Faccio et al v. Eggleston et al
Filing
35
MEMORANDUM-DECISION & ORDER granting defts Glens Falls City School District, Glens Falls Middle School, Christopher Reed, Hank Dwyer, Kate McPhillip, Laurey Parker, and Anne Zilch's 21 Motion to Dismiss; granting defts Christopher Eggleston an d Glens Falls Police Department's 23 Motion to Dismiss; The complaint is DISMISSED in its entirety; and Defendants Christopher Eggleston and Glens Falls Police Department's counterclaim for attorney's fees pursuant to 42 U.S.C. § 1988 is DISMISSED. The Clerk is directed to enter judgment accordingly and close the file. Signed by Judge David N. Hurd on 8/22/2011. (see)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------DANIEL FACCIO; CHASTITY FACCIO;
D.F., a minor child; and A.F., a minor child,
Plaintiffs,
-v-
1:10-CV-783
(LEAD)
CHRISTOPHER EGGLESTON and
GLENS FALLS POLICE DEPARTMENT,
Defendants.
-------------------------------DANIEL FACCIO; CHASTITY FACCIO;
D.F., a minor child; and A.F., a minor child,
Plaintiffs,
-v-
1:10-CV-699
(MEMBER)
CHRISTOPHER REED; HANK DWYER;
KATE McPHILLIP; LAUREY PARKER;
ANNE ZILCH; GLENS FALLS MIDDLE SCHOOL;
and GLENS FALLS CITY SCHOOL DISTRICT,
Defendants.
-------------------------------APPEARANCES:
DANIEL FACCIO, pro se
P.O. Box 1724
Kingston, NY 12402
CHASTITY FACCIO, pro se
P.O. Box 1724
Kingston, NY 12402
A.F., pro se
P.O. Box 1724
Kingston, NY 12402
OF COUNSEL:
D.F., pro se
P.O. Box 1724
Kingston, NY 12402
FITZGERALD, MORRIS, BAKER,
FIRTH P.C.
Attorneys for Defendants Eggleston and
Glens Falls Police Department
16 Pearl Street
P.O. Box 2017
Glens Falls, NY 12801
MARTIN A. COHEN, ESQ.
BARTLETT, PONTIFF, STEWART
& RHODES, P.C.
Attorneys for Defendants Reed, Dwyer,
McPhillip, Parker, Zilch, Glens Falls
Middle School, and Glens Falls City
School District
1 Washington Street
P.O. Box 2168
Glens Falls, NY 12801
EILEEN M. HAYNES, ESQ.
DAVID N. HURD
United States District Judge
MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
Plaintiffs Daniel Faccio ("D. Faccio") and Chastity Faccio ("C. Faccio"), a married
couple, along with their minor children A.F. and D.F. (collectively "plaintiffs" or "Faccios"),
bring these actions asserting several causes of actions under the United States Constitution,
New York State Constitution, federal law, and state law.
Plaintiffs filed Civil Action No. 1:10-CV-699 ("member case") on June 16, 2010,
against Glens Falls City School District ("District"); Glens Falls Middle School ("middle
school"); Christopher Reed, principal of Glens Falls Middle School ("Reed"); Laurey Parker,
assistant principal of Glens Falls Middle School ("Parker"); Hank Dwyer, custodian at Glens
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Falls Middle School ("Dwyer"); Kate McPhillip, teacher at Glens Falls Middle School
("McPhillip"); and Anne Zilch, teacher at Glens Falls Middle School ("Zilch") (collectively
"school defendants"). Member Compl., Dkt. No. 1.
Plaintiffs filed Civil Action No. 1:10-CV-783 ("lead case") on July 1, 2010, against
the Glens Falls Police Department ("Department") and police officer Christopher Eggleston
("Eggleston") (collectively "police defendants"). Lead Compl., Dkt. No. 1. These two civil
actions were consolidated on November 10, 2010, because the allegations derived from the
same chain of events. Civil Action No. 1:10-CV-783 was designated the lead case.
Both the police defendants and the school defendants moved to dismiss pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon
which relief can be granted. The police defendants also counterclaimed alleging plaintiffs
failed to bring a claim grounded in fact and/or law and requested attorney's fees pursuant to
42 U.S.C. § 1988. Plaintiffs responded to both motions to dismiss. Both sets of defendants
replied. The motions were taken on their submissions without oral argument.
Defendants middle school, Reed, Dwyer, Parker, Zilch, and McPhillip were not
properly served. See Dkt. No. 29, 7. Summons were mailed to all of the defendants by the
United States Marshal Service. The superintendent waived service on behalf of the District,
but the remaining defendants did not waive service. The Marshal Service notified plaintiffs of
the failure to serve these defendants, but plaintiffs did not request that the Marshal Service
serve the remaining defendants. See Dkt. No. 29,7. Under Rule 4(m) of the Federal Rules
of Civil Procedure, lack of service results in either a dismissal without prejudice or an order to
make service.
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However, for the reasons discussed in this Memorandum-Decision and Order,
plaintiffs fail to state a claim against these unserved defendants, and the claims against them
will be dismissed pursuant to Rule 12(b)(6).
II. FACTUAL BACKGROUND
Plaintiff D.F. was a seventh-grade student at the middle school from September
2009 to June 2010. Plaintiffs allege that during this time, D.F. was subjected to harassment
and bullying by faculty, staff, and students. They claim that the harassment and bullying was
because of D.F.'s race, color, orientation, nationality, ethnicity, sex, and origin and assert the
harassment occurred every day or every other day. The Faccios contend they met with
middle school officials to report the harassment. On December 13, 2009, D. Faccio notified
Parker and an "officer of the school" that twelve members of the football team wanted to
assault D.F.. D. Faccio also notified Parker and the officer about an incident where an
individual driving a pick-up truck followed D.F. from the middle school parking lot, gave D.F.
the middle finger, and called D.F. an ethnic slur.
On December 14, 2009, a student gave a written statement to police alleging D.
Faccio threatened him. The next day, December 15, 2009, D. Faccio and A.F., drove to the
middle school to pick up D.F.. At the middle school, D. Faccio was approached and arrested
by officers of the Department for endangering the welfare of a child.
D. Faccio was transported to the police station where he was searched and
questioned. He also alleges his car was towed from the middle school and searched.
Additionally, his minor children, A.F. and D.F.—who were under his supervision at the time of
his arrest—were taken to the police station until his wife arrived at the police station.
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Plaintiffs claim that the police questioned A.F. and D.F. without their consent when the
children were at the police station.
