In the Matter of a Special Proceeding of JF v. Carmel Central School District et al

Filing 53

OPINION & ORDER re: 34 MOTION for Summary Judgment filed by John Fink, Kevin Carroll, Carmel Central School District, Ryan Dall. For the foregoing reasons, Defendants' motion for summary judgment is GRANTED and the Court dec lines to exercise jurisdiction over the remaining state law claims. The Court respectfully directs the Clerk to terminate the motion at ECF No. 34, enter judgment in favor of Defendants, and to close the case. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 3/1/2016) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JF, Individually and on behalf ofDF, a Minor,
Plaintiff,
-against-

OPINION & ORDER

CARMEL CENTRAL SCHOOL DISTRICT;
RY AN DALL, Individually; KEVIN CARROLL,
Individually; and JOHN FINK, Individually.

13-cv-8830 (NSR)

'

Defendants.
NELSON S. ROMAN, United States District Judge
Plaintiffs JF and DF bring this action against Defendants Carmel Central School District
(the "School District"), Ryan Dall, Kevin Carroll, and John Fink alleging violations of the due
process and equal protection clauses of the Fourteenth Amendment, and Title VI of the Civil
Rights Act of 1964, 42 U .S.C. § 2000d, as well as state law claims for breach of contract,
negligence, assault, and battery.
Defendants now move for smmnary judgment on Plaintiffs' federal claims and request
that this Court decline to exercise supplemental jurisdiction over the remaining state law claims.
For the following reasons, Defendants' motion is GRANTED and the Court declines to exercise
jurisdiction over the remaining state law claims.
BACKGROUND

The following facts are taken from the Complaint and the parties' respective Local Civil
Rule 56. I submissions, exhibits, and affidavits.
At the time the Complaint was filed, DF was a sophomore at Carmel High School in
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(Id. at ¶ 2.) Ryan Dall was a social studies teacher at Carmel High School at the time of the
events in question. (Id. ¶ 5.) During the same time period, Kevin Carroll and John Fink were
the Principal and Assistant Principal of Carmel High School, respectively. (Id. ¶¶ 6-7.)
The events at issue occurred on or about September 24, 2012 and February 26, 2013.
Plaintiffs also reference additional events in their opposition papers and related submissions that
occurred after the filing of the Complaint. The relevant events are summarized below.
1. The Events of September 24, 2012
On September 24, 2012, DF and another student, JM, were involved in a fight at Carmel
High School. Although DF claims that JM initiated the fight by shoving him, DF admits that he
threw the first punch, hitting JM in the face. (Pls.’ 56.1 1 ¶¶ 17 2-18; Declaration of Maurizio
Savoiardo, Docket No. 35 (“Savoiardo Decl.”), Ex. E, at 96:12-13.)
The fight arose “over a girl” named Nicole, who DF previously dated. (Savoiardo Decl.,
Ex. E, at 75:10-15; Pls.’ 56.1 ¶ 12.) 3 DF sent text messages to JM at some point prior to the
fight, instructing JM to “[t]ell your girl don’t disrespect me . . . or we’re going to have
problems.” (Savoiardo Decl., Ex. E, at 79:13-18.) DF does not recall, however, why he felt
disrespected by Nicole. (Id. at 78:5-9.) In those same text messages, DF threatened to harm JM

1
Plaintiffs’ 56.1 Statement is deficient in many respects, requiring the Court to deem a significant number
of Defendants’ statements of fact admitted for purposes of this motion. First, many of Plaintiffs’ denials do not
specifically controvert Defendants’ proposed undisputed statements of fact and are largely unresponsive to
Defendants’ assertions. Second, at least some of the evidence cited by Plaintiffs is either (1) not included in the
record before the Court or (2) does not support the contradictory statements made by Plaintiffs. Statements falling
into these categories will be deemed admitted for purposes of this motion pursuant to Loc. Civ. R. 56.1(c)-(d).
Finally, Plaintiffs assert in response to a number of Defendants’ statements that they do not have the specific
knowledge or information necessary to admit or deny the statement. Such responses function as admissions under
Loc. Civ. R. 56.1. See Universal Calvary Church v. City of New York, No. 96 CIV. 4606 (RPP), 2000 WL 1745048,
at *2 n.5 (S.D.N.Y. Nov. 28, 2000); Aztar Corp. v. NY Entertainment, LLC, 15 F. Supp. 2d 252, 254 n.1 (E.D.N.Y.
1998).
2
Plaintiffs do not specifically deny that DF threw the fight punch, instead stating that JM “initiated the first
contact.” In any event, Plaintiffs’ cited evidence has not been submitted to the Court.
3
Although Plaintiffs deny this fact, it is directly contradicted by DF’s sworn testimony. Moreover,
Plaintiffs’ cited evidence has not been submitted to the Court.

