Milton et al v. Valley Stream Central High School District et al

Filing 75

MEMORANDUM & ORDER granting in part and denying in part 66 Motion for Summary Judgment; For the foregoing reasons, the District Defendants' motion for summary judgment (Docket Entry 66) is GRANTED IN PART and DENIED IN PART. Plaintiffs 9; federal claims under Section 1983 are DISMISSED WITH PREJUDICE. The Court declines to exercise supplemental jurisdiction over the remaining state law claims, and DISMISSES those claims WITHOUT PREJUDICE. The crossclaims are similarly DISMISSED WIT HOUT PREJUDICE. If Plaintiffs choose to pursue their state law claims, Defendants may assert crossclaims in that forum. The Clerk of the Court is directed to enter judgment accordingly and mark the case CLOSED. So Ordered by Judge Joanna Seybert on 3/1/2018. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
CHRISTOPHER MILTON, and WENDY GUZMAN,
individually and as parents and legal
guardians of Plaintiff, Z.G.M.,
Plaintiffs,
-against-

MEMORANDUM & ORDER
15-CV-0127(JS)(AKT)

VALLEY STREAM CENTRAL HIGH SCHOOL
DISTRICT, VALLEY STREAM SOUTH HIGH
SCHOOL, MAUREEN HENRY, JACQUELINE
ALLEN, MICHAEL MAHLER, BARBARA MADIGAN,
“JOHN DOE” GERAMINA, CAROLINE BORMANN,
J.C., a minor, “JOHN DOE” CANNON and
“JANE DOE” CANNON, individually and as
parents and legal guardians of minor
J.C., and JANE and JOHN DOES 1-10,
Defendants.
--------------------------------------X
APPEARANCES
For Plaintiffs:
Frederick K. Brewington, Esq.
Cathryn Annette Harris, Esq.
Tricia Sophia Lindsay, Esq.
Law Offices of Frederick K. Brewington
556 Peninsula Boulevard
Hempstead, NY 11550
For Defendants:
Valley Stream Central
High School District,
Valley Stream South
High School, Maureen
Henry, Kara Jacobson,
Jacqueline Allen, Michael
Mahler, Ellen Daniels,
Barbara Madigan, “John
Doe” Drumm, “John Doe”
Geramina, Nurse Jane Doe
and Caroline Bormann
Gerald Stephen Smith, Esq.
Silverman and Associates
445 Hamilton Avenue, Suite 1102
White Plains, NY 10601

For J.C., a minor,
“John Doe” Cannon and
“Jane Doe” Cannon

Matin Emouna, Esq.
Law Offices of Matin Emouna
110 Old Country Road, Suite 3
Mineola, NY 11501

SEYBERT, District Judge:
Christopher Milton and Wendy Guzman, individually and as
parents

and

legal

guardians

of

minor

Z.G.M.

(“Plaintiffs”)

commenced this action against Valley Stream Central High School
District, Valley Stream South High School, Maureen Henry, Kara
Jacobson, Jacqueline Allen, Michael Mahler, Ellen Daniels, Barbara
Madigan, “John Doe” Drumm, “John Doe” Geramina, Nurse Jane Doe,
Caroline Bormann, J.C., a minor, and “John Doe” Cannon and “Jane
Doe” Cannon, as parents and legal guardians of minor J.C., on
January 9, 2015.

(Compl., Docket Entry 1.)

Z.G.M. was assaulted

by J.C. while they were both students at Valley Stream South High
School.

On January 26, 2017, Plaintiffs voluntarily dismissed the

claims against Kara Jacobson, Ellen Daniels, “John Doe” Drumm, and
Nurse Jane Doe.

(See Stip., Docket Entry 64; Electronic Order,

January 30, 2017.)

The remaining defendants affiliated with the

school district--Valley Stream Central High School District (the
“District”),

Valley

Stream

South

High

School

(the

“School”),

Maureen Henry, Jacqueline Allen, Michael Mahler, Barbara Madigan,
“John

Doe”

Geramina,

and

Caroline

Bormann

(collectively

“District Defendants”)--have moved for summary judgment.

2

the

(Dist.

Defs.’ Mot., Docket Entry 66.)

For the reasons that follow, the

District Defendants’ motion for summary judgment is GRANTED IN
PART and DENIED IN PART.
BACKGROUND
I.

Factual Background1
A. The Assault
On January 16, 2014, Z.G.M., a student at Valley Stream

South High School, left class to retrieve a book from his locker.
(Z.G.M. 50-H Exam., Smith Decl. Ex. M, Docket Entry 67-15, 9:519, 12:14-21.) Z.G.M. testified that before he reached his locker,
he saw J.C. in the hallway, who called him “Afro Man” and “Afro
Jack” and began walking toward him.
16:21.)

(Z.G.M. 50-H Exam. 13:12-

Z.G.M. testified that after retrieving the book, he began

walking toward a stairwell to return to his class, and J.C.
followed him while continuing to call him names.
Exam. 17:9-18:3.)

(Z.G.M. 50-H

According to Z.G.M., before he reached the

stairwell, J.C., who was “getting loud[,] . . . started pushing up
against [his] left shoulder,” and Z.G.M. called J.C. “Chewbacca.”

The following material facts are drawn from the District
Defendants’ Local Civil Rule 56.1 Statement (Defs.’ 56.1 Stmt.,
Docket Entry 59), Plaintiffs’ Local Civil Rule 56.1 Response
(Pls.’ 56.1 Resp., Docket Entry 60, at 1-37), Plaintiffs’ Local
Civil Rule 56.1 Counterstatement (Pls.’ 56.1 Counterstmt.,
Docket Entry 60, at 38-74), and the exhibits referred to
therein. Any relevant factual disputes are noted. All internal
quotation marks and citations have been omitted.
1

3

(Z.G.M. 50-H Exam. 19:6-22.) Afterward, Z.G.M. continued walking
toward the stairwell.

(Z.G.M. 50-H Exam. 23:21-24:7.)

The next

things he remembers is waking up in a wheelchair in the nurse’s
office.

(Pls.’ 56.1 Counterstmt. ¶ 294; Z.G.M. 50-H Exam. 23:21-

25:22.)
“John Doe” Drumm (“Drumm”) was a teaching assistant at
the School.

(Defs.’ 56.1 Stmt. ¶ 26.)

Drumm testified that at

approximately 1:45 p.m., he observed Z.G.M. and J.C. standing “face
to face,” heard someone say “fuck,” and saw J.C. punch Z.G.M. in
the head.

(Defs.’ 56.1 Stmt. ¶¶ 29, 32.)

Z.G.M. fell backwards,

and Drumm testified that he ran over to see if he was okay. (Defs.’
56.1 Stmt. ¶¶ 33-34.)

Drumm testified that when he laid Z.G.M.

down on his back, he saw his “eyes rolling back” and yelled to
several teachers to contact the nurse or call an ambulance.
(Defs.’ 56.1 Stmt. ¶ 35; Pls.’ 56.1 Resp. ¶ 35.)

