MEMORANDUM DECISION AND ORDER DISPOSING OF PENDING MOTIONS
Plaintiff Barbara Engwiller brought claims on behalf of her daughter, Jacqueline, under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1401 et seq. against the Board of Education for the Pine Plains Central School District (“the School District”) and the New York State Education Department (“SED”); and under 42 U.S.C. § 1983 against New York State Education Commissioner Richard P. Mills, in his individual capacity, and New York State Special Education Manager Rita Levay, who is also sued in her individual capacity. Her claims arise out of the failure of an impartial hearing officer (“IHO”) to issue a decision on Plaintiffs challenge of Jacqueline’s Individualized Education Program (“IEP”) for the 1998-99 school year.
Defendants’ motions are disposed of as follows: (1) the State Defendants’ motion for summary judgment is granted as to Plaintiffs claims against Defendants Mills and Levay under 42 U.S.C. § 1983; and denied with respect to Plaintiffs claims against the State; and (2) the School District’s motion to dismiss is denied, but a determination on the merits will be deferred for ten days, by which time the SED must provide a decision on Plaintiffs challenge to her daughter’s IEP.
FACTUAL BACKGROUND
(1) Statutory Framework
Congress passed the IDEA to “assure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs,” to ensure that the rights of children with disabilities and parents of such children are protected, and to assist states and their agencies in working toward those ends. See 20 U.S.C. § 1400(d)(l)-(4). The statute therefore requires that the IEP be reviewed and revised each school year. See id. § 1414(d).
Accordingly, the IDEA imposes elaborate procedural requirements to be followed in the event of a disagreement between the parents and the local educational agency with respect to the child’s IEP. See id. § 1415. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child, see id. § 1415(b)(1), and to initiate an impartial due process hearing. See id. § 1415(f)(1). States and local educational agencies must comply with these requirements in order to qualify for federal funding. See id. §§ 1412, 1413.
With respect to due process hearings, the IDEA permits each state to determine whether it will provide a single-tier or two-tier administrative review process. See 20 U.S.C. § 1415(g). New York has opted for the two-tier approach. See N.Y.Educ.L. § 4404. Under the New York scheme, a parent who wishes to challenge his or her child’s IEP is entitled to a due process hearing conducted by an impartial hearing officer (“IHO”) appointed by the local board of education. See id. § 4404(1).
The IHO’s decision must be rendered no later than 45 days after the receipt by the local board of education of a request for a hearing. See 34 C.F.R. § 300.511(a)(1); 8 N.Y.C.R.R. 200.5(i)(4). That deadline may be extended at the request of either the school district or the parent. See 34 C.F.R. § 300.511(c); 8 N.Y.C.R.R. 220.5(i)(4)(i). Nonetheless, the brevity of the 45-day requirement indicates Congress’s intent that children not be left indefinitely in an administrative limbo while adults maneuver over the aspect of their lives that would, in large measure, dictate their ability to function in a complex world.
A parent dissatisfied with the decision of the IHO and the local educational agency have the right to appeal the IHO’s decision to a state review officer (“SRO”). See N.Y.Educ.L. § 4402(2). After these administrative remedies have been exhausted, a party may bring an Article 78 proceeding in state court or a federal action under § 1415(i)(2) of the IDEA. See 20 U.S.C. § 1415(f)(2)(A); N.Y.Educ.L. § 4404(3).
In the alternative, either a parent or the school district may file an appeal to a state review officer (“SRO”), as provided by New York Education Law § 4404(2) and 8 N.Y.C.R.R. 200.6(j). The filing of a § 310 appeal confers upon the commissioner authority over the local school board. See N.Y.Educ.L. § 311(4). The responding party then has 20 days to file a verified answer, see 8 N.Y.C.R.R. 275.13(a), and an additional 30 days from service of the answer to file a memorandum of law, see 8 N.Y.C.R.R. 276.4(a) — a total of 50 days (almost two precious months) at a time when the decision is already long overdue. After the verified answer is filed, the petitioner has 10 days to submit a verified reply, see 8 N.Y.C.R.R. 275.14(a). A reply memorandum of law may be submitted with the prior approval of the commissioner. See 8 N.Y.C.R.R. 276.4(a). Once the SRO issues a decision, the Commissioner may issue a formal order requiring the IHO to issue an immediate decision, or, if necessary, remove the delinquent IHO. See N.Y.Educ.L. § 4404(1).