2

in various ways; threatened to steal his belongings; and attempted to extort money from him in
exchange for not seriously harming him. (See Savoiardo Decl., Ex. M (DF wrote: “u deserve a
good ass kicking”; “ima break ur bones”; “u either getting ur ass kicked or coughing up
500dollars two options pick now”; “I been waiting to beat that ass how they gonna like u with 2
teeth”; “I’m taking ur shoes phone chains everything breaking ur shit lil bitch”.)) 4
After the fight was broken up, Assistant Principal Fink escorted DF back to his office.
(Pls.’ 56.1 ¶ 19.) Once there, Fink asked DF what happened; why it happened; if DF was ok;
and if DF wanted to see the nurse. (Id. ¶ 22.) Although the parties dispute whether DF admitted
to Fink that he searched for JM and instigated the fight, (id. ¶ 23), and whether DF stated that the
fight would not be over until he put JM in the hospital, (id. ¶ 26), DF admitted that he sent
threatening text messages to JM prior to the fight. (Pls.’ 56.1 ¶ 24; see also Savoiardo Decl., Ex.
E, at 79:13-18, Ex. M.) 5
Fink then decided to search DF and his backpack, purportedly as a result of DF’s
continued threats to harm JM. (Pls.’ 56.1 ¶ 52.) 6 After searching DF’s backpack, Fink informed
DF that he was going to search his person. (Pls.’ 56.1 ¶ 54.) DF protested, at which time Deputy
Sheriff Claire Pierson, the Carmel High School Resource Officer, informed DF that she and Fink
had the right to search him. (Id. ¶¶ 51, 57, 58.) At this point, Pierson claims that DF handed her

4

Although DF denies sending these text messages in a sworn affidavit, (see Affidavit of DF, Docket No.
42, ¶¶ 3-5) the Court finds that no reasonable juror could conclude that he did not send the text messages. The first
message in the chain of text messages matches DF’s sworn testimony describing the message he sent to JM; the text
messages were sent from DF’s cellular phone number, (see Savoiardo Decl., Ex. E, at 84-85); DF testified that no
one else had access to his phone at the time, (id.); and DF only provides a hypothetical and conclusory reason as to
why he did not send the text messages. (See Affidavit of DF ¶ 5 (“I understand that it is possible to send text
messages from a computer, where the sender can state any phone number he or she desires as the outgoing
number.”) Plaintiffs fail to point to any evidence in the record that the text messages were falsified or tampered
with, leaving the Court with only DF’s self-serving, hypothetical, and conclusory statements, which the Court will
not credit in deciding this motion.
5
Although Plaintiffs deny this fact, their cited evidence does not contradict Defendants’ statement.
6
The Court is aware that Plaintiffs dispute whether DF continued to threaten harm to JM.

3

a pair of pliers from his pocket. (Id. ¶ 59.) DF claims that Pierson shoved her hand into his
pocket and removed the pliers. (Id. ¶ 60.)
DF was ultimately suspended for five days for assaulting JM. (Pls.’ 56.1 ¶¶ 10 7, 68.) JM
was not suspended, as the School District determined he was not at fault. (Id. ¶ 69.)
2. The Events of February 26, 2013
On February 26, 2013, DF was searching Carmel High School for his cellular phone. (Id.
¶¶ 80, 83.) DF attempted to enter a class in which he was not currently a student, but was
stopped by Ryan Dall, a teacher who was on hall monitor duty at the time. (Id. ¶¶ 80-81.) Dall
asked DF whether he was a student in the class and DF responded that he was not. (Id. ¶¶ 8283.) Dall then instructed DF to return to his current class. (Id. ¶ 84.)
DF refused to return to class, prompting Dall to position himself between DF and the
classroom door. (Id. ¶ 85.) The parties dispute whether Dall then shoved DF multiple times or
merely put his arm in between DF and the door. (Id.) Next, Dall purportedly informed the class’
teacher, Ms. Flynn, not to let “this boy” – referring to DF – into the classroom. (Id. ¶ 88.) DF
asserts that Dall called him “boy” in a pejorative and discriminatory manner. (Compl. ¶ 41.)
When Dall attempted to close the door after speaking to Ms. Flynn, DF stuck his foot in the
doorway to keep it open. (Pls.’ 56.1 ¶ 89.) 8 Dall then purportedly “guided” DF back with his
arm to shut the door. (Id. ¶ 90.) DF jumped back and told Dall to take his hands off of him.
(Id.)
Principal Carroll interviewed Ms. Flynn after the incident, who stated that she did not see
Dall touch DF in any way or speak inappropriately to him. (Id. ¶¶ 91-93.)

7

Plaintiffs do not specifically deny that DF assaulted JM and do not cite to evidence that contradicts
Defendants’ statement.
8
Although Plaintiffs deny this fact, their cited evidence does not contradict Defendants’ statement.

4

3. The Events of March 11, 2014
On March 11, 2014, JM sent DF a text message in which he used a racial slur to refer to
DF. (Id. ¶ 94.) After receiving the text message, DF entered the classroom in which JM was
sitting and punched him. (Id. ¶ 96.) DF was suspended for five days for punching JM; JM was
suspended for two days for using a racial slur. (Id. ¶¶ 97-98.)
4. Events Involving Ms. Romanovsky
Two incidents involving DF’s science teacher, Ms. Romanovsky, are at issue in this
matter. The dates on which these incidents occurred are not clearly stated in the parties’
submissions.
First, Romanovsky purportedly accused DF of cheating because DF finished his exam
before every other student in his class. (Id. ¶¶ 70-71, 146.) Despite her accusation, DF passed
the class and was never disciplined for cheating. (Id.)
Second, DF claims that Romanovsky would not let him go to the bathroom during class,
while permitting other students to do so. (Id. ¶ 145.) This refusal followed purported
accusations by Romanovsky that DF took too long to return from the nurse’s office after
obtaining a medical note for gym class. (Id. ¶ 73.) DF did not recall how long he was out of
class when he went to the nurse’s office. (Id. ¶ 74.) Neither DF nor his father could recall
whether they ever made an allegation that this treatment was a result of DF’s race. (Id. ¶ 75.)
DF was not disciplined as a result of this incident. (Id. ¶ 78.)

