Frierson v. Troy City School District et al
Filing
45
MEMORANDUM-DECISION AND ORDER granting in part and denying in part 38 Motion to Dismiss: The Court hereby ORDERS that Defendants' motion to dismiss (Dkt. No. 38) is DENIED in part as to Plaintiff's First Amendment claim, and it is GRANTE D in part as to all of Plaintiff's other claims; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 3/15/2018. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
TRUMAN FRIERSON,
Plaintiff,
vs.
1:17-cv-0044
(MAD/CFH)
TROY CITY SCHOOL DISTRICT BOARD OF
EDUCATION; ENLARGED CITY SCHOOL
DISTRICT OF TROY; JOHN CARMELLO,
Superintendent; KATHY AHERN, Attorney for the
Enlarged City School District of Troy; JOE MARIANO;
Principal of Troy High School; PAUL BEARUP, Varsity
Girls Basketball Coach; PAUL REINISH, Director
of Physical Education for Troy High School
Defendants.
____________________________________________
APPEARANCES:
OF COUNSEL:
TRUMAN FRIERSON
3 Sterling Avenue
Troy, NY 12180
Plaintiff pro se
LEMIRE, JOHNSON & HIGGINS, LLC
2534 Route 9 - P.O. Box 2485
Malta, New York 12020
Attorneys for Defendants
GREGG T. JOHNSON, ESQ.
APRIL J. LAWS, ESQ.
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Truman Frierson commenced this action against Defendants Paul Bearup, Paul
Reinish, Joe Mariano, John Carmella, Kathy Ahern, the Enlarged City School District of Troy
(the "School District"), and the Troy City School District Board of Education, alleging both state
and federal claims. See Dkt. No. 1-1. Presently before the Court is Defendants' motion to dismiss
for failure to state a claim. See Dkt. No. 38. For the following reasons, the motion is granted in
part and denied in part.
II. BACKGROUND
Although it is often disorganized and difficult to comprehend, the following facts are
derived from Plaintiff's amended complaint. Plaintiff alleges that his daughter ("FD")—a star
high school basketball player—was treated unfairly by her coach, Defendant Bearup. See Dkt.
No. 26 at 13-16. Defendant Bearup allegedly screamed at FD, attempted to disrupt her college
recruiting process, and denied her adequate playing time. See id. Plaintiff communicated his
concerns to the school's principal, the superintendent of the School District, and a number of other
school employees, but Plaintiff was not satisfied with their response. See id. Eventually,
Defendant Reinish, the director of physical education for Troy High School, informed Plaintiff
that he would be prohibited from attending future basketball games. See id. at 23. Plaintiff's
complaint is not entirely clear about the nature or the cause of the ban.
On January 13, 2017, the same day he was informed of the ban, Plaintiff initiated this
action. See Dkt. No. 1. After the Court granted leave to amend, Plaintiff filed the amended
complaint on June 2, 2017. See Dkt. Nos. 25, 26. Defendants moved to dismiss the amended
complaint, and Plaintiff submitted an incoherent opposition with 103 pages of documents
attached as an exhibit. See Dkt. Nos. 38, 40.
III. DISCUSSION
A.
Standard of Review
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v.
Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal
2
sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all
reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493
F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not
extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Although a court's review of a motion to dismiss is generally limited to the facts presented in the
pleading, the court may consider documents that are "integral" to that pleading, even if they are
neither physically attached to, nor incorporated by reference into, the pleading. See Mangiafico
v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282
F.3d 147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is
entitled to relief[,]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).
Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief
above the speculative level," see id. at 555 (citation omitted), and present claims that are
"plausible on [their] face," id. at 570. "The plausibility standard is not akin to a 'probability
requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."
Iqbal, 556 U.S. at 678 (citation omitted). "Where a complaint pleads facts that are 'merely
consistent with' a defendant's liability, it 'stops short of the line between possibility and
plausibility of "entitlement to relief."'" Id. (quoting Twombly, 550 U.S. at 557). Ultimately,
"when the allegations in a complaint, however true, could not raise a claim of entitlement to
relief," Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [its] claims across the line
from conceivable to plausible, the[ ] complaint must be dismissed[,]" id. at 570.
