Jones v. Bay Shore Union Free School District et al

Filing 21

MEMORANDUM & ORDER re: 15 and 16 Motion to Dismiss for Failure to State a Claim and Motion to Amend. Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART. The Clerk of the Court is directed to docket the proposed Second Amende d Complaint as the operative Second Amended Complaint. However, the only remaining claims are Plaintiff's Section 1983 claims for First Amendment retaliation and First Amendment intimate association as well as Plaintiff's claim for injunctive relief under the Public Officer's Law. The Second Amended Complaint will govern only insofar as the allegations pertain to this claims. Ordered by Judge Joanna Seybert on 5/28/2013. (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
CHARLES W. JONES,
Plaintiff,

MEMORANDUM & ORDER
12-CV-4051(JS)(GRB)

-againstBAY SHORE UNION FREE SCHOOL
DISTRICT; PETER J. DION,
Individually and as Superintendent
of the Bay Shore Union Free School
District; EVELYN BLOISE HOLMAN,
Individually and as the former
Superintendent of the Bay Shore
Union Free School District; ROBERT
PASHKEN, Individually and as
Principal of Bay Shore High School,
Defendants.
----------------------------------------X
APPEARANCES
For Plaintiff:
E. Christopher Murray, Esq.
Ruskin Moscou Faltischek, P.C.
East Tower, 15th Floor
1425 RXR Plaza
Uniondale, NY 11556
For Defendants:

Steven C. Stern, Esq.
Susan Hull Odessky, Esq.
Sokoloff Stern LLP
179 Westbury Avenue
Carle Place, NY 11514

SEYBERT, District Judge:
Currently pending before the Court is Defendants Bay
Shore Union Free School District (the “District”), Peter J. Dion
(“Dion”), Evelyn Bloise Holman (“Holman”), and Robert Pashken’s
(“Pashken” and collectively, “Defendants”) motion to dismiss the
Amended Complaint.

Also pending before the Court is Plaintiff

1

Charles W. Jones’ (“Plaintiff”) cross-motion to amend.

For the

following reasons, Defendants’ motion to dismiss is GRANTED IN
PART and DENIED IN PART and Plaintiff’s cross-motion to amend is
GRANTED IN PART and DENIED IN PART.
BACKGROUND1
Plaintiff

commenced

this

action

on

August

14,

2012

against Defendants alleging claims pursuant to 42 U.S.C. § 1983
for violations of Plaintiff’s constitutional rights secured by
the

First

and

Fourteenth

Amendments

and

for

deprivation

of

Plaintiff’s equal protection and due process rights secured by
the Fourteenth Amendment.
deprived

him

Constitution.
“intentionally
emotional

of

his

rights

Finally,
sought

distress

by

Plaintiff also claims that Defendants

to

secured

by

the

Plaintiff

claims

humiliate

plaintiff

falsely

alleging

New
that
and

wrongful

York

State

Defendants
cause

him

conduct

by

plaintiff which purportedly occurred over two decades ago, and
by defendants’ other wrongful conduct.”
Plaintiff

is

a

resident

in

daughter attended Bay Shore High School.

(Am. Compl. ¶ 48.)
the

District

and

his

(Am. Compl. ¶¶ 8, 19.)

In or about 1998, Plaintiff formed a not-for-profit corporation
called Long Island Community Advocates Coalition, Inc. (“LICAC”)
which advocates for minority children in the District.
1

(Am.

The following facts are taken from Plaintiff’s Amended
Complaint and are presumed to be true for the purposes of this
Memorandum and Order.
2

Compl. ¶¶ 10-11.)
has

become

particularly
Dion

in

Through his association with LICAC, Plaintiff

known
after

2011

as
a

during

an

outspoken

critic

meeting

between

which

Plaintiff

of

the
and

Plaintiff
provided

District,
Defendant

Dion

with

a

national report regarding disproportionate punishment given to
minority students.

(Am. Compl. ¶¶ 17-18.)

Plaintiff

alleges

that

Defendants

have

retaliated

against Plaintiff as a result of his criticism of the District.
(Am. Compl. ¶ 19.)

For example, in December 2011, Plaintiff

informed Dion that he would like to speak at an upcoming Board
of Education meeting regarding a minority parents organization.
(Am. Compl. ¶ 20.)

Thereafter, Plaintiff received a letter from

Dion, on behalf of the District and reflecting a policy adopted
by Defendant Holman, stating that Plaintiff was not permitted on
District
Plaintiff,

property.
this

(Am.

“policy”

Compl.
was

the

¶¶

21-22.)

result

of

According

to

accusations

by

Defendants that Plaintiff had engaged in inappropriate conduct
while he was employed by the District over twenty years ago.
(Am. Compl. ¶¶ 19, 25.)

The District subsequently revised its

policy to allow Plaintiff on District property if he had advance
permission from Dion.

(Am. Compl. ¶ 24.)

residents are subject to such a policy.

However, no other

(Am. Compl. ¶ 24.)

In addition to this policy, Plaintiff alleges other
discriminatory and retaliatory conduct by Defendants.
3

In or

about February 2012, Plaintiff’s daughter, Damalii, was involved
in an altercation with another female student.
¶ 27.)

(Am. Compl.

Plaintiff claims that the District, Dion, and Pashken

retaliated

against

Plaintiff

when

Pashken

gave

Damalii

a

principal suspension without a prior meeting with Plaintiff and
Dion subjected Damalii to a superintendent suspension.
Compl. ¶¶ 26, 28.)

(Am.

At the superintendent’s hearing, Plaintiff

“was threatened that if he did not consent to a suspension for
the remainder of the school year, the School District would not
provide

Damalii

with

home

instruction,

as

was

the

School

District’s customary practice, and she would not receive her
high school diploma.”

