21-2201-cv Schneider v. Mahopac Central School District

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

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

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of May, two thousand twenty-two.

PRESENT: ROSEMARY S. POOLER, RICHARD C. WESLEY, SUSAN L. CARNEY, Circuit Judges. _____________________________________

Jonathan M. Schneider,

Plaintiff-Appellant,

v. 21-2201

Mahopac Central School District/Board of Education; Anthony DiCarlo, Dr. Gregory Stowell, Jeffrey Finton, Dr. Bennett Pallant, Leslie Mancuso, Michael Mongon, David Furfaro, Lawrence Keene, Ray McDonough, Lucy Massafra, Marc O’Connor, Adam Savino and Michael Simone, all in their official and individual capacity as Board Members, contracted professionals, and employees of the Mahopac Central School District,

Defendants-Appellees.*

* The Clerk of Court is directed to amend the case caption to conform to the above. _______________________________

FOR PLAINTIFF-APPELLANT: JONATHAN M. SCHNEIDER, pro se, Mahopac, NY.

FOR DEFENDANTS-APPELLEES: DEANNA L. COLLINS, Silverman & Associates, White Plains, NY.

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

New York (Seibel, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Pro se Plaintiff-Appellant Jonathan Schneider sued Defendants-Appellees Mahopac

Central School District and numerous District employees (together, “MCSD”), alleging that

MCSD retaliated against him by ending certain services it had been providing to his disabled son,

J.S., after Schneider voiced concerns about MCSD’s provision of those services. The second

amended complaint, operative here, asserts retaliation claims under the First Amendment and

Section 504 of the Rehabilitation Act of 1973 (pursuant to

), a conspiracy claim

under

, and a claim under the Individuals with Disabilities Act (“IDEA”), see

et seq. The district court granted MCSD’s motion to dismiss, first finding that it

lacked jurisdiction over Schneider’s IDEA and retaliation claims because Schneider had not

exhausted his administrative remedies under the IDEA. It further found that Schneider did not

state a plausible claim under

because, as a private citizen, he cannot prosecute a

criminal action in federal court. Schneider now appeals. We assume the parties’ familiarity with

the underlying facts, procedural history, and arguments on appeal, to which we refer only as necessary to explain our decision to affirm.

We review de novo a district court’s grant of a motion to dismiss, see Bellin v. Zucker,

(2d Cir. 2021), including a district court’s dismissal of a complaint for failure to

exhaust administrative remedies, see Nichols v. Prudential Ins. Co. of Am.,

(2d

Cir. 2005). In doing so, we “liberally construe pleadings and briefs submitted by pro se litigants,

reading such submissions to raise the strongest arguments they suggest.” McLeod v. Jewish Guild

for the Blind,

(2d Cir. 2017).

As an initial matter, Schneider does not challenge the dismissal of his conspiracy claim or

his claim that expressly alleges an IDEA violation, and we therefore do not consider those claims.

See LoSacco v. City of Middletown,

, 92–93 (2d Cir. 1995) (treating claims abandoned

on appeal as waived). We also decline to consider arguments and claims that Schneider raises for

the first time on appeal, including that MCSD’s alleged retaliatory actions violated the Equal

Protection Clause and the Americans with Disabilities Act. See Greene v. United States,

(2d Cir. 1994) (“[I]t is a well-established general rule that an appellate court will not

consider an issue raised for the first time on appeal.”).

Schneider’s primary argument properly before us on appeal is that the district court erred

in determining that he was required to exhaust his First Amendment and Rehabilitation Act

retaliation claims using the IDEA’s procedures before filing suit in federal court. The IDEA

“requires States to provide disabled children with a free appropriate public education.” Florence

Cnty. Sch. Dist. Four v. Carter,

(1993) (internal quotation marks omitted). Schools

must create an individualized education program (“IEP”) for qualifying students to ensure they

receive a free appropriate public education (“FAPE”). R.E. v. N.Y.C. Dep’t of Educ.,

3 167, 175 (2d Cir. 2012).

Parents who wish to challenge an IEP in court must first exhaust their administrative

remedies pursuant to the IDEA’s procedures. To begin, they must file a “due process complaint”

with the school district setting forth the IEP’s alleged deficiencies. C.F. ex rel. R.F. v. N.Y.C.

Dep’t of Educ.,

(2d Cir. 2014) (citing

(b)(7)(A)). If the alleged

deficiencies are not corrected within 30 days, the school district and parents have an “impartial

due process hearing” before an Impartial Hearing Officer (“IHO”). Id.;

(f)(1).

