15‐3636‐cv Dervishi v. Stamford Board of Education

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of October, two thousand sixteen.

PRESENT: DENNY CHIN, SUSAN L. CARNEY, Circuit Judges, BRIAN M. COGAN, District Judge.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x SHKELQESA DERVISHI, on behalf of T.D., Plaintiff‐Appellant, v. 15‐3636‐cv

STAMFORD BOARD OF EDUCATION, Defendant‐Appellee,

CONNECTICUT STATE DEPARTMENT OF EDUCATION, Defendant.† ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

* Judge Brian M. Cogan, United States District Judge for the Eastern District of New York, sitting by designation. † The Clerk of Court is directed to amend the caption to conform to the above. FOR PLAINTIFF‐APPELLANT: SHKELQESA DERVISHI, pro se, Stamford, Connecticut.

FOR DEFENDANT‐APPELLEE: Patrick M. Fahey, Richard Duturla, Shipman & Goodwin LLP, Hartford, Connecticut.

Appeal from a judgment of the United States District Court for the District

of Connecticut (Eginton, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Shkelqesa Dervishi, proceeding pro se, appeals from the

district courtʹs judgment dismissing, for lack of subject matter jurisdiction, her complaint

alleging that defendant‐appellee Stamford Board of Education (the ʺBoardʺ) denied her

son a free appropriate public education (ʺFAPEʺ) for the 2011‐12, 2012‐13, 2013‐14, and

2014‐15 school years in violation of the Individuals with Disabilities Education Act

(ʺIDEAʺ). She also asserted claims under the Americans with Disabilities Act (ʺADAʺ),

the Rehabilitation Act (ʺRehab Actʺ), and

. We assume the partiesʹ

familiarity with the underlying facts, the procedural history of the case, and the issues

on appeal.

When reviewing a district courtʹs determination that it lacked subject

matter jurisdiction because the litigant failed to exhaust her administrative remedies, we

review legal conclusions de novo and factual determinations for plain error. Polera v. Bd.

2 of Educ.,

(2d Cir. 2002). Here, the district court properly dismissed

Dervishiʹs claims as unexhausted.

The IDEA requires an aggrieved party to exhaust all administrative

remedies before bringing an action in federal court. Cave v. E. Meadow Union Free Sch.

Dist.,

(2d Cir. 2008) (citing

(i)(2)(A)). A district court

lacks subject matter jurisdiction if a plaintiff fails to exhaust her administrative remedies

when ʺassert[ing] claims for relief available under the IDEA, regardless of the statutory

basis of [her] complaint.ʺ

at 245‐46 (applying IDEA exhaustion requirement to

§ 1983 claim); see Polera,

(applying IDEA exhaustion requirement to

ADA and Rehab Act claims). However, exhaustion is excused if the defendant failed to

notify the plaintiff of her procedural rights under the IDEA. Weixel v. Bd. of Educ.,

, 149 (2d Cir. 2002). Exhaustion is also excused under the ʺfutility exceptionʺ if

a plaintiff can show that administrative review would not have provided an adequate

remedy. Cave,

. The party seeking to invoke the exception bears the

burden of showing futility.

Dervishi does not contend in her principal brief that she exhausted her

administrative remedies. Instead, she argues that the district court should have

excused her failure to exhaust because the Board did not notify her of her procedural

rights under the IDEA and an administrative proceeding would have been inadequate

because any hearing officer would have been biased. Dervishi also argues that

3 exhaustion was not required for her damages claims. Her arguments are without merit.

First, as the district court reasoned, the record shows that the Board gave Dervishi

sufficient notice of her procedural rights under the IDEA. Second, the record does not

suggest that administrative review would have been unfair or biased and Dervishi

presents no compelling arguments suggesting otherwise. Finally, the IDEA exhaustion

requirement applies to claims seeking monetary damages. See Polera, 288 F.3d at 486‐88.

For these reasons, we conclude that the district court did not err in dismissing Dervishiʹs

claims.

We have considered Dervishiʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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