The Faccios contend the harassment of D.F. at school escalated after D. Faccio's
arrest. According to the complaint, on January 8, 2010, Reed harassed D.F. and grabbed
his arm hard. On April 19, 2010, Zilch yelled at D.F. and spat in his face. On an unspecified
date, McPhillip unfairly "wrote up" D.F. for punishment. On one occasion, Dwyer put his
hands on D.F. in the school cafeteria in order to physically force D.F. to sit down. In addition,
Parker subjected D.F. to occasional lunch detentions where she did not allow D.F. to eat.
Finally, plaintiffs allege that the middle school and the District ignored their pleas to stop the
harassment of D.F..
III. DISCUSSION
Both sets of defendants move for dismissal pursuant to Federal Rule of Civil
Procedure 12(b)(6) on the grounds that the respective complaints fail to state a claim.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct.
1955, 1974 (2007)). All reasonable inferences must be drawn in favor of the complainant.
See Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (citing Hayden v.
Paterson, 594 F.3d 150, 160 (2d Cir. 2010)). However, "the tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal conclusions."
Iqbal, 129 S. Ct. at 1949. Instead, "[w]hile legal conclusions can provide the framework of a
complaint, they must be supported by factual allegation." Id. at 1950.
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Pro se pleadings are to be construed liberally, particularly if the plaintiffs are
alleging civil rights violations. See Sealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185,
191 (2d Cir. 2008). Only the most unsustainable of pro se claims should be dismissed for
insufficient pleading. Id. (citing Boykin v. KeyCorp, 521 F.3d 202, 216 (2d Cir. 2008)).
In their complaints, plaintiffs make numerous allegations of improper behavior by
employees of the Department and the District.
A. Federal Law Claims Against Police Defendants
The Faccios allege constitutional violations on behalf of D. Faccio as well as minor
children A.F. and D.F.. The alleged deprivations occurred during and shortly after
D. Faccio's arrest on December 15, 2009. These include: (1) false arrest of D. Faccio; (2)
illegal search of D. Faccio's person; (3) illegal search of D. Faccio's vehicle; (4) illegal seizure
of A.F. and D.F.; (5) illegal questioning of A.F. and D.F.; (6) illegal questioning of D. Faccio
after he invoked his Miranda right to have counsel present; and (7) racial profiling. In
construing plaintiffs' complaint liberally, these allegations will be analyzed as claims made
pursuant to 42 U.S.C. § 1983.
1. False Arrest of D. Faccio
Plaintiffs allege that on December 15, 2009, D. Faccio was falsely arrested1 by
Eggleston and the Department. Defendants contend they had probable cause to arrest.
To establish a false arrest claim under § 1983, a plaintiff must show that the
defendant intentionally confined him without consent and without justification. Escalera v.
1
In their reply, plaintiffs phrase this allegation as unlawful im prisonm ent. False arrest and unlawful
im prisonm ent are synonym ous under New York law, and a § 1983 claim for false arrest is substantially the
sam e as a claim for false arrest under New York law. DeMeo v. Kean, 754 F. Supp. 2d 435, 443 (N.D.N.Y.
2010) (Hurd, J.).
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Lunn, 361 F.3d 737, 744 (2d Cir. 2004). Probable cause to arrest constitutes justification.
Id. Probable cause exists "when the arresting officer has knowledge or reasonably
trustworthy information of facts and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested has committed or is
committing a crime." Id.
The Faccios claim the arrest was the result of a false report that D. Faccio had a
gun. According to the complaint, "they [the police officers] said the principal2 said I had a gun
in the car." Lead Compl., 1. Plaintiffs submitted a copy of the statement made to police on
December 14, 2009, by a thirteen-year-old student. See Dkt. 25, Ex. A. The student alleged
that D. Faccio threatened him. Plaintiffs also attached a copy of the misdemeanor complaint
generated by Eggleston that charged D. Faccio with endangering the welfare of a child. See
Dkt. 25, Ex. B.
The police defendants claim there was probable cause to arrest D. Faccio based
on the student's statement. Plaintiffs contend the student's statement was false. As the
allegations in the complaint must be taken as true in a motion to dismiss, it must be assumed
that D. Faccio did not threaten the child, and the child lied to the police. Even assuming that
the child made a false allegation to the police, a person of reasonable caution would have
still believed the child's statement to be reasonably trustworthy as there was no apparent
reason to doubt the child's statement. Thus, based off of this statement, police had probable
cause to arrest as there was sufficient knowledge that D. Faccio had committed a crime.
2
In their com plaint against the police defendants, plaintiffs allege that the police told D. Faccio that
Reed m ade the report. In their com plaint against the school defendants and in their reply, plaintiffs allege
that Parker m ade the false report.
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Because police had probable cause based on the signed statement of the thirteen-year-old
alleging that D. Faccio threatened him, the false arrest claim will be dismissed.
2. Illegal Search of D. Faccio
Plaintiffs allege that D. Faccio was illegally searched after his arrest. As previously
discussed, the police had probable cause to arrest D. Faccio and his false arrest claim fails.
Searches incident to a lawful arrest are legal. See United States v. Robinson, 414 U.S. 218,
224, 94 S. Ct. 467, 472 (1973). Because D. Faccio's arrest was lawful, it was legal for the
police to search his person. Therefore, any claim alleging an illegal search of D. Faccio will
be dismissed.
3. Illegal Search of D. Faccio's Vehicle
Plaintiffs allege their vehicle was illegally searched. According to D. Faccio, "I
called my wife to pick up my car from a 2 hour parking. [G]o to find out the P.D. wanted to
search my car and towed it anyway. [W]ith a 2 hour parking spot they felt they had to tow my
car anyway." Lead Compl., 2. Defendants did not respond to this claim.
An illegal search of a vehicle is a violation of the Fourth Amendment, and a person
whose vehicle has been illegally searched by a state actor may make a claim under § 1983.
See Torres v. Vill. of Sleepy Hollow, 379 F. Supp. 2d 478, 485 (S.D.N.Y. 2005). Police have
authority to search a vehicle if they have probable cause to suspect the vehicle contains
evidence of criminal activity or if the arrestee is in reaching distance of the vehicle. See
Arizona v. Gant, 129 S. Ct. 1710, 1721 (2009). Police may also search an impounded
vehicle in accordance with standard police procedures (commonly referred to as an inventory
search). See United States v. Lopez, 547 F.3d 364, 369–70 (2d Cir. 2008).