Drumm testified

that the nurse, Caroline Bormann (“Nurse Bormann”) arrived within
two minutes and that he relayed what he saw, including that
Z.G.M.’s eyes rolled back after the blow.
¶¶ 36, 38; Pls.’ 56.1 Resp. ¶ 38.)

(Defs.’ 56.1 Stmt.

However, Nurse Bormann later

testified that Drumm did not mention Z.G.M’s eyes rolling back.
(Bormann Dep., Smith Decl. Ex. P, Docket Entry 67-18, 12:8-11.)
Drumm subsequently completed an incident report and a police report

4

describing the events he witnessed.

(Defs.’ 56.1 Stmt. ¶¶ 107-

08.)
Nurse Bormann testified that she was in her office when
her secretary received a phone call about the incident and told
her that a student had passed out.
Bormann Dep. 7:25-8:14.)

(Pls.’ 56.1 Counterstmt. ¶ 56;

She testified that when she arrived, she

saw Z.G.M. lying on the floor in the hallway.
¶ 45.)

(Defs.’ 56.1 Stmt.

The parties dispute whether Z.G.M. was alert and oriented

when Nurse Bormann arrived; she testified that Z.G.M. was alert
and oriented, (Bormann Dep. 12:3-7, 45:23-25), but a concussion
checklist

indicates

Checklist,

Smith

principal,

Maureen

confusion

Decl.

Ex.

Henry

and

Q,

memory

Docket

(“Principal

loss

Entry

(Concussion

67-19),

Henry”),

and

testified

the
that

Z.G.M. was not “fully alert,” (Henry Dep., Smith Decl. Ex. B,
Docket Entry 67-3, 12:8-9).

The parties also dispute the extent

to which Z.G.M. was able to answer questions.

For example, the

District Defendants allege that Z.G.M. was able to answer several
questions asked by Nurse Bormann, while Plaintiffs maintain that
Z.G.M. was “actually unconscious” when Nurse Bormann arrived and
“was only able to answer questions with difficulty after he
regained consciousness, [because his] memory was not intact.”
(Defs.’ 56.1 Stmt. ¶ 47; Pls.’ 56.1 Resp. ¶ 47.)

Nurse Bormann

testified that she asked Z.G.M. to “squeeze her fingers and wiggle
his feet,” and found his eyes to be “round, equal and reactive.”
5

(Defs.’ 56.1 Stmt. ¶ 48; Bormann Dep. 14:7-20.)

Plaintiffs deny

that Z.G.M.’s eyes were “round, equal and reactive.”
Resp. ¶ 49.)

(Pls.’ 56.1

Principal Henry testified that when she arrived, she

observed that Z.G.M. was conscious and lying on the floor. (Defs.’
56.1 Stmt. ¶ 53.)
At that point, Z.G.M. was transported to the Nurse’s
Office in a wheelchair. (Defs.’ 56.1 Stmt. ¶ 56.) Principal Henry
testified that she accompanied Z.G.M. to the Nurse’s Office, where
she asked questions about the incident and “tr[ied] to make him
comfortable.”

(Defs.’ 56.1 Stmt. ¶¶ 57, 59; Henry Dep. 11:2-23.)

However, Z.G.M. testified that Principal Henry was “intimidating
[him]” and “tried to make it seem like [he] was the one who
provoked . . . the incident.”
H Exam. 28:7-16.)

(Pls.’ 56.1 Resp. ¶ 59; Z.G.M. 50-

Z.G.M. testified that he was able to answer the

questions asked by Nurse Bormann and Principal Henry without
(Defs.’ 56.1 Stmt. ¶ 60; Z.G.M. 50-H Exam. 28:4-6.)

difficulty.2
While

in

the

office,

Nurse

Bormann

completed

the

Concussion

Checklist and noted complaints of pain “posterior [to the] right
eye,” that there was a loss of consciousness “reported by teacher,”
and that Z.G.M. did not remember the injury “at the time of the
incident but slowly is coming back.”
Concussion

Checklist.)

Additionally,

(Defs.’ 56.1 Stmt. ¶ 61;
she

circled

“Yes”

Plaintiffs admit this but also maintain that Z.G.M. “had not
regained his full memory.” (Pls.’ 56.1 Resp. ¶ 60.)
2

6

for

“memory problems,” “vacant stare/glassy eyed,” “headache,” and
“feeling ‘dazed.’”
whether

Nurse

(Concussion Checklist.)

Bormann

contacted

Z.G.M.’s

The parties dispute
father,

Christopher

Milton (“Milton”) to inform him of the incident; the District
Defendants allege that Nurse Bormann called him, while Plaintiffs
allege that Milton was called by Wendy Guzman, Z.G.M.’s mother
(“Guzman”), and that he never spoke with Nurse Bormann.3
56.1 Stmt. ¶¶ 64-66; Pls.’ 56.1 Resp. ¶¶ 64-66.)

(Defs.’

However, it is

undisputed that Nurse Bormann did call Guzman, and that while
Z.G.M. waited for his mother to arrive, he complained of pain
behind his right eye. (Defs.’ 56.1 Stmt. ¶¶ 67-68.) Nurse Bormann
testified that she told him to immediately alert her if he had
changes in his vision.

(Defs.’ 56.1 Stmt. ¶ 69.)

The Concussion Checklist indicated that Z.G.M.’s parents
were advised to seek medical attention.

(Defs.’ 56.1 Stmt. ¶ 63.)

There is some dispute regarding what Nurse Bormann advised Z.G.M.’s
parents to do; Nurse Bormann testified that she told Guzman she
needed to take Z.G.M. to a doctor “immediately.”
29:24-25.)

(Bormann Dep.

Guzman testified that Nurse Bormann told her to take

the Concussion Checklist to Z.G.M.’s doctor and “see what they

Oddly, Plaintiffs’ 56.1 Response and 56.1 Counterstatement of
Facts contradict each other. Plaintiffs deny that Nurse Bormann
called Milton in their Response, (see Pls.’ 56.1 Resp. ¶¶ 6466), but allege that Nurse Bormann called Milton in their
Counterstatement, (see Pls.’ 56.1 Counterstmt. ¶ 65).
3

7

say” but that Nurse Bormann did not tell her to go immediately.
(Pls.’ 56.1 Resp. ¶ 63; Guzman 50-H Exam., Smith Decl. Ex. N,
Docket Entry 67-16, 16:25-17:13.)

At that point, Guzman testified

that she demanded that Nurse Bormann call an ambulance because she
was concerned about internal bleeding, and an ambulance was called.
(Pls.’ 56.1 Resp. ¶¶ 63, 74; Guzman 50-H Exam. 17:14-21.)

Nurse

Bormann acknowledged that she called an ambulance at Guzman’s
request, but also testified that she called after Z.G.M. complained
of “seeing waves.”4

(Defs.’ 56.1 Stmt. ¶¶ 74, 76.)

The police

arrived first, and the ambulance arrived about twenty minutes
later.

(Pls.’ 56.1 Counterstmt. ¶ 75; Bormann Dep. 31:11-32:22.)
Principal Henry testified that at some point before the

police and ambulance arrived, Guzman confronted her and asked why
she had not called the police.
Henry Dep. 31:4-8.)

