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Challenge to Limits on Home-Based Services Fails

M.K. ex rel. Mrs. K v. Sergi, 554 F.Supp 2d 175 (D.Conn., May 12, 2008)

Mrs. K, on behalf of her son M.K., filed suit in U.S. District Court for the District of Connecticut against the Department of Education (“DOE”), the Connecticut Department of Children and Families (“DCF”), the Putnam Board of Education, and various individual officials. She alleged violations of the Individuals with Disabilities Education Act (“IDEA”), the Americans with Disabilities Act (“ADA”), §504 of the Rehabilitation Act, and 42 U.S.C. §1983. The DCF moved for summary judgment as to all of Mrs. K’s claims on various grounds, which the Court granted.

The Court first examined the DCF’s contention that the doctrine of sovereign immunity barred the recovery of any money damages from the DCF commissioner, whom Mrs. K had sued in her official capacity. The Court agreed with the DCF, but pointed out that Mrs. K could still seek injunctive relief, attorney’s fees, and costs.

Next, the Court considered the DCF’s argument that the Regional DCF Administrator and social worker, whom Mrs. K had sued in their individual capacities, were entitled to qualified immunity. With regard to the IDEA, the Court held that since the Hearing Officer lacked jurisdiction over the DCF, then the DCF violated no clearly established law, thus keeping intact the qualified immunity. Moreover, since there was no relationship between the DCF defendants and Mrs. K’s retaliation claim, they were entitled to qualified immunity on this claim.

The Court then addressed claims concerning M.K.’s admission to the DCF’s voluntary services program. After an extensive review of M.K.’s receipt of various DCF services, the Court concluded that the change from the protective services program to the voluntary services program caused no harm to or violation of M.K.’s statutory or constitutional rights.

Furthermore, as the Hearing Officer lacked jurisdiction over the DCF except in a limited circumstance not at issue in this case, then the Court determined that DCF had been improperly joined as a defendant, and thus, entitled to summary judgment on the IDEA claims.

As to the retaliation claims against the individual DCF defendants, the Court found that two of the three claims were barred by the Connecticut statute of limitations. Additionally, Mrs. K failed to demonstrate any connection between these DCF defendants and the third claim, thus qualifying DCF for summary judgment.

The Court then turned to Mrs. K’s challenges to the adequacy of the DCF services; since this claim did not involve disability discrimination, there was no evidence to support a claim under the ADA or Rehabilitation Act.

Likewise, the Court found that it had no jurisdiction to consider the DCF’s alleged use of restraints and seclusion on M.K. while hospitalized, as those were medical decisions not subject to review under the IDEA, and not part of any valid legal claim.

As to Mrs. K’s remaining §1983 claims, since the DCF defendants had no personal involvement in any of the alleged due process violations, then they were entitled to summary judgment. The Court also found some of Mrs. K’s claims to be moot, and a claim as to a state lien on their assets to be unripe for adjudication.

The end result was summary judgment in favor of the defendants on all claims.




 

 

Judge(s): William L. Garfinkel, U.S. Magistrate Judge
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Andrew Feinstein David C Shaw LLC
David C. Shaw David C Shaw LLC

 
Defendant Lawyer(s) Defendant Law Firm(s)
Jody P. Benbow Michael F. Dowley and Associates
Jane Comerford Office of the Connecticut Attorney General
Thomas M. Fiorentino Office of the Connecticut Attorney General
Susan T. Pearlman Office of the Connecticut Attorney General
Ralph E. Urban Office of the Connecticut Attorney General
Paul Gamache Siegel O'Connor Zangari O'Donnell & Beck
Frederick Dorsey Soegel O'Connor O'Donnell Beck PC
Hugh Cuthbertson Zangari Hershman PC

 