3
However, complaints by pro se parties are accorded more deference than those filed by
attorneys. See Erickson v. Pardus, 551 U.S. 89, 127 (2007). As such, Twombly and Iqbal
notwithstanding, this Court must continue to "construe [a complaint] broadly, and interpret [it] to
raise the strongest arguments that [it] suggests." Weixel v. Bd. of Educ., 287 F.3d 138, 146 (2d
Cir. 2002).
B.
Pleading Requirement
In support of their motion to dismiss, Defendants argue that Plaintiff’s Complaint fails to
conform to the basic pleading requirements of Federal Rule of Civil Procedure 8 (“Rule 8"). Rule
8 requires that “each averment of a pleading shall be simple, concise, and direct” in order to
provide the defendant with notice of the claims being brought against him or her. See Fed. R.
Civ. P. 8. The Second Circuit has stated that
when a complaint does not comply with the requirement that it be
short and plain, the court has the power, on its own initiative or in
response to a motion by the defendant, to strike any portions that
are redundant or immaterial . . . or to dismiss the complaint.
Dismissal, however, is usually reserved for those cases in which
the complaint is so confused, ambiguous, vague, or otherwise
unintelligible that its true substance if any, is well disguised.
Salahuddin v. Cuomo, 861 F.2d 40, 41-42 (2d Cir. 1998) (citations omitted). "Although courts
must give pro se pleadings a liberal construction, 'the basic requirements of Rule 8 apply to selfrepresented and counseled plaintiffs alike." Tafari v. Rock, No. 10-CV-729, 2012 WL 1340799,
*3 (W.D.N.Y. Apr. 18, 2012) (quoting Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir. 2004)).
In this case, the amended complaint is not simple, concise, or direct, as required by Rule
8. Instead, Plaintiff's forty-four page amended complaint is incoherent, rambling, and nearly
unreadable. Nevertheless, in consideration of Plaintiff's status as a pro se litigant, and in light of
the Second Circuit's recent decision in Johnson v. Perry, 859 F.3d 156, 171 (2d Cir. 2017), the
4
Court will address Plaintiff's most discernable claims: that his rights under the First Amendment
and the Fourteenth Amendment were violated when he was banned from attending FD's high
school basketball games. Plaintiff's remaining claims are dismissed for failure to comply with
Rule 8.
C.
First Amendment
The First Amendment states that "Congress shall make no law . . . abridging the freedom
of speech." U.S. Const. amend. I. "[T]he First Amendment means that government has no power
to restrict expression because of its message, its ideas, its subject matter, or its content." Police
Dept. of City of Chicago v. Mosley, 408 U.S. 92, 95 (1972). It is "common ground" that the First
Amendment "does not guarantee the right to communicate one's views at all times and places or
in any manner that may be desired." Heffron v. Int'l Soc'y for Krishna Consciousness, 452 U.S.
640, 647 (1981). A violation occurs only when constitutionally protected speech is restricted, and
the government's justification for the restriction is insufficient. See Frisby v. Schultz, 487 U.S.
474, 479 (1988).
The Supreme Court has set forth a three-step, forum-based test for determining whether a
state actor violated a plaintiff's First Amendment right to free speech. See Cornelius v. NAACP
Legal Def. & Educ. Fund, 473 U.S. 788, 797 (1985). A court must determine "(1) whether
plaintiff's speech is protected by the First Amendment; (2) the nature of the forum: public,
designated or limited public, or nonpublic; and (3) whether the defendant's justifications for
limiting the plaintiff's speech satisfy the requisite standard." Piscottano v. Town of Somers, 396
F. Supp. 2d 187, 200 (D. Conn. 2005) (citing Cornelius 473 U.S. at 797).
1. Protected Speech
5
The First Amendment's protection of free speech, made applicable to the states through
the Fourteenth Amendment, extends to a broad range of speech and expressive conduct. See, e.g.,
Hurley v. Irish-American Gay, Lesbian and Bisexual Grp. of Bos., 515 U.S. 557 (1995). "The
right of peaceable assembly is a right cognate to those of free speech and free press and is equally
fundamental." Perry, 859 F.3d at 171 (quoting De Jonge v. Oregon, 299 U.S. 353, 364 (1937)).
Here, Plaintiff had a limited right of access to school property. See id. at 173 ("[P]recedents as to
whether a parent has a First Amendment right of access to school property are scarce. If such a
right exists—and we conclude that in some circumstances it does—it is not limitless"); see also
Cyr v. Addison Rutland Supervisory Union, 955 F. Supp. 2d 290, 294 (D. Vt. 2013) ("Members of
the public retain First Amendment rights with respect to school property, but only to a limited
extent").