(Pls.’ 56.1 Counterstmt. ¶ 137;

Principal Henry explained that she did not

call the police “because [she] felt there was no need for the
police, because [Z.G.M.] didn’t have any marks on his body, and

The District Defendants’ expert, Dr. S. Murthy Vishnubhakat,
reviewed Z.G.M.’s medical records, Nurse Bormann’s deposition,
and the school records and concluded that “the care rendered by
Dr. Bormann and the school authorities was exemplary” and that
“Nurse Bormann’s actions had nothing to do with the interval
increase of the hematoma.” (Defs.’ 56.1 Stmt. ¶¶ 78-79;
Vishnubhakat Rep., Smith Decl. Ex. S, Docket Entry 67-21, at 23.) Plaintiffs dispute his conclusions and maintain that his
opinion is based on misconceptions and contradicts the findings
in the Concussion Checklist. (Pls.’ 56.1 Resp. ¶ 78.)
4

8

[she] had the boy in the dean’s office who did the punch and that
[they] were trying to get to the story,” but advised Guzman that
she “had every right if she wanted to call the police.”
56.1 Stmt. ¶ 102; Henry Dep. 31:10-17.)

(Defs.’

Plaintiffs dispute that

Principal Henry advised Guzman that she could call the police.
(Pls.’ 56.1 Resp. ¶ 102.)

Milton testified that when he arrived

at the School, he was told that Principal Henry was too busy to
speak to him, but that he insisted on talking to her.

(Pls.’ 56.1

Counterstmt. ¶ 266; Milton 50-H Exam., Smith Decl. Ex. O, Docket
Entry 67-17, 14:14-20.)

He also testified that, when he and

Principal Henry spoke, Principal Henry told him: “[w]ell, there is
no sense in us talking, because your wife called the police.
wife called the police.

Your

We don’t handle business like this.”

(Pls. 56.1 Counterstmt. ¶ 267; Milton 50-H Exam. 15:5-9.) However,
Guzman indicated that she never asked that the police be contacted.
(Guzman 50-H Exam. 18:20-23.)
After Z.G.M. was taken to a hospital, he was diagnosed
with an epidural hemorrhage which required emergency surgery.
(Pls.’ 56.1 Counterstmt. ¶ 278.)

Since then, he has sought

counseling from a therapist regarding the incident but has not

9

sustained any further complications or ongoing symptoms.

(Defs.’

56.1 Stmt. ¶ 130; Pls.’ 56.1 Resp. ¶ 130.)
B. The Investigation
The assault occurred in the stairwell between the second
and third floors.

(Z.G.M. 50-H Exam. 24:4-25:15.)

In January

2014, there were four security guards working at the School,
including one security guard who monitored the second and third
floors.

(Pls.’ 56.1 Counterstmt. ¶ 106; Allen Dep., Smith Decl.

Ex. D, Docket Entry 67-5, 8:25-9:18.)

Teachers were also assigned

to monitor hallways, although no teacher was assigned to monitor
the

third

floor

at

the

time

of

the

incident.

Counterstmt. ¶¶ 108-09; Allen Dep. 11:19-22.)

(Pls.’

56.1

There were no

surveillance cameras on the second or third floor.

(Pls.’ 56.1

Counterstmt. ¶ 107; Allen Dep. 10:21-24.)
According

to

School

policy,

a

bullying

incident

is

investigated by the principal, who will determine if the bullying
allegation

is

credible.

(Defs.’

56.1

Stmt.

¶¶

12-13.)

At

Principal Henry’s request, Michael Mahler (“Mahler”), the Dean of
Students, brought J.C. to his office and requested a statement
from J.C., which he provided. (Defs.’ 56.1 Stmt. ¶¶ 80, 82-85;
J.C. Stmt., Smith Decl. Ex. T, Docket Entry 67-22.)

Mahler also

contacted J.C.’s parents and obtained statements from two other
students, E.M. and W.K.

(Defs.’ 56.1 Stmt. ¶¶ 86-88.)

not asked to obtain a statement from Z.G.M.
10

Mahler was

(Defs.’ 56.1 Stmt.

¶ 90.)

When J.C. was in Mahler’s office, Principal Henry arrived

and asked J.C. what happened.

(Defs.’ 56.1 Stmt. ¶¶ 93-94.)

J.C.

told her that “there were words” between him and Z.G.M., that
Z.G.M. pushed him and said “come on, let’s fight,” and then pushed
him again, at which point he punched Z.G.M.5

(Defs.’ 56.1 Stmt.

¶ 94; Henry Dep. 16:6-16.) As part of the investigation, Principal
Henry also spoke to W.K. and E.M., and J.C. and Z.G.M.’s teachers
regarding why they were not in class.
98.)

(Defs.’ 56.1 Stmt. ¶¶ 95-

After speaking with them, she suspended J.C. for five days.

(Defs.’ 56.1 Stmt. ¶ 100; Pls.’ 56.1 Resp. ¶ 100.)
suspension, she continued to speak with witnesses.
Stmt.

¶

105.)

The

matter

was

subsequently

After the

(Defs.’ 56.1

referred

for

a

Superintendent’s hearing, and J.C. was suspended for approximately
one month.

(Defs.’ 56.1 Stmt. ¶ 106; Pls.’ 56.1 Resp. ¶ 106.)

In

a criminal proceeding, J.C. was adjudicated a youthful offender
and pleaded guilty to attempted assault.

(Pls.’ 56.1 Counterstmt.

¶¶ 254-55.)
At some point, Principal Henry informed Guzman that
disciplinary

action

had

been

taken

against

J.C.;

however,

J.C. later testified that, initially, he had a “light graze”
with Z.G.M. because he did not see Z.G.M. (Pls.’ 56.1
Counterstmt. ¶ 226.) W.K. testified that he did not recall any
pushing between Z.G.M. and J.C., but remembered that they were
“chest to chest” before J.C. punched Z.G.M. (Pls.’ 56.1
Counterstmt. ¶¶ 193, 195, 199; W.K. Dep., Smith Decl. Ex. E,
Docket Entry 67-6, 16:20-17:18, 30:3-9.)
5

11

Plaintiffs maintain that this occurred only after Guzman inquired
and

that

Principal

disciplined.6

Henry

did

not

specify

how

J.C.

had

been

(Defs.’ 56.1 Stmt. ¶ 112; Pls.’ 56.1 Resp. ¶ 112.)

In April 2014, Principal Henry sent Guzman and Milton a letter
indicating that she conducted an investigation pursuant to the
District’s bullying and harassment policies and concluded that
“the allegation of bullying and/or harassment by [Z.G.M.] [was]
unfounded.”7

(Defs.’ 56.1 Stmt. ¶ 121; Pls.’ 56.1 Resp. ¶ 121;

Apr. 22, 2014 Letter, Smith Decl. Ex. DD, Docket Entry 67-32, at
1.)