(2) Jacqueline’s 1998-99 IEP and Plaintiffs Due Process Hearing
The following facts are undisputed except as noted. Plaintiffs daughter, Jacqueline, is 17 years old. She is classified as learning disabled under the IDEA and its corresponding state statute, New York State Education Law Article 89 and its implementing regulations. Jacqueline entered the Pine Plains school system as a kindergarten student in 1987, and has resided in the Pine Plains School District since that date.
Jacqueline has had academic difficulties since kindergarten. She repeated kindergarten for the 1988-89 school year, and following her second year in kindergarten, the School District’s Committee on Special Education (“CSE”) classified her as learning disabled and entitled to IDEA services. Additionally, at or about that time, the school psychologist evaluated Jacqueline as being of average intelligence but having difficulty retaining letter sounds, formations of letters, numbers and arithmetic concepts.
Jacqueline continued to encounter academic roadblocks in subsequent years. A 1997 independent evaluation of Jacqueline revealed that, while her general intellectual capacity fell within the high end of the “average” range, she had significant deficits in multiple areas, especially primary auditory processing and sustained attention. Dr. Rissenberg further determined that Jacqueline’s academic performance was three to five years below her grade placement, and that her reading comprehension was at the third grade level.
The present controversy stems from Plaintiffs dissatisfaction with the IEP that the School District’s CSE formulated for
On October 7,1998, the Board appointed Dee Estelle Alpert to conduct the hearing, which began on November 10, 1998. As reflected in the School District’s subsequent Section 310 appeal to the Commissioner, both parties waived the 45-day deadline for issuance of the IHO’s decision, agreeing to six healing dates concluding on August 9, 1999. Additionally, the parties agreed to submit closing briefs on September 3,1999. Alpert told the parties that she would issue a decision within two weeks after she received those briefs. (See School District Verified Section 310 Petition, attached as Exhibit C to School District’s Notice of Motion.) This timeline is consistent with Plaintiffs own acknowledgment at oral argument before this Court on June 20, 2000 that she agreed to several extensions of the 45-day requirement, but not to an indefinite extension. Thus, according to the parties’ agreed schedule, Alpert should have rendered a decision no later than September 17, 1999. To date, no decision has been issued.
In January 1999, Plaintiff enrolled Jacqueline at Kildonan. Plaintiff has been unable to continue tuition payments to Kil-donan, however, and was advised by that school in March 2000 that Jacqueline could not return until her outstanding tuition balance was paid.
Prior to the conclusion of the hearing, the School District had filed a complaint against Alpert under 8 N.Y.C.R.R. 200.21, alleging incompetence and bias based on her use of inappropriate language, smoking on school premises, and badgering of the School District’s witnesses. After the due date for Jacqueline’s decision, the School District telephoned Alpert’s office several times to inquire about the status of the matter. By letter dated November 4, 1999, the School District expanded the scope of its complaint to include Alpert’s failure to issue a decision within the agreed time frame. By letter dated January 25, 2000, Levay informed the School District that the SED had admonished Alpert for her misconduct and failure to render a timely decision, and had ordered her to issue a decision immediately. Alpert did not do so.
Six days after the hearing officer’s letter of admonition, on January 31, 2000, Plaintiff made her own 200.21 complaint to Le-vay regarding Alpert’s continued inaction. Levay responded by letter dated February 14, 2000, acknowledging receipt of Plaintiffs complaint. She recommended that Plaintiff file a Section 310 appeal to request that the Commissioner issue a formal order that Alpert render a decision, and enclosed with her letter a set of detailed instructions on filing Section 310 appeals. Levay’s letter did not indicate that the SED would take further action in connection with Plaintiffs complaint.