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Taking plaintiffs' allegations as true, the car was towed from a legal parking place
and searched by the police. Furthermore, the defendants have not offered a justification for
the alleged search, and nothing suggests the police suspected the vehicle contained
evidence of criminal activity, nor was D. Faccio within reaching distance of the vehicle. To
the contrary, the car was towed and searched after D. Faccio was in custody at the police
station. To the extent that plaintiffs sufficiently pleaded a § 1983 claim for the illegal search
of their vehicle, the claim must be dismissed because, as discussed below, there are no
named defendants against whom to maintain this cause of action.
a. Sergeant Eggleston
The police defendants argue any claims against Eggleston must be dismissed
because he was not personally involved. They assert Eggleston did not physically arrest
D. Faccio and had no contact with him during the events on December 15, 2009. They
argue that his involvement was limited to taking a statement from the thirteen-year-old child.
In support of their position, defendants attached to their motion to dismiss an affidavit from
Detective Sergeant Peter Castertino of the Department who stated that he was the arresting
officer. Defs.' Mot. to Dismiss, Castertino Aff., Dkt. No. 23–3.
The personal involvement of defendants is an essential element of a § 1983 claim.
Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). "A plaintiff must allege a tangible
connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790
F.2d 260, 263 (2d Cir. 1986). There is no respondeat superior liability under § 1983, and a
defendant may not be held liable for constitutional violations merely because he or she holds
a high position of authority. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright,
21 F.3d at 501.
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The complaint states that "the glens falls police department and a police officer by
the name of CHRISTOPHER L EGGLESTON made an arrest on the day of 12/15/2009 ."
Lead Compl., 1. As explained above, the claims for false arrest and the illegal search of D.
Faccio will be dismissed because there was probable cause to arrest him and the search of
his personal was conducted pursuant to a lawful arrest. With respect to the alleged illegal
search of the Faccio's vehicle, the complaint states: "[G]o to find out the P.D. wanted to
search my car and towed it anyway." Lead Compl., 2. There are no allegations that
Eggleston was the one who searched the vehicle. Because plaintiffs have alleged no facts
supporting Eggleston's personal involvement in the alleged illegal vehicle search, the claim
against him will be dismissed.
b. Glen Falls Police Department
Defendants contend that all claims against the Department must be dismissed
because plaintiffs did not plead any facts suggesting the Department had a custom or policy
which caused officers to violate plaintiffs' constitutional rights.
A municipal agency may not be held liable under § 1983 by virtue of employing an
official who engages in unconstitutional actions. Monell v. Dep't of Soc. Serv. of N.Y., 436
U.S. 658, 691, 98 S. Ct. 2018, 2036 (1978). In order to impose liability on a municipality, a
plaintiff must identify a municipal policy or custom that caused the injury. Bd. of Cnty.
Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404, 117 S. Ct. 1382, 1388 (1997).
Furthermore, the plaintiff must demonstrate that the municipality, through deliberate conduct,
was the moving force behind the injury. Thus, plaintiff must establish a casual link between
the municipal action and the deprivation of rights. Id.
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Plaintiffs do not allege that there was any municipal policy or custom that led to the
alleged constitutional violations, as required by Monell. Therefore, all federal claims against
the Department, including the alleged illegal search of D. Faccio's vehicle, will be dismissed.
4. Violation of D. Faccio's Miranda Rights
According to the complaint, D. Faccio was questioned by the police after asserting
a request for counsel: "[A]lso I would like to add that when I asked for a lawyer they kept me
asking me questions." Lead Compl., 2 . Defendants did not address this allegation.
The Supreme Court has not established a civil cause of action for Miranda
violations pursuant to the Fifth Amendment, instead finding that Fifth Amendment violations
occur at trial. See Chavez v. Martinez, 538 U.S. 760, 767, 123 S. Ct. 1994, 2001 (2003)
(plurality opinion) ("The privilege against self-incrimination guaranteed by the Fifth
Amendment is a fundamental trial right of criminal defendants . . . a constitutional violation
occurs only at trial." (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 264, 110 S.
Ct. 1056, 1060 (1990)). Furthermore, Justice Souter's concurring opinion in Chavez
highlighted the policy danger of creating a civil damage remedy for Miranda violations: "The
most obvious drawback inherent in Martinez's purely Fifth Amendment claim to damages is
its risk of global application in every instance of interrogation producing a statement
inadmissible under Fifth and Fourteenth Amendment principles." Id. at 778, 123 S. Ct. at
2007 (Souter, J. concurring).
The Chavez holding left intact the Second Circuit's finding that "the remedy for a
violation of the right against self-incrimination is 'the exclusion from evidence of any ensuing
self-incriminating statements' and 'not a § 1983 action.'" Deshawn E. by Charlotte E. v. Safir,
156 F.3d 340, 346 (2d Cir. 1998) (quoting Neighbour v. Covert, 68 F.3d 1508, 1510–11 (2d
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Cir. 1995)); see also Blond v. City of Schenectady, No. 10-CV-0598, 2010 WL 4316810, at *4
(N.D.N.Y. Oct. 26, 2010) (McAvoy, J.) ("A Section 1983 claim cannot stand solely on the
basis of an alleged failure to administer Miranda warnings.").
Assuming that D. Faccio's allegations are true—that members of the Department
continued to interrogate him after he requested counsel—he would only have a remedy if
answers to these questions were used against him at trial. Therefore, his claim for a Miranda
rights violation will be dismissed.
5. Illegal seizure of D.F. and A.F.
Plaintiffs allege that D.F. and A.F. were illegally seized and detained at the police
station after D. Faccio's arrest. Defendants did not respond to this allegation. The complaint
provides: "I told the P.D. that I wanted my daughter [A.F.] to stay at the school till my wife
came out of work to pick her up instead they took my daughter to the precinct with my son."
Lead Compl., 2.
The Fourteenth Amendment protects parental rights as an aspect of substantive
due process. See Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 2060 (2000)
(plurality opinion) ("[I]t cannot now be doubted that the Due Process Clause of the
Fourteenth Amendment protects the fundamental right of parents to make decisions
concerning the care, custody, and control of their children."). Thus, state interference of
parental rights may be a constitutional violation. In analyzing such a due process claim, the
Second Circuit has found that a rational basis analysis is often sufficient. See Immediato v.
Rye Neck Sch. Dist., 73 F.3d 454, 460–62 (2d Cir. 1996) (rejecting that parents have a
fundamental constitutional right to exempt children from educational requirements they object
to on secular grounds); see also Leebaert v. Harrington, 332 F.3d 134, 140–43 (2d Cir. 2003)
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(refusing, post-Troxel, to apply strict scrutiny on state's interference with parents'
constitutional right to direct children's education).
