Frierson v. Troy City School District et al

Filing 58

MEMORANDUM-DECISION AND ORDER granting 48 Motion for Reconsideration: The Court hereby ORDERS that Defendant Ahern's motion for reconsideration (Dkt. No. 48) of the Court's March 15, 2018 Memorandum-Decision and Order (Dkt. No. 45) is GRANTED; and the Court further ORDERS that Defendant Ahern is hereby DISMISSED as a party in this action; 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 6/8/2018. (Copy served via regular and certified mail)(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;
JOE MARIANO, Principal of Troy High School;
PAUL BEARUP, Varsity Girls Basketball Coach; and
PAUL REINISH, Director of Physical Education for Troy High School,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

TRUMAN FRIERSON
3 Sterling Avenue
Troy, New York 12180
Plaintiff pro se
LEMIRE, JOHNSON & HIGGINS, LLC
648 Plank Road, Suite 204
Clifton Park, New York 12065
Attorneys for Defendants

GREGG T. JOHNSON, 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. Defendants filed a motion to dismiss for failure to state a
claim on July 12, 2017. See Dkt. No. 38. On March 15, 2018, this Court denied Defendants'

motion in part with regard to Plaintiff's First Amendment claim and granted Defendants' motion
to dismiss for the remaining causes of action. See Dkt. No. 45 at 14. Presently before the Court
is Defendant Ahern's motion for reconsideration. See Dkt. No. 48. For the following reasons, the
motion is granted.
II. BACKGROUND
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. Plaintiff alleges that
Defendant Bearup screamed at FD, attempted to interfere with her college athletic recruiting
process, and denied her adequate playing time. See id. Plaintiff notified the school's principal,
the superintendent of the School District, and a number of other school employees regarding his
concerns, but was not satisfied with the response he received. 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. The reason for and nature of
this ban is not entirely clear from the complaint.
On January 13, 2017, when 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. See Dkt. No.
38.
III. DISCUSSION
A.

Standard of review
Motions for reconsideration proceed in the Northern District of New York under Local

Rule 7.1(g). See Maye v. New York, No. 1:10-CV-1260, 2011 WL 4566290, *2 n.6 (N.D.N.Y.
Sept. 29, 2011). "'In order to prevail on a motion for reconsideration, the movant must satisfy
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stringent requirements.'" Id. (quoting C–TC 9th Ave. P'ship v. Norton Co. (In re C–TC 9th Ave.
P'ship), 182 B.R. 1, 2 (N.D.N.Y. 1995)). A motion for reconsideration "will generally be denied
unless the moving party can point to controlling decisions or data that the court overlooked –
matters, in other words, that might reasonably be expected to alter the conclusion reached by the
court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). "Accordingly, earlier
decisions in a case 'may not usually be changed unless there is an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error or prevent a
manifest injustice.'" In re Edny Cathode Ray Tube Antitrust Cases, No. 17-CV-4504, 2017 WL
4351503, *1 (E.D.N.Y. Sept. 29, 2017) (quoting Official Comm. of Unsecured Creditors of Color
Tile, Inc. v. Coopers & Lybrand LLP, 322 F.3d 147, 167 (2d Cir. 2003)). "[A] motion to
reconsider should not be granted where the moving party seeks solely to relitigate an issue
already decided." Shrader, 70 F.3d at 257.
B.

Reconsideration
Defendants' motion to dismiss for failure to state a claim was filed on July 12, 2017. See

Dkt. No. 38. The Court denied that motion in part with respect to Plaintiff's First Amendment
claim. See Dkt. No. 45 at 14. In denying the motion to dismiss with regard to the First
Amendment claim, this Court found that, when drawing all reasonable inferences in Plaintiff's
favor, Plaintiff's allegation that the alleged ban was not reasonable and viewpoint neutral is
plausible. See id. at 10. Therefore, the First Amendment claim survived against all Defendants.
See id.
In the motion to dismiss, Defendants argued that Defendants Carmello, Ahern, Mariano,
Bearup and Reinish are entitled to qualified immunity. See Dkt. No. 38 at 25. This Court
addressed those arguments in the March order and found, after examining controlling precedent,
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"that the individual Defendants are not entitled to qualified immunity with respect to Plaintiff's
First Amendment claim." Dkt. No. 45 at 11. Defendants then argued that "Plaintiff's Complaint
is patently insufficient to support any individual capacity claim against Defendants based upon
his failure and/or inability to plead 'personal involvement' and/or 'state action' which are required
to establish § 1983 claims." See Dkt. No. 38 at 26.
Defendant Ahern argues that the motion for reconsideration must be granted in order to
avoid clear error and prevent manifest injustice. See Dkt. No. 48 at 4. Defendant Ahern raises
the following arguments in support of her motion for reconsideration: (1) "Defendant Ahearn Has
No Authority Under Law to Ban Plaintiff From School Grounds," (2) "Defendant Ahearn is Not a
'State Actor,'" and (3) "The Complaint Fails to Allege Defendant Ahearn's 'Personal
Involvement.'" See id. at 5-7. Plaintiff has not opposed the motion for reconsideration.
The sworn "Affadavit of Kathy A. Ahearn" makes it clear that Defendant Ahern is an
employee of the private law firm, Guercio & Guercio, LLP, and is not an employee or official of
the Troy City School District. See id. at 4. As Defendant Ahern is not an employee or official of
the School District, it cannot be said that she is a government actor. Plaintiff's complaint does not
include any allegations that Defendant Ahern prevented Plaintiff from attending basketball games
at Troy High School or that she was involved in the decision that barred Plaintiff from the
premises. Defendant Ahern's status as a private individual with no personal involvement in any
of the First Amendment allegations contained within the complaint requires that Defendant
Ahern's that Plaintiff's First Amendment claim against Defendant Ahern be dismissed.
IV.

CONCLUSION

After carefully reviewing the record in this matter and the applicable law, and for the
reasons stated herein, the Court hereby
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ORDERS that Defendant Ahern's motion for reconsideration (Dkt. No. 48) of the Court's
March 15, 2018 Memorandum-Decision and Order (Dkt. No. 45) is GRANTED; and the Court
further
ORDERS that Defendant Ahern is hereby DISMISSED as a party in this action; 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: June 8, 2018
Albany, New York

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