5

STANDARD ON A MOTION FOR SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides: “The court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving
party bears the initial burden of pointing to evidence in the record, “including depositions,
documents [and] affidavits or declarations,” id. at 56(c)(1)(A), “which it believes demonstrate[s]
the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The moving party may also support an assertion that there is no genuine dispute by
“showing . . . that [the] adverse party cannot produce admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1)(B). If the moving party fulfills its preliminary burden, the onus shifts to
the non-moving party to identify “specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal citation and quotation marks
omitted). A genuine dispute of material fact exists when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id. at 248; accord Benn v. Kissane, 510 F.
App’x 34, 36 (2d Cir. 2013) (summary order). Courts must “constru[e] the evidence in the light
most favorable to the non-moving party and draw[ ] all reasonable inferences in its favor.”
Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (internal
quotation marks omitted). In reviewing the record, “the judge’s function is not himself to weigh
the evidence and determine the truth of the matter,” nor is it to determine a witness’s credibility.
Anderson, 477 U.S. at 249. Rather, “[t]he inquiry performed is the threshold inquiry of
determining whether there is the need for a trial.” Id. at 250.
Summary judgment should be granted when a party “fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will

6

bear the burden of proof at trial.” Celotex, 477 U.S. at 322. The party asserting that a fact is
genuinely disputed must support their assertion by “citing to particular parts of materials in the
record” or “showing that the materials cited do not establish the absence . . . of a genuine
dispute.” Fed. R. Civ. P. 56(c)(1). “Statements that are devoid of any specifics, but replete with
conclusions, are insufficient to defeat a properly supported motion for summary judgment.”
Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999). The nonmoving party “may not
rely on conclusory allegations or unsubstantiated speculation.” FDIC v. Great Am. Ins. Co., 607
F.3d 288, 292 (2d Cir. 2010) (internal citation and quotation marks omitted). Moreover, “[a nonmoving party’s] self-serving statement, without direct or circumstantial evidence to support the
charge, is insufficient to defeat a motion for summary judgment.” Fincher v. Depository Trust &
Clearing Corp., No. 06 Cv. 9959 (WHP), 2008 WL 4308126, at *3 (S.D.N.Y. Sept. 17, 2008)
aff’d, 604 F.3d 712 (2d Cir. 2010) (citing Gonzales v. Beth Israel Med. Ctr., 262 F. Supp. 2d
342, 353 (S.D.N.Y. 2003)).
DISCUSSION
1. Monell Liability
Plaintiffs allege Fourteenth Amendment procedural due process and equal protection
claims against the School District. It is well settled, however, that “[g]overnment officials may
not be held liable for the unconstitutional conduct of their subordinates under a theory of
respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Rather, a municipal entity
can only be held vicariously liable under § 1983 if the “execution of the government’s policy or
custom . . . inflicts the injury.” Monell v. Dep’t of Social Servs. of the City of N.Y., 436 U.S. 658,
694 (1978). Thus, Monell dictates that any § 1983 claim against a municipal entity must be
premised on the theory that the municipal actor’s allegedly unconstitutional “acts were

7

performed pursuant to a municipal policy or custom.” Patterson v. Cnty. of Oneida, 375 F.3d
206, 226 (2d Cir. 2004); see generally Monell, 436 U.S. at 692-94.
Courts in this Circuit apply a two prong test for § 1983 claims brought against a
municipal entity. Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (internal
citation omitted). First, the plaintiff must “prove the existence of a municipal policy or custom
in order to show that the municipality took some action that caused his injuries beyond merely
employing the misbehaving officer.” Id. (internal citation omitted). Second, the plaintiff must
establish a “‘direct causal link between a municipal policy or custom and the alleged
constitutional deprivation.’” Hayes v. Cnty. of Sullivan, 853 F. Supp. 2d 400, 439 (S.D.N.Y.
2012) (quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989)).
To satisfy the first requirement, a plaintiff must allege the existence of:
(1) a formal policy which is officially endorsed by the municipality; (2) actions
taken or decisions made by government officials responsible for establishing
municipal policies which caused the alleged violation of the plaintiff’s civil
rights; (3) a practice so persistent and widespread that it constitutes a custom or
usage and implies the constructive knowledge of policy-making officials; or (4) a
failure by official policy-makers to properly train or supervise subordinates to
such an extent that it amounts to deliberate indifference to the rights of those with
whom municipal employees will come into contact.
Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996) (internal citations and quotation
marks omitted); see also Brandon v. City of New York, 705 F. Supp. 2d 261, 276-77 (S.D.N.Y.
2010) (quoting Moray and updating citations to cases). A plaintiff is not required to identify an
express rule or regulation in order to establish a Monell claim, and a court may infer a municipal
policy from acts or omissions of the municipality’s policy makers, but in the absence of other
evidence, a “single incident of errant behavior is an insufficient basis for finding that a municipal
policy caused plaintiff’s injury.” Sarus v. Rotundo, 831 F.2d 397, 402-03 (2d Cir. 1987); see
also DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (“[A] single incident alleged in a complaint,
8