(Am. Compl. ¶ 29.)

Plaintiff did not

consent, and the District relied on the consent of Damalii’s
mother, who was not Damalii’s custodial parent.

(Am. Compl.

¶ 30.)
DISCUSSION
Defendants
because:

(1)

move

Plaintiff

to

dismiss

failed

to

the
state

Amended

Complaint

plausible

First

Amendment, Due Process, and Equal Protection claims, (2) the
individual defendants should be dismissed from the action, (3)
Plaintiff failed to state a plausible Monell claim against the
District,

and

(4)

Plaintiff’s

state

dismissed for a variety of reasons.
to amend the Complaint.

law

claims

should

be

Plaintiff has cross-moved

Plaintiff’s proposed Second Amended
4

Complaint

(“SAC”)

Accordingly,

the

allegations

in

primarily
Court’s

the

tracks

the

discussion

Amended

differences when relevant.

Amended

will

Complaint

Complaint.

focus

and

will

on

the

note

the

The Court will first discuss the

standard of review before turning to Defendants’ arguments.
I.

Legal Standards
A.

Standard of Review under Rule 12(b)(6)
In

Court

deciding

applies

a

Rule

12(b)(6)

“plausibility

“[t]wo working principles.”

motions

standard,”

to

which

dismiss,
is

guided

the
by

Ashcroft v. Iqbal, 556 U.S. 662,

678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); accord Harris v.
Mills, 572 F.3d 66, 71-72 (2d Cir. 2009).
Court

must

accept

“inapplicable

all

to

allegations

legal

as

First, although the

true,

conclusions;”

this

thus,

“tenet”

is

“[t]hreadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
accord Harris, 572 F.3d at 72.

Iqbal, 556 U.S. at 678;

Second, only complaints that

state a “plausible claim for relief” can survive a Rule 12(b)(6)
motion to dismiss.

Iqbal, 556 U.S. at 679.

Determining whether

a complaint does so is “a context-specific task that requires
the

reviewing

common sense.”

court

to

draw

on

its

judicial

experience

Id.; accord Harris, 572 F.3d at 72.

5

and

B.

Motion to Amend
Courts should grant leave to amend “when justice so

requires.”

FED. R. CIV. P. 15(a)(2).

Leave to amend should be

granted unless there is evidence of undue delay, bad faith,
undue prejudice to the non-movant, or futility.
Rust–Oleum

Corp.,

244

F.3d

104,

110

(2d

See Milanese v.

Cir.

2001).

To

determine whether an amended claim is futile, courts analyze
whether

the

proposed

pleading

would

withstand

a

motion

dismiss under Federal Rule of Civil Procedure 12(b)(6).

to
See

Dougherty v. Town of N. Hempstead Bd. of Zoning Appeal, 282 F.3d
83, 88 (2d Cir. 2002).
II.

First Amendment Claims
The

Amendment

Complaint

liability:

association.
First

Amended

(1)

raises

two

retaliation;

theories
and

(2)

of

First

intimate

In addition, Plaintiff’s opposition brief raises a

Amendment

claim

for

Defendants’

impermissible

content-

based restriction on speech in a limited public forum.

The

Court will independently address these theories.
A.

First Amendment Retaliation
Plaintiff alleges that Defendants retaliated against

him

for

Plaintiff

expressing
from

criticism

entering

of

District

the

District

property

or

by

prohibiting

attending

Board

meetings, accusing Plaintiff of having engaged in inappropriate

6

conduct while employed with the District approximately twenty
years ago, and disproportionately punishing his daughter.
Generally,

a

private

citizen

bringing

a

First

Amendment retaliation claim must allege that “(1) he has an
interest

protected

by

the

First

Amendment;

(2)

defendants’

actions were motivated or substantially caused by his exercise
of that right; and (3) defendants’ action effectively chilled
the exercise of his First Amendment right.”
Suffern, 268 F.3d 65, 73 (2d Cir. 2001).

Curley v. Vill. of
Defendants primarily

argue that Plaintiff has not sufficiently alleged any “actual
chill.”

Even if Plaintiff has asserted actual chill, however,

Defendants

further

argue

that

Plaintiff

cannot

show

that

Defendants’ actions were substantially motived by Plaintiff’s
speech.

Finally, Defendants also challenge one of the bases for

Plaintiff’s
state

a

daughter.

retaliation

retaliation

claim,

claim

arguing

based

on

that
the

Plaintiff

discipline

cannot
of

his

The Court will address each of these arguments in

turn.
1.

Actual Chill

“Where a party can show no change in his behavior, he
has quite plainly shown no chilling of his First Amendment right
to free speech.”
no

change

in

Id.

Defendants maintain that there has been

Plaintiff’s

behavior

because

he

continues

to

criticize the District, and his Complaint specifically includes
7

allegations that Plaintiff “regularly appears on a television
program on public access, often commenting on issues facing the
School

District”

regarding

racial

and

“often

issues

speaks

at

the

School

within

community

meetings

District.”

(Am.

Compl. ¶¶ 13-14.)
Plaintiff responds that there has been a change in his
behavior, and therefore an actual chill, because he no longer
attends Board meetings.

(Pl.’s Opp., Docket Entry 17, at 11

(“[S]ince Jones could not attend the December 14, 2011 meeting,
and has not attended any school board meetings since, his First
Amendment

rights

were

actually

chilled.”).)

However,

the

Amended Complaint does not include any allegation that Plaintiff
has

not

attended

Board

meetings

since

Defendants’

conduct.

Rather, Plaintiff raises this allegation for the first time in
the SAC.