Plaintiffs

allege

that,

throughout

the

investigation,

Principal Henry did not update them or provide adequate information
regarding the findings or progress of the investigation, and at
some point, Milton contacted the assistant superintendent for
information.

(Pls.’ 56.1 Counterstmt. ¶ 272; Milton 50-H Exam.

32:14-33:6.) While the District Defendants allege that the assault
was reported in its Violent and Disruptive Incident Reporting
Summary for the 2013-2014 school year, Plaintiffs contend that the

Plaintiffs allege that J.C. was not required to go to
counseling after the assault or to speak with guidance
counselors upon his return to school. (Pls.’ 56.1 Counterstmt.
¶¶ 248-50; Cannon Dep., Pls.’ Opp. Br., Ex. DD, Docket Entry 722, at 301-95, 52:16-53:11.)
6

This letter appears to have been sent in response to a letter
sent to Principal Henry by Guzman and Milton on February 19,
2014 making a complaint about a bullying incident. The February
19 letter is not in the record, and as a result, it is not clear
whether the underlying incident was the assault by J.C. or
events that occurred after Z.G.M.’s return to school.
7

12

result

of

the

investigation

was

not

reported

to

the

State

Department of Education. (Defs.’ 56.1 Stmt. ¶ 122; Pls.’ 56.1
Counterstmt. ¶ 154.)
Regarding

any

prior

relationship

between

the

two

students, Z.G.M. testified later that he did not know J.C. before
encountering him that day, but also stated that J.C. called him
“Afro-Man”

and

“Afro-Jack”

about

(Z.G.M. 50-H Exam. 20:7-22:23.)

a

week

before

the

He testified that he did not tell

anyone at the school or his parents about that incident.
50-H Exam. 22:12-18.)

assault.

(Z.G.M.

Guzman and Milton testified that prior to

the assault, they had never heard of J.C., that Z.G.M. had not
mentioned

having

problems

with

J.C.,

and

that

Z.G.M.

never

indicated that he was taunted or assaulted by other students.
(Defs.’ 56.1 Stmt. ¶¶ 18-20, 22-24.) Additionally, Barbara Madigan
(“Madigan”), Z.G.M.’s guidance counselor, was not aware of any
problems between Z.G.M. and J.C. before the date of the assault.
(Defs.’ 56.1 Stmt. ¶ 175.)

Madigan also testified that Z.G.M.

never complained to her about being harassed because of his race
and that she did not recall Guzman informing her or Principal Henry
that Z.G.M. was being bullied.8

(Defs.’ 56.1 Stmt. ¶ 178; Madigan

She did recall him discussing an incident during which “someone
made a racist comment” which “didn’t pertain to him” at some
point while she was his guidance counselor, but could not
remember if it was before or after the assault. (Madigan Dep.,
Smith Decl. Ex. H, Docket Entry 67-9, 56:11-19.)
8

13

Dep. 55:24-3; Pls.’ 56.1 Counterstmt. ¶ 35.)

Milton testified

that Z.G.M. never told him about any students making racial
comments toward him, and Guzman and Milton both testified that
they never told Principal Henry or other school personnel that
they believed the assault was racially motivated.9

(Defs.’ 56.1

Stmt. ¶¶ 25, 125, 136; Guzman 50-H Exam. 50:8-13; Milton 50-H Exam.
52:20-23.)

Guzman testified that prior to the assault, she never

notified personnel at the School that she was concerned about
Z.G.M.’s safety.

(Guzman 50-H Exam. 49:24-50:4.)

C. Z.G.M.’s Return to School
On February 4, 2014, Z.G.M. returned to school, and
Principal Henry met with Guzman, allegedly at Guzman’s request.
(Defs.’ 56.1 Stmt. ¶ 113; Pls.’ 56.1 Resp. ¶ 113.)

It appears

Madigan was also present at the meeting. (Defs.’ 56.1 Stmt. ¶ 172;
Pls.’ 56.1 Counterstmt. ¶ 33.)

Principal Henry relayed the

information gathered from witnesses and J.C. about the assault,
including that there was an allegation that Z.G.M. had flirted
with J.C.’s girlfriend.

(Defs.’ 56.1 Stmt. ¶¶ 114-16; Pls.’ 56.1

Counterstmt. ¶ 145.) Plaintiffs allege that Principal Henry also
said that Z.G.M. should not have left the classroom to retrieve

Plaintiffs dispute this but cite only the Notice of Claim and
the Complaint in this matter for support. However, allegations
in a Notice of Claim or a Complaint are not sufficient to
dispute a particular fact at the summary judgment stage.
9

14

his book because he did not have a hall pass.
Counterstmt. ¶¶ 41-42.)

(Pls.’ 56.1

Guzman provided Principal Henry with an

Order of Protection, which stated that J.C. must stay away from
Z.G.M. “wherever he/she may be [and] make no contact with [Z.G.M.]
directly

or

indirectly,

even

if

invited . . .

except

for

incidental contact at South Valley Stream High School including
any school functions . . . .”
Ex. CC, Docket Entry 67-31.)

(Order of Protection, Smith Decl.
Guzman also requested an escort for

Z.G.M.10

(Pls.’ 56.1 Counterstmt. ¶ 281; Guzman 50-H Exam. 38:24-

39:10.)

As a result, Principal Henry provided Z.G.M. with a pass

allowing him to leave each class three minutes early, and another
student helped him get to each class.

(Defs.’ 56.1 Stmt. ¶ 123;

Pls.’ 56.1 Resp. ¶ 123; Guzman 50-H Exam. 39:16-23.)
Plaintiffs maintain that within two days of Z.G.M.’s
return to school, two of J.C.’s friends threatened Z.G.M.
56.1 Resp. ¶ 119.)

Z.G.M.’s teacher, Ellen Daniels (“Daniels”),

overheard the incident and wrote a statement.
¶ 140.)

(Pls.’

(Defs.’ 56.1 Stmt.

Afterward, Z.G.M. went to see his guidance counselor,

Madigan, who showed him photographs to help him identify the
students,

and

reported

what

she

learned

to

Principal

Henry.

Guzman testified that she requested that Z.G.M. be escorted to
class because she was concerned about Z.G.M.’s safety and
because he was having difficulty walking. (Guzman 50-H Exam.
38:24-39:10.)
10

15

(Defs.’ 56.1 Stmt. ¶ 140; Z.G.M. 50-H Exam. 53:9-55:4; Disciplinary
Referral, Smith Decl. Ex. FF, Docket Entry 67-34, at 3.)

A

Disciplinary Referral completed by Daniels indicates that one of
the students said “There that kid [Z.G.M.] I’m going to kick his
ass.”

(Disciplinary Referral at 3.)

by Principal Henry.11
55:5-13.)
Jacquelin

Guzman
Allen

Both students were suspended

(Defs.’ 56.1 Stmt. ¶ 119; Z.G.M. 50-H Exam.

was

contacted

(“Assistant

by

the

Principal

Assistant

Allen”),

Principal,

regarding

incident and how it was being handled by the School.

the

(Defs.’ 56.1

Stmt. ¶ 208.)
“John Doe” Geramina (“Geramina”) was Z.G.M.’s science
teacher during the 2013-2014 school year.
¶¶ 193,

195.)