On March 8, 2000, the School District sent Levay a letter informing her that Alpert had still failed to issue a decision, and asked the SED to reinitiate its complaint. Levay responded by letter dated March 28, 2000, in which she recommended that the School District file a joint Section 310 appeal with Plaintiff. Again, Levay’s letter did not state that the SED
Meanwhile, on March 31, 2000, Plaintiff filed the instant suit against Defendants.
On April 17, 2000, the School District sent a letter to Plaintiffs counsel inquiring as to whether Plaintiff would be willing to participate in a joint appeal as recommended by Levay. Plaintiff did not respond to that letter, and on April 27, 2000, the School District filed its own Section 310 appeal, which named both Alpert and Plaintiff as respondents.
Alpert did not serve an answer to the School District’s Section 310 petition. Plaintiff did file an answer, in which she contended that a parent of a disabled child is not a proper respondent in a Section 310 appeal. In his decision dated June 12, 2000, the Commissioner dismissed the appeal as against Plaintiff on the ground that the School District had not stated a claim or sought relief against her. The Commissioner ordered Alpert to issue a decision on the record within 10 days of his deci sion — ie., by June 22, 2000. Alpert did not comply with this order. Therefore, on June 28, 2000, the Commissioner revoked Alpert’s IHO certification pursuant to § 4404(1) of the Education Law and 8 N.Y.C.R.R. 220.21. The transcript of Jacqueline’s hearing was sent to a new (unidentified) IHO for an immediate decision. Consistent with the history of this case, nothing has happened, though nearly two months have passed.
(3)The Present Action
Plaintiff asserts the following claims: (1) violation of the IDEA against the School District for failing to provide Jacqueline with a free and appropriate public education (“FAPE”), by its refusal to include in Jacqueline’s IEP the extended school day program and homework tutorial offered by the Kildonan School; (2) violation of Sections 1412(a)(6)(A) and 1415(b) of the IDEA against the SED for failure to ensure that a timely written decision was issued by the IHO, for denying Plaintiff notice of prior and pending complaints about the competence of IHO Alpert, and for failing to ensure that its administrative procedures are in accord with IDEA requirements and forcing parents to initiate an appeals process before receiving a final administrative decision; and (3) violation of 42 U.S.C. § 1983 against individual Defendants Mills and Levay, in their individual capacities, for denial of Jacqueline’s and Plaintiffs right to procedural due process under the Fourteenth Amendment by their failure to provide Jacqueline and Plaintiff an impartial review of their complaints stemming from unidentified “decisions” regarding Jacqueline’s special education plan, having a policy and practice of permitting administrative delay, inadequately supervising IHOs, and failing to give Plaintiff notice of IHO misconduct (unspecified as to which IHO’s misconduct).
Plaintiff seeks the following relief:
(1) a declaratory judgment that the School District denied Jacqueline a free and appropriate public education through its inadequate IEP for 1998-99;
(2) a declaratory judgment that the State Education Department has failed to operate and supervise a viable impartial hearing and state review procedure, and an injunction to prevent the continuation of the State’s allegedly inadequate supervisory mechanism;
(3) a declaratory judgment that the SED’s due process hearing procedures are defective on a system-wide basis under the IDEA;
(4) a declaratory judgment that the Defendants’ failure to ensure a timely decision from the IHO constitutes a violation of the Due Process Clause of the U.S. Constitution;
(5) a declaratory judgment that Plaintiff is exempt from exhaustion of State administrative remedies until the inadequacies of those remedies are redressed;
(6) full tuition reimbursement to Plaintiff for the costs of Jacqueline’s placement in the Kildonan School beginning in January 1999 and running through the pendency of this action and an order that her placement be maintained until the School District implements a satisfactory IEP for Jacqueline;
(7) an order that the State Education Department develop and present to the Court a plan for correction of its insufficient review practices and procedures;
(8) an order that the SED develop and present to the Court within 90 days a plan to remedy the above-alleged procedural violations, and entertain input from Plaintiff relevant thereto; and
(9) reasonable attorneys’ fees under 20 U.S.C. § 1415(e)(4)(B) and/or 42 U.S.C. § 1988.