Applying motion to dismiss standards, the Court finds

that Plaintiff should be permitted to amend the Complaint to
include the allegation that he has not attended Board meetings
after Defendants’ conduct.
Initially,
Plaintiff

has

the

continued

Court
to

notes

criticize

preclude a finding of “actual chill.”

that
the

the

District

fact
does

that
not

For example, in Bartels

v. Incorporated Village of Lloyd, the Court addressed a similar
issue on a motion for summary judgment.
(E.D.N.Y.

2010).

There,

plaintiff
8

751 F. Supp. 2d 387

continued

to

voice

his

concerns
Id.

at

and

complaints,

401.

stopped

The

attending

plaintiff
Village

retaliatory conduct.
raised

a

including

question

board

Id.

of

also

in

various

asserted,
meetings

media

outlets.

however,
after

that

the

he

alleged

The court found that the plaintiff

material

fact

as

Amendment rights were actually chilled.

to

whether

Id.

his

First

Similarly, here,

although Plaintiff has continued his criticism of the District
in certain respects, he alleges that he “has ceased using other
forums and methods.”

Id.

Moreover, Defendants’ assertion that Plaintiff fails
to allege that he attended Board meetings in the past does not
persuade the Court that the First Amendment retaliation claim
should be dismissed.
attending

the

Plaintiff alleges that had planned on

December

2011

Board

meeting,

that

Defendants

threatened him with arrest if he attended, and that Plaintiff
has not attended a Board meeting since.
litigation,

Plaintiff

has

stated

a

At this stage of the

plausible

claim.

Contra

MacPherson v. Town of Southampton, 738 F. Supp. 2d 353, 369
(E.D.N.Y.

2010)

allegations

that

(plaintiff
he

desired

had
to

not

set

exercise

forth
his

any

First

factual
Amendment

rights but was chilled); Mangano v. Cambariere, No. 04-CV-4980,
2007

WL

2846418,

at

*2

(S.D.N.Y.

Sept.

27,

2007)

(“Here,

plaintiff fails to proffer evidence of even one example of a
situation in which she desired to exercise her First Amendment
9

rights but was chilled by defendants’ alleged actions.”).

As

such, Defendants’ motion to dismiss Plaintiff’s First Amendment
claim based upon lack of actual chill is DENIED.
2.

Substantially Motivated by Plaintiff’s Speech

In addition to actual chill, Defendants also assert
that

Plaintiff’s

First

Amendment

retaliation

claim

should

be

dismissed because Plaintiff cannot show that Defendants’ actions
were substantially motivated by Plaintiff’s speech.

The Court,

however,

to

stage.

cannot

decide

this

issue

at

the

motion

dismiss

“Such matters [as defendants’ motivation] are required

only to be ‘averred generally’ in a complaint, and need not be
pled with specificity.”

Puckett v. City of Glen Cove, 631 F.

Supp.

(E.D.N.Y.

2d

226,

240-41

2009).

Indeed,

motivation with specificity would be difficult.

alleging

See Gagliardi

v. Vill. of Pawling, 18 F.3d 188, 195 (2d Cir. 1994).
Defendants’

motion

to

dismiss

Plaintiff’s

First

Thus,

Amendment

on

this ground is DENIED.
3.

Discipline of Plaintiff’s Daughter

Finally,
state

a

daughter.

Defendants

retaliation
More

claim

maintain

based

specifically,

on

they

that
the

argue

Plaintiff

discipline
that

cannot
of

his

“Plaintiff’s

contrived allegation that the District suspended his daughter,
not to punish her for his speech, but to punish him for his
speech, is a self-serving attempt to bypass his lack of standing
10

to assert his own claims for her suspension.”

(Defs.’ Br.,

Docket Entry 15-3, at 9 (emphasis in original).)

Plaintiff

responds that he “is not seeking to assert a claim for his
daughter’s injuries, but is alleging that the punishment of his
daughter was part of the retaliation directed at [Plaintiff].”
(Pl.’s Opp. Br., Docket Entry 17, at 11.)
Typically, the plaintiff alleging a First Amendment
retaliation

claim

is

the

same

individual

against

whom

the

defendant took adverse action; this is particularly so where, as
here, the retaliatory conduct allegedly infringes upon the right
to intimate association.

See Adler v. Pataki, 185 F.3d 35 (2d

Cir. 1999) (plaintiff alleged that he was fired in retaliation
for

his

wife’s

speech).

That

this

is

the

usual

scenario,

however, does not persuade the Court that Plaintiff cannot bring
his First Amendment retaliation claim as alleged.
claim

at

least

plausibly

asserts

that

he

Plaintiff’s

engaged

in

First

Amendment speech, retaliatory actions were taken to punish him,
and his speech was chilled.
In

support

of

their

assertion

that

Plaintiff

“contrived” a First Amendment retaliation claim, Defendants cite
only to Garten v. Hochman, No. 08-CV-9425, 2010 WL 2465479, at
*1 (S.D.N.Y. June 16, 2010).
brought

an

action

against

There, plaintiff James Garten

defendants

Jere

Hochman

and

the

Bedford Central School District asserting claims under 42 U.S.C.
11

§ 1983 for violations of his First and Fourteenth Amendment
right to intimate association and his First Amendment right to
free

speech.

Garten

argued,

inter

alia,

that

defendants

retaliated against him by reassigning his children to another
school.
because

Id. at *4.
Garten

The court rejected that argument, but not

lacked

standing.

Rather,

the

court

rejected

Garten’s claim because it was conclusory and Garten alleged no
factual

support

Plaintiff

for

plausibly

his

assertion.

suggests

that

Id.

In

Defendants’

retaliation for his First Amendment speech.

contrast
conduct

here,

was

in

(See, e.g., Am.

