.

To the extent Plaintiff relies upon “a recent NYSED

investigation” to support his class-of-one claim for the subject

2021-2022 school year, his reliance is misplaced. First, the Court

presumes Parent is referring to the N.Y.S Education Department’s

March 6, 2023 Letter to the Superintendent of Schools for the

School District (hereafter, the “NYSED Letter”). (See Case No.

20-CV-4121, NYSED Letter, ECF No. 58 at 2-4.) Second, while the

underlying age variance request was initially submitted in October

2021 for the 2021-2022 school year, the variance was not granted

for that school year; instead, it was treated as a renewed

application for the 2022-2023 school year and, thereafter, granted

for that subsequent school year. (See id. at 2.) Third, according

to the N.Y.S. Education Department, inter alia: “[a]ge range

variances are limited in time and approved for only one school

year”; “special classes have the potential to change from year to

year”; and, “[t]he content of the curriculum and the focus of the

class must be adjusted on a yearly basis to meet the needs of the

students placed in the class”. (Id. at 3.) Moreover, the

determination that A.K. “has developmental and disability-related

needs similar to other students in the 12:1+1 middle/high school

special class” was made after a February 2023 site visit by N.Y.S.

Education Department staff and related to the 2022-2023 school

year. (Id. at 3-4.) Hence, its relevancy is limited to the 2022-

2023 school year and does not apply to the subject 2021-2022 school

year. Accordingly, as the Court has previously found,

“notwithstanding the NYSED’s granting A.K. an age variance for a

subsequent academic year, because Plaintiff fails to plausibly

allege how A.K.’s circumstances for the [2021-2022] academic year

were prima facie identical to any alleged similarly situate[d]

student, his [class-of-one] Equal Protection claim cannot survive

the present Dismissal Motion.” Killoran August 2023 Order, 2023

WL 5532920, at *8.

c. Plaintiff’s Request to Reopen

In this action, Plaintiff also moved the Court for an

order annulling the subject decisions of the IHO and the SRO and

remanding his administrative due process complaint back to the

N.Y.S. Education Department for reconsideration given the SEQA’s

ultimate approval of an age variance (hereafter, the “Reopen

Motion”). (See Case Docket, Motion for Order to Reopen, ECF No.

21.) Parent relies upon Title 8, Section 276.8 of New York Codes,

Rules and Regulations (“NYCRR”) for his requested relief. (See

id. at 3-4.) Defendants oppose the Reopen Motion arguing this

Court is without authority to provide such relief. (See Case

Docket, Reopen Motion Opp’n, ECF No. 22.) At the October 2023

Omnibus Hearing, the Court heard oral argument on the Reopen

Motion; it reserved decision.

Having reviewed the relevant filings and considered the

parties’ arguments for and against the Reopen Motion, said Motion

is denied. The Court agrees with Defendants that Section 276.8 of

Chapter IV of Title 8 of the NYCRR pertains to appeals and other

proceedings before the Commissioner of the N.Y.S. Education

Department, and not appeals before a federal district court, since

it clearly states: “Applications for reopening are addressed

solely to the discretion of the commissioner . . . .” 8 NYCRR

§ 276.8(a); (see also Reopen Motion Opp’n ¶ 9 (“No federal

authority exists providing a federal court jurisdiction to reopen

a final, state administrative decision pursuant to 8 NYCRR

[§] 276.8. That regulation provides that reopening petitions are

addressed ‘solely’ to the discretion of the [State Education

Department (“SED”)] Commissioner and it applies only to

administrative decisions which are before the SED Commissioner in

his or her role as an appellate adjudicator.”)). Plaintiff’s

reliance on Section 276.8(c) is equally unavailing, since it, too,

addresses the authority of the SED Commissioner regarding appeals

and other proceedings before him or her and not the authority of

federal courts deciding appeals of final decisions of the NYSED.

Cf. 20 U.S.C. § 1415(i)(2)(A). Moreover, as Defendants astutely

assert:

Based on the IDEA, a federal judge’s

jurisdiction is statutorily limited to hearing

only civil actions “with respect to the [due

process] complaint presented”; further,

federal jurisdiction exists only if the due

process complaint is before the federal court

as a final decision following exhaustion of

administrative procedures. Petitioner’s

motion to reopen rendered administrative

decisions is based on the incorrect assumption

that a federal judge can intervene at the

administrative level in a matter which is

before the federal court in final status, as

opposed to adjudicating the appeals of those

final administrative decisions.