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plaintiffs cite greenwich citizens committee, inc. v.5 causal connection between any such acts by these particular right by him. as to defendant lebrun, defendants assert that the asserted against individuals); but see johnson v. new york services that dcf was providing to be special education or in a subsequent case, henrietta d. v. bloomberg, 331 f.3d 261 (2d the provisions of this chapter shall be severity of their disabilities. count iv alleges that defendants in establishing that the extravagant array of support services color of state law; and (2) that plaintiffs have been deprived of lebrun violated 1983 when they engaged in acts of retaliation on his receipt of psychiatric therapy. the second circuit of the severity of their disability by excluding them from have failed to cite to a single service that m.k. did not receive particular needs of his disability. while 44 1. sovereign immunity bars all official capacity claims; c.f.r. 35.130(b)(3)(ii) by using criteria and methods of13 because parental rights have been terminated.) m.k. resided at (quoting 42 u.s.c. 12132 and citing rodriguez, 197 f.3d at 618, placed at riverview at the request of his mother and based upon (b) by threatening to terminate dcf support if mrs. k. did not the court finds that plaintiffs have failed to state a throughout their consolidated complaint, plaintiffs raise a their individual capacities, from liability under 1983 "insofar the ada); harnett v. fielding graduate institute, 400 f. supp. 2d kemper testified that the change from protective services to in august 1995, all dcf services were terminated other than services violates 28 c.f.r. 35.130(b)(8). (consol. compl. 12 heard. (kemper aff. at 3.) required to provide community-based treatment for persons with : u.s.c. 1401(17). m has already benefitted wl 2715388 (d. conn. sept. 22, 2006). debt. services provided by vesid to the disabled services to m.k. and his family several afternoons a week; weekly claims. violation of the ada, a plaintiff must demonstrate more than an discrimination provisions of the cannot be granted because of mootness. the court agrees. that defendants acted with bad faith or gross misjudgment." the records of the administrative proceedings; (ii) shall hear incidents: (1) in 1998, defendants kemper and lebrun required lobby, inc., 477 u.s. 242, 250 (1986). the court must resolve florida union free school dist., 142 f.3d 119, 122-23 (2d cir. but only time-limited services that were limited in for home- plaintiffs. nevertheless, the court finds no evidence to support disability and to ensure evenhanded treatment 20 conclusion december 1998, who opined that m.k. should not have remained in court to enjoin dcf from imposing a lien on plaintiffs' assets, the rehabilitation act by establishing arbitrary time limits for cir. 1994); see also distiso v. town of wolcott, no. 3:05cv01910, in olmstead, the supreme court considered whether the 2 supplemental evidence submitted by the putnam defendants, it matter of law. see fed. r. civ. p. 56(c); anderson v. liberty the split of the circuits on this issue), amended on other she did not have jurisdiction over such decision-making in a school's programs." a.s. v. trumbull bd. of educ., 414 f. supp. opportunity to remain out of institutions. "instead, it holds services, the parent is given notice and an opportunity to be anti-discrimination provisions of the ada and the rehabilitation 52-577, applies to claims under 1983, the ada, and 504 of child resides. the statutorily created unified school districts, attorney was not only understandable but prudent under the attorney's fees and costs based on their status as "prevailing the request of mrs. k. the court finds no violation of the provide youth parent program services. (letter from mrs. k. to 864 (2000). "whereas the idea focuses on the content of a entitled to seek reimbursement from plaintiffs. section 46b-130, the preservation or enhancement of the family relationship and theodore sergi, et al., provides in relevant part: state vocational educational services for individuals with united states district court and/or 504. 29 u.s.c. 791(g); 42 u.s.c. 12203(b). to due process rights by virtue of their alleged intentional and/or the court determines that there is no genuine issue of material alleged retaliation. liable to reimburse the state for such care karl kemper, dtd. 5/19/98.) mrs. k. stated that at the time she protected activity; (2) that the defendant had knowledge of the limited due to the family's insurance, which did not include mrs. k., on behalf of and as next friend of her son, m.k., 43 2000)(holding that ada and rehabilitation act claims may not be custody. (mrs. k.'s depo. dtd. 2/26/2004 at 238-39.) she riverview was ready to discharge m.k. to connecticut children's k.'s permission every time there was a need to use restraints or right to bring suit under the idea. see weixel v. board of5 eastern region of dcf, who is sued in his individual capacity;1 the third alleged act of retaliation concerned mrs. k.'s addressed to the commissioner of the department of education. k. worked for the young parent program through quinebaug valley plaintiffs, would permit any outside agency or group to be held responsible to m.k. without seeking legal custody of him. in her deposition, that dcf employed "criteria or methods of administration" that in this case, m.k. was considered a neglected or abused of collection services, making financial contributions toward the above. enjoining dcf from reducing or terminating services to m.k. plaintiffs' due process rights by, inter alia, forcing mrs. k. to k. or m.k., but that under conn. gen. stat. 46b-130, it is 287 (2d cir. 2003), cert. denied, 541 u.s. 936 (2004). statutes, and due process issues under the united states or state individual capacities, assert that they are entitled to qualified he needed to be discharged from riverview and his mother was their acts of retaliation against plaintiffs for exercising her 48 (d) by failing and/or refusing to cooperate with putnam to discussion that plaintiffs demand would merely enhance an educational plaintiffs' complaint has been amended four times since4 live and receive education other than in segregated residential actionable by 42 u.s.c. 1983. named as defendants are theodore against dcf, its request for a letter of authorization from her plaintiffs have failed to show any adverse decision, act, or 33 dcf. (id.) create a right enforceable via 1983. see d.d. v. new york city with any of the alleged deprivations. therefore, they are this change was being made, plaintiffs have failed to produce any a claim of discrimination under these facts. from discriminating against handicapped individuals on the basis appropriate array of support services in the community and school at 3; lebrun aff. at 11.) it is a program for families who counts of plaintiffs' consolidated complaint against them on the of age and had been in the voluntary services program since june : eligible for special education and related services under the record indicates that the use of seclusion and restraints was maintenance of the child in the home or reunification of the all ambiguities and draw all inferences in favor of the family and then reduced or terminated those services, making jackson v. fort stanton hospital & training school, 757 f. supp. actions under title ii of the ada). thus, this claim of the voluntary services program, on the other hand, is retaliated against mrs. k. after she filed this lawsuit in together with any additional evidence, establishes that there has (id.) the criteria for admission to the voluntary services she had filed a lawsuit against dcf, and by refusing to take the cost of the educational services provided to m.k. plaintiffs affirmed the grant of summary judgment in favor of defendants on mrs. k. to switch m.k. from protective services to voluntary have been resolved. four of the claims have not been capacity); harris v. mills, 478 f. supp. 2d 544, 547-48 (s.d.n.y. plaintiffs rely upon. his family. a plaintiff asserting a procedural due process claim kemper and lebrun for contacting her employer in 1998, again the disability or any class of individuals with state that during m.k.'s stay at riverview, m.k. was restrained responsible for the costs of all of the residential and support original). the primary focus is the safety of the child. "when cognizable federal claim with respect to m.k.'s transfer from dcf emphasizes that the reason m.k. needed to be admitted to while persons without mental disabilities can receive the medical provided case management services and, at the request of mrs. k., 41 dcf. (id. at 9.) once dcf determines that a child is no longer protection afforded by qualified immunity provides "an immunity different than those provided to children in residential that argument was rejected in maher v. gagne, 448 u.s. 122, 127 neglected by the parent(s) or who is at risk of being abused or allocation of resources among the disabled under the cases were erroneous in certain respects. count iii claims that for the plaintiff's right to an iep under the idea through use of or constitutional rights of which a reasonable person would have u.s.c. 12132. to prove a violation of title ii, a party must incorporated herein. any additional facts necessary to the these measures, the staff at riverview refused to honor her rehabilitation act, or by implication, the tolled, until that conduct terminates. the court disagrees. as plaintiffs correctly point out, the second amended9 provided under the idea. this ruling did not affect dss's acts taken by them which were done intentionally and in reckless v. plaintiffs' claims for retaliation resolution of the issues raised by this particular summary plaintiff to adverse action following the activity; and (4) that vocational services, which he terms as breakdown of the family unit or reunite the family violates 28 severely handicapped residents violates 504." id. terminate dcf support if mrs. k. did not surrender her right to the court concluded, "[u]nder title ii of the ada, states are case even though they knew that mrs. k. opposed surrendering by defendants two years later, to create a genuine issue of ruling, the court likewise holds that dcf's claims are not barred plaintiffs' consolidated complaint. additionally, dcf is constituted a violation of any constitutional right. differences in dcf's mandatory protective services program and brightside, dcf acted pursuant to the advice of its treatment isolation of persons with disabilities is a form of 34 above, plaintiffs have failed to establish that this constituted including having his subordinates contact mrs. k.'s employer to cir. 1996); scruggs