especially if it involved only actors below the policy-making level, does not suffice to show a
municipal policy.”) (quoting Ricciuti v. N.Y. City Transit Auth., 941 F.2d 119, 123 (2d Cir.
1991)) (internal quotation marks omitted); see also City of St. Louis v. Praprotnik, 485 U.S. 112,
123, 125 (1988) (plurality opinion) (explaining that only municipal officials with “final
policymaking authority” concerning particular activities giving rise to plaintiff’s claims “may by
their actions subject the government to § 1983 liability”) (internal citation omitted). “In the end,
therefore, a plaintiff must demonstrate that, through its deliberate conduct, the municipality was
the moving force behind the alleged injury.” Hayes, 853 F. Supp. 2d at 439 (quoting Roe v. City
of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008)) (internal quotation marks omitted).
Plaintiffs’ Complaint and opposition to the instant motion is littered with references to
the School District’s purported policies or customs, but as far the Court can discern Plaintiffs
point to five pieces of evidence to demonstrate that the School District had a policy or custom of
discriminating against African-American students. (Pls.’ Opp. at 19, 20-22.) The evidence
includes: (1) the fight between DF and JM, which occurred on September 24, 2012, for which
JM was not suspended; (2) “racial remarks” made by one student to DF and another student on
January 26, 2012, where the offending student “received only an in-school suspension, which
shows indifference to this severe offense,” (id. at 22); (3) Assistant Principal McKiernan’s
purported testimony in this matter “that everyone has some racism inside of them,” (id.); (4) the
fight between DF and JM on March 11, 2014, purportedly precipitated by JM’s use of a racial
slur, for which JM was suspended from school for two days; and (5) Ms. Romanovsky’s refusal
to permit DF to use the bathroom during her class on one occasion. Id.
Regardless of the veracity of Plaintiffs’ assertions, there is simply insufficient evidence in
the record for a reasonable jury to determine that the School District’s conduct was so “persistent

9

and widespread . . . [and] so permanent and well settled as to constitute a custom or usage with
the force of law, and thereby generate municipal liability.” Sorlucco v. New York City Police
Dep’t, 971 F.2d 864, 870-71 (2d Cir. 1992). At best, Plaintiffs assert that the record contains
five isolated instances of purportedly discriminatory conduct. Plaintiffs’ failure to show a
persistent and widespread course of conduct is, on its own, sufficient to dismiss this claim as a
matter of law. Id. at 870.
Moreover, reviewing each incident makes it even clearer that Plaintiffs cannot
demonstrate the existence of a municipal policy or custom. First, it is undisputed that the School
District found JM was not at fault in the altercation. (Pls.’ 56.1 ¶ 69.) There is absolutely no
evidence in the record indicating that JM’s lack of suspension had anything to do with his race.
Second, with respect to the students who made racial remarks referenced by Plaintiffs, it is
undisputed that the School District suspended each of the students. Although Plaintiffs argue
that the discipline was not severe enough, there is no evidence in the record that any AfricanAmerican students (or minority students for that matter) were ever disciplined more severely
than white students for the same conduct. Third, Plaintiffs’ allegation with respect to Ms.
Romanovsky’s refusal to permit DF to use the bathroom involved only one instance of conduct
by an individual who is clearly below the policy-making level in the School District. And fourth,
even assuming that Assistant Principal McKiernan’s testimony “that everyone has some racism
inside of them” was not taken out of context by Plaintiffs, which it appears to have been, 9 this
quote alone provides absolutely no evidence of any policy or custom of treating AfricanAmerican students differently than white students in the School District.

9

McKiernan testified that the statement related to an incident that occurred during a basketball game
between Mahopac High School and Mount Vernon High School. (Reply Declaration of Maurizio Savoiardo, Docket
No. 49, Ex. B. 67-68.)

10

Accordingly, Plaintiffs have failed to demonstrate that a reasonable jury could determine
that the School District had a municipal policy or custom of discriminating against AfricanAmerican students. Plaintiffs’ § 1983 claims against the School District are therefore dismissed.
2. Procedural Due Process
Next, Plaintiffs assert a procedural due process claim under the Fourteenth Amendment
for “damages for the search [of DF] against protocol.” (Pls.’ Opp. at 13.) Plaintiffs allege that
“DF was entitled to be searched fairly, with a witness present, per the established protocol of
Defendant School District.” (Compl. ¶ 56.) Plaintiffs clarify their claim in their opposition to
the instant motion, stating that they only “[c]hallenge the search, [n]ot the suspension,” (Pls.’
Opp. at 27), and that Defendants “had no valid reason for searching Plaintiff DF’s backpack.”
(Id. at 28.) Plaintiffs conclude that there is “an issue of fact as to whether or not Defendant
District and Defendant Fink had the right to search Plaintiff DF’s backpack or direct a search of
Plaintiff DF’s person.” (Id.)
Although it appears that Plaintiffs may have sought to challenge the validity of the
search, the Complaint is devoid of any reference to the Fourth Amendment. Instead, Plaintiffs
frame their claim as one for a violation of procedural due process under the Fourteenth
Amendment for a violation of the “established protocol” of searching students “with a witness
present.” (See Compl. ¶¶ 8, 55-61.) While the Second Circuit has instructed the district courts to
construe pleadings liberally in some circumstances, particularly when the plaintiff is pro se, it
has not afforded the same standard to attorneys, even when the attorney is proceeding pro se.
See Smith v. New York Presbyterian Hops., 254 Fed. App’x 68, 70 (2d Cir. 2007) (“licensed
attorneys proceeding pro se need not be afforded the same” liberal standard). In light of the lack