Compl. ¶ 21 (alleging that Plaintiff received a letter stating
that he is not permitted on District property immediately after
he indicated his intention to speak at the Board meeting).)
any

event,

Amendment

the

Court

retaliation

declines
claim

to

dismiss

based

upon

Plaintiff’s
suspension

In

First

of

his

daughter at this stage in the litigation.
Accordingly, Plaintiff’s motion to amend the Complaint
to include allegations that he has not attended school board
meetings is GRANTED, and Defendants’ motion to dismiss the First
Amendment retaliation claim is DENIED.
B.

Intimate Association
Relatedly,

that

Defendants

interfered with his right to intimate association.

In essence,

Plaintiff

conduct

alleges

Plaintiff

that

alleges

Defendants’
12

retaliatory

in

suspending

his

daughter

interfered

with

Plaintiff’s

right

to

associate with her.

“The right to intimate association protects

the

between

close

ties

individuals

from

interference by the power of the state.”

inappropriate

Chi Iota Colony of

Alpha Epsilon Pi Fraternity v. C.U.N.Y., 502 F.3d 136, 143 (2d
Cir. 2007).2
The right to intimate association includes two types
of

associational

rights:

“an

individual’s

right

to

associate

with others in intimate relationships and a right to associate
with others for purposes of engaging in activities traditionally
protected

by

the

First

expressive conduct.”

Amendment,

such

as

speech

and

other

Econ. Opportunity Comm’n of Nassau Cnty.,

Inc. v. Cnty. of Nassau, 106 F. Supp. 2d 433, 439 (E.D.N.Y.
2000).

Ultimately, “[t]o determine whether a governmental rule

unconstitutionally infringes on an associational freedom, courts
balance the strength of the associational interest in resisting
governmental interference with the state’s justification for the
interference.”

Toussie v. Cnty. of Suffolk, 806 F. Supp. 2d

558, 584 (E.D.N.Y. 2011).

Here, the associational interest, the

2

Such claims may be analyzed under the First or Fourteenth
Amendment. However, Plaintiff, correctly, does not address this
claim under the Fourteenth Amendment or substantive due process
rubric. See Sutton v. Vill. of Valley Stream, N.Y., 96 F. Supp.
2d 189, 192 (E.D.N.Y. 2000) (“Where . . . there is a claim that
the exercise of one spouse’s First Amendment right harms a right
of intimate association, that right was held to be properly
analyzed as the deprivation of a right under the First
Amendment.”).
13

relationship between parent and child, is one that courts have
recognized as protected.

See Patel v. Searles, 305 F.3d 130,

136 (2d Cir. 2002); Sutton, 96 F. Supp. 2d at 193.
Defendants argue that the intimate association claim
should be dismissed because “[t]here are no factual allegations
suggesting that the suspension of Damalii Jones ‘had the likely
effect

of

ending’

plaintiff’s

relationship

with

her,

was

motivated by a desire to end their relationship, or constituted
an arbitrary and undue intrusion by the state.”
12.)

(Ds. Br. at 11-

Plaintiff alleges, though, that Defendants actions were

taken with the intent to retaliate against Plaintiff and damage
his relationship with his daughter.
this

allegation

as

true,

as

the

(Am. Compl. ¶ 31.)
Court

must

on

a

Taking

motion

to

dismiss, Plaintiff’s intimate association claim survives.
At this stage, then, Plaintiff has adequately pled an
intimate association claim, and Defendants’ motion to dismiss
said claim is DENIED.
C.

Freedom of Speech
In addition to the aforementioned bases for a First

Amendment claim, Plaintiff’s opposition to the motion to dismiss
also asserts that school board meetings are a “public forum” and
Defendants’ restrictions on his speech in said forum were not
reasonable time, place, and manner restrictions.
Br. at 12-13.)

(Pl.’s Opp.

Neither Plaintiff’s Amended Complaint nor the
14

proposed SAC make any allegation relating to unconstitutional
time, place, and manner restrictions.
make

specific

reference

to

While both complaints

Defendants’

alleged

retaliatory

conduct, there are no allegations that would even hint at the
fact that Plaintiff intends to bring a First Amendment claim
based on unconstitutional restrictions.
The first inquiry into such a claim is the nature of
the forum.

See M.B. ex rel. Martin v. Liverpool Cent. Sch.

Dist., 487 F. Supp. 2d 117, 131 (N.D.N.Y. 2007) (“The level of
judicial scrutiny depends on the nature of the forum in which
the speech occurs.”).

Although the Amended Complaint refers to

school board meetings as public, there are no allegations as to
whether the forum is alleged to be a traditional public forum, a
designated public forum, or a limited public forum.

See id.

(describing

are

different

fora).

Similarly,

there

no

allegations as to the level of judicial scrutiny that the Court
should apply given the type of forum.
meetings are limited public fora.

Typically, school board

See id. at 132 (providing

open school board meetings as an example of a limited public
forum); accord Hotel Emps. & Rest. Emps. Union, Local 100 of
N.Y., N.Y. & Vicinity AFL-CIO v. City of N.Y. Dep’t of Parks &
Recreation, 311 F.3d 534, 545 (2d Cir. 2002).

“Reasonable time,

place and manner restrictions on speech in limited public fora
comport

with

the

Constitution

so
15

long

as

they

are

content-

neutral, serve a significant government interest and leave open
alternative channels for expression.”

Devine v. Vill. of Port

Jefferson, 849 F. Supp. 185, 190 (E.D.N.Y. 1994).
Neither

the

Amended

Complaint

addresses any of these issues.

nor

the

proposed

SAC

Plaintiff is not pro se, and

therefore not entitled to a liberal reading of the Complaint.
See Nat’l Gear & Piston, Inc. v. Cummins Power Sys., L.L.C., 861
F. Supp. 2d 344, 370 (S.D.N.Y. 2012).