(Reopen Motion Opp’n ¶ 8 (brackets in original; emphasis added)

(first citing 20 U.S.C. § 1415(i)(2)(A); then citing Cave v. E.

Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2d Cir. 2008)).)

Accordingly, the Reopen Motion is denied.

Nonetheless, the Court recognizes Parent’s frustration

given the unfolding of events within the context of the underlying

administrative proceeding and the corresponding state court

action, such that Parent was precluded from requesting

discretionary relief from the SED Commissioner. (See Reply to

Reopen Motion Opp’n, ECF No. 23.) However, Plaintiff’s IDEA cause

of action remains before this Court, together with his request for

compensatory education for Defendants’ alleged deprivation of a

FAPE for A.K. for the 2021-2022 school year. Given the unique

sequence of events regarding said school year and the October 2021

age variance request, pursuant to 20 U.S.C. § 1415(i)(2)(C)(ii),15

the Court will also consider additional evidence in deciding

whether a violation of the IDEA occurred during the 2021-2022

school year, thereby warranting an award of compensatory

education.

15 Clause (C) of § 1415(i)(2) provides:

In any action brought under this paragraph, the court-

(i) shall receive the records of the

administrative proceedings;

(ii) shall hear additional evidence at the

request of a party; and

(iii) basing its decision on the preponderance

of the evidence, shall grant such relief as

the court determines is appropriate.

20 U.S.C. § 1415.

C. Case No. 23-CV-1114 (re: 2021-2022 School Year16)

This action is Plaintiff’s appeal of SRO Hauge’s January

20, 2023 Decision, which dismissed Plaintiff’s appeal of IHO

Schiro’s December 14, 2022 Decision regarding Parent’s

administrative due process complaint (“ADPC”) initiated on the

basis that the School District’s termination of A.K.’s Aide and

threatened termination of A.K.’s Educational Consultant – both of

whom had allegedly advocated on behalf of A.K. – violated the IDEA.

At the administrative level, Parent claimed the School District’s

alleged retaliatory actions against the Aide and Educational

Consultant “impeded the appropriate discernment of [A.K.’s]

education placement, as well as his ability to receive a [FAPE],”

thereby violating the IDEA. (Case Docket, Compl., ECF No. 1, ¶ 4;

see also id. at ¶¶ 38, 39.) The SRO dismissed Parent’s appeal of

the IHO’s decision because she was “unable to discern specific

allegations regarding a denial of FAPE, and particularly with

respect to the identification, evaluation, or placement of [A.K.]”

since those allegations were “not sufficiently detailed to

describe how the actions impeded [A.K.’s] right to a FAPE, impeded

the [P]arent’s opportunity to participate in the decision-making

16 (See Case Docket, IHO Schiro Dec. 14, 2022 Decision, ECF No.

12-2 (identifying the 2021-2022 school year as the relevant

academic year).)

process, or caused a deprivation of educational benefits to [A.K.]”

(SRO Decision, ECF No. 12-3, at 6.)

In addition to appealing the SRO’s dismissal decision,

based upon Parent’s claimed violation of the IDEA due to the

alleged retaliatory treatment of A.K.’s Aide and Educational

Consultant by the School District, Parent also claims a violation

of Section 504. (See id., in toto.) He seeks: (1) “back-end

compensatory education”; (2) compensatory and punitive damages;

and (3) an equitable “order” removing Ambrosini as a CSE member.

1. The Parties’ Positions

Defendants seek dismissal of Plaintiff’s IDEA cause of

action for substantially the same reason articulated by the SRO in

dismissing Parent’s underlying ADPC, i.e., Parent’s allegations

are threadbare and conclusory; therefore, Parent fails to

plausibly state a violation of the IDEA. (Case Docket, PMC Letter,

ECF No. 7, at 3.) Relatedly, they contend Parent’s threadbare and

conclusory allegations do not meet federal pleading standards

warranting Rule 12(b)(6) dismissal. (See id. at 2.)