The State Defendants have moved for summary judgment dismissing the amended complaint as against them. The School District has moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(6), but submitted numerous exhibits other than the complaint in support of the motion, as has Plaintiff in opposition. The Court, at its option, may treat such a motion as one for summary judgment. See Fed.R.Civ.P. 12(c). The Court elects to do so. This means that the Court may search the (voluminous) record and grant summary judgment to any party who is entitled to relief as a matter of law. See id.
For the reasons that follow, the Court grants summary judgment in favor of Plaintiff and against the SED and the School District, on the ground that they have violated her and her daughter’s due process rights under the IDEA. The State is ordered to provide Plaintiff with a decision on her objections to Jacqueline’s 1998-99 IEP within 10 days of this decision and order, or the Court will entertain an application for contempt. Plaintiffs application for attorneys’ fees under the IDEA is also granted as against the SED. The motion by the SED for dismissal on summary judgment on Plaintiffs remaining requests for relief, which pertain to the alleged inadequacy of the SED’s administrative procedures on a system-wide basis, is denied at this time, and Plaintiff is granted 20 days to decide whether to assert those claims on behalf of a class and litigate them fully. Finally, the State’s motion for summary judgment as to Plaintiffs claims against the individual defendants under 42 U.S.C. § 1983 is granted.
The School District’s motion to dismiss is denied, but consideration of Plaintiffs claim against the School District for the alleged deficiency of Jacqueline’s 1998-99 IEP and for tuition reimbursement is deferred in the hope of receiving an administrative decision.
CONCLUSIONS OF LAW
Standard for Summary Judgment
Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.
See
Fed.R.Civ.P. 56(c);
Anderson v. Liberty Lobby, Inc.,
(1) Exhaustion of Remedies
The State and School District Defendants first argue that this Court lacks subject matter jurisdiction over Plaintiffs claims because she has not exhausted the administrative remedies provided under the New York Education Law. Specifically, Defendants contend that Plaintiffs failure
Before bringing an action in federal court, a parent aggrieved by procedural violations of the IDEA must first exhaust state administrative remedies.
See Garro v. State of Connecticut,
The exhaustion requirement is not absolute, however. Exhaustion is not required “where it would be futile or the state administrative system would be inadequate.”
See Garro,
Exhaustion has also been held to be futile where the state administrative agency was acting in violation of the law or lacked the authority to remedy the alleged injury.
See Heldman v. Sobol,
Here, Plaintiff contends that, because the Section 310 appeal process permits the SED to shift the burden of ensuring timely IHO decisions to parents, that procedure is inadequate to protect her and her daughter’s due process right under the IDEA to a timely IHO ruling. She also alleges that recourse to Section 310 is inadequate on a system-wide basis. Since the Commissioner has no authority to alter a statutory provision, these grievances cannot be redressed through administrative channels. It follows that, under Held-man, Plaintiffs claims relating to the adequacy of New York State’s enforcement mechanism for ensuring timely adjudication of IEP challenges by Jacqueline and other children cannot be dismissed under the exhaustion doctrine.
Plaintiffs claim against the School District, by contrast, is based on her individual dissatisfaction with Jacqueline’s IEP for 1998-99. Plaintiff argues that this claim nevertheless falls under the futility exception, because the failure of the State’s administrative process to provide her with a decision for 23 months after she filed her notice of intent to seek a due process hearing suggests that further pursuit of relief before the SED would be in vain.
Because I am ordering that a decision be rendered on Jacqueline’s 1998-99 IEP
This Court is giving the Defendants one last chance. Like the
Murphy
Court, I will not “hesitate to adjudicate [Plaintiffs] claims” if an administrative determination is not forthcoming by August 28, 2000.