11

of any reference to the Fourth Amendment in the Complaint, and because Plaintiffs are
represented by counsel, the Court will evaluate this claim as one for violations of the procedural
due process clause of the Fourteenth Amendment, as pled by counsel.
A procedural due process claim requires proof of two elements: “(1) the existence of a
property or liberty interest that was deprived; and (2) deprivation of that interest without due
process.” Bryant v. N.Y. State Educ. Dept., 692 F.3d 202, 218 (2d Cir. 2012). The Second
Circuit instructs:
The threshold issue is always whether the plaintiff has a property or liberty interest
protected by the Constitution. See Board of Regents v. Roth, 408 U.S. 564 (1972). If a
protected interest is identified, a court must then consider whether the government
deprived the plaintiff of that interest without due process. The second step of the analysis
thus asks what process was due to the plaintiff, and inquires whether that constitutional
minimum was provided in the case under review. See Mathews v. Eldridge, 424 U.S.
319 (1976).
Narumanchi v. Board of Trustees, 850 F.2d 70, 72 (2d Cir. 1988).
Plaintiffs must first allege a property or liberty interest protected by the Constitution.
Narumanchi, 850 F.2d at 72. As Plaintiffs are not contesting the seizure of DF’s property or his
suspension from school, the Court construes Plaintiffs’ claim as one for a deprivation of DF's
liberty interest to be free from unreasonable searches and seizures. There is no question that
such a liberty interest exists under the Fourth Amendment. See, e.g., Kia P. v. McIntyre, 2 F.
Supp. 2d 281, 292 (E.D.N.Y. 1998) aff’d, 235 F.3d 749 (2d Cir. 2000) (“The Fourth Amendment
prohibition against unreasonable searches and seizures is the quintessential safeguard of one’s
liberty.” (citing Albright v. Oliver, 510 U.S. 266, 274 (1994); Murphy v. Lynn, 118 F.3d 938, 944
(2d Cir. 1997))).
Having determined that Plaintiffs assert a liberty interest, the Court must decide what
process was due to DF prior to Defendants undertaking the search, and whether that process was

12

provided. “When reviewing alleged procedural due process violations, the Supreme Court has
distinguished between (1) claims based on established state procedures and (2) claims based on
random, unauthorized acts by state employees.” J.E. ex rel. Edwards v. Ctr. Moriches Union
Free Sch. Dist., 898 F. Supp. 2d 516, 545-46 (E.D.N.Y. 2012) (citing Hudson v. Palmer, 468
U.S. 517, 532 (1984); Hellenic Am. Neighborhood Action Committee v. City of New York, 101
F.3d 877, 881-82 (2d Cir. 1996)). “Where the alleged deprivation is based on random,
unauthorized acts, the Due Process Clause of the Fourteenth Amendment is not violated when a
state employee intentionally deprives an individual of liberty, ‘so long as the state provides a
meaningful postdeprivation remedy.’” Id. (citing Hellenic Am. Neighborhood Action Committee
v. City of New York, 101 F.3d at 880.) Simply put, “[d]ue process requires only that a hearing be
held at a meaningful time and in a meaningful manner.” Giglio v. Dunn, 732 F.2d 1133, 1135
(2d Cir. 1984) (citing Parratt v. Taylor, 451 U.S. 527, 540 (1981)).
Plaintiffs fail to identify any law or rule requiring that DF be afforded a hearing prior to
Defendants undertaking a search of his backpack or person. (Pls.’ Opp. at 27-28.) The Court is
likewise unaware of any such requirement. In light of the circumstances faced by school
officials prior to undertaking a search of a student after a violent altercation, and particularly in
light of the undisputed facts in this case – that DF threatened serious physical harm to JM and
attempted to follow through with those threats – a pre-deprivation hearing would have been
impractical, and essentially impossible, in order to ensure the safety of the other student involved
in the fight. Moreover, the alleged deprivation at issue did not occur based on established state
procedures, but rather, as Plaintiffs allege, arose from a purportedly unauthorized search of DF’s
backpack and person. The Court can think of no other way to characterize this allegation than as
a random and unauthorized act of a school official. Thus, the Court will focus on whether a

13

postdeprivation hearing was available in this case.
“Students in New York schools . . . have frequently sought relief from disciplinary action
through an Article 78 hearing.” Attallah v. New York Coll. of Osteopathic Med., 94 F. Supp. 3d
448, 455 (E.D.N.Y. 2015); see also N.Y. C.P.L.R. §§ 7801-7806. In situations when it would
have been impracticable to hold a hearing prior to the alleged deprivation of liberty or property,
the Second Circuit has held that the Article 78 hearing process satisfies the requirements of
procedural due process. Hellenic Am. Neighborhood Action Comm., 101 F.3d at 880-81
(explaining that where, as here, it is impracticable and essentially impossible to hold a hearing
before the alleged deprivation, “the Due Process Clause of the Fourteenth Amendment is not
violated . . . so long as the State provides a meaningful postdeprivation remedy . . . [such as] an
Article 78 proceeding.”) Despite the Court being unaware of any cases concerning the
availability of an Article 78 proceeding to review a school official’s justification for searching a
student on school premises, Article 78 has been routinely used to challenge the decisions of
school officials. Attallah, 94 F. Supp. 3d at 455-56 (collecting cases). The Court can see no
reason why Plaintiffs could not have pursued an Article 78 proceeding in this matter.
Here, Plaintiffs failed to avail themselves of the Article 78 hearing process. Although
Plaintiffs correctly argue that they need not have exhausted their § 1983 claims prior to bringing
suit, “[e]ntirely consistent with that general rule is the principle that there is no constitutional
violation (and no available § 1983 action) when there is an adequate state postdeprivation
procedure to remedy a random, arbitrary deprivation of property or liberty.” Federico v. Bd. of
Educ. of Pub. Sch. of Tarrytowns, 955 F. Supp. 194, 202 n.4 (S.D.N.Y. 1997) (internal citations
and quotation marks omitted) (emphasis in original). Accordingly, Plaintiffs could have, and
should have, availed themselves of the Article 78 hearing process. Its availability is therefore