Additionally, the doctrine of qualified immunity protects state actors from liability if
their conduct "does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known." Pearson v. Callhan, 555 U.S. 223, 231, 129 S. Ct.
808, 815 (2009). Even if the rights are clearly defined, "qualified or good faith immunity
might still be available as a bar to a plaintiff's suit if it was objectively reasonable for the
public official to believe that his acts did not violate those rights." Kaminsky v. Rosenblum,
929 F.2d 922, 925 (2d Cir. 1991). "Qualified immunity balances two important interests—the
need to hold public officials accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and liability when they perform their
duties reasonably." Pearson, 555 U.S. at 231, 129 S. Ct. at 815.
Other circuits have found that temporary care of minors by police after the arrest of
an adult caretaker is reasonable and can even be constitutionally mandated under certain
circumstances. The Fifth Circuit found that the temporary care of minors by arresting officers
can be an unavoidable consequence when a parent is lawfully arrested. See Witherspoon v.
United States, 838 F.2d 803, 807 (5th Cir. 1988). In fact, the Seventh Circuit found a
constitutional violation when police officers left minor children in dangerous circumstances
after arresting the children's uncle. See White v. Rochford, 592 F.3d. 381, 382–84 (7th Cir.
1979).
Members of the Department acted reasonably and perhaps even prudently by
maintaining temporary custody of the children. Further, because other courts have found
similar conduct to be constitutional, members of the Department who took the children into
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custody are protected by qualified immunity. Thus, the claim that D.F. and A.F. were illegally
seized will be dismissed.
6. Illegal Questioning of Minors D.F. and A.F.
Plaintiffs claim that the police illegally questioned their minor children without their
consent while the children were temporarily detained at the police station. Defendants argue
that any questioning was inconsequential as it was unrelated to any criminal investigation of
D. Faccio.
As previously stated, parental rights are constitutionally protected as an aspect of
substantive due process. Troxel, 530 U.S. at 66, 120 S. Ct. at 2060. However, the Second
Circuit has often applied a rational basis analysis if there is an alleged violation of this right.
See Immediato, 73 F.3d at 460–62; Harrington, 332 F.3d at 140–43. Furthermore, the
officers are entitled to qualified immunity if it was objectively reasonable that they believed
that their acts did not violate a constitutional right. Kaminsky, 929 F.2d at 925.
According to plaintiffs, the police asked their children several questions: (1) Why
did the family move to Glens Falls?; (2) Where does their father work?; (3) What school do
they attend?; and (4) What are the names of their teachers?. Lead Compl., 2. The
complaint notes that A.F. started to cry while being questioned.
Assuming that plaintiffs' allegations are true, the members of the Department are
entitled to qualified immunity. First, the questions were unrelated to D. Faccio's arrest for
endangering the welfare of a minor. Second, the children themselves were not under
investigation for any criminal behavior; instead, they were simply under temporary police
custody. Overall, there is no indication that the questioning of D.F. and A.F. was
unreasonable. Furthermore, even if the questioning violated D. Faccio's parental rights,
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there is no indication that this right was clearly established. Because the police questioning
was not unreasonable and no clearly established right was violated, the members of the
Department who questioned D.F. and A.F. are entitled to qualified immunity. Therefore, any
claims alleging the questioning of the minors constitutes a civil rights violation will be
dismissed.
7. Racial Profiling
Plaintiffs assert that D. Faccio's arrest was a result of racial profiling and that his
arrest set off a chain of events that prompted organizations including, inter alia, the middle
school, the Department of Social Services, and National Grid to discriminate against the
Faccios. Plaintiffs allege the existence of a racist conspiracy from statements made by the
Department during D. Faccio's questioning. According to plaintiffs,
[T]hey kept asking me questions about why did I move out here and why
am I out in glens falls. [T]his town aint meant for me and my family. I told
them I wanted to live along good life with my kids and wife so whats the
problem. [T]hey told me that when hispanic and blacks come out to G.F.3
to sell drugs.
Lead Compl., 2. Plaintiffs' allegations of racial profiling will be construed as a claim, pursuant
to § 1983, of selective prosecution in violation of the Equal Protection Clause of the
Fourteenth Amendment. Defendants contend that D. Faccio was lawfully arrested and not
selectively prosecuted because of race or ethnicity.
To allege a violation of the Equal Protection Clause based on selective prosecution,
a plaintiff must show: "(1) [that] the person, compared to others similarly situated, was
selectively treated; and (2) that such selective treatment was based on impermissible
3
Presum ably "G.F." is an abbreviation for Glens Falls.
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considerations such as race, religion, intent to inhibit or punish the exercise of constitutional
rights, or malicious or bad faith intent to injure a person." Freedom Holdings, Inc. v. Spitzer,
357 F.3d 205, 234 (2d Cir. 2004) (quoting Lisa's Party City, Inc. v. Town of Henrietta, 185
F.3d 12, 16 (2d Cir. 1999)).
Although plaintiffs allege that members of the Department made biased
statements, they do not make any factual allegations to support the conclusion that D. Faccio
was selectively treated. Instead, there was probable cause for D. Faccio's arrest due to the
signed statement made by the thirteen-year-old student who accused D. Faccio of
threatening him. Nothing suggests, except for plaintiffs' unsupported conclusions, that D.
Faccio was arrested because of his race or ethnicity. Even if the arresting officers had
improper views concerning certain racial or ethnic groups and made the biased statements
which plaintiffs allege, there are no factual allegations to connect these biased statements
and viewpoints with any selective treatment. Because plaintiffs do not offer any factual
allegations to support the conclusion that D. Faccio was selectively treated, any claim
sounding in selective prosecution will be dismissed.
B. Federal Law Claims Against School Defendants
Plaintiffs allege that the middle school, District, and the individual school
defendants violated minor-plaintiff D.F.'s constitutional rights during the 2009-10 school year
due to harassment by students, teachers, and staff that occurred every day or every other
day. Plaintiffs allege the harassment was "on the basis of race, color, orientation, nationality,
ethnic[ity], sex, [and] origin" and list several specific incidents of harassment. Member
Compl., Dkt. No. 1, 1. In addition, plaintiffs contend that they notified middle school and
District officials of the harassment and bullying, but this only led to the escalation of the
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harassment and bullying. Finally, plaintiffs allege Parker filed a false report accusing
D. Faccio of carrying a gun in retaliation for his concerns about bullying and harassment that
were advanced during a meeting with Parker.