Similarly, as to Plaintiff’s Section 504 cause-of-

action, since are no allegations the School District: (1) “denied

A.K. a reasonable accommodation”; (2) “the [School] District

discriminated against A.K.”; or (3) “acted with deliberate or

reckless indifference, or bad faith or gross misjudgment”,

Plaintiff has not set forth a plausible Section 504 claim. (Id.)

Faced with such a void, Rule 12(b)(6) dismissal is proper. (See

id.)

Finally, to the extent Plaintiff alleges McLaughlin was

intimidated to change her recommendation regarding A.K.’s

educational placement with threats the School District would

terminate her company’s contract with it, because this was not put

forth by Plaintiff in the ADPC, Defendants maintain this is an

unexhausted claim. Therefore, it must be dismissed pursuant to

Rule 12(b)(1). (See id. at 1.) Moreover, Defendants purport the

allegations regarding McLaughlin are subject to dismissal on

grounds of res judicata and collateral estoppel. (See id.; see

also id. n.1.)

In opposing Defendants’ Rule 12(b)(6) dismissal request,

Parent would have this Court rule upon his alleged IDEA-related

retaliation claim. His opposition raises three arguments with

purported facts not found in his Complaint. (Compare Case Docket,

Compl., with PMC Response, ECF No. 14.) For example, as to A.K.’s

Aide: Parent argues the School District “staff[ed] a habitually

intoxicated teacher to teach [A.K.]” and that when the Aide

reported this to the School District, she was fired in retaliation.

(See id. at 3.) Yet, the Aide “was simply seeking to facilitate,

protect[,] and preserve [A.K.’s] right to receive a FAPE by

reporting an extremely gross abuse that was occurring.” (Id. at

2, 3.) Similarly, as to the Educational Consultant: Parent

contends the Consultant “was knowledgeable of what was occurring

with the intoxicated teacher, as well as a host of other abuses

that were occurring to [A.K.] and had voiced her concern [to] the

[D]efendants”, which resulted in the School District curtailing

the Consultant’s “involvement not only with [A.K.], but with other

students in the . . . [S]chool [D]istrict” (Id. at 4.) Parent

argues the Consultant “was simply seeking to facilitate, protect,

and preserve [A.K.’s] right to a FAPE, and thus was simply acting

to facilitate, protect[,] and preserve a ‘protected activity’ as

contemplated by the IDEA and [Section] 504.” (Id.) Therefore,

the School District’s alleged curtailing of the Consultant’s

involvement with A.K. and other students was retaliatory, thereby

violating the IDEA and Section 504. (See id.)

Regarding claims based upon alleged interference with

and retaliation against McLaughlin, Plaintiff would have the Court

reject Defendants’ exhaustion and res judicata arguments. First,

he contends administrative exhaustion would be futile given an

earlier ruling by the IHO that retaliatory actions inflicted upon

McLaughlin would not be recognized as violating the IDEA. (See

id. at 5.) Second, Plaintiff argues res judicate is inapplicable

as the prior ruling relates to a different set of circumstances

and a different school year, but fails to identify either those

circumstances or school year. (See id.)

Finally, Parent asserts this Court should not afford

deference to the IHO’s or SRO’s decisions since whether

interference with and retaliation against third-parties “who are

engaged in ‘protected activity’ as contemplated by the IDEA and

[Section] 504” by advocating for a disabled person’s rights to a

FAPE is not an issue within the purview of the administrative

agencies who are the experts in deciding issues of educational

policy. (See id.)