14

fatal to their procedural due process claim.
Accordingly, Defendants are granted summary judgment on Plaintiffs’ procedural due
process claim.
3. Equal Protection
Plaintiffs assert two claims under the Equal Protection Clause of the Fourteenth
Amendment, the first arising out of searches of DF conducted by Fink and DF’s subsequent
suspension from school on September 24, 2012, (Compl. ¶¶ 62-70), and the second arising out of
Dall’s purportedly racist comments made to DF on February 25, 2013. (Id. ¶¶ 78-84.)
The Equal Protection Clause “is essentially a direction that all persons similarly situated
should be treated alike.” Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000) (internal
citations and quotation marks omitted). A plaintiff may plead intentional discrimination in
violation of the Equal Protection Clause in a number of ways, including pointing to a specific
law or policy that expressly or in practice discriminates on the basis of some impermissible
consideration such as race, Pyke v. Cuomo, 258 F.3d 107, 109 (2d Cir. 2001) (quoting Brown v.
City of Oneonta, 221 F.3d 329, 337 (2d Cir. 1999)), or by basing its allegations on theories of
selective enforcement or a “class-of-one.” See Witt v. Vill. of Mamaroneck, No. 12 Cv. 8778
(ER), 2015 WL 1427206, at *4 (S.D.N.Y. Mar. 27, 2015).
Plaintiffs have not specifically identified under which theory they are proceeding, but in
opposition to the instant motion assert only that there are facts in dispute requiring a trial on their
selective enforcement claim. The Court therefore presumes that Plaintiffs are proceeding on a
selective enforcement theory. To succeed on a theory of selective enforcement, a plaintiff must
prove that: “(1) the [plaintiff], compared with others similarly situated, was selectively treated;
and (2) that such selective treatment was based on impermissible considerations such as race,

15

religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith
intent to injure a person.” LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980).
Therefore, as an initial matter, Plaintiffs must show that similarly situated individuals
were treated differently. There is, however, “disagreement within the Second Circuit regarding
the degree of similarity that a plaintiff must show in order to adequately allege an equal
protection claim under the selective enforcement theory.” Witt, 2015 WL 1427206 at *5
(internal citation omitted). See also Missere v. Gross, 826 F. Supp. 2d 542, 561 (S.D.N.Y.
2011). Some courts in this Circuit have applied the “class-of-one” similarly situated standard to
selective enforcement claims, requiring a plaintiff to show that: “(i) no rational person could
regard the circumstances of the plaintiff to differ from those of a comparator to a degree that
would justify the differential treatment on the basis of a legitimate government policy; and (ii)
the similarity in circumstances and difference in treatment are sufficient to exclude the
possibility that the defendant acted on the basis of a mistake.” Mosdos Chofetz Chaim, Inc. v.
Vill. of Wesley Hills, 815 F. Supp. 2d 679, 693 (S.D.N.Y. 2011). Other courts have applied a
“slightly less stringent” standard to selective enforcement claims, requiring a plaintiff to “show
that the comparators are ‘similarly situated in all material respects.’” Witt, 2015 WL 1427206 at
*5 (citing Mosdos Chofetz Chaim, 815 F. Supp. 2d at 696). In applying the less stringent
standard to a selective enforcement claim, the court in Mosdos Chofetz Chaim explained:
An extremely high level of similarity is required in the “class of one” context because
plaintiffs asserting those claims are attempting to prove that the government’s treatment
was arbitrary and irrational. However, in the present case, Plaintiffs are not alleging that
Defendants sued them . . . to block the . . . project for no reason at all; instead, they have
specifically and repeatedly alleged that Defendants have targeted their project because [of
their religion]. . . . Accordingly, the Court believes it is appropriate to utilize a less
stringent standard than would apply if Plaintiffs were claiming there was simply no
rational reason for the disparate treatment.