During

his

deposition,

(Defs.’ 56.1 Stmt.
Geramina

recalled

a

conversation with Z.G.M. about the pass that allowed him to leave
each class three minutes early.

(Defs.’ 56.1 Stmt. ¶ 199.)

He

testified that he spoke with Z.G.M. on the first day he used the
pass and asked him “what the pass was for” and asked him several
weeks later “when the pass expired.”

(Geramina Dep., Smith Decl.

Ex. HH, Docket Entry 67-36, 17:18-18:12.)

Plaintiffs allege that

Z.G.M. complained to Madigan and Principal Henry about Geramina

Plaintiffs point out that the students only received one day
of in-school suspension. (Pls.’ 56.1 Resp. ¶ 158.)
11

16

questioning him about the pass in front of the class.

(Guzman 50-

H Exam. 48:8-15; Pls.’ 56.1 Counterstmt. ¶ 155.)
Madigan testified that when J.C. returned to school
after his suspension, Z.G.M. came to talk to her and was “very
worried” and “very concerned at what might happen.”

(Pls.’ 56.1

Counterstmt. ¶ 50; Madigan Dep. 51:13-52:4.) However, Z.G.M. never
told Guzman of any interaction he had with J.C. after he returned,
or that J.C. violated the Order of Protection in the months
following the assault.
56.1 Resp. ¶ 131.)

(Defs.’ 56.1 Stmt. ¶¶ 126-27, 131; Pls.’

Additionally, Z.G.M. never told Milton about

any incidents with J.C. after the assault or that students made
racially motivated comments toward him between the time of the
assault and the end of the school year. (Defs.’ 56.1 Stmt. ¶¶ 135,
137; Pls.’ 56.1 Resp. ¶¶ 135, 137.)
II.

Procedural Background
As discussed above, Plaintiffs commenced this action on

January 9, 2015.

The Complaint asserts the following claims: (1)

negligent supervision and failure to supervise pursuant to 42
U.S.C. § 1983 (“Section 1983”) (Compl. ¶¶ 130-51); (2) failure to
protect pursuant to Section 1983 (Compl. ¶¶ 152-71); (3) failure
to adhere to established policy pursuant to Section 1983 (Compl.
¶¶ 172-203; (4) negligence and gross negligence (Compl. ¶¶ 20428); (5) assault and battery (Compl. ¶¶ 229-37)); (6) claims under
42 U.S.C. §§ 1981 and 1985 (“Sections 1981 and 1985”) (Compl.
17

¶¶ 238-47);

(7)

intentional

infliction

of

emotional

distress

(Compl. ¶¶ 248-58); and (8) municipal liability pursuant to Section
1983 (Compl. ¶¶ 259-72).12

On March 24, 2015, the District

Defendants filed their Answer and asserted a crossclaim against
J.C., “John Doe” Cannon, and “Jane Doe” Cannon (together “the
Cannons”).

(Dist. Defs.’ Answer, Docket Entry 21.)

On July 16,

2015, the Cannons and J.C. answered the Complaint and asserted a
crossclaim

against

Docket Entry 33.)

the

District

Defendants.

(Cannon

Answer,

On January 26, 2017, Plaintiffs voluntarily

dismissed the claims against Kara Jacobson, Ellen Daniels, “John
Doe” Drumm, and Nurse Jane Doe, and their Section 1981 and 1985
claims against all defendants.

(See Stip.; Electronic Order, Jan.

30, 2017.)
On February 27, 2017, the District Defendants moved for
summary

judgment.

On

May

30,

2017,

Plaintiffs

filed

their

opposition, and the District Defendants filed their reply on June
12, 2017.

(Pls.’ Opp. Br., Docket Entry 71; Dist. Defs.’ Reply

Br., Docket Entry 73.)

The Court will address each claim in more detail below, but at
the outset, notes that most of the claims consist of identical
allegations under different headings.
12

18

DISCUSSION
I.

Legal Standard
Summary

judgment

will

be

granted

where

the

movant

demonstrates that there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a).

A genuine factual issue exists where “the

evidence is such that a reasonable jury could return a verdict for
the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed 2d 202 (1986).

In

determining whether an award of summary judgment is appropriate,
the Court considers the “pleadings, deposition testimony, answers
to interrogatories and admissions on file, together with any other
firsthand information including but not limited to affidavits.”
Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011).
The movant bears the burden of establishing that there
are no genuine issues of material fact.

Gallo v. Prudential

Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).

Once

the movant makes such a showing, the non-movant must proffer
specific facts demonstrating “a genuine issue for trial.”

Giglio

v. Buonnadonna Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at
*4 (E.D.N.Y. Sept. 25, 2009) (internal quotation marks and citation
omitted).

Conclusory allegations or denials will not defeat

summary judgment.

Id.

However, in reviewing the summary judgment

record, “‘the court is required to resolve all ambiguities and
19

draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.’”

Sheet Metal Workers’

Nat’l Pension Fund v. Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL
6449420, at *2 (E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler
Corp., 109 F.3d 130, 134 (2d Cir. 1997)).
II.

The Federal Claims
With regard to the Section 1983 claims, Plaintiffs’

Complaint is far from clear.

The Complaint contains three counts

under Section 1983: (1) negligent supervision and failure to
supervise pursuant to Section 1983; (2) failure to protect pursuant
to Section 1983; and (3) failure to adhere to established policy
pursuant to Section 1983.

(Compl. ¶¶ 130-203.)

The failure to

supervise and failure to protect claims are substantially similar;
both claims allege that the District Defendants “maintained . . .
a special relationship with [ ] Z.G.M,” (Compl. ¶¶ 131, 153), were
required pursuant to the Due Process Clause to protect Z.G.M.’s
rights to “substantive due process, personal security, bodily
integrity and the right to [be] protected,” (Compl. ¶¶ 134, 156),
and were “deliberate[ly] indifferent to the clearly established
rights of [ ] Z.G.M,” (Compl. ¶¶ 143, 164). Plaintiffs also allege
that “Z.G.M. had a right to be free . . . from assault, battery,
and harassment and had a constitutional right to bodily integrity,”
(Compl. ¶¶ 142, 163).

Thus, the Court construes the failure to

supervise and failure to protect claims as alleging that the
20

District Defendants violated Z.G.M.’s substantive due process
rights.

The Court will address these claims first.

A. Substantive Due Process Claims
The District Defendants argue that these claims must be
dismissed because (1) negligent conduct cannot form the basis of
a Section 1983 claim; (2) the District Defendants did not maintain
a special relationship with Z.G.M.; and (3) the District Defendants
did not create or increase the danger to Z.G.M.
Br., Docket Entry 68, at 4-8.)

(Dist. Defs.’

In their opposition, Plaintiffs

represent that “the facts of [the Section 1983] claim[s] present
a case of first impression to this Court,” but that these claims
“may be considered analogous to claims by prison inmates and state
institutionalized

patients

concerning

constitutional rights pursuant to § 1983.”
10.)

deprivation

of

(Pls.’ Opp. Br. at

Plaintiffs maintain that because of compulsory attendance

laws for public schools, the District Defendants owed a special
duty to Z.G.M. (Pls.’ Opp. Br. at 11.)