v. meriden bd. of educ., no. 3:03cv2224, 2005 child's safety and to assist the child and family so that the in the custody of dcf and an lea cannot be identified, either to riverview and before or during his residential placements at section 17a-93(k), conn. gen. stat., defines "protective 252-53.) mrs. k. testified that she was very angry that her /s/ william i. garfinkel lawsuit; (e) by designating m.k. a "voluntary" dcf case in the the rehabilitation act, claiming that vesid discriminated against clause of the united states constitution by, inter alia, or her entitlement to mandatory dcf services in order to obtain m.k. a "protective services" case, and m.k. was admitted to hospital where he remained for seven months and was then findings cannot constitute clearly established law that would put relitigating any matter than was raised or could have been raised the court held that olmstead did not stand for the proposition evidence is viewed in the light most favorable to plaintiffs, praising, redirecting, time out in the classroom, time out in a schools operated by dcf, each of which is located on the grounds "reimbursement for expense of care and maintenance. assignment defendant lebrun testified that there were two reasons it 1983 as an alternative to the idea.") asserted by dcf based on dcf's failure to exhaust administrative they are involuntary in the sense that the child's parents or defendant kemper refused to take any remedial actions after she the court, however, specifically noted that it was not holding given vesid's sole purpose in assisting the 10 substantial authority in this circuit supporting the proposition protected activity. see weissman v. dawn joy fashions, inc., 214 discrimination on the basis of disability and to ensure the dcf defendants argue that this premise is fallacious. wl 2072312, at *10 (d. conn. aug. 26, 2005) (allowing evidence of a causal connection between plaintiff's protected 28 c.f.r. 35.130(b)(3)(ii) provides:13 either the risk or the incidence of abuse or neglect are returning the child to his unit. (hearing officer's findings of to eliminate discrimination on the basis of such an argument would be beyond tenuous student's educational program, section 504 [and title ii of the against dcf. ms. burke inquired as to whether the employee would she (1) participated directly in the alleged constitutional asking the court to legally commit the child to the custody of dcf's claims. additionally, for the reasons set forth in that incident, involving different participants. plaintiffs the court agrees with the hearing officer that the use of with respect to plaintiffs' 1983 claim against defendant maintain her professionalism and that she was competent to regard. requirements apply with equal force to plaintiffs' rehabilitation protective services, he would not remain there indefinitely. if needed to do. (mrs. k.'s depo. at 240.) finally, this discriminate against children based on the severity of their lawsuit does not establish a retaliatory motive, especially in a rather the intent of the ada and 504 was to ensure that from march 27, 1998, to june 1, 1998. during those periods, he or enjoyment of any right granted or protected under the ada exception is a "no-nexus" situation, which occurs when a child is omitted). 16 additionally, as to the dcf defendants, plaintiffs allege rehabilitation act), aff'd, 198 fed. appx. 89 (2d cir. 2006); 2005). thus, the court finds that plaintiffs have failed to show of m.k.'s out-of-state placement for so long that m.k. lost the modifications he seeks would not serve the purpose of leveling following alleged actions of defendants dunbar and kemper as the last count, count vii, is brought pursuant to 1983 for 1415(i)(2)(b); see 34 c.f.r. 300.512. thus, "[f]ederal courts policy of allowing virtually unlimited state funding for m.k. was never denied any opportunities or services because of for the provision of the service, program, or roles and responsibilities of each party; assist the family to decision, which is not subject to review under the idea. the protected activity; (3) that the defendant subjected the the court declines to provide an advisory ruling on something services provided to the family. count iv further challenges the surrender her "entitlement" to its mandatory protective services additionally, the dcf defendants point out that plaintiffs educ., 103 f.3d 1114, 1120 (2d cir. 1997). the court's "inquiry, disability, be excluded from participation in or be denied the aff. at 3.) cir. 2003), the second circuit held that the basic analytical bd. of educ., 465 f.3d 503, 513 (2d cir. 2006) (citing cases and 52-577, to a civil rights action under 1983); duprey v. and m.k. in case no. 3:03cv1658, the court has found no authority provisions of either the ada or 504. as the second circuit institutions. (consol. compl. 8.) as to defendant kemper, the disabilities ("vesid") under the title ii of the ada and 504 of related services under the idea. thus, they argue that dcf's guardian, and dcf. the role of the parent or guardian is defined act. the court notes initially that the second circuit has not circumstances. and, mrs. k. admits that she never provided dcf place, and dcf asked mrs. k. to sign papers to admit m.k. to the defendant lebrun's involvement with m.k.'s case had ceased four in jackson v. fort stanton hospital & training school,15 programs. (id.) as to defendant lebrun, plaintiffs allege that services are not normally provided by a facility or an agency institutional services violates 28 c.f.r. 38.130(b) and the goals; attending therapy or other treatment sessions with the to march 1996, the only acts alleged by plaintiffs concern her of plaintiffs. moreover, in andree, the court held only that dss m.k. was admitted to mt. sinai hospital and then riverview plaintiffs have failed to produce any evidence that either these claims, defendants would not be entitled to qualified be able to remain professional in her dealings with dcf if the been discussed at length, supra. two of the claims (consol. assess idea petitions based on the `preponderance of the evidence 1 substantially impairing ii. qualified immunity supervisor on m.k.'s case. and the ada impose identical requirements, we consider these protective services check. she signed a release giving united defendants kemper and lebrun, who have been sued in their statute of limitations. additionally, plaintiffs have produced10 such that the limitations period does not begin to run, or is two-pronged test: (1) that defendants are persons acting under therapeutically indicated, he was moved to a group home and began was not satisfied with these services, which she felt were not 42 lounsbury v. jeffries, 25 f.3d 131, 134 (2d cir. 1994) (applying the commissioner of dcf, who has been sued only in her official program. with respect to plaintiffs' claims that dcf violated 28 mechanism for dcf to pay for services for a child when those 3. the dcf defendants did not violate plaintiffs' rights by involvement of a supervisor may be shown by evidence that he or settlement or personal injury awards received by a disabled an adverse action. see mount healthy bd. of educ. v. doyle, 429 voluntary services. while mrs. k. may not have understood why on a papoose board on at least three occasions and was placed in restraint were always done with supervision and were only ordered idea resides at one of these four dcf facilities, then dcf is requirement with regard to the services they in fact provide.'" that the plaintiff is in essence challenging the adequacy of his 1983. f.3d 1323, 1331 (2d cir. 1994). at issue here are the third and at issue in this case. accordingly, because the services connecticut dept. of motor vehicles, 191 f.r.d. 329, 341 (d. as their conduct does not violate clearly established statutory themselves characterize these as a "series of specific established the violation of any statutory or constitutional the idea or any other federal law which discrimination against the disabled but the substance of the filed charges." id. at 112. designed for families with a child who has complex behavioral disability; (2) that he was excluded from participation in a defendant lebrun elaborated in her sworn affidavit that c.f.r. 35.130(b)(3)(ii), they have not produced any evidence him on the basis of his disability when it failed to provide him mandatory protective services to voluntary services, which has this motion are set forth in the court's decisions on defendant brightside. while there may have been a disagreement between 9.) once a report is made, dcf investigates the report and, if attended u.s.d. #2, and dcf was his lea. because the hearing 5. the dcf defendants did not retaliate against mrs. k. or capacity. plaintiffs respond that they are not seeking money preliminary injunction finding that it was unlikely that been compliance with the idea's processes and that the child's he held, "it is the defendants who appear likely to be successful 996 f.2d 522, 532 (2d cir. 1993). handicapped individuals were not denied opportunities because of of m.k. at riverside was done pursuant to court orders and/or at form of behavior management was a medical decision and held that 128.) they further claim that dcf's alleged policy of placing not "clearly established law" that these services constituted presented . . . in a district court of the united states." 20 facilities would not support a cause of action under the ada). 22 retaliatory motive on the part of the dcf defendants in failing now 22 years old, has graduated from high school, has been exited facilities provided to their less severely disabled peers. plaintiffs cite to the expert report of dr. mark schaefer in with which dcf has a continuing contract. (kemper aff. at 3.) 30 and little or no "hands on" crisis intervention. chilled a litigant's freedom of speech by filing a counterclaim its decision on the preponderance of the evidence." 20 u.s.c. iv, plaintiffs allege that defendants kemper and lebrun violated accept federal funding), vacated in part on reconsideration, 2006 not committed to dcf and do not require protective service recovery by plaintiffs of money damages against darlene dunbar, plaintiffs' request that dcf provide certain support administered by, under contract with, or otherwise available to based programs and/or residential support; (c) by terminating of orange, 251 f. supp. 2d 1225, 1233 (s.d.n.y. 2003) (holding a locked "time-out" room approximately 57 times. despite mrs. accordingly, the court finds that defendants kemper and findings and decision" made by a hearing officer "shall have the 27 court further finds that plaintiffs have failed to set forth any extent that she concluded she did not have jurisdiction over dcf, rodriguez, 197 f.3d at 619 (quoting olmstead, 527 u.s. at 604). 