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815 F. Supp. 2d at 696-97. For the same reasons, the Court follows Mosdos Chofetz Chaim and
other cases in this Circuit that have applied a less stringent standard to selective enforcement
claims. See, e.g., Walker v. City of New York, No. 05 Cv. 1283 (RER), 2010 WL 5186779, at *7
(E.D.N.Y. Dec. 15, 2010); Abel v. Morabito, No. 04 Cv. 07284 (PGG), 2009 WL 321007, at *4
(S.D.N.Y. Feb. 10, 2009). Therefore, Plaintiff “must identify comparators whom a ‘prudent
person would think . . . [were] roughly equivalent.’” Abel, 2009 WL 321007 at *5 (quoting
Estate of Morris v. Dapolito, 297 F. Supp. 2d 680, 686 (S.D.N.Y. 2004)) (alterations in original).
Plaintiffs identify only one individual – JM – as the comparator for their selective
enforcement claims. (Pls.’ Opp. at 14, 19.) In sum and substance, Plaintiffs assert that DF and
JM are similarly situated individuals because they both “engaged in a fight after exchanging
words” and neither “student clearly instigated the fight.” (Id. at 20.) Plaintiffs’ assertion is
based, at least in part, on their assumptions that DF neither instigated the fight nor made
additional threats to JM. (Id.) Defendants counter that DF and JM are not similarly situated for
equal protection purposes because: (1) JM only shoved DF, and DF threw the first punch; (2) DF
sent threatening text messages to JM prior to the fight; and (3) DF admitted to instigating the
fight. (Defs.’ Reply at 1-2.)
Prior to initiating this action, DF testified under oath in a hearing pursuant to N.Y. Gen.
Mun. Law § 50-h. In that hearing, DF testified that the fight was precipitated by text messages
he sent to JM: “I texted him . . . I said basically, ‘Tell your girl don’t disrespect me’ . . . ‘or we’re
going to have problems.’” (Savoiardo Decl., Ex. E, at 79:12-18.) Although DF now attempts to
deny that he sent any text messages to JM prior to the fight, (see Affidavit of DF, ¶¶ 3-5) 10, the

10

DF’s Affidavit directly contradicts his sworn testimony. The Court notes its concern that DF’s counsel,
Jonathan M. Victor, would permit DF to submit a seemingly false affidavit without any reference therein to the
conflicting testimony proffered by DF in the 50-h hearing. At a minimum, counsel has not shown the candor this
Court expects from members of its bar. In any event, DF’s self-serving statements, which directly contradict his

17

text messages submitted to the Court were sent from DF’s cellular phone number, of which he
was the only user, (see Savoiardo Decl., Ex. E, at 84-85), and match DF’s earlier testimony. (See
Savoiardo Decl., Ex. M (DF wrote, “I’m on the verge to hurting u control ur bitch b4 I do I’m
not playing no games she disrecpts me u get hurt u hear me don’t look in my face u see me u
better walk real quick u deserve a good ass kicking just for her”[sic]).) DF also testified in the
same hearing that when he saw JM in school after sending the text messages, DF “said
something to [JM],” and JM then pushed him. (Id., Ex. E, at 79:19-24; Pls.’ 56.1 ¶ 12.)
Moreover, DF admits to throwing the first punch. (Savoiardo Decl., Ex. E, at 96:12-13; Pls.’
56.1 ¶ 25.)
Construing the proffered evidence in the light most favorable to Plaintiffs, the Court
cannot find that DF and JM are similarly situated in all material respects or that they are even
“roughly equivalent,” see Abel, 2009 WL 321007 at *5, with respect to the underlying incidents
alleged in Plaintiffs’ equal protection claims. On the one hand, the record clearly demonstrates
that DF sent threatening text messages to JM, which instigated the fight, and that DF threw the
first punch. On the other hand, the record reflects only that JM pushed Plaintiff; he did not send
threatening text messages, 11 instigate the fight, or throw the first punch. Although both DF and
JM were involved in the fight, there is substantial difference between their levels of culpability,
such that a prudent person could not find that DF and JM were roughly equivalent given the
premeditated nature of the incident and DF’s throwing of the first punch.

prior sworn testimony, are insufficient to defeat a motion for summary judgment. Fincher v. Depository Trust &
Clearing Corp., No. 06 Cv. 9959 (WHP), 2008 WL 4308126, at *3 (S.D.N.Y. Sept. 17, 2008) aff’d, 604 F.3d 712
(2d Cir. 2010) (citing Gonzales v. Beth Israel Med. Ctr., 262 F. Supp. 2d 342, 353 (S.D.N.Y. 2003)).
11
Although DF states in his Affidavit that he “thought JM had threatened to break [his] kneecaps,”
(Affidavit of DF ¶ 7), the Court will not give credence to this self-serving statement, unsupported by any other
evidence in the record. See Footnote 2, supra.

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Plaintiffs’ failure to identify a sufficient comparator is fatal to their equal protection
claim arising out of the search and suspension that occurred on September 24, 2012. Moreover,
Plaintiffs fail to identify any comparator for their claim arising out of Dall’s purportedly racist
comments to DF on February 25, 2013. Accordingly, Defendants are granted summary
judgment on Plaintiffs’ equal protection claims. 12
4. Title VI
Title VI of the Civil Rights Act of 1964 prohibits programs receiving financial assistance
from the federal government from discriminating on the basis of race or national origin. See 42
U.S.C. § 2000d. “To establish a claim under Title VI, a plaintiff must show . . . : (1) that the
entity involved engaged in racial or national origin discrimination; (2) the entity involved is
receiving federal financial aid; and (3) plaintiff was an entitled beneficiary of the program or
activity receiving the aid.” Babiker v. Ross Univ. Sch. of Med., No. 98 CIV 1429 THK, 2000
WL 666342, at *4 (S.D.N.Y. May 19, 2000) aff’d sub nom. Babiker v. Ross Univ. Sch. of Med.,
86 F. App’x 457 (2d Cir. 2004) (internal citations omitted).
Courts apply the three-part burden-shifting framework announced in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), to Title VI claims, see J.E. ex rel. Edwards v. Ctr.
Moriches Union Free Sch. Dist., 898 F. Supp. 2d 516, 557 (E.D.N.Y. 2012), which requires:
[a] plaintiff [to] first successfully assert a prima facie claim against defendants. If
plaintiff makes out a prima facie case, the burden shifts to the defendant to show a
legitimate, nondiscriminatory reason for its conduct. Plaintiff then has the opportunity to
prove by a preponderance of the evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for discrimination.
Id. (quoting Koumantaros v. City University of New York, No. 03 Civ. 10170(GEL), 2007 WL
840115, at *7 (S.D.N.Y. Mar. 19, 2007)). In order to satisfy the first element of a Title VI claim,