2. Analysis

a. The IDEA Cause of Action

Measured consideration of Parent’s Complaint, as well as

the underlying SRO’s and IHO’s decisions giving rise to this

action, compel the conclusion that Parent fails to plausibly allege

a violation of IDEA. Indeed, the Court agrees with Defendants

that Plaintiff’s purported allegations are actually “bald and

threadbare conclusory legal contentions devoid of factual

support.” (PMC Letter at 2-3.) Rather, much like SRO Hauge, it

is difficult for this Court “to discern specific allegations

regarding a denial of FAPE and particularly with respect to the

identification, evaluation, or placement of [A.K.]” (Case Docket,

SRO Hauge Jan. 20, 2023 Decision, ECF No. 12-3, at 6.) That is so

because, as with his ADPC, in the instant Complaint, “the

[P]arent’s claims that the alleged intimidation, interference, and

retaliation [of A.K.’s Aide and Consultant] compromised [A.K’s]

IDEA protections are not sufficiently detailed to describe how the

actions impeded [A.K.’s] right to a FAPE, impeded the [P]arent’s

opportunity to participate in the decision-making process, or

caused a deprivation of educational benefits to [A.K.]” (Id.

(citations omitted).) Even assuming, arguendo, Parent could

maintain an IDEA-based retaliation claim premised upon actions

directed to third-parties, his Complaint is devoid of factual

allegations plausibly tethering those actions to the alleged

deprivation of a FAPE for A.K. (Compare id. at 7,17 with Compl.)

17 As SRO Hauge astutely stated:

Although the [P]arent’s most compelling

argument would be that the [School D]istrict’s

actions influenced the recommendations made at

[A.K.’s] CSE meetings, the [P]arent is not

objecting to any recommendations made by the

[School D]istrict in this [administrative due

process] proceeding. Additionally, as noted

by the IHO, the [P]arent has raised challenges

to the [School D]istrict’s programming in

prior hearings and for the 2021-22 school

year, and an SRO determined that the [School

D]istrict did not deny [A.K.] a FAPE.

Additionally, in that proceeding and in a more

recent proceeding regarding an April 2022 CSE

meeting for [A.K.], SROs have determined that

the [P]arent was able to fully participate in

the development of the student’s educational

programs. Accordingly, without a more

detailed allegation as to how any acts of

interference or retaliation on the part of the

[School D]istrict against staff employed by

the [School D]istrict impacted the

identification, evaluation, or educational

placement of the students, or the provision of

a FAPE to [A.K.], the [P]arent’s due process

complaint notice does not provide a claim that

Moreover, Parent’s contention “that it should be obvious that when

a school district attempts to influence the educational placement

decisions and methodological decisions of CSE member[s] and

related service providers under the threat of employment

termination that the independent rights of the subject student are

inextricably directly effected” (Compl. ¶ 44), is merely a

speculative conclusion, which does not plausibly allege an IDEA

violation. (Cf. SRO Hauge Jan. 20, 2023 Decision at 8 (stating

“[P]arent’s general claims about implementation of an IEP fail to

contain a reference to a specific IEP or service that has not been

implemented”); see also IHO Schiro Dec. 14, 2022 Decision at 5

(stating, in the instant underlying ADPC, Parent withdrew

challenge regarding School District’s alleged failure to complete

A.K.’s “annual review CSE” for the 2022-2023 school year because

it was the subject of another ADPC).) To the extent Plaintiff

seeks to maintain this cause of action by rectifying the dearth of

plausible factual allegations in his Complaint by making such

allegations in his Opposition, that attempt is unavailing; one

cannot amend a complaint by asserting purported facts in an

can properly be adjudicated at an impartial

hearing.

(SRO Hauge Jan. 20, 2023 Decision at 7 (citations omitted).) The

same holds true here: Plaintiff’s bald, conclusory allegations

that A.K. was denied a FAPE in the absence of plausible factual

allegations supporting same do not present an actionable IDEA

claim.

opposition to a dismissal motion. See Killoran March 2022 Order,

2022 WL 866816, at *7 n.9 (quoting 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)).

As to Parent’s claims regarding McLaughlin, the Court is

wholly unconvinced Parent states a plausible IDEA-violation

claim.18 In the vaguest manner, Parent generally complains “that

within the context of an actual due process hearing,” Ambrosini

“sent a clandestine correspondence” allegedly threatening to

terminate the employment of McLaughlin’s company if McLaughlin did

not make the educational placement recommendation for A.K. that

Ambrosini sought. (Compl. ¶ 25.) Notably absent are: the date of

this correspondence (see id. ¶¶ 25, 28); the date of the due

process hearing (see id.); and, factual allegations supporting

Parent’s contention A.K. was denied a FAPE (see id. ¶¶ 22-29).