2. Forum Analysis
The appropriate level of judicial scrutiny depends on the nature of the forum subject to the
regulation, although "the same analytical framework applies whether the First Amendment right
being exercised is speech . . . or other 'expressive activity' such as assembly." Perry, 859 F.3d at
172-73 (citation omitted). The Second Circuit has divided government property into four
different categories for the purposes of forum analysis: (1) the traditional public forum, (2) the
designated public forum, (3) the limited public forum, and (4) the nonpublic forum. See R.O. ex
rel. Ochshorn v. Ithaca City Sch. Dist., 645 F.3d 533, 539 (2d Cir. 2011).
First, "traditional public fora" are places such as "streets and parks which 'have
immemorially been held in trust for the use of the public, and . . . have [generally] been used for
purposes of assembly, communicating thoughts between citizens, and discussing public
questions.'" Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983) (quoting
6
Hague v. CIO, 307 U.S. 496, 515 (1939)). "Speech finds its greatest protection in traditional
public fora, and government may not alter their public status without completely changing the
fora's use, e.g. converting a public park to an office building." Make the Road By Walking, Inc. v.
Turner, 378 F.3d 133, 142 (2d Cir. 2004). "Content-based restrictions on speech in traditional
public fora are subject to strict scrutiny." Hotel Emps. & Rest. Emps. Union Local 100 of N.Y. v.
City of N.Y. Dep't of Parks & Recreation, 311 F.3d 534, 545 (2d Cir. 2002) (citations omitted).
The second category, the designated public forum, "'refers to government property which,
although not a traditional public forum, has been "intentionally opened up for that purpose."'"
Hershey v. Goldstein, 938 F. Supp. 2d 491, 507 (S.D.N.Y. 2013) (quotations and citation
omitted). Although the government may decide to close a designated public forum, "so long as a
forum remains public, government regulation of speech within it 'is subject to the same
limitations as that governing a traditional public forum.'" Make the Road by Walking, Inc., 378
F.3d at 143 (quotation omitted).
Third, the limited public forum is often analyzed as a subset of the designated public
forum and as a nonpublic forum opened up for specific purposes. See Byrne v. Rutledge, 623
F.3d 46, 55 n.8 (2d Cir. 2010) ("[T]he law of [the Second Circuit] describes a limited public
forum as both a subset of the designated public forum and a nonpublic forum opened to certain
kinds of speakers or to the discussion of certain subjects") (internal quotation marks and citations
omitted). A limited public forum is created "'where the government opens a nonpublic forum but
limits the expressive activity to certain kinds of speakers or to the discussion of certain subjects.'"
Make the Road By Walking, Inc., 378 F.3d at 143 (quotations omitted). If expressive activity in a
nonpublic forum does not fall within the limited category for which the forum has been opened,
7
then restrictions on speech need only be reasonable and viewpoint neutral. See Hotel Emps., 311
F.3d at 545.
The final category, nonpublic forums, includes all remaining public property that has not
been opened to the public for expressive activity. See id. (citation omitted). Speech may be
restricted in nonpublic fora so long as the restriction is reasonable and viewpoint neutral. See id.
(citation omitted). "A school is generally considered a nonpublic forum, as it is a property that is
not traditionally open to the public for communication." Johnson v. Perry, 140 F. Supp. 3d 222,
227 (D. Conn. 2015) (quoting De Jonge, 299 U.S. at 364). Accordingly, "the government . . .
may limit access or content based on subject matter and speaker identity so long as the
distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint
neutral." Id. The Supreme Court has held that "no mandate in our Constitution leaves States and
governmental units powerless to . . . protect the public from the kind of boisterous and threatening
conduct that disturbs the tranquility of buildings that require peace and quiet to carry out their
functions, such as courts, libraries, schools, and hospitals." Carey v. Brown, 442 U.S. 455, 47071 (1980).
In this case, the scope of the ban against Plaintiff is not entirely clear from the face of the
complaint. However, Plaintiff alleges at least that he was banned from attending his daughter's
basketball games at her high school. See Dkt. No. 26 at 23. "A school is generally considered a
nonpublic forum, as it is a property that is not traditionally open to the public for
communication." DeFabio v. E. Hampton Union Free Sch. Dist., 658 F. Supp. 2d 461, 473
(E.D.N.Y. 2009). However, during interschool basketball games, the Troy High School
gymnasium was open to the public and was thus a limited public forum. See Perry, 859 F.3d at
8
175 ("With respect to interschool basketball games, we think it clear that the Capital Prep
gymnasium during such games was a limited public forum").