12

Having granted Defendants’ motion on Plaintiffs’ § 1983 due process and equal protection claims, the
Court need not determine whether any of the Defendants are entitled to qualified immunity.

19

Plaintiffs must demonstrate “that the defendant discriminated against [DF] on the basis of race,
that the discrimination was intentional, and that the discrimination was a substantial or
motivating factor for the defendant’s actions.” Id. at 556 (quoting Tolbert v. Queens Coll., 242
F.3d 58, 69 (2d Cir. 2001) (internal quotation marks and citations omitted)). Plaintiffs may
assert a prima facie case through direct evidence of discrimination, or when there is no direct
evidence of discriminatory conduct, they may show that: (1) [DF] is a member of a protected
class; (2) []he suffered an adverse action in pursuit of h[is] education by defendant; (3) []he was
treated differently from similarly situated students who were not members of the protected class;
and (4) []he was qualified to continue in h[is] educational pursuit.” Id. at 557.
Plaintiffs’ Title VI claims arise from the same set of facts alleged in Plaintiffs’ equal
protection claims – the searches of DF conducted by Fink and his subsequent suspension from
school on September 24, 2012, and Dall’s purportedly racist comments made to DF on February
25, 2013. (Compare Compl. ¶¶ 62-70, 78-84 (equal protection claims) with Compl. ¶¶ 71-77,
85-93 (Title VI claims).) Plaintiffs’ failure to identify a sufficient comparator in connection with
their equal protection claims makes it impossible for them to demonstrate an essential element of
their Title VI claim – that DF was “treated differently from similarly situated students who were
not members of the protected class.” J.E. ex rel. Edwards, 898 F. Supp. 2d at 557 (holding that
plaintiffs’ failure to establish triable issues in their equal protection claims required dismissal of
their Title VI claims for the same reasons). Defendants are therefore entitled to summary
judgment on the Title VI claims. 13

13

The Court notes that Plaintiffs previously withdrew their Title VI claims against the individual
Defendants. (Pls.’ Opp. at 13.)

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5. State Law Claims
Having granted Defendants summary judgment on all of Plaintiffs’ federal claims, the
Court must decide whether to retain supplemental jurisdiction over the remaining state law
claims for breach of contract, negligence, assault, and battery.
Pursuant to 28 U.S.C. § 1367(c)(3), a district court “may decline to exercise supplemental
jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has
original jurisdiction.” 28 U.S.C. § 1367(c)(3). In deciding whether to decline jurisdiction, the
Court may “consider factors such as judicial economy, convenience, fairness, and comity.”
Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1191 (2d Cir. 1996). The Supreme
Court has noted, however, “that in the usual case in which all federal-law claims are eliminated
before trial, the balance of factors to be considered under the pendent jurisdiction doctrine—
judicial economy, convenience, fairness, and comity—will point toward declining to exercise
jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343, 350 n.7 (1988); accord Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003);
see also Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998) (“In general, where the federal
claims are dismissed before trial, the state claims should be dismissed as well.”).
In J.E. ex rel. Edwards, the Eastern District of New York faced nearly the same question
in the context of a case involving school fights – whether to retain jurisdiction over the plaintiffs’
negligence, assault, battery, intentional infliction of emotional distress, and New York State
Education Law claims after dismissing their equal protection, procedural due process, and Title
VI claims, among other federal claims. The court explained that comity suggests such cases
should be “litigated in state court where the conduct of state actors can be adjudicated by the
state court under state law.” J.E. ex rel. Edwards, 898 F. Supp. 2d at 559 (internal citations

21

omitted). The court further noted that "[t]his is particularly the case here where the conduct at
issue involves local interaction between public school officials and students and their. parents."
Id.

Plaintiffs state that this Court may retain jurisdiction over the state law claims as a
discretionary matter. (Pis.' Opp. at 30.) Although this proposition is correct, Plaintiffs offer no
reasons as to why the Court should exercise such discretion in this case or why the Comt should
depart from the Supreme Comt's direction that where, as here, all federal claims are dismissed
before trial, the district courts should generally decline to exercise jurisdiction over the
remaining state law claims. In the absence of any supporting arguments by Plaintiffs, and
considering New York State's interest in adjudicating matters of state law concerning
interactions between public school officials and students and their parents, the Court declines to
exercise supplemental jurisdiction over Plaintiffs' remaining state law claims. These claims are
dismissed without prejudice pursuant to 28 U.S.C. § 1367(c)(3).
CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment is GRANTED and
the Court declines to exercise jurisdiction over the remaining state law claims. The Court
respectfully directs the Clerk to terminate the motion at ECF No. 34, enter judgment in favor of
Defendants, and to close the case.

Dated:

.v

March _{__, 2016
White Plains, New York

SO ORDERED:

~

United States District Judge

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