18 Having carefully reviewed the administrative record below, in

this instance, the Court finds Parent sufficiently exhausted this

claim at the administrative level. While Parent’s ADPC did not

specifically reference a correspondence from Ambrosini to

McLaughlin, in its due process answer and motion to dismiss, the

School District did. (Compare NYSED IHRS Case No. 571788, Due

Process Compl., ECF No. 15-5 at 4-7, with NYSED IHRS Case No.

571788, Due Process Ans. & Mot. Dismiss, ECF No. 15-5 at 9-27, and

Ex. B, IHRS Case No. 556183, IHO Schiro Nov. 12, 2021 Decision,

attached to Ans. & Mot. Dismiss.) Therefore, the issue of a

correspondence from Ambrosini to McLaughlin was presented below.

See generally Compensatory Ed. Denial Order, 2022 WL 954851, at

*6. Accordingly, the Court declines to dismiss this claim pursuant

to Rule 12(b)(1).

Such threadbare allegations fail to plausibly allege an IDEA-based

violation.19 See generally Killoran March 2022 Order, 2022 WL

866816, at *3; see also id. at *8 (“It is well-settled that a

complaint’s factual allegations must be enough to raise a right to

relief above the speculative level. Thus, as is the case here,

where the complaint tenders naked assertions devoid of further

19 Moreover, the Court would be remiss if it did not note it finds

Parent’s allegations regarding McLaughlin to be specious. In one

of its dismissal arguments presented to this Court, Defendants

contend the Court previously considered and rejected a Section 504

claim by Plaintiff based upon a correspondence from Ambrosini to

McLaughlin. (See PMC Letter at n.1 (citing, inter alia, Killoran

v. Westhampton Beach Sch. Dist., No. 21-CV-3264, 2022 WL 4484630

(E.D.N.Y. Sept. 27, 2022) (defining “Correspondence” to be a March

5, 2021 letter from Ambrosini to McLaughlin regarding McLaughlin’s

placement recommendation for A.K.)).) Indeed, in its Killoran

September 2022 Order, pursuant to Rule 12(b)(1), this Court found

Parent lacked standing to bring claims on behalf of third-party

McLaughlin; therefore, it dismissed Parent’s purported ADA-based

and Section 504-based retaliation claims, as well as a Section

1983 free-speech claim, which claims were based upon the

Correspondence. Of relevance here, in the Killoran September 2022

Order, this Court stated: “[N]owhere 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.” Id. at *7.

Given his apparent avoidance in identifying the

correspondence to which he refers in the instant Complaint, but

given its otherwise close similarities to the Correspondence

addressed in the Killoran September 2022 Order, it is likely Parent

is, indeed, referring to the same Correspondence which this Court

already found was insufficient to maintain retaliation-based

claims under the ADA and Section 504. Neither reliance upon the

Correspondence nor Parent’s present allegations fare any better to

plausibly state an IDEA-based retaliation claim, assuming,

arguendo, such a claim exists. Cf., e.g., Collins v. City of N.Y.,

156 F. Supp. 3d 448, 457 (S.D.N.Y. 2016) (stating the “IDEA does

not protect individuals from retaliation for attempting to enforce

the IDEA”).

factual enhancement, the plaintiff has not nudged his claim across

the line from conceivable to plausible, thereby compelling

dismissal of the complaint.” (internal quotation marks and

citations omitted)). On this basis, Parent’s IDEA-based

retaliation claim regarding McLaughlin is dismissed.