1. Harassment and Bullying Claims
Plaintiffs allege the harassment and bullying was motivated by discriminatory
animus based on their race, color, orientation, nationality, ethnicity, and sex.4 In reading the
complaint most favorably to plaintiffs, these allegations could be construed as claims under
20 U.S.C. § 1681(a) (commonly referred to as "Title IX"); 42 U.S.C. § 1981; or 42 U.S.C.
§ 2000d (commonly referred to as "Title VI"). The allegations can also be construed as
claims under 42 U.S.C. § 1983 for violations of the Fourteenth Amendment, specifically the
Equal Protection Clause and substantive due process. Furthermore, as plaintiffs allege that
both staff and students harassed and bullied D.F., there are claims against the staff for
harassing D.F. directly, as well as a claim for the staff's deliberate indifference to the
harassment by D.F.'s fellow students. Finally, plaintiffs claim the District failed to supervise
the staff of the middle school. Defendants contend that plaintiffs' conclusions lack the
support of factual allegations.
a. Section 1981, Title VI, and Title IX Claims
Section 1981 provides that "all persons within the jurisdiction of the United States
shall have the same right . . . to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens." 42 U.S.C. § 1981 (2006).
Title VI provides that "[n]o person in the United States shall, on the ground of race, color, or
4
Plaintiffs do not specify which category or categories are the basis for the discrim ination.
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national origin, be excluded from participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving Federal financial assistance." 42
U.S.C. § 2000d (2006). In order to support a claim under § 1981 or Title VI, a plaintiff must
show, inter alia, that: (1) the defendant discriminated on a prohibited basis; (2) the
discrimination was intentional; and (3) the discrimination was a substantial or motivating
factor for the defendant's action. Lopez v. Bay Shore Union Free Sch. Dist., 668 F. Supp. 2d
406, 413–14 (E.D.N.Y. 2009) (citing Tolbert v. Queens Coll., 242 F.3d 58, 69 (2d Cir. 2001)).
In addition, teachers, administrators, and boards of education can be liable for student-onstudent racial harassment if their deliberate indifference to racial harassment can be
interpreted as discriminatory. See Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 140–41
(2d Cir. 1999).
Title IX encompasses "teacher-on-student hostile educational environment sexual
harassment." Hayut v. State Univ. of N.Y., 352 F.3d 733, 749 (2d Cir. 2003) (citing Franklin
v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 75, 112 S. Ct. 1028, 1037 (1992)). Furthermore, a
school may be liable under Title IX if it is deliberately indifferent to student-on-student sexual
harassment. See Gant, 195 F.3d at 140.
Iqbal requires that legal conclusions in pleadings be supported by factual
allegations, 129 S. Ct. at 1949–50, which suggests that discriminatory animus be pleaded
with particularity. See Lopez, 668 F. Supp. 2d at 414. Generally, facts that support a
reasonable inference of animus include long-term practices of discrimination or comments
made by individuals that suggest bias. Id.
Plaintiffs allege that the harassment and bullying were motivated by bias on the
grounds of race, color, sexual orientation, nationality, ethnicity, sex, and origin. However,
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they do not allege facts to support this legal conclusion.5 Plaintiffs do not provide any
incidents where employees or students at the middle school discriminated against any
student—including D.F.—due to race, ethnicity, or gender. Neither do plaintiffs allege any
incidents where employees or students at the middle school made comments that suggested
bias.
Therefore, the conclusion that D.F. was harassed based on his race, color, sexual
orientation, nationality, ethnicity, sex, or origin has no factual support and all claims under
§ 1981, Title VI, and Title IX will be dismissed.
b. Section 1983 Equal Protection Claims
A § 1983 equal protection claim under the Fourteenth Amendment does not require
animus. See Lopez, 668 F. Supp. 2d at 419. Instead, a plaintiff must show: "(1) [that] the
person, compared to others similarly situated, was selectively treated; and that such selective
treatment was based on impermissible considerations such as race, religion, intent to inhibit
or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a
person." Freedom Holdings, Inc., 357 F.3d at 234 (quoting Lisa's Party City, Inc., 185 F.3d at
16). A violation of the Equal Protection Clause by a state actor in the school setting can
either be through direct action or due to deliberate indifference to student-on-student
harassment. See Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, passim, 129 S. Ct.
788, passim (2009) (finding equal protection claim under § 1983 for student-on-student
sexual harassment due to deliberate indifference).
5
The only alleged incident that contains any allegations supporting an inference of a racially, genderbased, or ethnically discrim inatory m otive was an incident where D.F. was harassed by an unknown driver of
a pick-up truck who followed D.F. off school grounds. There are no allegations that this individual is
connected in any m anner with the m iddle school or the District.
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Plaintiffs only allege one specific instance of selective treatment—that teacher
McPhillip punished D.F. for a "writing" when other students who had created similar "writings"
were not punished. However, plaintiffs do not allege that McPhillip's selective treatment of
D.F. was based on D.F.'s race, color, gender, sexual orientation, or ethnicity. Additionally,
plaintiffs do not allege that McPhillip's actions were based on any malicious or bad faith
intent. As plaintiffs do not allege that McPhillip's actions were based on impermissible
considerations, they do not properly plead a § 1983 claim. Therefore, any § 1983 claim
against McPhillip for a equal protection violation will be dismissed.
Finally, as the McPhillip incident was the only alleged instance of selective
treatment, it is the only incident that merits an equal protection analysis. In the other alleged
instances, plaintiffs do not argue that D.F. was selectively treated—by either students,
teachers, administration, or staff of the middle school—compared to similarly situated
students. Therefore, there are no valid equal protection claims for direct harassment of D.F.
by teachers, staff, or administration, nor are there any valid claims for deliberate indifference.
c. Section 1983 Substantive Due Process Claims
In construing the pleadings liberally, plaintiffs allege substantive due process
violations of D.F.'s rights. The complaint includes two allegations of excessive physical force,
an allegation of a teacher yelling and spitting on D.F., and an allegation that D.F. was
deprived of food during lunch detention. Furthermore, the alleged lack of response by the
middle school and District to the claims of harassment and bullying can also be construed as
substantive due process violations.