Thus, the Court does not

read the Amended Complaint or the proposed SAC to allege a claim
in this regard.
III.

Due Process3
Plaintiff

summarizes

his

due

process

claims

as

follows:
Jones was barred from attending the December
14, 2011 school board meeting and was
otherwise excluded from School District
property that is made accessible to the
public based on some unspecified “historic”
reason. Jones was never given notice and an
opportunity to be heard prior to the
institution of this ban. Accordingly, Jones

3

The Court notes that Plaintiff’s due process claim rests solely
upon the claim that he was denied due process because he was not
provided notice and an opportunity to be heard prior to the
institution of his ban from District property. (See Pl.’s Br.
at 14.) To the extent Plaintiff alleges a lack of process
surrounding his daughter’s suspension or in any other regard,
Plaintiff has abandoned these claims as they were not included
in his opposition. Adams v. N.Y.S. Educ. Dep’t, 752 F. Supp. 2d
420, 452 n.32 (S.D.N.Y. 2010) (claim deemed abandoned because
plaintiff did not respond to, or even mention, claim in
opposition to defendants’ motion to dismiss).
16

has been deprived of a liberty
without any process whatsoever.

interest

(Pl.’s Opp. Br. at 14.)
In order to sufficiently allege a due process claim,
whether procedural or substantive, a plaintiff must first allege
a protected liberty or property interest.

See Cohn v. New Paltz

Cent. Sch. Dist., 363 F. Supp. 2d 421, 432 (N.D.N.Y. 2005).
Here, the alleged protected interest is Plaintiff’s access to
public school grounds.

(See Stern Decl. Ex. C.4)

Access to school grounds, however, is not a protected
liberty or property interest.

See Pearlman v. Cooperstown Cent.

Sch. Dist., No. 01-CV-0504, 2003 WL 23723827, at *3 (N.D.N.Y.
June 11, 2003) (“Plaintiff does not . . . cite to any state law
or authority granting him unfettered access to school property,
either as a citizen or a parent.”); Hone v. Cortland City Sch.
Dist., 985 F. Supp. 262, 272 (N.D.N.Y. 1997) (“Looking to New
York

State

law,

the

court

can

find

no

support

for

the

proposition that Plaintiff enjoyed any right of access to school
property.”); Silano v. Sag Harbor Union Free Sch. Dist. Bd. of
Educ., No. 93-CV-1924, 1993 WL 762110, at *6 (E.D.N.Y. Dec. 10,

4

Plaintiff agrees that the letters that comprise Exhibit C of
the Stern Declaration are incorporated into the Amended
Complaint and therefore may be considered by the Court on a
motion to dismiss.
17

1993) (“Here, state law does not give any property or liberty
interest to the plaintiff to enter the school grounds.”).
Accordingly, Defendants’ motion to dismiss Plaintiff’s
due

process

claim

is

GRANTED,

and

Plaintiff’s

claim

for

deprivation of due process is DISMISSED WITH PREJUDICE.
IV.

Equal Protection
Plaintiff also alleges that Defendants violated his

right

to

equal

protection

because

Defendants

required

that

Plaintiff receive advance notice before entering school grounds,
but did not impose such a requirement on any other resident of
the District.

“The Equal Protection Clause of the Fourteenth

Amendment requires the government to treat similarly situated
persons alike.”

Missere v. Gross, 826 F. Supp. 2d 542, 560

(S.D.N.Y. 2011).

Here, Plaintiff does not allege to be a member

of a protected class, and therefore may proceed under one of two
equal protection theories: selective enforcement or “class of
one.”

Id.
In order to adequately allege a selective enforcement

claim,

a

plaintiff

must

allege:

“(1)

[he

was]

treated

differently from other similarly situated individuals and (2)
this

differential

considerations

such

treatment
as

race,

was

based

religion,

on

intent

impermissible
to

inhibit

or

punish the exercise of constitutional rights, or malicious or
bad faith intent to injure a person.”
18

MacPherson v. Town of

Southampton, 738 F. Supp. 2d 353, 370 (E.D.N.Y. 2010) (internal
quotation marks and citations omitted).

Alternatively, where a

plaintiff

treatment

does

not

plead

selective

based

upon

impermissible considerations, he can also allege a “class-ofone”

equal

protection

claim.

Id.

“In

order

to

adequately

allege an equal protection claim on a ‘class of one’ theory, a
plaintiff
treated
‘that

must

demonstrate

differently
there

is

treatment.’”

from

no

that:

others

rational

(1)

he

similarly

basis

for

was

‘intentionally

situated,’
the

and

(2)

difference

in

Vaher v. Town of Organgetown, N.Y., --- F. Supp.

2d ----, 2013 WL 42415, at *19 (S.D.N.Y. Jan. 2, 2013) (quoting
Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct.
1073, 145 L. Ed. 2d 1060 (2000)).
In the case at bar, Plaintiff apparently brings his
equal

protection

theory.

claim

solely

under

(Pl.’s Opp. Br. at 15-16.)

a

selective

enforcement

According to Defendants,

Plaintiff has not adequately alleged such a claim because he has
not sufficiently pled the existence of others to whom he is
“similarly

situated.”

Courts

in

this

Circuit

are

split

regarding the definition of “similarly situated” in selective
enforcement and class-of-one cases.

Some courts have held that

the definitions are the same in both cases, and the plaintiff
must “establish that (i) no rational person could regard the
circumstances

of

the

plaintiff
19

to

differ

from

those

of

a

comparator

to

a

degree

that

would

justify

the

differential

treatment on the basis of a legitimate government policy; and
(ii) the similarity in circumstances and difference in treatment
are sufficient to exclude the possibility that the defendants
acted on the basis of a mistake.”