b. The Section 504 Cause of Action

Again, after carefully reviewing Plaintiff’s Complaint,

the Court finds Plaintiff has failed to plausibly allege a cause

of action under Section 504. Notwithstanding that A.K. is disabled

under the terms of Section 504, to which the School District is

subjected, Plaintiff’s Complaint lacks allegations that plausibly

support his claims the School District did not provide reasonable

accommodations to A.K. or discriminated against A.K. because of

his disability. See Killoran March 22 Order, 2022 WL 866816, at

*7. Additionally, as Defendants aptly argue, “there are no

allegations that the [School] District acted with deliberate or

reckless indifference, or bad faith or gross misjudgment.” (PMC

Letter at 3 (citing Killoran August 2023 Order, 2023 WL 5532920,

at *7-8).) This is fatal to Parent’s Section 504 claim since such

allegations are required to plausibly state a Section 504

discrimination cause of action. See Pape, 2013 WL 3929630, at *11

(stating one must show a school district acted with deliberate or

reckless indifference to a student’s federally protected rights or

with bad faith or gross misjudgment to maintain a Section 504 cause

of action (collecting cases)); S.W., 528 F. Supp. 2d at 290

(“[P]laintiffs can rely on Section 504 to claim they are denied

access to a free appropriate education, as compared to the free

appropriate education non-disabled students receive, if they can

show that Defendants acted with bad faith or gross misjudgment in

the administration of disability services.” (emphasis added)).

Indeed, Plaintiff’s Section 504 cause of action is little more

than a restatement of his IDEA claim which, as this Court has

repeatedly instructed Plaintiff, without more, is insufficient to

survive a dismissal motion challenging a Section 504 claim;

therefore, this Section 504 claim is dismissed.

D. Case No. 23-CV-1115 (re: 2021-2022 School Year)

By this action, Parent challenges the January 18, 2023

Decision of SRO Harrington dismissing Parent’s appeal of IHO

Schiro’s November 23, 2022 Decision wherein the IHO found the

School District did not fail to provide A.K. a FAPE for the

2021-2022 School Year. (See Case Docket, Compl., ECF No. 1, ¶ 13.)

At the administrative level, Parent argued the School District

inadequately administered, disseminated, and used the N.Y.S.

alternate Assessment Test (hereafter, the “Test”). In his instant

Complaint, Parent alleges the School District “violated the IDEA,

and thus by extension, [A.K.’s] right to receive an ‘appropriately

ambitious’ FAPE, by virtue of failing to meaningfully utilize his

‘alternate assessment testing results’ towards the development of

his PLEPS[, i.e., “present levels of educational performance”,]

and the formulation of his academic goals for the 2021-2022

academic year.” (See id. at “WHEREFORE” clause.) He brings claims

based upon alleged violations of the IDEA and Section 504; Parent

seeks “back-end compensatory education”. (See id.)

1. The Parties’ Positions

Because the School District answered the Complaint (see

Case Docket, Answer, ECF No. 7 (denying Plaintiff’s substantive

allegations)), it moves for dismissal pursuant to Rule 12(c). (See

Case Docket, PMC Motion, ECF No. 8.) Its dismissal request is

confined to Plaintiff’s purported Section 504 Claim only and not

Plaintiff’s IDEA Claim.

The School District maintains “[n]one of the allegations

in the Complaint support a claim that [it] violated Section 504,”

highlighting that “the Complaint cited Section 504 in only two

instances.” (Id. at 1 (citing Compl., ¶ 2, and “WHEREFORE”

clause).) In addition to the well-established three-pronged prima

facie showing a plaintiff must make to maintain a Section 504 claim

(see, e.g., supra at 10-11 (quoting 2d Cir. Brown Appeal, 2023 WL

4503278, at *2-3)), the School District relies upon the Second

Circuit’s instruction that, as to the third prong, i.e., showing

a defendant’s exclusion or discrimination was due to a plaintiff’s

disability, “[e]xclusion or discrimination may take the form of

disparate treatment, disparate impact, or failure to make a

reasonable accommodation.” (PMC Letter at 2 (quoting B.C. v. Mount

Vernon Sch. Dist., 837 F.3d 152, 158 (2d Cir. 2016)).) With that

focus, it articulates three arguments in support of dismissal.

The School District first argues Plaintiff’s Complaint lacks

allegations supporting a contention that its “administration,

utilization, and dissemination of the NYSAA evaluation constituted

disparate treatment of A.K. based on disability discrimination.”