They also argue that that

New York State’s Dignity for All Students Act (“DASA”) heightened
that special duty, and as a result, “public schools [must] ensure
a safe environment for all students, free from harassment.” (Pls.’
Opp. Br. at 11.)

Plaintiffs contend that because Z.G.M. was in

“non-punitive state custody,” he can maintain a substantive due
process claim, and point to alleged deficiencies in the care
provided by Nurse Bormann and Principal Henry’s failure to call
21

the police as indicative of violations of due process.

(Pls. Opp.

Br. at 14-17.)
On reply, the District Defendants argue that Plaintiffs
fail to address any of the authority cited in their moving brief.
(Dist. Defs.’ Reply Br. at 2-3.)

Additionally, they point out

that as a factual matter, Plaintiffs have not rebutted any of the
evidence in the record that the District was not on notice of
concerns about Z.G.M’s safety or on notice of any tension between
Z.G.M. and J.C. prior to the assault.
at 3.)

(Dist. Defs.’ Reply Br.

Finally, they contend that the alleged delay in calling an

ambulance and failure to contact the police do not establish a
substantive due process violation.

(Dist. Defs.’ Reply Br. at 6-

7.)
To establish a claim under Section 1983, a plaintiff
must show that the defendant violated a “right, privilege, or
immunity

secured

by

the

Constitution

or

laws

of

the

States . . . by a person acting under color of state law.”

United
Ryan

v. Cty. of Nassau, No. 12-CV-5343, 2018 WL 354684, at *2 (E.D.N.Y.
Jan. 10, 2018) (internal quotation marks and citation omitted)
(alteration in original).

As discussed, Plaintiffs allege that

the District Defendants violated Z.G.M.’s substantive due process
rights.

Pursuant to the Due Process Clause of the Fourteenth

Amendment, “[n]o State shall . . . deprive any person of life,
liberty, or property, without due process of law.”
22

Drain v.

Freeport Union Free Sch. Dist., No. 14-CV-1959, 2015 WL 1014413,
at *8 (E.D.N.Y. Jan. 14, 2015), R&R adopted in part, 2016 WL
1014451 (E.D.N.Y. Mar. 9, 2015) (internal quotation marks and
citation omitted).

Courts have interpreted the Due Process Clause

as protecting “‘an individual’s right to bodily integrity free
from unjustifiable government interference.’”

P.W. v. Fairport

Cent. Sch. Dist., 927 F. Supp. 2d 76, 81 (W.D.N.Y. 2013) (quoting
Lombardi v. Whitman, 485 F.3d 73, 81 (2d Cir. 2007)).

However,

the Due Process Clause “does not require that the state ‘protect
life, liberty, and property of its citizens against invasion by
private actors.’” Reid ex rel. Roz B. v. Freeport Pub. Sch. Dist.,
89 F. Supp. 3d 450, 457 (E.D.N.Y. 2015) (quoting DeShaney v.
Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 195, 109 S. Ct.
998, 1003, 103 L. Ed. 2d 249 (1989)).

As the Supreme Court

explained in DeShaney, “[t]he [Due Process] Clause is phrased as
a limitation on the State’s power to act, not as a guarantee of
certain minimal levels of safety and security.”

DeShaney, 489

U.S. at 195, 109 S. Ct. at 1003, 103 L. Ed. 2d 249.
The Second Circuit has recognized two exceptions to the
general rule articulated in DeShaney.
524 F.3d 151, 155 (2d Cir. 2008).

Matican v. City of N.Y.,

Specifically, a state “may owe

a constitutional obligation to the victim of private violence”
when (1) the state has created the danger or (2) when there is a
special

relationship

between

the
23

state

and

the

individual.

Matican, 524 F.3d at 155; see also Campbell v. Brentwood Union
Free Sch. Dist., 904 F. Supp. 2d 275, 280 (E.D.N.Y. 2012).

In

addition to showing that one of these exceptions applies, the
plaintiff must also show that the defendant’s conduct was “‘so
egregious, so outrageous, that it may fairly be said to shock the
contemporary conscience.’”

Matican, 524 F.3d at 155 (quoting Cty.

of Sacramento v. Lewis, 523 U.S. 833, 847 n.8, 118 S. Ct. 1708,
1717, 140 L. Ed. 2d 1043 (1998)).
1. Special Relationship Exception
In DeShaney, the Supreme Court observed that “in certain
limited circumstances, the Constitution imposes upon the State
affirmative

duties

of

care

and

protection

with

respect

to

particular individuals,” DeShaney, 489 U.S. at 198, 109 S. Ct. at
1004, 103 L. Ed. 2d 249, including “incarcerated prisoners and
involuntarily committed mental patients,” Matican 524 F.3d at 156.
Since DeShaney, the Second Circuit has “focused on involuntary
custody as the linchpin of any special relationship exception.”
Id.

In other words, for this exception to apply, the state must

have “somehow placed the victim within its custody.”

Campbell,

904 F. Supp. 2d at 280.
Plaintiffs argue that whether Z.G.M. maintains a special
relationship with the District is an issue of first impression for
this Court.

(Pls.’ Opp. Br. at 10.)

While that may be true, of

the many courts that have addressed this issue, the overwhelming
24

weight of authority is that the special relationship exception
does not apply in the school setting.

See Chambers v. N. Rockland

Cent. Sch. Dist., 815 F. Supp. 2d 753, 763 n.10 (S.D.N.Y. 2011)
(“The consensus among courts is that the ‘special relationship’
doctrine does not apply to the school setting.”) (collecting
cases); Drain, 2015 WL 1014413, at *9 (“A number of courts in the
Second
special

Circuit

have

consistently

relationship

(collecting cases).

status

upon

rejected
public

attempts
school

to

impose

students.”)

Plaintiffs argue that public school students

are in the state’s custody because the state requires that they
attend school pursuant to compulsory attendance laws.
Br.

at

12.)

rejected.13

However,

this

argument

has

been

(Pls.’ Opp.
consistently

See Nieves v. Bd. of Educ., No. 06-CV-0603, 2006 WL

2989004, at *3 (E.D.N.Y. Sept. 15, 2006) (“Compulsory attendance
laws for public schools, however, do not create an affirmative
constitutional duty to protect students from the private actions
of third parties while they attend school.”) (internal quotation

Plaintiffs cite Tyrrell v. Seaford Union Free School District,
No. 08-CV-4811, 2010 WL 1257793 (E.D.N.Y. Feb. 9, 2010), R&R
adopted, 2010 WL 1198055 (E.D.N.Y. Mar. 25, 2010), as support
for their arguments. (Pls.’ Opp. Br. at 12.) In Tyrrell, the
plaintiff was claiming that she was denied equal access to a
public education after she left school due to harassment by
other students. Tyrrell, 2010 WL 1257793, at *2-3, 6.
Plaintiffs do not appear to claim that Z.G.M. was denied equal
access to public education. Additionally, while the claim in
Tyrrell survived a motion to dismiss, it was ultimately
dismissed on summary judgment. Tyrrell v. Seaford Union Free
Sch. Dist., 792 F. Supp. 2d 601 (E.D.N.Y. 2011).
13