For a claim of a substantive due process violation to survive a motion to dismiss, a
plaintiff must "allege governmental conduct that 'is so egregious, so outrageous, that it may
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fairly be said to shock the contemporary conscience.'" Velez v. Levy, 401 F.3d 75, 93 (2d
Cir. 2005) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8, 118 S. Ct. 1708,
1717 n.8 (1998)).
i. Excessive Force Claims
Plaintiffs allege that Reed used excessive force against D.F.. They claim that Reed
"harassed our son in the School Cafeteria, cursed, stated profanity at my son, grabbed
[D.F.'s] arm hard and said did you just tell me to fuck myself?" Member Compl., 1. Plaintiffs
allege that D.F. suffered stress, feared that Reed would use physical force again, and
avoided eating breakfast at the cafeteria in the future to avoid Reed. Plaintiffs also allege an
incident where school custodian Dwyer placed his hands on D.F. and forced him to sit down
in the cafeteria. Defendants contend that these actions did not rise to the level of
constitutional violations.
Excessive force by a government actor—including school employees—is a violation
of substantive due process if it shocks the conscience. Johnson v. Newburgh Enlarged Sch.
Dist., 239 F.3d 246, 252–53 (2d Cir. 2001). Factors that determine whether actions
constitute excessive force include "the need for the application of force, the relationship
between the need and the amount of force that was used, the extent of injury inflicted, and
whether force was applied in a good faith effort to maintain or restore discipline or maliciously
and sadistically for the very purpose of causing harm." Id. at 251–52 (citing Metzger v.
Osbeck, 841 F.2d 518, 520 (3d Cir. 1988)). Examples of excessive force in the school
setting include grabbing a student, slamming him against a wall, and holding him there,
Knicrumah v. Albany City Sch. Dist., 241 F. Supp. 2d 199, 210–11 (N.D.N.Y. 2003) (Hurd,
J.), and grabbing a student by the neck, dragging him across the floor, slamming him against
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the bleachers four times, ramming his head against a metal fuse box, and punching him in
the face. Johnson, 239 F.3d 246, at 249–53. Conversely, in Smith v. Half Hollow Hills Cent.
Sch. Dist., 298 F.3d 168 (2d Cir. 2002), the Second Circuit held that a teacher slapping a
seventh-grade student in the face after the student accidently broke an egg during a
laboratory exercise was not an example of excessive force. Id. at 172–74. The Second
Circuit refrained, however, from creating a per se rule that a slap would never constitute
excessive force. Id. at 172–73.
In the Reed incident, Reed allegedly grabbed D.F. by the arm and said, "did you
just tell me to fuck myself?" Reed's statement shows that he was under the belief that D.F.
had swore at him.6 School principals are expected to maintain student discipline and cannot
tolerate students using profanity. Therefore, Reed had a good faith rationale to restore
discipline by quickly confronting D.F.. Grabbing D.F.'s arm may have been an inappropriate
response, but it was part of his good faith effort to restore discipline. The extent of the
inflicted injury was not substantial, leaving only a mark. Even if there was no need to apply
physical force, which must be assumed for the purposes of this motion, the lack of significant
injury and the good faith rationale for the action show that Reed's alleged actions did not
constitute excessive force. Finally, Reed's alleged conduct is less egregious than the
defendant in Smith—who slapped a seventh-grade student for accidental clumsiness during
a lab experiment. Thus, the excessive force claim against Reed will be dismissed.
In the Dwyer incident, Dwyer put his hands on D.F. and forced him to sit down. It is
unclear whether Dwyer had any justification for this action; therefore, it must be assumed for
6
W hether or not D.F. swore at Reed is unknown but based on plaintiffs' allegations, Reed thought
D.F. had swore at him . Even if Reed's perception was incorrect, he still had a good-faith basis to discipline
D.F..
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the purposes of this motion that he had none. However, D.F. does not allege any injury or
emotional trauma from this event and there are no facts to support an inference that Dwyer
intended to cause harm. Altogether, an examination of the case law—especially
Smith—shows that Dwyer's alleged actions do not rise to the level of shocking the conscious.
Therefore, Dwyer did not use excessive force against D.F. and this claim will be dismissed.
ii. Spitting Incident Claim
Plaintiffs allege that teacher Zilch yelled and spat on D.F. Defendants did not
address this allegation on substantive due process grounds.
Other circuits have found that verbal abuse alone is not normally a constitutional
violation—even in the context of teachers belittling students. See Doe v. Gooden, 214 F.3d
952, 955 (8th Cir. 2000); G.C. v. Sch. Bd. of Seminole Cnty., 639 F. Supp. 2d 1295, 1304
(M.D. Fla. 2009). Intentional spitting has not been deemed to be a constitutional violation, at
least in the prison setting. See Tafari v. McCarthy, 714 F. Supp. 2d 317, 348 (N.D.N.Y.
2010) (Hurd, J.) (finding that corrections officer who spat chewing tobacco in the face of a
prisoner did not violate the Eighth Amendment). There is no case law suggesting that
spitting on a student is the type of behavior that would shock the conscious.
If plaintiffs' allegations are true that Zilch intentionally spat on D.F., her actions may
have been offensive, but not a violation of D.F.'s substantive due process rights. Therefore
this claim will be dismissed.
iii. Deprivation of Lunch as Punishment
Plaintiffs allege that on certain days, D.F. received lunch detention in Parker's office
and was prohibited from eating lunch. Defendants did not respond to this allegation.
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For government action to violate substantive due process it must be so egregious
and outrageous as to shock the conscience. Levy, 401 F.3d at 93. Deprivation of lunch can
be an element of a constitutionally prohibited punishment. See Orange v. Cnty. of Grundy,
950 F. Supp. 1365, 1371–73 (E.D. Tenn. 1996) (finding that placing schoolchildren in
isolation for an entire school day without access to lunch or toilet facilities was
unconstitutional). There is no authority, however, that a school withholding a student's lunch,
by itself, is a constitutional violation. In the prison setting, deprivation of food can violate the
Eighth Amendment, but only if it creates a serious danger to an inmate. See Butler v.
Hogue, No. 9:08:-CV-264, 2010 WL 4025886, at *3 (N.D.N.Y. Oct. 13, 2010) (Sharpe, J.)
(citing Beckford v. Portuondo, 151 F. Supp. 2d 204, 213 (N.D.N.Y. 2001) (Kahn, J.)).
However, deprivation of a single meal is not a constitutional violation. Id. at *3 ("Deprivation
of only two meals over a two-day period is insufficient to make out a constitutional claim.").
D.F.'s health was never alleged to be in danger. Parker depriving D.F. of lunch as
punishment does not rise to a level that shocks the conscious. Therefore, any § 1983 claim
based on the withholding of lunch will be dismissed.
iv. Deliberate Indifference to Student-on-Student Harassment
Plaintiffs allege that they notified middle school and District staff of the harassment
and bullying of D.F. by other students. However, they contend that the harassment and
bullying did not cease and actually escalated after they brought attention to the problem.