(Id. at 2.) In that vein, Parent’s Section 504-related allegations

are that same as those alleged to make out an IDEA claim, which,

without more, e.g., allegations of bad faith or gross misjudgment

based on disability discrimination, are insufficient to show

disparate treatment. (See id.) The School District next asserts

Plaintiff’s Section 504 claim cannot be one based upon a disparate

impact theory since Parent does not point to a necessary “facially

neutral policy” relating to NYSAA results which cause a

disproportionate impact on a protected group of people. (See id.

at 2-3 (“Here, the Complaint did not allege a neutral policy

regarding the NYSAA evaluation which significantly affected a

protected group to which A.K. belonged.”).) Finally, since there

are no allegations of a request for and denial of reasonable

accommodations related to the NYSAA evaluation permitting A.K. to

have meaningful access to the benefits of a FAPE, the School

District maintains Parent cannot advance his purported Section 504

claim on this basis. (See id. at 3.)

To the extent he opposes the School District’s request

to dismiss the purported Section 504 claim, Plaintiff would have

the Court find the claim to be viable because the School District

did not use “mandatory” alternate assessment testing in the

development of A.K.’s academic goals. (Case Docket, PMC Response,

ECF No. 15, at 2-3.) Parent baldly contends, “a school district’s

failure to utilize the standardized testing that is expressly

mandated by regulation for use with ‘alternately assessed

students’ is discriminatory because it illuminates disparate

treatment and moreover effectuates a disparate impact.” (Id.) He

then postures:

[T]he utilization of an “alternately assessed

student’s” “alternate assessment testing

results” is absolutely fundamentally

essential towards the provision of a FAPE,

just a[s] conventional standardized testing

has been deemed absolutely fundamentally

essential towards the appropriate education of

non-disabled students. Indeed, this is why it

is mandated by regulation. . . . [T]o deem

otherwise is patently discriminatory and

moreover effectively facilitates a

deprivation upon a disabled person’s right to

a FAPE.

(Id.) Notably absent from Parent’s arguments are citations to

allegations in his Complaint regarding either disparate treatment

suffered by A.K. because of his disabilities or any disparate

impact A.K. suffered due to said disabilities.

2. Analysis

Notwithstanding Parent’s cursory arguments to the

contrary, a fair reading of Plaintiff’s Complaint warrants the

conclusion that, to the extent he asserts a cause of action

premised upon Section 504, it is not advanced on either a theory

of disparate treatment or disparate impact. (See Compl., in toto);

cf. B.C., 837 F.3d at 158-61 (instructing on the need for

statistical evidence). Indeed, Parent has not included any

allegations regarding the different treatment received by A.K.

versus other students, abled or disabled. Rather, at most, Parent

has alleged a violation of Section 504 premised upon the School

District’s alleged violation of A.K.’s IDEA rights to a FAPE.

Without more, such a defectively alleged Section 504 claim cannot

survive a dismissal motion. See Killoran March 2022 Order, 2022

WL 866816, at *7 (“[A] violation of the IDEA, without more, is

insufficient to support a claim of disability-based discrimination

under the ADA or Section 504.” (citing French, 476 F. App’x 468,

472-73)). Instead, there must be plausible allegations “that the

[S]chool [D]istrict acted with ‘deliberate or reckless

indifference to the student’s federally protected rights’ or with

‘bad faith or gross misjudgment.’” Id. (quoting Pape, 2013 WL

3929630, at *11). Because there are no such allegations in the

instant Complaint, Parent does not plausibly allege a viable

Section 504 claim. Therefore, the School District’s Dismissal

Motion is granted, and Plaintiff’s Section 504 cause of action is

dismissed.

E. Leave to Amend

Since Plaintiff has not requested leave to amend any of

the subject Complaints discussed in this Omnibus Order, he has not

articulated any cures he would make to his pleadings to address

their deficiencies. See generally, e.g., TechnoMarine SA v.

Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (instructing a

“plaintiff need not be given leave to amend if [he] fails to

specify either to the district court or to the court of appeals

how amendment would cure the pleading deficiencies in [his]

complaint”). Considering: (1) the absence of a request to amend;

(2) pro se Parent is, nonetheless, an attorney, whose filings are

not entitled to special solicitudes; and (3) the expansive filing

history of actions in this Court, in conjunction with this Court’s

having previously provided Parent unsolicited opportunities to

file amended complaints, only to have such amended complaints again

dismissed for failing to plausibly allege causes of action pursuant

to the ADA, Section 504, and Section 1983, see, e.g., Killoran v.