9 menes v. cuny univ. of n.y., 92 f. supp. 2d 294, 306 (s.d.n.y. activities in the most integrated setting appropriate to the part of a continuum of disciplinary measures, including cueing, forsyth, 472 u.s. 511, 526 (1985). the supreme court and second brown, received a phone call from bev burke with dcf stating that educated in his home or his home community when he was admitted "where reasonable accommodations in community programs can be added as defendants in the fourth amended complaint. it is as to intentionally and/or in reckless disregard of plaintiffs' federal york, 197 f.3d at 618 (holding that the ada only requires that a 1997, m.k. was discharged from harmony hills and returned home. summary judgment [doc. # 275] filed in case no. 3:03cv1658, was referring. (id.) mrs. k. complained to mr. kemper that she between the parties. the only involvement of defendant lebrun summary judgment on counts i and ii of plaintiffs' complaint and hospital, 897 f. supp. 83, 85-86 (s.d.n.y. 1995) (allowing 504 m.k.'s entitlement to state-funded dcf services. in count iv, which they review." id.; see also mrs. b. v. milford bd. of respect to individuals with enrolled in a public school. settled. a motion for summary judgment may not be granted unless record from which a reasonable inference could be drawn in favor between the disabled and the able-bodied. the ada and 504 of the rehabilitation act). : as for defendant lebrun, who was the social work supervisor need to do" (id. at 240). she then signed the papers. that "[a] public entity shall administer services, programs, and 504 of the rehabilitation act, and 1983 by acting had the purpose or effect of substantially impairing 757 f. supp. at 1299, the other case relied upon by plaintiffs, it is substantiated, a protective services case is opened. (id. aff. at 3.) there was no time limit on how long m.k. could additional evidence at the request of a party; and (iii) bas[e] injunction. program which has been adequate thus far, judging from m.'s except to the extent that it was acting as the lea, which is not8 vii, the only counts against any of the dcf defendants in which child, as appropriate; attending court hearings and treatment such a claim is not cognizable under the anti-discrimination or support to the same extent, and under the something to do with the contract office. it was not within riverview hospital, high meadows, and long lane. if a child proposition. the greenwich citizens case is distinguishable. such criteria can be shown to be necessary services the right to obtain any and all information from her dcf claims in tandem.") (citing lincoln cercpac v. health & hosps. against ms. burke. (id.; mrs. k. depo. dtd. 2/26/2004 at 243, was one of only three employees and the only employee with a that ms. lebrun understood. (id.). lebrun testified that mrs. the provision of dcf services, which presumably refers at least riverview from september 14, 1995 to april 12, 1996, and again the idea provides that "[a]ny party aggrieved by the edmondson oil co., 457 u.s. 922, 930 (1982). only the second with respect to the change from the mandatory protective it is not clear whether plaintiffs in count iii are14 out-of-home care, if necessary." (id.)(emphasis and bold in services" as "public welfare services provided after complaints treatment was best for m.k. (id.) plaintiffs respond that it was clear from the hearing ada. in reviewing doe's discrimination providing the necessary services, he authorized the maintenance generally fetto v. sergi, 181 f. supp. 2d at 66-67. matters. see lillbask v. sergi, 193 f. supp. 2d 503, 508 (d. not keep m.k. at home without substantial in-home and community- services so that m.k. can continue to attend public school is 1996. between april 1998 and june 1998, she was the social work 1983 claim against a government official alleged to have mrs. k. for the reasons set forth in this court's ruling on the rehabilitation act. see m.d. v. southington bd. of educ., to using restraints on a child who has been hospitalized for the courts have imposed an additional requirement: to prove a for summary judgment [doc. # 275] filed by mrs. k. and m.k., as no evidence that either kemper or lebrun was involved in making an employee of the young parents program had a pending case social providers to monitor the child's progress toward social (b) failed to provide plaintiffs with written notice prior to the : failure to provide certain services to m.k., they have failed to intervention, but who, due to emotional or behavioral reasonable for him to believe that his actions did not violate 9. the court cannot enjoin the state from collecting a doe, 148 f.3d at 83-84, flight, 68 f.3d at 63-64, and olmstead, through contractual or other arrangements, part of protective services. moreover, to the extent that education act ("idea"), 20 u.s.c. 1400-1482; the americans grounds on denial of reh'g by 480 f.3d 138 (2d cir. 2007). the suggesting that she was unfit to work on dcf-funded cases because liability as to plaintiffs' 1983 claims against them. 40 parties at the due process hearings, case nos. 95-353 and 03-087. dcf was not subject to the jurisdiction of the hearing officer in although plaintiffs allege in their complaint that their to make such professional judgments when m.k. was admitted to 49 remedies. see 20 u.s.c. 1415(i)(2)(a). this same argument was filed in state superior court for juvenile matters, which sought professionals in placing m.k. there until it was determined that defendant kemper about these retaliatory acts; (d) by refusing to of restraints and seclusion during m.k.'s hospitalization at kemper, the law is well-settled in the second circuit that court need not resolve that issue here because it finds that the idea due process hearing, except to the extent that it was dcf. (2d am. compl. 126.) neither defendant lebrun nor course of conduct taken by either defendant kemper or lebrun or a fetto, 181 f. supp. 2d at 75-76; a.s., 414 f. supp. 2d at 184; provision of services designed to prevent the breakdown of the asserted by plaintiffs pertain to these time periods. neglected. (lebrun aff. 7.) the primary goal is to ensure the plaintiffs attempt to get around the statute of10 defendant kemper or lebrun were involved with this incident. u.s. 274, 287 (1977). additionally, there is insufficient comp. 138g and h) concern the alleged acts of retaliation, evidence presented by the parties.'" m.s. v. board of educ. of the ada or 504 of the rehabilitation act with respect to dcf's judgment motion are set forth below. city's failure to provide a particular service to the disabled, 2d 144, 154 (d. conn. 2004), aff'd, 148 fed. appx. 64 (2d cir. ("doe"); darlene dunbar, the commissioner of the connecticut service or program being offered that was employed by dcf to participate in the decision-making as to what services would be ability to assert a lien against plaintiff's recovery in a secure treatment needs; provide casework services to the family; request that these measures not be used and refused to obtain her due process hearings, that the hearing officer lacked authority judgment in favor of the dcf defendants on these particular needs of qualified individuals with disabilities." plaintiffs idea actions." id. (internal quotation marks and citations institutional placements as opposed to time-limited, home-based approximately three weeks later, dcf withdrew the neglect i. sovereign immunity government's decision through a hearing; and (i) indicating that develop a treatment plan with time-limited, measurable goals and social worker assigned to m.k.'s case between june 1995 and march 2. the dcf defendants are entitled to qualified immunity as chance to develop a healthy relationship with his family. (id. she was kemper's subordinate and participated in the decision to he continued to be in danger of abuse or neglect, dcf would seek exclusion or discrimination was due to his disability. fetto v. because it permitted dcf to provide services to m.k. without any lacking from plaintiffs' discrimination claims. 504, a plaintiff must prove (1) that he or she engaged in a information to a prospective employer in 2002. right to bring a civil action with respect to the complaint his disability. relying on doe v. pfrommer, 148 f.3d 73 (2d cir. additionally, the court notes that shortly after the hearing dcf's lawsuit against mrs. k. and m.k. because dcf failed to with the requested letter of authorization from her attorney. in response to a complaint. greenwich citizens, 77 f.3d at 30. must give "due weight" to the findings and decision of the whatever medical services they render, or that the ada requires and his family are not "related" in the sense 47 2002) (setting forth the elements of a retaliation claim under retaliatory adverse employment decision constitutes a separate k. needed a break and had come to agree that residential under the ada and/or 504, it is unlawful to coerce, the ada, 504 of the rehabilitation act, and the due process allege any act by any dcf defendant which could constitute services program to the voluntary services program, as discussed commissioner, department of children and families v. m.k., no. each of these incidents was a discrete allegedly retaliatory plaintiffs also claim that defendants dunbar and kemper only claim against her was her participation in the decision to lebrun are entitled to qualified immunity or have no personal which have been decided. several others (consol. comp. 138j of a dcf-operated facility: connecticut children's place, more desirable or beneficial than its voluntary services program. 28 c.f.r. 35.130(b)(8) provides:12 that were not to plaintiffs' liking after plaintiffs filed a voluntary services. (id.) the program is designed to encourage testified that she did not know what to do and eventually signed integration regulation under these circumstances. their constitutional rights for which he could be liable under services they need without similar sacrifice." 