25

marks and citationomitted); HB v. Monroe Woodbury Cent. Sch. Dist.,
No. 11-CV-5881, 2012 WL 4477552, at *10 (S.D.N.Y. Sept. 27, 2012)
(“‘[E]ven in light of compulsory [education] attendance laws, no
special

relationship

is

created

between

students

and

schools

districts . . . .’”) (quoting Santucci v. Newark Valley Sch. Dist.,
No. 05-CV-971, 2005 WL 2739104, at *2 (N.D.N.Y. Oct. 24, 2005))
(second alteration in original).
Z.G.M.’s

relationship

with

the

District

does

not

resemble the relationship between the state and prisoners or
between the state and individuals who are involuntarily committed,
both of which give rise to a heightened duty to protect individuals
from private harm.

Therefore, this Court joins the majority of

courts and holds that Z.G.M.’s status as a student does not impose
a constitutional obligation on the District to protect him from
private harm, and as a result, Plaintiffs cannot rely on the
special relationship exception as the basis for their substantive
due process claims.

See, e.g., Reid, 89 F. Supp. 3d at 458;

Campbell, 904 F. Supp. 2d at 281; Drain, 2015 WL 1014413, at *9;
HB, 2012 WL 4477552, at 10; P.W., 927 F. Supp. 2d at 82.
2. State-Created Danger Exception
Although Plaintiffs have not argued that the statecreated danger exception applies, the Court will briefly address
it.
A state may violate a victim’s due process rights “when
26

its officers assist in creating or increasing the danger that the
victim faced at the hands of a third party.”
157.

Matican, 524 F.3d at

However, the state must have “taken an active role in the

deprivation of a right,” and passive conduct is not sufficient.
Reid, 89 F. Supp. 3d at 458.

In some circumstances, “‘affirmative

conduct of a government official may give rise to an actionable
due

process

violation

if

it

communicates,

explicitly

implicitly, official sanction of private violence.’”

or

Id. at 459

(quoting Okin v. Vill. of Cornwall-On-Hudson Police Dep’t, 577
F.3d 415, 429 (2d Cir. 2009)).

Typically, in cases where the

Second Circuit has applied this exception, “an agent of the
state . . . was shown to have had a particular relationship with
the perpetrator of the violence.”
281.

Campbell, 89 F. Supp. 3d at

Further, “in the context of school bullying and harassment,

courts have held that schools have no duty under the due process
clause to protect students from assault by other students, even
where

the

school

presented.”

knew

or

should

have

known

of

the

danger

Scruggs v. Meriden Bd. of Educ., No. 03-CV-2224, 2007

WL 2318851, at *12 (D. Conn. Aug. 10, 2007) (collecting cases)
(internal quotation marks omitted); see also Reid, 89 F. Supp. 3d
at 459.
Based on the facts presented, the Court finds that the
state-created danger exception does not apply.

There is no

evidence that the District or any of the individual defendants
27

engaged in any conduct that created or increased the risk of harm
to Z.G.M. at the hands of J.C.

It is undisputed that the District

was not on notice of any pre-existing tension between Z.G.M. and
J.C. and did not encourage or sanction the violence in any way.
See Campbell, 89 F. Supp. 3d at 281 (noting that the state-created
danger exception requires “a finding of affirmative conduct on the
part of the Defendant, usually acting in direct concert with the
perpetrator and witnessing the violence”).
rule of DeShaney applies.

Therefore, the general

Plaintiffs’ claim that the District

Defendants failed to adequately supervise its staff and failed to
protect Z.G.M. fails.

The District Defendants cannot be liable

for a due process violation based on the assault by J.C.

See

Campbell, 89 F. Supp. 3d at 281; Reid, 89 F. Supp. 3d at 460; HB,
2012 WL 4477552, at *10-11; Drain, 2015 WL 1014413, at *12.
3. Shocking the Conscience
Even if Plaintiffs could show that their claims fell
within the narrow exceptions to DeShaney, the District Defendants’
failure

to

prevent

the

assault

and

to

protect

Z.G.M.

from

harassment does not rise to the level of “egregious” conduct “so
‘brutal’

and

conscience.”

‘offensive

to

human

dignity’

as

to

shock

the

Smith v. Half Hollow Hills Cent. Sch. Dist., 298

F.3d 168, 173 (2d Cir. 2002) (quoting Johnson v. Glick, 481 F.2d
1028, 1033 & n.6 (2d Cir. 1973)).

The District’s failure to

prevent an assault it had no reason to believe would occur surely
28

does not shock the conscience.

As to the harassment, the record

reflects that Z.G.M. was bullied on one occasion two days after
his return to school.

(Disciplinary Referral at 3.)

However, it

is undisputed that a teacher who overheard the incident reported
it to Principal Henry, who suspended the students.
Stmt. ¶¶ 119, 140.)
the

“egregious”

and

(Defs.’ 56.1

These actions seem appropriate and far from
“brutal”

conduct

required

to

sustain

a

substantive due process claim. Even if the School had done nothing
in response to Z.G.M.’s complaint about the harassment, the claim
would still fall short, as several courts in the Circuit have held
that “a school’s failure to remedy peer-to-peer bullying and
harassment does not rise to the level of shock the conscience.”
Drain, 2015 WL 1014413, at *13 (internal quotation marks omitted).
To

the

extent

Plaintiffs

argue

that

events

which

occurred after the assault--Nurse Bormann’s alleged failure to
call an ambulance, Principal’s Henry’s failure to call the police,
or

Geramina’s

purported

harassment

of

Z.G.M.--establish

substantive due process claim, those claims also fail.

a

(Pls.’

Opp. Br. at 13-15.) It is undisputed that an ambulance was called,
and the police also responded to the School.14

(Defs.’ 56.1 Stmt.

Plaintiffs argue that the Court should deny summary judgment
on this claim in accordance with Ewing v. Roslyn High School,
No. 05-CV-1276, Docket Entry 43, an unpublished decision by this
Court. (Pls.’ Opp. Br. at 16.) However, the Court finds that
there are factual distinctions between this case and Ewing which
undermine that argument. In Ewing, the plaintiff was assaulted
14

29

¶ 76; Pls.’ 56.1 Counterstmt. ¶ 75.)

Construing the facts in

Plaintiffs’ favor, Nurse Bormann’s failure to call an ambulance
immediately and Principal Henry’s failure to contact the police is
not actionable conduct under the Due Process Clause.

See HB, 2012

WL 4477552, at *12 (“Making a bad decision or acting negligently
is not the sort of conscience-shocking behavior that violates the
Constitution.”) (internal quotation marks omitted).
comments

allegedly

made

by

Geramina

substantive due process claim.
complained

to

Madigan

and

also

Moreover, any

cannot

support

a

Plaintiffs allege that Z.G.M.