Roman Catholic Diocese of

Rockville Centre, N.Y. v. Inc. Vill. of Old Westbury, No. 09-CV5195, 2012 WL 1392365, at *12 (E.D.N.Y. Apr. 23, 2012) (internal
quotation

marks

and

citations

omitted)

(collecting

cases).

Other courts have applied a somewhat less stringent standard in
selective enforcement cases, requiring “plaintiffs to show that
plaintiff
material

and

comparators

respects,’

objectively

at

equivalent.’”

the

or

were
that

‘similarly
‘a

incidents,

prudent
would

situated
person,

think

them

in

all

looking
roughly

Missere, 826 F. Supp. 2d at 561 (quoting Vassallo

v. Lando, 591 F. Supp. 2d 172, 184 (E.D.N.Y. 2008); Yajure v.
DiMarzo, 130 F. Supp. 2d 568, 572 (S.D.N.Y. 2001)).
Even applying the less stringent standard, Plaintiff
has

failed

to

adequately

allege

others

“similarly

situated.”

Plaintiff alleges, in conclusory fashion, that he was treated
differently from “all other similarly situated residents of the
School District.”

(Am. Compl. ¶ 31.)

at

assertion

*19

(naked

insufficient

to

survive

a

of
motion

See Vaher, 2013 WL 42415,

differential
to

dismiss);

treatment
D.F.

ex

was
rel.

Finkle v. Bd. of Educ. of Syosset Cent. Sch. Dist., 386 F. Supp.
20

2d

119,

128

(E.D.N.Y.

2005)

(“Plaintiff’s

allegations

of

selective treatment are wholly conclusory, and such conclusory
allegations of selective treatment are insufficient to defeat a
motion to dismiss.”).

This allegation, without more, does not

“allege facts showing that he is similarly situated to other
persons with respect to the specific incident or incidents that
are alleged to be examples of differential treatment.”
826 F. Supp. 2d at 561.

Missere,

“While a plaintiff is not required to

proffer evidence of similarly situated individuals at the motion
to dismiss stage, the court still must determine whether, based
on a plaintiff’s allegations in the complaint, it is plausible
that a jury could ultimately determine that the comparators are
similarly situated.”
quotation omitted).

Vaher, 2013 WL 42415, at *20 (internal
Plaintiff’s allegation comparing himself to

all others in the District simply does not provide enough to
allow

a

jury

to

do

so.

Accordingly,

protection claim is DISMISSED.

Plaintiff’s

equal

Moreover, as Plaintiff’s equal

protection claim as alleged in the SAC is nearly identical to
that alleged in the Amended Complaint, Plaintiff’s motion to
amend the Amended Complaint in this regard is DENIED.
V.

Individual Liability
Defendants

defendants

should

further
be

argue

dismissed

from

that
this

the

individual

action

because

Plaintiff fails to allege their personal involvement and because
21

they are entitled to qualified immunity.

To state a claim for

relief under Section 1983 against an individual defendant, a
plaintiff must allege the personal involvement of the defendant
in the alleged constitutional deprivation.
F.3d

233,

Ashcroft

249
v.

(2d

Cir.

Iqbal

that

2010).

The

“[b]ecause

Farid v. Ellen, 593

Supreme

Court

in

liability

vicarious

held

is

inapplicable to . . . [section] 1983 suits, a plaintiff must
plead

that

each
own

official's

Government-official
individual

Constitution.”

defendant,

actions,

556 U.S. at 676.

has

through

the

violated

the

A complaint based upon a

violation under Section 1983 that does not allege the personal
involvement of a defendant fails as a matter of law. See Johnson
v.

Barney,

standards

360
in

F.

mind,

App’x

199

the

(2d

Court

Cir.

2010).

considers

With

Plaintiff’s

these
claims

against the individual defendants.
First,
involvement

of

Defendants
Defendant

do

Dion.

not

dispute

Accordingly,

the
Dion

personal
remains

a

defendant in this action.
Second,
Pashken
Damalii.

stem

Plaintiff’s

from

his

allegations

suspension

of

against

Plaintiff’s

Defendant
daughter

In arguing for dismissal of Pashken, Defendants assume

that the Court would dismiss Plaintiff’s retaliation/intimate
association claims.
According

to

The Court, however, has declined to do so.

Plaintiff,

Pashken
22

was

personally

involved

in

suspending

Damalii,

allegedly

in

retaliation

for

Plaintiff’s

speech, which harmed Plaintiff’s right to intimate association.
(Am.

Compl.

Pashken’s

¶

26.)

personal

Thus,

Plaintiff

involvement,

and

has

adequately

Defendants’

alleged

motion

to

dismiss Pashken is DENIED.
Third, Defendants seek to dismiss Plaintiff’s claims
against Holman because, they say, there are no allegations that
she

played

any

role

in

adopting

the

alleged

policy

placing

prohibitions on Plaintiff’s ability to enter District property.
The Amended Complaint, however, specifically alleges that “when
defendant

Holman

District

policy

property.”

was

superintendent,

barring

[she]
from

plaintiff

(Am. Compl. ¶ 22.)

adopted
School

a

School

District

Further, a plaintiff may satisfy

his burden of alleging personal involvement by alleging that the
individual

defendant

created

a

policy

unconstitutional practices occurred.
F.3d 72, 74 (2d Cir. 1996).

or

custom

under

which

See Black v. Coughlin, 76

Thus, Plaintiff has sufficiently

pled Holman’s personal involvement, and Defendants’ motion to
dismiss Holman is DENIED.5

5

Defendants also argue that the policy allegedly adopted by
Holman had been in place since the 1990s, and therefore
Plaintiff’s claim or claims against her are time-barred. The
statute of limitations for federal claims pursuant to 42 U.S.C.
§ 1983 is three years. See Ormiston v. Nelson, 117 F.3d 69, 71
(2d Cir. 1997). The Amended Complaint simply alleges, though,
that Holman adopted the policy while Superintendent of the
District. (Am. Compl. ¶ 22.) Even incorporating by reference
23

In

so

far

as

Defendants

assert

qualified

their motion to dismiss is likewise DENIED.

immunity,

Qualified immunity

shields government officials from civil liability resulting from
the

performance

of

their

discretionary

functions

only

where

their conduct “does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.