527 u.s. at 601. at 1122. there is simply no basis from which the court can infer a m.k. was placed at riverview in 1995 at the request of mrs. k. longer in foster care. in the voluntary services program, dcf may provide casework, commissioner of department of children and families v. m.k. and v.) m.k.'s discharge from natchaug hospital, dcf agreed to provide a bars any claims for money damages by plaintiffs against darlene requirements for graduation from public school and is no longer them because she lacked jurisdiction over dcf and had no government actor performing discretionary tasks is entitled to develop and implement a transition plan for m.k. the fifth count on m.k. while he was hospitalized; (c) by contacting her sergi's motion for summary judgment [doc. # 231] and the motion 32 family unit violates 28 c.f.r. 35.130(b)(3)(ii). both of 1998. (ltr. from m. allegro to j. messina dtd. 12/2/04.) he that defendant dunbar, as commissioner of dcf, was aware of rights were violated by virtue of dcf's failure to obtain mrs. an order of the probate court. upon his discharge, he was again norwalk bd. of educ., 183 f. supp. 2d 534, 539 (d. conn. 2002). with disabilities act of 1990 ("ada"), 42 u.s.c. 12101, et mrs. k. testified that she did not understand what voluntary rehabilitation act or title ii of the ada. see s.w. v. warren, dcf services would be terminated if mrs. k. continued to complain because a child does not have a parent living in the state or show any harm caused by this contact. the court finds no basis united states magistrate judge must first show that he had a property right. board of regents he could be moved to a group home. the court finds no basis for attended u.s.d. #2 and dcf acted as his lea. none of the claims rights with respect to the following actions: (a) threatening to remarkably from his special education without a lien against the proceeds of this lawsuit or any other assets exhaust administrative remedies, and dcf is precluded by the the family, to be paid for by the family; respite care one night money damages are sought (other than their claim for attorney's to provide plaintiffs with a reasonable opportunity to retaliation claims under the ada and 504 of the rehabilitation as to plaintiffs' allegations that defendants kemper and m.k.'s need for residential, therapeutic, and other professional to release this information to mrs. k.'s prospective employer. plaintiffs respond that this court lacks jurisdiction over discriminated against by a public entity; and (3) that such the premise underlying these claims is plaintiffs' services was violating clearly established law. see also fetto 1998)), cert. denied, 532 u.s. 942 (2001). the district court establish any property interest implicated by this alleged 603 n.14. yet, this is precisely what plaintiffs are challenging requiring her to surrender entitlement to protective services and based on the reasoning of doe, the court finds that activity, filing the instant lawsuit in 1996, and these actions her right to mandatory protective services and apply for under either the ada or the rehabilitation act and grants summary services case. (id. at 10.) however, if after a reasonable riverview, and before or during m.k.'s residential placements in depo. dtd. 2/26/04 at 242.) ms. brown indicated that the that case addressed the requisite state-of-mind requirement for a the violation; (3) created a policy or custom under which plaintiff is treated `by reason of . . . disability.'" id. at 276 time limitations on the length of time support services would be available to the non-handicapped." id. therefore, the court act claims. see rodriguez v. city of new york, 197 f.3d 611, 618 were being violated. colon v. coughlin, 58 f.3d 865, 873 (2d the states to `provide a certain level of benefits to individuals suggest that she was an unfit employee to work on dcf-funded the voluntary services program was so that it could provide time period, the risk to the child does not abate and the family (id. at 239-40.) coordinate, if necessary, out-of-home placement materials; 7 notice prior to the termination of dcf services; (c) by failing issues of fact, but rather, whether the administrative record, "voluntary" because to be accepted into the voluntary services because of those disabilities, relinquish participation in services; (2) a dcf employee contacted mrs. k.'s employer in 1998 judgment as to whether m.k. could live and be educated in his own from march 27, 1998, to june 1, 1998. during those periods, m.k. failing to act on information that their constitutional rights screen out m.k. from fully and equally enjoying such service or (collectively "plaintiffs"), has brought this action alleging the district court of new mexico held that recipients of federal about may 6, 1998, the executive director of the agency, pam 14 plaintiffs compensatory and punitive damages. (consol. compl. states a standard of care for whatever services they provide to and has not been briefed, the court notes that there is discriminatory acts." (pls.' mem. at 30.) "a discrete ensure that handicapped individuals receive specific services. categorical services were time-limited, kemper explained that mental disabilities when the state's treatment professionals including any recovery in this lawsuit, to reimburse itself for (3) a public entity may not, directly or situation such as this where there was an ongoing relationship case, which is discussed at length below. the court finds no fees and costs). further, to the extent that dcf is arguing that the court has carefully reviewed plaintiffs' discrimination this claim is addressed to what plaintiffs perceived to be the preliminary injunction dtd. 7/31/96 at 39.) continuing responsibility of the child by the parent or guardian. to benefit from special education. . . ." 20 administration which undermine the principal goal of the circuit have encouraged the use of summary judgment when of the dcf defendants on all claims in counts i and ii of mrs. k. testified that she was not sure what dcf was looking for necessary services for m.k.; (b) by failing to provide written injunctive relief. see henrietta d. v. bloomberg, 331 f.3d 261, 3 which was not provided to anyone); fetto, 181 f. supp. 2d at 76 by a doctor. (id. at 63.) a claim of discrimination under the ada or 504. like the the disabled nor does it require the states to "provide a certain principles articulated in olmstead v. l.c., 527 u.s. 581 (1999), john shea, the former director of student services for putnam; allegations that his parents were neglecting or abusing him and the dcf defendants next argue that they are entitled to who is no longer a minor, to participate in as full members. see disability. it is this comparative component that is wholly gloeckler, 68 f.3d 61, 64 (2d cir. 1995) ("challenges to the not release the requested information, and she claims that she (ii) that have the purpose or of right of support to commissioner of children and families," termination of dcf's services; and provide interpreter services, claims and has considered all of the evidence presented in hearing officer. see hendrick hudson dist. bd. of educ. v. specifically addressed above: that defendants lebrun and kemper ives, inc., 183 f.3d 155, 159 (2d cir. 1999); sands v. runyon, 28 rehabilitation act claim against a defendant with authority to such services. that the requested services violating the ada and 504 of the rehabilitation act: (a) by that dcf policies and practices were necessarily segregating her persons do not oppose such treatment, and the placement can be m.k. at any time; legal issues regarding the idea, other federal and state where necessary. (id. at 2-3.) there is no time limit on only that `states must adhere to the ada's nondiscrimination accordingly, for the reasons set forth above, the motion for vesid services, not illegal disability discrimination." id. at police twice because of behavioral incidents with m.k. on both : summary judgment [doc. # 230] of the dcf defendants is granted. incorrect evaluation or substantively faulty iep he must show id. (emphasis in original). thus, the court finds that it was child is no longer at risk of being abused on neglected. (id. at and jackson v. fort stanton hospital & training school, 757 f. result of the case was not in the employee's favor. (mrs. k.'s sovereign immunity bars an award of attorney's fees and costs, actionable `unlawful employment practice.'" id. at 114. plaintiffs allege that defendants kemper and lebrun for m.k.'s case for three months in 1998 from april to june, and 35 official capacity. see alden v. maine, 527 u.s. 706, 750 (1999). kemper and lebrun violated plaintiffs' rights secured by the ada, the parents of a minor child for whom care or mrs. k.'s own deposition and exhibits establish that this contact 25 the voluntary services program, that issue has been addressed that has not yet happened or may never happen. 527 u.s. at 600-01). may be required under title i, it is not same terms and conditions, as are the parents particular service provided to some not be denied to the disabled disabilities. (consol. compl. 130.)14 6. plaintiffs have failed to state a claim under the ada or become a "voluntary" dcf case. protective services are for children and families who come to although this issue was not raised by the dcf defendants11 dcf services to obtain necessary services for m.k., and by 1998), they argue that neither the ada nor 504 was intended to terminated. there is no dcf treatment team for mrs. k. or m.k., something different about the way m.k. was treated because of his satisfactory academic performance." (ruling on motion for services. public school; reversing the hearing officer's decision to the 8. certain of plaintiffs' claims are moot; and records. dcf, however, would not release this information to voluntary services and maintain m.k. as a "voluntary" client of of the day, to prepare him for school; behavior management limits" on certain home-based services as compared to voluntary services. when dcf decides to discontinue voluntary 12132. the supreme court held that "unjustified institutional a job with united services, which had a policy of doing a costs, and expert witness fees; finding that defendants are judgment is improper. see chambers v. trm copy centers corp., 43 50 528 f. supp. 2d 282, 297 (s.d.n.y. 2007) (dismissing all 504 employer had been contacted, but her employer was already aware worker's supervisor, came in and said "you need to do what you by state agencies. unified school district #2 consists of four department of children and families ("dcf"), who is sued in her hills, because the treating professionals at riverview believed plaintiffs were going to be successful in their claim that the immunity from an award of money damages for claims brought under such particularized treatment among the many regional administrator for the eastern region of dcf, plaintiffs m.k., by and through his mother : made, defendants' failure to integrate severely handicapped his benefits and conditioning his re-entry into the vesid program as relief, plaintiffs seek an order, inter alia, requiring with a reasonable opportunity to participate in decision-making prong is at issue. as discussed above, plaintiffs have failed to sound educational policy for those of the school authorities defendants to fully and faithfully implement the hearing anti-discrimination provision of title ii of the ada, 42 u.s.c. -----------------------------------x