Although plaintiffs allege that the harassment was due to race, color, orientation, nationality,
ethnicity, and sex, they do not support this conclusion with any facts. As noted previously,
plaintiffs do not allege any facts to support their legal conclusion that D.F. was bullied and
harassed by other students on discriminatory grounds; therefore, no claim based on a
- 24 -
violation of the Equal Protection Clause or any statute, such as Title IX, due to deliberate
indifference can be supported. The allegation that the middle school failed to prevent the
harassment of D.F. by other students will be construed, however, as a § 1983 claim that
D.F.'s substantive due process rights were violated.
Generally, "a State's failure to protect an individual against private violence simply
does not constitute a violation of the Due Process Clause." DeShaney v. Winnebago Cnty.
Dep't of Soc. Servs., 489 U.S. 189, 197, 109 S. Ct. 998, 1004 (1989). However, the State
owes a duty to protect persons in custody, and deliberate indifference to private violence
against those in custody can be a violation of the Due Process Clause. Id. at 199–200, 109
S. Ct. at 1005–06. Although the Second Circuit is silent on whether children are in custody
while at school, which would impose a duty on the State to protect them from harm, see
DiStiso v. Town of Wolcott, 750 F. Supp. 2d 425, 446 (D. Conn. 2010), courts in the Northern
District of New York have held that schoolchildren are not in state custody. See Santucci v.
Newark Valley Sch. Dist., No. 3:05-CV-0971, 2005 WL 2739104, at *3 (N.D.N.Y. Oct. 24,
2005) (McAvoy, J.); Patenaude v. Salmon River Cent. Sch. Dist., No. 3:03-CV-1016, 2005
WL 6152380, at *11 (N.D.N.Y. Feb. 16, 2005) (McAvoy, J.). Additionally, other circuits have
found that schoolchildren are not in state custody while at school. See Hasenfus v.
LaJeunesse, 175 F.3d 68, 71–72 (1st Cir. 1999); Doe v. Hillsboro Ind. Sch. Dist., 113 F. 3d
1412, 1415 (5th Cir. 1997); Wyke v. Polk Cnty. Sch. Bd., 129 F.3d 560, 569 (11th Cir. 1997);
Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 911 (6th Cir. 1995); Dorothy J. v. Little Rock
Sch. Dist., 7 F.3d 729, 731–32 (8th Cir. 1993); D.R. v. Middle Bucks Area Vocational Tech.
Sch., 972 F.2d 1364, 1368–72 (3d Cir. 1992); Maldonado v. Josey, 975 F.2d 727, 731–32
(10th Cir. 1992); J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 272–73 (7th Cir. 1990).
- 25 -
Therefore, schools do not owe a duty to protect students from harm from fellow students
under the Due Process Clause.
The defendants did not owe a duty to D.F. to protect him from harm from fellow
students because he was not in state custody while at school. Thus, any claims alleging
deliberate indifference to student-on-student harassment pursuant to the Due Process
Clause will be dismissed.
v. District's Failure to Supervise Middle School Employees
Plaintiffs allege that they notified District staff, including the superintendent, of the
harassment by teachers, administration, and staff. They allege that the harassment
escalated after they made their complaints. These statements will be construed as
allegations that the District was deliberately indifferent to D.F.'s constitutional rights by a
failure to supervise theory—specifically that the District failed to investigate and remedy
repeated claims of constitutional violations.
A municipality, such as a school district, "cannot be liable under § 1983 on a
respondeat superior theory." Monell, 436 U.S. at 691, 98 S. Ct. at 2036. Instead, "municipal
liability under § 1983 occurs, if at all, at the level of policymaking." Ciraolo v. City of N.Y.,
216 F.3d 236, 242 (2d Cir. 2000). Therefore, a plaintiff must establish that a "violation of his
constitutional rights resulted from a municipal custom or policy." Vann v. City of N.Y., 72
F.3d 1040, 1049. This policy "must be either facially unconstitutional or unconstitutional as
applied because of the municipality's deliberate indifference to the rights of persons with
whom municipal employees may encounter." Knicrumah, 241 F. Supp. 2d at 206 (internal
citations and quotation marks omitted).
- 26 -
The Faccios have not, however, sufficiently pleaded that D.F.'s constitutional rights
were violated by the staff at the middle school. As plaintiffs have not alleged facts supporting
any violation of constitutional rights, they cannot establish a claim that a violation of D.F.'s
constitutional rights resulted from a custom or policy of the District. Accordingly, any claim
that the District violated D.F.'s substantive due process rights under a deliberate indifference
theory will be dismissed.
2. Section 1983 First Amendment Claim
Plaintiffs claim that in December 2009,7 they met with middle school officials to file
complaints against teachers who had harassed D.F.. On December 13, 2009, D. Faccio met
with Parker to discuss two specific incidents of harassment against D.F.—one by an
unknown pick-up truck driver and the other by members of the middle school's football team.
D. Faccio alleges that after the December 13 meeting in which he complained of the
harassment, Parker filed a false report with the police. This claim will be construed as a First
Amendment retaliation claim. Defendants contend that no First Amendment violation
occurred.
To allege a free speech claim under § 1983, a plaintiff must show: (1) an interest
protected by the First Amendment; (2) that the defendants' actions were motivated or
substantially caused by the exercise of the plaintiff's First Amendment right; and (3) the
defendants' actions effectively chilled the exercise of the plaintiff's First Amendment right.
Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001).
7
The exact date of this m eeting is unknown. Two m eetings occurred in Decem ber 2009. One of
the m eetings occurred on Decem ber 13, 2009.
- 27 -
Plaintiffs do not allege that their free speech rights were chilled as a result of
D. Faccio's arrest. In fact, plaintiffs continued to exercise their First Amendment rights by
writing letters to the District, the New York Civil Liberties Union, and the President of the
United States of America regarding the harassment of D.F.. Furthermore, plaintiffs allege
that they have spoken with Reed, Parker, the superintendent of the District, and a person
named "Mr. Cherry" from the superintendent's office regarding the harassment of D.F..8
Assuming Parker filed a false report, her actions did not have any effect on plaintiffs' exercise
of their First Amendment rights. Thus, the free speech retaliation claim will be dismissed.
3. Malicious Prosecution Claim against Parker under § 1983
Plaintiffs' allegation that Parker filed a false report against D. Faccio can also be
construed as a malicious prosecution claim under § 1983.