See Murphy,
(2) Denial of Due Process under the IDEA by the State Education Department
Plaintiffs second claim, which is asserted against the SED, is brought exclusively under § 1415 of the IDEA. This claim has been broken down into two separate elements: (1) the SED’s procedural safeguards have proven inadequate in Plaintiffs case for the State to meet its obligation under the IDEA to make certain that an IHO decision is issued in a timely fashion; and (2) the SED’s procedures are inadequate for the State to meet that obligation on a system-wide basis. I address each of these contentions in turn.
(a) Violations Specific to Plaintiffs Case
Plaintiff first claims that the SED’s failure to take effective action to ensure a timely decision constitutes a violation of the IDEA’S due process requirements, and that the SED’s procedures, as they apply to Jacqueline’s case, are insufficient under § 1415 of the Act and the regulations governed by that provision. As to this aspect of the second cause of action, I grant summary judgment to Plaintiff.
The State argues that Plaintiff lacks Article III standing to bring this action. “At ‘an irreducible constitutional minimum,’ Article III standing requires (1) that the plaintiff have suffered an ‘injury in fact,’ i.e., an injury that is ‘concrete and particularized’ as well as ‘actual or imminent,’ rather than merely ‘conjectural or hypothetical,’; (2) that there be a ‘causal connection between the injury and the conduct complained of,’ i.e., that the injury be ‘fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court;’ and (3) that it be likely that the injury complained of would be ‘redressed by a favorable decision.’ ”
St. Pierre v. Dyer,
“Although ‘standing has been denied because the injury seems
solely
at
The detailed procedural provisions of the IDEA “he at the heart” of the statute.
See Evans v. Bd. of Educ. of the Rhinebeck
Cent.
Sch. Dist.,
The procedures of § 1415' take on particular importance with respect to the issuance of timely administrative decisions. In Murphy, an IDEA case involving the failure of a SRO to decide an appeal within the statutory time frame, Judge Leisure acknowledged
the importance of prompt decisions throughout the administrative review process as provided under the Act. The purpose of the Act is to provide a free appropriate public education for disabled children. By providing a host of procedural safeguards, Congress intended to promote that purpose, not to allow appeals to languish for months or, perhaps years, while the appropriateness of a child’s educational placement remains in limbo. Congress demonstrated its awareness of the need for speedy decision-making at both the initial hearing and on appeal when it promulgated 34 C.F.R. § 300.511.
Murphy v. Arlington Central Sch. Dist. Bd. of Educ.,
No. 99 Civ. 9294,
The State does not dispute the centrality of compliance with the requirements of § 1415 in the statutory scheme. Rather, the State Defendants contend that they have satisfied those requirements by making available the Section 310 appeal procedure. They argue that Plaintiff could have pursued a Section 310 appeal in order to compel Alpert to issue a decision, and that the availability of that mechanism to Plaintiff constitutes adequate process under the IDEA. Thus, the State contends, Plaintiff cannot prevail on a claim for viola
This argument ignores the IDEA’S clear mandate that state and local agencies — not parents — bear responsibility for seeing that IHO decisions are rendered promptly. The IDEA’S implementing regulations make this abundantly clear:
§ 300.511 Timelines and convenience of hearings and reviews.
(a) The public agency shall ensure that not later than 45 days after the receipt of a request for a hearing—
(1) A final decision is reached in the hearing; and
(2) A copy of the decision is mailed to each of the parties.
34 C.F.R. § 300.511(a)(l)(2) (emphasis added). “Public agencies” within the meaning of the Department of Education regulations include state educational agencies, or “SEAs,” such as the SED.
See
34 C.F.R. § 300.500(a) (“Each SEA shall ensure that each public agency establishes, maintains, and implements procedural safeguards that meet the requirements of §§ 300.500-300.529.”) Moreover, at least two other courts have recognized the im-permissibility of transferring the onus of ensuring compliance with due process hearing deadlines from the public agency to the parent. In
Evans,
Judge Parker rejected as insufficient under the IDEA an SRO’s “admonishment” to the School District to ensure that hearings are commenced promptly.