2727, 73 L. Ed. 2d 396 (1982).

However, even if a defendant’s

conduct was objectively reasonable, where a plaintiff alleges an
unconstitutional
immunity.
1996).
be

motivation,

he

may

be

denied

qualified

See Sheppard v. Beerman, 94 F. 3d 823, 828 (2d Cir.

Moreover, although a qualified immunity defense should

asserted

as

soon

as

possible,

such

defense

“faces

a

formidable hurdle when advanced at such an early stage in the
proceedings.”

Cathedral Church of the Intercessor v. Inc. Vill.

of Malverne, 353 F. Supp. 2d 375, 391 (E.D.N.Y. 2005) (internal
quotation
allegations

marks

and

regarding

citation

omitted).

impermissible

motive,

Given
and

Plaintiff’s
the

factual

issues surrounding this inquiry, Defendants’ motion to dismiss
on qualified immunity grounds is DENIED.

the correspondence between Plaintiff and Defendants regarding
this alleged policy (see Stern Decl. Ex. C) it is unclear
exactly when it was adopted, whether it was indeed a policy of
the District, and if so how long it had been in place. The
Court therefore declines to decide this issue on a motion to
dismiss.
24

VI.

Monell Claim against the District
Defendants also move to dismiss the claims against the

District.

To

municipality,

prevail
a

on

a

plaintiff

Section
must

1983

show

claim

“an

against

injury

to

a
a

constitutionally protected right . . . that . . . was caused by
a

policy

or

custom

of

the

municipality

or

by

a

official ‘responsible for establishing final policy.’”

municipal
Hartline

v. Gallo, 546 F.3d 95, 103 (2d Cir. 2008) (quoting Skehan v.
Vill.

of

Mamaroneck,

465

F.3d

96,

108–09

(2d

Cir.

2006),

overruled on other grounds by Appel v. Spiridon, 531 F.3d 138,
140 (2d Cir. 2008)); see also Monell v. Dep't of Soc. Servs. of
City of N.Y., 436 U.S. 658, 690–91, 98 S. Ct. 2018, 56 L. Ed. 2d
611

(1978).

“For

purposes

of

§

1983,

school

districts

are

considered to be local governments and are subject to similar
liability as local governments under Monell.” Booker v. Bd. of
Educ., 238 F. Supp. 2d 469, 475 (N.D.N.Y. 2002).
The

District

asserts

that

Plaintiff’s

allegations

regarding a policy or practice are conclusory and insufficient.
The Amended Complaint, though, alleges that Holman adopted a
retaliatory policy banning Plaintiff from District property and
that

Dion

continued

¶¶ 21, 22.)

to

implement

this

policy.

(Am.

Compl.

Simply put, Plaintiff alleges “facts from which it

could be plausibly inferred that such a custom or policy caused”
the

alleged

violation.

Harris

v.
25

Westchester

Cnty.

Dep't

of

Corr., No. 06–CV–2011, 2008 WL 953616, at *11 (S.D.N.Y. Apr. 3,
2008).

Accordingly,

the

Defendants’

motion

to

dismiss

Plaintiff's Section 1983 claims against the District based upon
Monell liability is DENIED.
VII.

State Law Claims
Defendants also move to dismiss Plaintiff’s state law

claims.

Defendants assert a number of arguments in this regard,

but

the

for

reasons

specified

below,

the

Court

agrees

with

Defendants, and Plaintiff’s state law claims are DISMISSED WITH
PREJUDICE.
As
constitutional

a

preliminary

equal

matter,

protection

Plaintiff’s

and

process

due

state

claims

are

dismissed for the same reasons as Plaintiff’s equal protection
and due process claims under the U.S. Constitution.

See Prince

v. Cnty. of Nassau, 837 F. Supp. 2d 71, 107-08 (E.D.N.Y. 2011).
The Court, however, has primarily left intact Plaintiff’s First
Amendment

claims.

As

Defendants

correctly,

note,

though,

“various federal courts in this circuit have held that ‘there is
no private right of action under the New York State Constitution
where . . . remedies are available under § 1983.’”

Krug v.

Cnty. of Rennselaer, 559 F. Supp. 2d 223, 248 (N.D.N.Y. 2008)
(quoting Clayton v. City of Poughkeepsie, No. 06-CV-4881, 2007
WL 2154196, at *7 (S.D.N.Y. June 21, 2007)); G.D.S. ex rel.
Slade v. Northport-East Northport Union Free Sch. Dist., --- F.
26

Supp. 2d ----, No. 12-CV-2191, 2012 WL 6734686, at *10 (E.D.N.Y.
Dec. 22, 2012); see also Fishman v. Cnty. of Nassau, No. 10-CV3231, 2011 WL 3919713, *10 (E.D.N.Y. Sept. 7, 2011) (dismissing
state constitution free speech claim); Mangano, 2007 WL 2846418
at *1 (same).
1983,

As Plaintiff has a proper remedy under Section

Plaintiff’s

retaliation

and

inmate

association

claims

under the state constitution are DISMISSED WITH PREJUDICE.
Plaintiff’s remaining state law claim for intentional
infliction of emotional distress is also DISMISSED.