Citizens can be deemed to have initiated criminal proceedings against a suspect if
they "instigated the arrest by being particularly insistent, or in some cases, providing false
information to police." Fabrikant v. French, 722 F. Supp. 2d 249, 254 (N.D.N.Y. 2010)
(Hurd, J.) (citations omitted). To establish a malicious prosecution claim, a plaintiff must
show that: (1) the defendant initiated a prosecution against plaintiff; (2) the defendant lacked
probable cause to believe the proceeding could succeed; (3) the defendant acted with
malice; (4) the prosecution was terminated in the plaintiff's favor; and (5) there was a
sufficient post-arraignment liberty restraint to implicate the plaintiff's Fourth Amendment
rights. Id. at 253 (citing Rohman v. N.Y. City Transit Auth., 215 F.3d 208, 215 (2d Cir.
2000)).
8
It is unclear on what dates the m eetings were held. It is possible that all of the m eetings occurred
prior to Decem ber 15, 2009. However, the letters to the New York Civil Liberties Union, the District, and
President Obam a were written after D. Faccio's arrest.
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Taking plaintiffs' allegations as true, Parker made a false report to the police that
D. Faccio had a gun. However, he was arrested for endangering the welfare of a child—not
for any sort of weapon possession offense. There is no indication that Parker's allegations
were responsible for D. Faccio's prosecution, and the arrest report that defendants submitted
in support of their motion to dismiss does not mention a gun. Additionally, D. Faccio does
not allege that the prosecution was terminated in his favor or that he suffered a postarraignment seizure. Thus, plaintiffs do not state a valid claim of malicious prosecution
against Parker and the claim will be dismissed.
C. State Law Claims Against Police Defendants and School Defendants
Plaintiffs list a variety of claims under state law against both sets of defendants.
Both sets of defendants contend that plaintiffs did not file a notice of claim.
Under New York Law, a notice of claim is a condition precedent to file a tort claim
against a public corporation, N.Y. Gen Mun. § 50-e, and against police officers acting within
the scope of their employment. N.Y. Gen. Mun. § 50-j; see also LaGrange v. Ryan, 142 F.
Supp. 2d 287, 295 (N.D.N.Y. 2001) (Hurd, J.). It is also a condition precedent to maintain a
tort action against a school district or one of its employees. N.Y. Educ. Law § 3813(2); see
also TC v. Valley Cent. Sch. Dist., --- F. Supp. 2d. ---, No. 7:09-CV-9036, 2011 WL 1345181,
at *20 (S.D.N.Y. Mar. 30, 2011). Failure to satisfy this requirement is grounds for dismissal.
Id. Finally, federal courts have no authority to permit a plaintiff to file a late notice of claim.
Id.
Plaintiffs did not file a notice of claim within ninety days of the occurrence of the
complaints. Therefore, all state law claims will be dismissed.
- 29 -
D. Police Defendants' Counterclaim for Attorney's Fees
The police defendants counterclaimed for attorney's fees pursuant to 42 U.S.C. §
1988, asserting that plaintiffs' claims have no basis in fact and/or law. Under § 1988(b), a
court has the discretion to award reasonable attorney's fees to a "prevailing party" in, inter
alia, civil rights litigation. To achieve "prevailing party" status, a plaintiff must secure a
judicially sanctioned material alteration of the legal relationship between the parties. See
e.g., Shepherd v. Wenderlich, 746 F. Supp. 2d 430, 432 (N.D.N.Y. 2010) (Hurd, J.).
While the police defendants' motion to dismiss will be granted and all claims
against them dismissed, they are not entitled to an award of attorney's fees. The complaint
was not brought entirely without merit nor in bad faith. Accordingly, their counterclaim for
attorney's fees pursuant to § 1988 will be dismissed.
V. CONCLUSION
Plaintiffs' claim that D. Faccio was falsely arrested will be dismissed as the police
defendants had probable cause to arrest. Because the police defendants searched
D. Faccio incident to his lawful arrest, the illegal search claim will be dismissed. Plaintiffs'
claim that the police defendants illegally searched his vehicle will also be dismissed because
there are no facts alleging that Eggleston was personally involved, and plaintiffs did not
allege a municipal policy or custom by the Department which caused their injuries, as
required by Monell. The claim for a Miranda violation will also be dismissed because no civil
remedy exists. The claims that plaintiffs D.F. and A.F. were illegally seized and questioned
will be dismissed because the police defendants are protected by qualified immunity.
Because plaintiffs do not provide any factual allegations to support their claim of selective
prosecution due to racial profiling, this claim will be dismissed.
- 30 -
All of plaintiffs' § 1981, Title VI, and Title IX claims against the school defendants
will be dismissed because they failed to support these claims with factual allegations. Since
plaintiffs do not allege that any treatment was based on impermissible considerations, their
equal protection claim that D.F. was selectively treated by McPhillip will be dismissed. The
First Amendment retaliation claim against Parker will also be dismissed as plaintiffs' First
Amendment rights were not chilled. Further, because D. Faccio's arrest was unrelated to
Parker's alleged false report, the malicious prosecution claim against Parker will be
dismissed.
The excessive force, spitting incident, and deprivation of lunch substantive due
process claims will also be dismissed because these incidents do not shock the conscious.
Plaintiffs' substantive due process claim that the middle school staff failed to prevent studenton-student harassment will be dismissed because children are not in state custody while at
school. Because the middle school staff did not violate plaintiffs' constitutional rights, any
claims against the District for failure to supervise the middle school staff will also be
dismissed.
All state law claims will be dismissed because plaintiffs failed to file a notice of
claim as required by New York law. Finally, the police defendants' counterclaim for attorney's
fees pursuant to § 1988 will be dismissed because the lawsuit was not brought in bad faith or
without merit.
Therefore it is
ORDERED that
1. Defendants Christopher Eggleston and Glens Falls Police Department's motion
to dismiss is GRANTED;
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2. Defendants Glens Falls City School District, Glens Falls Middle School,
Christopher Reed, Hank Dwyer, Kate McPhillip, Laurey Parker, and Anne Zilch's motion to
dismiss is GRANTED;
3. The complaint is DISMISSED in its entirety; and
4. Defendants Christopher Eggleston and Glens Falls Police Department's
counterclaim for attorney's fees pursuant to 42 U.S.C. § 1988 is DISMISSED.
The Clerk is directed to enter judgment accordingly and close the file.
IT IS SO ORDERED.
Dated: August 22, 2011
Utica, New York.
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