Blakely v. N.Y. City Dep't of Educ.

380 F. App'x 6

• Court: Court of Appeals for the Second Circuit
• Decided: May 28, 2010
• Docket: 08-5871-cv
• Status: Unpublished

Opinion

SUMMARY ORDER

Pro se plaintiffs Dean Loren, Sandra Stevens, Watasha Stevens, and Solomon Bryant appeal from the dismissal of their complaint brought pursuant to 42 U.S.C. §§ 1983 and 1985; Title I of the No Child Left Behind Act of 2001 (“NCLB”), 20 U.S.C. § 6301; the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; the Due Process and Equal Protection Clauses of the Fourteenth Amendment; and New York state law. We review the challenged dismissal de novo, see Curto v. Edmundson, 392 F.3d 502, 503 (2d Cir.2004), assuming the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.

As a threshold matter, we note that plaintiffs do not identify any specific error in the district court’s dismissal of their complaint. They state only that the district court failed to “sufficiently review[ ]” this court’s December 2006 summary order. Appellants’ Br. at 1. While the failure to claim error in the district court’s dismissal likely waives any such argument, see LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.1995) (holding that when litigant raises issue before district court but does not raise it on appeal, it is deemed abandoned), we have reviewed the record independently and conclude, for substantially the reasons stated by the dis trict court, that plaintiffs’ complaint was properly dismissed under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (noting that, even after Iqbal and Twombly, courts are required to construe pro se pleadings liberally).

To the extent plaintiffs contend that the district court did not sufficiently review the case pursuant to our December 2006 order, we are not persuaded. In that order, we expressed no opinion as to the merits of plaintiffs’ claims but remanded solely on the ground that the district court had exceeded its discretion in dismissing plaintiffs’ second amended complaint without granting leave to amend. 1 See Blakely v. Wells, 209 Fed.Appx. 18, 20-21 (2d Cir.2006). The district court, properly following our order, did afford plaintiffs an opportunity to file an amended complaint. Indeed, it inquired whether plaintiffs preferred to submit a new amended complaint or have the court consider their third amended complaint, which was submitted in connection with a prior Rule 60(b) motion. On this record, we conclude that the district court acted in accordance with our December 2006 order.

Any argument that the district court violated the December 2006 order by dismissing plaintiffs’ NCLB claims pursuant to Fed.R.Civ.P. 8 is equally unavailing. Even assuming the Rule 8 dismissal was error, we consider it harmless as NCLB does not provide a private right of action. See Horne v. Flores, — U.S. -, 129 S.Ct. 2579, 2598 n. 6, 174 L.Ed.2d 406 (2009) (noting that “NCLB does not provide a private right of action” and is “enforceable only by the agency charged with administering it”); Newark Parents Ass’n v. Newark Pub. Sch, 547 F.3d 199, 203-05 (3d Cir.2008) (holding that NCLB did not confer private right of action enforceable under § 1983); see also Association of Cmty. Orgs. for Reform Now v. N.Y. City Dep’t of Educ., 269 F.Supp.2d 338, 343-44, 347 (S.D.N.Y.2003) (same).

We have considered plaintiffs’ remaining arguments on appeal and conclude that they are without merit. For the foregoing reasons, the September 24, 2008 order and March 23, 2009 judgment of the district court are AFFIRMED.

1 . Plaintiffs' second amended complaint was the first complaint filed in federal court, as the action was initially filed in state court and thereafier removed to federal court by defendants.