“A claim

for intentional infliction of emotional distress . . . requires
plaintiffs
intent

to

to

plead

cause,

(1)
or

extreme

reckless

and

outrageous

disregard

of

conduct;
a

(2)

substantial

probability of causing, severe emotional distress; (3) a causal
connection between the conduct and the injury; and (4) severe
emotional distress.”
Supp.

2d

577,

604

TC v. Valley Central Sch. Dist., 777 F.
(S.D.N.Y.

2011).

Defendants

assert

that

Plaintiff has not alleged sufficiently “extreme and outrageous
conduct.”

The Court agrees.
Plaintiff maintains that he has alleged “extreme and

outrageous conduct” because Defendants directed their actions
toward his daughter and because they asserted that Plaintiff is
guilty of some unspecified wrong.

“New York courts have imposed

a very high threshold for intentional infliction of emotional
distress

claims,

requiring

that
27

the

conduct

must

be

so

outrageous and extreme as to go beyond all possible bounds of
decency,

and

intolerable

to

in

be

a

regarded

civilized

Republic,

Inc.,

359

(internal

quotation

F.

as

atrocious,

community.”

Supp.

omitted).

2d

Druschke

308,

314

Defendants’

simply do not rise to this level.

and

utterly

v.

Banana

(S.D.N.Y.
alleged

2005)

actions

See Alexander v. Westbury

Union Free Sch. Dist., 829 F. Supp. 2d 89, 111 (E.D.N.Y. 2011)
(claims

of

sexual

harassment

and

retaliatory

conduct

in

employment context do not rise to sufficient level); TC, 777 F.
Supp. 2d at 605 (defamatory statements generally not intentional
infliction of emotional distress); Carlson v. Geneva City Sch.
Dist., 679 F. Supp. 2d 355, 372-73 (W.D.N.Y. 2010) (“[F]alse
accusations of criminal conduct generally do not rise to the
level of extreme and outrageous conduct that is necessary to
support

an

IIED

claim.”).

As

such,

Defendants’

motion

to

dismiss Plaintiff’s state law claims is GRANTED.
VIII.

New York State Public Officer’s Law
Finally, Plaintiff’s proposed SAC seeks to add a claim

for violation of New York State Public Officer’s Law, Article 7.
(See Murray Aff., Docket Entry 16, Ex. A.)
That

law

provides

in

relevant

part

that

“[e]very

meeting of a public body shall be open to the general public,
except that an executive session of such body may be called and
business transacted thereat in accordance with section ninety28

five of this article.”

N.Y. PUB. OFF. LAW § 103(a).

With respect

to enforcement, the Public Officer’s Law provides that “[a]ny
aggrieved person shall have standing to enforce the provisions
of this article against a public body by the commencement of a
proceeding

pursuant

to

article

seventy-eight

of

the

civil

practice law and rules, or an action for declaratory judgment
and injunctive relief.”
add

a

claim

for

Id. § 107(1).

monetary

violation of this law.

damages

Here, Plaintiff seeks to
for

Defendants’

alleged

Nowhere in the enforcement provisions of

the Public Officers Law does it provide for monetary relief,
except insofar as it allows for reasonable costs and attorney’s
fees.

Plaintiff

regarding

does

monetary

not

relief

language is clear.

respond

and,

in

to
any

Defendants’
event,

the

argument
statutory

Thus, to the extent that Plaintiff seeks

monetary relief for violation of the Public Officer’s Law, his
motion to add this claim is DENIED.
However, Plaintiff also seeks injunctive relief for
violation

of

the

Public

Officer’s

Law.

To

the

extent

that

Plaintiff’s motion to amend seeks to add a claim for injunctive
relief under the Public Officer’s Law, the motion is GRANTED.
Contrary

to

Defendants’

suggestion,

an

Article

78

proceeding

does not appear to be the sole means of adjudicating such a
claim.
claim

As the statute makes clear, a plaintiff may bring a
for

violation

of

the

Public
29

Officer’s

Law

through

an

Article

78

proceeding

“or

[in]

judgment and injunctive relief.”
Furthermore,

the

an

action

for

declaratory

Id. § 107(1).

Court

agrees

with

Plaintiff’s

contention that this claim is public in nature and therefore New
York Education Law § 3813(1) does not require that Plaintiff
include it in his notice of a claim.

See Pratt v. Indian River

Cent. Sch. Dist., 803 F. Supp. 2d 135, 147-48 (N.D.N.Y. 2011)
(noting public interest exception to notice requirement).

Here,

of course, the beneficiary of the Public Officer’s Law is the
public.

See Matter of Mary’s Bus Serv. v. Rondout Val. Cent.

Sch. Dist., 238 A.D. 2d 829, 831, 656 N.Y.S.2d 534, 117 Ed. L.
Rep. 1096 (3d Dep’t 1997).
the

enforcement

required.

of

a

Thus, Plaintiff does not seek solely

private

right,

and

a

notice

is

not

See id.
CONCLUSION
For

the

foregoing

reasons,

Defendants’

dismiss is GRANTED IN PART and DENIED IN PART.

motion

to

Plaintiff’s

cross-motion to amend is GRANTED IN PART and DENIED IN PART.
Accordingly, the Clerk of the Court is directed to docket the
proposed
Amended

Second

Amended

Complaint.

Complaint

However,

the

as
only

the

operative

remaining

Second

claims

are

Plaintiff’s Section 1983 claims for First Amendment retaliation
and First Amendment intimate association as well as Plaintiff’s
claim

for

injunctive

relief

under
30

the

Public

Officer’s

Law.

Thus, the Second Amended Complaint will govern only insofar as
the allegations pertain to these claims.
SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

May
28 , 2013
Central Islip, New York

31