treatment team. again, this claim is moot in that m.k., who is court finds that plaintiffs have failed to set forth any discontinue these services clearly violated federal law, as did pragmatic procedural mechanism in the federal rules for resolving vesid's failure to provide him with tailored who was the social worker assigned to m.k.'s case from june 1995 the dcf defendants have moved for summary judgment as to all "personal involvement of defendants is a prerequisite to an award `happened.'" nat'l r.r. passenger corp. v. morgan, 536 u.s. 101, and k) involve the use of restraints and seclusion, which again vi. plaintiffs' discrimination claims under the ada and 504 plaintiffs, on the other hand, relying on the supreme k.'s advising hospital staff that she objected to the use of employer, quinebaug valley youth and family services, and hospital from september 14, 1995, to april 12, 1996, and again 244-45; mrs. k.'s decl. dtd. 10/29/04 at 6.) psychiatric hospital. (concl. of law 26.) the administrative next, the dcf defendants argue that, to the extent student to pay for services that are mandated to be provided free individual capacity; the putnam board of education ("putnam");3 23 voluntary services was favorable for both m.k. and his family apply eligibility criteria that screen out or support of any kind has been provided under qualified individual with a disability shall, by reason of such fact and that the moving party is entitled to judgment as a m.k.'s needs and authorized an out-of-state placement for so long yonkers, 231 f.3d 96, 102 (2d cir. 2000) (quoting walczak v. no fixed time limit on how long a child can be a protective f.3d 29, 37 (2d cir. 1994). disabled. rather, his challenge derives from following grounds: youth and family services, which received dcf funding. on or for the hearing officer's assertion of jurisdiction over dcf, retaliatory or discriminatory act `occurred' on the day that it act to challenge the adequacy of the services provided by dcf, to a reversal of the hearing officer's ruling as it pertains to promulgated under the ada, 28 c.f.r. 35.130(d), which provides complaint." it encompasses plaintiffs' claims in case no. 1243, 1299 (d.n.m. 1990), rev'd in part and remanded by 964 f.2d 2.) the role of dcf is to complete an assessment to determine a constitutional or federally protected right. lugar v. title ii of the ada provides, in relevant part, that no dcf funding if mrs. k. continued to challenge the separate hearing officer's findings of fact, the court reviews de novo necessary to enable m.k. to receive an appropriate education; and conn. 2002); see also mrs. b. v. milford bd. of educ., 103 f.3d seclusion and restraints at a psychiatric hospital was a medical decide whether they want help. (id.) "the child is the client. voluntary services and by designating m.k. as a "voluntary" dcf planning meetings on the child's behalf; providing transportation establish a prima facie claim of retaliation under the ada or violation of the ada, 504 of the rehabilitation act, and funding for m.k.'s therapeutic foster placement until transition attending public school in the community and was later placed in "protective services" case by dcf, and a neglect petition was in part to the mandatory protective services program. in count raised by mrs. k. and m.k., as defendants, in their motion for of confidentiality (consol. compl. 131 (c)), she has failed to such law. salim v. proulx, 93 f.3d 86, 89 (2d cir. 1996). the cannot be a protective services case and a voluntary services 38 they state, he was discharged to his home. in 1998, he was again 10-15d, the lea is the school system in the town in which the that states must provide disabled individuals with the plaintiffs have failed to set forth a claim of discrimination occasions m.k. was arrested. in march 1998, dcf again designated from 9:00 p.m. to 6:00 a.m. week nights and on weekends. mrs. k. framework of the ada requires a comparative component, in other termination of dcf services; (c) failed to provide plaintiffs the department of children and families, dunbar, kemper,3 policy manual describes "protective services" as "a specialized nearly unlimited funding for institutional placements for m.k. individuals. see also fetto, 181 f. supp. 2d at 76 (holding that 28 defendants and plaintiffs' filing of the initial lawsuit to violation of any constitutional or statutory right in this the four hours per week of mentoring. mrs. k. requested an in- based children; (b) by establishing and implementing arbitrary that individuals may not be sued for violations of title ii of failing to obtain parental consent prior to the use of restraints deliberate indifference to the rights of the plaintiffs by harmony hill and brightside. instead, they argue, the record application for a new job. in late 2002, mrs. k. had applied for program, the parents must voluntarily co-operate with dcf. (id. was made by someone other than defendant kemper or lebrun. mrs. defendants." non-moving party. id. at 255. if there is any evidence in the a week for approximately two hours; and an on-call crisis worker 31 the public entity's program with provided by dcf that were challenged by plaintiffs in the due to the extent that plaintiffs claim that exceptional non-7 evenhanded treatment between the disabled and non-disabled). practices, they claim, discriminate against children based on the "that the ada imposes on the states a `standard of care' for this contact. to the extent that mrs. k. now complains that and lebrun are referred to herein collectively as the "dcf child, in part, because of reports that he was being subjected to the parent(s) must accept these services from dcf, or dcf will public entity's services, programs or activities or was otherwise carissa lebrun, kemper's subordinate, who is also sued in her2 community life they could enjoy given reasonable accommodations, eligibility and identify treatment needs of the child and family; of damages under 1983." wright v. smith, 21 f.3d 496, 501 (2d to take action to put those services in place so that m.k. could qualified immunity because he was not personally involved in any 3:03cv1658(wig). connecticut. family as the anticipated goal; meeting regularly with dcf and the purpose of the ada and rehabilitation act was to eliminate unconstitutional practices occurred, or allowed such policy or was, as set forth above, when she told mrs. k. to do what she additionally, in count iii, plaintiffs claim that dcf's force plaintiff to switch from mandatory protective services to william i. garfinkel defendants, in commissioner of department of children and b.l. v. new britain bd. of educ., 394 f. supp. 2d 522, 540 (d. defendants as to these claims. defendant kemper was a party to that complaint. they were both 8 [her] direction of command." (lebrun depo. dtd. 1/7/3 at 48-49.) except where a special school district, called a unified8 15 that funding for m.k.'s therapeutic placement is not required by carissa lebrun states in her affidavit that she was the2 day care, and which provided inadequate case management services v. sergi, 181 f. supp. 2d 53, 80 (d. conn. 2001) (holding that disabilities from fully and equally enjoying program require the cooperation between the child, the parent or material fact. the mere fact that some actions were taken by dcf communication and that disciplinary action should have been taken community referrals, and treatment services to children who are in this case - the level of benefits provided by dcf to m.k. in administrative case no. 03-087. commitment of m.k. to the custody of dcf. initially, dcf provided to the k. family when it was clear that mrs. k. could disabilities." id. at 607.15 with certain services, including a "job coach" and in terminating medical malpractice suit for medicaid expenditures. plaintiffs have failed to establish that they were harmed in any (e.d.n.y. 2004) (holding that dss's placement of a lien on service provided to him by vesid. id. at 84. "to provide the plaintiffs' claims in count iii must fail for other reasons. placed for a short time at the children's home and then at a administrator of the eastern region of dcf from may 1, 1998, to 2d 152, 182 (d. conn. 2006). "in the special education context, clearly established. however, as discussed below, even when the child under eighteen, so that it was obvious to whom ms. burke developed at the administrative proceedings and any further establishing and implementing policies and practices which permit about her fitness as an employee; and (3) dcf refused to release the court's ruling on the motion for summary judgment of mrs. k. plaintiffs argue that the voluntary services program was time- authority to enter orders against it. as discussed at length in entitled to summary judgment on plaintiffs' 1983 claims. the second circuit has had the opportunity to construe plaintiffs' consolidated complaint sets forth seven counts,4 assistance are prohibited under 504 of the rehabilitation act determined to warrant removal from the home, the child protective court's decision in olmstead v. l.c., 527 u.s. 581 (1999), and the procedural history of this case and facts relevant to alleged discriminatory animus against the disabled. that there is no individual liability under section 504 of the variety of allegations concerning dcf's forcing mrs. k. to that the child is receiving adequate care in their own home or in legally cognizable claim with respect to the dcf defendants' at 8.) protective services are "mandatory" in the sense that could not assert a lien for educational or related services professional judgment as to whether m.k. could live and be 7. there is no requirement that dcf contact a parent prior their handicaps that were afforded to non-handicapped ruling on the dcf defendants' motion for summary judgment [# 230] their challenge to this court's subject matter jurisdiction over the standard governing motions for summary judgment is well- 570, 575 (s.d.n.y. 2005) (holding that individuals may not be reckless acts of intimidation and retaliation set forth above, as action to remediate the harm to mrs. k. after she complained to qualified immunity is raised as a defense. see hunter v. bryant, 5 misconduct. see generally leocata v. wilson-coker, 343 f. supp. considered "related services" under the idea. on the contrary, five of which contain claims against one or more of the dcf possesses the authority under the idea to impose such an officer's decisions; requiring them to pay attorney's fees, level of benefits to individuals with disabilities." 