Westhampton Beach Sch. Dist., Case No. 19-cv-6663 (E.D.N.Y.), and

Killoran v. Westhampton Beach Sch. Dist., Case No. 20-CV-4121

(E.D.N.Y.),20 the Court declines to sua sponte grant Parent leave

20 Indeed, given the history of Parent failing to cure deficiencies

in his pleadings when the Court has afforded him unsolicited leave

to amend any of the subject Complaints. Cf. Porat v. Lincoln

Towers Cmty. Ass’n, 464 F.3d 274, 276 (2d Cir. 2006) (holding

district court did not abuse discretion in not addressing informal

request to amend especially where “counsel did not advise the

district court how the complaint’s defects would be cured”).

CONCLUSION

Accordingly, IT IS HEREBY ORDERED:

I. As to Case No. 20-CV-4763:

The Defendants’ Motion to Dismiss (ECF No. 25 (construed

as Defendants’ Dismissal Motion)) is GRANTED; Plaintiff’s

remaining ADA, Section 504, and Section 1983 Class-of-One causes

are DISMISSED. The Clerk of Court is directed to CLOSE this case.

II. As to Case No. 22-CV-1632:

A. The Defendants’ Partial Motion to Dismiss (ECF No. 8

(construed as Defendants’ Dismissal Motion)) is GRANTED;

Plaintiff’s ADA, Section 504, and Section 1983 Class-of-One causes

of action are DISMISSED;

B. Plaintiff’s Motion to Reopen (ECF No. 21) is DENIED;

C. As to Plaintiff’s remaining IDEA cause of action:

1. Plaintiff shall serve a motion for summary

judgment by no later than March 29, 2024;

to amend in other cases before it, the Court is hard-pressed to

find such opportunities here would rectify Parent’s deficient

pleadings.

2. The School District shall have until May 3, 2024 to

serve its response;

3. Plaintiff shall have until May 24, 2024 to file a

reply, if any; and

4. As the moving party, once the summary judgment

motion is fully briefed, Plaintiff is to file said

fully briefed motion with the Court and ensure

courtesy copies of same are provided to Chambers;

and

D. In pursuing his remaining IDEA cause of action via

summary judgment motion, in addition to the submitted

administrative record (see ECF No. 7), in accordance with the

Court’s ruling (see supra at 31):

1. Plaintiff may file additional evidence to support

his claim of a violation of the IDEA by Defendants

for the Court’s consideration;

2. Said submission of additional evidence, if any, is

to be in the form of a Local Rule 56.1 Statement

and is to be served together with Plaintiff’s

summary judgment motion; and

3. Defendants may file a responsive counterstatement,

which is to be served together with their response

to Plaintiff’s summary judgment motion.

III. As to Case No. 23-CV-1114:

The Defendants’ Motion to Dismiss (ECF No. 7 (construed

as Defendants’ Dismissal Motion)) is GRANTED; Plaintiff’s

Complaint is DISMISSED. The Clerk of Court is directed to CLOSE

this case.

IV. As to Case No. 23-CV-1115:

A. The School District’s Partial Motion to Dismiss (ECF No.

8 (construed as School District’s Dismissal Motion)) is GRANTED;

Plaintiff’s Section 504 cause of action is DISMISSED;

B. If Plaintiff intends to pursue his remaining IDEA cause

of action:

1. He is to promptly cause the relevant administrative

record to be filed with this Court;

2. Within 30 days of the filing of the administrative

record, Plaintiff shall serve his motion for

summary judgment;

3. The School District shall have 30 days thereafter

to serve its response;

4. Plaintiff shall have 21 days after service of the

School District’s response to file a reply, if any;

and

5. As the moving party, once the summary judgment

motion is fully briefed, Plaintiff is to file said

fully briefed motion with the Court and ensure

courtesy copies of same are provided to Chambers;

and

C. If Plaintiff does not intend to pursue his remaining

IDEA cause of action, he is to promptly file a Notice of

Discontinuance.

SO ORDERED.

/s/ JOANNA SEYBERT

JOANNA SEYBERT, U.S.D.J

Dated: February 26, 2024

Central Islip, New York