Principal

Henry

about

questioning him about the pass in front of the class.15

Geramina
(Guzman

by two students, and he requested that the assistant principal
call an ambulance. (Ewing, No. 05-CV-1276, Docket Entry 43, at
3.) His father, upon hearing about the incident, also requested
that the assistant principal call an ambulance, but the
assistant principal said that it was not necessary. (Ewing, No.
05-CV-1276, Docket Entry 43, at 3-4.) It does not appear that
an ambulance was ever called. As a result, this Court allowed
the plaintiff’s substantive due process claim to proceed to
trial due to issues of fact related to the assistant principal’s
intent when he denied the plaintiff access to emergency medical
care. (Ewing, No. 05-CV-1276, Docket Entry 43, at 9.) Here,
Nurse Bormann called an ambulance after Guzman requested one and
after Z.G.M. told her he was “seeing waves,” and he received the
necessary medical care. (Defs.’ 56.1 Stmt. ¶¶ 74, 76.)
Plaintiffs allege in their Complaint that on one occasion,
Geramina asked Z.G.M. “when is this shit going to stop?”
(Compl. ¶ 126.) However, they failed to proffer any admissible
evidence of this comment in their 56.1 Response or 56.1
Counterstatement of Facts. As a result, the Court has not
considered it. Even if Plaintiffs had proffered evidence of
such a statement by Geramina, it would not change the result,
because one comment is not sufficient to establish a substantive
due process claim.
15

30

50-H Exam. 48:8-15; Pls.’ 56.1 Counterstmt. ¶ 155.)

However, the

Court finds that the harassment by Geramina, assuming it occurred,
is not sufficiently brutal or offensive to constitute a violation
of Z.G.M.’s due process rights.

See Smith, 298 F.3d at 173

(holding that a single slap by a teacher did not shock the
conscience and affirming dismissal of substantive due process
claim); Yap v. Oceanside Union Free Sch. Dist., 303 F. Supp. 2d
284, 297 (E.D.N.Y. 2004) (dismissing substantive due process claim
based on racially motivated comments by lunchroom monitor).
Therefore, for the reasons stated above, Plaintiffs’
failure to supervise and failure to protect claims under Section
1983 are DISMISSED.
B. Failure to Follow Established Policy
The District Defendants contend that this claim must be
dismissed because violations of policy or state law are not
cognizable claims under Section 1983.

(Dist. Defs.’ Br. at 9.)

Plaintiffs emphasize that the District Defendants did not follow
the School’s policies and “failed to conduct a proper investigation
pursuant to DASA.”

(Pls.’ Opp. Br. at 12-13.)

This failure,

according to Plaintiffs, constituted “deliberate indifference in
the enforcement of their policies and practices.”

(Pls.’ Opp. Br.

at 14.)
The

Court

agrees

with

the

District

Defendants.

Violations of institutional policy or state law are not a basis
31

for a Section 1983 claim.

See Holland v. City of N.Y., 197 F.

Supp. 3d 529, 548-49 (S.D.N.Y. 2016) (“‘[A] § 1983 claim brought
in federal court is not the appropriate forum to urge violations
of prison regulations or state law.’”) (quoting Rivera v. Wohlrab,
232 F. Supp. 2d 117, 123 (S.D.N.Y. 2002)).
violations

of

its

constitutional

own

policies

violation.

or

Thus,

The District’s alleged

DASA

the

cannot

failure

establish

a

adhere

to

to

established policy claim under Section 1983 is DISMISSED.
(dismissing

due

process

claim

based

on

violation

of

See id.
prison

policies).
C. Guzman and Milton’s Section 1983 Claims
The

parents’

claims

for

psychological

injuries

and

emotional distress under Section 1983 must also be dismissed.
(Compl. ¶¶ 149-150, 169-170, 201-202.) See Drain, 2015 WL 1014413,
at *15 (dismissing parents’ claims under Section 1983).

Guzman

and Milton’s claim that they were injured as a result of the
District Defendants’ violations of Z.G.M.’s rights (Pls.’ Opp. Br.
at 17) is entirely without merit.

As parents, they do not have

standing to bring individual claims based on the violation of their
child’s rights.
at *19.

See id. (collecting cases); HB, 2012 WL 4477552,

Further, there is no evidence of a loss of custody that

could support a violation of the right to family integrity. Drain,
2015 WL 1014413, at *16 (“‘[W]here there is no actual loss of
custody, no substantive due process claim can lie.’”) (quoting
32

K.D. v. White Plains Sch. Dist., 921 F. Supp. 2d 197, 217 (S.D.N.Y.
2013)).

Therefore, Guzman and Milton’s Section 1983 claims are

DISMISSED.16
D. Municipal Liability
Because Plaintiffs have not established a constitutional
violation, their claim for municipal liability under Monell v.
Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 98 S Ct.
2018, 56 L. Ed. 2d 611 (1978), is DISMISSED.

See Holland, 197 F.

Supp. 3d at 552; Reid, 89 F. Supp. 3d at 460.
III. The State Law Claims
In light of the dismissal of the federal claims, only
Plaintiffs’
infliction

negligence,
of

emotional

gross
distress

negligence,
claims

and

against

intentional
the

District

Defendants and the assault and battery claim against J.C. and the
Cannons

remain.

“[A]bsent

exceptional

circumstances,

where

federal claims can be disposed of pursuant to Rule 12(b)(6) or
[on]

summary

judgment

grounds,

exercising pendant jurisdiction.”

courts

should

abstain

from

Dole v. Huntington Union Free

Sch. Dist., 2016 WL 4703658, at *7 (E.D.N.Y. Sept. 8, 2016), aff’d,
699 F. App’x 85 (2d Cir. 2017) (internal quotation marks and
citation omitted); Krumholz v. Vill. of Northport, 873 F. Supp. 2d

Because Plaintiff’s underlying claims are without merit, it is
unnecessary for the Court to determine whether the District
Defendants are entitled to qualified immunity.
16

33

481, 492 (E.D.N.Y. 2012).

The Court determines that retaining

jurisdiction over the remaining state law claims is unwarranted.
Thus, the Court declines to exercise supplemental jurisdiction
over those claims pursuant to 28 U.S.C. § 1367(c)(3), and the state
law claims are DISMISSED WITHOUT PREJUDICE.
CONCLUSION
For the foregoing reasons, the District Defendants’
motion for summary judgment (Docket Entry 66) is GRANTED IN PART
and DENIED IN PART.

Plaintiffs’ federal claims under Section 1983

are DISMISSED WITH PREJUDICE.

The Court declines to exercise

supplemental jurisdiction over the remaining state law claims, and
DISMISSES those claims WITHOUT PREJUDICE.
similarly DISMISSED WITHOUT PREJUDICE.

The crossclaims are

If Plaintiffs choose to

pursue their state law claims, Defendants may assert crossclaims
in that forum. The Clerk of the Court is directed to enter judgment
accordingly and mark the case CLOSED.

SO ORDERED.

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

March
1 , 2018
Central Islip, New York

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