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 42 U.S.C. § 1983), a conspiracy claim
under 18 U.S.C. § 241, and a claim under the Individuals with Disabilities Act (“IDEA”), see 20
U.S.C. § 1400 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 18 U.S.C. § 241 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, 6
F.4th 463, 472 (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., 406 F.3d 98, 105 (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, 864 F.3d 154, 156 (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, 71 F.3d 88, 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, 13 F.3d
577, 586 (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, 510 U.S. 7, 9 (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., 694 F.3d
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., 746 F.3d 68, 73 (2d Cir. 2014) (citing 20 U.S.C. § 1415(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.; 20 U.S.C. § 1415(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. 20 U.S.C. § 1415(l). “A plaintiff’s failure to exhaust
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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 42 U.S.C. § 1983), a conspiracy claim
under 18 U.S.C. § 241, and a claim under the Individuals with Disabilities Act (“IDEA”), see 20
U.S.C. § 1400 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 18 U.S.C. § 241 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, 6
F.4th 463, 472 (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., 406 F.3d 98, 105 (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, 864 F.3d 154, 156 (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, 71 F.3d 88, 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, 13 F.3d
577, 586 (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, 510 U.S. 7, 9 (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., 694 F.3d
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., 746 F.3d 68, 73 (2d Cir. 2014) (citing 20 U.S.C. § 1415(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.; 20 U.S.C. § 1415(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. 20 U.S.C. § 1415(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., 288 F.3d 478, 483 (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, 137 S. Ct. 743 (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?” 137 S.
Ct. at 756. 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.” Id.
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), 2021 WL 3887913, 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., 722 F. App’x 119, 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