527 u.s. at establish any personal involvement of either kemper or lebrun official capacity; karl kemper, the regional administrator of the 1996, culminating in the last complaint filed november 18, 2003, their motion for summary judgment [doc. # 275], the court rejects hearing, the hearing officer found that the decision to use such count ii alleges that the hearing officer's decisions in these f.3d 224, 234 (2d cir. 2000); sarno v. douglas elliman-gibbons & and by order of the probate court. after he completed his stay release information to a potential employer because of the claim against individuals who were responsible for the initiate proceedings to have custody of the child committed to of abuse, neglect or abandonment, but in the absence of an with disabilities.'" id. at 603 n.14. however, with regard to which are the leas for purposes of the idea, are schools operated accomplishment of the objectives of because dcf has yet not asserted a lien against any assets eligibility criteria not necessary for the provision of the supp. 1243 (d.n.m. 1990), rev'd in part, 964 f.2d 980 (10th cir. without prior notice and an opportunity to be heard; and awarding plaintiffs have also asked the court to enter an order petition and m.k. entered putnam public schools. in november district of connecticut this is not a program but a payment mechanism. it provides a 36 therapeutic foster care placement is moot because m.k. is no surrender her parental rights and her entitlement to mandatory 504 of the rehabilitation act; against non-leas would render the idea scheme meaningless, as it 46 and, thus, dismissing plaintiffs' claim that challenged the like a really good thing for the family, and a good thing for conn. 2005). amounts paid by dcf for educational services; permanently of the defendants stating, "[i]n the case before us, it is clear guardians have not asked for help, and it is not up to them to entitled to summary judgment in its favor on its complaint, in doe, the plaintiff sued the director of the new york felt comfortable with the employee's ability to continue to between january 1998 and march 1998, mrs. k. called the adequately coordinated with m.k.'s program at school, which were 26 court finds that this claim, first asserted in the consolidated services provided to m.k., which were necessary for him to force m.k. to switch from mandatory protective services to needed medical services, persons with mental disabilities must, plaintiffs in doe, plaintiffs here are attempting to invoke the as to plaintiffs' retaliation claims against defendants seq.; 504 of the rehabilitation act of 1973, as amended, 29 to the voluntary services program activity being offered. home or in his home community if the necessary support services discontinuation of protective services for m.k. additionally, 37 the idea and ada, and that she did not have jurisdiction to hold process hearings were not services provided in its capacity as an responsible for providing educational services. (the only complaint does address these allegations but only as to defendant seclusion without informed consent. against dcf. therefore, summary judgment should enter in favor a continuing course of conduct constituting a breach of duty, 82. the court noted that his claims were not based on any way when m.k. was transferred from protective services to perception that dcf's mandatory protective services program is any personal involvement by defendant kemper in a violation of defendants. was living on his own in an apartment in springfield, allege that he, too, was aware of m.k.'s needs but, rather than "related services" under the idea. residents into community programs which presently serve less this contact or that either of them even knew about it until previously known as the non-committed treatment program. in count failure to provide these services and/or threatening to process clause of the fourteenth amendment by virtue of twelve act. dcf seek custody or protective supervision of a child receiving riverview a second time for evaluation. on june 1, 1998, here, unlike dss's situation in andree, dcf has not asserted effect of defeating or adequate respite services, mentoring services while m.k. was in retaliation is time-barred. 4. except when dcf is acting as the lea, dcf has no counties of warren, 77 f.3d 26 (2d cir. 1996), in support of this the plaintiff was ultimately challenging was not illegal to this court's subject matter jurisdiction over any claims 45 that, if she did not sign the papers, she would either have to 980 (10th cir. 1992), maintain that dcf discriminated against (holding that plaintiff's claim that he received benefits reasonably accommodated, taking into account the resources and patricia kline, his successor as putnam's director of student defendants argue that defendant kemper is entitled to at riverview, he was placed at a residential facility, harmony iv. plaintiffs' claims for relief under the idea kemper. 502 u.s. 224, 227-28 (1991); ying jing gan v. city of new york, appears that m.k. was not discharged from dcf's voluntary adjudication or assumption of jurisdiction by a court." dcf's as for plaintiffs' argument that these defendants' actions necessarily required under the anti- discrimination against m.k. because of his disability.11 in community settings, as opposed to institutions, violated the take m.k. home or dcf would have to obtain an order of temporary of the lawsuit, and no adverse action was taken as a result of [m.k.]" (pls.' ex. 1, lebrun depo. dtd. 1/7/03 at 50.) second, as part of their prayer for relief, plaintiffs ask this sergi, 181 f. supp. 2d 53, 75 (d. conn. 2001). these u.s.c. 794; and plaintiffs' rights under the due process clause 1992), and that dcf's placement of arbitrary time limits on the iii. failure to state a claim with respect to m.k.'s admission parties," nor does it preclude plaintiffs' seeking prospective vii. use of restraints and seclusion by dcf tend to screen out an individual with a the dcf defendants focus on the third prong and assert that immunity, for plaintiffs' right to access to the courts is 12 a "time-out" room while m.k. was at riverview, they have not 19 the playing field with respect to the benefits under vesid services before plaintiffs had an opportunity to challenge the x. state's lien against mrs. k. and m.k. regional administrator of dcf from may 1, 1998, to april 5, 2002, need and want help to resolve the child's problems. a child families v. m.k. and mrs. k., case no. 3:03cv1658, and are sergi, the former commissioner of the department of education mandate those services being provided under disabilities. a causal connection exists between the adverse action and the to obtain legal custody over him. limitations bar by arguing that these three incidents represented maximum from his education, is not enough to argue that, under andree v. county of nassau, 311 f. supp. 2d 325 state's refusal to provide services to mentally disabled persons voluntary services program, which enabled dcf to provide services the plaintiff's discrimination claims. see also flight v. was necessary to transfer m.k. to the voluntary services program. utilize criteria or methods of worker shall initiate court action." (id.) after the fact. defendant lebrun testified that this "had dcf argues that the doctrine of sovereign immunity bars any protective services continue until the department is satisfied subordinates who committed the wrongful acts; or (5) exhibited have been abused or neglected." (policy manual 30-4 at 2.) retaliation claim addressing the alleged actions of defendants dcf's attention through a report that a child is being abused or were provided. specifically, plaintiffs claim that dcf refused specifically noted in olmstead, the ada does not impose on the believed her confidentiality rights were violated by this held personally liable for violations of the ada or patient evaluation of m.k., which was ordered by the court. however, is not directed to discerning whether there are disputed v. roth, 408 u.s. 564, 577 (1972). plaintiffs have failed to 2006 wl 3355174, at *6 (d. conn. nov. 17, 2006). the personal benefit from his education; ordering defendants to maintain dunbar, the commissioner of dcf, who has been sued only in her fact 62.) a clinical nurse testified that seclusion and the dcf defendants argue that some of plaintiffs' claims the court agrees that the doctrine of sovereign immunity that they are "required to assist . . . [m] mentor to work with m.k. approximately 20 hours per week, helping 110 (2002). "each incident of discrimination and each plaintiffs also assert in the seventh count that defendants summary judgment standard threatening to terminate dcf support if mrs. k. did not surrender of the rehabilitation act, or 1983, for the dcf defendants' health needs. (kemper aff. at 2.) the program is called dcf states that there is no lien against any assets of mrs. connecticut's three-year statute of limitations, conn. gen. stat. vs. no. 3:96cv00482(wig) 17 asserted against individuals either in their personal or official professionals as to how long m.k. should have stayed at any service, program, or activity, unless placed m.k. in a local foster home. on january 27, 1995, upon kemper and lebrun violated plaintiffs' rights secured by the due these defendants that plaintiffs seek money damages for the 6 and idea claims against individual defendant); atkins v. county services until december 9, 2004, at which time, he was 19 years twenty-four (24) hours, seven (7) days a week program intended to that district courts do not "substitute their own notions of defendants. count i is a claim for "costs, attorney's fees, and harmony hill and brightside. the dcf defendants counter that 3:96cv00482(wig) and case no. 3:03cv1505(wig). custom to continue; (4) was grossly negligent in supervising and next friend, mrs. k., words, "there must be something different about the way the that, however, does not preclude plaintiffs' seeking an award of plaintiffs' request that dcf maintain funding for m.k.'s maintain that dcf has repeatedly failed or refused to make a that m.k. lost the chance to develop a healthy relationship with smith issued a lengthy ruling on plaintiffs' request for a have greater experience or expertise than the courts on such after the alleged acts of retaliation took place.9 even when m.k. reached the age of eighteen. based on with respect to plaintiffs' claims that dcf violated 28 viii. section 1983 claims difficulties, may require any of the services offered, administration: from suit rather than a mere defense to liability." mitchell v. situation is not stabilized, dcf may file a neglect petition education of city of new york, 287 f.3d 138, 148-49 (2d cir. below, the only alleged personal involvement of kemper, who was by the doctrines of res judicata and collateral estoppel. program and moving m.k. to its voluntary services program, 51 support services to maintain him in his home community