3. Defendants' Justifications
In Johnson v. Perry, the Second Circuit faced a set of facts very similar to the facts
alleged in this case. Johnson, whose daughter ("JD") was on the girls high school basketball
team, was engaged in a dispute with Perry, the school's principal, over JD's role on the basketball
team. See id. at 161. Johnson accused Perry of bullying JD into staying on the varsity basketball
team. See id. After a meeting between Johnson and Perry erupted into a heated argument, Perry
banned Johnson from all school events on and off campus, with the exception of JD's
commencement ceremony. See id. at 163. As a result, Johnson was not able to pick JD up from
school, attend the final presentation of an academic project, or come to the school's "senior night"
celebration. See id. at 644. When Johnson attempted to attend school events—either on or off
campus—he was removed by security. See id. Johnson filed a complaint in the District of
Connecticut alleging, among other causes of action, that Perry's actions violated Johnson's First
Amendment right of assembly and his due process rights under the Fourteenth Amendment. See
id. at 164.
Perry moved for summary judgment on Johnson's First Amendment claims, and the
district court denied the motion. Perry, 140 F. Supp. 3d at 227. The district court held that the
school was a nonpublic forum, and that the school could limit access so long as the limits were
"reasonable in light of the purpose served by the forum and are viewpoint neutral." See
id. (quoting Byrne v. Rutledge, 623 F.3d 46, 54 (2d Cir. 2010)). But the district court found that
there was a disputed issue of material of fact as to whether the ban was reasonable or viewpoint
neutral. See id. ("[W]hether plaintiff posed a danger to staff and children at the school is a
9
disputed fact. Equally disputed is whether defendant banned plaintiff from school property based
on a disagreement with the message plaintiff was conveying").
On appeal, the Second Circuit concluded that although a school is generally a nonpublic
forum, a school gymnasium that is open to the public "stands on a different footing" and becomes
a limited public forum. See Perry, 859 F.3d at 175.1 Therefore, "unless there is a clear and
present danger of disruptions such as disorder, riot, obstruction of the event, or immediate threat
to public safety, the school may regulate access to its gymnasium when it is being used as a
limited public forum only if the restrictions are reasonable and viewpoint neutral." Id. The
Second Circuit went on to affirm the district court's finding that a rational juror could "find that
Perry's ban of Johnson from [school] basketball games was neither viewpoint-neutral nor
reasonable." Id.
At this stage in the litigation, the Court cannot distinguish the facts alleged in the amended
complaint from the Second Circuit's holding in Perry. As in Perry, Plaintiff alleges that his
daughter was bullied by a school official, and that he was banned from attending his daughter's
basketball games because he complained about the bullying. Drawing all reasonable inferences in
Plaintiff's favor, he has plausibly alleged that the ban was not reasonable and viewpoint neutral.
Although Plaintiff's First Amendment claim may not ultimately survive a motion for summary
judgment, the Court cannot grant Defendants' motion to dismiss based on the allegations in the
amended complaint.
The Second Circuit divided Johnson's First Amendment cause of action into three
different claims: (1) the ban from non-sports events on school property, (2) the ban from sports
events on school property, and (3) the ban from all school events beyond school property. See
Perry, 859 F.3d at 172. The Second Circuit analyzed each of those claims under different
standards. In this case, however, Plaintiff alleges only that he was banned from sports events on
school property.
1
10
4. Qualified Immunity
"Under the doctrine of qualified immunity, 'government officials performing discretionary
functions generally are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.'" Tracy v. Freshwater, 623 F.3d 90, 95-96 (2d Cir. 2010) (quoting Kelsey v. County
of Schoharie, 567 F.3d 50, 60-61 (2d Cir. 2009)). Courts engage in a two-part inquiry to
determine whether the doctrine of qualified immunity bars a suit against government officials.
See Jones v. Parmley, 465 F.3d 46, 55 (2d Cir. 2006). First, a court must consider whether the
facts, construed in favor of the party asserting the injury, "demonstrate a violation of a
constitutional right." See id. (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Second, a court
must also determine "whether the officials' actions violated 'clearly established statutory or
constitutional rights of which a reasonable person would have known.'" Id. (quoting Hope v.