The IHO’s decision may be reviewed by a State Review Officer (“SRO”), who may modify or

affirm the IHO’s order; then, either party may bring a lawsuit in federal court for review of the

SRO’s decision. Id.; see also R.E., 694 F.3d at 175.

In addition to applying to IDEA claims, these exhaustion requirements apply to claims

brought under the Americans with Disabilities Act, Rehabilitation Act, and other federal laws

protecting the rights of children with disabilities to the extent that those claims “seek[] relief that

is also available under” the IDEA.

(l). “A plaintiff’s failure to exhaust

administrative remedies under the IDEA deprives a court of subject matter jurisdiction.” Polera

v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist.,

(2d Cir. 2002).

Schneider does not claim that he followed the IDEA’s procedures with respect to his First

Amendment and Rehabilitation Act retaliation claims. Instead, he argues that the claims do not

seek relief that is available under the IDEA, and, accordingly, he was not required to exhaust them

before bringing suit. In Fry v. Napoleon Community Schools,

(2017), the Supreme

Court clarified the framework for determining whether a claim that is not expressly brought under

the IDEA is nonetheless subject to the IDEA’s exhaustion requirements. The Court explained

4 that “[Section] 1415(l)’s exhaustion rule hinges on whether a lawsuit seeks relief for the denial of

a free appropriate public education. If a lawsuit charges such a denial, the plaintiff cannot escape

§ 1415(l) merely by bringing her suit under a statute other than the IDEA.” Id. at 754. Under

this standard, we must “examine whether a plaintiff’s complaint—the principal instrument by

which she describes her case—seeks relief for the denial of an appropriate education,” scrutinizing

the complaint’s “substance, not surface.” Id. at 755.

On review of Schneider’s complaint, we conclude that it seeks relief that is available under

the IDEA, and therefore that his First Amendment and Rehabilitation Act retaliation claims were

subject to the IDEA’s exhaustion requirements. Schneider’s complaint expressly asserts a claim

for a violation of the IDEA. It details his and his wife’s efforts over many months to persuade

MCSD to understand “how to best accommodate JS’s safety and educational needs.” App’x at

83 (emphasis added); see also id. at 86 (explaining how Schneider “reiterat[ed] the disapproval the

Plaintiff felt and the failures that MCSD continued to display in handling JS’s medical and

educational needs”). Schneider complains of MCSD’s failure to deliver on “accommodations

agreed to in the IEP,” id. at 87, including “the removal of services JS and Plaintiff were accustomed

to and were provided by JS’s IEP,” and which were removed “without written notice and . . .

without consent of a committee meeting,” id. at 71. He seeks relief stemming from MCSD’s

termination of accommodations it had agreed to in J.S.’s IEP—relief that is inherently related to

whether J.S. was receiving a FAPE, and that a hearing officer would be able to provide.

This analysis is confirmed by considering the two hypothetical questions that the Supreme

Court posed in Fry: (1) “[C]ould the plaintiff have brought essentially the same claim if the alleged

conduct had occurred at a public facility that was not a school—say, a public theater or library?”;

5 and (2) “[C]ould an adult at the school . . . have pressed essentially the same grievance?”

. When the answer to these questions is no, the Court instructed, “then the complaint

probably does concern a FAPE, even if it does not explicitly say so.”

We agree with the district court that in this case, the answer to Fry’s hypotheticals is “no.”

See Schneider v. Mahopac Cent. Sch. Dist., No. 20-CV-709 (CS),

, at *5

(S.D.N.Y. Aug. 31, 2021). The allegedly retaliatory actions that Schneider focuses on began at a

Committee on Special Education meeting and, as noted above, concern the removal of certain

aspects of J.S.’s IEP (primarily, provision of a trained, one-on-one aide). Because Schneider’s

retaliation claims seek relief for changes to J.S.’s IEP—an accommodation that is available only

to school children—he would be unable to bring the same claim against a different public facility,

and an adult at the school could not have pressed essentially the same grievance. Thus, Schneider

was required to exhaust administrative remedies under the IDEA before bringing his First

Amendment and Rehabilitation Act retaliation claims in federal court, and the district court

correctly dismissed his retaliation claims for lack of jurisdiction. See, e.g., S.D. by A.D. v.

Haddon Heights Bd. of Educ.,

, 126–27 (3d Cir. 2018) (finding that retaliation

claims were subject to IDEA exhaustion procedures). That J.S.’s safety was also an important

interest addressed by the accommodations provided through the IEP does not remove Schneider’s

claims from the proper ambit of the IDEA’s exhaustion requirements.

6 We have considered Schneider’s remaining arguments and find in them no basis for

reversal. Accordingly, we AFFIRM the judgment of the district court.

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

7