but failed conn. 2000) (applying three-year state limitations period to with those hearings. for the reasons set forth in its other the papers under pressure and against the advice of her attorney. acting as the lea for m.k. while m.k. resided at riverview mrs. k. and m.k. harmless from claims for reimbursement of 334 f.3d 217, 224 (2d cir. 2003) (holding that conn. gen. stat. planning is completed; ordering defendants to provide an expert fees" based on plaintiffs' alleged status as prevailing recommendation of treating professionals. as soon as it was accomplishment of the objectives of its program. to the extent dcf. (id.) shows that dcf repeatedly provided inadequate services to the ix. mootness set forth in plaintiffs' complaint, was that he was aware of "[d]iscrete discriminatory acts are not actionable if time years earlier. moreover, given the pending litigation by mrs. k. officer lacked jurisdiction over dcf in all other respects, her 11 retaliation for mrs. k.'s attempts to enforce her federal rights, plaintiffs also seek to invoke the integration regulation responsibility for services to m.k. under the idea; that defendants violated the individuals with disabilities 29 bringing this claim under 1983 or the ada or the rehabilitation at the outset, this court will address plaintiffs' challenge yet determined whether a federal regulation standing alone can benefits of the services, programs, or activities of a public disregard of plaintiffs' rights. four of these claims (consol. employee had made the agency aware of the lawsuit and that she held in henrietta d. v. bloomberg, 331 f.3d at 276, there must be cognizable federal cause of action, whether under the ada, 504 vii, they allege that defendants kemper and lebrun violated him each morning during his most troublesome, temper-prone time m.k. by failing to make, and/or refusing to make a professional educational needs have been appropriately addressed." a.s. v. or seclusion and grants summary judgment in favor of the dcf change violated any federal statute or constitutional right. the kemper and lebrun in 1998 was first asserted in the fourth was acting as the lea, and that no attorney's fees may be imposed n.9 & 132-33 (1980). voluntary services, and plaintiffs have failed to show how this and/or threatening to terminate dcf-funded supports that were to plaintiffs' claims for money damages under 1983; provide information and referral services and coordinate with authorize the dcf treatment team to use restraints and seclusion physical abuse at home. on september 14, 1994, m.k. was made a fourth elements. to set forth a claim under 1983, plaintiffs must satisfy a february 2002. funded by dcf; and (d) by subjecting m.k. to restraints and 18 dcf was not the proper party against whom the plaintiff's claims affirmed the district court's grant of summary judgment in favor her then current employment. (mrs. k.'s depo. dtd. 2/26/04 at so that m.k. can continue to live in the community and attend defendant kemper and lebrun's alleged violation of plaintiffs' doctrines of res judicata and collateral estoppel from "reasonable accommodations," because of the protective services to voluntary services. certainly the services that are sought for m she said that defendant lebrun, who was the dcf social6 lost this employment opportunity, which paid higher wages than damages from defendant dunbar, who is not named in counts iv and protect children from birth to eighteen (18) years of age who defendants on notice that their conduct in not providing certain cited to any statute, regulation, or even case law to support 24 violation; (2) failed to remedy the wrong after being informed of discriminated against m.k. in violation of the ada and 504 of first, the program was "really flourishing" and they had a better dcf's alleged policy and practice of placing "arbitrary time claims, therefore, it is important to bear in of the fourteenth amendment to united states constitution, made accordingly, the court finds that the dcf defendants are institutionalization a virtual certainty. entity, or be subjected to discrimination by any such entity. 42 cost of care for the child, based upon annual review. (id. at 1- limited, dcf responds that these services were not discontinued, residential facility, brightside in massachusetts, again upon the discriminatory decisions), aff'd on other grounds, 96 f.3d 33 (2d individual support services they were seeking from dcf would be complaint filed on november 18, 2003, is barred by the three-year while the court must afford deference and due weight to a plaintiffs are asserting any other discrimination claims under understanding of how to work with families like his. "it seemed after mrs. k. filed this lawsuit, assuming the evidence supports in the voluntary services program that he would have received as determine that such placement is appropriate, the affected support a claim of retaliation. see weixel, 287 f.3d at 148. protective services program of preserving the family unit. is addressed to the putnam defendants. the sixth count is well as (a) by forcing mrs. k. to surrender her parental rights case at the same time. (id.) according to dcf's policy manual, entitled to summary judgment as a matter of law on plaintiffs' not illegal disability discrimination. as the supreme court c.f.r. 35.130(b)(8), plaintiffs have failed to identify any u.s.c. 1415(i)(2)(a). the district court "(i) shall receive plaintiffs also assert various claims relating to dcf's use officer issued her decision, on july 31, 1996, magistrate judge to enter orders against it except to the limited extent that it services to him without seeking legal custody of him. (kemper cir. 1995). other than the acts of alleged retaliation discussed permission prior to implementing such restraints. of recipients of public assistance. no such claim is asserted in this case. raising m, or even assist m to derive the 39 2007) (holding that ada and rehabilitation act claims may not be qualified immunity from suit if either (1) his actions did not of plaintiffs, this controversy is not ripe for adjudication. cannot be responsible for attorney's fees and costs in connection intimidate, threaten or interfere with any person in the exercise of the non-moving party on a material issue of fact, summary discrimination," because, inter alia, "[i]n order to receive psychiatric reasons; connecticut's three-year statute of limitations, conn. gen. stat. as to what services would be funded by dcf; (d) terminated also moot, since m.k. has completed all of the academic (8) a public entity shall not impose or known." harlow v. fitzgerald, 457 u.s. 800, 818 (1982). thus, a for the child, as needed; and if determined capable by the bureau protective services are different from other dcf services in that admitting m.k. to the voluntary services program; 1997, dcf discontinued its services. decision, the court finds that dcf was not a proper party to the riverview between september 1995 and april 1996. plaintiffs for a claim of unlawful retaliation by defendant lebrun or 1983. the acts of retaliation involve three specific alleged transferred to harmony hills, a residential school. on june 17, this claim. when this issue was raised at the first due process amended complaint, filed on january 6, 2003, more than four years 1983. qualified immunity shields government officials, sued in face of mrs. k.'s opposition; and (f) by threatening to terminate this potential employer without a letter from mrs. k.'s attorney. services meant and that she was told by a dcf social worker6 lea, dcf should not have been joined as a party and, therefore, 4 clear that she could not take care of him at home for reasons rowley, 458 u.s. 176, 206 (1982). this deference seeks to ensure complained to him about these alleged retaliatory acts and breach constitutions, the rationale being that hearing officers do not therefore establish: (1) that he is a qualified individual with a 21 school district, has been created by statute, conn. gen. stat. olmstead on several occasions. in rodriguez, 197 f.3d at 619, massachusetts and was employed full-time. id. of charge to such students violated the idea), this court mind that the purposes of such statutes are of the actions taken in this case, and plaintiffs have not community services, as needed; evaluate progress and planning for mandatory protective services and apply for voluntary services; comp. 138a, e, f, and l) concern the transfer of m.k. from (consol. compl. 129.) these practices, they contend, violate clearly established law; or (2) it was objectively time limits on the provision of services designed to prevent the from special education, and all dcf services have been remain in protective services, but because of the nature of7 (2d cir. 1999) ("because section 504 of the rehabilitation act son. 13 it was not safe for him to return home. as soon as possible, locked time-out room staffed by childcare workers, and the id. (internal citations omitted). the court concluded that what evidence as to how they were harmed by this change or how this 52-577's three-year limitations period applies to 504 claims); requiring dcf to make mrs. k. and m.k. full members of the dcf dcf. (policy manual 37-2 at 1.) there is no requirement that as being an active participant in the treatment plan with involvement in switching m.k. to a voluntary protective services family team meetings; weekly counseling for m.k., mrs. k., and violated the idea, as discussed above, this court has found that and never provided dcf with the requested letter. thus, dcf did support of these claims in the light most favorable to a foster home. thus, the record shows that defendants' placement corp., 147 f.3d 165, 167 (2d cir. 1998)), cert. denied, 531 u.s. so ordered, this 12th day of may, 2008, at bridgeport, involving his ieps could be asserted. "permitting such claims at risk, the protective services case is closed. (id.) there is ada] combats discrimination and safeguards equal access to the would undeniably ease mrs. k.'s burden in barred, even when they are related to acts alleged in timely must adhere to the ada's nondiscrimination requirements. id. summary judgment has been described by this court as the "most available to the state and the needs of others with mental rehabilitation act are disfavored."); rodriguez v. city of new at 9.) plaintiffs also claim that he took specific actions in karl kemper states in his affidavit that he was regional1 officer's decision in 1996 that she considered some of the the services that the states do provide, the court held that they which is referred to by the parties as the "consolidated without dcf's having to obtain legal custody over him. (kemper


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