See
Evans,
Similarly, in
Zakary M. v. Chester County Intermediate Unit,
No. 95 Cv. 1842,
Viewed against these judicial pronouncements on the responsibilities of state agencies under the IDEA and the clear language of the Act’s implementing regulations, the State’s argument lacks merit. Simply making the Section 310 procedure available to parents is clearly insufficient for the State to meet its obligations under the Act. Rather, the statute obliges the State to see that IHOs comply with the 45-day rule. It does not permit them to delegate that responsibility to parents by forcing them to shoulder the burden of seeking orders from the Commissioner to compel the issuance of IHO decisions.
That leaves the question of whether the SED met that obligation in the present case. Forty-five days from Plaintiffs request for a due process hearing fell on November 2, 1998. It is true that Plaintiff repeatedly waived her right to a decision within 45 days of her request for an impartial hearing. In so doing, however, she did not agree to a waiver of any and all deadlines
in perpetuum.
An extension of the 45-day rule merely tolls that time limit; it does not waive it entirely.
See Andress v. Cleveland ISD,
The response of the SED and the School District to Alpert’s continuing failure to comply with the parties’ deadline consisted of the following: (1) the School District telephoned Alpert’s office on several (unspecified as to how many) occa
These responses were insufficient for the SED to fulfill its responsibility to Plaintiff and Jacqueline under the IDEA. The SED took approximately three months to respond to the School District’s 200.21 complaint. And even assuming ar-guendo that this passage of time could be deemed not to have violated Plaintiffs rights under the IDEA, I conclude, like Judge Parker in Evans, that an unenforceable “admonishment,” such as the Commissioner issued to Alpert pursuant to 8 N.Y.C.R.R. 200.21, was inadequate for the SED to live up to its affirmative duty to ensure a timely decision from Alpert. The State’s subsequent responses were similarly deficient. In doing nothing more than advising Plaintiff and the School District to undertake an administrative appeal, the SED did precisely what 34 C.F.R. § 500.311(a) and the case law prohibit— i.e., reassigned the burden of ensuring a timely decision from itself to Plaintiff.
Finally, Plaintiff claims that the SED violated the IDEA’S due process requirements by “denying [Plaintiff] notice of pri- or and pending complaints regarding the competence of the appointed hearing officer.” (Am.CpMY 36.) Plaintiff appears to have abandoned this argument, as she has not addressed it in her Memorandum of Law in Opposition to Summary Judgment. In any event, she has not identified any provision in the IDEA or Department of Education regulations incorporating such a notice requirement into the Act’s due process safeguards. This contention is therefore dismissed.
For the above reasons, Plaintiff is granted summary judgment, and her request for a declaratory judgment that the SED violated her and Jacqueline’s due process rights under the IDEA is granted.
“The IDEA broadly authorizes a district court to ‘grant such relief as the court determines is appropriate.’ ”
Muller v. Committee on Special Education of the East Islip Union Free Sch. Dist.,
(b) Systemic Violation
Plaintiff also asks the Court for a judgment declaring that the State’s administrative review procedures are generally inadequate, on a system-wide basis, to satisfy the State’s obligations under the IDEA to see that IHO decisions are rendered in a timely fashion. Plaintiff has submitted affidavits from three parents who encoun
While I sympathize greatly with the frustration of these parents at what is, in their cases, an appalling administrative shortcoming, Plaintiffs evidence, which consists of a small number of procedural violations over the span of only nine months, is nowhere near sufficient to support the sweeping finding that she requests. Though it is clear that the State has failed to provide due process to Jacqueline under the IDEA, I cannot conclude on the record before me that the SED’s procedural framework violates the statutory due process rights of every child in every IDEA due process hearing conducted before the SED. However, Plaintiffs claim of systemic failure is appropriately brought, and Plaintiff, as a party aggrieved by the SED’s procedures, is a proper plaintiff to bring it if she wishes to do so as a class representative. Plaintiff has twenty (20) days to amend her complaint to assert class-wide claims if she wishes to do so. Assuming that she chooses to pursue her claims on behalf of a class, the Court will order expedited discovery and a swift adjudication of this issue of importance to thousands of children.