Pelzer, 536 U.S. 730, 739 (2002)).
Defendants argue that all claims against individual Defendants should be dismissed
because all individual Defendants are entitled to qualified immunity. However, the Second
Circuit addressed precisely this issue in Perry and ruled that "the right not to be excluded, based
on viewpoint differences or because of possible annoyance, from sports events to which the
public was invited was clearly established." Perry, 859 F.3d at 176. Therefore, the Court finds
that the individual Defendants are not entitled to qualified immunity with respect to Plaintiff's
First Amendment claim.
5. Municipal Liability
"[A] municipality can be held liable under Section 1983 if the deprivation of the plaintiff's
rights under federal law is caused by a governmental custom, policy, or usage of the
11
municipality." Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); accord Matusick v.
Erie Cty. Water Auth., 757 F.3d 31, 62 (2d Cir. 2014). "Absent such a custom, policy, or usage, a
municipality cannot be held liable on a respondeat superior basis for the tort of its employee."
Jones, 691 F.3d at 80; see also Connick v. Thompson, 563 U.S. 51, 60 (2011) (holding that under
Section 1983 governmental bodies are not vicariously liable for their employees' actions). Where
there is no official policy or custom, a plaintiff may still establish municipal liability "if the trier
of fact finds that the decision in question was made by a municipal officer who has final authority
to establish municipal policy." Cyr v. Addison Rutland Supervisory Union, 60 F. Supp. 3d 536,
553 (D. Vt. 2014).
Defendants move to dismiss any claims against the School District on the grounds that
Plaintiff failed to show that any injury he suffered was a result of a municipal policy or custom.
See Dkt. No. 38-1 at 17. However, various school officials—including the superintendent of the
School District, the director of physical education, and the attorney for the School
District—appear to have been involved in the decision to ban Plaintiff from school basketball
games. See Dkt. No. 26 at 13-14. Whether or not a superintendent is a final policymaker for the
purposes of establishing municipal liability turns on whether the harm that befell the plaintiff was
under the superintendent's control. See T.E. v. Pine Bush Cent. Sch. Dist., 58 F. Supp. 3d 332,
374 (S.D.N.Y. 2014). "Conversely, '[w]here the final authority for a particular matter is not
within the [superintendent's] control or is subject to review by another official or entity, the
[superintendent] is not the final policy with respect to that matter.'" Id. (first alteration in
original) (quoting Eldridge v. Rochester City Sch. Dist., 968 F. Supp. 2d 546, 562 (W.D.N.Y.
2013)).
12
Here, it is plausible that the superintendent was the final policymaker with regard to
Plaintiff's ban. Additionally, Defendants' motion to dismiss does not address this issue; in fact,
Defendants' motion scarcely addresses Plaintiff's First Amendment claim at all. Therefore,
Defendants' motion to dismiss the School District as a Defendant in this case is denied.
D.
Due Process
The Court also reads Plaintiff's amended complaint to assert a due process claim. Once
again, the district court's treatment of these issues in Perry is instructive.2 The district court found
that Johnson's ban from all school events except commencement violated "the fundamental right
of a parent to make decisions concerning the care, custody, and control of his child." Perry, 140
F. Supp. 3d at 228 (citing Troxel v. Granville, 530 U.S. 57, 66 (2000)). Therefore, the ban
deprived Johnson of a "recognized liberty interest." Id.; see also Troxel, 530 U.S. at 66 ("In a
long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of
Rights, the 'liberty' specially protected by the Due Process Clause includes the righ[t] . . . to direct
the education and upbringing of one's children") (quoting Washington v. Glucksberg, 521 U.S.
702, 720 1997)). In this case, however, the ban against Plaintiff was limited to his attendance of
basketball games and did not implicate his fundamental liberty interest in the care, custody, and
management of his child. Accordingly, Plaintiff's due process claim is dismissed.
III. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
The Second Circuit did not review the district court's due process finding because the
issue was not specifically raised in the defendant's notice of appeal. See Perry, 859 F.3d at 16768.
2
13
ORDERS that Defendants' motion to dismiss (Dkt. No. 38) is DENIED in part as to
Plaintiff's First Amendment claim, and it is GRANTED in part as to all of Plaintiff's other
claims; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 15, 2018
Albany, New York
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?