(3) Tuition Reimbursement
Plaintiff asks this Court to order the School District to reimburse her for tuition she has expended for Jacqueline’s placement at the Kildonan School beginning in January 1999 and running through the pendency of this action. Under § 1415(e)(2) (now § 1415(i)(2)(B)(iii)), district courts have the power “to order school authorities to reimburse parents for their expenditures on private special education for a child, if the court determines that such placement, rather than the school district’s proposed IEP, is proper.”
Muller,
The School District has moved to dismiss this claim for failure to exhaust administrative remedies. Technically, the District is correct. Under § 1415 of the IDEA, courts sit to review administrative decisions. Here, there is no decision to review. Moreover, neither party has provided the Court with any information on the antecedent questions of the appropriateness of the School District’s IEP or Jacqueline’s placement at Kildonan. Thus, I cannot make a determination on Plaintiffs claim.
However, I decline to dismiss this claim. If the IHO does not make a decision within ten days, each side has ten days to supplement the record with whatever information may be pertinent to Plaintiffs appeal and I will decide the matter in the first instance, on the ground that it would be futile to await further developments.
(4) Defendants Mills and Levay — Proce dural Due Process Violation
Plaintiffs third claim is asserted solely under 42 U.S.C. § 1983 for violation of Plaintiffs and Jacqueline’s right to procedural due process under the Fourteenth Amendment. It is well settled, however, that a plaintiff asserting a constitutionally based § 1983 claim for procedural violations of the IDEA must establish a constitutional violation “outside the scope of the IDEA.”
See Evans,
Here, Plaintiff has neither articulated nor established a denial of any process due to her that does not already fall within the ambit of § 1415 of the IDEA. Accordingly, her § 1983 claims against the individual Defendants must be dismissed. I therefore need not address the State Defendants’ remaining arguments that Plaintiffs § 1983 claims are barred under the Eleventh Amendment and that Mills and Levay are qualifiedly immune.
(5) Attorneys’ Fees
Plaintiff also seeks an award of attorneys’ fees under 20 U.S.C. § 1415(i)(3)(B), which provides:
In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parent of a child with a disability who is the prevailing party.
20 U.S.C. § 1415(i)(3)(B). Plaintiffs may be considered “prevailing parties” under this subsection if they “succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.”
See G.M. v. New Britain Bd. of Educ.,
Here, Plaintiff has prevailed on her central claim by securing from this Court a declaration that her procedural rights under the IDEA were violated, and an order that the State provide her with a decision on Jacqueline’s IEP in short order. Accordingly, Plaintiff is entitled to reimbursement from the State for attorneys’ fees expended on SED administrative proceedings and this litigation.
Conclusion
(1) Plaintiffs application for a declaratory judgment that the SED violated IDEA due ■ process requirements as to Plaintiff and her daughter is granted, and the SED is hereby ordered to ensure that a decision is issued on Plaintiffs objection to Jacqueline’s 1998-99 IEP within 10 days of this decision.
(2) Plaintiffs application for attorneys’ fees in connection with the administrative proceedings below and this action is granted.
(3) Plaintiffs IDEA claim against the School District regarding the adequacy of Jacqueline’s 1998-99 IEP and for tuition reimbursement, as well as the School District’s motion for summary judgment on that claim, is held in abeyance.
(4) The State Defendants’ motion for summary judgment is denied with respect to so much of Plaintiffs second claim as alleges a system-wide IDEA violation, and granted as to the entirety of Plaintiffs third claim.
Notes
. In her Amended Complaint, Plaintiff describes her dissatisfaction with certain IDEA services provided to Jacqueline in 1989, 1996 and 1997.
(See
Am.Cplt. ¶¶ 10-18.) As the State Defendants correctly point out, any claims Plaintiff might assert based on those alleged shortcomings are untimely under the applicable four-month statute of limitations.
See Adler v. Educ. Dept. of the State of New York,
. The case numbers of these decisions, which are attached to Plaintiff's Memorandum of Law in Opposition to Summary Judgment, are: 13,208; 14,060; 14,061; 14,145; 14,-211; and 14,240.